A selection of legal maxims : classified and illustrated

CO

SELECTION

LEGAL MAXIMS,

CLASSIFIED AND ILLUSTRATED.

By HERBERT BROOM, LL.D.,

OF THE INNER TEMPLE, BARRISTER-AT-LAW | READER IN COMMON LA-W-
TO THE INNS OF COURT.

Maxims are the condensed Good Sense of Nations.— Sib J. Mackintosh.

Juris Prsecepta sunt hsec; honeste vivere, alterum non leedere, suum cuique
tribuere .— 1. 1. 1. 3.

SEVENTH AMERICAN,
FROM THE FIFTH LONDON EDITION,

WITH REFERENCES TO AMERICAN CASES.

PHILADELPHIA : y

T. & J. W. JOHNSON & CO.,

LAW BOOKSELLERS, PUBLISHERS AND IMPORTERS.

535 CHESTNUT STREET.

1874.

HENRY B. ASHMEAD, BOOK AND JOB PRINTER,

1102 and 1104 Sansom Street, Philadelphia.

PREFACE TO THE FIFTH LONDON EDITION.

In this Edition the text has been carefully revised, and redun-
dant or obsolete matter has been expunged, its place having been
supplied by illustrations of Legal Maxims, extracted from the most
recent reported cases.

The increasing favor shown by professional and non -professional
readers for this Work has stimulated my endeavors to render it
more worthy of their confidence.

H. B.

The Temple,
April 28th, 1870.

5

PREFACE TO THE FOURTH EDITION.

In this Edition, the very numerous cases illustrative of Legal
Maxims reported since the last issue of the Work have been in-
serted ; the text has been carefully revised ; and it is hoped that
this Book of Principles may, in its amended form, prove useful to
the Practitioner and the Student.

H. B.

The Temple,
March 30th, 1864.

PREFACE TO THE THIRD EDITION.

In again preparing this Work for the press, I have specially
endeavored to preserve its elementary character, remembering that
it was not designed to exhibit minute details, but as a repertory of
Legal Principles.

The last Edition of these Selections of Maxims has now been
carefully revised, cases accumulated during ten years have been
sifted and examined, and every effort has faithfully been made to
render the Book, in its present form, accurate and useful.

In regard to subjects of interest or importance to the Student,
here but incidentally touched upon, occasional references have been
given to my " Commentaries on the Common Law" — designed as a
companion to, and therefore printed uniformly with, the present
volume.

The indulgence of the learned reader must be once more solicited,
to pardon errors or omissions, which, notwithstanding anxious and
repeated perusal of the proofs, may have escaped detection.

H. B.

The Temple,
June Uth, 1858.

\to

PREFACE TO THE SECOND EDITION,

The reasonableness of the hope which I formerly ventured to
express, as to the utility of a work upon Elementary Legal Princi-
ples, has, I think, been established, as well by the rapid sale of the
first edition of this Treatise, as by the very flattering communica-
tions respecting it which have been made to me by spme of the most
distinguished members of that Profession for which it was designed.
Thus kindly encouraged, I have endeavored to avail myself of the
opportunity for improvement which the preparation of a new Edi-
tion affords, by making a careful revision of the entire Work, by the
insertion of many important Maxims which had been previously
unnoticed, and by the addition of much new matter illustrative of
those originally commented upon or cited. During the interval
which has elapsed since the first appearance of this Work, I have,
moreover, devoted myself to a perusal of various treatises upon our
own Law, which I had not formerly, from lack of time or opportunity,
consulted ; to the examination of an extensive series of American
Reports, and also to a review of such portions of and commentaries
upon the Roman Law, as seemed most likely to disclose the true
sources from which very many of our ordinary rules and maxims
have been ultimately derived. I trust that a very slight compari-
son of the present with the former Edition of this Work, will suf-
fice to show that the time thus employed with a view to its improve-
ment has not been unprofitably spent ; but that much new matter
has been collected and inserted, which may reasonably be expected
to prove alike serviceable to the Practitioner and the Student.

Besides the additions just alluded to, I may observe, that the
order of arrangement formerly adopted has been on the present
occasion in some respects departed from. For instance, that por-
tion of the Work which related to Property and its attributes, has
now been subdivided into three sections, which treat respectively
of its Acquisition, Enjoyment and Transfer : a mode of considering
this subject which has been adopted, for the sake of simplicity, and
with a view to showing in what manner the most familiar and ele-

viii PREFACE TO THE SECOND EDITION.

mentary Maxims of our Law may be applied to the exposition and
illustration of its most difficult and comprehensive branches. Fur-
ther, it may be well to mention, that, in the Alphabetical List of
Maxims which precedes the text, I have now inserted not only such
as are actually cited in the body of the Work, but such also from
amongst those with which I have become acquainted, as seem to be
susceptible of useful practical application, or to possess any real
value. The List, therefore, which has thus been compiled, with no
inconsiderable labor, from various sources, and to which some few
notes have been appended, will, I trust, be found to render this
Volume more complete, as a Treatise upon Legal Maxims, than it
formerly was ; and will, moreover, appear, on examination, to pos-
sess some peculiar claims to the attention of the reader.

It only remains for me further to observe, that, in preparing this
Volume for the press, I have anxiously kept before me the twofold
object with a view to which it was originally planned. On the one
hand, I have endeavored to increase its usefulness to the Practi-
tioner by adding references to very many important, and, for the
most part, recent decisions illustrative of those principles of Law
to the application of which his attention must necessarily be most
frequently directed ; whilst, on the other hand, I have been mindful
of preserving to this Work its strictly elementary character, so that
it may prove no less useful than formerly to the Student as a Com-
pendium of Legal Principles, or as introductory to a systematic
course of reading upon any of the various branches of our Common
Law.

In conclusion, I can truly say, that, whatever amount of time
and labor may have been bestowed upon the preparation of this
Work, I shall esteem myself amply compensated if it be found in-
strumental in extending knowledge with regard to a Science which
yields to none either in direct practical importance or in loftiness
of aim — if it be found to have facilitated the study of a System of
Jurisprudence, which, though doubtless susceptible of improvement,
presents, probably, the most perfect development of that science
which the ingenuity and wisdom of man have hitherto devised.

HERBERT BROOM.

The Temple,
March 16th, 1848.

PREFACE TO THE FIRST EDITION.

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

In the present Work I have endeavored, not only to point out
the most important Legal Maxims, but also to explain and illustrate
their meaning; to show the various exceptions to the rules which
they enunciate, and the qualifications which must be borne in mind
when they are applied. I have devoted considerable time, and

X PREFACE TO THE FIRST EDITION.

much labor, to consulting the Reports, both ancient and modern,
as also the standard Treatises on leading branches of the Law, in
order to ascertain what Maxims are of most practical importance,
and most frequently cited, commented on and applied. I have
likewise repeatedly referred to the various Collections of Maxims
which have heretofore been published, and have freely availed
myself of such portions of them as seemed to possess any value or
interest at the present day. I venture, therefore, to hope, that
very few Maxims have been omitted which ought to have found
place in a work like that now submitted to the Profession. In
illustrating each Rule, those Cases have in general been preferred
as examples in which the particular Maxim has either been cited,
or directly stated to apply. It has, however, been necessary to
refer to many other instances in which no such specific reference
has been made, but which seem clearly to fall within the principle
of the Rule; and whenever this has been done, sufficient authorities
have, it is hoped, been appended, to enable the reader, without very
laborious research, to decide for himself whether the application
suggested has been correctly made, or not.

In arranging the Maxims which have been selected as above men-
tioned, the system of Classification has, after due reflection, been
adopted : first, because this arrangement appeared better calculated
to render the Work, to some extent, interesting as a treatise,
exhibiting briefly the most important Rules of Law, and not merely
useful as a book of casual reference; and, secondly, because by
this method alone can the intimate connection which exists between
Maxims appertaining to the same class be directly brought under
notice and appreciated. It was thought better, therefore, to incur
the risk of occasional false or defective classification, than to pursue
the easier course of alphabetical arrangement. An Alphabetical
List has, however, been appended, so that immediate reference may
be made to any required Maxim. The plan actually adopted may
be thus stated : — I have, in the first Two Chapters, very briefly
treated of Maxims which relate to Constitutional Principles, and
the mode in which the Laws are administered. These, on account
of their comprehensive character, have been placed first in order,
and have been briefly considered, because they are so very generally
known, and so easily comprehended. After these are placed cer-
tain Maxims which are rather deductions of reason than Rules of

PREFACE TO THE FIRST EDITION. XI

Law, and consequently admit of illustration only. Chapter IV.
comprises a few principles which may be considered as fundamental,
and not referable exclusively to any of the subjects subsequently
noticed, and which follow thus: Maxims relating to Property,
Marriage and Descent ; the Interpretation of Written Instruments
in general ; Contracts ; and Evidence. Of these latter subjects, the
Construction of Written Instruments, and the Admissibility of evi-
dence to explain them, as also those Maxims which embody the
Law of Contracts, have been thought the most practically impor-
tant, and have therefore been noticed at the greatest length. The
vast extent of these subjects has undoubtedly rendered the work of
selection and compression one of considerable labor ; and it is feared
that many useful applications of the Maxims selected have been
omitted, and that some errors have escaped detection. It must be
remarked, however, that, even had the bulk of this Volume been
materially increased, many important branches of Law to which the
Maxims apply must necessarily have been dismissed with very slight
notice ; and it is believed that the reader will not expect to find, in
a Work on Legal Maxims, subjects considered in detail, of which
eacjb presents sufficient materials for a separate Treatise.

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

In conclusion, I have to express my acknowledgments to several

Xll PREFACE TO THE FIRST EDITION.

Professional Friends of Practical experience, ability and learning,
for many valuable suggestions which have been made, and much
useful information which has been communicated, during the prepa-
ration of this Work, and of which I have very gladly availed my-
self. For such defects and errors as will, doubtless, notwithstanding
careful revision, be apparent to the reader, it must be observed that
I alone am responsible. It is believed, however, that the Profes-
sional Public will be inclined to view with some leniency this
attempt to treat, more methodically than has hitherto been done, a
subject of acknowledged importance, and one which is surrounded
with considerable difficulty.

HERBERT BROOM.

The Temple.
January 3,0th, 1845.

CONTENTS.

The pages referred to are those enclosed in brackets [ ].
CHAPTER I.

Sec. I. — Rules founded on Public Policy.

page

Salus populi suprema lex 1

Necessitas inducit privilegium quoad jura privata 11

Summa ratio est quae pro religione facit 19

Dies Dominicus non est juridicus 21

Sec. II. — Rules op Legislative Policy.

Leges posteriores priores contrarias abrogant ...... 27

Nova constitutio futuris formam imponere debet, non praeteriti3 . . 34

Ad ea quae frequentius accidunt jura adaptantur 43

CHAPTER II.

Maxims relating to the Crown.

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

regem 47

Rex nunquam moritur 50

Rex non potest peccare 52

Non potest Rex gratiam facere cuni injuria et damno aliorum . . 63

Nullum tempus occurrit Regi 65

Quando jus Domini Regis et subditi concurrunt, jus Regis praeferri debet 69

Roy n'est lie per ascun statute, si il ne soit expressement nosme . . 72

Nemo patriam in qua natus est exuere nee ligeantiae debitum ejurare possit 75

CHAPTER III.

Sec. I. — The Judicial Office.

Boni judicis est ampliare jurisdictionem 79

De fide et officio judicis non recipitur quaestio, sed de scientia sive sit error

juris sive facti 85

Qui jussu judicis aliquod fecerit non videtur dolo malo fecisse, quia parere

necesse est 93

Ad qusestionem facti non respondent judices, ad quaestionem legis non re-
spondent juratores 102

In praesentia majoris cessat potentia minoris Ill

XIV

CONTENTS

Sec. II. — The Mode of Administering Justice.

Audi alteram partem

Nemo debet esse judex in propria sua causa
Actus curiae neminem gravabit ...
Actus legis nemini est damnosus
Iu fictione juris semper aequitas existit
Executio juris non habet injuriam

Cursus curiae est lex curiae

Consensus tollit errorem

Communis error facit jus .....

De minimis non curat lex .....

Omnis innovatio plus novitate perturbat quam utilitate prodest

PAGE

113
116
122
126
127
130
133
135
139
142
147

CHAPTER TV.

RULES OP LOGIC.

Ubi eadem ratio ibi idem jus 153

Cessante ratione legis cessat ipsa lex 159

De non apparentibus et non existentibus eadem est ratio .... 163

Non potest adduci exceptio ejusdem rei cujus petitur dissolutio . . 166

Allegans contraria non est audiendus . . 169

Omne majus continet in se minus 174

Quod ab initio non valet in tractu temporis non convalescit . . . 178
Argumentum ab inconvenienti plurimum valet in lege . . . .184

Nimia subtilitas in jure reprobatur, et talis certitudo certitudinem confundit 187

CHAPTER V.

Fundamental Legal Principles.

Ubi jus ibi remedium .......

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

Lex non cogit ad impossibilia

Ignorantia facti excusat, ignorantia juris non excusat
Volenti non fit injuria .......

Nullus commodum capere potest de injuria sua propria

Acta exteriora indicant interiora secreta

Actus non facit reum nisi mens sit rea

Nemo debet bis vexari pro una et eadem causa

191
212
216
230
242
253
268
279
301
306
327

CHAPTER VI.
Acquisition, Enjoyment and Transfer of Property.

Sec. I. — The Mode of Acquiring Property.
Qui prior est tempore, potior est jure

Sec. II.— Property — its Rights and Liabilities.

Sic utere tuo ut alienum non laedas

Cujus est solum ejus est usque ad ccelum ....

Quicquid plantatur solo solo cedit

Domus sua cuique est tutissimum refugium . .

353

365
395
401
432

CONTENTS. XV

Sec. III. — The Transfer of Property.

page

Alienatio rei praefertur juri accrescendi 442

Cujus est dare ejus est disponere 459

Assignatus utitur jure auctoris 465

Cuicunque aliquis quid concedit concedere videtur et id sine quo res ipsa

esse non potuit 479

Accessorium non ducit sed sequitur suum principale .... 491
Licet dispositio de interesse futuro sit inutilis tamen fieri potest declaratio

praecedens quae sortiatur effectum interveniente novo actu . . . 498

CHAPTER VII.

Rules relating to Marriage and Descent.

Consensus, non concubitus, facit matrimonium ...... 505

Haeres legitimus est quem nuptiae demonstrant 515

Nemo est haeres viventis 522

Non jus sed seisina facit stipitem 525

Haereditas nunquam ascendit ......... 527

Possessio fratris de feodo simplici facit sororem esse hasredem . . 532

Persona conjunctaaequiparatur interesse proprio 533

CHAPTER VIII.

The Interpretation of Deeds and Written Instruments.

Benignae faciendae sunt interpretationes propter simplicitatem laicorum ut
res magis valeat quam pereat ; et verba intentioni, non e Contra,

debent inservire 540

Ex antecedentibus et consequentibus fit optima interpretatio . . . 577

Noscitur a sociis 588

Verba chartarum fortius accipiuntur contra proferentem . . . 594
Ambiguitas verborum latens verificatione suppletur ; nam quod ex facto

oritur ambiguum verificatione facti tollitur 608

Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba

fienda est 619

Certum est quod certum reddi potest . . 623

Utile per inutile non vitiatur 627

Falsa demonstratio non nocet 629

Verba generalia restringuntur ad habilitatem rei vel personam . . 646

Expressio unius est exclusio alterius 651

Expressio eorum quae tacite insunt nihil operatur 669

Verba relata hoc maxime operantur per referentiam ut in eis inesse videntur 673

Ad proximum antecedens fiat relatio nisi impediatur sententia . . 680

Contemporanea expositio est optima et fortissima in lege .... 682

Qui haeret in litera haeret in cortice 685

CHAPTER IX.

The Law of Contracts.

Modus et conventio vincunt legem ........ 689

Quilibet potest renunciare juri pro se introducto ..... 699

Qui sentit commodum sentire debet et onus 706

In aequali jure melior est conditio possidentis 713

Ex dolo malo non oritur actio ......... 729

Ex nudo pacto non oritur actio 745

XVI CONTENTS.

PAGE

Caveat emptor 768

Quicquid solvitur, solvitur secundum modura solventis — quicquid recipitur,

recipitur secundum modum recipientis N 810

Qui per alium facit per seipsum facere videtur 817

Respondeat superior 843

Omnis ratihabitio retrotrahitur et mandato priori asquiparatur . . 867
Nihil tarn conveniens est naturali aequitati quam unumquodque dissolvi eo

ligamine quo ligatum est ......... 877

Vigilantibus, non dormientibus, jura subveniunt . . . . -.. . 892

Actio personalis moritur cum persona 904

CHAPTER X.

Maxims applicable to the Law op Evidence.

Optimus interpres rerum usus ......... 917

Cuilibet in sua arte perito est credendum ...... 932

Omnia prsesumuntur contra spoliatorem ....... 938

Omnia praesumuntur rite et solenniter esse acta ..... 942

Res inter alios acta alteri nocere non debet 954

Nemo tenetur seipsum accusare 968

ALPHABETICAL LIST OF LEGAL MAXIMS.

*** Throughout this List, Wingate's Maxims are indicated hy the letter (W). Lofft's Reports (Ed.
1790), to which is appended a very copious Collection of Maxims, are signified hy the letter
(L). The Grounds and Rudiments of Law (Ed. 1751), by the letter (G); and Halkerston's
Maxims (Ed. 1823), by the letter (H); the reference in the last instance only being to the num-
ber of the Page, in the others to that of the Maxim. Of the above Collections, as also of those
by Noy (9th Ed.), and Branch (6th Ed.), use has, in preparing the following List, been freely
made. Some few Maxims from the Civil Law have also been inserted, the Digest being
referred to by the letter (D), as in the body of the Work.
The figures at the end of the line without the Parentheses denote the pages of this Treatise where
the Maxim is commented upon or cited.

A communi observantia, non est re-
cedendum.(W. 203).

A verbis legis non est recedendum 622

Ab abusu ad usum non valet con-
sequeatia (a).

Absoluta sententia expositore non
in diget (2 Inst. 533).

Abundans cautela non nocet (11
Rep. 6).

Accessorium non ducit, sed sequi-
tur, suum principale . 49], 492, 493

Accessorium non trahit principale 496

Accessorius sequitur naturam sui
principalis ..... 497

Accusator post rationabile tempus
non est audiendus, nisi se bene
de omissione excusaverit (Moor
817).

Acta exteriora indicant interiora
secreta 301

Actio non datur non damnificato
(Jenk. Cent. 69).

Actio personalis moritur cum per-
sona . 904, 905, 909, 915, 916, n.

Actio quselibet it sua, via, (Jenk.
Cent. 77).

Actionum genera maxime sunt ser-
vanda (L. 460).

Actore non probante absolvitur
reus (Hob. 103).

(a) In Stockdale v. Hansard, 9 Ad. & E. 116 (36
E. C. L. R.), Lord Denman, C. J., observes, that
the above maxim cannot apply " where an abuse
is directly charged and offered to be proved."

Actor sequitur forum rei (Branch

M. 4).
Actori incumbit onus probandi

(Hob. 103).
Actus curias neminem gravabit . 122
Actus Dei nemini facit injurium . 230
Actus Dei nemini nocet . . 241

Actus incaeptus cujus perfectio
pendet ex voluntate partium re-
vocari potest, si autem pendet
ex voluntate testias persona? vel
ex contingenti revocari non po-
test (b) (Bac. Max. reg. 20).
Actus judiciarius coram non judice
irritus habetur, de ministeriali
autem a quocunque provenit
ratum esto (L. 458).
Actus legis nemini facit injuriam

127, 409
Actus legis nemini est damnosus . 126
Actus legitimi non recipiunt mo-

dum (Hob. 153).
Actus non facit reum nisi mens sit
rea . 306, 316, 324, 367, 807, n.

(b) The law, observes Lord Bacon, makes this
difference, that, if the parties have put it in the
power of a third person, or of a contingency, to
give a perfection to their act, then they have put
it out of their own reach and liberty to revoke it ;
but where the completion of their act or contract
depends upon the mutual consent of the original
parties only, it may be 'rescinded by express
agreement. So, in judicial acts, the rule of the
civil law holds, sententia interlocutoria revocari
potest, that is, an order may be revoked, but a
judgment cannot. — Bac. M. reg. 20.

XV111

LIST OF LEGAL MAXIMS,

Ad ea quse frequentius accidunt
jura adaptantur . . .43, 44

Adjuvari quippe nos, non decipi,
beneficio oportet . . . 392, n.

Ad proximum antecedens fiat rela-
tio nisi impediatur sententia . 680

Ad quaestionem facti non respon-
dent jndices — ad quaestionem
legis non respondent juratores . 102

Ad quaestionem legis respondent
judices 938

^Edificare in tuo proprio solo non
licet quod alteri noceat . . 369

^Equitas sequitur legem (Branch
M. 8).

Affectus punitur licet non sequitur
effectus (9 Rep. 56).

Affirmanti non neganti incumbit
probatio (H. 9).

Alienatio licet prohibeatur con-
sensu tamen omnium in quorum
favorem prohibita est potest fieri
(Co. Litt. 98).

Alienatio rei praefertur juri accres-
cendi 442, 458

Aliquid conceditur ne injuria re-
manerit impunita quod alias non
concederetur (Co. Litt. 197).

Aliquis non debet esse judex in
propria causa, quia non potest
esse judex et pars . . . 117

Aliud est possidere — aliud esse in
possessione (Hob. 163).

Aliud est celare — aliud tacere . 782

Allegans contraria non est audien-
dus 169, 174, 294

Allegans suam turpitudinom non
est audiendus (4 Inst. 279).

Allegari non debuit quod probatum
non relevat (1 Chan Cas. 45).

Alterius circumventio alii non prae-
bet actionem (D. 50. 17. 49).

Ambigua responsio contra profer-
entem est accipienda (10 Rep.
58).

Ambiguis casibus semper praesu-
mitur pro rege (L. 248).

Ambiguitas verborum latens veri-
ficatione suppletur, nam quod ex
facto oritur ambiguum verifica-
tione facti tollitur . . . 608

Ambiguitas verborum patens nulla
verificatione excluditur (L. 249).

Ambiguum placitum interpretari
debet contra proferentem . . 601

Ambulatoria est voluntas defuncti
usque ad vitae supremum exi-
tum 503

Angliae jura in omni casu libertati
dant favorem (H. 12).

Animus hominis est anima scripti
• (3 Bulstr. 67).

A non posse ad non esse sequitur
argumentum necessarie negative
licet non affirmative (Hob. 336).

Apices juris non sunt jura . . 188

Applicatio est vita regulae (2
Bulstr. 79).

Arbitramentum aequum tribuit
cuique suum (Noy, M. 248).

Argumentum ab auctoritate est
fortissimum in lege (Co. Litt.
254).

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

Argumentum ab inconvenienti plu-
rimum valet in lege . . . 184

Argumentum a communiter acci-
dentibus in jure frequens est 44, n.

Argumentum a divisione est fortis-
simum in jure (6 Rep. 60). (W.
71).

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

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

Assignatus utitur jure auctoris 465,
466, 477

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

Audi alteram partem . . .113

Bello parta cedunt reipublicae

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

redlmitur a destructione (4 Rep.

26).
Benignae faciendae sunt interpreta-

tiones, propter simplicitatem lai-

corum, ut res magis valeat quam

pereat 540

Benigne faciendae sunt interpreta-

tiones et verba intentioni debent

inservire . . . 565, 645
Benignior sententia, in verbis gene-

ralibus seu dubiis, est preferenda

(4 Rep. 15).
Bona fides non patitur, ut bis idem

exigatur .... 338, n

Bonae fidei possessor, in id tantum

quod ad se pervenerit tenetur (2

Inst. 285).
Boni judicis est ampliare jurisdic-

tionem ... 79, 80, 82

Boni judicis est judicium sine dila-

tione mandare executioni (Co.

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

lis ex lite oritur, et interest rei-

LIST OF LEGAL MAXIMS,

XIX

publicae ut sint fines litium (4
Rep. 15).
Bonus judex secundum aequum et
bonum judicat, et eequitatem
stricto juri praefert . . .80

Casus omissus et oblivioni datus
dispositioni communis juris re-
linquitur 46

Causa proxima et non remota spec-
tatur . . . 216, 219, 220

Caveat emptor; qui ignorare non
debuit quod jus alienum emit, 359,
768, 769, 770, 771, 773, 777, 779, 780,
783, 799, 802, 809.

Caveat venditor (L. 328).

Caveat viator . . . 387, n.

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

Certum est quod certum reddi po-
test . . . . . 623, 624

Cessante causa, cessat effectus . 160

Cessante ratione legis, cessat ipsa
lex . . . . 159, 161, 162

Cessante statu primitivo, cessat
derivativus .... 495

Charta de non ente non valet (Co.
Litt. 36 a).

Chirograpbum apud debitorem re-
pertum praesumitur solutum (H.
20).

Circuitus est evitandus . . . 343

Clausulae inconsuetae semper indu-
cunt suspicionem . . . 290

Clausula generalis de residuo non
ea complectitur quae non ejusdem
sint generis cum iis quae specia-
tim dicta fuerant (L. 419).

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

Clausula quae abrogationem exclu-
dit ab initio non valet . . 27

Clausula del dispositio inutilis, per
presumptionem vel causam re-
motam ex post facto non fulcitur

672

Cogitationis pcenam nemo patitur 311

Cohaeredes una persona censentur
propter unitatem juris quod ha-
bent (Co. Litt. 163).

Communis error facit jus . 139, 140

Conditio beneficialis quae statum
construit, benigne, secundum
verborum intentionem, est inter-
pretanda ; odiosa, autem, quae
statum destruit, stricte, secun-
dum verborum proprietatem acci-
pienda (8 Rep. 90).

Conditio praecedens adimpleri de-
bet priusquam sequatur offectus
(Co. Litt. 201).

Conditiones quaelibet odiosae ; max-
ime autem contra matrimonium
et commercium (L. 644).

Confirmare nemo potest priusquam
jus ei acciderit (10 Rep. 48).

Confirmatio omnes supplet defec-
tus, licet id quod actum est ab
initio non valuit (Co. Litt. 295 b).

Consensus, non concubitus, facit
matrimonium . 505, 506, 515

Consensus tollit errorem, 135, 136, 138

Consentientes et agentes pari poena
plectentur (5 Rep. 80).

Consentire matrimonio non possunt
infra annos nubiles (5 Rep. 80).

Constitutiones tempore posteriores
potiores sunt his quae ipsas prae-
cesserunt . . . . 28, n.

Constructio legis non facit injuri-
am 603

Consuetudo ex certa causa rationa-
bili usitata privat communem
legem 919

Consuetudo loci est observanda . 918

Consuetudo manerii et loci obser-
vanda est (Branch M, 28).

Consuetudo neque injuria, oriri
neque tolli potest (L. 340).

Consuetudo regni Angliae est lex
Angliae (Jenk. Cent. 119).

Consuetudo semel reprobata non
potest amplius induci (G. 53).

Contemporanea expositio est opti-
ma et fortissima in lege . 682

Contra negantem principia non est
disputandum (G. 57).

Contra non valentem agere nulla
curit praescriptio . . . 903

Conventio privatorem non potest
publico juri derogare (W. 201).

Copulatio verborum indicat accep-
tationem in eodem sensu . . 588

Corporalis injuria non recipit aesti-
mationem de futuro . . . 278

Cuicunque aliquis quid concedit,
concedere videtur et id sine quo
res ipsa esse non potuit . 479, 489

Cuilibet in sua arte perito est cre-
dendum . . . . 932, 934

Cui licit quod magus non debet
quod minus est non licere . . 176

Cujus est dare ejus est disponere

459, 461, 463, 464

Cujus est instituere ejus est abro-
gare 878, n.

Cujus est solum, ejus est usque ad
ccelum . . . 395, 396, 397

LIST OF LEGAL MAXIMS.

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

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

Cum duo inter se pugnantia repe-
riuntur in testamento, ultimum
ratura est ..... 583

Cum in testamento ambigue aut
etiam perperam scriptum est be-
nigne interpretari et secundum id
quod credibile est cogitatum cre-
dendum est .... 568

Cum par delictum est duorum, sem-
per oneratur petitor et melior
habetur possessoris causa . . 720

Cum principalis causa non consistit,
ne ea quidem quae sequuntur,
locum habent (D. 50. 17. 129. g

Curia parliamenti suis propriis legi-

bus subsistit . . . .85
Cursus curiae est lex curia? . 133, 135

Damnum sine injuria esse potest (H.

12).
Debile fundamentum fallitopus 180, 182
Debita sequuntur personam debito-
rs (H. 13).
Debitor non praesumitur donare (a)

(H. 13).
Debitorum pactionibus creditorium

petitio nee tolli nee minui potest 697
Debitum et contractus sunt nullius

loci (6). (7 Rep. 61).
Deficiente uno non potest esse haeres

(G. 77).
De fide et officio judicis non recipi-

tur quaestio, sed de scientia sire

sit error juris sive facti . . 97
De gratia speciali, certa scienta, et

mero motu ; talis clausula non

valet in his in quibus praesumi-

tur principem esse ignorantem

(1 Rep. 53).
Delegata potestas non potest dele-

gari 839

Delegatus debitor est odiosus in

lege (2 Bulstr. 148).
Delegatus non potest delegare 840, 842
De minimis non curat lex, 142, 143, 145,
146, 165, n.
De non apparentibus, et non exist-

entibus, eadem est ratio . 163, 166
Derivativa potestas non potest esse

major primitiva, (W. 26).

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

(fc) See the Note to Mostyn v. Fabrigas, 1 Smith
L. C, 6th ed., 051 ; Story Confl. Laws, tit. "Con-
racts."

Deus solus hseredem facere potest,

non homo ..... 516
Dies dominicus non est juridicus . 21
Discretio est discernere per legem

quid sit justum . . . 84, n.
Divinatio, non interpretatio est,

quae omnino recedit a litera (Bac.

Max. reg. 3).
Dolo facit qui petit quod redditurus

est 346

Dolo malo pactum se non servatu-

rum 731

Dolosus versatur in generalibus . 289
Dolus circuitu non purgatur . . 228
Dominium non potest esse in pen-

denti (H. 39).
Domus sua cuique est tutissimum

refugium 432

Donari videtur, quod nullo jure

cogente conceditur(D.50. 17. 82).
Dona clandestina sunt semper sus-

piciosa .... 289, 290

Donatio non praesumitur (Jenk.

Cent. 109).
Donatio perficiturpossessione acci-

pientis (Jenk. Cent. 109).
Duo non possunt in solido unam

rem possidere . . . 465, n.

Eadem mens praesumitur regis quae

est juris, et quae esse debet, prae-

sertim in dubiis . . . .54
Ea quae commendandi causa in

venditionibus dicuntur si palam

appareant venditorem non obli-

gant 783

Ea quae raro accidunt, non temere

in agendis negotiis computantur

(D. 50. 17. 64).
Ecclesia ecclesiae decimas solvere

non debet (Cro. El. 479).
Ecclesia meliorari non deteriorari

potest (c).
Ejus est interpretari cujus est con-

dere 148

Ejus nulla culpa est cui parere

necesse sit . . . . 12, n.
Eodem ligamine quo ligatum est

dissolvitur 891

Eodem modo quo quid constituitur,

eodem modo dissolvitur — de-

struitur (6 Rep. 53).
Ex antecedentibus et consequenti-

bus fit optima interpretatio . 577

Exceptio probat regulam (11 Rep.

41) (d).

(c) Arg., A.-G. v. Cholmley, 2 Eden 313.

(d) " Every exception that can be accounted for
is so much a confirmation of the rule, that it has
become a maxim, exceptio probat regulam" per

LIST OF LEGAL MAXIMS.

XXI

Excusat aut extenuat delictum in

capitalibus quod non operatur

idem in civilibus . . . 324

Ex diuturnitate temporis omnia

praesumuntur rite et solenniter

esse acta 942

Ex dolo malo non oritur actio, 297, 729,

730, 739, 744

Executio juris non habet injuriam, 130,

132
Ex facto jus oritur . . . 102

Ex maleficio non oritur contractus 734
Ex multitudine Bignorum colligitur

identitas vera .... 638
Ex nuda submissione non oritur

actio (G. 143).
Ex nudo pacto non oritur actio . 745
Ex pacto illicito non oritur actio . 742
Expedit reipublicas ne sua re quis

male utatur . . . 365, 366

Expressa nocent, non expressa non

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

nihil operatur . . 669, 671, 753
Expressio unius est exclusio alte-

rius, 607, 651, 653, 655, 658, 662, 664,

665, 672

Expressum facit cessare taciturn, 607,

651, 656, 657, 659, 666, 667, 669

Extra territorium jus dicenti im-

pune non paretur . . 100, 101

Ex turpi causa non oritur actio . 730,

732, 739

Factum a judice, quod ad officium
ejus non pertinet ratum non est
(D. 50. 17. 170) ... 93, n.

Falsa demonstratio non nocet, 629, 630,
636, 644

Falsa demonstratione legatum non
perimi 645

Falsa grammatica non vitiat char-
tarn 686, n.

Falsus in uno falsus in omnibus, (a)

Favorabiliores rei potius, quam
actores, habentur . . . 715

Fictio legis inique operatur alicui
damnum vel injuriam . . 129

Fortior est custodia legis quam ho-
minis (2 Rol. Rep. 325).

Fortior et potentior est dispositio
legis quam hominis . . 697, 698

Lord Kenyon, C. J., 3 T. R. 722. See also Id. 38 ;
4 T. R. 793; 1 East 647, n. ; per Lord Campbell, C.
J., 4 E. & B. 832 (82 E. C. L. R.) ; arg., Lyndon v.
Standbridge, 2 H. & N. 48.

(a) This maxim may properly be applied in
those cases only where a witness speaks to a fact
with reference to which he cannot be presumed
liable to mistake; see, per Story, J., The Santis-
siina Trinidad, 7 Wheaton (U. S.) R. 338, 339.

Fractionem diei non recipit lex (L.

572).
Frater fratri uterino non succedet

in haereditate paterna . . 530

Fraus est celare fraudem (1 Vern.

240).
Fraus est odiosa et non praesu-

menda (Cro. Car. 550).
Fraus et dolus nemini patrocinari

debent 297

Frequentia actus multum operatur

(4 Rep. 78) (W. 192).
Frustra fit per plura, quod fieri po-
test per pauciora (Jenk. Cent.

68) (W. 177) (G. 161).
Frustra legis auxilium quaerit qui

in legem committit . 279, 297

Frustra petis quod statim alteri red-

dere cogeris .... 346
Frustra probatur quod probatum

non relevat (H. 50).
Furiosi nulla voluntas est . . 314
Furiosus absentis loco est (D. 50.

17. 124. I 1).
Furiosus solo furore punitur . . 15
Furtum non est ubi initium habet

detentionis per dominum rei (3

Inst. 107).

Generale, nihil certi implicat (W.

164).
Generalia specialibus non derogant

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

telligenda 647

Generalibus specialia derogant (H.

51).
Generalis clausula non pomgitur

ad ea quae antea specialiter sunt

comprehensa (8 Rep. 154).
Generalis regula generaliter est in-

telligenda (6 Rep. 65).

Habemus optimum testem confiten-
tem reum (Fost. Cr. L. 243) (c).

Haeredi magis parcendum est (D.
31. 1. 47).

Haereditas nihil aliud est, quam suc-

(b) Cited E. of Derby v. Bury Impt. Corns., L.
R. 4 Ex. 226; Kidston v. Empire Ins. Co., L. R. 1
C. P. 546 ; arg. Thames Conservators v. Hall, L.
R. 3 C. P. 419

(c) In the various treatises upon the law of evi->
dence will be found remarks as to the weight
which should be attached to the confession of a
party. Respecting the above maxim, Lord Sto-
well has observed, that, "What is taken pro
confesso is taken as indubitable truth. The plea
of guilty by the party accused shuts out all fur-
ther inquiry. Habemus confitentem reum is
demonstration, unless indirect motives can be as-
sig nedto it." Mortimer v. Mortimer, 2 Hagg. 315.

XX11

LIST OF LEGAL MAXIMS.

cessio in iniversum jus, quod

defunctus habuerit (D. 50. 17. 62).
Haereditas nunquam ascendit . 527, 528
Haeres est aut jure proprietatis aut

jure representationis (3 Rep. 40).
Haeres est noraen juris, filius est

nornen naturae (Bac. M. reg. 11).
Haeres legitimus est quern nuptise

demonstrant .... 515

Id certum est quod certum reddi
potest . . . 624, 625, 626

Idem est non esse et non apparere 165

Id, quod nostrum est, sine facto
nostro ad alium transferri non
potest (a) (D. 50. 17. 11).

Id possumus quod de jure possumus
(G. 188).

Ignorantia eorum quae quis scire
tenetur non excusat . . . 267

Ignorantia facti excusat; ignoran-
tia juris non excusat . 253, 254, 263

Ignorantia juris, quod quisque scire
tenetur, neminem excusat . . 253

Imperitia culpae adnumeratur (D.
50. 17. 132).

Impossibilium nulla obligatio est . 249

Impotentia excusat legem . 243, 251

In aequali jure melior est conditio
possidentis ..... 713

In ambigua voce legis ea potius ac-
cipienda est significatio quae vitio
caret, praesertim cum etiam vo-
luntas legis ex hoc colligi possit 576

In ambiguis orationibus maxime
sententia spectanda est ejus, qui
eas protulisset .... 567

In Anglia non est interregnum . 50

In casu extremae necessitatis omnia
sunt communia . . . . 2, n.

Incaute factum pro non facto habe-
tur (D. 28. 4. 1).

Incerta pro nullis habentur (G.
191).

Incivile est, nisi tota sententia in-
specta de aliqua parte judicare
(G. 194).

In consimili casu, consimile debet
esse remedium (G. 195).

In contractis taeite insunt quae sunt
moris et consuetudinis . . 842

In conventionibus contrahentium
voluntas potius quam verba spec-
tari placuit ..... 551

In criminalibus sufficit generalis
malitia intentionis cum facto
paris gradus .... 323

Index animi sermo . . . 622

(a) See this maxim under a somewhat different
form, post, p. 4C5.

In disjunctivis sufficit alteram par-
tem esse veram .... 592

In eo, quod plus sit, semper inest
et minus (D. 50. 17. 110).

In favorem vitae libertatis et inno-
centise omnia praesumuntur (L.
125).

In fictione juris semper aequitas ex-
istit 127, 130

In judicio non creditur nisi juratis
(Cro. Car. 64).

In jure, non remota causa, sed prox-
ima spectatur . 216, 228, 853, n.

Injuria non praesumitur (Co. Litt.
232. b.)

Injuria non excusat injuriam, 270, 387,

395

In majore summa continetur minor
(5 Rep. 115).

In maleficiis voluntas spectatur non
exitus 324

In odium spoliatoris omnia praesu-
muntur ..... 939

In omnibus poenalibus judiciis et
aetati et imprudentiae succurritur 314

In omnibus quidem, maxime tamen
injure, aequitas spectanda sit (D.
50. 17. 90).

In poenalibus causis benignius in-
terpretandum est (D. 50. 17. 155.

In pari causa possessor potior ha-

beri debet 714

In pari delicto potior est conditio

defendentis ..... 290
In pari delicto potior est conditio

possidentis . . 290, 721, 729, 730
In praesentia majoris cessatpotentia

minoris .... Ill, 112
In stipulationibus cum quaeritur

quid actum sit verba contra stip-

ulatorem interpretanda sunt . 599
Intentio caeca mala (2 Bulstr. 179).
Intentio inservire debet legibus

non legis intentioni (Co. Litt.

314 b).
Interest reipublicae ne maleficia re-

maneant impunita (Jenk. Cent.

31) (W. 140).
Interest reipublicae ut sit finis liti-

um . . . . 331, 343, 893, n.

Interest reipublicae suprema homi-

num testamenta rata haberi (Co.

Litt. 236. b).
Interpretare et concordare leges

legibus est optimus interpretandi

modus (8 Rep. 169).
Interpretatio chartarum benigne fa-

cienda est ut res magis valeat

quam pereat . . . 543

LIST OF LEGAL MAXIMS

XX111

in testamentis plenius testatoris

intentionem scrutamur . . 555
In testamentis plenius voluntates

testantium interpretantur . . 568
In toto et pars continetur (D. 50.

17, 113).
Invito beneficium non datur . 699, n.
Ita semper fiat relatio ut valeat dis-

positio (6 Rep. 76).

Judicium a non suo judice datum
nullius est momenti . . .93

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

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

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

Jura eodem modo destituuntur quo
constituuntur .... 878

Jura sanguinis nullo jure civili di-
rimi possunt .... 533

Jure naturae sequum est neminem
cum alterius detrimento et inju-
ria fieri locupletiorem (D. 50, 17,
206).

Jus accrescendi inter mercatores
locum non habet pro beneficio
commercii 455

Jus constitui oportet in his quae ut
plurimum accidunt non quae ex
inopinato 43

Jus ex injuria non oritur . 738, n.

Jus respicit aequitatem . . . 151

Jus superveniens auctori accrescit
successori (H. 76).

Leges posteriores priores contra-

rias abrogant .... 27, 29
Le salut du peuple est la supreme

loi 2, n.

Les lois ne se chargent de punir

que les actions exterieures . 311

Lex aliquando sequitur aequitatem

(3 Wils. 119).
Lex Angliae sineparliamento mutari

non potest (2 Inst. 619).
Lex beneficialis rei consimili reme-

dium praestat (2 Inst. 689).
Lex citiiis tolerare vult privatum

damnum quam publicum malum

(Co. Litt. 152).
Lex neminem cogit ad vana seu

inutilia ..... 252
Lex neminem cogit ostendere quod

nescire praesumitur (L. 569).
Lex nil frustra facit . . .252
Lex non cogit ad impossibilia . 242
Lex non favet votis delicatorum . 379

Lex non requirit verificari quod

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

probatur 159

Lex posterior derogat priori . . 28
Lex rejicit superflua, pugnantia, in-

congrua (Jenk. Cent. 133, 140,

176).
Lex respicit aequitatem (a) • . 151
Lex semper dabit remedium . . 192
Lex semper intendit quod convenit

rationi (Co. Litt. 78 b).
Lex spectat naturae ordinem . . 252
Licet dispositio de interesse futuro

sit inutilis, tamen potest fieri

declaratio praecedens quae sorti-

atur efl'ectum, interveniente novo

actu 498

Licta bene miscentur, formula nisi

juris obstet (Bac. Max. reg. 24)

(b).
Linea recta semper praefertur trans-

versali 529

Locus regit actum, (c)

Majus dignum trahit ad se minus

dignum 176, n.

Mala grammatica non vitiat char-

tam G86

Maledicta expositio quae corrum-

pit textum 622

Malitia supplet aetatem . . .316
Malus usus est abolendus . . 921
Mandata licita strictam recipiunt

interpretationem sed illicita la-

tam et extensam (Bac. Max. reg.

16). (d)
Mandatarius terminos sibi positos

transgredi non potest (Jenk.

Cent. 53).

(a) See (ex.gr.) Neves v. Burrage, 14 Q. B. 504,
511-512 (68 E. C. L. R.).

(b) "The law," says Lord Bacon, "giveth that
favor to lawful acts, that, although thoy be exe-
cuted by several authorities, yet the whole act is
good;" if, therefore, tenant for life and remain-
derman join in granting a rent, " this is one
solid rent out of both their estates, and no double
rent, or rent by confirmation :" Bac. Max. reg.
24; and if tenant for life and reversioner join in
a lease for life reserving rent, this shall enure to
the tenant lor life only during his life, and after-
wards to the reversioner: See 1 Crabb Real Prop.
179.

(c) Cited arg. Hodgson v. Beauchesne, 12 Moo.
P. C. C. 308 ; Lloyd v. Guibert, L. R. 1 Q. B. 115.

(d) A principal is civilly liable for those acts
only which are strictly within the scope of the
agent's authority, post, p. 843. But if a man in-
cite another to do an unlawful act, he shall not,
in the language of Lord Bacon, "excuse himself
by circumstances not pursued ;" as if he com-
mand his servant to rob I. D, on Shooter's Hill,
and he doth it on Gad's Hill; or to kill him by
poison, and he doth it by violence : Bac. Max. Reg.
16, cited Parkes v. Prescott, L. B. 4 Ex. 16lJ, 1£2

XXIV

LIST OF LEGAL MAXIMS,

Matrimonia debent esse libera (H.

86).
Meliorem conditioner*) suam facere

potest minor, deteriorem nequa-

qnam (Co. Litt. 337 b.)
Melior est conditio defendentis 715, 719
Melior est conditio possidentis et

rei quam actoris (4 Inst. 180)

714, 719
Misera est servitns, ubi jus est va-

gum aut incertum . . . 150
Mobilia sequuntur personam . . 522
Modus de non decimando non valet

(L. 427).
Modus et conventio vincunt legem,

689, 691, 692, 694, 695
Modus legem dat donationi . . 459
Multa conceduntur per obliquum

quae non conceduntur de directo

(6 Rep. 47).
Multa in jure communi, contra ra-

tionem disputandi, pro communi

utilitate introducta sunt . . 158

Naturale est quidlibet dissolvi eo
modo quo ligatur . . . 877

Necessitas inducit privilegium . 17

Necessitas inducit privilegium
quoad jura privata . . .11

Necessitas publica major est quam
privata 18

Necessitas quod cogit, defendit . 14

Nemo agit in seipsum . . 216, n.

Nemo contra factum suum venire
potest (2 Inst. 66).

Nemo dat qui non habet . . 499, n.

Nemo dat quod non habet . . 470

Nemo debet bis puniri pro uno de-
licto 348

Nemo debet bis vexari, si constat
curiae quod sit pro una et eadem
causa 327, 348

Nemo debet esse judex in propria
causa ...... 116

Nemo debet locupletari aliena
jactura. (a)

emo debet locupletari ex alterius
incommodo (Jenk Cent. 4).

Nemo de domo sua extrahi potest 432, n.

Nemo ejusdem tenementi simul po-
test esse haeres et dominus (1
Reeves Hist. Eng. L. 106).

Nemo enim aliquam partem recte
intelligere possit antequam to-
tum iterum atque iterum perle-
gerit 593

Nemo est lucres viventis . 522, 523 I

Nemo ex alterius facto praegravari

(a) Cited per Bovill, C. J., Fletcher v. Alexan-
der, L. R. 3 C. 1'. 361.

debet ( See 1 Poth., by Evans,

133).
Nemo ex proprio dolo consequitur

actionem ..... 297
Nemo ex suo delicto mQliorem

suam conditionem facere potest

(D. 50. 17. 134. \ 1).
Nemo patriam in qua natus est

exuere nee ligeantiae debitum

ejurare possit . . . .75
Nemo plus juris ad alium trans-

ferre potest quam ipse haberet

467, 469
Nemo potest contra recordum veri-

ficare per patriam (2 Inst. 380).
Nemo potest esse simul actor et

judex 117

Nemo potest esse tenens et dominus

(Gilb. Ten. 142).
Nemo potest mutare consilium

suum in alterius injuriam . . 34
Nemo praesumitur alienam posteri-

tatem suae praetulisse (W. 285).
Nemo punitur pro alieno delicto

(W. 336).
Nemo sibi esse judex vel suis jus

dicere debet . . . 116, 121
Nemo tenetur ad impossibilia . 244

Nemo tenetur divinare (4 Rep. 28).
Nemo tenetur prodere seipsum . 968
Nemo tenetur seipsum accusare 968, 970
Nihil aliud potest rex quam quod

de jure potest (11 Rep. 74).
Nihil consensui tarn contrarium est

quam vis atque metus (D. 50. 17.

116).
Nihil in lege intolerabilius est

eandem rem diverso jure censeri

(4 Rep. 93 a).
Nihil perfectum est dum aliquid

restat agendum (9 Rep. 9 b).
Nihil praescribitur nisi quod possi-

detur (5 B. & Aid. 277, (7 E. C.

L. R.)).
Nihil quod est inconveniens est

licitum .... 186, 366

Nihil simul inventum estet perfec-
tum (b) (Co. Litt. 230).
Nihil tam conveniens est naturali

aequitati quam unumquodque

dissolvi eo ligamine quo ligatum

est 877

Nihil tam naturale est, quam eo

genere quidque dissolvere, quo

colligatum est ; ideo verborum

obligatio verbis tollitur, nudi

consensus obligatio contrario

consensu dissolvitur . . . 887

(6) Applied to a patent, arg., Re Newall
Elliott, 4 C. B. N. S. 290 (93 E. C. L. R.).

LIST OF LEGAL MAXIMS

XXV

Nil consensui tam contrarium est
quam vis atque metus . 278, n.

Nil facit error nominis cum de
corpore vel persona constat . 634

Nil tam conveniens est naturali
aequitati quam voluntatem domi-
ni volentis rem suam in alium
transferre ratum haberi (I. 2.
1. 40).

Nimia subtilitas in jure reprobatur,
et talis certitudo certitudinem
confundit 187

Non accipi debent verba in demon-
strationem falsam quae compe-
tunt in limitationem veram . 642

Non aliter a significatione verbo-
rum recedi oportet quam cum
manifestum est aliud sensisse
testatorem 568

Non dat qui non habet . . . 467

Non debeo melioris conditionis
esse, quam auctor meus, a quo
jus in me transit (D. 50. 17.
175.2 1).

Non debet adduci exceptio ejus
rei cujus petitur dissolutio . 166

Non debet alteri per alterum iniqua
conditio inferri (D. 50. 17. 74).

Non debet cui plus licet, quod
minus est non licere . . . 176

Non decipitur qui scit se decipi (5
Rep. 6).

Non dubitatur, etsi specialiter ven-
ditor evictionem non, promiserit
re evicta, ex empto competere
actionem .*. . . . 768

Non est novum ut priores leges ad
posteriores trahantur . . 28

Non ex opinionibus singulorum sed
ex communi usu nomina exaudi-
ri debent (D. 33. 10. 7. § 2).

Non impedit clausula derogatoria
quo minus ab eadem potestate
res dissolvantur a qua consti-
. tuuntur . . . . .27

Non in tabulis est jus (10 East 60).

Non jus sed seisina facit stipitem

525, 527

Non omnium quae a majoribus nos-
tris constituta sunt ratio reddi
potest. ..... 157

Non possessori incumbit necessi-
tas probandi possessiones ad se
pertinere ..... 714

Non potest adduci exceptio ejus-
dem rei cujus petitur dissolutio . 166

Non potest probari quod probatum
non relevat (a).

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

Non potest rex gratiam facere cum

injuria et damno aliorum . . 63
Non potest videri desisse habere,

qui nunquam habuit (D. 50. 17.

208).
Non quod dictum est, sed quod

factum est, inspicitur (Co. Litt.

36. n.) (b).
Non solent quae abundant, vitiare

scripturas . . . 627, n.

Non videntur qui errant consentire 262
Non videtur consensum retinuisse

si quis ex preaescripto minantis

aliquid immutavit . . . 278
Non videtur quisquam id capere,

quod ei necesse est alii restitu-

ere (D. 50. 17. 51).
Noscitur a sociis . 588, 589, 592
Nova constitutio, futuris formam

imponere debet, non praeteritis

34, 37
Novatio non praesumitur (H. 109).
Novum judicium non dat novum

jus sed declarat antiquum (10

Rep. 42).
Nuda pactio obligationem non parit 746
Nudum pactum est ubi nulla sub-

est causa praeter conventionem

745, 750
Nul prendra advantage de son tort

demesne 290

Nulla pactione effici potest ut dolus

praestetur 696

Nullum simile est idem (G. 467) (c).
Nullum tempus occurrit regi . . 65
Nullus commodum capere potest

de injuria sua propria . . 279

Nullus videtur dolo facere qui suo

jure utitur ..... 130
Nunquam crescit ex post facto prae-

teriti delicti aestimatio . . 42
Nuptias non concubitus sed con-
sensus facit . . . 506 n.

Omne crimen ebrietas et incendit
et detegit 17

Omne jus aut consensus fecit, aut
necessitas constituit, aut firma-
vit consuetudo . . . 690, n.

Omne magus continet in se minus 174

Omne quod solo inaedificatur solo
cedit 401

Omne testamentum morte consum-
matum est 503

(6) Cited White v. Trustees of British Museum,
6 Bing. 319 (19 E. C. L. R.) ; Ilott v. Genge, 3
Curt, 175.

(c) Cited 2 Bla. Com., 21st ed., 162; Co. Litt. 3
a ; Arg., 1 M. & S. 172 ; per Buller, J., 3 T. R.
664. See, per Knight-Bruce, L. J., Boyse v. Ross-
borough, 3 Be G., M. & G. 846.

XXVI

LIST OP LEGAL MAXIMS.

Omnes licentiam habere his, quae

pro se indulta sunt, renunciare 699
Omnia praesumuntur contra spolia-

torem 938

Omnia pritsumuntur legitime facta

donee probetur in contrarium . 948
Omnia praesumuntur rite et solen-

niter esse acta donee probetur in

contrarium .... 944

Omnia prassumuntur rite et solen-

niter esse acta 165, 942, 949, 950, 951
Omnia qua? jure contrahuntur, con-

trario jure pereunt (D. 50. 17.

100).
Omnia quae sunt uxoris sunt ipsius

viri (Co. Litt. 112 a).
Omnia rite acta prsesumuntur 944, n.
Omnis innovatio plus novitate per-

turbat quam utilitate prodest . 147
Omnis ratihabitio retrotrahitur et

mandato priori aequiparatur, 757, 867,
871, 873
Omnium contributione sarciatur

quod pro omnibus datum est (4

Bing. 121 (13 E. C. L. R.)).
Optima est legis interpres consue-

tudo 931

Optima est lex qua? minimum re-

linquit arbitrio judicis, optimus

judex qui minimum sibi . . 84
Optimus interpres rerum usus, 917, 930,

931
Optimus legis interpres consuetudo 685
Ordine placitandi servato servatur

etjus 188

Origine propria neminem posse

voluntate sua eximi manifestum

est 77

Pacta conventa quae neque contra
leges neque dolo malo inita sunt
omnimodo observanda sunt 698, 732

Pacta dant legem contractui (H.
118.)

Pacta quae contra leges constitu-
tionesque vel contra bonos mores
fiunt, nullam vim habere, indu-
bitati juris est . . . . 695

Pacta quae turpem causam conti-
nent non sunt observanda . . 732

Pactis privatorum juri publico non
derogatur ..... 695

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

Partus sequitur ventrem . 516, n.

Pater est quem nuptiaa demonstrant 516

Perpetua lex est nullam legem hu-
manam ac positivam perpetuam
esse, et clausula quae abrogatio-
nem excludit ab initio non valet 27

Persona conjuncta aequiparatur in-

teresse proprio . . . 533, 537
Possessio fratris de feodo simplici

facit sororem esse haeredem . 532
Potestas suprema seipsam dissol-

vere potest, ligare non potest

(Bac. Max. reg. 19).
Potior est conditio defendentis . 740
Potior est conditio possidentis 215, n.

719
Praesentia corporis tollit errorem

nominis ; et Veritas nominis tollit

errorem demonstrationis, 637, 639,

640
Praesumptio violenta valet in lege

(Jenk. Cent. 56).
Prior tempore, potior jure . 354, 358
Privatis pactionibus non dubium

est non laedi jus caeterorum . 697

Privatorum conventio juri publico

non derogat .... 695
Privatum incommodum publico

bono pensatur .... 7
Privilegium contra rempublicam

non valet 18

Probandi necessitas incumbit illi

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

subjectio protectionem . . 78

Quando abest provisio partis, adest
provisio legis (cited 13 C. B. 960
(76 E. C. L. R.)).

Quando aliquid mandatur, manda-
tur et omne per quod parvenitur
ad illud 485

Quando aliquid prohibetur, pro-
hibetur et omne per quod deveni-
tur ad illud .... 489

Quando duo jura in una persona
concurrunt aequum est ac si es-
sent in diversis . . .531

Quando jus domini regis et subditi
concurrunt, jus regis praeferri
debet 69

Quando lex aliquid alicui concedit,
conceditur et id sine quo res ipsa
esse non potest . . . 486, 487

Quando lex est specialis ratio autem
generalis generaliter lex est in-
telligenda (2 Inst. 83).

Quando plus fit quam fieri debet,
videtur etiam illud fieri quod
faciendum est . . . . 177

Quando res non valet ut ago, valeat
quantum valere potest . . 543

Quae ab initio inutilis fuit institu-
tio, ex post facto convalescere
non potest (D. 50. 17. 210).

Quae accessionum locum obtinent

LIST of legal maxims.

xxvn

extinguuntur cum principales res
peremptae fuerint . . . 496

Quae dubitationis tollendae causa
coutractibus inseruntur, jus com-
mune non laedunt (D. 50. 17.
81).

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

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

Qure legi communi derogant stricte
interpretantur (Jenk. Cent. 29).

Quaelibet concessio fortissime con-
tra donatorum interpretanda est
(Co. Litt. 183 a).

Quae non valeant singula juncta
juvant ..... 588

Qui alterius jure utitur eodem jure
uti debet 473

Quicquid demonstrate rei additur
satis demonstrate frustra est . 630

Quicquid plantatur solo solo cedit, 401,
403, 417, 425, 431

Quicquid solvitur, solvitur secun-
dum modum solventis ; quicquid
recipitur, recipitur secundum
modum recipientis . . . 810

Qui cum alio contrahit, vel est, vel
debet esse non ignarus condi-
tions ejus (D. 50. 17. 19).

Qui doit inheriter al pere doit in-
heriter al fitz . . . .517

Qui ex damnato coitu nascuntur
inter liberos non computentur . 519

Qui facit per alium facit per se, . 818,
819, 820, 826, 827, 831, 839, 844, 846,
851, 853, 856, 865

Qui haeret in litera haeret in cortice 685

Qui in jus dominiumve alterius suc-
cedit jure ejus uti debet . 473, 478

Qui jure suo utitur neminem laedit 379

Qui jussu judicis aliquod fecerit
non videtur dolo malo fecisse,
quia parere necesse est . . 93

Quilibet potest renunciare juri pro
se introducto . . . 699, 705

Qui non habet in aere luat in cor-
pore (2 Inst. 172).

Qui non prohibet quod prohibere
potest assentire videtur (2 Inst.
305) (a).

Qui peccat ebrius luat sobrius . 17

Qui per alium facit per seipsum fa-
cere vidatur . . . .817

Qui prior est tempore, potior est
jure . 353, 355, 357, n., 359, 362

(a) Cited per Parke, B., Morgan v. Thomas, 8
Exch. 304.

Qui rationem in omnibus quaerunt
rationem subvertunt . . . 157

Qui sentit commodum sentire debet
et onus . 706, 707, 710, 712, 713

Qui sentit onus sentire debet et
commodum . . 712, 713, n.

Qui tacet consentire videtur . 138, 787

Qui vult decipi decipiatur . 782, n.

Quod a quoquo poenae nomine ex-
actum est id eidem restituere ne-
mo cogitur (D. 50. 17. 46).

Quod ab initio non valet in tractu
temporis non convalescit . . 178

Quod aedificatur in area legata cedit
legato 424

Quod approbo non reprobo . .712

Quod contra legem fit pro infecto
habetur (G. 405).

Quod contra rationem juris recep-
tum est, non est producendum
ad consequentias (D. 50. 17.
141) (6).

Quod dubitas ne feceris

326, n.

Quod fieri debet facile praesumitur

(H. 153).
Quod fieri non debet factum valet, 182,
183, 297
Quod initio vitiosum est non potest

tractu temporis convalescere (D.

50. 17. 29) 178

Quod meum est sine facto meo vel

defectu meo amitti vel in alium

transferri non potest . . . 465
Quod non apparet non est . . 164
Quod non habet principium non

habet finem .... 180

Quod nullius est, est domini regis . 354
Quod nullius est id ratione natu-

rali occupanti conceditur . . 353
Quod remedio destituitur ipsa re

valet si culpa absit . . .212
Quod semel aut bis existit praete-

reunt legislatores . . .46
Quod semel meum est amplius

meum esse non potest . 465, n.

Quod semel placuit in electionibus

amplius displicere non potest . 295
Quod sub certa forma concessum

vel reservatum est non trahitur

ad valorem vel compensationem 464
Quod subintelligitur non deest (2

Ld. Raym. 832).
Quod verd contra rationem juris

receptum est, non est procducen-

dum ad consequentias . . 158
Quodquae dissolvitur eodem liga-

mine quo ligatur . . . 881

Quotiens dubia interpretatio liber-

(6) See Louisville, E. C. v. Litson, 2 Howard
(U. S.) R. 523.

XXV111

LIST OF LEGAL MAXIMS.

tatis est, secundum libertatem
respondendum est (D. 50. 17. 20).

Quotiens idem sermo duas senten-
tias exprimit: ea potissimum
excipiatur, quae rei generandae
aptior est (D. 50. 17. 67).

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

Quoties in verbis nulla est ambig-
uitas, ibi nulla expositio contra
verba fienda est .... 619

Quum principalis causa non con-
sistit ne ea quidem qua? sequun-
tur locum habent . . . 496

Ratihabitio mandato comparatur . 867
Receditur a placitis juris potius

quam injuria? et delicta maneant

impunita . . . . .10
Regula est, juris quidem ignoran-

tiam cuique nocere, facti vero

ignorantiam non nocere . . 253
Remoto impedimento emergit actio

(W. 20).
Res accessoria sequitur rem princi-

palem ..... 491

Res inter alios acta alteri nocere

non debet .... 954, 967
Res ipsa loquitur (a).
Res judicata pro veritate accipitur, 328,
% 333, 945

Resoluto jure concedentis resol-

vitur jus concessum . . . 467
Res perit suo domino . . . 238
Respondeat superior, 7, 62, 268, 369, n.,
843, 844, 848, 856, 864, 865
Res sua nemini servit (b).
Rex non debet esse sub homine sed

sub Deo et lege . . . 47,117
Rex non potest fallere nee falli (G.

438).
Rex non potest peccare . . .52
Rex nunquam moritur . . .50
Roy n'est lie per ascun statute, si

il ne soit expressement nosme . 72

Salus populi supremalex, 1, 10, 187, n.
Salus reipublicae suprema lex . 366

Scientia utrinque par pares contra-
hentes facit . . 772, 792, n.

(a) See Briggs v. Oliver, 4 H. & C. 403; Long-
more v. Great Western R. C, 19 C. B. N. S. 185
(115 E. C. L. R.) ; Shepherd v. Bristol and Exeter
R. C, L. R. 3 Ex. 189, 192 ; Scott v. London & St.
Katherine's Dock Co., 3 H. & C. 596; Downes v.
Ship, L. R. 3 H. L. 354.

(6) Cited per Lord Wensleydale, Baird v. For-
tune, 4 Macq. Sc. App. Cas. 151.

PAGE

Scribere est agere . . . 312,967
Secundum naturam est, commoda

cuj usque rei eum sequi, quern

sequuntur incommoda (D. 50. 17.

10).
Seisina facit stipitem . . 525, 528
Semper in dubiis benigniora prsefe-

renda (c).
Semper in obscuris, quod minimum

est sequimur . . . 687, n.
Semper praesumitur pro negante

(d).
Semper specialia generalibus in-

sunt (D. 50. 17. 147).
Sententia contra matrimonium

nunquam transit in rem judi-

catam (7 Rep. 43).
Sententia interlocutoria revocari

potest definitiva non potest (Bac.

Max. reg. 20).
Sic utere tuo ut alienum non laedas, 268,
365, 366, 371, 378, 383, 400, 862
Simplex commendatio non obligat 781
Si quidem in nomine, cognomine,

praanomine legatarii testator er-

raverit, cum de persona constat,

nihilominus valet legatum . 645

Si quid universitati debetur sin-
gulis non debetur nee quod debet

universitas singuli decent (D. 3.

4. 7. 1.) (e).
Sive tota res evincatur, sive pars,

habet regressum emptor in ven-

ditorem 768

Socii mei socius, meus socius non

est (D. 50. 17. 47).
Solutio pretii emptionis loco habe-

tur (Jenk. Cent. 56).
Specialia generalibus derogant (/).
Spoliatus debet ante omnia restitui

(2 Inst. 714) (<?).
Stabit praesumptio donee probetur

in contrarium .... 949
Statutum amrmativum non derogat

communi legi (Jenk. Cent. 24).
Sublato principali tollitur adjunct-

um ..... 180, n.

Summa ratio est quae pro religione

facit "19

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

(d) See Reg. v. Millis, 10 CI. & Fin. 534 (cited
post), where this maxim was applied ; A.-G. v.
Dean, &c, of Windsor, 8 H. L. Cas. 392 : Baker v.
Lee, Id. 512; Beamish v. Beamish, 9 H. L. Cas.
274, 338; per Lord Campbell, C. J., Dansey v.
Richardson, 3 E. & B. 723.

(e) See 1 Bla. Com. 21st ed., 484.

(/) See Kidston v. Empire Ins. Co., L. R. 1 C.
P. 546 ; Earl of Kintore v. Lord Inverury, 4 Macq.
Sc. App. Cas. 522.

(g) See 4 Bla. Com., 21st ed., 363 ; Horwood v.
Smith, 2 T. R. 753.

LIST OF LEGAL MAXIMS.

XXIX

Summum jus, summa injuria (Hob.

125) (G. 464).
Surplusagium non nocet . . 627

Talis interpretatio semper fienda

est, ut evitetur absurdum et in-

conveniens, et ne judicium sit

illusorium (1 Rep. 52).

Tenor est qui legem dat feudo . 459

Traditio loqui facit chartam (5 Rep.

1) (a).
Transit terra cum onere . . 495, 706
Tutius semper est errare in acquie-
tando quam in puniendo, ex parte
misericordiae, quam ex parte jus-
titiae 326

Ubi aliquid conceditur, conceditur
et id sine quo res ipsa esse non
potest. . . • • 4 • 483

Ubicessat remedium ordinarium ibi
decurritur ad extraordinarium et
nunquam decurritur ad extraor-
dinarium ubi valet ordinarium
(G. 491).

Ubi damna dantur, victus victori
in expensis condemnari debet (2
Inst. 289) (b).

Ubi eadem ratio ibi idem jus 103, n, 153,

155

Ubi jus ibi remedium, . 191,192,204

Ubi nullum matrimonium ibi nulla
dos (Co. Litt. 32).

Ubi verba conjunctanon sunt suffi-
cit alterutrum esse factum (D.
50. IT. 110. I 3).

Ultima voluntas testatoris est per-
implenda secundum veram inten-
tionem suam .... 566

(a) See as to this maxim, Goddard's Case, 2
Rep. 4 ; per Bayley, J., Styles v. W'ardle, 4 B. & C.
911 (10 E. C. L. B,.) ; per Patteson, J., Browne v.
Burton, 17 L. J. Q. B. 50; citing Clayton's Case,
5 Rep. 1, and recognising Steele v. Mart, 4 B. &
C. 272, 279; Tupper v. Eoulkes, 6 C. B. N. S. 797
(99 E. C. L. R). See, also, Shaw v. Kay, 1 Exch.
412 ; per Jervis, C. J., Davis v. Jones, 17 C. B. 634
(84 E. C. L. R.) ; Cumberlege v. Lawson, 1 C. B. N.
S. 709, 720 (87 E. C. L. R.) ; Xenos v. Wickham, 14
C. B. N. S. 435 (108 E. C. L. R.) ; S. c, 13 Id. 385,
L. R. 2 H. L. 296; Kidner v. Keith, 15 C. B. N. S.
35 (109 E. C. L. R.).

(6) 3 Bla. Com., 21st ed., 399; cited per Tindal,
C. J., 1 Bing. N. C. 522 (27 E. C. L. R.). This
maxim is taken from the Roman law, see C. 3. 1.
13. § 6.

Unumquodque dissolvitur eodem

ligamine quo ligatur . . . 884
Unumquodque eodem modo quo

colligatum est dissolvitur . . 891
Dsucapio constituta est ut aliquis

litium finis esset . . . 894 n.
Utile per inutile non vitiatur . 627, 628
Uxor non est sui juris sed sub

potestate viri (3 Inst. 108).

Vani timores sunt aestimandi qui

non cadunt in constantem virem

(7 Rep. 27).
Verba accipienda sunt secundum

subjectam materiem (6 Rep. 62).
Verba chartarum fortius accipiun-
tur contra proferentem . . 594
Verba cum etfectu accipienda sunt

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

habilitatem rei vel personam . 646
Verba illata inesse videntur . 674, 677
Verba ita sunt intelligenda ut res

magis valeat quam pereat (Bac.

Max. reg. 3).
Verba posteriora propter certitudi-

nem addita ad priora quae certi-

tudine indigent suns referenda . 586
Verba relata hoc maxime operantur

per referentiam ut in eis inesse

videntur 673

Veritas nominis tollit errorem de-

monstrationis . . . 637, 641
Via trita via tuta .... 134
Vicarius non habet vicarium . . 839
Vigilantibus et non dormientibus

jura subveniunt . . 65, 772, 892
Volenti non fit injuria . 268, 269, n., 271,

395
Voluntas donatoris, in charta doni

sui manifeste expressa, observe-

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

scriptum valeat (D. 30. 1. 12. § 3).
Voluntas reputatur pro facto . . 311
Voluntas testatoris est ambulatoria

usque ad extremum vitae exitum

(4 Rep. 61 b).
Vox emissa volat — litera scripta

manet 666

TABLE OF CASES.

The pages referred to are those enclosed between brackets [ ].

Abbott v. Middleton, 582

Ablert v. Pritchard, 28

Abley v. Dale, 95, 114, 573

Abraham v. Reynolds, 859

Abrey v. Crux, 885

Absor v. French, 2

Acey v. Fernie, 823

Ackerlej v. Parkinson, 88

Ackroyd t>. Smith, 460

Acteon (The), 390

Acton v. Blundell, 198, 355, 371, 377

Adam v. Bristol (Inhabits, of), 912

A-dams v. Andrews, 887

v. Broughton, 338

v. Lancashire and Yorkshire R.
C, 268, 385

v. Lloyd, 968

v. Macfie, 385

v. Royal Mail Steam Packet Co.,
247

v. Steer, 544

v. Wordley, 885
Adamson v. Jarvis, 786, 801
Addison v. Gandasequi, 822
Affleck v. Child, 320
Aga Kurboolie Mahomed v. The Queen,

439
Agacio v. Forbes, 822
Agar v. Athenseum Life Ass. Soc, 651
Agra (The), 390
Agricultural Cattle Insurance Co. v.

Fitzgerald, 154
Aiken v. Short, 81, 259, 799
Ainsworth v. Creeke, 873
Aislabie v. Rice, 237
Aitkenhead v. Blades, 302
Albert v. Grosvenor Investment Co.,

879
Albon v. Pike, 664
Albrecht v. Sussman, 77
Alcinous v. Nigren, 187
Alcock v. Cooke, 56, 64
Alder v. Boyle, 598
Alderman v. Neate, 546
Alderson v. Davenport, 837

Aldis v. Mason, 627

Aldous v. Cornwell, 154

Aldred's Case, 379

Aldred v. Constable, 360

Aldridge v. Great Western R. C, 367

v. Johnson, 286
Alexander v. Alexander, 554

v. North-Eastern R. C, 106
v. Sizer, 594
Algernon Sidney's Case, 312
Allan, app., Waterhouse, resp., 840

v. Lake, 781
Allaway v. Wagstaff, 196, 395
Allen, app., House, resp., 627
v. Dundas, 329, 957
v. Edmundson, 702
v. Hayward, 863
v. Hopkins, 187, 802
v. M'Pherson, 342
v. Maddock, 676
v. Pink, 885
v. Rescous, 732
v. Worthy, 350
Alleyne v. Reg., 131
Alliance Bank v. Holford, 343, 346
Allsop v, Allsop, 206
Allum v. Boultbee, 142
Allwood v. Heywood, 492
Alner v. George, 82
Alsager v. Close, 103
Alston v. Grant, 379

t;. Herring, 225, 344, 387, 395
v. Scales, 7
Altham's Case, 103, 614
Alton Woods (The Case of), 55, 64

v. Midland R. C, 755, 786
Amalia (The), 653
Amann v. Damm, 319
Ambergate, Nottingham, and Boston R.

C. v. Midland R. C, 301
Ambrose v. Kerrison, 535, 753
Ames v. Waterlow, 279
Amicable Ass. Soc. v. Bolland, 315
Amies v. Stevens, 238
Amos v. Smith, 741
Ancona v. Marks, 871
Anderson v. Fitzgerald, 789

xxxn

TABLE OF CASES.

Anderson v. Lanerwille, 522

v. Radcliff, 359, 734
v. Thornton, 792
Andree v. Fletcher, 720
Andrew v. Hancock, 272

v. Motley, 503
Andrews v. Elliott, 136, 169
v. Laurence, 154
v. Marris, 88, 95
Annesley v. Anglesea (Earl of), 940
Anon., 4 A. & E. 575; 349
Cro. Eliz. 61 ; 411
1 Lev. 68 ; 132
6 Mod. 105; 438

1 Salk. 396; 117

2 Salk. 519; 137
v. Pigott, 275

Anstee v. Nelms, 638
Anthony v. Haney, 304
Appleby v. Myers, 235, 238
Apps v. Day, 142
Archer v. James, 571
Arden v. Goodacre, 201, 297
Arding v. Holmer, 73
Arkwright v. Gell, 381
Arlington v. Merrick, 647
Armory v. Delamirie, 355, 807, 939
Armistead v. Wilde, 709
Armitage v. Haley, 108
Armstrong v. Armstrong, 738
v. Normandy, 954
Arnold v. Ridge, 575
Ash v. Abdy, 570

Ashby v. White, 143, 153, 192, 194, 200
Asher v. Willock, 714
Ashford v. Thornton, 351, 878
Ashley v. Harrison, 208
Ashlin v. White, 790
Ashmead v. Ranger, 481
Ashmole v. Wainwright, 80, 273
Ashpital v. Bryan, 173
Ashton v. Poynter, 30

v. Sherman, 823
Ashworth, app., Heyworth, resp., 491

v. Mounsey, 594
Aspdin v. Austin, 547, 653
Assop v. Yates, 206, 368, 853
Astley v. Reynolds, 174, 274
Aston v. Heaven, 238
Atkins v. Banwell, 758
v. Hill, 760
v. Kilby, 98
Atkinson v. Denby, 257, 273, 719, 725

v. Fell, 664

v. Pocock, 797, 835

v. Ritchie, 247

v. Stephens, 764
Atkyns v. Kinnier, 308
Att.-Gen. v. Ansted, 281

v. Bovet, 489

v. Bradbury, 571

Att.-Gen. v. Brazen Nose Coll., 930

v. Briant, 2

v. Bristol Waterworks Co., 38

v. Chelsea Waterworks Co.,
33, 585

v. Clerc, 627

v. Donaldson, 72

v. Drummond, 930

v. Exeter (Mayor of), 263

v. Forster, 682

v. Hallett, 574

v. Hertford (Marquis of), 38.

v. Hollingsworth, 725, 727

v. Jackson, 44

v. Kent, 127

v. Kohler, 58

v. Lockwood, 4, 31, 307, 576

v. Marlborough (Duke of),
185

v. Mathias, 918, 920

v. Middleton (Lord), 4

v. Norwich (The Mayor of),
603

v. Parker, 682, 930

v. Physicians (the Coll. of),
268

v. Radloff, 74, 969

v. Rogers, 110

v. Shillibeer, 680

v. Siddon, 848

v. Sillem, 37, 110, 307, 571,
664, 683

v. Trueman, 71

v. Walker, 83

v. Walmsley, 71

v. Windsor (Dean, &c, of),
333
Attack v. Bramwell, 302, 435
Atterbury v. Jarvie, 344
Attwood v. Small, 653, 735, 772, 784, 789
Aubert v. Bray, 225
Auchterarder (Presbytery of) v. Kin-

noul (Lord), 289
Audley's (Lord) Case, 536
Aulton v. Atkins, 216
Austin v. Chambers, 403

v. Great Western R. C, 391
v. Holmes, 149
Australasia (Bank of) v. Nias, 342
Avery v. Bowden, 245, 250, 284, 285,
944
v. Cheslyn, 421
Aveson v. Kinnaird (Lord), 966
Awde v. Dixon. 469
Ayrton v. Abbott, 89
Azemar v. Casella, 662, 779

B.

Babcock v. Montgomery County Mutual
Insurance Co., 216

TABLE OF CASES.

XXXlll

Backhouse v. Bonomi, 196, 371, 901

Bacon v. Smith, 914

Bagg's Case, 113

Bagge v. Mawby, 350

Baggett v. Meux, 454

Bagnall v. London and North Western

R. C, 366, 369
Bagot (Lord) v. Williams, 330
Bagshaw v. Goward, 362
Bagueley v. Hawley, 799
Baildon v. Walton, 812
Bailey v. Bidwell, 754

v. De Crespigny, 234, 246, 466

v. Edwards, 704

v. Harris, 741

v. Porter, 702

v. Stephens, 460, 922
Bain v. Whitehaven and Furness Junc-
tion R. C, 522
Bainbridge v. Lax, 890

v. Wade, 621
Bainesv. Ewing, 829, 920

v. Holland, 646

v. Swainson, 804
Baird v. Fortune, 904

v. Williamson, 198, 372
Baker v. Baker, 582

v. Cartwright, 250

v. Cave, 952

v. Gray, 499, 500

v. Jubber, 155

v. Tucker, 541
Balfe v. West, 746
Balfour v. Official Manager of the Sea,

Fire and Life Ass. Co., 475
Balmain v. Shore, 456
Bamberger v Commercial Credit Mu-
tual Ass. Soc, 154
Bamford v. Lord, 563

v. Turnley, 379
Bandon (Earl of) v. Beecher, 329, 342
Bandy v. Cartwright, 775, 799
Bane v. Methven, 486
Bank of British North America v. Cu-

villier, 646
Bank of England v. Anderson, 683
Bankart v. Bowers, 767
Banks v. Newton, 294
Bannerman v. White, 788
Banwen Iron Company v. Barnett, 182
Barber v. Brown, 258

v. Butcher, 626

v. Lamb, 342

v. Lesiter, 206

v. Pott, 273, 822
Baring v. Christie, 681

v. Corrie, 803
Barker v. Allan, 673

v. Highley, 836

v. Midland R. C, 202

v. St. Quintin, 878

Barker v. Stead, 831

v. Windle, 788
Barkworth v. Ellerman, 755
Barley v. Walford, 796
Barlow v. Brown, 209
Barnardiston v. Soame, 168, 209
Barnes v. Braithwaite, 81
v. Keane, 952
v. Lucas, 940
v. Vincent, 655
v. Ward, 270, 387
Barnett v. Guilford (Earl of), 128

v. Lambert, 831
Barr v. Gibson, 499, 779
Barrett v. Bedford (Duke of), 594, 691
v. Long, 322

v. Stockton and Darlington R.
C, 604
Barrick v. Buba, 77, 285
Barrington's Case, 9
Barrs v. Jackson, 341
Barry v. Arnaud, 90

v. Robinson, 908
Bartholomew v. Bushnell, 783, 801
v. Jackson, 746
v. Markwick, 284
Bartlett v. Baker, 378, 862
v. Crozier, 195
v. Holmes, 344
v. Kirwood, 114
v. Lewis, 969
v. Ramsden, 127
v. Rendle, 177
v. Smith, 109
v. Viner, 741
v. Wells, 317, 696
Barton v. Dawes, 630, 674
v. Fitzgerald, 577
Bartonshill Coal Co. v. M'Guire, 855,
857, 860
v. Reid, 855
Barwick v. English Joint Stock Bank,

794, 847, 856
Basebe v. Matthews, 105
Baskerville's Case, 67
Bastable v. Poole, 822
Basten v. Carow, 89
Bastifell v. Lloyd, 594
Batard v. Hawes, 758
Bate v. Lawrence, 258
Bateman v. Bailey, 966
Baten's Case, 396
Bates v. Hewett, 792
Bath's (Earl of) Case, 620
Battishill v. Reed, 397
Batty v. Marriott, 720
Baxendale v. Great Western R. C, 81,

604
Baxter, app., Newman, resp., 456
v. Burfield, 905
v. Faulam, 146

XXXIV

TABLE OF CASES.

Bayley v. Merrel, 782

v. Wilkins, 486, 927
v. Wolverhampton Waterworks
Co., 368, 384
Bayliffe v. Butterworth, 927
Baylis v. Att.-Gen., 609
v. Laurence, 322
v. Le Gros, 548
v. Strickland, 89, 93
Bayne v. Walker, 232, 238
Bazeley v. Forder, 535, 836
Beachey v. Brown, 250
Beale v. Caddick, 811
v. Moules, 830
v. Sanders, 767
Bealey v. Stuart, 547, 766
Beamish v. Beamish, 184, 251, 333, 505,

507
Beard v. Egerton, 56, 364, 553
Beardman v. Wilson, 466
Beatson v. Skene, 319
Beaudely v. Brook, 481
Beaudry v. Montreal (the Mayor of),

139
Beaufort (Duke of) v. Neeld, 772

v. Swansea (Mayor
of), 929
Beaumont v. Barrett, 488
v. Brengeri, 24
v. Field, 633
v. Reeve, 752
Beaurain v. Scott, 88
Beavan v. Delahay, 413

v. Mornington, 331
Becher v. Great Eastern R. C, 755
Beck v. Rebow, 426
Beckett v. Midland R. C, 207, 326
Beckh v. Page, 680
Beckham v. Drake, 905, 907
Bective v. Hodgson, 497
Bedford Infirmary (Governors of) v,

Bedford (Commissioners of), 651
Beecham v. Smith, 344
Beer v. Beer, 548
Beer, app., Santer, resp., 680
Beeston v. Weate, 198, 381
Begbie v. Levi, 25
Behn v. Burness, 551, 788

v. Kemble, 789
Belcher v. Sambourne, 723
Beldingv. Read, 499, 500
Beldon v. Campbell, 485
Belfour v. Weston, 232
Bell v. Carey, 343
v. Carstairs, 225
v. Gardiner, 155, 260
v. Graham, 506
v. Janson, 189
v. Midland R. C, 252, 397
v. Morrison, 893
v. Richards, 344

Bell v. Simpson, 309

Bellamy v. Majoribanks, 924

Belshaw v. Bush, 345

Bence v. Gilpin, 543

Benett v. The Peninsular and Oriental
Steam Boat Co., 124

Benham v. United Guarantee, &c, Co.,
788

Bennett v. Bays, 843

v. Herring, 476

Bennison v. Cartwright, 382

Bensley v. Burdon, 502

Benson v. Paull, 203, 693

Berdoe v. Spittle, 686

Bernardie v. Motteux, 957

Berriman v. Peacock, 404

Berry v. Alderman, 718
v. Da Costa, 108

Berwick v. Andrews, 910

v. Horsfall, 104, 234
(Mayor of) v. Oswald, 35, 245,
647, 881

Besant v. Cross, 609

Bessant v. Great Western R. C, 389

Bessell v. Wilson, 114

Bessey v. Windham, 727

Beswick v. Swindels, 247

Betsy (The), 358

Betterbee v. Davis, 174

Betts v. Gibbins, 728
v. Menzies, 553
v. Walker, 673

Bevans v. Rees, 175

Beverley (Mayor of) v. A.-G., 946

Bevins v. Hulme, 602

Bewick v. Wintfield, 404

Bibby v. Carter, 371

Biccard v. Shepherd, 845

Bickerdike v. Bollman, 702

Bickerton v. Burrell, 295, 599

Biddle v. Bond, 173

Biddulph w. Lees, 560

Biffin v. Yorke, 575

Bigge v. Parkinson, 660, 778, 780

Bignold v. Springfield, 686

Bilbie v. Lumley, 256, 258

Billiter v. Young, 743

Bincks v. South Yorkshire R. C, 387

Binnington v. Wallis, 752

Bird v. Brown, 871

v. Holbrooke, 268, 388
v. Relph, 916

Birkenhead Docks (Trustees of) v. Bir-
kenhead Dock Co., 29

Birkett v. Whitehaven Junction R. C,
384

Birks, app., Allison, resp., 569

Birt v. Boutinez, 516

Birtwhistle v. Vardill, 517

Bishop v. Bedford Charity (Trustees of),
862

TABLE OF CASES.

XXXV

Bishop v. Curtis, 466

v. Elliott, 419, 427, 430, 588
v. Pentland, 218
Bishops' (The) Case, 32
Biss v. Smith, 563
Bittlestone v. Cooper, 636
Bize v. Dickason, 256, 259, 272
Blachford v. Dod, 105
Black v. Smith, 175
Blackett v. Bradley, 371, 922

v. Weir, 728
Blackham v. Pugh, 319
Blackmore v. Bristol and Exeter R. C,

392, 786, 861
Blaksley v. Whieldon, 483
Blackwell v. England, 541
Blades v. Higgs, 305, 355, 441
Blagrave v. Bristol Waterworks Co.,

199
Blaikie v. Stembridge, 846
Blair v. Bromley, 828
Blake's Case, 879, 881, 883
Blake v. Done, 81

v. Foster, 184, 469

v. Thirst, 851
Blakemore v. Bristol & Exeter R. C,
392, 786, 861
v. Glamorganshire Canal
Co., 6, 604
Blamford v. Blamlbrd, 555
Bland v. Crowley, 542

v. Ross, 390, 854
Blayne v. Gold, 640
Blemerhasset v. Pierson, 879
Blewett, app., Jenkins, resp., 921
Blight's Lessee v. Rochester, 78
Blight v. Page, 248
Block v. Bell, 599
Blofield v. Payne, 203
Bloodworth v. Gray, 318
Bloor v. Huston, 257
Blow v. Russell, 174
Bloxsome v. Williams, 24
Bluck v. Siddaway, 755
Bluett v. Tregonning, 918
Blundell v. Gladstone, 634
Blyth v. Birmingham Waterworks Co.,
209, 230, 368

v. Dennett, 172
Boast v. Firth, 235
Bode, In re Baron de, 937
Boden v. French, 618, 927

v. Wright, 754
Bodenham v. Purchas, 813
Bodfield v. Padmore, 262
Bodger v. Arch, 741, 911
Boileau v. Rutlin, 339, 955, 958
Bolch v. Smith, 387
Bolckow v. Seymour, 105
Bolingbroke v. Kerr, 906
Bolton v. Gladstone, 957

Bonaker v. Evans, 114
Bonar v. Macdonald, 704
Bond v. Gibson, 827
v. Hopkins, 286
v. Roslin, 546
Bonomi v. Backhouse, 366
Boodle v. Campbell, 282

v. Davis, 38
Boorman v. Brown, 202
Boosey v. Purday, 142

v. Wood, 882
Booth v. Bank of England, 489
v. Clive, 138
v. Kennard, 104, 362
Boraston v. Green, 416, 482
Borradaile v. Hunter, 315, 367, 543, 590,

648
Borries v. Hutchinson, 227
Bosanquet v. Dashwood, 275

v. Wray, 812
Bostock v. Hume, 818

v. North Staffordshire R. C,
664
Botten v. Tomlinson, 837
Bottomley v. Hayward, 892
Boucicault v. Delafield, 364
Boulter v. Peplon, 346
Boulton v. Bull, 363

v. Crowther, 7
v. Jones, 599
Bourne v. Fosbrooke, 173, 503
v. Gatliff, 925
v. Mason, 749
Bousfield v. Wilson, 679, 723, 735
Bovill v. Pimm, 104
Boville v. Wood, 134
Bowdell v. Parsons, 284
Bowden v. Waithman, 838
Bowen v. Owen, 175
Bower v. Hodges, 652
Bowerbank v. Monteiro, 886
Bowes v. Fernie, 603
v. Foster, 727
Bowman v. Blythe, 306
v. Horsey, 662
Bowring v. Stevens, 782
Bowyer v. Cook, 397
Boyce v. Higgins, 210
Boydell v. Drummond, 673
v. Harkness, 602
v. M'Michael, 425
Boyes v. Bluck, 578
Boyle v. Brandon, 207

v. Wiseman, 109, 969
Boyse v. Rossborough, 278
Brace v. Marlborough (Duchess of),

357
Bracewell v. Williams, 748
Bradbee v. London (Mayor, &c. of),

369
Bradburne v. Botfield, 548

XXXVI

TABLE OF CASES

Bradbury v. Anderton, 657

v. Morgan, 908
Braddick v. Thompson, 879, 883
Bradlaugh v. De Rin, 948
v. Evans, 968
Bradley v. Bardsley, 155
v. Carr, 88
v. Cartwright, 563
v. James, 961

v. Pilots of Newcastle, 929
v. Warburg, 134
v. Washington Steam Packet
Co. 614
Bradlie v. Maryland Insurance Co., 219
Bradshaw v. Beard, 535
v. Lawson, 443
v. Tasker, 41
Brady v. Giles, 853
v. Todd, 486
Brain v. Harris, 674
Braithwaite v. Gardiner, 294

v. Skinner, 195
Bramston v. Colchester (Mayor of), 30

v. Robins, 257
Brancker v. Molyneux, 189
Brandao v. Barnett, 693, 924
Brandon v. Brandon, 709
v. Robinson, 458
v. Scott, 171, 295
Branson v. Didsbury, 142
Brass v. Maitland, 202, 387, 782
Braunstein v. Accidental Death Insur-
ance Co., 737
Braye Peerage (The), 947
Breadalbane (Marquis of) v. Marquis of

Chandos, 265
Brecknock Co. v. Pritchard, 233
Bree v. Holbech, 774, 904
Breese v. Owens, 485
Bremer v. Freeman, 522
Bremner v. Hull, 945
Brewer v. Jones, 755

v. Sparrow, 169
Brewster v. Kitchell, 234, 244
Briddon v. Great Northern R. C, 239
Bridge v. Grand Junction R. C, 385
Bridgeman v. Holt, 117
Bridges v. Garrett, 819, 841

v. Hawkesworth, 355, 807
Bridgman v. Dean, 453, 748
Briggs v. Sowry, 361
Bright v. Enon, 288

v. Legerton, 964
Brighty v. Norton, 109
Brindson v. Allen, 703
Brisbane v. Dacres, 256, 259, 277, 333
Brissac v. Rathbone, 342
Bristol (Earl of) v. Wilsmore, 304, 731
Bristol & Exeter R. C. v. Garten, 680
Bristow v. Sequeville, 938
v. Whitmore, 708

British Columbia Saw-Mill Co. v. Net-

tleship, 227
British Linen Co. v. Caledonian Insur-
ance Co., 809
Brittain v. Kinnaird, 89

v. Lloyd, 759
Britton v. Cole, 843
Broadbent v. Imperial Gas Co., 200
v. Ramsbotham, 198, 374
v. Wilkes, 918
Brogden v. Marriott, 250
Bromage v. Lloyd, 466

v. Vaughan, 165
Bromley v. Holland, 257
Brook v. Jenney, 397

v. Rawl, 322
Brooke v. Brooke, 137, 505, 515
Brookes v. Tichbourne, 934
Brooks v. Bockett, 41

v. Hodgkinson, 124
v. Jennings, 601
v. Rivers (the Earl of), 117
Broom v. Batchelor, 540
Broome v. Wooton, 337
Broomfield v. Kirber, 161
Broughton v. Conway, 579
v. Jackson, 105
Broun v. Kennedy, 746
Brown v. Accrington Cotton Co., 851
v. Annandale, 362
v. Bateman, 502
v. Bussell, 929
v. Byrne, 663
v. Chapman, 124
v. Copley, 88
v. Edgington, 777, 780
v. Glenn, 436, 438
v. Hodgson, 820
v. Howard, 904
v. Jones, 93
v. Langley, 886
v. London (Mayor of), 243
v. M'Kinally, 333
v. Mallett, 378
v. Robins, 196

v. Royal Insurance Co., 233, 296
v. Wilkinson, 390
v. Windsor, 369
Browne v. Lee, 758
Browning v. Dann, 436

v. Morris, 720
Brownlow v. Metropolitan Board of

Works, 863
Brudenell v. Elwes, 566
Bruff v. Conybeare, 614
Brune v. Thompson, 930
Brunswick (Duke of) v. Hanover (King
of), 48
v. Harmer, 901
v. Slowman, 436,
675

TABLE OF CASES

XXXVll

Brunton v. Hawkes, 56
Bryan v. Clay, 916
Bryant v. Beattie, 247
v. Busk, 238
v. Foot, 922, 949
v. Wardell, 478, 680
Bryden v. Stewart, 858
Brydges v. Smith, 123
Buccleuch (Duke of) v. Metropolitan

Board of Works, 5
Buchanan v. Harrison, 532
Buckby v. Coles, 481
Buckhurst's (Lord) Case, 492
Buckland v. Butterfield, 428

v. Johnson, 336, 338
Buckle v. Knoop, 927
Buckley v. Barber, 456

v. Gross, 355, 807
Buckmaster, app., Reynolds, resp., 306
v. Meiklejohn, 339
v. Russell, 104
Budd v. Fairmaner, 659, 782
Buddie v. Green, 802
Bull v. Robinson. 778
Bullard v. Harrison, 3
Bullen v. Denning, 596

v. Sharp, 713, 827
Buller v. Mountgarret, 943
Bullock v. Downes, 582

v. Richardson, 969
Bulwer v. Bulwer, 409
Bunbury v. Hewson, 916
Bunch v. Kennington, 278
Burbidge v. Morris, 832
Burchfield v. Moore, 154
Burder v. Veley, 4
Burdett v. Abbott, 434, 436
Burgess v. Boetefeur, 348
v. Bracher, 592
v. Clements, 709
v. Gray, 850, 852
Burgh v. Legge, 702
Burland v. Hull Board of Health, 203
Burling v. Read, 440
Burmester v. Norris, 834
Burn v. Carvalho, 42
Burns v. Chapman, 125
Burnard, app., Haggis, resp., 317
Burnby v. Bollett, 798
Burnside v. Dayrell, 831
Buron v. Denman, 57, 867
Burrage v. Nicholetts, 303
Burrows v. March Gas Co., 206, 384
Burt v. Haslett, 419, 428, 588
Burton v. Griffiths, 109
v. Pinkerton, 227
v. Reevell, 546
v. Thompson, 142
Bush v. Beavan, 203

v. Martin, 761, 898
v. Steinman, 850, 862

Bushby v. Dixon, 532
Bushell's Case, 85, 102, 106
Busher, app., Thompson, resp., 918
Busk w. R. E. A. Co., 218
Butcher v. Butcher, 441

v. Henderson, 32
Bute (Marquis of J v. Guest, 577

v. Thompson, 247
Butler v. Hunter, 369, 851

v. Kent, 207

v. Knight, 201
Butt v. Thomas, 564
Butterfeilds v. Burroughs, 784
Button v. Thompson, 657
Bwlch-y-Plwm Lead Mining Co. v. Bay-

nes, 743
Byam v. Bullard, 268
Byrne v. Manning, 166

C.

Cadaval (Duke de) v. Collins, 258, 277,

322
Cadell v. Palmer, 139, 452
Cadge (in the goods of), 157
Cage v. Acton, 126, 130

v. Paxton, 578
Caine v. Horsfall, 926
Caines v. Smith, 284, 767
Calcutta and Burmah Steam Navigation

Company v. De Mattos, 693
Caldecott v. Smythies, 415
Calder v. Halket, 86
Calder and Hebble Navigation Co. v. Pil-
ling, 26, 484
Caledonian R. Co. v. Colt, 664
v. Cort, 195
v. Lockhart, 700
v. Sprot, 197, 479
Callaghan v. Callaghan, 727
Calland v. Troward, 126
Calvert v. Baker, 155
Calvin's Case, 76, 973
Calye's Case, 709
Camac v. Warriner, 777
Cameron v. Charing Cross R. Co., 207
Camidge v. Allenby, 893
Cammell v. Sewell, 331, 342, 957
Camoys (Lord) v. Blundell, 634, 637
Campanari v. Woodburn, 869
Campbell v. Campbell, 728

v. Fleming, 743 i

v. Loader, 340

v. Race, 3

v. Rickards, 935

v. Spottiswoode, 320

v. Webster, 657
Canadian Prisoners' Case, 100
Candler v. Candler, 937
Canham v. Barry, 233, 236, 714, 731
Cann v. Clipperton, 99

XXXV111

TABLE OF CASES.

Cannara v. Farmer, 294, 696
Cannan v. Reynolds, 322, 341, 343
Canterbury (Vise.) v. Att.-Gen., 50, 57,

60, 210, '232, 383, 865, 915
Canterbury's (Archb. of) Case, 651
Capel v. Child, 113, 915
Card v. Case, 393

Cardigan (Earl of) v. Armitage, 484
Carew v. Duckworth, 702
Cargey v. Aitcheson, 626
Carlyon v. Lovering, 918
Carmichael v. Carmichael, 279
Carpenters' Company v. Hayward, 108
Carr v. Hood, 320

v. Jackson, 599
v. Martinson, 174
v. Montefiore, 554, 792
v. Roberts, 905
Carr v. Royal Exchange Ass. Co., 572

v. Stephens, 344
Carrattv. Morley, 88, 95
Carron Co. v. Hunter, 736
Carters. Boehm, 792, 935
v. Carter, 694
v. Crick, 925
v. Flower, 702
v. James, 339
v. Wormald, 890
JCartwright v. Rowley, 272
Casher v. Holmes, 654
Cashill v. Wright, 369, 709
Casseres v. Bell, 187
Castellani v. Thompson, 293, 892
Castledon v. Turner, 609
Castrique v. Imrie, 342
v. Page, 573
Caswell, app., Cook, resp., 570
v. Worth, 268, 385,391
Catchpole v. Ambergate, &c, R. C, 193
Cates v. Knight, 664
Catherwood v. Caslon, 507, 520
Catlin v. Bell, 840
Caton v. Caton, 888
Cattell v. Ireson, 969
Catterall v. Catterall, 507

v. Hindle, 102, 819
Catton v. Simpson, 154
Caudrey's Case, 164
Cave v. Mills, 169, 258

v. Mountain, 88
Cecil v. Brigges, 846
Central R. C. of Venezuela v. Kisch,

782, 784
Chadwick v. Marsden, 481
v. Trower, 370
Chamberlain v. The Chester and Birk-
enhead R. C, 206
v. Williamson, 906
Chambers v. Bernasconi, 965
v. Mason, 139, 209
v. Miller, 258, 305

Chandelor v. Lopus, 781, 797

Chandler v. Doulton, 201

Chandos (Marquis of) v. Commissioners

of Inland Revenue, 571
Chanel v. Robotham, 492
Chaney v. Payne, 627
Channon v. Patch, 405
Chanter v. Dewhurst, 778, 779
v. Hopkins, 660, 777
v. Leese, 249
Chapman v. Bluck, 682

v. Dalton, 686

v. Freston, 299

v. Pickersgill, 193

v. Rothwell, 384

v. Shepherd, 273, 927

v. Spiller, 799

v. Towner, 546

v. Van Toll, 108

v. Walton, 935
Chappell v. Purday, 36, 364
Chappie v. Cooper, 535
Charles v. Altin, 344
Charles River Bridge v. Warren Bridge,

482, 713
Charleton v. Spencer, 578
Charlotta (The), 267
Charnley v. Winstanley, 283
Chasemore v. Richards, 198, 355, 366,

374, 377
Chatfield v. Paxton, 260
Chauntler v. Robinson, 370
Cheesman v. Exall, 477, 802
Cheetham v. Ward, 704
Chelsea (Vestry of), app., King, resp., 6
Cheney v. Courtauld, 540, 952
Chesman v. Nainby, 741
Chester v. Wortley, 969
Chesterfield, &c, Colliery Co. v. Haw-
kins, 547 .
Chevely v. Fuller, 104
Cheyney's Case, 609, 614, 681
Chichester v. Lethbridge, 205
Chidell v. Galsworthy, 499, 500
Chilton v. London and Croydon R. C,

484
Chod v. Tilsed, 930
Cholmondeley (Marq. of) v. Clinton

(Lord), 357, 543, 578, 609
Chope v. Reynolds, 222
Chorlton v. Lings, 646
Chown v. Baylis, 211

v. Parrott, 835
Christchurch (Dean, &c. of), v. Buck-
ingham, (Duke of), 279
Christie v. Gosling, 452, 558
Christopherson v. Burton, 14, 360
Chuck v. Cremer, 167
Church v. Mundy, 649
Churchill v. Churchill, 169

v. Siggers, 133, 199

TABLE OF CASES.

XXXIX

Churchward v. Ford, 527, 652

v. Reg, 60, 250, 668
Clancy v. Piggott, 888
Clarence Railway Company v. Great
North of England Railway Company,
6, 483
Clark v. Alexander, 497

v. Woods, 97
Clarke v. Cogg, 481

v. Colls, 561

v. Crofts, 906

v. Dixon. 297, 731, 743

v. Hart, 292

v. Holford, 427

v. Holmes, 386, 859

v. Perrier, 869

v. Royston, 412, 663

v. Tinker, 160

v. Westrope, 737

v. Woods, 278

v. Wright, 45, 520
Clavering v. Ellison, 248
Clay v. Oxford, 81

v. Turley, 885
Clayards v. Dethick, 385
Claydon v. Green, 573
Clayton's Case, 814
Clayton v. The Att.-Gen., 59, 172
v. Corby, 922
v. Kynaston, 704
v. Lord Nugent, 610, 676
Clegg v. Dearden, 338
Clement v. Weaver, 82
Clements v. Scudamore, 356
Clere's Case, 127
Cleveland v. Spier, 270, 379
Clift v. Schwabe, 315, 552, 590, 622,

682
Clifton v. Cockburn, 255, 264

v. Hooper, 201
Climie v. Wood, 420, 423, 424
Close v. Phipps, 274
Clothier v. Webster, 863
Clough v. Radcliffe, 729
Clow v. Brogden, 204
Clubb v. Hutson, 734
Clunnes v. Pezzey, 940
Cobb v. Beeke, 755, 838

v. Mid Wales R. C, 46
Cobbett v. Warner, 340
Cock v. Gent, 9

Cockburn v. Alexander, 600, 926
Cocker v. Tempest, 133
Cockerill v. Cholmeley, 265
Cocking v. Ward, 762
Cockram v. Irian, 840
Cockrill v. Sparkes, 104
Cocks v. Nash, 879, 881
Cocksedge v. Cocksedge, 269
Coddington v. Paleologo, 924
Coe v. Lawrance, 571

Coe v. Wise, 200
Coggs v. Bernard, 238
Colburn v. Patmore, 728, 730
Colchester (Mayor of) v. Brooke, 378,

388
Colev. Goble, 558
Colegrave v. Dias Santos, 418, 423,

424
Coleman v. Riches, 865

v. South Eastern R. C, 385
Coles v. Hulme, 577

v. Trecothick, 840
Collard v. South Eastern R. C, 227
Collen v. Wright, 227, 793, 795, 799,

800, 826
Collett v. Foster, 133, 199, 843, 875
Collingwood v. Berkeley, 831
Collins v. Aron, 82

v. Blantern, 84, 733
v. Bristol and Exeter R. C, 238
v. Brook, 755
v. Cave, 206
v. Evans, 796

v. Middle Level Commissioners,
7, 208, 373
Collis v. Selden, 387, 786
Collison v. Curling, 614
Colman v. Eastern Counties Railway, 8
v. Foster, 473
v. Morris, 491
Colmore v. Tyndall, 545
Colpoys v. Colpoys, 614
Columbine v. Chichester, 603

Insurance Co. v. Lawrence,
218
Colwill v. Reeves, 286
Commings v. Heard, 330, 334
Compton v. Carpenter, 632
Comyn v. Comyn, 269
Congreve v. Evetts, 500
Connelly v. Connelly, 521
Conradi v. Conradi, 329
Constable v. Nicholson, 918, 922
Cook v. Clark, 440

v. Jennings, 248, 654, 657
v. Lister, 345, 885
v. Palmer, 837
v. Wright, 748
Cooke v. Birt, 440

v. Stratford, 81
v. Tanswell, 942
v. Tonkin, 832
v. Waring, 195, 393
v. Wildes, 323
v. Wilson, 295, 823
Cookney v. Anderson, 101
Coombes v. Dibble, 720
Coombs v. The Bristol and Exeter R.

C, 818
Coomer v. Latham, 95
Cooper v. Blick, 629

xl

TABLE OF CASES.

Cooper v. Harding, 593

v. Hubbock, 879

v. Johnson, 906

v. Law, 787

v. Lloyd, 837

v. Parker, 749, 891

v. Phibbs, 253, 263

v. Shepherd, 338

v. Simmons, 263, 905

v. Slade, 866

v. Walker, 387, 655

v. Wandsworth Board of Works,
115

v. Willomatt, 478

v. Woolfitt, 411
Cope v. Albinson, 762
v. Cope, 581
v. Rowlands, 741
Copeman v. Gallant, 572
Copland v. Laporte, 580
Corbet's Case, 450
Corby v. Hili, 387
Corcoran v. Gurney, 218
Cork and Bandon R. C. v. Goode, 896
Corner v. Shew, 908
Cornfoot v. Fowke, 793, 795, 797
Cornforth v. Smithard, 104
Cornill v. Hudson, 900
Cornish v. Abington, 2.93
v. Cleiff, 652
v. Keene, 362
Cornwell v. Metropolitan Commission-
ers of Sewers, 387
Corsar v. Reed, 167
Cort v. Ambergate, &c, R. C, 285, 880

v. Sagar, 480
Cory v. Thames Iron Works Co., 227
Costar v. Hetherington, 349
Cotes v. Michil, 96
Cothay v. Fennel, 822
Cotterel v. Jones, 199
Couch v. Steel, 210, 858
Counden v. Clerke, 614
Courtauld v. Legh, 382
Courtenay v. Earle, 202

v. Strong, 249
Courtney v. Taylor, 547
Couturier v. Hastie, 499, 926
Coventry v. Apsley, 901
Coverley v. Burrell, 782
Cowan v. Milbourn, 214, 739
Coward v. Baddeley, 306
v. Gregory, 914
Cowell v. Edwards, 758
Cowie v. Barber, 720
Cowley v. Dunlop, 657
Cowper v. Godmond, 903

v. Green, 748
Coxv. Burbidge, 393
v. Glue, 397
v. Godselve, 412

Cox v. Hickman, 827
v. Hubbard, 295
v. Lee, 318
v. Leech, 108

v. London (Mayor of), 922
v. Midland Counties R. C, 821
v. Mitchell, 350
v. Morgan, 892
v. Prentice, 716
Coxhead v. Richards, 319, 322
Cracknell v. Thetford (The Mayor of),

200, 607
Crafter v. Metropolitan R. C, 110
Craig v. Levy, 167
Crane v. London Dock Co., 804

v. Powell, 673
Cranston v. Marshall, 788
Craven v. Smith, 333
Craw v. Ramsay, 78
Crawshay v. Maule, 456

v. Thompson, 790
Crease v. Barrett, 963
Creed v. Fisher, 108
Creighton v. Rankin, 704
Crepps v. Durden, 25
Crespigny v. Wittenoom, 573
Cripps v. Reade, 774
Crisp v. Anderson, 940
Croft v. Alison, 848, 853
v. Lumley, 490, 811
v. Stevens, 323
Crofts v. Beale, 754

v. Haldane, 396
v. Waterhouse, 238
Croll v. Edge, 56

Croockewit v. Fletcher, 156, 284, 551
Crookenden v. Fuller, 522
Cropper v. Cook, 778, 920, 927
Crosby v. Leng, 211
Cross v. Williams, 831
Crosse v. Gardner, 801
Crossfield v. Morrison, 648

v. Such, 456, 911, 914
Crossing v. Scuddamore, 542
Crossley v. Dixon, 171
Crosthwaite v. Gardner, 869
Crotty v. Hodges, 155
Crouch v. Great Northern Railway, 227
Crow v. Edwards, 136
v. Falk, 678
v. Rogers, 748
Crowder v. Long, 287, 837
Crowther v. Farrer, 748
Cuckson v. Stone, 235, 345
Cullen v. Butler, 590

v. Thompson's Trustees, 824
Cumber v. Wane, 122, 890
Cumberland's (Countess of) Case, 404
Cumming v. Bedborough, 257, 272
v. Forrester, 55
v. Ince, 278

TABLE OF CASES.

xli

Cumpston v. Haigh, 598
Cunard v. Hyde, 734
Cundell v. Dawson, 732, 741
Cunliffe v. Maltass, 629
Curlewis v. Clarke, 890

v. Laurie, 436

v. Lord Mornington, 904
Curling v. Mills, 546
Curson v. Belworthy, 731
Curteis v. Kenrick, 503
Cuthbert v. Cumming, 920

v. Haley, 734
Cuthbertson v. Irving, 184

v. Parsons, 851
Cutter v. Powell, 657, 662

Dails v. Lloyd, 258

Dains v. Heath, 673

Daintry v. Brocklehurst, 941

Dakin v. Brown, 385

Dakins v. Seaman, 28

Dalby v. Hirst, 416, 920

Dale v. Humfrey, 663, 927

Dalhousie (The Countess of) v. M'Dow-

all, 517
D'Allex v. Jones, 741
Dalmer v. Barnard, 159
Dalrymple v. Dalrymple, 506, 520
Dalston v. Coatsworth, 939
Dalton v. Denton, 388

v. South Eastern R. C, 210
Daly v. Thompson, 279
Dalyell v. Tyrer, 845, 853
Dand v. Kingscote, 484
Daniel v. Gracie, 624

v. Metropolitan R. 0., 110

v. Morton, 113
Daniell v. Woodroffe, 544
Daniels v. Fielding, 199
Dansey v. Richardson, 368, 709
Danube, &c, R. C. v. Xenos, 250, 284.
Danvers v. Morgan, 340
Darby v. Ouseley, 318
D'Arcy v. Tamar, 948
Darcy (Lord) v. Askwith, 404, 485
Darley v. Martin, 563
Darnley (Earl of) v. London, Chatham

and Dover R. C, 136
Dart v. Dart, 79

Dartmouth (Mayor of) v. Silly, 85, 245
Dash v. Van Kleeck, 34
Davenport v. Mason, 949
Davidson v. Burnand, 590

v. Cooper, 154, 155, 156
v. Stanley, 823
Davies v. Humphries, 758, 903

v. Jenkins, 133, 199

v. Lowndes, 289

Davies v. dem, Lowndes ten., 182, 955
v. Hopkins, resp., 838
v. Mann, 385, 388
v. Pearce, 963
v. Pratt, 945
v. Williams, 440
Davis v. Black, 210

v. Bomford, 886

v. Burrell, 441

v. Cary, 244

v. Eyton, 409, 410

v. Garrett, 226

v. Haycock, 927

v. Jones, 431

v. Lloyd, 963

v. London and Blackwall R. C,

370
v. Meeker, 781
v. Nisbett, 748
v. Powell, 160
v. Trevannion, 168
Davison v. Duncan, 319, 322
v. Gent, 698, 714
v. Wilson, 205, 440
Daw v. Metropolitan Board of Works,

30
Dawes v. Hawkins, 2

v. Peck, 820
Dawkins v. Lord Paulet, 199, 209, 319,
» 325

v. Lord Rokeby, 209
Dawson v. Chamney, 709
v. Collis, 800
v. Morrison, 834
v. Paver, 9

v. The Sheriffs of London, 206
v. Surveyors of Highways, 943
Day v. Bather, 709
v. Savadge, 121
v. Trig, 634
Deacon v. Gridley, 763
Dean v. James, 174
v. Millard, 31
Deane v. Clayton, 185, 378, 388
Dearden v. Townsend, 309
Dearie v. Hall, 359
De Beauvoir v. De Beauvoir, 554
De Begnis v. Armistead, 741
De Bernardy v. Hardig, 884
De Bode (Baron) v. Reg., 59, 72
De Cadaval (The Duke of) v. Collins,

257
Deering v. Farrington, 652
Defreeze v. Trumper, 799
Degg v. Midland R. C, 270, 368, 387,

860
De Haber v. Queen of Portugal, 48
De la Rosa v. Prieto, 746
Delany v. Fox, 434, 441
Delegal v. Highley, 105
De Medina v. Grove, 199, 277, 333

xlii

TABLE OF CASES.

De Mesnil v. Dakin, 278, 287
De Montmorency v. Devereux, 179
De Moranda v. Dunkin, 837
Dempster v. Purnell, 952
Denby v. Moore, 272
Dendy v. Powell, 601
Denison v. Holliday, 399
v. Ralphson, 801
Denn v. Bagshawe, 560
v. Diamond, 4, 571
d. Nowell v. Roake, 558
Dent v. Smith, 220
Denton v. Great Northern R. C, 238
Depperman v. Hubbersty, 818
Derby (Earl of), Case of, 117

v. Bury Commission-
ers, 945
De Roo v. Foster, 317
De Rozaz v. Anglo Italian R. C, 344
Deuters v. Townsend, 470
Devaux v. Conolly, 276, 715, 926

v. J'Anson, 590
De Vaux v. Salvador, 223, 390
Devaynes v. Noble, 139, 816
Dew v. Parsons, 257
Dewhurst, app., Fielding, resp., 666
Dews v. Riley, 95
Dicas v. Lord Brougham, 87
Dick v. Tolhausen, 337
Dickenson v. Grand Junction Canal
Co., 144, 198, 204
v. Jardine, 663, 926
v. Naul, 802
Dickinson v. North Eastern R. C, 913

v. Stidolph, 676
Dickson v. Reg., 571

v. Swansea Vale R. C, 473
v. Zizinia, 658
Dietrichsen v. Giubilei, 759, 760
Digby v. Thompson, 318
Dimes v. Grand Junction R. C, 117

v. Petley, 378, 387
Dimmock v. Bowley, 133
Dimock v. Corlett, 551
Dingle v. Hare, 227
Di Sora v. Phillips, 107, 937
Dixon v. Bell, 391

v. Bovill, 469, 470
v. Clarke, 175
v. Holroyd, 896
v. Sadler, 845
v. Stansfeld, 692
v. Underdown, 554
v. Yates, 802
Dobell v. Stevens, 782, 787
Dobie v. Larkan, 754
Dobson v. Blackmore, 205, 378

v. Espie, 884
Dodd v. Burchell, 481

v. Holme, 196, 369
Dodgson v. Scott, 342, 736

Doe d. Allen v. Allen, 616

Amlot v. Davies, 554
Andrew v. Hatton, 527
Anglesea (Lord) v. Rugeley

(Churchwardens of), 244
Ashburnham (Earl of) v. Mich-
ael, 961
Ashforth v. Bower, 630, 643
Atkinson v. Fawcett, 649, 564
Bacon v. Bridges, 955
Barney v. Adams, 545
Beach v. Jersey (Earl of), 618
Beech v. Nail, 681
Biddulph v. Poole, 698
Bills v. Hopkinson, 554
Birtwhistle v. Vardill, 517
Birsh v. Keeling, 378
Blesard v. Simpson, 560
Blomfield v. Eyre, 463
Brammall v. Collinge, 178
Brayne v. Bather, 340
Bristol Hospital (Governors of)

v. Norton, 187
Bryan v. Bancks, 179, 279
Burton v. White, 564
Bywater v. Brandling, 586
Cadogan v. Ewart, 159
Caldecott v. Johnson, 558
Canon v. Rucastle, 650
Cape v. Walker, 560
Chichester v. Oxenden, 643
Cholmondeley (Earl of) v. Maxey,

675
Clark v. Ludlam, 150
Cross v. Cross, 503
Curzon v. Edmonds, 104
Dand v. Thompson, 948
Daniell v. Woodroffe, 214
Davies v. Williams, 597
Dixie v. Davies, 691
Douglas v. Lock, 691
Dunning v. Cranstoun, 634
Duntze v. Duntze, 329
Egremont (Earl of) v. Burrough,

463
Ellis v. Owens, 576
Evans v. Rye, 39
Everett v. Cooke, 592
Freeland v. Burt, 399, 618
Fryer v. Coombs, 103
Gains v. Rouse, 640
Gallini v. Gallini, 650
Gallop v. Vowles, 962
Gilbert v. Ross, 942
Gord v. Needs, 609, 616
Gore v. Needs, 615

v. Langton, 681
Grantley (Lord) v. Butcher, 244
Gregory v. Whichelo, 532
Groves v. Groves, 291
Gutteridge v. Sowerby, 867

TABLE OF CASES.

xliii

Doe d. Gwillim v. Gwillim, 609
Hamilton v. Clift, 919
Haw v. Earles, 564, 591
Hearle v. Hicks, 554
Hemming v. Willetts, 617
Henry v. Gnstard, 340
Higginbotham v. Barton, 261
Hiscocks v. Hiscocks, 633
Hopley v. Young, 945
Howell v. Thomas, 649
Hotchkiss v. Pearse, 656
Hubbard v. Hubbard, 630, 632
Hudson v. Leeds and Bradford

Railway Co., 173
Hull v. Wood, 691, 698
Hutchinson v. Manchester and

Rossendale Railway Co., 5,

606
Jenkins v. Davies, 934
Kinglake v. Beviss, 961
Lean v. Lean, 564
Legh v. Roe, 57
Levy v. Home, 282
Lewis v. Davis, 543
Lloyd v. Ingleby, 654
Lord v. Crago, 261
' Mansfield v. Peach, 656
Meyrick v. Meyrick, 577
Mitchinson v. Carter, 490, 697
Morgan v. Powell, 546
Mudd v. Suckermore, 934
Murch v. Marchant, 583
Muston v. Gladwin, 282, 881
Myatt v. St. Helen's R. C, 595
Nickells v. Atherstone, 291
Norton v. Webster, 617, 618
Otley v. Manning, 748
Oxenden v. Chichester, 621
Padwick v. Skinner, 965

v. Wittcombe, 965
Parker v. Thomas, 526
Parsley v. Day, 546
Patteshall v. Turford, 964
Pearson v. Ries, 682
Pennington v. Taniere, 178
Phillips v. Evans, 944
Preedy v. Holtom, 617
Pulteney v. Freeman, 340
Renon v. Ashley, 636
Reece v. Robson, 961
Rhodes v. Robinson, 839
Richards v. Lewis, 288, 727
Roberts v. Roberts, 727

v. Parry, 633
Robertson v. Gardiner, 944
Rogers v. Price, 481, 547
v. Pullen, 658
v. Rogers, 905
Sams v. Garlick, 555, 557, 649
Scholefield v. Alexander, 670
Scott v. Roach, 554

Doe d. Scruton v. Snaith, 671

Shallcross v. Palmer, 157, 947
Shore v. Porter, 910
Shrewsbury (Earl of) v. Wilson

670
Smith v. Galloway, 633
Spencer v. Pedley, 637
Spilsbury v. Burdett, 655
Stace v. Wheeler, 910
Stansbury v. Arkwright, 78
Stevens v. Lord, 434
Stevenson v. Glover, 464, 554
Strickland v. Strickland, 104
Strode v. Seaton, 335, 340
Sweetland v. Webber, 961, 963
Tatum v. Catomore, 157, 947 •
Thomas v. Acklam, 77
Thomas v. Benyon, 616
Timmins v. Steele, 625
Tofield v. Tofield, 178, 564
Tremewen v. Permewen, 554
Watson v. Jefferson, 893
Watt v. Morris, 66
Westlake v. Westlake, 615
William the IVth v. Roberts, 66
Williams v. Lloyd, 727

v. Matthews, 177
Williamson v. Roe, 22
Winter v. Perratt, 523, 614
Wood v. Clarke, 546
Woodall v. Woodall, 676
Woodhouse v. Powell, 948
Wyndham v. Carew, 581, 686
Doe v. Acklam, 185
v. Allen, 150
v. Dring, 671
v. Godwin, 579
v. Huddart, 335
v. Huthwaite, 637
v. Lyford, 643
v. Trye, 837
v. Wright, 335
v. York (Archb. of;, 72, 483
Doglioni v. Crispin, 522
Dolphin v. Robins, 505
Donald v. Suckling, 477
Done v. Walley, 758
Dormay v. Borrodaile, 315, 590
Dorset (Duke of) v. Lord Hawarden,

615
Douglas v. Dysart, 921
v. Patrick, 175
v. Watson, 886
Dovaston v. Payne, 325, 601
Dowell v. Steam Navigation Co., 223,

385, 386, 390
Downe (Lord) v. Thompson, 956
Downing v. Capel, 100
Downman v. Williams, 823
Downs v. Ship, 892
Doyle v. Anderson, 347

xliv

TABLE OF CASES,

Doyle v. Falconer, 46, 487

Dracachi v. Anglo-Egyptian Nav. Co.,

472
Drake v. Drake, 637

v. Mitchell, 882

v. Pyrell, 380
Dresser v. Bosanquet, 33, 294, 693
Drew v. Avery, 629
Drewe v. Lanson, 360
Drouet v. Taylor, 958
Drummond v. The Atty.-Gen., 682
Drury v. De la Fontaine, 24

v. Macnamara, 546
Duberley v. Gunning, 269
Du Bost v. Beresford, 318
Du Bouley v. Du Bouley, 196
Duckmanton v. Duckmanton, 612
Duckworth v. Johnson, 368
Dudden v. Guardians of Ohitten Union,

198
Dudley (Lord) v Ward (Lord), 422, 427
Duero' (The), 845

Dufaur v. Professional Life Ass. Co., 315
Dugdale v. Reg., 309
Duke v. Ashby, 184

v. Forbes, 628, 744
Dumergue v. Rumsey, 420, 427, 430
Dumpor's Case, 296
Dunbar (Magistrates of), v. The Duchess

of Roxburghe, 684
Dunckle v. Wiles, 337
Dundee Harbor v. Dougal, 894
Dunford v. Trattles, 845
Dungannon (Lord) v. Smith, 452, 558
Dunkley v. Farris, 866
Dunlop v. Lambert, 821
Dunn v. Sales, 547, 653

v. Spurrier, 595
Dunston v. Paterson, 294
Durrell v. Bederly, 935
Duvergier v. Fellows, 247, 735
Dyer v. Best, 896
v. Green, 673
v. Pearson, 359, 802
Dyke v. Walford, 354
Dyne v. Nutley, 630
Dynen v. Leach, 386, 853

E.

Eagle v. Charing Cross R. C, 207
Earle v. Hopwood, 734

v. Oliver, 760, 764
Early v. Benbow, 561

v. Garrett, 771, 800
East v. Twyford, 565
East Anglian R. C. v. Eastern Counties

R. C, 743
Eastern Archipelago v. Reg., 59, 63,

607, 669

Eastern Counties R. C. v. Broom, 843,
873
v. Marriage,
573, 680
Union R. C. v. Cochrane, 475,
574
v. Symonds, 965
East India Co. v. Paul, 903

v. Tritton, 715
Eastwood v. Avison, 563
v. Bain, 786, 790
v. Kenyon, 751, 752, 760
Eaton v. Swansea Waterworks Co., 382
Eden v. Blake, 885, 888

v. Wilson, 563
Edgar v. Fowle, 720, 721
Edger v. Knapp, 758
Edie v. Kingsford, 961
Edinburgh and Glasgow R. C. v. Magis-
trates of Linlithgow, 664
Edis v. Bury, 599
Edmonds v. Lawley, 37
Edmondson v. Stevenson, 320
Edmunds v. Bushell, 829
v. Downes, 656
v. Greenwood, 969
Edward v. Trevillick, 278
Edwards v. Bates, 81

v. Baugh, 748
v. Grace, 906
v. Havill, 485, 836
v. Hodges, 572
v. Martyn, 134
v. Ward, 254
Egerton v. The Earl of Brownlow, 248,

366, 451, 460, 523, 732
Egremont (Earl of) v. Saul, 930
Eichholz v. Bannister, 800
Eldrich's Case, 623
Eleanor (The), 197
Electric Telegraph Co. v Brett, 680

v. Salford, Over-
seers of, 395
Elkin v. Baker, 169
Ellcock v. Mapp, 698
Elliott v. Bishop, 38

v. Johnson, 476

v. North Eastern R. C, 674

v. Royal Exchange Ass. Co., 738

v. South Devon Railway Co.,

104
v. Turner, 553
Ellis v. Bridgnorth (The Mayor of), 460,
943
v. Griffith, 157
v. Hopper, 117
v. London and South Western R.

C, 385, 387
v. Russell, 723

v. Sheffield Gas Consumers Co.,
848, 851

TABLE OF CASES.

XV

Ellis v. Smith, 148

Ellston v. Deacon, 827

Elsee v. Gatward, 746

Elwes v. Maw, 418, 421, 428

Elwood v. Bullock, 920

Embry v. Owen, 144, 204, 355, 374

Emerson v. Brown, 287

v. Emerson, 910
Emerton v. Matthews, 778, 798
Emery v. Webster, 262
Emilie (The), 939
Emmens v. Elderton, 285, 602, 653, 760,

765
Engell v. Finch, 227
England v. Marsden, 868
Enohin v. Wylie, 700
Entick v. Carrington, 4, 43, 95, 191, 434,

683, 841
Ernest v. Nicholls, 827
Esdaile v. Lund, 120

v. Maclean, 680
Etherton v. Popplewell, 303
Ething v. U. S. B., 105
Evans v. Edmonds, 731, 797
v. Hutton, 243
v. Jones, 71, 142, 288
v. Powis, 890
v. Rees, 29, 123, 480
v. Scott, 622
Everard v. Poppleton, 623
Everett v. London Assurance, 206, 217

v. Robinson, 898
Every v. Smith, 714
Ewart v. Cochrane, 481

v. Jones, 95, 106, 199
Ewbank v. Nutting, 846, 856
Ewer v. Jones, 195
Ewin v. Lancaster, 886
Exeter (The Bishop of) v. Marshall,
159, 180
(Mayor of) v. Warren, 64
Ex parte Barclay, 419, 425
Bell, 721
Bentley, 425
Clayton, 570
Copeland, 684
Critchley, 733
Danks, 175

Fernandez, 93, 968, 970
Games, 878
Hopwood, 113
Johnson, 815
Lane, 475
Mandell, 416, 482
Medwin, 117
Mehennet, 119
Newton, 92
Neilson, 727
Quincey, 422
* Ramshay, 114
Randleson, 815

Ex parte Short, 350

Story, 93, 113, 134

Swan, 293

Symes, 968

Tindal, 908

Tollerton (Overseers of), 134

Warrington, 570

White, 342
Exposito v. Bowden, 236, 245, 250, 285

F.

Facey v. Hurdom, 692

Fagan v. Harrison, 868

Fagg v. Nudd, 763

Fairchild v. Gaire, 891

Fairhurst v. The Liverpool Adelphi

Loan Association, 294
Fairlie v. Denton, 475
Falmouth (Lord) v. George, 920
'v. Roberts, 155
(Earl of) v. Thomas, 888
Farebrother v. Ansley, 728
Farley v. Danks, 199
Farmer v. Arundel, 272
v. Mottram, 878
v. Russell, 723
Farr v. Newman, 151
Farrall v. Hilditch, 547
Farrant v. Barnes, 202, 387, 786

v. Nichols, 563
Farrar v. Hutchinson, 724
Farrer v. Close, 395, 742
Farrow v. Wilson, 234
Faulkner v. Johnson, 945

v. Love, 216
Favenc v. Bennett, 815
Faviell v. Gaskoin, 413
Fawcett v. York and North Midland R.

C, 389
Fawcus v. Sarsfield, 224
Fay v. Prentice, 369, 396, 398
Fazakerley v. M'Knight, 154
Feather v. Reg., 57, 62, 73, 141, 608,

865, 866
Fector v. Beacon, 839
Fellowes v. Clay, 569
Feltham v. England, 855
Fenn v. Bittleston, 478

v. Harrison, 823, 848
Fennell v. Ridler, 24
Fenner v. Taylor, 705
Fenton v. City of Dublin Steam Packet
Company, 845
v. Emblers, 903
v. Hampton, 46, 486
v. Livingstone, 178, 505, 517
522
Fenwick v. Schmalz, 238
Fereday v. Wightwick, 456

xlvi

TABLE OF CASES

Feret v. Hill, 298, 714, 731
Ferguson v. The Earl of Kinnoul, 90

v. Mahon, 114
Fergusson v. Norman, 741
Fermor's Case, 288, 342
Fermoy Peerage Case, 684, 931
Fernie v. Young, 102
Fernley v. Worthington, 89
Feronia (The), 708
Ferrand v. Bischorfsheim, 822
Ferrier v. Howden, 134
Festing v. Allen, 554, 560
Fetherston v. Fetherston, 565, 649
Fetter v. Beal, 337
Field v. Adames, 278

v. Lelean, 926, 928
Filleter v. Phippard, 383
Finch v. Miller, 175
Findon v. Parker, 279
Fineux v. Horenden, 136
Finney v. Beesley, 134
v. Finney, 329
Fish v. Broket, 22
v. Kelly, 756
Fisher v. Bridges, 725, 752
v. Clement, 322
v. Dixon, 422, 423
v. Magnay, 287
v. Prowse, 387
v. Ronalds, 968
v. Waltham, 748
Fishmongers' Co. v. Dimsdale, 673
v. Robertson, 123
Fitch v. Jones, 754
Fitton v. Accidental Death Insurance

Co., 217, 598
Fitzgerald's Case, 585
Fitzgerald v. Dressier, 945

v. Fitzgerald, 126
Fitzjohn v. Mackinder, 206, 229
Fitzmaurice v. Bayley, 673, 868
Fitzroy v. Gwillim, 719
Fivaz v. Nicholls, 199, 723
Fleckner v. United States Bank, 867
Fleet v. Perrins, 477
Fleming v. Dunlop, 134

v. Fleming, 614, 615
Flemyng v. Hector, 830
Fletcher v. Braddick, 845
v. Calthrop, 572
v. Great Western R. C, 197
v. Pogson, 602
v. Sondes (Lord), 185, 194
v. Tayleur, 227
Flight v. Gray, 885, 886
v. Reed, 763
v. Thomas, 381, 382
Flood v. Patterson, 901, 903
Florence v. Drayson, 497

v. Jennings, 336, 497
Flory v. Denny, 503

Flower v. Adam, 384
Foley (Lord) v. Commissioners of In-
land Revenue, 571
v. Addenbrooke, 430, 548
v. Fletcher, 571
v. Parry, 582
Foljamb's Case, 486
Follett v. Hoppe, 277, 332
Forbes v. Cochrane, 21
v. Marshall, 599
v. Smith, 897
Force v. Warren, 319
Ford v. Beech, 345, 540, 597
v. Cotesworth, 668
v. Elliott, 965
v. Lacey, 143
v. Leche, 837
v. Tiley, 284
v. Tynte, 355
Fordham v. London, Brighton and

South Coast R. C, 385
Fordyce v. Bridges, 569
Foreman v. Free Fishers of Whitstable,

922, 930
Forman v. Wright, 259, 754
Forsdike v. Stone, 108
Forster v. Forster, 269

v. Mackreth, 827
Forsyth v. Riviere, 362
Forward v. Pittard, 230
Foster's (Dr.) Case, 30
Foster v. Allanson, 338

v. Bates, 869, 906, 911

v. Charles, 790

v. Dawber, 884

v. Dodd, 95

v. Mackinnon, 718, 736

v. Mentor Life Assurance Co.,

291, 926
v. Pearson, 717
v. Pritchard, 31
v. Smith, 788
v. Spooner, 481
Fotherby v. Metropolitan R. C, 203
Fountain v. Boodle, 320
Fourdin v. Gowdey, 41
Fowell v. Tranter,' 542
Fowkes v. Manchester and London Life

Ass. Co., 654, 657, 790
Fowler v. Padget, 367, 686

v. Rickerby, 342
Fragano v. Long, 821
Francis v. Cockrell, 668, 780, 786

v. Hawkesley, 104
Frank v. Frank, 694
Franklin v. Carter, 272
v. Neate, 477
Franklyn v. Lamond, 822
Fraser v. Welch, 188
Fray v. Fray, 318

v. Voules, 201, 835

TABLE OF CASES,

xlvii

Frayes v. Worms, 342
Frazer v. Jordan, 345, 704

v. Hutton, 750
Freake v. Cranefeldt, 904
Fredericks, app., Howie, resp., 395
Free Fishers of Whitstable v. Gann,

480
Freegard v. Barnes, 124
Freeman, app., Read, resp., 171

v. Baker, 782

v. Cooke, 292

v. Jeffries, 258, 716

v. Read, 100

v. Rosher, 875

v. Steggall, 294

v. Tranah, 85, 123, 133
Fremlin v. Hamilton, 749
Frend v. Buckley, 944
Frewen v. Phillips, 381
Frith v. Guppy, 347

v. Wollaston, 879
Frost v. Oliver, 485
Fryer v. Kinnersley, 319
Fuentes v. Montis,'471, 803
Fulliam v. Down, 272
Fuller v. Fenwick, 92
v. Wilson, 794
Furber v. Sturmey, 80
Furnis v. Leicester, 801
Furnival v. Coombes, 581
v. Stringer, 136
Furze v. Sharwood, 551
Fussell v. Daniell, 544

G.

Gabriel v. Dresser, 890
Gadsby, app., Barrow, resp., 623
Gahan v. Lafitte, 86
Gainsford v. Griffith, 652
Gale v. Burnell, 499

v. Reed, 577, 579
Gallagher v. Piper, 854
Galley v. Barrington, 588, 681
Galliard v. Laxton, 96
Galloway v. Jackson, 189, 748
Galway v. Baker, 674
Gambart v. Ball, 364

v. Sumner, 308
Gamble v. Kurtz, 363
Gandy v. Jubber, 862
Garden v. Bruce, 903
Gardiner v. Gray, 660
Gardner v. Campbell, 306

v. Walsh, 154
Garland v. Carlisle (in error), 13, 128,

140
Garnett v. Ferrand, 87
Garrard v. Hardey, 744

v. Guibilie, 81

Garrett v. Handley, 822

v. Messenger, 350
Garton v. Bristol and-Exeter R. C, 81
Gartside v. Radcliff, 939
Garwood v. Ede, 835
Gaslight and Coke Co. v. Turner, 726,

734
Gaters v. Madeley, 477
Gathercole v. Miall, 91, 318, 321
Gattorno v. Adams, 551
Gaunt v. Taylor, 623
Gauntlett v. King, 843
Gautrel v. Egerton, 270
Gaved v. Martyn, 375, 380
Gayford v. Nicholls, 196, 371, 848, 851,

862
Gaylard v. Morris, 278
Gee v. Lancashire and Yorkshire R. C,

227
Geere v. Mare, 725, 726
Gelen v. Hall, 89

General Mutual Insurance Co. v. Sher-
wood, 218
General Steam Navigation Co. v. British
and Colonial Steam Navigation Co.,
390, 864
General Steam Navigation Co. v. Mor-
rison, 390
General Steam Navigation Co. v. Rolt,

'704
General Steam Navigation Co v. Slip-
per, 169
Generous (The), 243
Genner v. Sparkes, 438
George v. Skivington, 785, 786
Gerard v. Lewis, 668
Gerhard v. Bates, 755, 786, 790
Gerish v. Chartier, 960
Gether v. Capper, 574, 600
Gibbon v. Budd, 746
Gibbons v. Alison. 105

v. Vouillon, 345
Gibbs v. Flight, 922

v. Lawrence, 651
v. Ralph, 333
v. Stead, 115
Giblin v. M'Mullen, 110, 386
Gibson v. Bruce, 257
v. Dickie, 463
v. Doeg, 943

v. Hammersmith R. C, 427
v. Minet, 295, 543
v. Preston (Mayor of), 863
v. Sturge, 497
Gidley v. Palmerston (Lord), 864
Gifford v. Livingstone, 151

v. Yarborough (Lord), 165
Gilbertson v. Richardson, 209
Gildart v. Gladstone, 604
Gilding v. Eyre, 124
Giles v. Grover, 71, 361

xlviii

TABLE OF CASEi

Giles v. Hutt, 351

v. Spencer, 737, 886
Gill (in the goods of), 677
Gill v. Cubitt, 718
Gillett v. Offor, 823
Gilmore v. Shuter, 36, 37
Gilpin v. Fowler, 323
Gingell v. Purkins, 256, 343
Giraud v. Richmond, 889
Gittins v. M'Dermott, 503

v. Steele, 582
Glaholm v. Hays, 551
Glanville v. Stacey, 143
Gleadow v. Atkin, 961
Gleaves v. Parfitt, 916
Gledstanes v. Sandwich (Earl of), 54,

64
Gloucester (the Mayor, &c, of) v. Os-

born, 611
Glynn v. Thomas, 210
Goblet v. Beechy, 611
Goddard v. Cox, 811

v. Hodges, 812
Godfrey v. Bullock, 356
Godts v. Rose, 926
Godwin v. Culling, 104
Goffv. Great Northern R. C, 856
Goldham v. Edwards, 601, 602, 884
Goldthorpe v. Hardmans, 385
Gollan v. Gollan, 154, 686
Gomery v. Bond, 256, 257, 258
Gompertz v. Bartlett, 778
Goodall v. Lowndes, 721

v. Polhill, 473
Goode v. Burton, 492
Goodman v. Boyatt, 474

v. Edwards, 634
v. Harvey, 717
Goodright d. Hall v. Richardson, 624

v. Vivian, 405
Goodtitle v. Baldwin, 66
v. Bailey, 543
v. Gibbs, 180, 627
v. Southern, 634
v. Woodward, 870
Goodwin v. Hubbard, 714
Goodwyn v. Cheveley, 109
Gordon v. Ellis, 295, 803
v. Howden, 719
v. Rolt, 847, 848
v. Whitehouse, 626
Gore v. Gibson, 17
v. Lloyd, 546
v. Stackpoole, 342
Gorgier v. Mieville, 809

v. Morris, 750
Gorham v. Bishop of Exeter, 117, 685
Gorrissen v. Perrin, 788, 926
Gorton v. Gregory, 476
Goslin v. Corry, 320
Gosling v. Veley, 4, 139, 152, 192, 193

Goss v. Nugent (Lord), 866, 888, 890
Gosset v. Howard, 93, 952
Gott v. Gandy, 652, 690
Gough v. Findon, 750
Gould v. Coombs, 155

v. Oliver, 268, 269, 386
Gowdy v. Duncombe, 160
Grace v. Clinch, 125
Graham v. Berry, 142
v. Darcey, 626
v. Ewart, 494
v. Furber, 288
v. Gibson, 629
v. Grasie, 474
v. Ingleby, 699, 705
v. Van Diemen's Land Co., 109
Grand Junction R. C. v. White, 678
Granger v. George, 904
Grant v. Da Costa, 753

v. Norway, 836
Grantham Canal Navigation Co. v. Hall,
605
v. Hawley, 499, 500
Graves v. Ashford, 364
v. Legg, 663
v. Weld, 240, 407
Gray v. Cox, 777

v. Johnston, 201

v. Liverpool and Bury R. C, 606
v. Pullen, 848, 850
v. Reg., 326
Great Central Gas Co. v. Clarke, 30
Great Eastern (The), 836
Great Northern R. C. v. Harrison, 270,

391, 547
Great Northern R. C. v. Kennedy, 351
v. Mossop, 331
v. Bennett, 197
v. Crouch, 109
v. Fletcher, 479
v. Goodman, 821
v. Redman, 228
v. Reg., 6
Great Western of Canada v. Braid, 239
Greathead v. Bromley, 330
Green v. Attenborough, 154
v. Baverstock, 731
v. Chapman, 320
v. Cobden, 123
v. Elgie, 95, 133
v. Elmslie, 218
v. Kopke, 823
v. Laurie, 277
v. Nixon, 342
v. Saddington, 762
v. Sichel, 169
Greene v. Armsteed, 630
Greenland v. Chaplin, 386
Greenwood v. Rothwell, 560
v. Sutcliffe, 583
v. Taylor, 810

TABLE OF CASES.

xlix

Gregg v. Wells, 291

Gregory v. Brunswick (Duke of), 134,
313
v. Cotterell, 14, 837, 849
v. Des Anges, 664
v. Piper, 846, 848
Gregson v. Gilbert, 219

v. Ruck, 783
Grell v. Levy, 734
Gresham v. Postan, 801
Greville v. Chapman, 935
Grey v. Pearson, 555
Griffin v. Langfield, 821

v. Weatherby, 475
Griffiths v. Gidlow, 270

v. Lewis, 322

v. Owen, 890

v. Perry, 469

v. Puleston, 413, 416, 482
Grill v. General Iron Screw Colliery

Co., 217
Grimman v. Legge, 657
Grimsley v. Parker, 890
Grinnell v. Wells, 536
Grissell v. Bristowe, 927

v. Cook, 920
Grocers' Co. v. Donne, 367, 370
Groenvelt v. Burwell, 86
Grote v. Chester and Holyhead R. C,

368, 851
Grove v. Aldridge, 71
v. Dubois, 822
v. Withers, 481, 485
Grover v. Birmingham, 554, 555
Grymes v. Boweren, 427
Guest v. Warren, 337
Guille v. Swan, 209
Gullett v. Lopez, 161
Gulliver v. Cosens, 301

v. Gulliver. 898
Gully v. Bishop of Exeter, 747
Gurly v. Gurly, 677
Gurney v. Bahrend, 472

v. Evans, 293

v. Womersley, 778, 808
Gurrin v. Kopera, 547
Guthrie v. Fisk, 44
Gwithin v. Stone, 769
Gwyn v. Hardwicke, 210, 685
v. Neath Canal Co., 582
Gwynne v. Burnell, 164

v. Davy, 879, 881
Gynes v. Kemsley, 630
Gyse v. Ellis, 820

II.

Habergham v. Vincent, 705
Haddon v. Ayres, 268, 548
v. Lott, 207

Haddrick v. Heslop, 105
Hadkinson v. Robinson, 222
Hadley v. Baxendale, 227, 228
v. Clarke, 247
v. Green, 338
v. Taylor, 270
Hagedorn v. Whitmore, 217
Hagger v. Baker, 92
Haggerston v. Hanbury, 544
Hahn v. Corbett, 218
Haigh v. Paris, 337, 340
Hailes v. Marks, 106
Haine v. Davy, 142
Haines v. East India Co., 169
v. Roberts, 196, 371
v. Welch, 411
Haire v. Wilson, 322
Haldane v. Johnson, 883
Hale v. Rawson, 247, 249

v. Webb, 694
Hales v. London and North Western
R. C, 227
v. Petit, 70
Haley v. Hammersley, 425, 426
Halhead v. Young, 886
Hall's Case, 363
Hall v. Bainbridge, 344

v. Bristol (The Mayor of), 195

v. Conder, 778, 801, 890

v. Dysen, 735

v. Fearnley, 393

v. Featherstone, 718, 754

v. Flockton, 890

v. Janson, 926

v. Johnson, 858

v. London Brewery Co., 775

v. Lund, 481, 483

v. Warren, 560, 681

v. Wright, 233, 235, 250, 505
Hallen v. Runder, 419
Hallett v. Dowdall, 698

v. Wylie, 233
Hallewell v. Morrell, 550
Halley (The), 864
Halliday v. Holgate, 477
Hallifax v. Lyle, 294
Halliwell v. Trappes, 692
Halton v. Cave, 572
Hambleton v. Veere, 194
Hambly v. Trott, 914
Hamelin v. Bruck, 154
Hamilton v. Anderson, 86, 88
v. Granger, 17
v. Hamilton, 506
v. Pitt, 351
Hamlet v. Richardson, 332
Hamlin v. Great Northern R. C, 227
Hammack v. White, 393
Hammersmith and City R. C. v. Brand

200, 207, 394, 397, 489, 573, 939
Hammond v. Bendyshe, 115

1

TABLE OF CASES

Hammond v. Dod, 187
Hancock v. Austin, 435
v. Somes, 349
v. Welsh, 336

v. York, Newcastle, and Ber-
wick R. C, 378
Hannam v. Mockett, 355
Hardcastle v. Dennison, 560

v. South Yorks. R. C, 387
Harden v. Clifton, 154, 879
Harding v. Pollock, 491
Hardingham v. Allen, 175, 810
Hardwicke(Earl of) v. Douglas. 560

v. Lord Sandys, 659
Hardy «. Tingey, 593
v. Veasey, 201
In the goods of, 157
Hare v. Horton, 424, 426, 655
Hargreave v. Smee, 598
Hargreaves v. Hayes, 629

v. Parsons, 886, 889
Harlow v. Read, 628

v. Wright, 187
Harman v. Cam, 263
Harmer v. Cornelius, 668

v. Steele, 885
Harnor v. Groves, 743, 788, 929
Harper v. Burgh, 476
v. Carr, 313
v. Williams, 749, 823
Harratt v. Wise, 260
Harries v. Thomas, 333
Harris v. Anderson, 368
v. Baker, 850
v. Davis, 686

v. Goodwyn, 880, 881, 884
v. Greathed, 636
v. Lawrence, 37
v. Lincoln (Bishop of), 609
v. Lloyd, 259
v. Phillips, 629
v. Quine, 898
v. Robinson, 28
v. Ryding, 400
v. Shaw, 805
v. Willis, 342
Harrison v. Blackburne, 578
v. Bush, 319
v. Cage, 766
v. Cotgreave, 155
v. Great Northern R. C, 373
v. Harrison, 558
v. Heathorn, 122, 744
v. Hyde, 630
v. Ruscoe, 295
v. Seymour, 704
v. Southampton (Mayor of,)

947
v. Stickney, 38
v. Wright, 138
Harrold v. Whitaker, 548

Harrop app., Fisher, resp., 476
v. Hirst, 144, 203, 204
Harrower v. Hutchinson, 792
Harrup v. Bayley, 171, 271
Hart v. Bassett, 205
v. Crowley, 853
v. Miles, 748
v. Prendergast, 699
v. Windsor, 775
Hartland v. Jukes, 898
Hartley v. Hindmarsh, 349

v. Ponsonby, 748
Harvey v. Brydges, 441
v. Gibbons, 249
v. Grabham, 888, 890
v. Harvey, 423, 426
v. Pocock, 303
v. Towers, 754
Harwood v. Great Northern R. 0., 363

v. Goodright, 940
Haseler v. Lemoyne, 875
Hasleham v. Young, 870
Hastings Peerage (The), 532, 948
Hatch v. Traves, 753
Hatfield v. Phillips, 804
Hawkes v. Eastern Co. R. C, 735

v. Sanders, 760
Hawkins v. Alder, 142
v. Hall, 288
v. Twizell, 497
Hawtayne v. Bourne, 45
Hay v. Le Neve, 390

v. Coventry (Earl of), 591
Haycraft v. Creasy, 367, 786
Hayden v. Hayward, 940
Hayes v. Warren, 759
Hayward v. Bennett, 247, 283

v. Duff, 706
Hazeldine v. Grove, 89
Healdfc. Carey, 821

v. Kenworthy, 822
Heap v. Barton, 429^ 430
v. Livingston, 163
Heard v. Wadham, 879
Hearn v. Garthon, 306, 865
Heath v. Brewer, 100
v. Chilton, 875
v. Durant, 888
v. Elliott, 161
v. Unwin, 325, 363
Heathcote v. Wing, 123
Hebblethwaite v. Hebblethwaite, 969
Heffer v. Meadows, 540, 885
Heffield v. Meadows, 885
Heilbut v. Nevill, 295
Hellawell v. Eastwood, 32, 420, 425
Helps v. Clayton, 756, 836
Helsham v. Blackwood, 348
Hemans v. Picciotto, 548, 737
Hemming v. Hole, 201

v. Tremery, 155

TABLE OF CASES.

li

Hemmings v. Gasson, 106
Hemp v. Garland, 903
Henderson v. Barnwell, 840

v. Broomhead, 199, 209
v. London and North West-
ern R. C, 496
v. Sherborne, 31, 572
v. Stobart, 578
Henniker v. Wigge, 814, 815
Henry v. Goldney, 337
Henson v. Coope, 885
Henwood v. Oliver, 672
Hercules (The), 211
Herlakenden's Case, 404
Herring v. Metropolitan Board of Works,

207
Heseltine v. Siggers, 550
Heslopv. Baker, 574, 869

v. Chapman, 105, 109
Hesse v. Stevenson, 5^9
Heugh v. London and North Western

R. C., 110
Hewitt v. Isham, 160, 481
Heydon's Case, 83, 682
Heysham v. Forster, 950
Heyworth v. Hutchinson, 779

v. Knight, 867
Hibblewhite v. M'Morine, 697
Hickman v. Machin, 359
Hide v. Thornborough, 196
Higgen's Case, 337
Higgins v. Butcher, 211
v. Hopkins, 831
v. M'Adam, 838
v. Pitt, 725
v. Senior, 712, 822
Higgons v. Burton, 743, 803
Higgs v. Assam Tea Co., 472

v. Scott, 257
Higham v. Ridgway, 961, 962
Highmore v. Harrington (Earl of), 108
Hilbery v. Hatton, 868
Hilcoat v. Abp. of Canterbury, 195
Hill v. Balls; 227, 801
v. Cowdery, 490
v. Grange, 550
v. Gray, 787
v. Smith, 343
v. Thompson, 56
v. Tupper, 461
Hills v. Croll, 491
v. Mitson, 735

v. London Gas-Light Co., 56
v. Street, 275
v. Sughrue, 247
Hilton v. Eckerley, 395

v. Swan, 804, 808, 922
v. Whitehead, 196,371
Hinchcliffe v. Kinnoul (Earl of), 483
Hine v. Reynolds, 586
Hinton v. Heather, 105

Hipkins v. Birmingham Gas-Light Co.,

307, 374
Hirschfeld v. Smith, 155
Hitchcock v. Way, 32, 36
Hitchin v. Groom, 620
Hitchman v. Walton, 424
Hix v. Gardiner, 157
Hoare v. Byng, 564

v. Dickson, 340
v. Graham, 885
Hobbs v. Henning, 342, 739
Hobson v. Blackburn, 612, 634
v. Middleton, 601, 602
v. Neale, 37
v. Thelluson, 211, 361
Hochster v. De la Tour, 250, 284
Hodges v Ancrum, 108
v. Horsfall, 675
Hodgkinson v. Ennor, 197, 369, 374
v. Fernie, 209, 334, 865
v. Wyatt, 41
Hodgson v. Ambrose, 554

v. De Beauchesne, 522
Hodgson v. Field, 482, 484
v. Malcolm, 218
v. Richardson, 826
v. Sidney, 226
Hodsoll v. Stallebrass, 194
Hoey v. Felton, 206
Hogan v. Jackson, 649
Hogg v. Ward, 109
Holcroft v. Hoggins, 830
Holden v. Liverpool New Gas and Coke
Co., 385
v. Smallbrooke, 355
Holder v. Soulby, 369
Holding v. Elliott, 926
v. Pigott, 414
Holdsworth v. Barsham, 626
Hole v. Sittingbourne and Sheerness R.

C, 848
Holford, app., George, resp., 922

v. Hankinson, 381
Holland v. Russell, 258, 715, 792
Holliday v. Morgan, 783, 784
Hollier v. Eyre, 609

v. Laurie, 432
Hollingsworth v. Palmer, 574
Hollis v. Marshall, 210

v. Palmer, 497
Holman v. Johnson, 739
Holme v. Guppy, 247
Holmes v. Clarke, 268
v. Goring, 485
v. Kerrison, 903
v. London and North-Western

R. C, 363
v. Mackrell, 104
v. Newlands, 336
v. North Eastern R. C, 384, 387
389

lii

TABLE OF CASES

Holmes v. Penney, 749

v. Simons, 162
v. Williamson, 758
v. Wilson, 397
Holroyd v. Breare, 88

v. Marshall, 500, 502
Holt v. Ely, 81

v. Ward, 512
Homer v. Taunton, 323
Homfray v. Scorpe, 904
Hookpayton v. Bussell, 351
Hooper v. Clark, 476

v. Lane, 14, 131, 298, 849
v. Treffry, 755
Hope v. Hayley, 500

v. Hope, 100
Hopkins v. Francis, 945

v. Freeman, 337

v Hitchcock, 637, 778

v. Logan, 763

v. Prescott, 743

v. Tanqueray, 788

v. Ware, 898
Hopkinson v. Lee, 548
Hopley v. Young, 907
Horn v. Anglo-Australian Ass. Co., 315

v. Baker, 427
Hornby v. Close, 395
v. Lacy, 822
Horsey v. Graham, 617
Horsfall v. Hay, 419

v. Thomas, 732, 743
Horton v. Sayers, 737

v. Westminster Improvement
Commissioners, 734, 946
Horwood v. Smith, 806
Hotson v. Brown, 785
Houghton v. Houghton, 456
Houlden v. Smith, 86
Houldsworth v. Evans, 139
Hounsell v. Smyth, 387
Househill Coal and Iron Co. v. Neilson,

362
How v. Kirchner, 693
Howard v. Barnard, 108

v. Burtonwood, 269

v. Gossett, 49, 53, 601

v. Hudson, 292

v. Shepherd, 202, 474, 786

v. Sheward, 829
Howden v. Standish, 13, 486
Howell v. Richards, 677

v. Young, 904
Howton v. Frearson, 481
Hoye v. Bush, 98
Hoyt v. Thompson, 101
Hubbard v. Lees, 945
v. Mace, 437
Hubbersty v. Ward, 836
Hubbart v. Bigby, 430
Hudson v. Baxendale, 393

Hudson v. Clementson, 926
v. Ede, 601
v. M'Crae, 308
v. Roberts, 393
Huffer v. Allen, 124, 330
Huggins v. Coates, 903
Hughes v. Buckland, 99
v. Clark, 944
v. Cornelius, 957
v. Done, 602

v. Great Western R. C, 138
v. Griffiths, 23
v. Jones, 840
v. Macfie, 385
v. Statham, 489
v. Turner, 558
Hull v. Pickersgill, 869
Hulse v. Hulse, 748
Humble v. Hunter, 295
Humblestone v. Welham, 169
Humfrey v. Dale, ^23
Humphreys v. Pensam, 955
Humphries v. Brogden, 196, 371, 372,

400
Humphrys v. Pratt, 795
Hunsden v. Cheney, 787
Hunt v. Bate, 756
v. Hooper, 361
v. Hort, 609
v. Hunt, 699
v. Peake, 196, 371
v. Rousmaniere (Admrs. of), 263
Hunter (The) 939
Hunter v. Caldwell, 108
v. Gibbons, 902
v. Leathley, 553
v. Stewart, 338
Huntingtower (Lord) v. Gardner, 602
Huntley v. Russell, 421, 914

v. Ward, 322
Hurley v. Baker, 818
Hurst v. Great Western R. C, 926
Husband v. Davis, 295
Hutchinson v. Guion, 388

v. Johnston, 360
v. Kay, 421
v. Shepperton, 92
v. Sydney, 759
v. York, Newcastle and Ber-
wick R. C, 846, 854, 858
Hutchison v. Birch, 436
Hutt v. Morrell, 339, 411
Hutton v. Blaine, 141

v. Thompson, 835
v. Warren, 413, 415, 663
Huxam v. Wheeler, 34, 570
Huzzey v. Field, 848, 856
Hyams v. Webster, 7, 863
Hyatt v. Griffiths, 416
Hybart v. Parker, 697
Hyde v. Graham, 305

TABLE OP CASES.

liii

Hyde v. Johnson, 576, 838
v. Watts, 280
v. Windsor (Dean of), 907

T.

Ibottson v. Peat, 198, 355

Iggulden v. May, 578

Illidge v. Goodwin, 392

Ilott v. Wilkes, 269, 388

Imperial Gas Light and Coke Co. v.

London Gas Light Co., 902
Inray v. Magnay, 360
Indermaur v. Dames, 270, 387
India (Secretary of State of) v. Sahaba,

875
Ingham v. Primrose, 476
Ingram v. Lea, 889

In re Bahia and San Francisco R. C,
292
Baron de Bode, 210
Groucott v. Williams, 366, 371,

387
Harris, 817
Jones, 680

Llanbeblig v. Llandyfrydog, 125
Macdougal's Patent, 363
M'Innes' Patent, 363
Pollard, 114

Royal Liver Friendly Society, 580
Ionides v. Universal Marine Insurance

Co., 220
Ireland (Bank of) v. Archer, 753

v. Trustees of Evans'
Charities, 293
v. Champneys, 914
Irnham (Lord) v. Child, 263, 667
Ironmongers' Co., v. Att.-Gen., 566
Ironsides (The), 41
Irving v. Veitch, 656
Irwin v. Grey, 92, 333, 945
Isherwood v. Oldkr
Ivatt v. Finch, 963
lzon v. Gorton, 232, 776

J.

Jack v. M'Intyre, 560, 631
Jackson v. Burnham, 83

v. Carrington, 124
v. Clark, 640
v. Cobbin, 744, 748
v. Duchaire, 739
v. Galloway, 134
v. Hopperton, 110
v. Pesked, 181, 397
v. Smithson, 393
v. Tollett, 849
v. Woolley, 38, 901

Jacobs v. Layborn, 134

v. Seward, 252
Jacobson v. Blake, 301, 306
Jacques v. Chambers, 612
James v. Brook, 321
v. Child, 810
v. Cochrane, 547
v. Isaacs, 37, 875
v. Phelps, 105
Janes v. Whitbread, 627, 634
Janvrin v. De la Mare, 139
Jaques v. Withy, 32
Jarmain v. Hooper, 133, 837
Jarrett v. Kennedy, 797
Jefferys v. Boosey, 101, 364
Jeffries v. Alexander, 229

v. Williams, 366, 371
Jeffrys v. Evans, 495
Jeffs v. Day, 474
Jegon v. Vivian, 559, 591
Jendwine v. Slade, 277, 782
Jenkin v. Peace, 103
Jenkins v. Harvey, 930

v. Hughes', 560, 561, 650
v. Tucker, 753
v. Turner, 393
v. Waldron, 194
Jenkyns v. Usborne, 471
Jennings v. Brown, 752

v. Florence, 199
v. Great Northern R. C, 755
v. Rundall, 317
Jepson v. Key, 503
Jervis v. Tomkinson, 247
Jesse v. Roy, 619
Jessel v. Bath, 836
Jesson v. Wright, 650
Jessopp v. Lutwyche, 741
Jewell v. Parr, 146
Jewison v. Dyson, 682
Jinks v. Edwards, 480, 775
Joel v. Morrison, 848
Johns v. Dickinson, 655
Johnson v. Dodgson, 821
v. Hudson, 741
v. Goslett, 835
v. Johnson, 773
v. Lansley, 723
v. Leigh, 440
v. Liversedge, 36
v. Pye, 317
v. Royal Mail Steam Packet

Co., 275, 755
v. Simcock, 592
v. Smith, 127
v. Windle, 808
Johnstone v. Sumner, 88, 836

v. Sutton (in error), 105, 175,

191, 209
v. Usborne, 663, 925
Jolly v. Rees, 837

Vv

TABLE OF CASES.

Jonassohn v. Young, 250
Jones v. Atherton, 360

v. Bowden, 782, 800

v. Bright, 777, 780

v. Brown, 683

v. Carter, 179, 474

v. Chapman, 93, 714

v. Chune, 188

v. Clarke, 781

v. Davies, 531

v. Festiniog R. C, 367, 373, 383,
394

f>. Giles, 741

v. Harrison, 835

v. Hart, 843

v. How, 236

v. Jones, 440

v. Just, 781, 798

v. Littledale, 663

v. Mersey Docks, 72

v. Newman, 614

v. Peppercorn, 924

v. Pope, 896

i\ Provincial Insurance Co., 789

v. Randall, 254

v. Reynolds, 546

v. Robin, 160

v. Robinson, 475

v. Ryde, 715, 778

v. Sawkins, 890

v. Smart, 46

v. Sutton, 932

v. Taplin, 139, 379

v. Tucker, 559

v. Waite, 732, 735

v. Yates, 295
Jordan v. Adams, 558, 650
Jordin v. Crump, 270, 388
Josh v. Josh, 630, 643
Josling v. Kingsford. 778
Jowett v. Spencer, 579
Jowle v. Taylor, 100
Justice v. Gosling, 349

Karnak (The), 485, 836

Katharina (The), 267

Kaye v. Brett, 820

v. Dutton, 749, 752, 763
v. Waghorn, 879, 882

Kearns v. Cordwainers' Co , 205
v. Durell, 273, 276, 754

Kearon v. Peai-son, 239

Kearsley v. Cole, 704

Keates v. Earl of Cadogan, 776, 787

Keech v. Hall, 359

Keele v. Wheeler, 716, 777, 783

Keene v. Beard, 476

Keighley's Case, 231

Keir v. Leeman, 721, 733
Kelly v. Lawrence, 287

v. Morray, 333

v. Partington, 207

v. Sherlock, 108

v. Solari, 258, 260

v. Tinling, 319
Kelner v. Baxter, 227, 872
Kelsall v. Marshall, 80

v. Tyler, 697
Kemp v. Balls, 868

v. Pinden, 758
v. Neville, 86, 87
Kempson, v. Boyle, 926
Kendall v. King', 834
v. Stone, 271
Kennard v. Jones, 143
Kennedy v. Brown, 209, 746

v. Panama &c, Mail Co., 732,
777, 800
Kennet and Avon Navigation Co. v.

Witherington, 197, 210
Kenney v. Browne, 402
Kent v. Burgess, 520

v. Great Western R. C, 276
Kenworthy v. Peppiatt, 23
Kenyon v. Hart, 397
Kepp v. Wiggett, 150
Kerr v. Wauchope, 174, 711
Key v. Key, 564
Keys v. Harwood, 283
Keyse v. Powell, 197, 400
Kidgill v. Moor. 397
Kidston v. Empire Marine Insurance Co.,

927
Kielly v. Carson, 488
Kimbray v. Draper, 35
Kimpton v. Eve, 416
Kindersley v. Chase, 957
Kine v. Sewell, 320, 322
King v. Badeley, 625

v. Bryant, 167

v. Gillett, 511, 766, 886

v. Hoare, 336, 337

v. Jones, 905

v. Melling, 588

v. Norman, 334, 956, 958

v.Reg., 313

v. Sears, 760
Kingdon v. Nottle, 905
Kingsbury v. Collins, 240, 407
Kingsford v. Merry, 743
Kingston (Duchess of) Case, 329, 342,

955, 956
Kingston-upon-Hull Dock Company v.

Browne, 605
Kinnersley v. Cope, 336
Kinning v. Buchanan, 95, 165
Kintore (The Earl of) v. Lord Inverury,

680
Kintrea v. Perston, 775

TABLE OF CASES,

Kirchner v. Venus, 693, 927
Kirkhaugh v. Herbert, 41
Kirkland v. Nisbett, 938
Kitchin v. Hawkins, 253, 811
Kitson v. Julian, 647
Knapp v. Harden, 885
Knevett v. Pool, 408, 410
Knight v. Bennett, 413

v. Fox, 852

v. Gibbs, 208

v. Gravesend and Milton Water
works Co., 548

v. Selby, 591
Knights v. Quarles, 906
Kynaston v. Crouch, 868
Kynnaird v. Leslie, 518

Labouchere v. Tupper, 813
Lacon v. Higgins, 520
Laidlaw v. Organ, 782
Laing v. Fidgeon. 660, 777, 780

v. Whaley, 197
Lamb v. Palk, 848
Lambert v. Bessey, 367

v. Taylor, 66
Lamert v. Heath, 778
Lampet's Case, 474
Lampleigh v. Brathwait, 746, 756
Lancashire Wagon Co. v. Fitzhugh,

478
Lancaster v. Eve, 421, 431
Lancaster & Carlisle R C. v. Heaton,

119
Lane v. Cotton, 850

v. Bennett, 46

v. Dixon, 430

v. Ironmonger, 107
Langden v. Stokes, 887
Langley v. Headland, 705
v. Hammond, 494
Langmead v. Maples, 331
Langridge v. Levy, 785, 861
Langston v. Langston, 541, 545
Langton v. Haynes, 37
v. Hughes, 30
Lansdowne v. Lansdowne, 263
Lanman v. Lord Audley, 122
Lanyon v. Carne, 619, 691
Lapsley v. Grierson, 947
Larpent v. Bibbey, 37
La Touche v. La Touche, 760
Latham v. Atwood, 240, 408

v. Lafone, 680
Latimer v. Batson, 290
Latless v. Holmes, 36
Lattimore v. Garrard, 764
Laugher v." Pointer, 849, 853
Laughter's Case, 236

Launock v. Brown, 434, 843
Laurie v. Douglas, 218

v. Scholefield, 885
Law v. Blackburrow, 550

v. Parnell, 476
Lawless v. Anglo-Egyptian Cotton Co.,

319
Lawrance v. Boston, 670
Lawrence v. Great Northern R. C, 664
v. Hitch, 922, 949
v. Hodgson, 122
v. Sidebotham, 657
v. Walmsley, 704.
v. Wilcock, 136
Laws v. Purser, 171, 778

v. Rand, 898
Lawton v. Lawton, 421, 422, 427
v. Salmon, 422
v. Sweeney, 940
Lay v. Mottram, 547
Layton v. Hurry, 301
Leach v. Money, 95
Leader v. Homewood, 429
Leak v. Howell, 841
Leame v. Bray, 208
Leary v. Patrick, 38
Leather Cloth Co. V.American Leather

Cloth Co., 892
Le Bret v. Papillon, 187
Le Case de Tanistry, 918
Lechmere v. Fletcher, 337
Ledsam v. Russell, 72, 680
Lee v. Bayes, 162, 211, 805
v. Cooke, 350
v. Evans, 142
v. Everett, 818
v. Gansell, 436
v. Johnston, 945, 949
v. Jones, 732
v. Merrett, 256
v. Milner, 604, 606
v. Muggeridge, 751
v. Riley, 208
v. Risdon, 429
v. Simpson, 308, 325
v. Wilmot, 761
Leech v. Lamb, 125

Leeds (The Duke of) v. Earl Amherst,
406, 567
v. Cheetham, 232
Lees v. Moseley, 560
Leete v. Hart, 100
Legge v. Boyd, 354
Leith v. Irvine, 157
Le Mason v. Dixon, 910, 914
Lemere v. Elliott, 762
Leonard v. Baker, 290
Leuckhart v. Cooper, 157
Levi v. Abbott, 361
v. Milne, 322
v. Sanderson, 32

lvi

TABLE OF CASES.

Levy v. Moylan, 95, 124
Lewis v. Bright, 724

v. Campbell, 759

v. Clifton, 210, 250, 285

v. Davison, 744

v. Jones, 885

v. Lane, 922

v. Levy, 319

v. Marshall, 552, 925

v. Peachey, 285

v. Puxley, 649

v. Read, 303, 875

v. ReiHy, 827
Ley v. Ley, 554
Leyfield's (Dr.) Case, 103
Lichfield (Mayor of) v. Simpson, 90

Union (Guardians of) v.
Greene, 808, 893
Liddard v. Kain, 783
Liedemann v. Schultz, 926
Lievesley v. Gilmore, 351
Liford's Case, 128, 160, 481
Lightfoot v. Tenant, 739
Lilly v. Hays, 748

Limpus v. General Omnibus Co., 848
Lincoln College Case, 593
Lindenau v. Desborough, 792
Lindgren v. Lindgren, 633
Lindsays v. Janson, 104
Lindus v. Bradwall, 842

v. Melrose, 593, 594
Line v. Stephenson, 652
Linnegar v. Hodd, 753
Lion (The), 575, 864
Lister v. Lobley, 5
Litt v. Martindale, 81, 755
Little v. Newton, 840
Littlefield v. Shee, 751
Livie v. Janson, 217
Liverpool (Mayor of) v. Chorley Water
Works Co., 7
Adelphi Loan Ass. v. Fair-
hurst, 696
Borough Bank v. Turner, 569
Liversedge v. Broadbent, 474, 475, 749
Llewellyn v. Jersey (Earl of), 630, 674

v. Llewellyn, 748
Lloyd v. Crispe, 248

v. General Iron Screw Collier
Co., 220

v. Guibert, 233, 542

v. Harrison, 93, 201

v. Jackson, 564

v. Jones, 920

v. Lloyd, 549

v. Oliver, 599

v. Pettijean, 521

v. Roberts, 948

v. Sandilands, 438
Lock v. Ashton, 124
v. Furze, 227

Lockett v. Nicklin, 885
Lockwood v. Wood, 682
Lofft v. Dennis, 232
Logan v. Bell, 558
v. Hall, 300
v. Le Mesurier, 238
London, Brighton, and South Coast R.

C. v. Goodwin, 475
London Gas Light Co. v. Vestry of

Chelsea, 548
London Grand Junction R. C. v. Free-
man, 631
London Loan, &c, Co. v. Drake, 419,

427, 429, 430, 495
London and North-Western R. C. v.

Lindslay, 117
London and South-Western R. C, app.,

Reeves, resp., 838
London (Mayor of) v. A.-G., 74

v. Cox, 950, 952
v. Parkinson, 571
v. Reg., 780
Long v. Orsi, 108

Longbottom v. Berry, 418, 420, 423, 425
Longmeid v. Holliday, 786, 861
Longstaff v. Meagoe, 425
Longworth v. Yelverton, 968
Lonsdale (Earl of) v. Rigg, 495
Lopez v. Burslam, 101
Lord v. Commissioners of Sydney, 479
v. Hall, 842
v. Lee, 875
Loring v. Warburton, 210
Losh v. Hague, 363
Lothian v. Henderson, 257, 258
Loukes v. Holbeach, 166
Love v. Pares, 603
Lovelock v. Franklyn, 250, 284
Lovick v. Crowder, 360
Low v. Little, 130
Lowe v. Steele, 108
Lowndes v. Lane, 770

v. Stamford (Earl of,, 737
Lowry v. Bourdieu, 257, 720
Lowthal v. Tonkins, 361
Lowther v. Radnor (Earl of), 88
Lozano v. Janson, 590
Lozon v. Pryse, 150
Lubbock v. Potts, 720
Lucan (Earl of) v. Smith, 322
Lucas v. Bristowe, 929
v. Nockells, 709
v. Worswick, 258, 260
Luckie v. Bushby, 343
Lucy v. Levington, 9, 205

v. Mouflet, 787
Lumley v. Dubourg, 123, 941

v. Gye, 208, 227, 846, 945
Lunn v. Thornton, 499, 502 ,
Lunt v. London and North-Western R.
C, 384, 389

TABLE OF CASES.

lvii

Lupton v. White, 286

Lyall v. Edwards, 646

Lyde v. Russell, 429

Lygo v. Newbold, 270, 391

Lyle v. Richards, 104, 618, 674

Lyme Regis (The Mayor, &c, of) v.

Henley, 205
Lyn v. Wynn, 30
Lynch v. Knight, 206, 207

v. Nurdin, 391
Lyndon v. Stanbridge, 651
Lyon v. Reed, 698
Lyons v. De Pass, 805

v. Martin, 848
Lysaght v. Bryant, 466
Lyth v. Ault, 749
Lythgoe v. Vernon, 169
Lyttleton v. Cross, 129, 945

M'Call v. Taylor, 599
M'Callan v. Mortimer, 182, 721
M'Cance v. London and North-Western

R. C, 172
M'Cann v. London and North- Western

R. 0., 294
McCarthy v. Decaix, 264
M'Clae v. Sutherland, 627
M'Donnel v. White, 892
M'Dougal v. Robertson, 906
M'Gahey v. Alston, 945
M'Gregor v. Barrett, 131
v. Graves, 759
v. Low, 724
v. Topham, 947
M'Guire v. Scully, 633
M'lleham v. Smith, 22
M'Intyre v. Belcher, 283
M'Kellar v. Wallace, 258
M'Kenna v. Pope, 90
M'Kinnon v. Penson, 205
M'Kune v. Joynson, 476
M'Lanahan v. Universal Insurance Co.,

826, 936
M'Lauglin v. Pryor, 853
M'Mahon v. Lennard, 945
M'Manus v. Bark, 745

v. Crickett, 848
M'Naughten's Case, 16
M'Neill v. Reid, 250
M'Pherson v. Daniells, 317
M'Swiney v. Royal Exchange Ass. Co.,

222
Macarthy v. Young, 392, 861
Macbeath v. Haldimand, 864
Macdonald v. Longbottom, 617
Macdougal i>> Paterson, 29, 574
Mace v. Cammel, 289
Macfarlane v. Taylor, 780

Machell v. Clarke, 468

Machu v. London and South-Western

R. C, 291
Mackally's Case, 22
Mackenzie v. Dunlop, 924

v. Sligo and Shannon R. C,
38
Mackersy v. Ramsays, 820
Mackintosh v. Marshall, 792

v. Midland Counties R. C,

548
v. Trotter, 420, 427
Maclae v. Sutherland, 868
Maclean v. Dunn, 871
Macrae v. Clarke, 201
Macrow v. Hull, 142
Mactaggart v. Watson, 704
Maddick v. Marshall, 832
Magdalen College (Case of), 73
Magee v. Atkinson, 663
Magnay v. Edwards, 548
Magrath v. Hardy, 945
Mainwaring v. Giles, 209
Maitland v. Mackinnon, 577
Malcolmson v. O'Dea, 964
Malins v. Freeman, 279
Mallalieu v. Hodgson, 725
Mallan v. May, 552, 741

v. Radloff, 661, 779
Mallory's Case, 710
Malpas v. London and South-Western

R. C, 885
Manby v. Bewicke, 894
v. Scott, 836
v. Witt, 320
Manchester R. C.,app., Fullarton, resp.,

368
Manchester, Sheffield and Lincolnshire

R. C. v. Wallis, 389
Mangan v. Atterton, 385, 391
Mangles v. Dixon, 472
Manley v. Boycot, 704, 885

v. St. Helen's Can. and R. C,
368
Mann v. Mann, 631

v. Pearson, 523
Manning v. Bailey, 424

v. Eastern Counties R. C, 950
v. Phelps, 895
v. Taylor, 564
Mansell v. Reg., 326
Mansfield (Earl of) v. Blackburne, 428,

430
Manton v. Bales, 142
Mardall v. Thellusson, 909
Mare v. Charles, 541
v. Malachy, 135
Marfell v. South Wales R. C, 389
Margetson v. Wright, 783
Marianna Flora (The), 378
Market Overt (Case of), 804, 805

TABLE OF CASES.

Markham v. Stanford, 699

Marks v. Lahee, 962

Marlborough (Duke of) v. Lord Godol-

phin, 127, 489
Marriott v. Hampton, 256, 332

v. Stanley, 385
Marsden v. City and County Ass. Co.,
217, 219
v. Moore, 549
Marsh v. Higgins, 38

v. Keating, 211, 827
v. Loader, 316
Marshall, app., Brown, resp., 727
v. Broadhurst, 907
v. Lamb, 93
v. Lynn, 888, 889
v. Nicholls, 210
Marshalsea Case, 93
Marson v. Short, 252
Marston v. Downes, 942
Martin v. Andrews, 81

v. Great Northern R. C, 139, 385
v. Hewson, 721
v. Lee, 554
v. Mackonochie, 930
v. Morgan, 260
v. Pycroft, 609, 885
v. Reid, 477, 690, 817
v. Roe, 420, 421, 916
v. Strachan, 714
v. Temperley, 845
Martindale v. Booth, 289

v. Falkner, 254
Martindale v. Smith, 693
Martinez v. Gerber, 206
Martyn v. Clue, 476
v. Gray, 293
v. Williams, 476
Marzetti v. Williams, 201, 202
Mason v. Bradley, 155
v. Hill, 374
v. Keeling, 393
v. Mitchell, 731
Massey v. Goodall, 767
v. Johnson, 883
v. Sladen, 109
Master v. Miller, 84, 154, 475
Master's Clerk Case, 840
Masters v. Ibberson, 733
v. Johnson, 351
v. Lewis, 168
Mather v. Frazer, 417, 421, 422, 423,
425, 426, 655
v. Maidstone (Lord), 718, 754
v. Thomas, 165
Mathew v. Blackmore, 652
Matthews v. Discount Corp., 204

v. Gibson, 167
Mattison v. Hart, 574
Maugham v. Sharpe, 503, 624
Mawson v. Blane, 867

Maxted v. Paine, 927

May v. Burdett, 393
v. Chapman, 718
v. Seyler, 754

Mayer v. Harding, 252
v. Isaac, 598

Mays v. Cannell, 550

Mears v. London and South Western R.
C., 397

Meath (Bishop of) v. Winchester (Mar-
quis of), 102

Meddowcroft v. Huguenin, 342, 954

Medina v. Sloughton, 801

Medway Navigation Co. v. Romney
(Earl of), 144, 204

Medwin v. Streeter, 873

Meeus v. Thellusson, 114

Mellersh v. Rippen, 165

Mellin v. Evans, 351

Mellish v. Richardson, 134

Mellors v. Shaw, 853, 860

Melville v. Doidge, 368
v. De Wolf, 250

Melville's (Lord) Trial, 939

Mercer v. Woodgate, 387

Merchant Tailors' Co. v. Truscott, 33

Meriton v. Coombs, 441

Merrill v. Frame, 652

Merry v. Green, 355, 807

Merryweather v. Nixon, 728

Mersey Dock Board v. Penhallon, 7,
378, 384, 863

Mersey Dock Trustees v. Gibbs, 7, 121,
180, 200, 378, 384, 863

Mersey Docks v. Cameron, 72

Messenger v. Andrews, 173, 711

Messent v. Reynolds, 652

Metropolitan Association v. Petch, 397

Metropolitan Board of Works v. Metro-
politan R. 0., 370

Metropolitan Counties Assurance Co. v.
Brown, 426

Metzner v. Bolton, 927

Mews v. Carr, 819

Meyer w. Haworth, 751, 762

Michell v. Brown, 29, 30
v. Williams, 105

Micklethwait v. Micklethwait, 577
v. Winter, 400

Middleton v. Barned, 947

v. Crofts, 29, 267
v. Melton, 961, 963

Midland R. C. v. Daykin, 389

Midland R. C, app., Pye, resp., 39

Midland Great Western R. C. v. John-
son, 263

Milan (The), 386, 390

Milbourn v. Ewart, 126

Mildmay's Case, 449

Mildmay v. Hungerford, 263

Miles v. Bough, 123, 840

TABLE OF CASES.

lix

Miles v. Schilizzi, 778
v. Williams, 123
Millar v. Taylor, 194
Millen v. Hawery, 304
Miller v. Knox, 486

v. Lawton, 486
v. Mainwaring, 594
v. Race, 808

v. Salomons, 44, 83, 148, 575
v. Tetherington, 926
Milligan v. Wedge, 614, 615, 633, 634,

636, 850, 863
Mills v. Alderbury Union, 258
v. Farmer, 566
v. Fowkes, 810, 811
v. Gibson, 702
v. Holton, 851
v. Ladbroke, 548
v. Wright, 581
Millward v. Littlewood, 749
Milne v. Leister, 965

v. Marwood, 789
Milner v. Field, 343
Milnes v. Dawson, 503

v. Duncan, 259, 333
Miner v. Gilmour, 144
Minshall v. Lloyd, 417, 418, 420, 427

v. Oakes, 344
Mirehouse v. Rennell, 149, 186
Mirfin v. Attwood, 32
Mitcalfe v. Westaway, 466
Mitchell v. Crassweller, 847
v. Darthez, 654, 657
v. Jenkins, 317
v. Newhall, 778
Mitcheson v. Nicol, 868
Mittelholzer v. Fullarton, 735
Mody v. Gregson, 661, 779, 781
Moens v. Heyworth, 785
Moffat v. Dixon, 834
v. Laurie, 662
v. Parsons, 820
Molineux v. Molineux, 676
Mollett v. Wackerbath, 155
Molton v. Camroux, 297
Mondel v. Steel, 339, 659
Money v. Jordan, 294
Monke v. Butler, 945
Monkman v. Shepherdson, 751
Montague v. Benedict, 836
Montefiore v. Lloyd, 618, 621
Montefiori v. Montefiori, 738
Montoya v. London Ass. Co., 224
Monypenny v. Deering, 566

v. Monypenny, 652
Moon v. Durden, 37

v. Witney Union, 662
Moone v. Rose, 302
Moor v. Roberts, 122

v. Watts, 338
Moore's Case, 22

Moore v. Bushell, 755

v. Campbell, 889, 890, 927
v. Foster, 601
v. M'Grath, 649
v. Phillips, 37
v. Rawlins, 646
Moorhouse v. Lord, 76
Moorsom v. Kymer, 657
Morant v. Chamberlain, 378
Moravia v. Sloper, 96, 952
Morden, app., Porter, resp., 307
Morgan v. Abergavenny (Earl of), 355
v. Bissell, 546
v. Bridges, 287
v. Couchman, 169, 294
v. Evans, 787
v. Marquis, 456
v. Morris, 125
v. Nicholl, 340, 955
v. Price, 337
v. Ravey, 907, 915
v. Seaward 56, 552
v. Sim, 390
v. Thomas, 911
v. Vale of Meath R. C, 854
v. Whitmore, 943
Morley v. Attenborough, 799, 801

v. Boothby, 888
Morrall v. Sutton, 583
Morrell v. Fisher, 630, 631, 643
v. Frith, 104
v. Martin, 93
Morrice v. Langham, 556
Morris v. Barrett, 22
v. Bethell, 173
v. Blackman, 489
v. Cleasby, 822
v. Davis, 947
v. Edington, 485
v. Matthews, 240
v. Morris, 406
v. Ogden, 945
v. Parkinson, 88
v. Pugh, 130
Morrish v. Murrey, 138, 440, 787
Morrison v. Chadwick, 698

v. General Steam Navigation

Co., 386, 390
v. Manley, 23
Morten v. Marshall, 700
Mortimer v. Cradock, 355, 939
v. Hartley, 592
v. South Wales R. C, 333
Mortimore v. Wright, 535, 753
Morton, app., Brammer, resp., 146

v. Woods, 582
Moseley v. Motteux, 493, 542, 648
Moses v. Macfarlane, 81, 333
Mosley v. Massey, 630
Moss v. Gallimore, 359
v. Hall, 748

Ix

TABLE OF CASES

Mostyn v. Coles, 142

v. Fabrigas, 86, 127

v. Mostyn, 636, 637
Moule v. Garrett, 706
Mounsey v. Ismay, 380, 920
Mount v. Taylor, 32
Mountcashel (Earl of) v. Barber, 758,

868
Mountjoy v. Wood, 73
Mouse's Case, 11
Mousley v. Ludlam, 920
Moverley v. Lee, 686
Muggleton v. Barnett, 356
Mulcahy v. Reg., 313, 326
Mullett v. Mason, 228
Mumford v. Hitchcocks, 223

v. Oxford, Worchester and
Wolverhampton R. C. 379, 397
Mummery v. Paul, 785, 788
Muncey v. Dennis, 413, 414
Munday v. Stubbs, 93
Munden v. Brunswick (Duke of), 48
Munn v. Baker, 598
Munro v. Munro, 517
Munroe v. Bordier, 754
Munt v. Stokes, 719
Murch v. Marchant, 583
Murchie v. Black, 196
Murphy v. Glass, 601, 603

v. Caralli, 851

v. Smith, 854
Murray v. Mann, 785, 790, 794

v. Reg., 572

v. Walter, 251
Mutual Guarantee Co. v. Froane, 881

N.

Nadin v. Battie, 126
Nanney v. Gore, 950
Napier v. Bruce, 578, 647
Nash v. Armstrong, 748

v. Brown, 629

v. Lucas, 436
Natal Land, &c, Co. v. Good, 955
National Guaranteed Manure Co.

Donald, 492
Naylor v. Palmer, 222
Nazer v. Wade, 125
Neat v. Harding, 803
Needham v. Bremmer, 334, 836, 956
Neilson v. Harford, 104, 552
Neilson's Patent, 552
Nelson (Earl) v. Bridport (Lord), 937

v. Couch. 331
Nepean v Doe, 895
Nerot v. Wallace, 249
Ness v. Angas, 172
Nettleton, app., Burrell, resp., 241
Neve v. Hollands, 762

Newberry v. Colvin, 845
Newborough (Lord) v. Schroder, 596
Newbould v. Coltman, 88
Newcastle (Corporation of) v. The Att.

Gen., 683
Newmarch v. Clay, 810
Newton v. Belcher, 254

v. Boodle, 134, 241
v. Chantler, 309
v. Cowie, 148
v. Ellis, 848, 864
v. Grand Junction R. C, 363
v. Harland, 440
v. Holford, 664
v. Liddiard, 254
v. Lucas, 634
v. Rowe, 188
v. Ricketts, 655, 934
v. Rouse, 694
v. Vaucher, 363
Nichol v. Godts, 609
Nicholl v. Allen, 205, 707
Nicholson v. Gooch, 723, 734

v. Lancashire and Yorkshire

R. C, 383, 389
v. Mounsey, 850
v. Paget, 598
v. Revill, 704
Nickels v. Atherstone, 291, 698

v. Ross, 56
Nicoll v. Chambers, 637

v. Glennie, 873
Nightingall v. Smith, 632
Nind v. Marshall, 648
Nixon v. Freeman, 435
Noble v. National Discount Co., 748
v. Noble, 254
v. Ward, 888, 890
Nokes's Case, 652
Norden's Case, 942
Nordenstrom v. Pitt, 763
Norfolk (Duke of) v. Worthy, 771, 822
Norman v. Thompson, 602
Norris v. Baker, 397

v. Irish Land Co., 203
v. Norris, 503
North (Lord) v. Ely (Bishop of), 577

v. London and S.-Western R. C,

301
v. Smith, 368
North British Insurance Co. v. Lloyd,
792, 795
British R. C. v. Tod, 674
Eastern R. C. v. Elliott, 196
Stafford Steel Co. v. Ward, 653
Western R. C. v. Whinray, 647
Northam v. Hurley, 204
Northampton Gas Light Co. v. Parnell,

737
Northumberland (Duke of) v, Errington,
580

TABLE OF CASES,

lxi

Norton v. PoweH, 24

Norwich v. Pearse, 969

Norwood v. Read, 908

Notman v. Anchor Ass. Co., 333, 598

Nottidge v. Pritchard, 816

Novello v. Sudlow, 193

Nunn v. Varty, 918

Nurdin v. Fairbanks, 143

Nuttall v. Bracewell, 144, 375

0.

Oakeley v. Pasheller, 704

Oakes v. Turquand, 743

Oakley v. Portsmouth and Ryde Steam

Packet Co., 230
Oates v. Hudson, 273
O'Brien v. Bryant, 318

v. Clement, 318
Ockford v. Freston, 299
O'Connell v. Reg., 141, 312, 313, 349
O'Conner v. Bradshaw, 725
O'Flaherty v. M'Dowell, 29, 570
Ogden v. Graham, 670
Ogle v. The Earl Vane, 890
Oglesby v. Yglesias, 823
Ohrby v. Ryde Commissioners, 7
Oland's Case, 409
Oldershaw v. King, 540
Oliver v. Fielding, 551
Ollivant v. Bailey, 661, 779
Ollive v. Booker, 551
Onions v. Bowdler, 893

Onslow v. , 416

Organ v. Brodie, 485

Orme v. Broughton, 906

Ormerod v. Chadwick, 631

Ormond v. Holland, 854, 860

Ormrod v. Huth, 796

Osborn v. London Dock Co., 969

v. Wise, 485
Osborne's Case, 686
Osborne v. Williams, 729
Osman v. Sheaf, 543
Ostler v. Cooke, 6, 93
Ostsee (The), 390
O'Toole v. Browne, 503
Oulds v. Harrison, 503, 741
Outram v. Morewood, 336, 710
Overton v. Harvey, 330, 851
Owen v. Homan, 704
Owen v. Smith, 681

v. Thomas, 625

v. Wilkinson, 344
Oxley v. Watts, 302

P.

Pacific Steam Navigation Co. v. Lewis,

660
Packer v. Gibbins, 232

Packington's Case, 405
Paddock v. Forester, 678
v. Fradley, 618
Paddon v. Bartlett, 36
Padmore v. Lawrence, 106, 320, 322
Padwick v. Knight, 918
Page v. Eduljee, 693

v. Moore, 142
Paget v. Foley, 33

v. Wilkinson, 800
Paine v. Patrick, 712
Painter v. Abel, 755

v. The Liverpool Gas Co., 89,
115
Palgrave v. Wyndham, 910
Palk v. Force, 678
Palmer v. Blackburn, 663
v. Evans, 866
v. Gooden, 629
v. Moxon, 626
Palyart v. Leckie, 720 \
Pannell v. Mill, 494, 545
Panton v. Holland, 197, 378

v. Williams, 106
Paradine v. Jane, 232, 243
Pardington v. South Wales R. C, 270,

385
Pargeter v. Harris, 184, 469
Paris v. Levy, 320
Parke v. Harris, 624
Parker v. Bristol and Exeter R. C, 273,
274, 276
v. Crouch, 37
v. Great Western R. C, 274, 276,

606
v. Green, 969
v. Ibbotson, 104
v. Kett, 841
v. Marchant, 634
v. Patrick, 806
v. Rolls, 463
v. Tootal, 555, 564
v. Winlow, 823
Parkes v. Prescott, 866
Parkhurst v. Smith, 545, 580
Parkinson v. Lee, 660, 777, 779
Parmiter v. Coupland, 106, 318, 322
Parnaby v. Lancaster Canal Co., 384
Parrett Navigation Co. v. Robins, 607
Parrott v. Anderson, 819, 820
Parry v. Croydon Commercial Gas and
Coke Co., 30
v. Jones, 21
v. Nicholson, 155
Parsons v. Sexton, 661

v. St. Matthew's, Bethnal Green,

863
v. Thompson, 734
Parton v. Crofts, 867
Partridge v. Scott, 369, 371
Pasley v. Freeman, 193, 785

TABLE OF CASES

Patent Bottle Envelope Co. v. Seymer,

363
Pater v. Baker, 322
Paterson v. Grandasequi, 822, 823

v. Wallace, 858
Patmore v. Colburn, 886
Patrick v. Colerick, 303

v. Commercial Insurance Co.,

219
v. Reynolds, 834
v. Shedden, 342
Patten v. Rea, 847
Pattison v. Jones, 320
Paull v. Simpson, 279
Pawson v. Watson, 797
Paxton v. Popham, 726, 734
Payler v. Homersham, 578, 646
Payne v. Burridge, 272

v. New South Wales, &c, Steam
Navigation Co., 765
Paynter v. Williams, 757
Peaceable v. Watson, 963
Peachey v. Rowland, 848, 851
Peacock, app., Reg., resp., 23
v. Bell, 952
v. Stockford, 681
Peake t». Screech, 680
Pearce v. Brooks, 739
Peardon v. Underhill, 647
Pearse v. Robins, 351
Pearson v. Dawson, 169

v. Hull Local Board of Health,

593
v. Lemaitre, 322
v. Spencer, 481. 485
Pease v. Chayter, 86, 89, 338

v. Gloahec, 471
Peate v. Dicken, 24, 749
Peck v. Boyes, 105

Pedder v. Mayor, &c, of Preston, 344
Pedley v. Goddard, 626
v. Davis, 88, 89
Peek v. North Staffordshire R. C, 926
Peer v. Humphrey, 359, 802, 806
Pell v. Linnell, 242
Pemberton v. Chapman, 910

v. Oakes, 814
Pennell v. Deffell, 814

v. Reynolds, 309
Penney v. Slade, 167
Penny v. Brice, 904
v. Innes, 344
Penrose v. Martyr, 541
Penruddocke's Case, 369, 396
Penton v. Browne, 438, 440
v. Robart, 428, 430
Peppercorn v. Hofman, 98

v. Peacock, 681
Percival v. Nanson, 961
v. Oldacre, 768
v. Stamp, 22, 302, 436, 439

Perkins v. Smith, 843

Perkinson v. Guildford, 909

Perren v. Monmouthshire Railway and

Canal Co., 238, 368
Perrin v. Blake, 451
Perrott v. Palmer, 403

v. Perrott, 261
Perry v. Attwood, 258, 890
v. Davis, 139
v. Fitzhowe, 279, 440
v. Skinner, 39, 574, 586
v. Watts, 544
Perth Peerage (The), 937
Peshall v. Layton, 837
Petch v. Lyon, 294

v. Tutin, 500, 653
Peter v. Daniel, 541
Peters v. Clarson, 301
Peto v. Blades, 800
Petrie v. Hannay, 735
v. Nuttall, 957
Pettamberdass v. Thackoorseydas, 37
Pettitt v. Mitchell, 662
Peytoe's Case, 879, 8§1
Peyton v. London (Mayor, &c, of), 369
Phelps v. Prothero, 351
Phene v. Popplewell, 698
Pheysey v. Vicary, 483
Philips v. Barber, 590, 921
Philipson v. Egremont, (Earl of), 342,

736
Phillips v. Ball, 921

v. Briard, 929

v. Bucks (Duke of), 771

v. Edwards, 598

v. Evans, 92

v. Eyre, 42, 86, 122, 350

v. Hunter, 333

v. Im Thurn, 173

v. Innes, 25, 695

v. Nairne, 218, 222, 224

v. Naylor, 199

v. Phillips, 269, 357, 456

v. Smith, 404

v. Ward, 337
Philpott v. Jones, 812, 815

v. Kelly, 904

v. St. George's Hospital, 727

v. Swann, 224
Philpotts v. Philpotts, 727
Phipps v. Ackers, 139
Phipson v. Harvett, 28
Piatt v. Ashley, 680
Pickard v. Sears, 291

v. Smith, 848, 851, 862
Pickering v. Dowson, 788

v. Ilfracombe R. C, 742
v. Rudd, 397
Pickford v. Grand Junction R. C, 276,

821
Pidgeon v. Burslem, 741

TABLE OF CASES.

lxiii

Piers v. Piers, 507, 947

Piggot v. Eastern Counties R. C, 209,
367

Pigot's Case, 154, 741

Pike v. Carter, 88
v. Hoare, 185

Pilbrow's v. Pilbrow's Atmospheric R.
C, 182, 744

Pilgrim v. Southampton and Dorches-
ter R. C, 7

Pilkington v. Cooke, 31

Pillans v. Van Mierop, 745

Pilmore v. Hood, 785, 787, 788

Pim v. Curell, 957

Pindar v. Ain'sley, 232

v Wadsworth, 144, 203

Pinel's Case, 890

Pinhorn v. Souster, 37

Pinington v. Galland, 480

Pitcher v. King, 88

Pitt v. Coombes, 277
v. Donovan, 322
v. Pitt, 713

Place v. Potts, 330, 342

Plant v. Taylor, 961

Plasterers' Co. v. Parish Clerks' Co.,
382

Plate Glass Co. v. Meredith, 2, 7

Piatt v. Broraage, 256

Play fair v. Musgrove, 861

Playford v. United Kingdom Telegraph
Co., 755

Plenty v West, 503, 583

Plumer v. Brisco, 940

Pochen v. Duncombe, 684

Pocock v. Pickering, 572

Polden v. Bastard, 481

Pole v. Cetcovitch, 245
v. Harrobin, 734

Polhill v. Walter, 790, 796, 797, 823,
825

Pollard v. Ogden, 817

Pollen v. Brewer, 441

Pollitt v. Forest, 624

Pollock v. Stables, 927

Pomfret v. Ricroft, 482

Pontifex v. Bignold, 204, 785

v. Wilkinson, 783, 888

Poole v. Dicas, 965

(Mayor of) v. Whitt, 282

v. Poole, 560, 576

v. Tunbridge, 883

v. Whitcombe, 142, 254

Pooley v. Brown, 253, 778

v. Harradine, 704, 886

Pope v. Bavidge 249
v. Fleming, 297

Popham v. Pickburn, 322

Popplewell v. Hodkinson, 197, 372

Pordage v. Cole, 549, 667

Porter v. Bradley, 159

Portington's Case, 446, 450
Portland (Duke of) v. Topham, 490
Portman v. Mjddleton, 227
Portsmouth Floating Bridge Co. v.

Nance, 604
Portugal (The Queen of) v. Glyn, 839
Potez v. Glossop, 943
Potter v. Faulkner, 270, 368, 391, 860
Poulsum v. Thirst, 100
Poulton v. London and South-Western

R. C, 821, 844
Pounsett v. Fuller, 227
Powell, app., Borraston, resp., 428
v. Divett, 155
v. Edmunds, 659
v. Graham, 908
v. Gudgeon, 219
v. Hoyland, 278
v. Rees, 914
v. Salisbury, 208
v. Sonnett, 944
Power v. Barham, 777, 782
Powley v. Walker, 767
Prehn v. Royal Bank of Liverpool, 201,

226
Prendergast v. Prendergast, 464
Prentice v. Harrison, 93
Preston v. Liverpool and Manchester
R. C, 735
v. Merceau, 658
v. Norfolk R. C, 202
v. Peeke, 333
Prestwich v. Poley, 139
Price v. Barker, 578, 704
v. Carter, 294
v. Easton, 748
v. Great Western R. C, 653
v. Green, 741
v. Groom, 292, 499
v. Kirkham, 704
v. Macaulay, 782
v. Messenger, 98
v. Moulton, 337
v. Peek, 837
v. Seaman, 475
v. Torrington (Earl of), 964
v. Williams, 596
v. Wodehouse, 302, 303
v. Worwood, 490, 943
Prichard v. Powell, 160
Prideaux v. Bunnett, 660, 661
Priestley v. Foulds, 604, 707

v. Fowler, 786, 853, 858
Priestly v. Fernie, 347
Prince v. Clarke, 869

v. Nicholson, 675
Pring, app., Estcourt, resp., 241
Prior v. Hembrow, 908

v. Wilson, 322
Prituhard v. Merchants' Life Insurance
Co., 262

lxiv

TABLE OF GASES.

Pritchett v. Smart, 969
Proctor v. Hodgson, 481, 485

v. Mainwaring, 572
Prohibitions (The Caseiof), 49, 117
Prole v. Wiggins, 734
Prosser v. Wagner, 957
Proudfoot v. Montefiore, 844
Prowse v. Loxdale, 340
Pryce v. Belcher, 194
Pugh v. Griffith, 437, 438

v. Stringfield, 541, 548
Pullen v. Ready, 263
Purnell, app., Wolverhampton New

Waterworks Co., resp., 29
Purves v. Landell, 108
Pusey v . Desbouverie, 166, 264
Pybus v. Gibbs, 35
Pyer v. Carter, 481
Pym v. Campbell, 664

v. Great Northern R. C, 210, 912
Pyne v. Dor, 405

Q.

Quarman v. Burnett, 844, 850, 853, 864
Quick v. Ludborrow, 908
Quicke v. Leach, 556

R.

Rackham v. Marriott, 104
Raffles v. Nichelhaus, 608
Railton v. Matthews, 795
Ralston v. Hamilton, 151, 561

v. Smith, 38
Ramazotti v. Bowring, 293, 822
Ramsden v. Dyson, 136, 174
Rand v. Green, 638
Randall v. Roper, 227
Randell v. Trimen, 227, 790, 799, 826
Ranger v. Great Western R. C, 118,

119, 847
Ranklin v. Scott, 358
Rann v. Hughes, 753
Raphael v. The Bank of England, 717

v. Goodman, 837
Rapson v. Cubitt, 850, 864
Rashleigh v. South Eastern R. C, 548

652
Ratcliffe's Case, 527, 532
Ratcliffe v. Burton, 436, 437
Rawlings v. Bell, 791, 797
Rawlins, app., West Derby (Overseers
of), resp., 23
v. Ellis, 22
Rawlinson v. Clarke, 881
Rawlyn's Case, 468
Rawson v. Haigh, 966
Rawstron v. Taylor, 198, 374

Ray v. Jones, 544
Raymond v. Fitch, 205

v. Minton, 284
Rayner v. Grote, 295, 599
Re Attenborough, 477
Baker, 348
Barker, 675
Barronet, 267
Single, 156
Brenan, 945
Brook, 113, 114
Camberwell Rent-Charge, 116
Chandler, 117
Coombs, 119, 273
Cuckfield Burial Board, 73
De Lancey, 127
Dimes, 117

Don's estate, 505, 515, 517, 521
Egginton, 22
Fernandez, 968
Hammersmith Rent-Charge, 113,

116, 574
Hopper, 92
Humphreys, 307
Islington Market Bill, 64
Laws, 5
Mansergh, 101
Mexican and South American Co.,

968
Micklethwait, 571
Newton, 92, 348
Ollerton, 117
Penny, 198
Pyne, 168
Stroud, 595, 926
Thompson, 694

Underwood v. Bedford and Cam-
bridge R. C, 120
Warne, 952
Rea v. Sheward, 304
Read v. Edwards, 393

v. Great Eastern R. C, 913
v. Legard, 535
Reade v. Conquest, 325
Readhead v. Midland R. C, 238, 668, 780
Reason v. Wirdnam, 746
Reay v. Richardson, 885
Rebeckah (The), 608
Redman v. Wilson, 218
Redmond v. Smith, 740
Reed v. Jackson, 334, 945

v. Lamb, 943
Reedie v. London and North-Western

R. C. 851, 862
Rees v. Watts, 343
Reese River Silver Mining Co. v. Smith,

732, 743, 798
Reeve v. Palmer, 368

v. Whitmore, 500
Reeves v. Hearne, 761
v. White, 210

TABLE OF CASES.

lxv

Reg. v. Abbott, 211

, Aberdare Canal Co., 119
Alleyne, 733

Ambergate, &c, R. C, 241, 914
Anderson, 100
Austin, 71
Badger, 87
Bakewell, 5
Bamber, 231
Beadle, 73
Bennett, 229
Bertrand, 110
Betts, 146, 378
Bird, 347

Birmingham (Inhabit, of), 703
Birmingham (Overseers of), 962
Blake, 966
Blakemore, 733
Bolton, 88
Boys, 968, 970

Bradford Navigation Co., 379
Brighton (Inhabit, of), 505
Brimilow, 317
Broadhempston (Inhabit, of),

541, 944
Brown, 680
Bryan, 211
Burgon, 211
Button, 347

Caledonian R. C, 247, 664, 674
Cambridge (The Recorder of), 119
Canterbury (Archbishop of),

113, 683,878
Casterton (Inhabit, of), 681
Chadwick, 515
Charlesworth, 146, 349
Cheeseman, 310

Cheltenham Commissioners, 120
Christchurch (Inhabit, of), 38
Cleworth, 23, 651
Coaks, 244
Collins, 310,314
Combs, 703
Cross, 970

Darlington Board of Health, 200
Deane, 30, 281
Denbighshire (The Justices of),

134
Denton (Inhabit, of), 31, 46
Dring, 876
Drury, 349

Dulwich College, 682, 839
Eagleton, 211, 313
East Mark, 66

Eastern Archipelago Co., 56
Eastern Counties R. C, 6
Edmundson, 651
Edwards, 71, 129
Eldershaw, 317
Ellis, 173
Elrington, 349

Reg. v. Essex, 945

v. Essex (Commissioners of Sew-
ers), 231
v. Evans, 169

v Exeter (Chapter of), 946, 962
v. Fontaine Moreau, 954
v. Fordingbridge (Inhabit, of), 944
v. Fretwell, 324
v. Fulford, 950
v. Gardner, 230, 313
v. Garrett, 314

v. Gate Fulford (Inhabit, of), 950
v. Gaunt, 348
v. Gillyard, 112, 971
v. Gompertz, 349
v. Goodall, 627
v. Goss, 211
v. Grant, 89

v. Great Western R. C, 117, 244
v. Green, 349
v. Groombridge, 317
v. Hapgood, 310
v. Hardey, 733
v. Hemsworth, 350
v. Hertfordshire (Justices of), 120
v. Hickling (Inhabit, of), 89, 307,

309
v. Higginson, 16
v. Hopkins, 177
v. Hughes, 230, 930
v. Jones, 840
v. Jordan, 317
v. Keighley, 211
v. Kenrick, 211
v. Knight, 347
v. Lancashire and Yorkshire R. C,

244
v. Lee, 211, 418, 420
v. Leeds and Bradford R. C, 41
v. Leicestershire (The Justices of),

240
v. Leigh, 231

v. Leominster (Inhabs. of), 22
v. Lewis, 100
v. London and North-Western R.

C, 244
v. London (Justices of), 121
v. London (Mayor of), 28, 29
v. Lords of the Treasury, 258
v. Lovett, 308
v. Lowe, 168
v. Lyme Regis, 946
v. M'Cann, 72
v. M'Pherson, 310
v. Machin, 318

v. Madeley (Inhabitants of), 37
v. Manchester and Sheffield R. C.

120
v. Manwaring, 507, 947
v. Martin, 230, 313
v. Mellor, 639

lxvi

TABLE OF CASES

Reg. v

, Metropolitan Board of Works

207
Mill, 39
Millis, 141, 250, 505, 507, 521.

569
Moah, 348
Morris, 349, 350
Murphy, 111

Newmarket R. C, 9, 839
Newborough (Lord), 182
Oxley, 627
Paty, 953
Parker, 629
Perkin, 840
Philips, 317
Pocock, 230
Povey, 938
Powell, 946
Pratt, 325
Prince, 865
Ragg, 211
Rand, 117, 119
Regent's Canal Co., 674
Renton, 62
Riley, 310
Roberts, 313
Robinson, 970
Rochester (Dean of), 117
Roebuck, 211
Rotherton, 627
Russell, 146, 330
Sadlers' Co., 113, 298
Sandwich (The Mayor of), 294
Scott, 970
Sharpe, 19
Silkstone, 627, 951
Skeen, 970
Smith, 324

South-Eastern R. C, 244
St. Edmund's, Salisbury, 28, 30
St. Margaret's, Westminster, 680
St. Mary Magdalen, 944
St. Marylebone, 744
St. Mary's, Warwick, 142, 965
St. Mary's, Whitechapel, 38
St. Michael's, Southampton, 946
St. Paul's, Covent Garden, 944
Stainer, 742

Stainforth (Inhabitants of), 97
Stephens, 866
Stoke-upon-Trent, 662
Stokes, 92
Strahan, 971
Stretfield, 631

Suffolk (Justices of), 30, 121
Surrey (Justices of), 121
Sussex (Justices of), 139
Taylor, 177

Tewkesbury (Mayor of), 254
Thomas, 307
Thompson, 31

Reg. v. Tooley, 96

v. Totness (Inhabitants of), 97,

115, 951
v. Train, 204

v. Upton St. Leonard's, 129
v. Walcot (Overseers of), 163
v. Warwickshire (Justices ofj, 944
v. Waverton, 675
v. West Riding (Justices of), 330
v. Whitely, 24

v. Whitnash (Inhabitants of), 24
v. Wilcock, 631
v. Woodrow, 150, 307
v. Wooldale (Inhabitants of), 618,

626, 686
v. Worth (Inhabitants of), 965
v. York, Newcastle, and Berwick

R. C, 244
v. York and North Midland R. C,
244
Reid v. Hoskins, 245, 250, 285
Reis v. Scottish Equitable Life Assur-
ance Society, 886
Remfry v. Butler, 273
Rendall v. Hayward, 108
Rennell v. Lincoln (Bishop of), 891
Rennie v. Clarke, 834
v. Ritchie, 455
Revis v. Smith, 199
Rew v. Barber, 799
Reward (The), 146, 740
Rex v. All Saints, Southampton, 950
v. Almon, 84"
v. Amery, 64
v. Antrobus, 14
v. Aslett, 30, 33
v. Bailey, 268
v. Bellringer, 931
v. Benn, 313, 486
v. Birchenough, 347
v. Birmingham, 514
v. Butler, 54

v. Cambridge (University of), 113
v. Carlisle, 334
v. Chester (Bishop of), 163
v. Chilverscoton, 178, 681

Copland, 74
v. Cotton, 71
v. Croke, 6

v. Cunningham, 665, 666
v. Davie, 682
v. Davis, 31
v. Dixon, 309
v. Dover (Mayor of), 188
v. Edwards, 242
v. Eriswell, 140
v. Esopp, 268
v. Eve, 262
v. Farrington, 309
v. Fillongley, 744
v. Garbet, 968

TABLE OF CASES.

lxvii

Rex v. Gaskin, 113

Rex v. Williams, 79

v. Gill, 313

v. Woodfall, 307

v. Hall, 575, 687

v. Woodland, 665

v. Harris, 66

v. Wright, 73

v. Harvey, 309, 317

v. Yarborough (Lord), 165

v. Haslingfield, 949

v. Younger, 24

v. Hellings, 951

Reynell v. Lewis, 831

v. Higgins, 309

v. Sprye, 728, 731, 782

v. Holm, 951

Reynolds v. Barford, 594, 597

v. Hoseason, 117

v. Clarke, 396, 398

v. Hulcott, 951

v. Fenton, 114

v. Jarvis, 677, 679

v. Kennedy, 105

v. Johnson, 78, 87, 573

v. Wheeler, 758

v. Jones, 307

Rhadamanthe (The), 358

v. Jukes, 677

Rhodes v. Haigh, 906

v. Kempe, 54

v. Smethurst, 904

v. Kenrick, 312

Ribbans v. Crickett, 815

v. Kent (Inhabitants of), 707

Ribble Navigation Co. v. Hargreaves,

v. Larking. 71

604

v. London (Bishop of), 252

Ricard v. Williams, 948

v. London (Mayor of), 607

Ricardo v. Garcias, 338

v. Loxdale, 183

Rice v. Shepherd, 535

v. Lyme Regis, 946

Rich v. Basterfield, 862

v. Mahon, 349

v. Jackson, 658

v. Marsh, 307

Richards v. Bluck, 579

v. Marshiter, 682

t;. Davies, 560, 563

v. Meredith, 312

v. Dyke, 30

v. Middlesex (Justices of), 33

v. Harper, 194

v. Middlesex (Registrar of), 673

v. Heather, 162

v. Moore, 308

v. James, 360

v. North Nibley, 664

v. Johnston, 291

v. Nottingham Waterworks Co.,

v. Morgan, 955

946

v. Rose, 196, 370, 480

v. Oneby, 324

Richardson v. Barnes, 188

v. Osbourne, 682

v. Dubois, 535, 836

v. Otley (Inhabitants of), 421

v. Dunn, 228, 787

v. Owen, 317

v. Langridge, 691

v. Pease, 394

v. Mellish, 720

v.Poole, 111

v. Power, 554, 561

v. Poor Law Commissioners, St.

v. Watson, 612, 615, 637

Pancras, 586

Richmond v. Nicholson, 914

v. Richards, 681

R. C. v. Louisa R. C, 482

v. Robinson, 573

v. Smith, 709

v. Sainsbury, 307

Richards v. Murdock, 935

v. Salway, 930

Rickett v. Metropolitan R. C, 207, 397

v. Scofield, 309

Ricketts v. Bennett, 834

v. Seward, 313

v. East and West India Docks,

v. Sloper, 70

388

v. Somerset (Com. of Sewers), 230

v. Weaver, 905

v. Southerton, 130

Riddell v. Sutton, 909

v. St. Dunstan, 423

Ridgway v. Wharton, 673, 871

v. St. Mary's, Leicester, 681

Ridley v. Gyde, 966

v. Stockton, 944

Rigby v Great Western R. C, 547

v. Upton Gray, 178

v. Hewitt, 386

v. Vandercomb, 347

Rigg v. Burbidge, 339

v. Verelst, 945

v. Lonsdale (Earl of), 355

v. Ward, 205, 378

Right v. Compton, 591

v. Westwood, 168, 484

Riley v. Baxendale, 858

v. Whitchurch, 178

v. Packington, 832 ^

v. Whitnash (Inhabitants of), 24

Ring v. Roxburgh, 628

v. Wilkes, 84, 434

Ringer v. Cann, 655

IXVlll

TABLE OF CASES.

Ringland v. Loundes, 171
Rippinghall v. Lloyd, 879
Risbourg v. Bruckner, 499, 822
Riseley v. Ryle, 133
Rishton v. Cobb, 633
Risney v. Selby, 782
Ritchie v. Atkinson, 551

v. Smith, 732, 741
Rivers v. Griffiths, 174
Rix v. Borton, 28
Rizzi v. Foletti, 123
Robarts v. Tucker, 808
Robbins v. Fennell, 755

v. Jones, 387
Roberts v. Aulton, 81
v. Barker, 416
v. Bethell, 942
v. Brett, 548

v. Bury Commissioners, 247
v. Great Western R. C, 368
v. Orchard, 100
v. Phillips, 655
v. Preston, 866
v. Rose, 380, 387
v. Shaw, 814
v. Smith, 369, 752, 860
v. Williams, 564
Robertson v. Fleming, 75>6

v. French, 553, 554, 925
v. Gantlett, 3, 481
v. Hamilton,. 189
v. Powell, 554
Robinson v. Anderton, 800

v. Bristol (Marquis of), 630
v. Collingwood, 952
v. Cook, 174
v. Cotterell, 46
v. Davison, 357
v. Emerson, 31
v. Gleadow, 822, 869
v. Hardcastle, 566
v. Maedonell, 502
v. Reynolds, 754
v. Rutter, 802
Robotham v. Wilson, 372, 691
Robson v. Att.-Gen., 354
Rochdale Canal Co. v. King, 144, 194
Roddy v. Fitzgerald, 562, 650, 652
Rodger v. The Comptoir dTSscompte de

Paris, 473, 594, 603
Rodgers v. Maw, 868

v. Nowill, 203, 790
v. Parker, 302
Rodick v. GandelL 475
Roe d. Alport v. Bacon, 676
v. Bacon, 678

d. Berkeley (Earl of) v. York (Arch-
bishop of), 543
v. Birkenhead, Lancashire, and

Cheshire R. C, 844, 873
d. Haldane v. Harvey, 940

Roe v. Harrison, 879

d. Hunter v. Galliers, 462
v. Lidwell, 631
d. Reade v. Reade, 590
v. Tranmarr, 544

d. Trimlestown (Lord) v. Kemmis,
92
Roffey v. Henderson, 427, 429, 887
Rogers v. Brenton, 918
v. Dutt, 197
v. Hadley, 105, 172, 342, 664,

690, 736, 926
v. Parker, 204
v. Payne, 882
v. Rogers, 269

v. Taylor, 196, 484, 918, 922
v. Vandercomb, 123
Rolfe v. Flower, 814
Rolin v. Steward, 201, 204
Rolph v. Crouch, 228
Rollason v. Leon, 546
Rolls v. Rock, 405
Rooke's Case, 84
Roper v. London, 737
Roret v. Lewis, 133
Roscorla v. Thomas, 756, 760, 764
Rose v. Groves, 205
v. Miles, 205
v. Poulton, 216
Rosewarne v. Billing, 724, 741
Ross v. Adcock, 915
v. Hill, 238, 383
Rosse (The Earl of) v. Wainman, 400
Routiedge v. Low, 364, 365
Rowberry v. Morgan, 23
Rowbotham v. Wilson, 196, 371, 461,

481
Rowe v . Brenton, 962

v. Hopwood, 867
Rowles v. Senior, 133
Rumsey v. North-Eastern R. C, 279,

700
Rusden v. Pope, 497
Russell i\ Bryant, 308

v. Da Bandiera, 247
v. Devon (Men of), 205
v. Ledsam, 39, 678
v. New York (Mayor of), 2
v. Nicolopulo, 788
v. Smyth, 80
v. Thornton, 792
Russia Steam Navigation Co. v. Silva,

926
Rust v. Nottidge, 547
Rutland v. Doe d. Wythe, 463

v. Rutland, 910
Rutland's (Countess of) Case, 131, 877

(Earl of) Case, 64, 188
Rutter v. Chapman, 544, 840
Ruttinger v. Temple, 536, 753
Ryall v. Rolle, 424

TABLE OF CASES.

lxix

Ryalls v. Reg., 629
Ryan v. Shilcock, 435
Ryder v. Mills, 570, 571

v. Wombwell, 110, 533
Rylands v. Fletcher, 368, 372, 391

v. Kreitman, 174
Ryves v. Wellington (The Duke of), 60

Sack v. Ford, 846
Sadler v. Dixon, 225

v. Henlock, 848, 851
v. Leigh, 822
v. Smith, 720
Salford (Mayor of) ». Ackers, 679
Salisbury (Marquis of) v. Gladstone,
461, 921
v. Great Nor-
thern R. C. 787
Salomons v. Pender, 172
Salkeld v. Johnson, 569, 572, 684
Salmon v. Webb, 345, 954
Salters' Co. v. Jay, 34
Sammell v. Wright, 853
Sampson v. Easterby, 578

v. Hoddinott, 144
Samuel v. Buller, 22
v. Green, 821
Samuell v. Howorth, 704
Sanchar's (Lord) Case, 111
Sandeman v. Scurr, 846
Sanders v. Coward, 247
v. Powell, 801
Sanderson v. Dobson, 564, 591

v. Symonds, 155
Sandilands v. Marsh, 827
Sandon v. Jarvis, 436

v. Proctor, 134
Sandrey v. Mitchell, 476
Sands v. Child, 843
Ransom v. Bell, 647
Sanson v. Rumsay, 939
Santos v. Illidge, 735
Sargent v. Gannon, 254
v. Morris, 822
v. Wedlake, 732
Sarquy v. Hobson, 219
Saul v. Jones, 154
Saunders' Case, 481
Saunders v. Graham, 175

v. Smith, 397
Saunderson v. Griffiths, 868

v. Piper, 594, 611
Savery v. King, 871
Savin v. Hoylake, 690
Saxby v. Manchester, Sheffield, &c,

862
Saye and Sele Peerage (The), 947
Sayer v. Wagstaff, 817

Scales v. Cheese, 134
Scarborough v. Borman, 454

(Earl of) v. Doe d. Savile,
555, 556
Scarfe v. Morgan, 24
Scattergood v. Sylvester, 359, 806
Schilizzi v. Derry, 247
Schloss v. Heriot, 344, 384
Schmaling v. Tomlinson, 840
Schmaltz v. Avery, 295
Scholey v. Mearns, 882
Schooner Reeside (The), 932
Schumann v. Weatherhead, 330
Schuster v. M'Kellar, 292, 845
Scotson v. Pegg, 748
Scott v. Avery, 581, 670, 737
v. Ebury (Lord), 872
v. Littledale, 262
v. Liverpool (Corporation of),

737
v. Manchester (Mayor of), 90
v. Pilkington, 342
v. Scott, 357, 853
v. Seymour (Lord), 349, 367
v. Shepherd, 208
v. Stansfeld, 86, 319
v. Waithman, 940
Scrimshire v. Alderton, 822
Scrivener v. Palk, 662, 843
Seagrave v. Union Mar. Ins. Co., 217
Searle v. Lindsay, 854, 860
Searles v. Sadgrave, 175
Seaton v. Benedict, 835
Sebag v. Abitbol, 368
Sedgwick v. Daniell, 346
Seeger v. Duthie, 551
SeifFerth v. Badham, 670
Seignior v. Wolmer, 712
Selby v. Browne, 282
Selkrig v. Davies, 456
Seller v. Jones, 647
Selwood v. Mildmay, 632, 633
Semayne's Case, 432, 434, 440
Senhouse v. Earle, 682
Senior v. Armytage, 414

v. Ward, 268, 386, 853, 858
Seymour v. Greenwood, 846, 853

v. Maddox, 387, 853
Shackell v. Rosier, 728
Shadwell v. Shadwell, 748
Shand v. Grant, 715
Sharp v. Grey, 238
v. Nowell, 840
v. Waterhouse, 476
Sharpe v. Great Western R. C, 781
Sharpies v. Rickard, 109
Sharpley v. Overseers of Mablethorpe,

683
Sharrod v. London and North-Western

R. C, 846
Shattock v. Carden, 342, 360

lxx

TABLE OF CASES

Shaw v. Beck, 947

v. Gould, 76, 505, 516, 518, 520
v. Jeffery, 727
Shean v. Rickie, 419
Shedden v. Patrick, 507, 517
Shechy v. Professional Life Ass. Co.,

342
Shelburn v. Inchiquin, 666
Sheldon v. Sheldon, 676
Shelley's Case, 234, 237, 558, 650
Shelton v. Braithwaite, 165
v. Livius, 885
v. Springett, 535, 753
Shepeler v. Durrant, 187
Shepherd v. Hills, 46, 896
v. Kain, 782
v. Payne, 922
v. Pybus, 660, 777, 780
v. Sharp, 9
v. Shepherd, 150
Sheppard v. Phillimore, 184
Sherborn v. Lord Huntingtower, 125
Sherratt v. Bentley, 585
Sherwin v. Swindall, 317, 434
Shore v. Wilson, 562, 621
Shoreditch (Vestry of) v. Hughes, 104,

109, 541
Short v. McCarthy, 904
v. Simpson, 472
v. Stone, 284
Shortrede v. Cheek, 609
Shortridge v. Young, 135
Shower v. Pilck, 503
Shrewsbury v. Blount, 782, 786

(Earl of) v. Scott, 248
Peerage (The), 604
Shutford v. Borough, 903
Shuttleworth v. Greaves, 617

v. Le Flemy, 380, 571
Siboni v. Kirkman, 907
Sibree v. Tripp, 890
Sibthorpe v. Brunei, 548
Sichel v. Lambert, 947
Sicklemore v. Thistleton, 579
Sidwell v. Mason, 104
Sievewright v. Archibald, 867
Sikes v. Wild, 227
Sill v. Worswick, 522
Sillem v. Thornton, 673
Simmons v. Heseltine, 262
v. Lillystone, 205
v. Norton, 232, 405
v. Taylor, 715, 808
Simond v. Bradden, 781
Simons v. Johnson, 578

v. Patchett, 799, 826
Simpson v. Accidental Death Insurance
Co., 292
v. Bloss, 722, 726
v. Egginton, 757, 868
v. Hartapp, 419

Simpson v. Holliday, 103

v. Howden (Lord), 5,735
v. Ingham, 814
v. Lamb, 734
v. Margeson, 614, 926
v. Nicholls, 24
v. Pickering, 336
v. Ready, 31, 679
v. Sadd, 351
v. Savage, 378, 397
v. Swann, 344
v. Wilkinson, 948
Sims v. Bond, 161, 822

v. Marryatt, 151, 799, 802
Singleton v. Williamson, 280
Siordet v. Hall, 226

v. Kuczynski, 109
Six Carpenters' Case, 126, 301, 303
Skaife v. Jackson, 724
Skeate v. Beale, 278
Skelton v. London and North Western

R. C, 385
Skillett v. Fletcher, 704
Skinner v. Lambert, 573

v. London, Brighton and South
Coast R. C, 393
Skipp v. Eastern Counties R. C, 270,

853, 858
Skull v. Glenister, 480, 631
Skyring v. Greenwood, 258
Slater v. Dangerfield, 563

v. Mayor, &c, of Sunderland,
703
Sleap v. Newman, 707
Sleddon v. Cruickshank, 430
Sleigh v. Sleigh, 257
Slingsby v. Granger, 555, 582, 633
Sly v. Edgeley, 850
Small v. Attwood, 785
Smallcombe v. Olivier, 38
Smart c. Harding, 762
v. Hutton, 837
v. Morton, 196, 371, 372
Smeed v. Foord, 227
Smeeton v. Collier, 840
Smelting Lead Company v. Richardson,

665
Smethurst v. Mitchell, 822
Smith v. Bell, 576, 607

v. Blakey, 961, 963

v. Boucher, 86

v. Braine, 754

v. Brine, 754

v. Bromley, 257, 273, 725

v. Coffin, 554

v. Colgay, 910

v. Compton, 579

v. Cramer, 966

v. Cuff, 725

v. Dobson, 386

v. Doe d. Jersey (Earl of), 603

TABLE OF CASES

lxxi

Smiths. Doe, 151

v. Edge, 140

v. Egginton, 302

v. Fox, 904

v. Frampton, 383

v. Galloway, 630

v. Gibson, 338

v. Hartley, 626

v. Hodson, 169, 868

v. Jeffryes, 615, 618

v. Kay, 785

v. Keating, 602

v. Kenrick, 196, 198, 338, 372

v. Lawrence, 853

v. Linds, 724

v. London and South-Western R.
C, 110, 383, 394

v. Malings, 282

v. Manners, 285

v. Marrable, 776

v. Marsack, 842

v. Mawhood, 741

v. Mills, 910

v. Monteith, 131, 277, 332

v. Neale, 778, 889

v. Packhurst, 543

v. Pocklington, 545

v. Pritchard, 849

v. Reach, 753

v. Reg., 112

v. Render, 428

v. Ridgway, 494, 643

v. Roche, 753

v. Scott, 778

v. Shirley, 435

v. Simonds, 205

v. Sleap, 822

v. Smith, 564

v. Sparrow, 24

v. Stafford, 126

v. Stapleton, 179

v. Sydney, 945

v. Tebbett, 15

v. Thackerah, 195, 196, 366, 371,
901

v. Thompson, 105, 618

v. Thorne, 761

v. Trowsdale, 883

v. Universal Insurance Co., 222

v. "Wigley, 814

v. Wilson, 662, 925

v. Woodfine, 108, 766

v. Wright, 305
Smout v. Ilbery, 790, 793, 795, 823,

837
Smurthwaite v. Wilkins, 472
Snell v. Finch, 359
Snow v. Franklin, 881

v. Peacock, 717
Snowdon v. Davis, 276
Soane v. Knight, 320

Soares v. Glyn, 885

Solly v. Forbes, 578

v. Rathbone, 840

Solomon v. Vintners' Co., 196, 370, 372,
396

Somerville v. Hawkins, 320, 323
v. Mirehouse, 89

Somes v. British Empire Shipping Co ,
81

Sorsbie v. Park, 548

Sotilichos v. Kemp, 927

Southall v. Rigg, 259, 754

Southampton and Itchin Bridge Co. v.
Southampton Board of Health, 7

Southampton Dock Co. v. Richards, 183

Southcote v. Stanley, 387, 854

South Shields Waterworks Co. v. Cook-
son, 377

Sowerby v. Coleman, 920

Spackman v. Evans, 732, 892
v. Miller, 478

Spark v. Heslop, 227

Sparrow v. Chisman, 295

Spartali v. Benecke, 620, 663, 693, 926

Spedding v. Nevell, 793, 795, 799, 826
v. Newell, 228

Speeding v. Young, 344

Spence v. Chadwick, 233, 247
v. Healey, 881

v. Union Marine Ins. Co. 286,
355

Spencer's Case, 411, 466, 476
v. Handley, 739

v. Marlborough (The Duke of),
452

Spicer v. Cooper, 925

Spicot's Case, 289

Spieres v. Parker, 677, 679, 946

Spill v. Maule, 318

Spiller v. Westlake, 767

Spooner v. Payne, 630

Spotswood v. Barrow, 214

Spragg v. Hammond, 272

Spread v. Morgan, 254, 297

Sprigwell v. Allen, 800

Spry v. Flood, 655

Sprye v. Porter, 734

Squire v. Ford, 81, 581
v. Mayer, 426

Stace v. Griffiths, 106

Stacey, app., Whitehurst, resp., 863

Stadhard v. Lee, 690

Staffordshire and Worcestershire Canal
Navigation v. Birmingham Canal Nav-
igation, 380

Stallard v. Great Western R. C, 26

Stammers v. Dixon, 930
v. Hughes, 133

Stamp v. Sweetland, 89

Standen v. Christmas, 476, 652

Standish v. Ross, 256, 294

lxxii

TABLE OF CASES.

Staniland v. Hopkins, 680

Stansell v. Jollard, 196

Stansfield v. Mayor, &c, of Portsmouth,

429, 430
Stanton v. Styles, 952, 953
Stapley v. London Brighton and South

Coast R. C, 389
Stapylton v. Clough, 964
Startup v. Macdonald, 108, 924
Stavers v. Curling, 548
Stead v. Anderson, 325, 362
v. Berrier, 609
v. Carey, 41, 55 •
v. Dawber, 889, 890
v. Williams, 340, 362
Stebbing v. Spicer, 617
Stedman v. Gooch, 817
Steele v. Haddock, 886
v. Harmer, 702
v. Hoe, 540
v. Shomberg, 90
v. South Eastern R. C, 852
v. Williams, 273
Stephens v. Badcock, 819
v. De Medina, 773
v. Elwall, 843
v. Hill, 972
v. Pell, 598
v. Reynolds, 293
v. Taprell, 593
Stepney v. Lloyd, 132
Sterry v. Clifton, 573, 743
Stevens v. Copp, 476

v. Gourley, 730, 734
v. Jeacocke, 210
v. Lynch, 257

v. Midland Counties R. C, 843
v. Stevens, 677
Stevenson v. Newnham, 325, 743

v. Oliver, 32
Stevenson's Heirs v. Sullivant, 519
Steward v. Greaves, 576
v. Gromett, 206
v. Lombe, 424
Stewart v. Aberdein, 664, 925

v. Anglo -Californian Gold-
mining Co., 673
v Gibson, 742
v. London and North Western

R. 0., 258
v. Menzies, 506
v. Stewart, 255, 266
St. Helen's Smelting Co. v. Tipping,

373, 379
Stilwell v. Clarke, 340
Stimson v. Hall, 344
Stirling v. Maitland, 283, 668
Stockdale v. Hansard, 14, 94, 194
Stocker v. Warner, 39
Stockton and Darlington R. C. v. Bar-
rett, 570, 573

Stokes v. Cox, 792

v. Russell, 184, 469
Stone v. Jackson, 387

v. Marsh, 162, 211
v. Stone, 269, 284
Storey v. Ashton, 847, 848

v. Robinson, 278
Storie v. Bishop of Winchester, 67
Stoughton v. Day, 647
Stourbridge Canal Co. v. Wheeley, 604
Stowell v. Robinson, 888

v. Zouch (Lord), 586
Stracey v. Nelson, 5, 575
Stradbroke (Lord) v. Mulcahy, 411
Stranks v. St. John, 652
Stratton v. Pettitt, 541, 546
Strauss v. Francis, 835
Stray v. Russell, 273
Street v. Blay, 777, 800
Streeter v. Horlock, 757
Strickland v. Maxwell, 482

v. Strickland, 503
v. Turner, 258, 499, 749
Stringer v. Gardiner, 616
Strode v. Russell, 609
Strong v. Foster, 886
v. Harvey, 175
Strother v. Hutchinson, 167

v. Lucas, 948
Stroyan v. Knowles, 196
Strutt v. Bovingdon, 336

v. Farlar, 108
Stuart v. Jones, 30

v. Whitaker, 838
Stubbs v. Holywell, 235, 906

v. Parsons, 272
Stubley v. London and North Western

R. C. 389
Stuckley v. Baily, 788
Studdy v. Sanders, 769
Sturgeon v. Wingfield, 468
Sturges v. Lord Curzon, 347
Sturgis v. Bishop of London, 361

v. Darell, 897, 904
Sturry v. Smith, 837
Stutton v. Bament, 143
Submarine Telegraph Co. v. Dickson,

378
Suker v. Neale, 156
Sully v. Duranty, 220
Summers v. Solomon, 293
Sunbolt v. Alford, 278
Surplice v. Farnsworth, 232, 776
Surtees v. Ellison, 31
v. Lister, 748
Suse v. Pompe, 663
Sussex Peerage (The), 515, 573, 937,

962
Sutton v. Clarke, 7

v. Johnstone, 195, 945
v. Temple, 774

TABLE OF CASES

lxxiii

Swan v. Blair, 695

v. North British Australian Co.,
258, 292
Sweet v. Benning, 364

v. Seager, 272
Sweeting v. Pearce, 927
Sweetland v. Smith, 658
Swinfen v. Lord Chelmsford, 209, 835

v. Swinfen, 139, 835
Swire v. Leach, 419
Syers v. Jonas, 662, 929

v. Pickersgill, 347
Sykes v. Giles, 819

v. Sykes, 843
Symonds v. Lloyd, 926

Taafe v. Dowries, 86

TafF Vale R. C. v. Giles, 844

Talbot v. Bulkeley, 351

v. Radnor (The Earl of), 173,
710
Taltarum's Case, 446
Tancred v. Christy, 164

v. Leyland (in error), 204
Tanner v. Hartley, 698

v. Moore, 757

v. Smart, 656, 699
Tapfield v. Hilman, 499
Taplin v. Florence, 887
Tapling v. Jones, 383
Tapp v. Lee, 792
Tarleton v. Liddell, 214, 288
v. Shingler, 155
v. Staniforth, 543
Tarner v. Walker, 208
Tarrant v. Webb, 854, 860
Tarry v. Newman, 89
Tasker v. Shepherd, 907
Tassell v. Cooper, 868
Tatlock v. Harris, 475
Tattersall v. Fearnley, 109
Tatton v. Wade, 790*
Tatum v. Catomore, 154
Taunton v. Costar, 441
Taverner v. Little, 853
Tawney v. Lynn and Ely R. C. (The), 5
Taylor v. Ashton, 785

d. Atkyns v. Horde, 340, 895

v. Best, 169

v. Bullen, 674, 788

v. Burgess, 704

v. Caldwell, 234

v. Chester, 721

v. Clay, 386

v. Clemson, 6, 93, 952

v. Cole, 302

v. Cook, 944

v. Crowland Gas and Coke Co.,
741

Taylor v. Dunbar, 217

v. Great Northern R. C, 238
v. Hawkins, 320, 322
v. Henniker, 204
v. Hilary, 886, 890
v. Horde, 446, 450
v. Laird, 657
v. Loft, 4
v. Newman, 308
v. Phillips, 22
v. Plumer, 803
v. Rundell, 251
v. Salmon, 135
v. Stray, 778, 927
v. Taylor, 456
v. Vansittart, 31
v. Webb, 611
v. Whitehead, 3
Tebb v. Hodge, 425
Teede v. Johnson, 255
Tempest v. Kilner, 474, 475
Templeman v. Hayden, 368
Tenant v. Elliott, 723, 724

v. Goldwin, 369
Tennant, app., Cumberland, resp., 679
Tetley v. Easton, 363

v. Wanless, 680
Thackeray v. Wood, 773
Thames (Conservators of) v. Hall, 30

Haven Dock and R. C. v. Bry-

mer, 881
Iron Works v. Royal Mail Co.,

881
Tun. Works Co. v. Royal Mail
Co., 881
Tharpe v. Stallwood, 869, 911
Thelluson v. Lord Rendlesham, 561
Thellusson v. Woodford, 452, 453
Theobald v. The Railway Passengers'

Assurance Co., 227
Thetis (The), 864
Thibault, q. t. v. Gibson, 30, 678
Thicknesse v. Lancaster Canal Co., 604
Thistlewood v. Cracraft, 720
Thorn v. Bigland, 790
Thomas v. Churton, 87
v. Cross, 817
v. Edwards, 823
v. Fenton, 702
v. Hayward, 476
v. Howell, 237
v. Hudson, 93
v. Packer, 416
v. Pearse, 837
v. Russell, 958

v. Thomas, 396, 630, 748, 751
v. Waters, 54
v. Watkins, 44, 436
Thompson v. Bell, 474, 820
v. Gibson, 397
v. Gillespy, 344

lxxiv

TABLE OF CASES.

Thompson v. Gordon, 108

v. Hakewill, 548

v. Hopper, 224, 225, 229

v. Lack, 39, 704

v. Lapworth, 272

v. Pettit, 424

v. Shakell, 320

v. Wood, 302
Thomson v. Davenport, 822
v. Grant, 215
v. Harding, 125, 216
Thorburn v. Barnes, 114, 840
Thornborrow v. Whitaore, 249
Thornhill v. Hall, 565

v. Neats, 247
Thornton v. Jenyns, 248, 748, 756, 766
Thorogood v. Bryan, 385
Thorpe v. Eyre, 416

v. Thorpe, 647, 768
Thrustout d. Park v. Troublesome, 340
Thurnell v. Balbirnie, 250
Tidman v. Ainslie, 322
Tidswell v. Whitworth, 272
Tighe v. Cooper, 319, 322
Tiling v. Hodgson, 287
Timmins v. Gibbins, 809, 893
Tinkler v. Hilder, 171
Tinniswood v. Pattison, 93, 492
Tinsley v. Nassau, 88
Tipper v. Bicknell, 749, 766
Titley v. Foxall, 952
Tobacco Pipe Makers v. Loder, 896
Tobin v. Reg., 60, 73, 844, 865
Todd v. Emily, 830

v. Stewart. 335
Toller v. Wright', 650
Tolson, dem., Kaye, deft., 532
Tomlin v. Fuller, 485
Tomney v. White, 330, 878
Tompkinson v. Russell, 837
Toms v. Cuming, 838
Toogood v. Spyring, 320, 322
Toomer v. Reeves, 571
Tooth v. Bagwell, 240
Torrington (Lord) v. Lowe, 927
Toulmin v. Anderson, 122

v. Copland, 810
Toussaint v. Martinnant, 657, 758
Touteng v. Hubbard, 285
Towler v. Chatterton, 41
Townend v. Woodruff, 483
Towns v. Wentworth, 560
Townsend v. Crowdy, 258, 259

v. Deacon, 900
Townshend v Devaynes, 456

(Marquis of), v. Stangroom,
263
Tozer v. Child, 194
Traherne v. Gardner, 273, 275
Trappes v. Harter, 425
Travel v. Carteret, 56

■, 762

Traver v. -

Treadwin v. Great Eastern R. C, 496
Tredwen v. Bourne, 830
v. Holman, 737
Tregoning v. Attenborough, 724
Tremeere v. Morison, 707
Trent v. Hunt, 359, 874
Trent Navigation v. Wood, 230, 238
Treport's Case, 545
Trevivan v. Lawrence, 336
Trickett v. Tomlinson, 294
Trimleston (Lord) v. Kemmis, 940, 957,

963
Trinity House v. Clark, 845
Trott v. Trott, 947, 948
Trueman v. Loder, 287, 617, 663
Truscott v. Merchant Tailors' Co., 879
Tucker v. Newman, 397

v. Webster, 678
Tuff v. Warman, 385, 390
Tulkv. Moxhay, 461
Tullett v. Armstrong, 454
Tunny v. Midland R. C, 854
Turberville v. Stampe, 366, 383, 846
Turner v. Ambler, 105

v. Berry, 343

v. Browne, 750

v. Harvey, 771

v. Hayden, 368

v. Mason, 536

v. Sheffield R. C, 187, 576
Turney v. Dodwell, 817
Turtle v. Hartwell, 83
Tweddle v. Atkinson, 748, 749
Twigg v. Potts, 142
Twyne's Case, 288, 289, 570
Tyerman v. Smith, 136, 169
Tyler v. Jones, 906
Tyrrell v. Lyford, 609
Tyrringham's Case, 304
Tyson v. Smith, 158, 919

U.

Udal v. Walton, 968
Udell v. Atherton, 794, 796
Udny v. Udny, 76
Underhill v. Wilson, 868
Underwood v. Nicholls, 817, 820
Union Bank of Manchester v. Beech,

704
United States v. Fisher, 575

v. Wiltberger, 572
United States' Bank v. Dandridge, 945

v. Owen, 732
Unwin v. Clarke, 350
Upton v. Townend, 38, 232, 852

v. Wells, 434
Uther v. Rich, 717

TABLE OF CASES.

lxxv

Valieri v. Boyland, 836

Valpy v. Manley, 274

Van Boven's Case, 678

Vandeleur v. Vandeleur, 591

Vanderburgh v. Truax, 209

Vanderbyl v. M'Kenna, 81

Vander Donck v. Thelluson, 188, 938

Vandyck v. Hewitt, 720

Vane v. Cobbold, 835

Van Hasselt v. Sack, 169

Van Ness v. Pacard, 421

Van Omeron v. Dowick, 944

Vanquelin v. Bovard, 342

Van Sandau, Ex parte, 93

Vansittart v. Taylor, 35, 37, 136

Varney v. Hickman, 721

Vaughan v. Menlove, 367, 383

v. Taff Vale R. 0., 394

v. Wilson, 123

v. Wyatt, 142
Vaux's (Lord) Case, 267

Peerage (The), 947
Vauxhall Bridge Co. v. Sawyer, 395,

571
Vavasour v. Ormrod, 678, 679
Veitch v. Russell, 746
Venezuela (Central R. C. of) v. Kisch,

782, 784
Vere v. Ashby, 827
Vernede v. Weber, 781
Vernon v. Keys, 781

v. Vernon, 603
Vicars v. Wilcocks, 207
Victor v. Devereux, 138
Victors v. Davies, 759
Vigers v. Dean, &c, of St. Paul's, 54

v. Pike, 294
Villeboisnet v. Tobin, 969
Vincent v. Bishop of Sodor and Man,
503, 655
v. Slaymaker, 686
Violett v. Sympson, 901
Vivian v. Mersey Dock Board, 378
Vlierboom v. Chapman, 654
Vose v. Lancashire and Yorkshire R. C,

368, 859
Vyner v. Mersey Docks Co., 465
Vyvyan v. Arthur, 476

W.

Waddle v. Downman, 626
Wade's Case, 174
Wade v. Simeon, 125, 254, 748
Wadham v. Marlow, 217
Wadsworth v. Bentley, 338

v. The Queen of Spain, 48
Wain v. Warlters, 888

Waite v. North-Eastern R. C, 386, 392
Wake v. Harrop, 823, 886
Wakefield v. Brown, 548
v. Newbon, 278
Board of Health t\ West Ri-
ding, &c, R. C, 120
Wakeman v. Robinson, 393
Wakley v. Cooke, 593
Waldegrave Peerage (The), 521
Walker's Case, 282
Walker v. Birch, 693

v. Brit. Guarantee Society, 238
v. Brogden, 318
v. Butler, 812
v. Clements, 343
v. Giles, 580
v. Goe, 206

v. Great Western R. C, 821
v. Hatton, 198
v. Hunter, 874
v. Jones, 469
v. Maitland, 218
v. Meller, 802
v. Olding, 124
v. Perkins, 732
v. Petchell, 563
v. Rastron, 475
v. Thelluson, 168
Wallace v. Kelsall, 295, 724
Waller v. Drakeford, 292, 355

v. S.-Eastern R. C, 854, 859
Walley v. M'Connell, 133
Wallington v. Dale, 39
Wallis v. Day, 746

v. Hirsch, 737
v. Littell, 886
Walmsley v. Cooper, 344

». Milne, 425, 426
Walpole (Lord) v. Cholmondeley (Earl

of), 616
Walsh v. Trevanion, 578

v. Secretary of State for India,

690
v. Southworth, 841
Walstab v. Spottiswoode, 835
Waltham v. Sparkes, 139
Walworth v. Holt, 135
Wansey, app., Perkins, resp., 186
Wanstall v. Pooley, 208
Warburton v. Loveland, 574

v. Great Western R. C, 854
Ward v. Andrews, 404
v. Beck, 569
v. Broomhead, 351, 867
v. Day, 172, 296
v. Eyre, 286
v. Johnson, 337
v. Lee, 848, 864
v. Lloyd, 733
v. Robins, 381
v. Stuart, 926

lxxvi

TABLE OF CASES.

Ward v. Weeks, 208
Wardle v. Broklehurst, 198
Wardour v. Berisford, 939
Ware v. Cann, 449, 452

v. Regent's Canal Co., 604
Waring v. Dewbury, 130
Warmoll v. Young, 360
Warren v. Lugger, 916
Warrender v. Warrender, 265
Warrington v. Early, 154
Warwick v. Bruce, 512
v. Nairn, 754
v. Rogers, 201
Wason v. Walter, 319
Waterer v. Freeman, 132
Waterfall v. Penistone, 420
Waterford's (The Earl of) Peerage, 139,

576
Waterpark v. Furnell, 930
Waters v. Louisville Insurance Co., 218,

222
Watkins v. Great Northern R. C, 210,

664
Watson's Case, 966
Watson v. Bodell, 93
v. Foxon, 554
v. Lane, 261, 425
v. Little, 944
v. M'Cleane, 474
v. Quilter, 107, 108
v. Russell, 753, 755
v. Swan, 818, 870
Watts v. Salter, 835
Waugh v. Carver, 827

v. Middleton, 37, 575
Way v. Hearn, 614, 638, 704
Weaver v. Ward, 317, 367, 393
Webb v. Adkins, 131

v. Austin, 184, 469

v. Bachelour, 89

v. Beavan, 305

v. Bird, 198

v. Bishop, 720

v. Cowdell, 906

v. Fox, 478

v. Manchester and Leeds R. C, 5,

606
v. Plummer, 415, 597
v. Rhodes, 240
v. Salmon, 345
v . Spencer, 345
v. Weatherby, 811
Webber v. Stanley, 559, 630, 643
Webster v. Emery, 343

v. Newsome, 285
v. Power, 286, 497
v. Watts, 301
Weeks v. Maillardet, 673
Weems v. Mathieson, 855, 860
Weeton v. Woodcock, 429
Welchman v. Sturges, 911

Weld v. Baxter, 469

v. Hornby, 682, 930
Welfare v. London, Brighton, &c, R. C,

110, 851
Wellesley (Lord) v. Withers, 543
Wellington v. Arters, 143
Wellock v. Constantine, 162, 211
Wells v. Ody, 396

v. Pearcy, 161
v. Watling, 203
Welsh v. Trevanion, 648
Wenman (Lady) v. Mackenzie, 957
Wennall v. Adney, 752, 760, 761
Wentworth v. Cock, 907, 908

v. Lloyd, 939
West v. Baxendale, 105

v. Blakeway, 428, 880
v. Jackson, 766, 781
v. Lawday, 631
v. Moore, 412
v. Nibbs, 306
v. Steward, 154

London R. C. v. London and N.-
Western R. C, 597, 646
Westhead v. Sproson, 766
Westlake v. Adams, 748
Westropp v. Solomon, 778
Wetherell v. Jones, 732, 739, 740

v. Langston, 548
Wetherley v. Regent's Canal Co., 385
Weymouth ( Mayor of) v. Nugent, 74
Whaley v. Laing, 374
Wharton v. Walker, 475
Whatman v. Pearson, 100, 848
Wheatley v. Lane, 909

v. Thomas, 675
Wheeler v. Montefiore, 289
Wheelton v. Hardisty, 789, 792, 794
Whelfdale's Case, 154
Whistler v. Forster, 470
Whitaker v. Harrold, 629
v. Jackson, 335
v. Wisbey, 36, 129
Whitcher v. Hall, 143
White v. Bass, 381, 481
v. Beard, 146
v. Beeton, 551
v. Bluett, 750
v. Boulton, 849
v. Burnby, 545
v. Crisp, 378, 472
v. Cuddon, 771
v. Garden, 300, 743
app., Greenish, resp., 292
v. Hancock, 581
v. Morris, 727
v. Mullet, 355
v. Phillips, 378, 387
v. Rose, 819
v. Say er, '413
v. Sharp, 628, 840

TABLE OF CASES

lxxvii

White v. Spettigue, 162, 211, 806

v. Whiteshire, 438
Whitehead v. Bennett, 429
v. Izod, 273, 778
v. Parkes, 204
Whitehouse v. Birmingham Canal Co.,
368
v. Fellows, 901
Whijjeley v. Adams, 319
Whitfield v. Lord De Spenser, 850

v. South-Eastern R. C, 318
Whitmore v. Robertson, 573

v. Smith, 840
Whittle, app., Frankland, resp., 766
Whittome v. Lamb, 627
Wiat v. Essington, 338
Wicks v. Jordan, 412
Wiggett v. Fox, 8551
Wigglesworth v. Dallison, 413, 416, 663,

920
Wigmore v. Jay, 854, 858
Wilcox v. Odden, 171
Wild v. Harris, 284, 749
Wilde v. Gibson, 772, 790, 793

v. Waters, 425, 427
Wilders v. Stevens, 343
Wildes v. Russell, 86, 120, 121
Wildman v. Glossop, 626
Wilkes v. Perks, 125

v. Wood, 95
Wilkin v. Manning, 309
Wilkinson v. Evans, 673
v. Fairie, 387
v. Johnston, 256
Willey v. Parratt, 835
Williams v. Bagot (Lord), 114

v. Bayley, 211, 723, 732

v. Burrell, 476, 547

v. Clough, 386

v. Crossling, 687

v. Currie, 108

v. Deacon, 820

v. East India Co., 744, 949

v. Evans, 819

v. Eyton, 946

v. Great Western R. C, 118

v. Grey, 280, 910

v. Griffith, 811

v. Hayward, 476

v. Hedley, 724

v. Hide, 236

v. James, 595

v. Jarman, 188

v. Jones, 620, 848

v. Lewis, 169,563

v. London Commercial Ex-
change Co., 890

v. Mostyn, 201

v. Newton, 680

v. Paul, 24

v. Pigott, 834

Williams v. Pritchard, 28
v. Reynolds, 228
v. Roberts, 44, 304, 305, 436
v. Sidmouth Railway and

Harbor Co., 333
v. Smith, 874
v. Spence, 437
v. Thacker, 337
v. Thomas, 169
v. Williams, 406
Williamson v. Allison, 801
v. Barton, 823
Willion v. Berkley, 72, 73
Willoughby v. Horridge, 368

v. Willoughby, 357
Wills v. Murray, 907
Wilson v. Bagshaw, 485
v. Barker, 874
v. Barthrop, 823
v. Braddyll, 894
v. Curzon (Lord), 834
v. Ford, 836
v. Hart, 823
v. Hirst, 815
v. Knubley, 910
v. Lancashire and Yorkshire R.

C, 227
v. Marry at, 77
v. Merry, 854, 860
v. Myers, 799

v. New York (Mayor of), 7
v. Newport Dock Co., 224, 226
v. Nisbett, 188
v. Peto, 850
v. Rankin, 866
v. Rastall, 142
v. Ray, 332
v. Robinson, 322
v. Thorpe, 840
v. Tummon, 870, 874
v. Willes, 918
v. Wilson, 748
Wiltes (The) Peerage, 34, 55, 56
Wilton v. Dunn, 257

v. Royal Atlantic Mail Steam
Co., 225
Wiltshear v. Cottrell, 419, 420, 424
Windsor's (Dean and Chapter of) Case,

707
Wing v. Mill, 758
Wingate v. Waite, 88
Winn v. Ingleby, 423

v. Nicholson, 125
v. Mossman, 572
Winser v. Reg., 21, 348
Winsmore v. Greenbank, 192
Winter v. Henn, 269

v. Perratt, 609
Winterbottom v. Lord Derby, 205 '

v. Wright, 202, 786, 853
Winterbourne v. Morgan, 303

lxxviii

TABLE OF CASES,

Wintle v. Crowther, 827
Wise v. Metcalf, 916

v. Great Western R. C, 270, 385
Witherley v. Regent's Canal Co., 386
Withers v. Parker, 874
Withnoll v. Gartham, 930
Witte v. Hague, 850
Wolf v. Horncastle, 870

v. Oxholm, 78
Wollaston v. Stafford, 350
Wolverhampton Water Co. v. Hawkes-

ford, 195
Wontner v. Shairp, 835
Wood v. Bell, 492
v. Dixie, 289
v. Dunn, 329
v. Dwarris, 169
v. Hewitt, 421,431
v. Hurd, 134
v. Leadbitter, 887
v. Priestner, 598
v. Rowcliffe, 630, 648, 674
v. The Copper Miners' Co., 547,

810
v. Waud, 144
v. Wilson, 626
Woodbridge Union v. Colneiss, 946, 947
Woodgate v. Knatchbull, 837
Woodger v. Great Western R. C, 217
Woodin v. Burford, 823
Woodland v. Fear, 809
Woodley v. Coventry, 171
Woodrop-Sims (The), 390
Woods v. Durrant, 436
v. Finnis, 849
v Thiedemann, 808
Woodward v. Pell, 347

v. Watts, 574
Woollen v. Wright, 874
Woolley v. Kay, 571
Wootton v. Dawkins, 268, 388

v. Steffenoni, 548
Worms v. Storey, 208
Worrall v. Jacob, 263
Worseley v. Demattos, 289
Worsley v. South Devon R. C, 117
Worth v. Gilling, 393
Worthington v. Grimsditch, 104
v. Ludlow, 653
v. Warrington, 769
Wren v. Weild, 199, 322
Wright v. Child, 837

v. Crookes, 777, 787, 868

Wright v. Cuthell, 870

v. Greenroyd, 41

v. Hale, 35

v. Hickling, 817

v. Howard, 374

v. Laing, 815

v. Leonard, 696

v. Mills, 71, 129, 142

v. Pearson, 393

v. Tallis, 736

v. Wakeford, 656

v. Wright, 454
Wrightup v. Greenacre, 31
Wroughton v. Turtle, 570, 670
Wyatt v. Great Western R. C, 385

v. Harrison, 196, 369
Wycombe Union v. Eton Union, 259
Wyld v. Pickford, 494
Wylde v. Hopkins, 831
Wylie v. Birch, 201
Wynn v. Davis, 29

v. Shropshire Union Railway
and Canal Co., 244
Wynne v. Edwards, 628

Y.

Yates v. Lansing, 86

Yearsley v. Heane, 199

Yeats v. Pym, 663

Yelverton v. Longworth, 505, 508

Yonge v. Fisher, 189

York and North Midland R. C. v. Reg.

6, 606
Youde v. Jones, 581
Young v. Austen, 886

v. Billiter, 728

v. Cole, 778

v. Davis, 205

v. Fisher, 188

v. Grote, 809

v. Hughes, 476

v. Raincock, 648

v. Robertson, 561
Younghusband v. Gisborne, 457

Z.

Zichy Farraris (Countess of) v. Hert-
ford (Marquis of), 705

Ly v 1/

LEGAL MAXIMS.

CHAPTER I.

§ I. — RULES FOUNDED ON PUBLIC POLICY.

The Maxims contained in this section are of such universal
application, and result so directly and manifestly from motives of
public policy or simple principles on which our social relations depend,
that it has been thought better to place them first in this collection,
— as being, in some measure, introductory to more precise and
technical rules which embody the elementary doctrines of English
law, and are continually recurring to the notice of practitioners in
our courts of justice,

Salus Populi suprema Lex.

(Bacon, Max., reg. 12.)
That regard be had to the public welfare, is the highest law.
There is an implied assent on the part of every member of society,
that his own individual welfare shall, in cases of necessity, yield to
that of the community; and that his property, liberty, and life
shall, under certain circumstances, be placed in jeopardy or even
sacrificed for the *public good.1 " There are," says Buller, J.,2 p*9-,
"many cases in which individuals sustain an injury for which

1 Alibi diximus res subditorum sub eminenti dominio esse civitatis, ita ut
civitas, aut qui civitatis pice fungitur, Us rebus uti, easque etiam perdere et
alienare possit, non tantum ex summd necessitate, quae, privatis quoque jus
aliquod in aliena concedit, sed ob publicam utilitatem, cui privatas cedere illi
ipsi voluisse censendi sunt qui in civilem coztum coierunt. Grotius de Jure
Belli et Pac., Bk. 3, c. 20, s. 7, \ 1. — Le Talut du peuple est la supreme loi.
Mont. Esp. des Lois, L. XXVII. Ch. 23. In casu extremas necessitatis
omnia sunt communia. 1 Hale, P. C. 54.

2 Per Buller, J., Plate Glass Co. v. Meredith, 4 T. R. 797 ; Noy, Max., 9th
ed., 36 ; Dyer 60 b. ; 12 Rep. 12, 13.

1

2 BROOM S LEGAL MAXIMS.

the law gives no action; as, where private houses are pulled down,
or bulwarks raised on private property, for the preservation and
defence of the kingdom against the king's enemies." Commentators
on the civil law, indeed, have said,1 that, in such cases, those who
suffer have a right to resort to the public for satisfaction ; but no
one ever thought that our own common law gave an action against
the individual who pulled down the house or raised the bulwark.2
On the same principle, viz. that a man may justify committing a
private injury for the public good, the pulling down of a house when
necessary, in order to arrest the progress of a fire, is permitted by
the law.3

Likewise, in less stringent emergencies, the maxim is, that a
private mischief shall be endured, rather than a public inconveni-
ence;4 and, therefore, if a highway be out of repair and impassable,
a passenger may lawfully go over the adjoining land, since it is for
r-^o-i the public good *that there should be, at all times, free pas-
sage along thoroughfares for subjects of the realm.5 And in
American courts it has been held,6 that if a traveller in a highway
by unexpected and unforeseen occurrences, such as a sudden flood or
heavy drifts of snow, is so obstructed that he cannot reach his des-
tination without passing over the adjacent lands, he is privileged so
to do. u To hold a party guilty of a trespass for passing over
another's land, under the pressure of such a necessity, would be
pushing individual rights of property to an unreasonable extent,
and giving them a protection beyond that which finds a sanction in
the rules of law. The temporary and unavoidable use of private
property under the circumstances supposed must be regarded as
one of those incidental burdens to which all property in a civilized

1 See Puff, de Jure Nat, Bk. 8, c. 5, s. 7 ; Grotius de Jure Bell, et Pac., Bk.
3, c. 20, s. 7, \ 2.

2 Per Buller, J., 4 T. R. 797.

3Noy, Max., 9th ed., 36; 12 Rep. 12; Dyer 36 b.; Plowd. 322; Finch's
Law 39; Russell v. Mayor of New York, 2 Denio (U. S.) R. 461, 474.

4 Absor v. French, 2 Show. 28; Dawes v. Hawkins, 8 C. B. N. S. 848, 856,
859, (98 E. C. L.<R.); per Pollock, C. B., A. G. v. Briant, 15 M. & W. 185.

5 Per Lord Mansfield, C. J., Taylor v. Whitehead, Dougl. 749; per Lord
Ellenborough, C. J., Bullard v. Harrison, 4 M. & S. 393 ; Dawes v. Hawkins,
8 C. B. N. S. 848 (98 E. C. L. R.) ; Robertson v. Gantlett, 16 M. & W. 296 (a).
Secus of a private right of way. lb.

6 Campbell v. Race, 7 Cushing (U. S.) R. 408.

RULES FOUNDED ON PUBLIC POLICY. 3

community is subject." "Highways," says Lord Mansfield, C. J.,
in Taylor v. Whitehead,1 "are for the public service, and if the
usual track is impassable, it is for the general good that people
should be entitled to pass in another line."

In the instances above put, an interference with private property
is obviously dictated and justified summd necessitate, by the imme-
diate urgency of the occasion, and a due regard to the public safety
or convenience. The general maxim under consideration, however,
likewise applies to cases of more ordinary occurrence, in which the
legislature ob publicam utilitatem, disturbs the possession or restricts
the enjoyment of the property of individuals; *very strin-
gent provisions being sometimes enacted ;'for purposes of L J
general public good, involving great restrictions upon particular
classes of men."2

"The great end," it has been observed,3 "for which men entered
into society was to secure their property. That right is preserved
sacred and incommunicable4 in all instances, where it has not been
taken away or abridged by some public law for the good of the
whole. The cases where this right of property is set aside by posi-
tive law are various. Distresses, executions, forfeitures, taxes, &c,
are all of this description, wherein every man, by common consent,
gives up that right for the sake of justice and the general good."

It is, however, a rule of lawr which has been designated as a " legal
axiom," requiring no authority to be cited in support of it, that
" no pecuniary burden can be imposed upon the subjects of this
country, by whatever name it may be called, whether tax, due,
rate,5 or toll, except upon clear and distinct legal authority, estab-
lished by those who seek to impose the burden."6

1 2 Dougl. 745, 749.

2 Per Alderson, B., A. G. v. Lockwood, 9 M. & W. 401.

3 Per Lord Camden, Entiek v. Carrington, 19 How. St. Tr. 1066.

A i. e., not to be made the common right or property of more than one —
Johnson, Diet, by Todd, ad verb.

6 As to sewerage rates, see Judgm., Taylor v. Loft, 8 Exch. 278.

6 Per Wilde, C. J., Gosling v. Veley, 12 Q. B. 407 (64 E. C. L. R.). " The
law of England is most careful to protect the subject from the imposition of
any tax, except it be founded upon and supported by clear and distinct lawful
authority." Per Martin B., Gosling v. Veley, 4 H. L. Cas. 727. Per Lord
Truro, Id. 781. " The law requires clear demonstration that a tax is lawfully
imposed." Judgm., Burder v. Veley, 12 A. & E. 247 (40 E. C. L. R.). " It

4- BROOM'S LEGAL MAXIMS.

In the familiar instance, likewise, of an Act of Parlia-
L -I ment *for promoting some specific object or undertaking of
public utility, as a turnpike, navigation, canal, railway, or paving
Act, the legislature will not scruple to interfere with private prop-
erty, and will even compel the owner of land to alienate his pos-
sessions on receiving a reasonable price and compensation1 for so
doing; but such an arbitrary exercise of power2 is indulged with
caution; the true principle applicable to all such cases being, that
the private interest of the individual is never to be sacrificed to a
greater extent than is necessary to secure a public object of adequate
importance.3 The Courts, therefore, will not so construe an Act of
Parliament as to deprive persons of their estates and transfer them
to other parties without compensation, in the absence of any mani-
fest or obvious reason of policy for thus doing, unless they are so
fettered by the express words of the statute4 as to be unable to
extricate themselves, for they will not suppose that the legislature
had such an intention.5

is a well settled rule of law that every charge upon the subject must be
imposed by clear and unambiguous language." Per Bayley, J., Denn v.
Diamond, 4 B. & C. 245 (10 E. C. L. R.) ; per Bramwell, B., A. G. v. Lord
Middleton, 3 H. & N. 138.

1 In the case of an action brought to obtain compensation by a person
whose land has been taken possession of by the Crown or by any private indi-
vidual, the items recoverable will be: — 1. The value of the land; 2. The
consequential injury ; 3. The expense to which the complainant has been put
in maintaining his action. Per Pollock, C. B., lie Laws, 1 Exch. 447.

As to the items recoverable in respect of depreciation of property under
the Lands Clauses Act, 1845,. see Duke of Buccleuch v. Metrop. Board of
Works, L. R. 3 Ex. 306.

2 See per Lord Eldon, C, 1 My. & K. 162. Judgm., Tawney v. Lynn and
Ely R. C, 16 L. J. (Chan.) 282; Webb v. Manchester and Leeds R. C, 4
My. & Cr. 116.

3 See judgm., Simpson v. Lord Howden, 1 Keen 598, 599 ; Lister v. Lobley,
7 A. &E. i24 (34 E. C. L. R.).

4 " The word 'statute' has several meanings. It may mean (ut supra)
what is popularly called an Act of Parliament or a code, such as the Stat, of
Westminster I., or all the Acts passed in one Session, which was the original
meaning of the word." Per*Lord Campbell, C. J., Reg. v. Bakewell, 7 E. &
B. 851 (90 E. C. L. R ).

6 See per Lord Abinger, C. B., Stracey v. Nelson, 12 M. & W. 540, 541 ;
per Alderson, B., Doe d. Hutchinson v. Manchester and Rosendale R. C, 14
M. & W. 694; Anon., Lofft 442; R. v. Croke, Cowp. 29; Clarence R. C. v.
Great North of England R. C, 4 Q. B. 46 (45 E. C. L. R.).

RULES FOUNDED ON PUBLIC POLICY. 6

*And " where an Act of Parliament is susceptible of two con-
structions, one of which will have the effect of destroying the L -•
property of large numbers of the community and the other will not,"
the Court will " assume that the legislature intended the former to
be applied to it."1 Also as judicially observed, where large powers
are entrusted to a company to carry their works through a great
extent of country without the consent of the owners and occupiers
of land through which they are to pass, it is reasonable and just,
that any injury to property which can be shown to arise from the
prosecution of those works should be fairly compensated to the
party sustaining it,2 and likewise it is required that the authority
given should be strictly pursued and executed.3

In accordance with the maxim under notice, it was held, that,
where the commissioners appointed by a paving Act occasioned
damage to an individual, without any excess of jurisdiction on their
part, neither the commissioners nor the paviors acting under them
were liable to an action, the statute under which the commissioners
acted not giving them power to award satisfaction to the individuals
who happened to suffer ; and it was observed, that some individuals
suffer an inconvenience under all such Acts of Parliament, but the
interests of individuals must give way *to the accommodation
of the public4 — privatum incommodum publico bono pensatur.5 L J
And "where authority is given by the legislature to do an act,

1 Per Erie, C. J., The Vestry of Chelsea app., King resp., 17 C. B. N. S.
629 (112 E. C. L. R.),

2 Judgm., Reg. v. Eastern Counties R. C, 2 Q. B. 359 (42 E. C. L, R.);
Blakernore v. Glamorganshire Canal Company, 1 Mylne & K. 162, and 2 Cr.
M. & R. 133, 141 ; York and North Midland R. C. v. Reg., 1 E. & B. 858 (72

E. C. L. R.) ; s. c. (in Q. B.) Id. 178, 203-4, 228, 246; Great Western R. C.
v. Reg., Id. 874, 253 ; Reg. v. Lancashire and Yorkshire R. C, 1 E. & B
228 (72 E. C. L. R.).

3 See Taylor v. Clemson, 2 Q. B. 978, 1031 (42 E. C. L. R.) ; s. c. 11 CI. &

F. 610; per Lord Mansfield, C. J., R. v. Croke, 1 Cowp. 26; Ostler v. Cooke,
13 Q. B. 143 (66 E. C. L. R.).

4 Plate Glass Company v. Meredith, 4 T. R. 794, and Boulton v. Crowther,
2 B. & C. 703 (9 E. C. L. R.) ; cited per Williams, J., Pilgrim v. Southampton
and Dorchester R. C, 7 C. B. 228 (62 E. C. L. R.) ; Wilson v. Mayor of New
York, 1 Denio (U. S.) R. 595, 598; see Sutton v. Clarke, 6 Taunt. 29 (1 E.
C. L. R.) ; cited 10 C. B. N. S. 777, 779 (100 E. C. L. R.) ; Alston v. Scales,
9 Bing. 3 (23 E. C. L. R.).

5 Jenk. Cent. 85.

7 BROOM S LEGAL MAXIMS.

parties injured by the doing of it have no legal remedy, but should
appeal to the legislature."1

Cases concerning the liability of trustees or commissioners
appointed for carrying out or taking charge of public works "will
be noticed under the maxim respondeat superior.2 Here, however,
may conveniently be stated two propositions having reference to the
context. 1st. Persons clothed with such official character, though
acting gratuitously, will clearly be liable for negligence or breach of
duty; and 2dly, if trustees acting gratuitously in the performance
of a statutory public duty have by their servants the means of know-
ing of the existence of a nuisance on the trust property, and are
negligently ignorant of and omit to remove it, they will be respon-
sible for damage caused thereby to a third person.3

"We shall hereafter have occasion to consider minutely the general
principles applicable for interpreting statutes passed with a view to
the carrying out of undertakings calculated to interfere with pri-
vate property. We may, *however, observe, in connection
L J with our present subject, that the extraordinary powers with
which railway and other similar companies are invested by the legisla-
ture, are given to them " in consideration of a benefit which, not-
withstanding all other sacrifices, is, on the whole, hoped to be
obtained by the public;" and that, since the public interest is to
protect the rights of all individuals, and to save them from liabili-
ties beyond those which the powers given by such Acts neces-
sarily occasion, they must always be carefully looked to, and must
not be extended further than the legislature has provided, or than
is necessarily and properly required for the purposes which it has
sanctioned.4 It is, moreover, important to notice the distinction
which exists between public and private Acts of Parliament, with

1 See per Wilde, C. J., 7 C. B. 226 (62 E. C. L. R.) ; Mayor of Liverpool v.
Chorley Waterworks Company, 2 De G. M. & G. 852, 860.

2 Post, Chap. IX.

3 Mersey Docks Trustees v. Gibbs; Same v. Penhallow, L. R. 1 H. L. 93,
where the cases are collected; Coe v. Wise, L. R. 1 Q. B. 711; Ohrby v.
Byde Commissioners, 5 B. & S. 743, 750 (117 E. C. L. R.) ; following Hart-
nail v. Ryde Commissioners, 4 B. & S. 361 (116 E. C. L. R.); Collins v.
Middle Level Commissioners, L. R. 4 C. P. 279. See Hyams v. Webster, L.
R. 2 Q. B. 264 ; Southampton and Itchin Bridge Company v. Southampton
Board of Health, 8 E. & B. 801 (92 E. C. L. R.).

4 Per Lord Langdale, M. R., Colman v. Eastern Counties R. C, lOBeav. 14.

RULES FOUNDED ON PUBLIC POLICY. 8

reference to the obligations which they impose. "Where an Act
of Parliament, in express terms, or by necessary implication, em-
powers an individual or individuals to take or interfere with the
property or rights of another, and, upon a sound construction of
the Act, it appears to the Court that such was the intention of the
legislature — in such cases it may well be the duty of the Court,
whose province it is to declare, and not to make the law, to give
effect to the decrees of the legislature so expressed. But, where
an Act of Parliament merely enables an individual or individuals
to treat with property of his or their own, for their own benefit,
and does not, in terms, or by necessary implication, empower him
or them to take or interfere with the property or rights of others,
questions of a very different character arise;" and here the dis-
tinction above mentioned becomes material, for public Acts bind all
the *Queen's subjects; but of private Acts of Parliament,
meaning thereby not merely private estate Acts, but local and L J
personal,1 as opposed to general public Acts, "it is said, that they
do not bind strangers, unless by express words or necessary impli-
cation the intention of the legislature to affect the rights of stran-
gers is apparent in the Act ; and whether an Act is public or
private does not depend upon any technical considerations (such as
having a clause or declaration that the Act shall be deemed a pub-
lic Act), but upon the nature and substance of the case."2

On the other hand, where a statute authorizes the stopping up
and diverting of a highway, and thus interferes with the rights of
the public with a view to promoting the convenience of an indi-
vidual, such provisions as the Act contains framed for ensuring
compensation to the public must receive a liberal construction.
" The rights of the public and the convenience of the individual con-
stantly come into opposition;" in such cases "there may be somer
times vexatious opposition on the one hand, but there may be also
on the other very earnest pursuit of individual advantage, regard-
less of the rights and convenience of the public. Full effect, there-
fore, ought to be given to provisions by which, while due concession

1 See Cock v. Gent, 12 M. & W. 234; Shepherd v. Sharp, 1 H. & N. 115;
Dwarris on Statutes, 2d ed., 463.

2 Per Wigram, V.-C, Dawson v. Paver, 5 Hare 434 (citing Barrington s
Case, 8 Rep. 138 a, and Lucy v. Levington, 1 Ventr. 175).

9-

BROOM S LEGAL MAXIMS.

is made to the individual, proper protection is also afforded to the
public."1

From the principle under consideration, and from the very nature
r*-t()i of the social compact on which municipal law *is theoreti-
cally founded, and under which every man, when he enters
into society, gives up a part of his natural freedom, result those
laws which, in certain cases, authorize the infliction of penalties,
the privation of liberty, and even the destruction of life, with a view
to the future prevention of crime, and to insuring the safety and
well-being of the public ; penal laws, however, should evidently be
restrained within the narrowest limits which may be deemed by the
legislature compatible with the above objects, and should be inter-
preted by the judges, and administered by the executive, in a mild
and liberal spirit. A maxim is, indeed, laid down by Lord Bacon,
which might at first appear inconsistent with these remarks ; for he
observes, that the law will dispense with what he designates as the
u plaeita juris," "rather than crimes and wrongs should be unpun-
ished, quia salus populi suprema lex," and " salus populi, is con-
tained in the repressing offences by punishment," and, therefore,
receditur a placitis juris potius quam injurice et delicto, maneant
impunita.2 This maxim must, at the present day, be understood to
apply to those cases only in which the judges are invested with a
discretionary power to permit such amendments to be made, ex. gr.y
in an indictment, as may prevent justice from being defeated by
mere verbal inaccuracies, or by a non-observance of certain legal
technicalities ;3 and a distinction must, therefore, still be remarked
between the " plaeita" and the "regulce" juris, inasmuch as the
law will rather suffer a particular offence to escape without punish-
ment, than permit a violation of its fixed and positive rules.4

1 Reg. v. Newmarket R. C, 15 Q. B. 702, 713 (69 E. C. L. R.).

2 Bac. Max., reg. 12. 3 See 14 & 15 Vict. c. 100, ss. 1, 24.

4 Bac. Max., reg. 12. The doctrine of our law as to avoiding contracts on
the ground that they are opposed to public policy, will hereafter be con-
sidered.

RULES FOUNDED ON PUBLIC POLICY. 11

♦Necessitas inducit Privilegium quoad Jura privata. [*11]

(Bacon, Max., reg. 5.)

With respect to private rights, necessity privileges a person acting under its

influence.

As a general rule, the law charges no man with default where
the act done is compulsory, and not voluntary, and where there is
not a consent and election on his part ; and, therefore, if either
there he an impossibility for a man to do otherwise, or so great a
perturbation of the judgment and reason as in presumption of law
man's nature cannot overcome, such necessity carries a privilege in
itself.1

Necessity, as contemplated in the above rule, may be considered
under three different heads : — 1. Necessity of self-preservation ; 2.
Of obedience ; 3. Necessity resulting from the act of God or of a
stranger.2

1. Where two persons, being shipwrecked, have got on the same
plank, but, finding it not able to save them both, one of them
thrusts the other from it, and he is drowned ; this homicide is excusa-
ble through unavoidable necessity, and upon the great universal
principle of self-preservation, which prompts every man to save his
own life in preference to that of another, where one of them must
inevitably perish.3 So, if a ferryman overload his boat with mer-
chandise, a passenger may, in case of necessity, throw overboard
the goods to save his own life, and the lives of his fellow-passengers.4
For the same reason, where one man attacks another, and the latter,
without ^fighting, flies, and, after retreating as far as he
safely can, until no other means of escape remain to him, *- ■*
then turns round and kills his assailant, this homicide is excusable
as being committed in self-defence ; the distinction between this kind
of homicide and manslaughter being, that here the slayer could not
otherwise escape although he would, — in manslaughter he would
not escape if he could.5 The same rule extends to the principal
civil and natural relations of life; therefore, master and servant,

1 Bac. Max., reg. 5, cited arg. 1 T. R. 32 ; Jenk. Cent. 280.

2 Bac. Max., reg. 5 : Noy, Max., 9th ed., 32.

8 Bac. Max., reg. 5. 4 Mouse's Case, 12 Rep. 63.

6 Arch. Cr. PI., 16th ed., 586.

12 broom's legal maxims.

parent and child, husband and wife, killing an assailant in the neces-
sary defence of each other respectively, are excused, the act of the
relation assisting being construed the same as the act of the party
himself.1

It should, however, be observed, that, as the excuse of self-defence
is founded on necessity, it can in no case extend beyond the actual
continuance of that necessity by which alone it is warranted ; for, if a
person assaulted does not fall upon the aggressor till the affray is
over, or until the latter is running away, this is revenge, and not
defence. There is another instance of necessity to be mentioned, —
where a man, being in extreme want of food or clothing, steals
either, in Order to relieve his present necessities. In this case the
law of England admits no such excuse as that above considered ; but
the Crown has a power to soften the law, and to extend mercy in a
case of peculiar hardship.2

2. Obedience to existing laws is a sufficient extenuation of guilt
before a civil tribunal.3 As, where the proper officer executes a
r-^-j q-i criminal in strict conformity with his ^sentence, or where an
officer of justice, or other person acting in his aid, in the
legal exercise of a particular duty, kills a person who resists or pre-
vents him from executing it.4 And where a known felony is
attempted upon any one, not only the party assaulted may repel
force by force, but his servant attending him, or any other person
present, may interpose to prevent the mischief, and, if death ensue,
the party so interposing will be justified.5 So, in executing process,
a sheriff, it has been observed, acts as a ministerial officer in pursu-
ance of the command he receives in the king's name from a court
of justice, which command he is bound to obey. He is not a vol-
unteer, acting from his own free will or for his own benefit, but
imperatively commanded to execute the king's writ. He is the ser-
vant of the law, and the agent of an overruling necessity ; and if
the service of the law be a reasonable service, he is (in accordance

1 Tost. Disc. Horn. 274.

2 4 Com. by Broom & Hadley 30, 31.

3 Ejus vero nulla culpa est cui parere necesse sit. D. 50, 17, 169.
* 4 Com., by Broom & Hadley, 211, 212.

5 Fost. Disc. Horn. 274.

RULES FOUNDED ON PUBLIC POLICY. 13

with the above maxim) justly entitled to expect indemnity,1 so long
as he acts with diligence, caution, and pure good faith ; and, it
should be remembered, he is not at liberty to accept or reject the
office at his pleasure, but must serve if commanded by the Crown.2
" The law has always held the sheriff strictly, and with much jeal-
ousy, to the performance of his duty in the execution of writs — both
from the danger there is of fraud and collusion with defendants, and
also because it is a disgrace to the Crown and the administration of
justice, if the king's writs remain unexecuted."3 In *this
case, therefore, the rule of law usually applies, — necessitas L J
quod cogit defendit.4 Although instances do occur where the sheriff
is placed in a situation of difficulty because he is the mere officer of
the Court, and the Court are bound to see that suitors obtain the
fruits of decisions in their favor.5

In the private relations of society, the same principle is likewise,
in some cases, applicable ; as, where obedience proceeds from the
matrimonial subjection of the wife to the husband, from which the
law presumes coercion, and which, in many cases, excuses the wife
from the consequences of criminal misconduct. Thus, if a larceny
be committed by a feme covert in the presence of her husband, the
law presumes that she acted under his immediate coercion, and ex-
cuses her from punishment.6 This presumption, however, may be
rebutted by evidence ; and if it appear that the wife was principally
instrumental in the commission of the crime, acting voluntarily, and
not by constraint of her husband, although he was present and con-
curred, she will be guilty and liable to punishment;7 and if in the

1 For instance, by Interpleader, as to which see per Maule, J., 3 C. B. 341,
342 (54 E. C. L. R.). Per Rolfe, B., 15 M. & W. 197. Per Alderson, B., 14
Id. 801.

2 Per Vaughan, B., Garland v. Carlisle (in error), 2 Cr. & M. 77 ; s. c, 4
CI. & F. 701.

3 Judgm., Howden v. Standish, 6 C. B. 520 (60 E. C. L. R.). As to the
sheriff's duty in respect of executing criminals capitally convicted, see R. v.
Antrobus, 2 A. & E. 788 (29 E. C. L. R.).

4 1 Hale, P. C. 54.

6 See particularly Stockdale v. Hansard, 11 A. & E. 253 (39 E. C. L. R.) ;
Christopherson v. Burton, 3 Exch. 160; per Jervis, C. J., Gregory v. Cotterell,
5 E. & B. 584 (85 E. C. L. R.) ; Hooper v. Lane, 6 H. L. Cas. 443.

6 1 Hale, P. C. 45 ; 1 Hawk., c. 1, s. 9.

14 broom's legal maxims.

absence of her husband she commit a like offence, even by his order
or procurement, her coverture will be no excuse.

But the relation which exists between parent and child, or master

and servant, will not excuse or extenuate the commission of any

crime, of whatever denomination ; for the command to commit a

' crime is void in law, *and can protect neither the com-

L -I mander nor the instrument.1

3. In criminal cases, idiots and lunatics are not chargeable for
their own acts, if committed when in a state of incapacity, it being
a rule of our law, that furiosus solo furore punitur, — a madman is
only punished by his madness;2 the. reason of this rule obviously
being, that, where there exists an incapacity or a defect of under-
standing, inasmuch as there can be no consent of the will, so the
act done cannot be culpable.3 Every man is, however, presumed to
be sane, and to possess a sufficient degree of reason to be responsi-
ble for his actions, until the contrary has been satisfactorily proved ;
and in order to establish a defence on the ground of insanity, it
must be clearly shown that, at the time of the committing of the
act, the party accused was laboring under such a defect of reason,
from disease of the mind, as not to know the nature and quality of
the act he was doing, or if he did know what he was doing, that he
did not know he was doing what was wrong. "If," said the ma-
jority of the judges, in answer to the questions proposed to them,
some years since, by the House of Lords, relative to insane crimi-
nals, "the accused was conscious that the act was one which he
ought not to do, and if that act was, at the same time, contrary to
the law of the land, he is punishable ; and the usual course, there-
fore, has been to leave the question to the jury, whether the party
accused had a sufficient degree of reason to know that he was doing
an act that was wrong ; and this *course we think is correct ;
L J accompanied with such observations and explanations as the
circumstances of each particular case may require."4

Where the party charged with an offence was, at the time of its

1 1 Hale, P. C. 44, 516. 2 Co. Litt. 247 b.

3 As to the tests of mental disease, see Smith v. Tebbitt, L. E. 1 P. & D.
398.

4 M'Nagh ten's Case, 10 CI. & F. 200 ; Keg. v. Higginson, 1 Car. & K. 129
(47 E. C. L. R.).

RULES FOUNDED ON PUBLIC POLICY. 16

commission, under the influence of insane delusion, the application
of the general rule above laid down is, in practice, often attended
with considerable difficulty, and the rule itself will require to be
modified according to the peculiar nature of the delusion and the
infinite diversity of facts which present themselves in evidence.
The following rules and illustrations, mentioned by the learned
judges, will be found to throw considerable light upon this difficult
and interesting subject: — 1st. Where an individual labors under an
insane delusion, in respect of some particular subject or person, and
knew, at the time of committing the alleged crime, that he was
acting contrary to law, he will be punishable according to the nature
of the crime committed. And, 2dly, where such delusion is as to
existing facts, and the individual laboring under it is not, in other
respects, insane, he must be considered in the same situation as to
responsibility as if the facts with respect to which the delusion ex-
isted were real. For instance, if a man, under the influence of his
delusion, supposes another to be in the act of attempting to take
away his life, and he kills that man, as he supposes, in self-defence,
he would be exempt from punishment ; whereas, if his delusion was
that the deceased had inflicted a serious injury upon his character
and fortune, and he killed him in revenge for such supposed injury,
he would be liable to punishment.1

*The immunity from punishment which our law, through r*-|7"i
motives of humanity and justice, allows to persons mentally
affected, is not extended to him who commits a felony, or other
offence, whilst in a state of drunkenness ; he shall not be excused,
because his incapacity arose from his own default, but is answerable
equally as if he had been, when the act was done, in the full posses-
sion of his faculties,2 a principle of law which is embodied in the
familiar adage, qui peccat ebrius luat sobrius.3 As for a drunkard,
says Sir E. Coke,4 who is voluntarius dcemon% he hath no privilege
thereby, but what hurt or ill soever he doeth, his drunkenness doth
aggravate it, omne crimen ebrietas et incendit et detegit. But,

1 10 CI. & F. 211.

2 Bac. Max., reg. 5 adjinem. As to the civil liability which may be incurred
by one intoxicated, see Gore v. Gibson, 13 M. & W. 623 ; Hamilton v. Grain-
ger, 5H.&N. 40.

3 Carey, 93, 133. * 1 Inst. 247 a.

17 broom's legal maxims.

although drunkenness is clearly no excuse for the commission of any
crime, yet proof of the fact of drunkenness may be very material,
as tending to show the intention with which the particular act
charged as an offence was committed, and whether the act done was
accidental or designed.1

In accordance with the principle — necessitas inducit privilegium
— the law excuses the commission of an act prim d facie criminal, if
such act be done involuntarily, and under circumstances which show
that the individual doing it was not really a free agent. Thus, if
A., by force, take the hand of B., in which is a weapon, and there-
with kill C, A. is guilty of murder, but B. is excused ; though, if
merely a moral force be used, as threats, duress of imprisonment,
r*-ici or even an assault to the peril of his *life, in order to compel
him to kill C, this is no legal excuse.2

It must be observed, however, that necessity privileges only quoad
jura privata, and that, if the act to be done be against the common-
wealth, necessity does not excuse — privilegium contra rempublicam
non valet ;3 and hence protection is not allowed in the case of a wife,
if the crime be malum in se, and prohibited by the law of Nature,
or if it be heinous in its character or dangerous in its consequences ;
if a married woman, for instance, be guilty of treason, murder, or
oifences of the like description, in company with, and by coercion
of her husband, she is punishable equally as if she were sole.4 So,
if a man be violently assaulted, and has no other possible means of
escaping death than by killing an innocent person, this fear and
force shall not acquit him of murder, for he ought rather to die him-
self, than escape by the murder of an innocent man.5

Lastly, cases do, although rarely, occur, in which an individual
may be required to sacrifice his own life for the good of the com-
munity, and in which, consequently, the necessity of self-preserva-
tion, which excuses quoad jura privata, is overruled by that higher
necessity which regard to the public welfare imposes, and in such
cases, therefore, the maxim applies necessitas publica major est qudm

1 Broom's Com., 4th ed., 887, 888, where cases bearing upon the subject
above adverted to are collected.

2 1 Hale, P. C. 434 ; 1 East, P. C. 225.

3 Bac. Max., reg. 5 ; Noy, Max., 9th ed., 34 ; arg. 4 St. Tr. 1169.

4 4 Com. by Broom & Hadley 28. 6 Id. 30.

RULES FOUNDED ON PUBLIC POLICY. 18

privata. Death, it has been observed, is the last and farthest point
of particular necessity, and the law imposes it upon every subject,
that he prefer the urgent service of his king and country to the
safety of his life.1

*Summa Ratio est quje pro Religione facit. [*19]

(Co. Lit. 341 a.)
That rule of conduct is to be deemed binding which religion dictates.

The maxim above cited from the commentaries of Sir E. Coke is,
in truth, derived from the Digest ; where Papinian, after remarking
that certain religious observances were favored by the Roman law,
gives as a reason summam esse rationem quce pro religione facit.2

The doctrine, thus expressed, and recognised by our own law,
must be understood in a somewhat qualified sense, and should be
cautiously applied, for, whilst on the one hand " there are many
social duties which are not enforced, and many wicked deeds which
are not punished by human laws,"3 so, on the other, an act spring-
ing from very laudable motives may expose to punishment.4

It may, however, safely be affirmed that, if ever the laws of God
and man are at variance, the former are to be obeyed in derogation
of the latter ; that the law of God is, under all circumstances, supe-
rior in obligation to that of man ; and that, consequently, if any
general custom were opposed t© the Divine law, or if any statute
were passed directly contrary thereto, — as if it were enacted gene-
rally, that no one should give alms to any object in ever so neces-
sitous a condition, — such a custom, or such, an Act, would be void.5

It may further be observed, that, upon these two foundations,

the law of Nature and the law of Revelation, *depend all

r*201
human laws; that is to say, no human laws can be suffered L J

to contradict these. For instance, in the case of murder : this is

expressly forbidden by the divine, and demonstrably by the natural

1 Bac. Max., reg. 5 ; Noy, Max., 9th ed., 34. In connection with the sub-
ject above considered, see the maxim " Lex non cogit impossibilia," post.

2 Dig. 11. 7. 43. 3 Per Cur. 1 Demo (U. S.) R. 206.

4 See, for instance, Reg. v. Sharpe, Dearsl. & B. 160.

5 Doct. & Stud., 18th ed., 15, 16 ; Noy, Max., 9th ed., 2 ; Finch's Law 75,
76.

20 broom's legal maxims.

law, and if any human law should allow or enjoin us to commit it,
we are bound to transgress that human law, or else we must offend
both the natural and the divine.1 " Neither are positive laws, even
in matters seemingly indifferent, any further binding than they are
agreeable with the laws of God and nature."2

It cannot, however, be doubted that obedience to the laws of our
country, provided such laws are not opposed to the law of God, is a
moral duty ; and, therefore, although disobedience is justifiable in
the one case supposed of a contradiction between divine and human
laws, yet this is not so, either where the human law affirms the
divine in a matter not indifferent in itself, — as where it forbids
theft, — or where the human law commands or prohibits in a matter
purely indifferent ; and in both these cases it becomes a moral duty
on the part of the subject to obey.3

Not only would the general maxim which we have been consider-
ing apply, if a conflict should arise between the law of the land and
the law of God, but it likewise holds true with reference to foreign
laws, wheresoever such laws are deemed by our courts inconsistent
with the divine; for although it is well known that courts of justice
in this country will recognise foreign laws and institutions, and will
administer the lex loci in determining as to the validity of contracts,
and in adjudicating upon the rights and liabilities of litigating par-
r*o-M ties, yet, inasmuch as the *proceedings in our courts are
founded upon the law of England, and since that law is in
part founded upon the law of nature and the revealed law of God, it
follows, that, if the right sought to be enforced is inconsistent with
either of these, the English municipal courts cannot recognize it ;
and it may, therefore, be laid down generally, that what is called
international comity, or the comitas inter communitates, cannot pre-
vail here in any case, where its observance would tend to violate the
law of this country, the law of nature, or the law of God.4

1 1 Com. by Broom & Hadley 35. a Treat. Eq. 2.

3 Plowd. 268, 269.

4 See per Best, J., Forbes v. Cochrane, 2 B. & C. 471 (9 E. C. L. R).

Other illustrations of the maxim commented upon supra will doubtless sug-
gest themselves to the reader ; thus, property consecrated to divine uses can-
not be taken in execution by temporal hands — the glebe or churchyard cannot
be taken under an elegit. Judgm., Parry v. Jones, 1 C. B. N. S. 345 (87 E.
C. L. R.).

rules founded on public policy. 21

Dies Dominicus non est juridicus.

{Not/, Max. 2.)
Sunday is not a day for judicial or legal proceedings.

The Sabbath-day is not dies juridicus, for that day ought to be
consecrated to divine service.1 The keeping one day in seven holy
as a time of relaxation and refreshment, as well as for public
worship, is, indeed, admirable service to a state, considered merely
as a civil institution ; and it is the duty of the legislature to remove,
as much as possible, impediments to the due observance of the
Lord's day.2 The Houses of Parliament indeed may, in case of
necessity, sit on a Sunday;3 *but the judges cannot do so,
that day being exempt from all legal business by the com- *- J
mon law;4 an affidavit purporting to be sworn on a Sunday might
be rejected;5 and where an instalment of money under a judge's
order becomes due on a Sunday, it will be payable on the following
day.6

So, by stat. 29 Car. 2, c. 7, s. 6, service of a writ of summons
or other process7 on a Sunday is void, and no subsequent act of the
defendant will be deemed a waiver of this irregularity;8 and, by the
same section, no arrest can be made upon a Sunday, except for
treason, felony, breach of the peace, or, generally, for some indict-

1 Co. Litt. 135, a.; "Wing. Max. 5 (p. 7) ; Finch's Law 7; arg. Winsor v.
Reg., 6 B. &. S. 143, 164 (118 E. C. L. R.). Query whether the verdict in a
criminal case can be taken and recorded on a Sunday? Id.

■ See the preamble of Stat. 3 & 4 Will. 4, c. 31.

3 Per Sir Geo. Grey, Feb. 19, 1866, Hans. Pari. Deb. 3d Series, vol. 181, p.
763.

4 Per Patteson, J., 3 D. & L. 330 ; per Erie, C. J., Mumford v. Hitchcocks,
14 C. B. N. S. 369 (108 E. C. L. R.) ; Fish v. Broket, Plowd. 265 ; s. c. Dyer
181 b. ; Noy, Max., 9th ed., 2 ; Mackalley's Case, 11 Rep. 65, a ; 3 & 4 Will.
4, c. 42, s. 43.

6 Doe d. Williamson v. Roe, 3 D. &. L. 328.

6 Morris v. Barrett, 7 C. B. N. S. 139 (97 E. C. L. R.).

7 But transmission of notice of chargeability of a pauper and order and
grounds of removal by the ordinary post would not be void under the above
statute, though made on a Sunday ; Reg. v. Inhabitants of Leominster, 2 B.
& S. 391 (HOE. C. L. R.).

8 Taylor v. Phillips, 3 East 155 ; M'lleham v. Smith, 8 T. R. 86. And a
writ tested or returnable on a Sunday would be void. Chit. Arch. Pr., 11th
ed., 157, 187.

2

22 BROOM'S LEGAL MAXIMS.

able offence,1 or after a negligent escape.2 So, service of the
declaration in ejectment, or of a rule of court, must not be made on
that day; nor can an attachment be put in force, or an execution
r*oo-i he executed then.3 *Bail may, it seems, take their principal
on Sunday.4 It has been held, also, that, when the 20th of
July, which is the last day for service of notice of claim under the
Registration Act, 6 & 7 Vict. c. 18, s. 4, happens to fall on a Sun-
day, service at the dwelling-house of the overseer upon that day is
good service, for such delivery is no violation of any known rule of
law, the overseer who receives the notice not being called upon to
perform any duty which can interfere with the most scrupulous
observance of the Lord's day.5

If the day fixed for the commencement of term happens to be a
Sunday, it must, for the purpose of computation, and in the absence
of any express statutory provisions, be considered as the first day
of the term, although, as the courts do not sit, no judicial act can
be done, or be supposed to be done, till the following Monday.6
Where, however, the last day of term falls on a Sunday, it is enacted
by 1 Will. 4, c. 3, s. 3, that the Monday next following shall be
deemed and taken to be the last day of term.

Again, the stat. 29 Car. 2, c. 7, s. 1, enacts, that no tradesman,

1 Rawlins v. Ellis, 16 M. & W. 172. Re Eggington, 2 E. & B. 717 (75 E.
C. L. R.). See Samuel v. Buller, 1 Exch. 439, where service of a warrant
of detainer on Sunday was held not to be void. In Percival v. Stamp,
9 Exch. 167, 171, Parke, B., observes that, " if an arrest be made on a
Sunday or in a way not authorized by law, the sheriff cannot afterwards make
that valid by detaining the party under a legal writ, but must first give him
an opportunity of going at large, and then execute the legal writ. But that
is not so with regard to an execution against goods."

2 Moore's Case, 2 Lord Raym. 1028.

3 Chit. Arch. Pr., 11th ed., 163, 1709 5 Rowberry v. Morgan, 9 Exch. 730;
followed in Peacock, app., Reg. resp., 4 C. B. N. S. 264, 267 (93 E. C. L. R.) ;
distinguished per Erie, C. J., Hughes v. Griffiths, 13 C. B. N. S. 334 (106 E.
C. L. R.). Morrison v. Manley, 1 Dowl. N. S., 773 ; Kenworthy v. Peppiatt,
4 B. & Aid. 288 (6 E. C. L. R.).

4 Chit. Arch. Pr., 11th ed., 868.

6 Rawlins v. Overseers of West Derby, 2 C. B. 72, 82 (52 E. C. L. R.); see
Reg. v. Inhabitants of Leominster, 2 B. & S. 391, 400 (110 E. C. L. R.).

6 Chit. Arch. Pr., 11th ed., 157. As to reckoning Sunday in the time limited
for certain proceedings under Stat. 2 Will. 4, c. 39, s. 11, Id. 159.

RULES FOUNDED ON PUBLIC POLICY. 23

artificer, workman, laborer, or other person whatsoever,1 shall do or
exercise any worldly labor, business, or work of his ordinary call-
ing on Sunday (works of necessity and charity only excepted), and
that *every person of the age of fourteen years offending in
the premises shall forfeit the sum' of 5s.2 The effect of which I- -*
enactment is, that if a man, in the exercise of his ordinary calling,3
make a contract on a Sunday, that contract will 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 made upon
it by an innocent party.4 A horse-dealer, for instance, cannot main-
tain an action upon a contract for the sale and warranty of a horse
made by him upon a Sunday ;5 though, if the contract be not com-
pleted on the Sunday, it will not be affected by the statute.6

In a case before the House of Lords, it appeared, that an appren-
tice to a barber in Scotland, who was bound by his indentures " not
to absent himself from his master's business on holiday or week-day,
late hours or early, without leave, went away on Sundays without
leave, and without shaving his master's customers : — Held by the
Lords (reversing the interlocutors of the Court of Session), that the
apprentice could not be lawfully required to attend his master's
shop on Sundays, for the purpose of shaving his customers, and that
that work, and all other sorts of handicraft, were illegal *in r*9^n
England as well as in Scotland, not being works of neces-
sity, mercy, or charity.7

Where, in an action of assumpsit for breach of the warranty of a

1 A farmer is not within the statute, Keg. v. Cleworth, 4 B. & S. 927 (116
E. C.L. R.).

2 Exceptions to the above general rule are in certain cases allowed by
statute, see R. v. Younger, 5 T. R. 449 ; Reg. v. Whiteley, 3 H. & N. 143.

3 See R. v. Inhabs. of Whitnash, 7 B. & C. 596 (14 E. C. L. R.) ; Smith v.
Sparrow, 4 Bing. 84 (13 E. C. L. R.) ; Peate v. Dicken, 1 Cr., M. & R. 422 ;
Scarfe v. Morgan, 4 M. &. W. 270.

4 Judgm., Fennell v. Ridler, 5 B. &. C. 408 (11 E. C. L. R.), explaining
Lord Mansfield's remarks in Drury v. De la Fontaine, 1 Taunt. 135.

6 Fennell v. Ridler, 5 B. &. C. 406 (11 E. C. L. R.).

6 Bloxsome v. Williams, 3 B. & C. 232 (10 E. C. L. R.) ; Smith v. Sparrow,
4 Bing. 84 (13 E. C. L. R.). See also Williams v. Paul, 6 Bing. 653 (19 E.
C. L. R.), (observed upon in Simpson v. Nicholls. 3 M. &. W. 240) ; Beau-
mont v. Brengeri, 5 C. B. 301 (57 E. C. L. R.) ; Norton v. Powell, 4 M. & Gr.
42 (43 E. C. L. R.)

7 Phillips v. Innes, 4 CI. &. Fin. 234.

25 BROOM'S LEGAL MAXIMS.

horse, the defendant alone was in the exercise of his ordinary call-
ing, and it appeared that the plaintiff did not know what his calling
was, so that, in fact, defendant was the only person who had
violated the statute : — The Court held that it would be against
justice to allow the defendant to take advantage of his own wrong,
so as to defeat the rights of the plaintiff, who was innocent.1 And
for the like reason, in an action by the endorsee against the acceptor
of a bill of exchange which was drawn on a Sunday, it was held
that the plaintiff might recover, there being no evidence that it
had been accepted on that day ; but the Court said, that, if it had
been accepted on a Sunday, and such acceptance had been made in
the ordinary calling of the defendant, and if the plaintiff was
acquainted with this circumstance when he took the bill, he would
be precluded from recovering on it, though the defendant would not
be permitted to set up his own illegal act as a defence to an action
at the suit of an innocent holder.2 A bill of exchange falling due
on a Sunday is payable on the preceding day.

A person, however, can commit but one offence on the same day
by exercising his ordinary calling in violation of the statute of
Charles ; and if a justice of the peace convict him in more than one
penalty for the same day, it is an excess of jurisdiction.3
r*9fil *^n Edition to the class of cases decided under the statute
just cited, we may refer to one of a somewhat different des-
cription, in which, however, the principle of public policy which
dictated that statute was discussed. In the case alluded to, a ques-
tion arose as to the validity of a by-law, by which the navigation of
a certain canal was ordered to be closed on every Sunday through-
out the year (works of necessity only excepted). In support of
this by-law was urged the reasonableness of the restriction sought
to be imposed thereby, and its conformity in spirit and tendency
with those enactments by which Sunday trading is prohibited ; the
Court, however, held, that the navigation company had no power,
under their Act, to make the by-law in question, their power being
confined to the making of laws for the government and orderly use
of the navigation, but not extending to the regulation of moral or

1 Bloxsome v. Williams, 3 B. & C. 232 (10 E. C. L. R.) ; cited 5 B. & C. 408,
409 (11 E. C. L. R.).

2 Begbie v. Levi, 1 Cr. & J. 180.

3 Crepps v. Durden, Cowp. 640 ; cited 4 E. & B. .422 (82 E. C. L. R.).

RULES OF LEGISLATIVE POLICY. 26

religious conduct, which must be left to the general law of the land,
and to the laws of God.1 A railway company is bound to deliver
up luggage deposited at the luggage and cloak office on Sunday as
on other days, unless protected by special condition printed on the
receipt ticket.2

§ II. — RULES OF LEGISLATIVE POLICY.

In this section are comprised certain maxims relating to the
operation of statutes, and developing elementary principles, which
the legislature of every civilized country must, for the most part,
observe in its enactments. These *maxims are three in r*o7l
number : 1st, that a later shall repeal an earlier and con-
flicting statute; 2dly, that laws shall not have a retrospective
operation ; and, thirdly, that enactments should be framed with a
view to ordinary rather than extraordinary occurrences. We shall
hereafter have occasion to consider the rules applicable to the con-
struction of statutes, and may, for the present, confine our atten-
tion to the maxims of legislative policy just enumerated.

Leges posteriores priores contrarias abrogant.

(1 Rep. 25 b.)

When the provisions of a later statute are opposed to those of an earlier, the
earlier statute is considered as repealed.

The legislature, which possesses the supreme power in the State,
possesses, as incidental to that power, the right of changing, modi-
fying, and abrogating the existing laws. To assert that any one
Parliament can bind a subsequent Parliament by its ordinances,
would in fact be to contradict the above plain proposition ; if, therefore,
an Act of Parliament contains a clause, " that it shall not be lawful
for the King, by authority of Parliament, during the space of seven
years, to repeal and determine the same Act," such a clause^ which
is technically termed " clausula derogatoria" will be simply void,

1 Calder and Hebble Nav. Co. v. Pilling, 14 M. & W. 76.

8 Stallard v. Great Western R. C, 2B.&S. 419 (110 E. C. L. R.).

27 BROOM'S LEGAL MAXIMS.

and the Act may, nevertheless, be repealed within seven years,1 for
non impedit clausula derogatoria quo minus ah eddem potestate res
dissolvantur a quibus eonstituentur.2 And again, perpetua lex est
nullam legem humanam ac positivam perpetuam esse, et clausula
quae abrogationem excludit ah initio non valet.2 The principle thus
set *forth seems to be of universal application, and it will be
L *" J remembered that, as regards our own Parliament, an Act
may now be altered, amended or repealed in the same session in
which it is passed, " any law or usage to the contrary notwithstand-

lag-
It is then an elementary and necessary rule, that a prior statute
shall give place to a later — Lex posterior derogat priori.41 Non est
novum ut priores leges ad posterior es trahantur,5 provided the inten-
tion of the legislature to repeal the previous statute be expressed
in clear and unambiguous language, and be not merely left to be
inferred from the subsequent statute.6 For a more ancient statute
will not be repealed by a more modern one, unless the later ex-
pressly negative the former, or unless the provisions of the two
statutes are manifestly repugnant, in which latter case the earlier
enactment will be impliedly modified or repealed:7 implied repeals,
moreover, are not favored by the law, since they carry with them a
tacit reproach, that the legislature has ignorantly, and without
knowing it, made one Act repugnant to and inconsistent with
another:8 and the repeal itself casts a reflection upon the wisdom
of former Parliaments.9

*" ^e ru^e'" says ^ord Hardwicke, " touching the repeal
L -'of laws, is leges posterior es priores contr arias abrogant; but

1 Bac. Max., reg. 19. 2 Id.

3 13 & 14 Vict. c. 21, s. 1. * See Mackeld. Civ. L. 6.

6 D. 1. 3. 26. Constitutiones tempore yosteriores potiores sunt his quae, ipsas
prodcesserunt. D. 1. 4. 4. A rule of court may be overridden by a statute ;
see Harris v. Robinson, 2 C. B. 908 (52 E. C. L. R.).

6 See Phipson v. Harvett, 1 Cr., M. & R. 473 ; judgin., Reg. v. St. Edmund's,
Salisbury, 2 Q. B. 84 (42 E. C. L. R.).

7 Gr. & Rud. of Law 190 ; arg. Reg. v. Mayor of London, 13 Q. B. 1 (66 E.
C. L. R.) ; 19 Vin. Abr. 525, " Statutes," (E. 6), pi. 132. See per Lord Ken-
yon, C. J., Williams v. Pritchard, 4 T. R. 2, 4; Ablert v. Pritchard, L. R. 1
C. P. 210 ; Rix v. Borton, 12 A. & E. 470 (40 E. C. L. R.) ; Dakins v. Seaman,
9 M. &. W. 777.

8 Vin. Abr. " Statutes," (E. 6), 132, cited arg. Phipson & Harvett, 1 Cr., M.
& R. 481.

9 Dwarr. Stats., 2d ed., 533.

RULES OF LEGISLATIVE POLICY. 29

subsequent Acts of Parliament, in the affirmative, giving new penal-
ties, and instituting new methods of proceeding, do not [necessa-
rily~],1 repeal former methods and penalties of proceeding, ordained
by preceding Acts of Parliament, without negative words."2 Nor
does an affirmative statute giving a new right of itself of necessity
destroy a previously existing right, unless the intention of the leg-
islature be apparent that the two rights should not exist together.3
In order to repeal an existing enactment, a statute must have either
express words of repeal,4 or must be contrary to, or inconsistent
with, the provisions of the law said to be repealed, or at least men-
tion must be made of that law, showing an intention of the framers
of the later Act of Parliament to repeal the former.5 But uthe
law will not allow the * exposition to revoke or alter by con- r*oQ-i
struction of general words any particular statute, where the
words may have their proper operation without it."6

1 Michell v. Brown, 1 E. & E. 267, 274 (102 E. C. L. R.), where Lord Camp-
bell, C.J., observes, " If a later statute again describes an offence created by
a former statute, and affixes a different punishment to it, varying the proce-
dure, &c, giving an appeal where there was no appeal before, we think that
the prosecutor must proceed for the offence under the later statute. If the
later statute expressly altered the quality of the offence, as by making it a
misdemeanor instead of a felony, or a felony instead of a misdemeanor, the
offence could not be proceeded for under the earlier statute, and the same con-
sequence seems to follow from altering the procedure and the punishment."
See Evans v. Rees, 9 C. B. N. S. 391 (99 E. C. L. R.).

2 Middleton v. Crofts, 2 Atk. 674, cited Wynn v. Davis, 1 Curt. 79. Vin.
Abr. " Statutes," (E. 6), pi. 132, cited arg. Macdougall v. Paterson, 11 C. B.
767 (73 E. C. L. R.).

3 O'Flaherty v. M'Dowell, 6 H. L. Cas. 142, 157.

4 " It is a rule of law that one private Act of Parliament cannot repeal an-
other, except by express enactment." Per Turner, L. J., Trustees of Birken-
head Docks v. Birkenhead Dock Co., 33 L. J. Ch. 457 ; s. c, 4 De G., M. &
G. 732; Purnell app., Wolverhampton New Waterworks Co., resp., 10 C. B.
N. S. 597, 591 (100E. C. L.R.).

6 Per Sir H. Jenner, 1 Curt. 80. See also the cases cited ; arg. Reg. v.
Mayor of London, 13 Q. B. 1 (66 E. C. L. R.) j Bramston v. Mayor, &c, of
Colchester, 6 E. & B. 246 (88 E. C. L. R.) ; Parry v. Croydon Commercial
Gas and Coke Co., 11 C. B. N. S. 579 (103 E. C. L. R.) ; Great Central Gas Co. v.
Clarke, 11 C. B. N. S. 814, 835, 841 (103 E. C. L. R.) ; s. c, 13 Id. 838 ; Daw v.
Metropolitan Board of Works, 12 C. B. N. S. 161 (104 E. C. L. R.) ; Michell
v. Brown, 1 E. & E. 267 (102 E. C. L. R.).

6 Lyn v. Wyn, O. Bridgm. Judgments 122, 127 ; cited per Smith, J., Con-
servators of the Thames v. Hall, L. R. 3 C. P. 421.

30 BROOM'S LEGAL MAXIMS.

Where, then, both Acts are merely affirmative, and the substance
such that both may stand together, the later does not repeal the
former, but they shall both have concurrent efficacy.1 For instance,
if, by a former law, an offence be indictable at the quarter sessions,
and the later law makes the same offence indictable at the assizes ;
here the jurisdiction of the sessions is not taken away, but both
have concurrent jurisdiction, and the offender may be prosecuted at
either, unless the new statute subjoins express negative words, — as
that the offence shall be indictable at the assizes, and not elsewhere.2
So, the general rule of law and construction undoubtedly is, that,
where an Act of Parliament does not create a duty or offence, but
only adds a remedy in respect of a duty or offence which existed
before, it is to be construed as cumulative ; this rule must, however,
in each particular case, be applied with due attention to the language
of the Act of Parliament in question.3 If, for example, a crime be
created *by statute, with a given penalty, and be afterwards
L J repeated in a subsequent enactment with a lesser penalty
attached to it, the new Act would, in effect, operate to repeal the
former penalty ; for though there may no doubt be two remedies in
respect of the same matter, yet they must be of different kinds.4

It has long been established, that, when an Act of Parliament is
repealed, it must be considered (except as to transactions past and
closed) as if it had never existed.5 An indictment, however, for a

1 Dr. Foster's Case, 11 Rep. 62, 63 ; Stuart v. Jones, 1 E. & B. 22 (72 E. C.
L. R.) ; arg. Ashton v. Poynter, 1 Cr., M. & R. 739 ; R. v. Aslett, 1 B. & P.,
N. R. 7 ; Langton v. Hughes, 1 M. & S. 597 ; Com. Dig. " Parliament,"
(R. 9).

2 1 Com. by Broom & Hadley 93. See also the arguments in Reg. v. St.
Edmund's, Salisbury, 2 Q. B. 72 (42 E. C. L. R) ; Reg. v. Justices of Suffolk;
Id. 85. And see Reg. v. Deane, 2 Q. B. 96 (42 E C. L. R.).

3 Judgm., Richards v. Dyke, 3 Q. B. 268 (43 E. C. L. R.) ; Michell v. Brown,
1 E. & E. 267 (102 E. C. L. R.) ; Dwarr. Stats., 2d ed., 530, 532. See Thi-
bault v. Gibson, 12 M. & W. 88.

4 Henderson v. Sherborne, 2 M. & W. 239 ; cited and approved in Robinson
v. Emerson, 4 H. & C. 355 , per Lord Abinger, C. B., A. G. v. Lockwood, 9 M.
& W. 391 ; R. v. Davis, Leach C. C. 271. See also Wrightup v. Greenacre,
10 Q. B. 1 (59 E. C. L. R.), recognising Pilkington v. Cooke, 16 M. & W. 615.

5 Per Lord Tenterden, C. J., Surtees v. Ellison, 9 B. & C. 752 (17 E. C. L.
R.) ; Dean v. Mellard, 15 C. B. N. S. 19, 25 (109 E. C. L. R.) ; per Lord
Campbell, C. J., Reg. v. Inhabs. of Denton, 18 Q. B. 770 (83 E. C. L. R.) ;
Taylor v. Vansittart, 4 E. & B. 910 (82 E. C. L. R.) ; per Parke B., Simpson
v. Ready, 11 M. & W. 346.

RULES OF LEGISLATIVE POLICY. 31

conspiracy to violate the provisions of a statute will lie after the
repeal of such statute for an offence committed before Jhe repeal.1
By Act of Parliament the liability to repair certain highways in a
parish was taken from the parish and cast upon certain townships
in which the highways respectively were, a form of indictment being
given by the Act against such townships for non-repair, which would
have been insufficient at common law. One of the townships was
indicted under the Act which before trial was repealed without any
reference to depending prosecutions : — the Court of Queen's Bench
arrested a judgment given against the township on such indict-
ment.2

There is, moreover, a difference to be remarked between temporary
statutes and statutes which have been repealed; *for, r*Qo-|
although the latter (except so far as they relate to transac-
tions already completed under them) become as if they had never
existed, yet, with respect to the former, the extent of the restric-
tions imposed, and the duration of the provisions, are matters of
construction.3

Formerly, when a statute which repealed another was itself sub-
sequently repealed, the first statute was — if nothing inconsistent
with such an intention appeared4 — thereby revived, without any
formal words for that purpose ;5 though where a contract for insur-
ing tickets in the lottery was void by statute when made, such con-
tract was held not to be set up again by a repeal of the statute
between the time of contracting and the commencement of the suit.6
And it is now expressly enacted that " where any Act repealing in
whole, or in part, any former Act, is itself repealed, such last re-
peal shall not revive the Act or provisions before repealed," unless
words be added, reviving them.7 Also, wherever " any Act shall
be made repealing in whole or in part any former Act, and substi-
tuting some provision or provisions instead of the provision or pro-

1 Reg v. Thompson, 16 Q. B. 832 (71 E. C. L. R.).

2 Reg. v. Inhabs. of Denton, 18 Q. B. 761 (83 E. C. L. R.). See Foster v.
Pritchard, 2 H. & N. 151.

3 Per Parke, B., Stevenson v. Oliver, 8 M. & W. 241.

4 Hellawell v. Eastwood, 6 Exch. 295.

6 The Bishops' Case, 12 Rep. 7. See 2 Inst. 685.

6 Jaques v. Withy, 1 H. Bla. 65, cited per Coleridge, J., Hitchcock v. "Way,
6 A. & E. 946 (33 E. C. L. R.).

7 13 & 14 Vict. c. 21, s. 5.

32 broom's legal maxims.

visions repealed, such provision or provisions so repealed shall
remain in force until the substituted provision or provisions shall
come into operation by force of the last made Act."1

Prior to the stat. 33 Geo. 3, c. 13, it was not possible to know
the precise day on which an Act of Parliament *received the
L J royal assent, and all Acts passed in the same session of Par-
liament were considered to have received the royal assent on the
same day, and were referred to the first day of the session ; but, by
the above statute, it is provided that a certain parliamentary officer,
styled " the clerk of the Parliaments," shall indorse, on every Act
of Parliament, " the day, month, and year, when the same shall
have passed and shall have received the royal assent, and such in-
dorsement shall be taken to be a part of such Act, and to be the
date of its commencement, where no other commencement shall be
therein provided." When, therefore, two Acts, passed in the same
session of Parliament, are repugnant or contradictory to each other,
that Act which last received the royal assent will prevail, and will
have the effect of repealing wholly, or pro tanto, the previous stat-
ute.2 The same principle, moreover, applies where the proviso of
an Act is directly repugnant to the purview of it ; for in this case
the proviso shall stand, and be held to be a repeal of the purview,
as it speaks the last intention of the makers.3

Not merely does an old statute give place to a new one, but,
where the common law and the statute differ, the common law gives
place to the statute,4 if expressed in negative terms.5 And, in like
manner, an ancient custom may be abrogated and destroyed by the
express provisions of a statute ; or where inconsistent with and
r*R4/l rePugnant t° its positive language.6 But "the law *and
customs of England cannot be changed without an Act of

1 Id. s. 6. See Levi v. Sanderson, L. R. 4 Q. B. 330 ; Mirfin v. Attwood,
Id. ; Mount v. Taylor, L. R. 3 C. P. 645 ; Butcher v. Henderson, L. R. 3 Q.
B. 335.

2 R. v. Justices of Middlesex, 2 B. & Ad. 818 (22 E. C. L. R.) ; Paget v. Foley,
2 Bing. N. C. 691 (29 E. C. L. R.).

3 A. "G. v. Chelsea Waterworks Co., Fitzgib. 195, cited 2 B. & Ad. 826 (22
E. C. L. R.).

4 Co. Litt. 115 b; Paget v. Foley, 2 Bing. N. C. 679 (29 E. C. L. R.); per
Lord Ellenborough, C. J., R. v. Aslett, 1 N. R. 7 ; Dresser v. Bosanquet, 4
B. & S. 460, 486^116 E. C. L. R.).

6 Bac. Abr., 7th ed., "Statute," (G).

8 Merchant Tailors' Co. v. Truscott, 11 Exch. 855; Salters' Co. v. Jay, 3 Q.
B. 109 (43 E. C. L. R.) ; Huxham v. Wheeler, 3 H. & C. 75.

RULES OF LEGISLATIVE POLICY. 34

Parliament, for this, that the law and custom of England is the
inheritance of the subject, which he cannot be deprived of without
his assent in Parliament.1"

Statutes, however, "are not presumed to make any alteration in
the common law, further or otherwise than the Act does expressly
declare ; therefore, in all general matters the law presumes the Act
did not intend to make any alteration, for, if Parliament had had
that design they would have expressed it in the Act."2

Nova Constitutio futuris Formam imponere debet, non

pr^teritis.

(2 Inst. 292.)
A legislative enactment ought to be prospective, not retrospective, in its operation.

Every statute which takes away or impairs a vested right
acquired under existing laws, or creates a new obligation, imposes
a new duty, or attaches a new disability, in respect of transactions
or considerations already past, must be deemed retrospective3 in its
operation, and opposed to sound principles of jurisprudence.4 In
the Roman law, we find it laid down generally, that nemo potest
mutare consilium mum -in alierius injuriam;5 *and this
maxim has, by the civilians6 been specifically applied as a *- *
restriction upon the law-giver, who was thus forbidden to change
his mind to the prejudice of a vested right ; and that this interpre-
tation of the rule is at all events in strict conformity with the
spirit of the civil law appears clearly by a reference to the Code,
where the principle, which we here propose to consider, is thus
stated : Leges et constitutiones futuris certum est dare formam
negotiis, non ad facta prceterita revocari ; nisi nominatim et depros-

1 12 Rep. 29.

2 Per Trevor, C. J., 11 Mod. 150. See 26 & 27 Vict. c. 125, s. 1.

3 Per Story, J., 2 Gallis. (U. S.) R. 139. In the judgment of Kent, C. J.,
Dash v. Van Kleeck, 7 Johns. (U. S.) R. 503 et seq., the rule as to nova con-
stitute is fully considered, and various cases and authorities upon this subject
are reviewed.

4 Instances of retrospective legislation are given in the arg. The Wiltes
Peerage, L. R. 4 H. L. 146.

6 D. 50, 17, 75.

6 Taylor, Elem. Civ. Law, 168.

35 broom's legal maxims.

terito tempore et adhuc pendentibus negotis cautum sit.1 Laws
should be construed as prospective not as retrospective, unless they
are expressly made applicable to past transactions, and to such as
are still pending.2 And parties must prima facie be taken to con-
tract with reference to the existing law only, unless there be enough
to show that they contracted with reference to possible alterations
in the law.3

Though a distinction must be noticed between new enactments
which affect vested rights and those which merely affect the pro-
cedure in courts of justice. When a new enactment deals with
rights of action, unless it is so expressed in the Act, an existing
right of action is not taken away. But where the enactment deals
with procedure only, unless the contrary is expressed, the enact-
ment applies to all actions whether commenced before or after the
passing of the Act.4

*It is, however, in general true, that a statute shall not
L -• be so construed as to operate retrospectively, or to take
away a vested right, unless it contain either an enumeration of the
cases in which it is to have such an operation, or words which can
have no meaning unless such a construction is adopted.5

On various occasions it has, in accordance with the above doc-
trine, been laid down, that, where the law is altered by a statute
pending an action, the law, as it existed when the action was com-
menced, must decide the rights of the parties in the suit, unless the
legislature express a clear intention to vary the relation of litigant
parties to each other.6 The Statute of Frauds (29 Car. 2, c. 3)
was passed in 1676, and by sect. 4 provides, that, from and after

1 Cod. 1, 14, 7. 2 See 15 Mass. (U. S.) R. 454.

8 Per Parke, B., Vansittarfc v. Taylor, 4 E. & B. 912 (82 E. C. L. R.) ; Mayor
of Berwick v. Oswald, 3 E. & B. 653 (77 E. C. L. R.); s. c. 1 E. & B. 295;

5 H. L. Cas. 856; with which compare Mayor of Dartmouth v. Silly, 7 E.

6 B. 97 (77 E. C. L. R.) ; Pybus v. Gibb, 6 E. & B. 902 (88 E. C. L. R.).

4 Wright v. Hale, 6 H. & N. 227, 230, 232 ; followed in Kimbray v. Draper,
L. R. 3 Q. B. 160.

5 7 Bac. Abr., 7th ed., " Statute" (C), p. 439. See Latless v. Holmes, 4 T.
R. 660 ; cited Whitaker t>. Wisbey, 12 C. B. 52 (74 E. C. L. R.) ; Doe d. John-
son v. Liversedge, 11 M. & W. 517; Dash v. Van Kleeck, 7 Johnson (U. S.)
R. 477.

6 Hitchcock v. Way, 6 A. & E. 943, 951 (33 E. C. L. R.) ; Paddon v. Bart-
lett, 3 A. & E. 895, 896 (30 E. C. L. R.) ; per Lord Abinger, C. B., Chappell
v. Purday, 12 M. & W. 305, 306.

RULES OF LEGISLATIVE POLICY. 36

the 14th June, 1677, no action shall be brought whereby to charge
any person upon any agreement made upon consideration of mar-
riage, &c, unless the agreement upon which such action shall be
brought, or some memorandum thereof, shall be in writing, and
signed by the party or some other person thereunto by him lawfully
authorized ; and the question was, whether a promise of marriage
made before the new Act, but to be performed after, would sustain
an action without note in writing. The Court were of opinion that
the action lay, notwithstanding the statute, which it was agreed did
not extend to promises made before the 24th of June ; and judg-
ment was given for the plaintiff.1

*Moon v. Durden2 may be cited as a leading decision in r*on-\
reference to the application of the above maxim. The 8 &
9 Yict. c. 109, s. 18, which received the royal assent on the 8th
August, 1845, enacts that "all contracts and agreements by way
of gaming or wagering shall be null and void ; and that no suit
shall be brought or maintained in any court of law or equity for
recovering any sum of money or valuable thing alleged to be won
upon any wager, or which shall have been deposited in the hands of
any person to abide the event upon which any wager shall have been
made;" this section was held not to defeat an action for a wager
which had been commenced before the passing of the Act. In the
case just cited, Parke, B., observes that the language of the clause
above set out, if taken in its ordinary sense, "applies to all con-
tracts both past and future, and to all actions both present and
future on any wager whether past or future." But it is as Lord
Coke says, " a rule and law of Parliament, that regularly nova eon-
stitutio futuris formam imponere debet non pr arteritis. This rule
which is in effect that enactments in a statute are generally to be
construed to be prospective, and intended to regulate the future
conduct of persons, is deeply founded in good sense and strict
justice, and has been acted upon in many cases.3 * * * But this

1 Gilmore v. Shuter, Jones R. 108 ; s. c, 2 Lev. 227.

2 2 Exch. 22, recognised in Pettamberdass v. Thackoorseydass, 7 Moore P.
C. C. 239; arg. James v. Isaacs, 12 C. B. 795 (74 E. C. L. R.) ; Pinhorn v.
Sauster, 8 Exch. 138, 142 ; Hobson v. Neale, Id. 131 ; Vansittart v. Taylor, 4
E. & B. 910 (82 E. C. L. R.) ; Langton v. Haynes, 1 H. & N. 366 ; Reg. v.
Inhabs. of Madeley, 15 Q. B. 43 (69 E. C. L. R.) ; Harris v. Lawrence, 1 Exch.
697 ; Parker v. Crouch, Id. 699. See also A. G. v. Sillem, 10 H. L. Cas. 704.

3 Citing Gilmore v. Shuter, T. Jones 108 ; s. c, 2 Shaw 16 ; Edmonds v.
Lawley, 6 M. & W. 285 ; Moore v. Phillips, 7M.&W. 536.

37 broom's legal maxims.

rule, which is one of construction only, will certainly yield to the
intention of the *legislature ; and the question in this and
L -J every other similar case is, whether that intention has heen
sufficiently expressed." In this case Rolfe, B., also remarks that
the principle as to nova constitutio " is one of such obvious conve-
nience and justice that it must always be adhered to in the construc-
tion of statutes, unless in cases where there is something on the
face of the enactment putting it beyond doubt that the legislature
meant it to operate retrospectively."1 To a like effect, in Marsh v.
Higgin,2 Wilde, C. J., says that "sometimes, no doubt, the legisla-
ture finds it expedient to give a retrospective operation to an Act
to a considerable extent; but then care is always taken to express
that intention in clear and unambiguous language." And by a like
rule of construction have the courts been guided in construing the
first3 and fourteenth4 sections of "The Mercantile Law Amendment
Act, 1856."

Where a patent originally void was amended under 5 & 6 Will.
4, c. 83, 5 by filing a disclaimer of part of the invention, the above
Act was held not to have a "retrospective operation, so as to
*• -■ make a party liable for an infringement of the patent prior
to the time of entering such disclaimer. " The rule," observed
Parke, B., " by which we are to be guided in construing Acts of
Parliament, is to look at the precise words, and to construe them
in their ordinary sense, unless it would lead to any absurdity or

1 Bearing upon the above subject, see Smallcombe v. Olivier, 13 M. & W.
77, 87 ; A. G. v. Bristol Waterworks Co., 10 Exch. 884 ; Elliott v. Bishop, Id.
927 ; Boodle v. Davis, 8 Exch. 351 ; Waugh v. Middleton, Id. 352 ; Larpent v.
Bibby, 5 H. L. Cas. 481 ; A. G. v. Marquis of Hertford, 3 Exch. 670, 687,
688 ; Reg. v. Inhabs. of St. Mary, Whitechapel, 12 Q. B. 120 (64 E. 0. L. R.) ;
Leary v. Patrick, 15 Q. B. 266, 271 (69 E. C. L. R.) ; Mackenzie v. Sligo and
Shannon R. C, 18 Q. B. 862 (83 E. C. L. R.) ; per Williams, J., Upton v.
Townend, 17 C. B. 50 (84 E. C. L. R.). And see the cases cited by counsel,
arg. 12 Q. B. 109, 131 (64 E. C. L. R.) ; Reg. v. Inhabs. of Christchurch, Id.
149.

2 9 C. B. 551, 567 (67 E. C. L. R.), and cases there cited. There is no rule
of law which prohibits a retrospective rate : from the language of the Act
under which it is laid must be gathered the intention of the legislature : Har-
rison v. Stickney, 2 H. L. Cas. 108, 125.

3 Williams v. Smith, 4 H. & N. 559 ; s. c, 2 Id. 443.

* Jackson u. Woolley, 8 E. & B. 778, 784 (92 E. C. L. R.).
5 As to which see Ralston v. Smith, 11 H. L. Cas. 223.

RULES OF LEGISLATIVE POLICY. 39

manifest injustice, and, if it should, so to vary and modify them as
to avoid that which it certainly could not have been the intention
of the legislature should be done. Now, if the construction con-
tended for was to be considered as the right construction, it would
lead to the manifest injustice of a party who might have put himself
to great expense in the making of machines or engines, the subject
of the grant of a patent, on the faith of that patent being void,
being made a wrong-doer by relation : that is an effect the law will
not give to any Act of Parliament, unless the words are manifest
and plain."1 "Those whose duty it is to administer the law,"
observed Erie, C. J., in a recent case,2 "very properly guard against
giving to an Act of Parliament a retrospective operation, unless
the intention of the legislature that it should be so construed is ex-
pressed in clear, plain, and unambiguous language ; because it mani-
festly shocks one's sense of justice that an act legal at the time of
doing it should be made unlawful by some new enactment. Modern
legislation has almost *entirely removed that blemish from i-jmq-i
the law; and wherever it is possible to put upon an Act of
Parliament a construction not retrospective, the courts will always
adopt that construction."

Where, indeed, the words of a statute are manifest- and plain,
the court will give effect to them, notwithstanding any particular
hardship, inconvenience or detriment, which may be thereby occa-
sioned. For instance, by letters patent granted to the plaintiff, it
was amongst other things provided that, if he should not particu-
larly describe and ascertain the nature of his invention, and in
what manner the same was to be performed, by an instrument in
writing under his hand and seal, and cause the same to be enrolled
in Her Majesty's High Court of Chancery within four calendar
months next and immediately after the date of the said letters
patent, then the said letters patent should become void. By an

1 Perry v. Skinner, 2 M. & W. 471, 476. As to which see, however, per
Jervis, C. J., Reg. v. Mill, 10 C. B. 389, 391 (70 E. C. L. R.) ; per Parke, B.,
Wallington v. Dale, 7 Exch. 907. See also Stocker v. Warner, 1 C. B. 148,
167 (50 E. C. L. R.) ; Russell v. Ledsam, 14 M. & W. 574 ; s. c. 16 Id. 633 ; 1
H. L. Cas. 687. As to the general principle illustrated in the text, see
further: Doe d. Evans v. Pye, 5 Q. B. 767, 772 (48 E. C. L. R.) ; Thompson v.
Lack, 3 C. B. 540 (54 E. C. L. R.), and cases cited ante.

a Midland R. C. app., Pye resp., 10 C. B. N. S. 191 (100 E. C. L. R.)-

40 broom's legal maxims.

Act of Parliament, 4 & 5 Vict. c. 1, subsequently obtained, which
recited that letters patent had been granted to the plaintiff; that
the specification was enrolled within six months, instead of being
enrolled within four months after the date thereof, as required by
the letters patent ; that such non-enrolment had arisen from inad-
vertence and misinformation ; and that it was expedient that the
patent should be rendered valid to the extent thereinafter men-
tioned: it was enacted, that the letters patent should, during the
remainder of the term, be considered, deemed, and taken to be as
valid and effectual to all intents and purposes as if the specification
thereunder so enrolled by the plaintiff within six months after the
date thereof, had been enrolled within four months. In case for
infringement of the patent by the defendant, who had himself ob-
tained letters patent for a bond fide improvement upon *the
L -1 plaintiff's invention prior to the passing of the said Act of
Parliament, and at a time when the plaintiff's patent had ceased to
have any validity, by reason of its non-enrolment : it was held, that
the Act of Parliament in question operated as a complete confirma-*
tion of the plaintiff's patent, although such a construction imposed
upon the defendant the hardship of having his patent destroyed by
an ex post facto law.1

The preceding may perhaps be considered a strong, but is by
no means a solitary, instance2 of a statute being held to have a
retrospective operation. Thus, the plaintiff sued in Hilary Term,
1829, for a debt which had accrued due more than six years pre-
viously : it was held that the statute 9 Geo. 4, c. 14, which came
into operation on the 1st January, 1829, precluded him from
recovering on an oral promise to pay the debt made by defendant
in February, 1828.3 In this case the action was brought after the
statute had begun to operate; but the same principle was applied
where the action was brought before, though not tried till after, the

1 Stead v. Carey, 1 C. B. 496 (50 E. C. L. R.). See further as to retro-
spective statutes per Dr. Lushington, The Ironsides, Lush. Adm. R. 465.

2 See, as to stat. 2 & 3 Vict. c. 37. s. 1, Hodgkinson v. Wyatt, 4 Q. B. 749
(45 E. C. L. R.) : as to stat. 6 & 7 Vict. c. 73, s. 37, Brooks v. Bockett, 9 Q. B.
847 (58 E. C. L. R.) : as to stat. 20 & 21 Vict. c. 85, s. 21, Midland R. C, app.,
Pye, resp., 10 C. B. N. S. 179 (100 E. C. L. R.) ; as to stat. 21 & 22 Vict. c.
90, Wright v. Greenroyd, 1 B. & S. 758, 762 (101 E. C. L. R.).

3 Towler v. Chatterton, 6 Bing. 258 (19 E. C. L. R.), recognised in Reg. v.
Leeds and Bradford R. C, 18 Q. B. 343 (83 E. C. L. R.). See also Bradshaw
v. Tasker, 2 My. & K. 221 ; Fourdrin v. Gowdey, 3 My. & K. 383.

RULES OF LEGISLATIVE POLICY. 41

statute came in force.1 There are, moreover, several authorities
for extending remedial enactments to inchoate transactions,2 yet
these appear to have turned on the peculiar wording of particular
*Acts, which seemed to the Court to compel them to give the
law an ex post facto operation.3 We may also, in connection L -»
with this part of the subject, observe that, where an Act of Parliament
is passed to correct an error by omission in a former statute of the
same session, it relates back to the time when the first Act passed,
and the two must be taken together as if they were one and the
same Act, and the first must be read as containing in itself in words
the amendments supplied by the last.4

The injustice and impolicy of ex post facto5 or retrospective legis-
lation are yet more apparent with reference to criminal laws6 than
to such as regard property or contracts ; and, with reference to the
operation of a new criminal law, the maxim of Paulus,7 adopted by
Lord Bacon, applies, nunquam crescit ex post facto praiteriti delicti
osstimatio, the law does not allow a later fact, a circumstance or
matter subsequent, to extend or amplify an offence: it construes
neither penal laws nor penal facts by intendment, but considers the
offence in degree as it stood at the time when it was committed.8

*Ad ea quje frequentius accldunt jura adaptantur. [*43]

(2 Inst. 137.)
The laws are adapted to those cases which most frequently occur.

Laws ought to be, and usually are, framed with a view to such
cases as are of frequent rather than such as are of rare or acci-

1 Kirkhaugh v. Herbert, and an anonymous case, cited 6 Bing. 265 (19 E.
C. L. R.).

2 See the cases cited, arg. 6 A. & E. 946 (33 E. C. L. R.), and supra.

3 Judgra., 6 A. & E. 951 (33 E. C. L. R.). See Burn v. Carvalho, 1 A. & E.
895 (28 E. C. L. R.).

4 2 Dwarr. Stats. 685.

5 As to the meaning and derivation of this expression, see note, 2 Peters
(U. S.) R. 683.

6 "There can," moreover, "be no doubt that every so-called Indemnity Act
involves a manifest violation of justice, inasmuch as it depi'ives those who
have suffered wrongs of their vested right to the redress which the law would
otherwise afford them, and gives immunity to those who have inflicted those
wrongs." Judgm., Phillips v. Eyre, L. R. 4 Q. B. 242.

i D. 50. 17. 138. § 1. 8 Bac. Max., reg. 8.

3

43 BROOM'S LEGAL MAXIMS.

dental occurrence, or, in the language of the civil law, jus constitui
oportet in his qua? ut plurimum accidunt non quce ex inopinato ;l for,
neque leges neque senatus-consulta ita scribi possunt ut omnes casus
qui quandoque ineiderint comprehendantur, sed sufficit ea quce
plerumque accidunt contineri,2 laws cannot be so worded as to
include every case which may arise, but it is sufficient if they apply
to those things which most frequently happen. Public Acts, it may
likewise be observed, are seldom made for one particular person, or
limited to one single case; but they are made for the common good,
and prescribe such rules of conduct as it is useful to observe in the
ordinary occurrences of life.3

A few illustrations of the maxim above cited will suffice:
Where a private Act of Parliament, intituled, "An Act to enable
the N. Union Society for Insurance against Loss by Fire, to sue in
the name of their Secretary, and to be sued in the names of their
Directors, Treasurers and *Secretary," enacted that all actions
•- -* and suits might be commenced in the name of the secretary,
as nominal plaintiff: it was held that this Act did not enable the
secretary to petition, on behalf of the society, for a commission of
bankruptcy against their debtor; for the expression "to sue,"
generally speaking, means to bring actions, and ad ea quai fre-
quentius accidunt jura adaptantur^

Again, where the construction of the stat. 11 Geo. 2, c. 19,
which gives a remedy to a landlord whose tenant has fraudulently
removed goods from the demised premises, unless they have been
bond fide sold to one not privy to the fraud, was under considera-
tion : and it was urged that the landlord was not empowered by the
statute to enter the close of a third person, or to break his locks,
for the purpose of seizing the goods, unless he was a party to, or

1 D. 1. 3. 3. See Lord Camden's judgment in Entick v. Carrington, 19
How. St. Tr. 1061. Sir E. Atkyns observes, that "laws are fitted ad ea quce
frequentius accidunt, and not for rare and extraordinary events and acci-
dents." See his "Enquiry into the Power of dispensing with Penal
Statutes," cited 11 St. Tr. 1208. "The rule is ad ea quce frequentius acci-
dunt leges adaptanturf per Bramwell, B., 9 H. L. Cas. 52-, per Willes, J., 10
II. L. Cas. 429.

2 1). 1. 3. 10. 3 See Wood's Treatise of Laws 121.

4 Guthrie v. Fisk, 3 B. & C. 178 (10 E. C. L. R.). Arg. A. G. v. Jackson,
Cr. & J. 108; Wing. Max. 716. Argumentum d communiter accidentibus in
jurefrequens est, Gothofred, ad D. 44. 2. 6.

RULES OP LEGISLATIVE POLICY. 44

at least cognizant of, their fraudulent removal; and further, that
the breaking open of his gates without a previous request to open
them was unjustifiable: the Court held that neither of these condi-
tions need be observed as necessary to the exercise of the right
given by the statute, "for, generally, goods fraudulently removed
are not secreted in a man's close or house without his privity or
consent. The legislature may be presumed to have had this1 in
their contemplation : ad ea quce frequentius accidunt jura adap-
tantur"

In Miller v. Salomons,2 speaking of the statute law, Parke, B., thus
paraphrases the above maxim : — " If, *in the vast majority of
possible cases — in all of ordinary occurrence — the law is in no *- -•
degree inconsistent or unreasonable, construed according to its plain
words, it seems to me to be an untenable proposition, and unsup-
ported by authority, to say that the construction may be varied in
every case, because there is one possible but highly improbable one
in which the law would operate with great severity, and against our
own notions of justice. The utmost that can be reasonably con-
tended is, that it should be varied in that particular case, so as to
obviate that injustice — no further."

The principle under consideration holds as well in reference to
the unwritten as to the statute law. Thus, in Hawtayne v. Bourne,3
Parke, B., in reference to the authority of an agent to raise money
in cases of necessity by pledging the credit of his principal, observes
that no such power exists, except in the case " of the master of a
ship, and of the acceptor of a bill of exchange, for the honor of the
drawer. The latter derives its existence from the law of merchants ;
and in the former case, the law which generally provides for
ordinary events, and not for cases which are of rare occurrence, con-
siders how likely and frequent are accidents at sea, when it may be
necessary in order to have the vessel repaired, or to provide the
means of continuing the voyage, to pledge the credit of her owners;
and therefore it is that the law invests the master with power to
raise money, and by an instrument of hypothecation to pledge the
ship itself, if necessary."

1 Williams v. Roberts, 7 Exch. 618, 628 ; see Thomas v. Watkins, Id. 630.
27Exch. 549; s. c, 8 Id. 778.

3 7 M. & W. 599, 600; the maxim supra is also applied, per Blackburn, J.,
Clarke v. Wright, 6 H. & N. 862.

45

-ty\p broom's legal maxims

It is then true, that, "when the words of a law extend not to an
r*Ao-] inconvenience rarely happening, but do to those *which
often happen, it is good reason not to strain the words further
than they reach, by saying it is casus omissus, and that the law
intended quce frequentius accidunt." "But," on the other hand,
" it is no reason, when the words of a law do enough extend to an
inconvenience seldom happening, that they should not extend to it
as well as if it happened more frequently, because it happens but
seldom."1 Where, however, a casus omissus does really occur in a
statute, either through the inadvertence of the legislature,2 or on
the principle quod semel aut bis existit prcetereunt legislator es? the
rule is, that the particular case thus left unprovided for, must be dis-
posed of according to the law as it existed prior to such statute
— Casus omissus et oblivioni datus dispositioni communis juris relin-
quitur;4 "a casus 07nissus,,i observes Buller, J.,5 " can in no case be
supplied by a Court of Law, for that would be to make laws.

ace. Doyle v. Falconer, L. R. 1 P. C. 328.

2 Reg. v. Inhabs. of Denton, 5 B. & S. 821, 828 (117 E. C. L. R.) ; Cobb v.
Mid Wales R. C, L. R. 1 Q. B. 348, 349.

3D. 1.3.6.

4 5 Rep. 38. See Robinson v. Cotterell, 11 Exch. 476.

6 Jones v. Smart, 1 T. R. 52; per Lord Abinger, C. B., Lane v. Bennett, 1
M. & W. 73; arg. Shepherd v. Hills, 11 Exch. 64.

MAXIMS RELATING TO THE CROWN. 47

*CHAPTER II. [*47]

MAXIMS RELATING TO THE CROWN.

The principal attributes of the Crown are sovereignty or pre-
eminence, perfection, and perpetuity; and these attributes are
attached to the wearer of the crown by the constitution, and may
be said to form his constitutional character and royal dignity. On
the other hand, the principal duty of the sovereign is to govern his
people according to law; and this is not only consonant to the
principles of nature, of liberty, of reason, and of society, but has
always been esteemed an express part of the common law of Eng-
land, even when prerogative was at the highest. In the pages im-
mediately following are collected some of the more important tech-
nical rules, embodying the above general attributes of the Crown,
with remarks as to their meaning and qualifications.1

Rex non debet esse sub homine, sed sub Deo et sub lege,
quia lex facit regem.

(Bract. Lib. i. fo. 5.)

The king is under no man, yet he is in subjection to God and to the law, for
the law makes the king.

The head of the state is regarded by our law in a two- fold char,
acter — as an individual liable like any other to *the acci-
dents of mortality and its frailties; also as a corporation *- J
sole,2 endowed with certain peculiar attributes, the recognition

1 See further, on the subject of this chapter, Mr. Allen's Treatise on the
Royal Prerogative, ed. 1849, and Mr. Chitty's Treatise on the Prerogative of
the Crown, particularly chaps. i>, ii., xv., xvi. ; 1 Com. by Broom & Hadley,
chap. vii. ; Fortescue de Laud. Leg. Ang., by Amos, chap. ix. ; Finch's Law
81; Plowd. Com., chap. xi. ; Bracton, chap. viii.

2 Mr. Allen, however, observes, at page 6 of his Treatise on the Royal Pre-
rogative, that "there is something higher, more mysterious, and more remote
from reality in the conception which the Jaw of England forms of the king
than enters into the notion of a corporation sole."

48 broom's legal maxims.

whereof leads to important consequences. Politically, the sov-
ereign is regarded in this latter character, and is invested with
various functions, which the individual, as such, could not discharge.
"The person of the king," it has been said,1 "is by law made up of
two bodies : a natural body, subject to infancy, infirmity, sickness,
and death; and a political body, perfect, powerful, and perpetual."
These two bodies are inseparably united together, so that they may
be distinguished, but cannot be divided. More often, however, the
sovereign would seem to be regarded by our law in his political
than in his individual and natural capacity, and the attributes of
his former are blended with those of his latter character. As con-
servator of the public peace, the Crown in any criminal proceeding
represents the community at large, prosecutes for the offence com-
mitted against the public, and can alone exercise the prerogative of
pardoning. As the fountain of justice, no court can have compul-
sory jurisdiction over the sovereign; an action for a personal wrong,
r*4Q1 therefore, will not lie against the king ;2 for which rule, *in-
deed, another more technical reason has been assigned — that
the king cannot by his writ command himself to appear coram
judiee. As the dispenser of law and equity, the king is present in
all his courts ; whence it is that he cannot be nonsuit in an action,
nor does he appear by attorney.3

The Case of Prohibitions4' shows, however, that the king is not
above the law, for he cannot in person assume to decide any case,
civil or criminal, but must do so by his judges; the law being "the
golden met-wand and measure to try the causes of the subjects, and
which protected his majesty in safety and peace," — the king being
thus, in truth, sub Deo et lege. This case shows also that an action
will not lie against the Crown for a personal tort, for it is there
laid down that " the king cannot arrest a man for suspicion of trea-
son or felony, as others of his lieges may ;" the reason given being

1 Bagshaw, Rights of the Crown of England, 29; Plowd. 212 a, 217 a, 238;
Allen, Royal Pre. 26 j Bac. Abr. Prerogative (E. 2).

2 Post. As to proceedings by or against foreign potentates in our courts,
see Wadsworth v. Queen of Spain, and De Haber v. Queen of Portugal, 17 Q.
B. 171 (79 E. C. L. R.); Duke of Brunswick v. King of Hanover, 2 H. L.
Cas. 1 ; Munden v. Duke of Brunswick, 10 Q. B. 656 (59 E. C. L. R.).

3 1 Com. by Broom & Hadley, 3:i3; Finch's Law, by Pickering, 82.

4 Prohibitions del Roy, 12 Rep. 63 ; Plowd. 241, 553.

MAXIMS RELATING TO THE CROWN. 49

that if a wrong be thus done to an individual, the party grieved
cannot have remedy against the king. But although in these and
other respects, presently to be noticed, the king is greatly favored
by the law, being exempted from the operation of various rules ap-
plicable to the subject, he is on the whole, and essentially, beneath
not superior to it, theoretically in some respects above, but practi-
cally bound and directed by its ordinances.1

*Rex nunquam moritur. [*50]

(Branch, Max., 5th ed., 197.)
The king never dies.

The law ascribes to the king, in his political capacity, an absolute
immortality; and, immediately upon the decease of the reigning
prince in his natural capacity, the kingly dignity and the preroga-
tives and politic capacities of the supreme magistrate, by act of
law, without any interregnum or interval, vest at once in his suc-
cessor, who is, eo instante, king, to all intents and purposes ; and
this is in accordance with the maxim of our constitution, In Anglid
non est interregnum.2

"It is true," says Lord Lyndhurst,3 " that the kingjn ever dies, the
demise is immediately followed by the succession, there is no inter-
val; the sovereign always exists, the person only is changed."

So tender, indeed, is the law of supposing even a possibility of
the death of the sovereign, that his natural dissolution is generally
called his demise — demissio regis vel eoronce — an expression which
signifies merely a transfer of property ; and when we speak of the
demise of the Crown, we mean only that, in consequence of the
disunion of the king's natural body from his body politic,4 the king-
dom is transferred or demised to his successor; and so the royal dig-

1 See the Debate in the House of Lords on Life Peerages, Hansard, vol.
140, pp. 263, Ac. In Howard v. Gosset, 10 Q. B. 386 (59 E. C. L. R.), Cole-
ridge, J., observes that " the law is supreme over the House of Commons as
over the Crown itself;" et vide post, p. 53.

2 Jenk. Cent. 205. See Cooper's Account of Public Records, vol. 2, 323,
324. Allen, Royal Prerog. 44.

3 Vise. Canterbury v. A. G., 1 Phill. 322.

4 Ante, p. 48.

50

BROOM S LEGAL MAXIMS.

nity remains perpetual. It has, doubtless, usually been thought
prudent, when the sovereign has been of tender years, at the period
of the devolution upon him of the royal dignity, to appoint a pro-
tector, guardian, or regent, to discharge the functions of royalty for
a limited time; but the very necessity of such extraordinary
*pro vision is sufficient to demonstrate the truth of that
L -■ maxim of the common law, that in the king is no minority,1
for he has no legal guardian ; and the appointment of a regency
must, therefore, be regarded merely as a provision made by the leg-
islature, in order to meet a special and temporary emergency.2

It seems that the Duchy of Cornwall vests in the king's eldest
son and heir apparent at the instant of his birth, without gift or
creation, and as if minority could no more be predicated of him
than of the sovereign himself.3

The throne then goes by descent, not by succession, and if lands
be given to the king and his " heirs," this word " heirs" will be held
to include the "successors" to the Crown, although on the demise
of the sovereign, according to the course of descent recognised at
the common law, the land might have gone in some other channel.
Hence, if the king die without issue male, but leaving two daugh-
ters, lands held to him and his heirs will go to his eldest daughter
as succeeding to the Crown ; whereas, in the case of a subject, lands
whereof he was seised would pass to his daughters, in default of
male issue, as coparceners.4 Similarly, if real estate be given to
the king and his heirs, and afterwards the reigning dynasty be
changed, and another family be placed upon the throne, the land in
question would go to the successor, and then descend in the new line.5
And a grant of land to the king for ever creates in him an estate
of perpetual inheritance,6 * whereas the like words would but
L -■ give an estate for life to any of his subjects.

In regard also to. personal property, the Crown is differently cir-
cumstanced from an individual or from a corporation sole ; for,

1 Bac. Abr. Prerogative (A.)

2 1 Com. by Broom & Hadley, 295 ; 1 Plowd. 177, 234. And see the Stat.
3 & 4 Vict. c. 52.

3 Per Lord Brougham, C, Coop. R. 125.

4 Grant on Corporations 627. See also the Stat. 25 & 26 Vict., c. 37, re-
lating to the private estates of the Sovereign.

6 Grant, Corp. 627. 6 2 Com. by Broom & Hadley, 216.

MAXIMS RELATING TO THE CROWN. 52

according to the ordinary rule, such property will not, in the case
of a corporation sole, go to the successor — in the king's case, by
our common law, it does so.1 And it may be worthy of remark,
that the maxim, " the king never dies," founded manifestly in no-
tions of expediency, and in the apprehension of danger which would
result from an interregnum, does not hold in regard to other corpo-
rations sole. A parson, for instance, albeit clothed with the same
rights and reputed to be the same person as his predecessor, is not
deemed by our law to be continuously in possession of his office, nor
is it deemed essential to the preservation of his official privileges
and immunities that one incumbent should, without any interval of
time or interruption, follow another. Such a corporation sole may,
during an interval of time, cease to be visibly in esse, whereas the
king never dies,^-his throne and office are never vacant.

Rex non potest peccare.

(2 Rolle, R. 304.)
The king can do no wrong.

It is an ancient and fundamental principle of the English consti-
tution, that the king can do no wrong.2 But this maxim must not
be understood to mean that the king is above the laws, in the un-
confined sense of those words, and that everything he does is of
course just *and lawful. Its true meaning is, First, that r*KQ-i
the sovereign, individually and personally, and in his natural
capacity, is independent of and is not amenable to any other earthly
power or jurisdiction; and that whatever may be amiss in the con-
dition of public affairs is not to be imputed to the king, so as to
render him answerable for it personally to his people. Secondly,
the above maxim means, that the prerogative of.the Crown extends
not to do any injury, because, being created for the benefit of the
people, it cannot be exerted to their prejudice, anol it is therefore a
fundamental general rule, that the king cannot sanction any act
forbidden by law ; so that, in this point of view, he is under, and
not above the laws, — and is bound by them equally with his sub-

1 Grant, Corp. 626. " Jenk. Cent. 9, 308.

53 broom's legal maxims.

jects.1 If, then, the sovereign, personally command an unlawful act
to be done, the offence of the instrument is not thereby indemnified ;
for though the king is not himself under the coercive power of the
law, yet in many cases his commands are under the directive power
of the law, which makes the act itself invalid if unlawful, and so
renders the instrument of execution thereof obnoxious to punish-
ment.2 As in affairs of state the ministers of the Crown are held
responsible for advice tendered to it, or even for measures which
might possibly be known to emanate directly from the sovereign, so
may the agents of the sovereign be civilly or criminally answerable
for lawless acts done — if that may be imagined — by his command.
The king, moreover, is not only incapable of doing wrong, but
even of thinking wrong. Whenever, therefore, it happens that, by
p^^.-, misinformation or inadvertence, *the Crown has been induced
to invade the private rights of any of its subjects, — as by grant-
ing any franchise or privilege to a subject contrary to reason, or in
any way prejudicial to the commonwealth or a private person, — the
law will not suppose the king to have meant either an unwise or an
injurious action, for eadem mens prcesumitur regis quce est juris et
quce esse debet prcesertim in dubiis? but declares that the king was
deceived in his grant ; and thereupon such grant becomes void upon
the supposition of fraud and deception either by or upon those
agents whom the Crown has thought proper to employ.4 In like
manner, also, the king's grants are void whenever they tend to
prejudice the course of public justice.5 And, in brief, to use the
words of a learned judge,6 the Crown cannot, in derogation of the
right of the public, unduly limit and fetter the exercise of the pre-
rogative which is vested in the Crown for the pnblic good. The
Crown cannot dispense with anything in which the subject has an
interest,7 nor make a grant in violation of the common law of the

1 Chitt. Pre. Cr. 5 ; Jenk. Cent. 203. See Fortescue, de Laud. Leg. Ang.
(by Amos) 28.

2 1 Hale, P. C. 43, 44, 127. Per Coleridge, J., Howard v. Gosset, 10 Q. B.
386 (59 E. C. L. R.).

3Hobart 154.

4 Gledstanes v. The Earl of Sandwich, 5 Scott N. R. 719 ; R. v. Kempe, 1
Lord Raym. 49, cited Id. 720; Finch's Law 101 ; Vigers v. Dean, &c, of St.
Paul's, 14 Q. B. 909 (68 E. C. L. R.).

6 Chitt. Pre. Cr. 385. 6 See per Piatt, B., 2 E. & B. 884 (75 E. C. L. R.).

7 Thomas v. Waters, Hardr. 443, 448.

MAXIMS RELATING TO THE CROWN. 54

land,1 or injurious to vested rights.2 In this manner it is, that,
while the sovereign himself is, in a personal sense, incapable of doing
wrong, yet his acts may in themselves be contrary to law, and, on
that account, be avoided or set aside by the law.

It must further be observed, that even where the king's grant
purports to be made de gratid speciali, certd scientid, el mero motu,
the grant will, nevertheless, be *void, if it appears to the r*cc-i
Court that the king was deceived in the purpose and intent
thereof: and this agrees with a text of the civil law, which says,
that the above clause non valet in Ms in quibus prcesumitur princi-
pem esse ignorantem ; therefore, if the king grant such an estate as
by law he could not grant, forasmuch as the king was deceived in
the law, his grant will be void.3 Thus the Crown cannot by grant
of lands and tenements create in them a new estate of inheritance,
or give them a new descendible quality,4 and the power of the Crown
is alike restricted as regards the grant of a peerage or honor.5

It does not seem, however, that the above doctrine can be extended
to invalidate an act of the legislature, on the ground that it was
obtained by a suggestio falsi, or suppressio veri. It would indeed be
something new, as forcibly observed by Cresswell, J.,6 to impeach an
Act of Parliament by a plea stating that it was obtained by fraud.

In connection with this part of our subject, it is worthy of remark,
that the power which the Crown possesses of calling back its grants,
when made under mistake, is not like any right possessed by indi-
viduals ; for, when it has been deceived, the grant may be recalled
notwithstanding any derivative title depending upon it, and those
who have deceived it must bear the consequences.7

The doctrine just stated applies also in the case of a patent which
has in some way improvidently emanated *from the Crown. r*5«-i
Thus, in Morgan v. Seward,8 Parke, B., observed as follows :

1 2 Roll. Abr. 164.

2 R. v. Butler, 3 Lev. 220 j cited per Parke, B., 2 E. & B. 894 (75 E. C. L.
R.).

8 Case of Alton Woods, 1 Rep. 53.

4 Per Lord Chelmsford, The Wiltes Peerage, L. R. 4 H. L. 152.

6 The Wiltes Peerage, L. R. 4 H. L. 126.

6 Stead v. Carey, 1 C. B. 516 (50 E. C. L. R.) ; per Tindal, C. J., Id. 522.

7 Judgm., Cumming v. Forrester, 2 Jac. & W. 342.

8 2 M. & W. 544, cited arg. Nickels v. Ross, 8 C. B. 710 (65 E. C. L. R.) ;
Beard v. Egerton, Id. 207 ; Croll v. Edge, 9 C. B. 486 (67 E. C. L. R.). See
Reg. v. Betts, 15 Q. B. 540, 547 (69 E. C. L. R.).

56 BROOM'S LEGAL MAXIMS.

" That a false suggestion of the grantee avoids an ordinary grant
of lands or tenements from the Crown, is a maxim of the common
law, and such a grant is void, not against the Crown merely, but
in a suit against a third person.1 It is on the same principle that
a patent for two or more inventions, where one is not new, is void
altogether, as was held in Hill v. Thompson,2 and Brunton v.
Hawkes ;3 for although the statute4 invalidates a patent for want of
novelty, and consequently by force of the statute the patent would
be void, so far as related to that which was old ; yet the principle
on which the patent has been held to be void altogether is, that the
consideration for the grant is the novelty of all, and the considera-
tion failing, or, in other words, the Crown being deceived in its
grant,5 the patent is void, and no action maintainable upon it."

The rule upon the subject now touched upon, has been yet more
fully laid down,6 as follows : — " If the king has been deceived by
any false suggestion as to what he grants or the consideration for
his grant ; if he appears to have been ignorant or misinformed as to
his interest in the subject matter of his grant; if the language of
P^r^-i his grant be so general, that you cannot in reason apply it
to *all that might literally fall under it ; or if it be couched
in terms so uncertain that you cannot tell how to apply it with that
precision which grants from one so especially representing the public
interest ought in reason to have; or if the grant reasonably con-
strued would work a wrong, or something contrary to law ; in these
and such like cases the grant will be either wholly void or restrained,
according to circumstances ; and equally so, whether the technical
words, ex certd scientid et mero motu, be used or not. But this is
held upon the very same principle of construction on which a grant
from a subject is construed, viz., the duty of effectuating the inten-
tion of the grantor." To hold the grants valid or unrestrained in
the cases just put, would be, as is said, in deceptione domini regis,
and not secundum intentionem.

1 Citing Trevell v. Carteret, 3 Lev. 135 ; Alcock v. Cooke, 5 Bing. 340 (15
E. C. L. R.).

2 8 Taunt. 375 (4 E. C. L. R.). 3 4 B. & Aid. 542 (6 E. C. L. R.).
4 21 Jac. 1, c. 3.

6 u The Crown is deceived if it grants a patent for an invention which is not
new," per Pollock, C. B., Hills v. London Gas Light Co., 5 II. & N. 340.

6 Reg. v. Eastern Archipelago Co., 1 E. & B. 310, 337, 338 (72 E. C. L. R) ;
s. c, 2 E. & B. 856 (75 E. C. L. R.) ; The Wiltes Peerage, L. R. 4 II. L. 126.

MAXIMS RELATING TO THE CROWN. 57

On the principle enunciated by the maxim under consideration,
no suit or action can be brought for a personal wrong against the
sovereign ; as to any cause of complaint which a subject may happen
to have against the sovereign in respect of some personal injury of
a private nature, but distinct from a mere claim of property, the
sovereign is not personally chargeable. The law will, in such a
case, presume that subject cannot have sustained any such personal
wrong from the Crown, because it feels itself incapable of furnish-
ing any adequate remedy, — and want of right and want of remedy
are the same thing in law.1

In connection with the context the following case deserves atten-
tion. The personal estate of an intestate who leaves no next of kin,
belonged at common law absolutely *to the Crown. It is
now paid into the Treasury, and forms part of the public L -*
revenue.2 In The Attorney-General v. Kbhler3 a question arose, —
could money which had erroneously been paid to the solicitor to the
Treasury, as nominee of one sovereign, in virtue of the above pre-
rogative, be recovered from the solicitor to the Treasury for the time
being under a succeeding sovereign ? — and in delivering his opinion
adversely to the claimant, Lord Cranworth observed as follows : —
" It is very difficult to say on what ground Her Majesty or Her
Majesty's Treasury can be considered as under any obligation to
refund, or rather pay the money. It never came to Her Majesty's
hands. The Crown is a corporation sole, and has perpetual con-
tinuance. Can a succeeding sovereign, upon the principle that 'the
king never dies,'4 be held responsible for money paid over in error
to and spent by a predecessor, which that predecessor might law-
fully have disposed of for his own use, supposing it to have right-
fully come to his hands ? Does the successor for such a purpose
represent his predecessor ? These are questions difficult of solution.
Let me put a case between subjects, nearly analogous to the present,
in which the sovereign is concerned. Suppose a bishop lord of a
manor, and that on the death of the copyholder he claims a heriot,
alleging such to be the custom of his manor ; and suppose that the

1 Chitt. Pre. Cr. 339, 340; Jenk. Cent. 78 ; Viscount Canterbury v. A. G., 1
Phill. 306 ; Buron v. Denman, 2 Exch. 167, 189 ; Feather v. Reg., 6 B. & S.
257 (118 E. C. L. R.) ; Doe d. Leigh v. Roe, 8 M. &.W. 579 ; ante, p. 48.

2 See Stat. 15 & 16 Vict. c. 3. 8 9 H. L. Cas. 654.
* Ante, p. 50.

58 broom's legal maxims.

heir of the copyholder, relying on the assurance of the bishop, that
the heriot was due by the custom of the manor, accordingly pays
to the bishop a sum of money by way of composition for the heriot ;
the bishop dies, and then it is discovered that no heriot was payable
r*^Q1 to ^e D^snoP *n respect of the copyhold *held of him; but

that it was in fact payable to the lord of an adjoining manor,
who thereupon recovered it against the copyhold heir. It could not
be pretended that the copyholder would have any right against the
bishop's successor. His right would be against the executor of the
bishop to whom the payment had been made, on an erroneous alle-
gation by him that there was a custom in his manor entitling him
to it. On the same principle, reasoning by analogy from the case
as it would have stood between subject and subject, the right of the
present respondents would be a right against the executors either of
King George III. or King George IV., it is immaterial to consider
which, certainly not against Queen Victoria."1 Under circum-
stances such as were here disclosed no redress could be enforced
against the Crown or its officers, though perhaps the Treasury
might, with the aid of Parliament, if needful, discharge the claim put
forward.

With respect to injuries to the rights of property, these can
scarcely be committed by the Crown, except through the medium
of its agents, and by misinformation or inadvertency, and the law
has furnished the subject with a decent and respectful mode of
terminating the invasion of his rights, by informing the king of the
true state of the matter in dispute, viz., by Petition of Right ;2 a
remedy which is open to the subject where his land, goods or money
r*fi01 " nave f°und their way into the possession *of the Crown,

and the purpose of the petition is to obtain restitution or,
if restitution cannot be given, compensation in money ; or where the
claim arises out of a contract as for goods supplied to the Crown or
to the public service."3

1 9 H. L. Cas. 671-2.

2 The procedure in which has been amended by Stat. 23 & 24 Vict. c. 34.
See per Jervis, C. J., Eastern Archipelago Co. v. Reg., 2 E. & B. 914 (75 E.

C. L. R.) ; De Bode v. Reg., 3 II. L. Cas. 449. As to the jurisdiction of a
court of equity, and the rules by which it will be guided, when the proceed-
ings are against the Crown, see per Lord Brougham, C, Clayton v. A. G.,
Coop. R. 120.

3 Feather v. Reg., 6 B. & S. 294 (118 E. C. L. R.), following Tobin v. Reg#j

MAXIMS RELATING TO THE CROWN. 60

If, for instance, a legacy is claimed under the will of a deceased
sovereign, it seems that the only course to be pursued by the claim-
ant, for the recovery of such legacy, is by Petition of Right to the
grace and favor of the reigning sovereign. " Is there any reason,"
said Lord Langdale, in a modern case,1 " why a Petition of Right
might not have been presented ? I am far from thinking that it is
competent to the king, or rather to his responsible advisers, to refuse
capriciously to put into a due course of investigation any proper
question raised on a Petition of Right. The form of the applica-
tion being, as it is said, to the grace and favor of the king, affords
no foundation for any such suggestion."

In another remarkable case,2 the petitioner by Petition of Right
claimed compensation from the Crown for damage alleged to have
been done in the preceding reign to some property of the petitioner,
while Speaker of the House of Commons, by the fire which, in the
year 1834, destroyed the two Houses of Parliament ; and the ques-
tion consequently arose, whether, assuming that the parties whose
negligence caused the fire were the servants of the *Crown (it
being contended that they were the servants of the Commis- *- -•
sioners of Woods and Forests), the sovereign was responsible for the
consequences of their negligence. The argument, with reference to
this point, turned chiefly upon the meaning of the legal maxim — that
the king can do no wrong ; and the Lord Chancellor, in deciding
against the petitioner, intimated an opinion, that since the sovereign
is clearly not liable for the consequences of his own personal negli-
gence, he cannot be made answerable for the acts of his servants.
"If it be said," continued Lord Lyndhurst, "that the master is answer-
able for the negligence of his servant, because it mav be considered

DO ••

to have arisen from his own misconduct or negligence in selecting
or retaining a careless servant, that principle cannot apply to the
sovereign, to whom negligence or misconduct cannot be imputed,
and for which, if they occur in fact, the law affords no remedy."

16 C. B. N. S. 310 (111 E. C. L. R.) ; Churchward v. Reg., 6 B. & S. 807 (118
B. C.L.R.).

1 Ryves v. Duke of Wellington, 9 Beav. 579, 600. In his Treatise on the
Exchequer Practice (2d ed. p. 84), Mr. Serjeant Manning suggests that the
prayer of the petition, although to the grace and favor of the king, seems to
be within the words and spirit of Magna Charta — nulli negabimus justitiam.

2 Viscount Canterbury v. A. G., 1 Phill. 306.

61 bkoom's legal maxims.

" The maxim that the king can do no wrong applies," it has been
said, " to personal as well as to political wrongs ; and not only to
wrongs done personally by the sovereign, if such a thing can be sup-
posed to be possible, but to injuries done by a subject by the
authority of the sovereign. For from the maxim that the king can-
not do wrong it follows, as a necessary consequence, that the king
cannot authorize wrong. For to authorize a wrong to be done is to
do a wrong, inasmuch as the wrongful act when done becomes in
law the act of him who directed or authorized it to be done. It fol-
lows that a Petition of Right which complains of a tortious act done
by the Crown, or by a public servant by the authority of the Crown,
discloses no matter of complaint which can entitle the petitioner to
redress. As in the eye of the law no such wrong can be done, so
f"*fi21 *n ^aw no r*Snt to redress can arise, *and the petition there-
fore which rests on such a foundation falls at once to the
ground."1 The authority of the Crown would however afford no
defence to an action brought for an illegal act committed by an
officer of the Crown.2

The ordinary maxim, respondeat superior? has then no applica-
tion to the Crown, for the Crown cannot, in contemplation of law,
command a wrongful act to be done. It may be stated moreover, as
a rule of the common law, that the Crown cannot be prejudiced by
the laches or acts of omission of any of its officers. Of which rule
an apt illustration presents itself in Reg. v. Renton.4 There a per-
son had been taken into custody under ja writ of extent, issued at
suit of the Crown, for certain penalties incurred by a violation of
the excise laws ; whilst in custody he was, by order of the Commis-
sioners of Excise, and without a habeas corpus ad testificandum
having first been obtained, removed from prison, with a view to his
giving evidence touching matters connected with the writ of extent;
and it was contended that this removal out of legal custody operated
in law as an escape, so that the defendant's liability was in fact dis-
charged. The Court of Exchequer held that the escape having
been permitted by the laches of the Commissioners could not so
operate as to prejudice the Crown, for " the Crown cannot be preju-
diced by the misconduct or negligence of any of its officers, whether

1 Judgm., Feather v. Reg., 6 B. & S. 395-6 (118 E. C. L. R.).

2 Id., post. 3 Post, Chap. IX.
* 2 Exch. 216.

MAXIMS RELATING TO THE CROWN. 62

with respect to the rights of property, or the right to the custody
of the debtor, till the debt is paid."1

Further, if it be asked, what remedy is afforded to the *sub- rjjeftQ1
ject for such public oppressions, or acts of tyranny, as have •- -•
not, in fact, been instigated by bad advisers, but have proceeded from
the personal delinquency of the monarch himself, — the answer is,
that there is no legal remedy, and that to such cases, so far as the
ordinary course of law is concerned, the maxim must be applied that
the sovereign can do no wrong.2 And lastly, if a subject, when
appearing as suitor in a court of justice, has aught to complain of,
it is against the judge that his remedy (if any) must be taken —
not against" the Crown : the Court indeed, even at the behest of the
king, can neither deny nor delay to do justice.3

Non potest Rex Gratiam facere cum Injuria et Damno

ALIORUM.

(3 Inst. 236.)

The king cannot confer a favor on one subject which occasions injury and loss

to others.

It is an ancient and constant rule of law,4 that the king's grants
are invalid when they destroy or derogate from rights, privileges,
or immunities previously vested in another subject: the Crown, for
example, cannot enable *a subject to erect a market or fair
so near that of another person as to affect his interests *- *

1 Per Pollock, C. B., 2 Exch. 220. 2 Bla. Com., by Stewart, 256.

3 The Stat. 20 Ed. 3, c. 1, contains these remarkable words: — "We have
commanded all our justices that they shall from henceforth do equal law and
execution of right to all our subjects, rich and poor, without having regard to
any person, and without omitting to do right for any letters or commandment
which may come to themyrora us, or from any other or by any other cause."
Thus does our law, holding that the " king can do no wrong," in some cases
incapacitate him from doing it by express and positive ordinances.

* 3 Inst. 236 ; Vaugh. R. 338. The maxim commented on supra, was cited
per Talfourd, J., in the Eastern Archipelago Co. v. Reg., 2 E. & B. 874 (75
E. C. L. R.). A similar doctrine prevailed in the civil law. See Cod. 7.
38.2.

4 ?

64 broom's legal maxims.

therein.1 Nor can the king grant the same thing in possession to
one, which he or his progenitors have granted to another.2 If the
king's grant reciting that A. holds the manor of Blackacre for life,
grants it to B. for life; in this case the law implies that the second
grant is to take effect after the determination of the first.3 And if
the king, being tenant for life of certain land, grant it to one and
his heirs, the grant is void, for the king has taken upon himself to
grant a greater estate than he lawfully could grant.4

On the same principle, the crown cannot at common law5 pardon
an offence against a penal statute after information brought, for
thereby the informer has acquired a private property in his part of
the penalty. Nor can the king pardon a private nuisance while it
remains unredressed, or so as to prevent an abatement of it, though
afterwards he may remit the fine ; and the reason is that, though
the prosecution is vested in the Crown, to avoid multiplicity of suits,
r*fi^l J6*1 (during ^ts continuance) this *offence savors more of the
nature of a private injury to each individual in the neigh-
borhood, than of a public wrong.6 So, if the king grant lands, for-
feited to him upon a conviction for treason, to a third person, he
cannot afterwards, by his grant, devest the property so granted in
favor of the original owner.

1 Chitt. Pre. Cr. 119, 132, 386 ; Earl of Rutland's Case, 8 Rep. 57 ; Alcock
v. Cooke, 5 Bing. 340 (15 E. C. L. R.) ; Gledstanes v. Earl of Sandwich, 5
Scott N. R. 689, 719. Re Islington Market Bill, 3 CI. & F. 513. See Mayor
of Exeter v. Warren, 5 Q. B. 773 (48 E. C. L. R.).

2 Per Cresswell, J., 1 C. B. 523 (50 E. C. L. R.) ; arg. R. v. Amery, 2 T. R.
565 •, Chitt. Pre. Cr. 125. But the grant of a mere license or authority from
the Crown, or a grant during the king's will is determined by the demise of
the Crown. (Id. 400.) See n. 1, supra.

3 Earl of Rutland's Case, 8 Rep. 56 b.

4 Case of Alton Woods, 1 Rep. 44 a.

6 By Stat. 22 Vict. c. 32, the Crown is empowered " to remit, in whole or in
part, any sum of money which, under any Act now in force, or hereafter to be
passed, may be imposed as a penalty or forfeiture on a convicted offender,
although such money may be, in whole or in part, payable to some party other
than the Crown."

6 Vaugh. R. 333.

MAXIMS RELATING TO THE CROWN. 65

Nullum Tempus occurrit Regi.

(2 Inst. 273.)
Lapse of time does not bar the right of the Crown.

In pursuance of the principle, already considered, of the sov-
ereign's incapability of doing wrong, the law also determines that
in the Crown there can be no negligence or laches; and, therefore,
it was formerly held, that no delay in resorting to his remedy would
bar the ting's right; for the time and attention of the sovereign
must be supposed to be occupied by the cares of government, nor
is there any reason that he should suffer by the negligence of his
officers, or by their fraudulent collusion with the adverse party;1
and although, as we shall hereafter see, the maxim vigilantibus et
non dormientibus jura subveniunt is a rule for the subject, yet
nullum tempus occurrit regi is, in general,- the king's plea.2 From
this doctrine it followed, not only that the civil claims of the Crown
sustained no prejudice by lapse of time, but that criminal prosecu-
tions for felonies or misdemeanors might be commenced at any
distance of time from the commission of the offence; and this is,
to some extent, still law, though it has been qualified by
the legislature in modern times; for by stat. 9 Geo. 3, c. *- J
16, in suits relating to landed property, the lapse of sixty years
and adverse possession for that period operate as a bar even against
the prerogative, in derogation of the above maxim,3 that is, provided
the acts relied upon as showing adverse possession are acts of
ownership done in the assertion of a right, and not mere acts of
trespass not acquiesced in on the part of the Crown.4 Again, the
Statute of Limitations, 21 Jac. 1, c. 16, s. 3, does^not bind the
king;' but, by 32 Geo. 3, c. 58, the Crown is barred, in informa-

1 Godb. 295; Hobart 347; Bac. Abr., 7th ed., "Prerogative," (E. 61; ante
p. 62.

a Hobart 347.

3 See Doe d. Watt v. Morris, 2 Scott 276: Good title v. Baldwin, 11 East 488.

4 Doe d. William IV. v. Roberts, 13 M. & W. 520. "The Crown certainly
may dedicate a road to the public, and be bound by long acquiescence in public
user:" per Lord Denman, C. J., Reg. v. East Mark, 11 Q. B. 882-3 (63 E. C.
L. R.).

6 Judgm., Lambert v. Taylor, 4 B. & C. 151, 152 (10 E. C. L. R.) ; Bac. Abr.,
7th ed., "Prerogative" (E. 5).

66 broom's legal maxims.

tions for usurping corporate offices or franchises, by the lapse of
six years;1 and by statute J Will. 3, c. 3, an indictment for treason
(except for an attempt to assassinate the king) must be found within
three years after the commission of the act of treason.2 And under
the 11 & 12 Vict. c. 12,3 a period of limitation is prescribed
within which to prosecute for the offences mentioned in the Act.

An important instance of the application of the doctrine, nullum
tempus oceurrit rec/i, presents itself where church preferment lapses
to the Crown. Lapse is a species of forfeiture, whereby the right
of presentation to a church accrues to the ordinary, by neglect of
the patron to present, — to the metropolitan, by neglect of the ordi-
r*fi7-i nary> — *and to the Crown, by neglect of the metropolitan:
the term in which the title to present by lapse accrues from
one of the above parties to the other is six calendar months, after
the expiration of which period the right becomes forfeited by the
person neglecting to exercise it. But no right of lapse can accrue
when the original presentation is in the Crown ; and in pursuance
of the above maxim, if the right of presentation lapses to the
Crown, prerogative intervenes, and, in this case, the patron shall
never recover his right till the Crown has presented; and if, during
the delay of the Crown, the patron himself presents, and his clerk
is instituted, the Crown, by presenting another, may turn out the
patron's clerk, or, after induction, may remove him by quare
impedit'f though if neither of these courses is adopted, and the
patron's clerk dies incumbent, or is canonically deprived, the right
of presentation is lost to the Crown.5

Again, if a bill of exchange be seized under an extent before it
has become due, the neglect of the officer of the Crown to give
notice of dishonor, or to make presentment of the bill, will not dis-
charge the drawer or indorsers ; and this likewise results from the

1 See Bac. Abr., 7th ed., "Prerogative" (E. 6), 467, and stat. 7 Will. 4 & 1
Vict. c. 78, s. 23; R. v. Harris, 11 A. & E. 518 (39 E. C. L. R.).

2 See also stat. 5 & 6 Vict. c. 51, s. 1.

8 S. 4. See further, as to the period of limitation in criminal procedure,
Arch. Cr. PL, 16th ed., 68.

4 6 Rep. 50.

5 2 Com. by Broom and Hadley, 450, 452 ; cited arg. Storie v. Bishop of
Winchester, 9 C. B. 90 (67 E. C. L. R.) ; and 17 C. B. 653 (84 E. C. L. R.) ;
Baskerville's Case, 7 Rep. Ill; Bac. Abr., 7th ed., "Prerogative" (E. 6);
Hobart 166 ; Finch's Law 90.

MAXIMS RELATING TO THE CROWN. 67

general principle above stated, that laches cannot be imputed to
the Crown.1

To high constitutional questions involving the prerogative, the
maxim under our notice must doubtless be applied with much caution,
for it would be dangerous and *absurd to hold that a power
which has once been exercised by the Crown — no matter at *- -»
how remote soever an epoch — has necessarily remained inherent in
it, and we might vainly attempt to argue in support of so general a
proposition. During the discussion in the House of Lords on life
peerages, it was said that although the rights and powers of the
Crown do not suffer from lapse of time, nevertheless one of the
main principles on which our Constitution rests is the long-continued
usage of Parliament, and that to go back for several centuries in
order to select a few instances in which the Crown has performed a
particular act by virtue of its prerogative before the Constitution
was formed or brought into a regular shape — to rely on such prece-
dents, and to make them the foundation of a change in the compo-
sition of either House of Parliament, would be grossly to violate
the principles and spirit of our Constitution.2 But although the
most zealous advocate of the prerogative could not by precedents,
gathered only from remote ages, shape successfully a sound Consti-
tutional theory touching the powers and privileges of the Crown, it
would be far from correct to affirm that its rights can fall into desue-
tude, or, by mere non-user, become abrogated. Ex. gr. Assuming
that the right of veto upon a bill which has passed through Parlia-
ment has not been exercised for a century and a half, none could
deny that such a right is still vested in the Crown.3

*Quando Jus Domini Regis et Subditi Concurrunt, r^^n-
Jus Regis pr^ferri debet. - Abject

(9 Rep. 129.) -''ed as having

Where the title of the king and the title of a subi
shall be preferred.*

In the above case, detur digniori v

\. ii i u j • j x ii. i- j3. C. L. R.), recognising R. t\ Cotton,

a chattel be devised to the king av .. .., p '' anA n . ° ,„ . '

6 n, 11 M. & W. 694; A. G. v. Walmsley,

1 West on Extents 28, 30. M. & W. 693.

* Id. p. 284. (23 E. C. L. R.).

6 2 Ventr. 268.

69 broom's legal maxims.

have it, there being this peculiar quality inherent in the prerogative

that the king cannot have a joint property with any person in one

entire chattel, or such a property as is not capable of division or

separation; where the titles of the king and of a subject concur,

the king shall have the whole. The peculiarity of this doctrine of

our law, so favorable to the prerogative, may justify the giving a

few illustrations of its operations: — 1st. As regards chattels real:

if the king either by grant or contract become joint tenant of such

a chattel with another person, he will ipso facto become entitled to

the whole in severalty. 2dly. As regards chattels personal : if a

horse be given to a king and a private person, the king shall have

the sole property therein; if a bond be made to the king and a

subject, the king shall have the whole penalty; if two persons

possess a horse jointly, or have a joint debt owing them on bond,

and one of them assigns his part to the king, the king shall have

the horse or debt; for our law holds it not consistent with the

dignity of the Crown to be partner with a subject, and where the

king's title and that of a subject concur or are in conflict, the

king's title is to be preferred.1 By applying this maxim to one

possible state of facts, a rather curious ^result is arrived at: if

there be two joint tenants of a chattel, one of whom is
r*70~l
L J guilty of felony, this felonious act works a forfeiture of one

undivided moiety of the chattel in question to the Crown, and the
Crown being thus in joint possession with a subject, takes the whole.2
Further, the king's debt shall, in suing out execution, be pre-
ferred to that of every other creditor who had not obtained judg-
ment before the king commenced his suit.3

The king's judgment formerly affected all land which the king's

debtor had at or after the time of contracting his debt ;4 but now

no debts or liabilities to the Crown incurred after November 1,

Cllt~ ~-flfect land as to a bond fide purchaser for valuable considera-

1 See Bac. -^nragee, whether with or without notice, unless regis-

\ict. c.7 , s. , . process of execution has, previously to the

2 See also stat. 5 & 6 V S , r J

* S. 4. See further, as to &§n executed.5
Arch. Cr. PI., 16th ed., 68. 6Q4

* 6 Rep. 50.

* 2 Com. by Broom and Hadley, 45 32 & 33 yict Q 4f)>
Winchester, 9 C. B. 90 (67 E. C. L. R.

Baskerville's Case, 7 Rep. Ill; Bac. A.p ag tQ former legislation on the
Hobart 166 ; Finch's Law 90. 85-87.

MAXIMS RELATING TO THE CROWN. 70

Again, the rule of law is, that, where the sheriff seizes under a
fi. fa., and, after seizure, but before sale,1 under such writ, a writ
of extent is sued out and delivered to the sheriff, the Crown is
entitled to the priority, and the sheriff must sell under the extent,
and satisfy the Crown's debt, before he sells under the fi. fa. Nor
does it make any difference whether the extent is in chief or in aid,
i. e. whether it is directly against the king's debtor, or brought to
recover a debt due from some third party to such debtor; it having
been the practice in very ancient times, that, if the king's debtor
was unable to satisfy the king's debt out of his own *chat-
tels, the king would betake himself to any third person who L J
was indebted to the king's debtor,2 and would recover of such third
person what he owed to the king's debtor, in order to get payment
of the debt due from the latter to the Crown.3 And the same
principle was held to apply where goods in the hands of the sheriff,
under a fi. fa., and before sale, were seized by the officers of the
customs under a warrant to levy a penalty incurred by the defend-
ant for an offence against the revenue laws ; the Court observing,
that there was no sound distinction between a warrant issued to
recover a debt to the Crown and an extent.4

In Reg. v. Edwards,5 decided under the former bankrupt law, the
facts were as under: — An official assignee having been appointed to
a bankrupt's estate, later on the day of his appointment an extent
issued at the suit of the Crown against the bankrupt for a Crown
debt, and the question was which should have priority, the Court
decided that where the title of the Crown and the subject accrue on
the same day, the king's title shall be preferred. The seizure
under the extent, therefore, was upheld, and the title of the official
assignee was ignored. The decision in Reg. v. Edwards may how-
ever be supported on a principle other than that just stated, viz :
that "whether between the Crown and a subject, or between subject
and subject, judicial proceedings are to be considered as having

1 See R. v. Sloper, 6 Price 114.

2 See R. v. Larking, 8 Price 683.

3 Giles v. Grover, 9 Bing. 128, 191 (23 E. C. L. R.), recognising R. v. Cotton,
Parker R. 112. See A. G. v. Trueman, 11 M. & W. 694; A. G. v. Walmsley,
12 M. & W. 179 ; Reg. v. Austin, 10 M. & W. 693.

4 Grove v. Aldridge, 9 Bing. 428 (23 E. C. L. R.).

71 broom's legal maxims.

taken place at the earliest period of the day on which they are
done."1

I~*721 *"""n connecti°n witn tne maxim before us we may add,
that the king is not bound by a sale in market overt, but
may seize to his own use a chattel which has passed into the hands
of a bond fide purchaser for value.2

Roy n'est lie per ascun Statute, si il ne soit expresse-

ment nosme.

(Jenk. Cent. 307.)

The king is not bound by any statute, if he be not expressly named to be so

bound.5

The king is not bound by any statute, if he be not expressly
named therein, unless there be equivalent words, or unless the pre-
rogative be included by necessary implication; for it is inferred,
primd facie, that the law made by the Crown, with the assent of
the Lords and Commons, is made for subjects, and not for the
Crown.1 Thus in considering the question — What is the occupa-
tion of real property which is liable to be rated under the stat. 43
Eliz. c. 2, s. 1? it has been observed5 that "the only occupier of
property exempt from the operation of the Act is the king, because he
is not named in the statute, and the direct and immediate servants of
the Crown, whose occupation is the occupation of the Crown itself,

also come within the exemption No exemption is thereby

given to charity or to public purposes beyond *that which is
L -* strictly involved in the position that the Crown is not bound by
the Act." So the provisions in the C. L. Proc. Act, 1852, relating
to the abolition of writs of error (ss. 148-158), have been held not

1 Wright v. Mills, 4 H. & N. 491 ; Judgm. 9 Exch. 631. See Evans v. Jones,
3 H. &. C. 423.

2 2 Inst. 713. 3 Jenk. Cent. 307 : Wing. Max. 1.

4 Per Alderson, B., A. G. v. Donaldson, 10 M. & W. 123, 124. citing Willion
v. Berkley, Plowd. 236; De Bode v. Reg. 13 Q. B., 373, 5, 8 (66 E. C. L. R.).
Per Lord Cottenham, C, Ledsam v. Russell, 1 H. L. Cas. 697 ; Doe v. Arch-
bishop of York, 14 Q. B. 81, 95 (68 E. C. L. R.).

5 Per Lord Westbury, C, Mersey Docks v. Cameron, Jones v. Mersey Docks,
11 H. L. Cas. 501, 503; Reg. v. McCann, L. R. 3 Q. B. 141, 145, 146.

MAXIMS RELATING TO THE CROWN. 73

to apply to judgments of outlawry in civil suits, for as soon as
judgment of outlawry has been given, the Crown becomes inter-
ested.1 So the prerogative of the Crown to remove into the Court
of Exchequer a cause which touches its revenue, is unaffected by
the County Court Acts.2 Nor does the Lands Clauses Consolida-
tion Act (8 & 9 Vict. c. 18) affect the interests of the Crown.5
Neither is the prerogative of the Crown to plead and demur without
leave to a Petition of Right under 23 & 24 Vict. c. 34, affected by
that statute.4

The rule above stated seems, however, to apply only where the
property or peculiar privileges of the Crown are affected ; and this
distinction is laid down, that where the king has any prerogative,
estate, right, title, or interest, he shall not be barred of them by
the general words of an Act, if he be not named therein.5 Yet, if
a statute be intended to give a remedy against a wrong, the king,
though not named, shall be bound by it :6 and the king is impliedly
bound by statutes passed for the public good, the preservation of
public rights, and the suppression of public wrongs, the relief and
maintenance *of the poor, the general advancement of learn- r*74-i
ing, religion, and justice, or for the prevention of fraud ;7
and, though not named, he is bound by the general words of stat-
utes which tend to perform the will of a founder or donor ;8 and the
king may likewise take the benefit of any particular Act, though
he be not especially named therein.9

1 Arding v. Holmer, 1 H. & N. 85. 2 Mountjoy v. Wood, 1 H. & N. 58.

3 Re Cuckfield Burial Board, 19 Beav. 153. See also Reg. v. Beadle, 7 E. &
B. 492 (90 E. C. L. R.).

* Tobin v. Reg., 14 C. B. N. S. 505 (108 E. C. L. R.) ; s. c. 16 Id. 310;
Feather v. Reg.. 6 B. & S. 293.

5 Magdalen College Case, 11 Rep. 74 b, cited Bac. Abr. "Prerogative"
(E. 5) : Com. Dig. '* Parliament" *R. 8. See the qualifications of this propo-
sition laid down in Dwarr. Stats., 2d ed., 523, et seq.

6 Willion v. Berkley, Plowd. 239, 244. See the authorities cited arg. R. v.
Wright, 1 A. & E. 436 et seq. (28 E. C. L. R..)

7 Magdalen College Case, 11 Rep. 70 b, 72; Chit. Pre. Crown 382.

8 Vin. Abr., " Statutes" (E. 10), pi. 11 ; 5 Rep. 146; Willion v. Berkley,
Plowd. 236.

9 Judgm., R. v. Wright, 1 A. & E. 447 (28 E. C. L. R.). In A. G. v. Rad-
loff, 10 Exch. 94, Pollock, C. B., observes, that " the crown is not bound with
reference to matters affecting its property or person, but is bound with re-
spect to the practice in the administration of justice."

74 broom's legal maxims.

But, as above stated, Acts of Parliament which would devest the
king of any of his prerogatives do not, in general, extend to or
bind the king, unless there be express words to that effect: there-
fore, the Statutes of Limitation and Set-off are irrelevant in the
case of the king, nor does the Statute of Frauds relate to him,1 nor
does a local Act imposiog tolls and duties affect the Crown.2 Also,
by mere indifferent statutes, directing that certain matters shall be
performed as therein pointed out, the king is not, in many instances,
prevented from adopting a different course in pursuance of his pre-
rogative.3

In fine, the modern doctrine bearing on the subject before us, is
said4 to be that by general words in an Act of Parliament, the king
may be precluded of such inferior claims as might belong indiffer-
ently to him or to a *subject (as the title to an advowson or
L J a landed estate), but not stripped of any part of his ancient
prerogative, nor of those rights which are incommunicable and ap-
propriate to him as essential to his regal capacity.

Nemo Patriam in qua natus est exuere nec Ligeantde Debi-
tum ejurare possit.

(Co. Lit. 129 a.)

A man cannot abjure his native country nor the allegiance which he owes to

his sovereign.

Of the above maxim we shall here very briefly state the signifi-
cance at common law, — important modifications of its operation
being projected by the legislature.

" The law of England, and of almost all civilized countries,
ascribes to each individual at his birfh two distinct legal states or
conditions ; one by virtue of which he becomes the subject of some

1 Chit. Pre. Crown 366, 383 ; R. v. Copland, Hughes 204, 230 ; Vin. Abr.
" Statutes" (E. 10).

2 Mayor, &c, of Weymouth v. Nugent, 6 B. & S. 22, 35 (118 E. C. L. R.).

3 Chit. Pre. Crown 383, 384.

4 Dwarr. Stats., 2d. ed., 523-4. See also Mayor, &c., of London v. A. G.,
1 II. L. Cas. 440. As to the mode of construing grants from the Crown, see
the maxim " Verba chartarum fortius accipiuntur contra proferentem,'1'1 post,
Chap. VIII.

MAXIMS RELATING TO THE CROWN. 75

particular country, binding him by the tie of natural allegiance, and
which may be called his political status ; another by virtue of which
he has ascribed to him the character of a citizen of some particular
country, and, as such, is possessed of certain municipal rights, and
subject to certain obligations, which latter character is the civil
status or condition of the individual, and may be quite different
from his political status. The political status may depend on
different laws in different countries, whereas the civil status is
governed universally by one single principle, namely, that of domi-
cile, which is the criterion established by law for the purpose of
determining civil status ; for it is on this basis that the personal
rights of the party, that is to say, the law which determines his
majority or *minority, his marriage, succession, testacy, or r*Y^-i
intestacy, must depend."1

Allegiance is defined, by Sir E. Coke, to be " a true and
faithful obedience of the subject due to his sovereign."2 And in
the words of the late Mr. Justice Story, " Allegiance is nothing
more than the tie or duty of obedience of a subject to the sovereign
under whose protection he is ; and allegiance by birth is that which
arises from being born within the dominions and under the protec-
tion of a particular sovereign. Two things usually occur to create
citizenship : first, birth, locally within the dominions of the sove-
reign ; secondly, birth, within the protection and obedience, or, in
other words, within the legiance of the sovereign. That is, the
party must be born within a place where the sovereign is, at the
time, in full possession and exercise of his power, and the party
must also, at his birth, derive protection from, and consequently
owe obedience or allegiance to, the sovereign as such de facto.
There are some exceptions, which are founded upon peculiar reasons,
and which indeed illustrate and confirm the general doctrine."3

Allegiance is the tie which binds the subject to the Crown, in

1 Per Lord Westbury, Udny v. Udny, L. R. 1 Sc. App. 457. See Moor-
house v. Lord, 10 H. L. Cas. 272 ; Shaw v. Gould, L. R. 3 H. L. 55.

2 Calvin's Case, 7 Rep. 5 ; s. c. Broom's Const. L. 4, and Note thereto, Id.
26, et seq., where the cases which concern allegiance at common law, and the
operation of the statutes hitherto passed affecting it, are considered. And
see the stat. 21 & 22 Vict. c. 93 (and as to Ireland the stat. 31 & 32 Vict. c.
20), which enables a person to establish, under the circumstances specified in
and as provided by the Act, his right to be deemed a natural-born subject.

8 3 Peters (U. S.) R. 155.

76" broom's legal maxims.

return for that protection which the Crown affords to the subject,
and is distinguished by our customary law into two sorts or species,

the one natural, *the other local. Natural allegiance is such

r*771 • • •

L J as is due from all men born within the dominions of the

Crown, immediately upon their birth ; and to this species of alle-
giance it is that the above maxim is applicable.1 It cannot be for-
feited, cancelled or altered by any change of time, place, or circum-
stance, nor by any thing but the united concurrence of the legis-
lature. The natural-born subject of one prince cannot, by any act
of his own, not even by swearing allegiance to another, put off or
discharge his natural allegiance to the former,2 origine proprid
neminem posse voluntate sud eximi manifestum est ;3 for this natural
allegiance was intrinsic and primitive, and antecedent to the other,
and cannot be devested without the concurrent act of that prince
to whom it was first due.4 Hence, although a British subject may,
in certain cases, forfeit his rights as such by adhering to a foreign
power, he yet remains at common law always liable to his duties ;
and if, in the course of such employment, he violates the laws of
his native country, he will be exposed to punishment when he
comes within reach of her tribunals.

The tie of natural allegiance may, however, be severed with the
concurrence of the legislature — for instance, upon the recognition
of the United States of America, as free, sovereign, and independent
states, it was decided that the natural-born subjects of the English
Crown adhering to the United States ceased to be subjects of the
Crown of England, and became aliens and incapable of inheriting
lands in England.5

r*781 *We shall merely add, that local allegiance is such as is
due from an alien or stranger born whilst he continues

1 Foster, Cr. Law 184.

2 Vide per Jervis, C. J., Barrick v. Buba, 16 C. B. 493 (81 E. C. L. R.) ;
citing Albretcht v. Sussman, 2 Ves. & B. 323.

3 Cod. 10. 38. 4.

4 See Foster, Cr. Law 184 ; Hale, P. C. 68 ; Judgm., Wilson Marryat, 8 T.
R. 45 ; s. c, affirmed in error, 1 B. & P. 430.

6 Doe d. Thomas v. Acklam, 2 B. & C. 779 (9 E. C. L. R.) ; Doe d. Stans-
bury v. Arkwright, 5 C. & P. 575 (24 E. C. L. R,). In Blight's Lessee v.
Rochester, 7 Wheaton (U. S.) R. 535, it was held, that British subjects born
before the Revolution, are equally incapable with those born after of inherit-
ing or transmitting the inheritance of lands in the United States.

MAXIMS RELATING TO THE CROWN.

78

within the dominion and protection of the Crown ; but it is merely
of a temporary nature, and ceases the instant such stranger trans-
fers himself from this kingdom to another. For, as the prince
affords his protection to an alien only during his residence in this
realm, the allegiance of an alien is confined, in point of time, to the
duration of such his residence, and, in point of locality, to the domin-
ions of the British Empire;1 the rule being, th&t protectio trahit sub-
jectionem et subjectio protectionem2 — a maxim which extends not
only to those who are born within the king's dominions, but also to
foreigners who live within them, even though their sovereign is at
war with this country, for they equally enjoy the protection of the
Crown.

Upon the maxims concerning allegiance and protection above
noticed, innovations have been announced by the Government as
contemplated, which, when fully developed and carried out by inter-
national arrangements, will restrict within comparatively narrow
limits their operation.

1 Chit. Pre. Crown 16. See Wolff v. Oxholm, 6 M. & S. 92 ; R. v. John-
son, 6 East 583.

2 Calvin's Case, 7 Rep. 5 ; Craw v. Ramsay, Vaughan, R. 279 ; Co. Litt. 65 a.

79 broom's legal maxims

[*79] *CHAPTER III.

§ I. THE JUDICIAL OFFICE.

The maxims contained in this section exhibit briefly the more
important of those duties which attach to persons filling judicial
offices, and discharging the functions which appertain thereto. It
would have been inconsistent with the plan and limits of this volume
to treat of such duties at greater length, and would not, it is believed,
have materially added to its utility.1

BONI JUDICIS EST AMPLIAEE JURISDICTIONEM.

(Chanc. Prec. 329.)

It is the duty of a judge, when requisite, to amplify the limits of his jurisdiction.

This maxim, as above worded and literally rendered, might lead
the student into error. Lord Mansfield once suggested that for the
word jurisdiction em, justitiam should be substituted,2 and in refer-
ence to it Sir II. Atkyns3 remarked as follows : — "It is indeed com-
r^on-i monly *said boni judicis est amfliare jurisdictionem.. But
I take that to be better advice which was given by the Lord
Chancellor Bacon to Mr. Justice Hutton upon the swearing him
one of the Judges of the Court of Common Pleas, — that he would
take care to contain the jurisdiction of the Court within the ancient
mere-stones without removing the mark."4

1 As to the authority of, and necessity of adhering to, judicial decisions, see
Ram's Treatise on the Science of Legal Judgment, chaps, iii., v., and xiv.

2 " The true text is, bom judicis est ampliare justitiam, not jurisdictionem,
as it has been often cited ;" per Lord Mansfield, C. J., 1 Burr. 304.

3 Arg. R. v. Williams, 13 St. Tr. 1430 ; Et vide per Cresswell, J., Dart v.
Dart, 32 L. J. P. M. & A. 125.

4 Bacon's Works, by Montague, vol. vii., p. 271. As on the one hand a
judge cannot extend his jurisdiction, so on the other hand, "the superior
courts at Westminster, and the judges, are not at liberty to decline a jurisdic-
tion imposed upon them by Act of Parliament." Judgm., Furber v. Sturney,
3 II. & N. 531.

THE JUDICIAL OFFICE. 80

»The true maxim of English law accordingly is u to amplify its
remedies, and, without usurping jurisdiction, to apply its rules, to
the advancement of substantial justice; M1 the principle therefore
upon which our Courts of law act is to enforce the performance of
contracts not injurious to society, and to administer justice to a
party who can make that justice appear, by enlarging the legal
remedy, if necessary, in order to attain the justice of the case ; for
the common law of the land is the birthright of the subject, and bonus
judex secundum cequum et bonum judicat, et cequitatem stricto juri
prcefert2 "I commend the judge," observes Lord Hobart, u who
seems fine and ingenious, so it tend to right and equity ; and I con-
demn them who, either out of pleasure to show a subtle wit, will
destroy, or out of incuriousness or negligence will not labor to sup-
port, the act of the party by the art or act of the law."3

*The action for money had and received may be men- r*Q-|-|
tioned as peculiarly illustrative of the principle above set
forth; for the foundation of this action is, that the plaintiff is in
conscience entitled to the money sought to be recovered ; and it
has been observed, that this kind of equitable action to recover back
money which ought not in justice be kept is very beneficial, and,
therefore, much encouraged. It lies only for money which ex cequo
et bono, the defendant ought to refund.4 " The ground," observed
Tindal, C. J., in Edwards v. Bates,5 "upon which an action of this
description is maintainable, is that the money received by the
defendants is money, which, ex cequo et bono, ought to be paid over
to the plaintiff. Such is the principle upon which the action has

1 Per Lord Abinger, C. B., Russell v. Smyth, 9 M. & W. 818 ; cited arg. Kel-
sall v. Marshall, 1 C. B. N. S. 255 (87 E. C. L. R.) ; see also per Lord Mans-
field, C. J., 4 Burr. 2239.

1 Per Buller, J., 4 T. R. 344. See Ashmole v. Wainwright, 2 Q. B. 837 (42
E. C. L. R.).

3 Hobart 125. " I do exceedingly commend the judges that are curious
and almost subtile * * to invent reasons and means to make acts according
to the just intent of the parties, and to avoid wrong and injury which by rigid
rules might be wrought out of the act." Per Lord Hobart, Id. 277. Cited
per Turner, V.-C; Squire v. Ford, 9 Hare 57.

4 Per Lord Mansfield, C. J., Moses v. Macfarlane, 2 Burr. 1012; Litt. v.
Martindale, 18 C. B., 314 (86 E. C. L. R.) ; per Pollock, C. B., Aikin v. Short,
1H.&N. 214 ; Holt v. Ely, 1 E. & B. 795 (72 E. C. L. R.) j Somes v. British
Empire Shipping Co., 8 H. L. Cas. 338.

5 8 Scott N. R. 414 ; s. c, 7 M. & Gr. 590 (49 E. C. L. R.).

81 broom's legal maxims.

rested from the time of Lord Mansfield. When money has been
received without consideration, or upon a consideration that has
failed, the recipient holds it ex cequo et bono for the plaintiff."1

The power of directing an amendment of the record, which a
judge at Nisi Prius in certain cases possesses,2 *may like-
L -J wise be instanced as one which is confided to him by the leg-
islature, in order that it may be applied " to the advancement of
substantial justice."

The general maxim under consideration is also applicable with
reference to the jurisdiction of a judge at chambers, and to the im-
portant and arduous duties which are there discharged by him.3

The proceeding by application to a judge at chambers has indeed
been devised and adopted by the Courts, under the sanction of the
legislature, for the purpose of preventing the delay, expense and in-
convenience which must ensue if applications to the Courts were in
all cases, and under all circumstances, indispensably necessary. A
judge at chambers is usually described as acting under the dele-
gated authority of the Court, and his jurisdiction is different from
that of a judge sitting at Nisi Prius; in the former case the judge
has a wider field for the exercise of his discretion, and in some in-
stances has a supreme jurisdiction, which is not subject to the
review of the Court in banc.4

In a modern case, where it was held that a judge at chambers
has jurisdiction to fix the amount of costs to be paid as the condi-
tion of making an order, the maxim to which we have here directed
attention, was expressly applied. "As to the power of the judge
to tax costs," remarked Vaughan, J., "if he is willing to do it, and

1 See Martin v. Andrews, 7 E. & B. 1 (90 E. C. L. R.) ; Garton v. Bristol
and Exeter R. C, 1 B. & S. 112 (101 E. C. L. R.) ; Baxendale v. Great West-
ern R. C, 14 C. B. N. S. 1 (108 E. C. L. R.) ; s. c, affirmed 16 C. B. N. S.
137 (111 E. C. L. R.) 5 Roberts v. Aulton, 2H.&N, 432; Barnes v. Braith-
waite, Id. 569.

2 See 15 & 16 Vict. c. 76, s. 222 ; Blake v. Done, 7 H. & N. 465 ; Clay v.
Oxford, L. R. 2 Ex. 54 : Vanderbyl v. M'Kenna, L. R. 2 C. P. 252 ; Garrard v.
Guibilei, 11 C. B. N. S. 616 (103 E. C. L. R.) ; 17 & 18 Vict. c. 125, s. 96 ; 3 &
4 Will. 4, c. 42, s. 23, in reference to which latter statute see per Rolfe, B.,
Cooke v. Stratford, 13 M. & W. 387.

3 Much business at judges' chambers is now transacted by the Masters in
pursuance of Stat. 30 & 31 Vict. c. 68.

4 Bagley, Ch. Pr. 1, 2, 4 ; Broom's Com., 4th ed., 55 et seq. Per Lord Ellen-
borough, C. J., Alner v. George, 1 Camp. 393.

THE JUDICIAL OFFICE. 82

can save expense, it is clear that what the officer of the Court may
do, the judge may do, and boni judicis est ampliare jurisdictionem,
i. e. jtistitiam."1

*Again, in construing an Act of Parliament, it is a set- r*oo-i
tied rule of construction, that cases out of the letter of a
statute, yet within the same mischief or cause of the making
thereof, shall be within the remedy thereby provided;2 and, accord-
ingly, it is laid down, that for the sure and true interpretation of
all statutes (be they penal or beneficial, restrictive or enlarging of
the common law), four things must be considered: 1st, what was
the common law before the making of the Act; 2dly, what was the
mischief for which the common law did not provide; 3dly, what
remedy has been appointed by the legislature for such mischief; and
4thly, the true reason of the remedy: and then the duty of the
judges is to put such a construction upon the statute, as shall sup-
press the mischief, and advance the remedy— to suppress subtle
inventions and evasions for continuing the mischief pro privato
commotio, and to add force and life to the cure and remedy, accord-
ing to the true intent of the makers of the Act pro bono publico.3

In expounding remedial laws, then, the Courts will extend the
remedy so far as the words will admit.4 Where, however, a case
occurs which was not foreseen by the legislature, it is the duty of
the judge to declare it casus omissus ; or where the intention, if
entertained, is not expressed, to say of the legislature, quod voluit
non dixit; or where the case, though within the mischief, is
*not clearly within the meaning, or where the words fall
short of the intent, or go beyond it, — in every such case it *- -»
is held the duty of the judge, in a land jealous of its liberties, to
give effect to the expressed sense or words of the law in the order
in which they are found in the Act, and according to their fair and

1 Collins v. Aron, 4 Bing. N. C. 233, 235 (33 E. C. L. R.). See Clement v.
Weaver, 4 Scott N. R. 229, and cases cited Id. 231, n. (44).

2 Co. Litt. 24 b : Jenk. Cent. 58, 60, 226.

3 Heydon's Case, 3 Rep. 7; cited A. G. v. Walker, 3 Exch. 258 ; Miller v.
Salomons, 7 Exch. 522 ; per Parke, B., Id. 552 ; per Coleridge, J., In the matter
of Gedge, 9 Jurist 470 ; Judgm., Jackson v. Burnham, 8 Exch. 179-180; 11
Rep. 61 b.

See, generally, as to the interpretation of statutes, post, Chap. VIII.
* Per Lord Kenyon, C. J., Turtle v. Hartwell, 6 T. R. 429.

5

84 BROOM'S LEGAL MAXIMS.

ordinary import and understanding;1 for it must be remembered,
that the judges are appointed to administer, not to make the law,
and that the jurisdiction with which they are entrusted, has been
defined and marked out by the common law or Acts of Parliament.2
It is, moreover, a principle consonant to the spirit of our constitu-
tion, and which may be traced as pervading the whole body of our
jurisprudence, that optima est lex quai minimum relinquit arhitrio
judicis, optimus judex qui minimum sibi3 — that system of law is best,
which confides as little as possible to the discretion4 of the judge —
that judge the best, who relies as little as possible on his own
opinion.

Further, be it remembered, that " there is no court in England
which is entrusted with the power of administering justice without
restraint. That restraint has been imposed from the earliest times.
And, although instances are constantly occurring where the courts
r-^qr-i might profitably *be employed in doing simple justice between
the parties, unrestrained by precedent, or by any technical
rule, the law has wisely considered it inconvenient to confer such
power upon those whose duty it is to preside in courts of justice.
The proceedings of all courts must take a defined course, and be
administered according to a certain uniform system of law, which,
in the general result, is more satisfactory than if a more arbitrary
jurisdiction was given to them. Such restrictions have prevailed in
all civilized countries ; and it is, probably, more advantageous that it
should be so, though at the expense of some occasional injustice.
The only court in this country which is not so fettered is the supreme
court of the legislature ;"5 for " certain it is," says Lord Coke, " that
Curia Parliament! suis propriis legibus subsisit."6

1 2 Dwarr. Stats., 2d edi, 704. 2 R. v. Almon, Wilmot's Notes, 256.

3 Bac. Aphorisms 46. See per AVilinot, C. J., Collins v. Blantern, 2 Wilson
341 •, per Buller, J., Master v. Miller, 4 T. R. 344, affirmed in error, 2 HLBla.
141 ; Co. Litt. 24 b ; per Tindal, C. J., 6 Scott N. R. 180 ; 5 II. L. Cas. 785,
958.

4 Discretio est discemere per legem quid sit justum, 4 Inst. 41, cited per
Tindal, C. J., 6 Q. B. 700 (51 E. C. L. R.). See Rooke's Case, 5 Rep. 99-100;
1 W. Bla. 152; 1 Burr. 570 ; 3 Bulstr. 128. " Discretion, when applied to a
court of justice, means sound discretion guided by law. It must be governed
by rule, not by humor : it must not be arbitrary, vague, and fanciful, but legal
and regular. Per Lord Mansfield, C. J., R. v. Wilkes, 2 Burr. 25, 39.

6 Per Maule, J., Freeman v. Tranah, 12 C. B. 413, 414 (74 E, C. L. R.).
6 4 Inst. 50.

the judicial office. 85

De Fide et Officio Judicis 'non recipitur Qilestio, sed de
scientia sive sit error juris sive facti.

(Bac. Max., reg. 17.)

The bona fides and "honesty of purpose of a judge cannot be questioned, but

his decision may be impugned for error either of law or of fact.

The law, says Lord Bacon, has so much respect for the certainty
of judgments, and the credit and authority of judges, that it will
not permit any error to be assigned which impeaches them in their
trust and office, and in wilful abuse of the same, but only in igno-
rance and mistaking either of the law or of the case and matter in
fact ;* *and, therefore, it cannot be assigned for error, that
a judge did that which he ought not to do, as that he entered L -*
a verdict for the defendant where the jury gave it for the plaintiff.2
It is, moreover a general rule of great antiquity, that no action will
lie against a judge of record for any act done by him in the exer-
cise of his judicial functions, provided such, act, though done
mistakenly, were within the scope of his jurisdiction.3 " The rule
that a judicial officer cannot be sued for an adjudication according
to the best of his judgment upon a matter within his jurisdiction,
and also the rule that a matter of fact so adjudicated by him can-
not be put in issue in an action against him, have been uniformly
maintained."4

"The doctrine," says Mr. Chancellor Kent,5 "which holds a judge
exempt from a civil suit or indictment for. any act done or omitted
to be done by him sitting as judge, has a deep root in the common
law. It is to be found in the earliest judicial records, and it has

1 Bac. Max., reg. 17; Bushell's Case, Vaugh. R. 138, 139 ; 12 Rep. 25.

2 Bac. Max., reg. 17; per Holt, C. J., Groenvelt v. Burwell, 1 Lord Raym.
468 ; s. c, 1 Salk. 397 ; 12 Rep. 24, 25.

3 Smith v. Boucher, Cas. Temp. Hardw. 69; Calder v. Halket, 3 Moo., P.
C. C. 28, with which compare Gahan v. Lafitte, 8 Moo. P. C. C. 382 ; Scott v.
Stansfeld, L. R. 3 0. P. 220 ; Taaffe v. Dowries, Id. 36 n. (a) ; Houlden v.
Smith, 14 Q. B. 841 (68 E. C. L. R.); Judgm., Mostyn v. Fabrigas, Cowp.
161 ; Phillips v. Eyre, L. R. 4 Q. B. 225, 229 (45 E. C. L. R.) ; Pease v. Chay.
tor, 1 B. & S. 658 (101 E. C. L. R.) ; Hamilton v. Anderson, Macq. Sc. App.
Cas. 363.

4 Judgm., Kemp v. Neville, 10 C. B. N. S. 549 (100 E. C. L. R.) ; s. c.
Broom's Const. L. 734, and Note thereto, Id. 762 et. seq., where the cases are
collected ; per Erie, C. J., Wildes v. Russell, L. R. 1 C. P. 730.

6 Yates v. Lansing, 5 Johnson (U. S.) R. 291 ; s. c. (in error), 9 Id. 396.

86 BROOM'S LEGAL MaXIMS.

been steadily maintained by an undisturbed current of decisions in
the English courts, amidst every change of policy, and through
r*871 eveiT revolution of their government. A *short view of
the cases will teach us to admire the wisdom of our fore-
fathers, and to revere a principle on which rests the independence
of the administration of justice."

This freedom from action and question at the suit of an individ-
ual, it has likewise been observed, is given by our law to the judges,
not so much for their own sake as for the sake of the public, and for
the advancement of justice, that, being free from actions, they may
be free in thought and independent in judgment, as all who are to
administer justice ought to be ; and it is not to be supposed before-
hand, that those who are selected for the administration of justice
will make an ill use of the authority vested in them. Even inferior
justices cannot be called in question for an error in judgment, so
long as they act within the bounds of their jurisdiction. In the
imperfection of human nature, it is better that an individual should
occasionally sutfer a wrong, than that the general course of justice
should be impeded and fettered by constant and perpetual restraints
and apprehensions on the part of those who are to administer it.
Corruption is quite another matter; so also are neglect of duty and
misconduct. For these there is, and always will be, some due
course of punishment by public prosecution.1

r*oo-| An action, then, does not lie against a judge, civil2 *or

ecclesiastical,3 acting judicially in a matter within the scope

of his jurisdiction.4 Nor can a suit be maintained against persons

1 Judgm., Garnett v. Ferrand, 6 B. & C. 625, 626 (13 E. C. L. R.) ; Thomas
v. Churton, 2 B. & S. 475 (HOE. C. L. R.) ; Vaugh.R.383. See R. v. Johnson
6 East 583, s. c, 7 East 65, in which case one of the judges of the Court ofCom-
mon Pleas in Ireland was convicted of a libel. As to the principles which
o-uide the Court of Queen's Bench in interfering by criminal information
in the case of justices, see Reg. v. Badger, 4 Q. B. 468, 474 (45 E. C. L. R.).
The judges are not liable to removal, except upon address of both houses of
Parliament ; see Stats. 13 Will. 3, c. 2, and 1 Geo. 3, c. 23.

2 Dicas v. Lord Brougham, 6 C. & P. 249 (25 E. C. L. R.) ; Kemp v. Neville,
10 C: B. N. S. 523 (100 E. C. L. R.) ; (where the action was brought against the
Vice-Chancellor of the University of Cambridge) ; Tinsley v. Nassau, Mo. &
Mai. 52 (22 E. C. L. R.) ; Johnstone v. Sutton, 1 T. R. 513 ; per Holt, C. J.,
1 Lord. Raym. 468; Garnett v. Ferrand, 6 B. & C. 611 (14 E. C. L. R.).

3 Ackerley v. Parkinson, 3 M. & S. 411, 425 ; Beaurain v. Scott, 3 Camp. 388.

4 lb. See Wingate v. Waite, 6 M. & W. 739, 746 ; Hamilton v. Anderson,
3 Macq. Sc. App. Cas. 363.

THE JUDICIAL OFFICE. 88

so acting with a more limited authority, as the steward of a court
baron,1 or commissioners of a court of request;2 and, as already
intimated, magistrates, acting in discharge of their duty, and within
the bounds of their jurisdiction, are irresponsible even where the
circumstances under which they are called upon to act, would not
have supported the complaint, provided that such circumstances
were not disclosed to them at the time of their adjudication.3

"If," as judicially remarked, "a magistrate commit a party
charged before him in a case where he has no jurisdiction, he is
liable to an action of trespass.4 But if the charge be of an offence
over which, if the offence charged be true in fact, the magistrate
has jurisdiction, the magistrate's jurisdiction cannot be made to
depend upon the truth or falsehood of the facts, or upon the evi-
dence being sufficient or insufficient to establish the corpus delicti
brought under investigation.5

*And where the authority is given to justices by statute,
and they appear to have acted within the jurisdiction so *- -•
given, and to have done all that the particular statute requires them
to do, in order to originate their jurisdiction, their conviction, drawn
up in due form, and remaining in force, is a protection and con-
clusive evidence for them in any action which may be brought
against them for the act so done.6 That is to say, "in an action

1 Holroyd v. Breare, 2 B. & Aid. 473. See Judgm., Bradley v. Carr, 3
Scott N. R. 521, 528.

2 Carratt v. Morley, 1 Q.B. 18 (41 E. C. L. R.) ; Andrews v.Marris, Id. 3, and
cases there cited. See Morris v. Parkinson, 1 Cr., M. & R. 163.

3 Pike v. Carter, 3 Bing. 78 (11 E^ C. L. R.) ; Lowther v. Earl of Radnor, 8
East 113 ; Brown v. Copley, 8 Scott N. R. 350; Pitcher v. King, 9 A. & E.
288 (36 E. C. L. R.) ; 2 Roll. Abr. 552, pi. 10.

4 See, for instance, Newbould v. Coltman, 6 Exch. 189 ; Pedley v. Davis, 10
C. B. N. S. 492 (100 E. C. L. R.).

5 Per Tindal, C. J., Cave v. Mountain, 1 M. & Gr. 257, 261 (39 E. C. L. R.) ;
recognised Reg. v. Bolton, 1 Q. B. 66, 75 (41 E. C. L. R.) ; Reg. v. Grant, 14
Q. B. 43 (68 E. C. L. R.). See Reg. v. Inhabs. of Hickling, 7 Q. B. 880 (53
E. C. L. R.) ; following Brittain v. Kinnaird, 1 B. & B. 432 ; Ayrton v. Ab-
bott, 14 Q. B. 1, 23 (68 E. C. L. R.).

6 Per Abbott, C. J., Basten v. Carew, 5 B. & C. 652, 653 ; s. c, 5 D. & R.
558 (16 E. C. L. R.); Baylis v. Strickland, 1 Scott N. R. 540; Fernley v.
Worthington, 1 Scott N. R. 432 ; Painter v. Liverpool Gas Co., 3 A. & E.
433 (30 E. C. L. R.) ; Webb v. Bachelour, Ventr. 273 ; Tarry v. Newman, 15
M. & W. 645; Stamp v. Sweetland, 8 Q. B. 13 (55 E. C. L. R.). See also
Hazeldine v. Grove, 3 Q. B. 997, 1006 (43 E. C. L. 11.)

89 BROOM'S LEGAL MAXIMS.

brought against a magistrate, a subsisting conviction — good upon
the face of it, in a case to which his jurisdiction extends, being
produced at the trial, is a bar to the action, provided that the
conviction was not made maliciously and without reasonable and
probable cause, and provided also that the execution has been
regular, although the magistrate may have formed an erroneous
judgment upon the facts; for that is properly the subject of
appeal."1 Ample protection, it will be remembered, is, by a recent
enactment, the provisions of which cannot here be set out, extended
to justices of the peace.2

Having thus briefly stated the general rule applicable with respect
to the right of action against persons invested with judicial func-
tions, we may remark that there is one very extensive class of cases
P901 wkmQ may, on *a cursory observation, appear to fall within
its operation, but which is, in fact, governed by a different
although not less important, principle. We refer to cases in which
the performance of some public duty is imposed by law upon an
individual who, by neglecting or refusing to perform it, causes an
injury to some other party; here, as a general rule, the injury
occasioned by the breach of duty, without proof of mala fides, lays
the foundation for an action for recovery of damages, by way of
compensation to the party injured.3 This principle, moreover,
applies where persons required to perform ministerial acts are at
the same time invested with the judicial character; and, in accord-
ance therewith, in the celebrated Auchterarder Case,4 the members
of the presbytery were held liable, collectively and individually, to
make compensation in damages, for refusing to take the presentee
to a church on trial, as they were bound to do, according to the
law of Scotland. The legislature, observed Lord Brougham in the
case referred to, can, of course, do no wrong, and its branches are

1 Paley, Conv., 4th ed., 388.

2 11 & 12 Vict. c. 44, as to which see Paley, Conv., 4th ed., 399 et seq. ;
Sommerville v. Mirehouse, 1 B. & S. 652 (101 E. C. L. 11.) ; Pease v. Chaytor,
Id. 658 ; Pedley v. Davis, 10 C. B. N. S. 492 (100 E. C. L. R.) ; Gelen v. Hall,
2 II. & N. 379.

3 See Barry v. Arnaud, 10 A. & E. G46 (37 E. C. L. R.) ; cited Mayor of
Lichfield v. Simpson, 8 Q. B. 65 (55 E. C. L. R.J. Per Lord Brougham,
M'Kenna v. Pape, 1 H. L. Cas. 7 ; Steel v. Shomberg, 4 E. & B. 620 (82 E. C.
L. R.) ; Scott v. Mayor of Manchester, 2 II. &. N. 204.

4 Ferguson v. Earl of Kinnoul, 9 CI. & Fin. 251.

THE JUDICIAL OFFICE. 90

equally placed beyond all control of the law. So, " the Courts of
justice, that is the superior Courts, Courts of general jurisdiction,
are not answerable, either as bodies or by their individual members,
for acts done within the limits of their jurisdiction. Even inferior
Courts, provided the law has clothed them with judicial functions,
are not answerable for errors in judgment; and where they may not
act as judges, but only have a discretion confided to them, an erro-
neous exercise of that ^discretion, however plain the mis- rs|cQin
carriage may be, and however injurious its consequences, *- -■
they shall not answer for. This follows from the very nature of
the thing. It is implied in the nature of judicial authority, and in
the nature of discretion, where there is no such judicial authority.
But where the law neither confers judicial power, nor any discre-
tion at all, but requires certain things to be done, every body,
whatever be its name, and whatever other functions of a judicial or
of a discretionary nature it may have, is bound to obey ; and, with
the exception of the legislature and its branches, every body is
liable for the consequences of disobedience; that is, its members
are liable, through whose failure or contumacy the disobedience
has arisen, and the consequent injury to the party interested in the
duty being performed."1

But although the honesty and integrity of a judge acting in his
judicial capacity cannot be questioned,2 abundant means are afforded
for obtaining redress, if any error be committed by him, arising
either from ignorance of law, or from a misconception of his judi-
cial duties. If such an error be committed by him whilst sitting
at Nisi Prius, the Court in banc will, on motion,3 interfere to rectify
it, either by granting a new trial, by directing a nonsuit, or that
the verdict be entered non obstante veredicto, or by arresting the
judgment, if the cause of action be defectively set forth on the record.
Where the alleged error consists in a misdirection by the r*qo-i
*judge, a bill of exceptions may be tendered to his directions.4

1 Per Lord Brougham, 9 CI. & Fin. 289, 290, whose judgment has throughout
an especial reference to the subject of judicial liability.

2 As to libellous strictures upon the conduct of public functionaries, see
Gathercole v. Miall, 15 M. & W. 319, 332, 338.

3 As to the right of appeal where the rule is refused or discharged, see C.
L. Proc. Act, 1854, sects. 34-42.

4 See Roe d. Lord Trimlestown v. Kemmis, 9 CI. & Fin. 749 5 C. L. Proc.
Act, 1852, s. 157.

92 broom's legal maxims.

With respect to the mode of proceeding in a civil case where
error in law or in fact1 has occurred, reference should more particu-
larly be made to those portions of the Common Law Procedure
Act, 1852, below specified.2

Where error has occurred in a criminal proceeding, it is set right
by the Court for the consideration of Crown Cases Reserved, or by
writ of error, which may be brought when the Attorney-General's
fiat has been obtained for it..!

With respect to an award, which, when made in pursuance of a
submission to arbitration in the usual manner, is equivalent to a
judicial decision upon the points at issue between the parties, the
general rule is, that, if an arbitrator makes a mistake, which is not
apparent on the face of his award, the party injured has no redress,
nor will the Court review the arbitrator's decision as to the facts,
or allow the merits of the case to be gone into. If no corruption
be shown, the Court will decline to interfere.4

r*q<T| *QUI JUSSU JUPICIS ALIQU0D FECERIT NON VIDETUR DOLO
Malo FECISSE, QUIA PARERE NECESSE EST.

(10 Rep. 76.)

Where a person does an act by command of one exercising judicial authority,
the law will not suppose that he acted from any wrongful or improper motive,
because it was Ms bounden duty to obey.6

Where a Court has jurisdiction of the cause, and proceeds inverso
ordine, or erroneously, then the party who sues, or the officer or

1 Error d'oes not lie to the Exchequer Chamber or House of Lords on a
judgment pronounced upon allegations of error in fact merely : Irwin v. Grey,
L. R. 2 H. L. 20 ; s. c, L. R. 1 C. P. 171.

2 Sect. 146 et seq.

3 Ex parte Newton, 4 E. & B. 869 (82 E. C. L. R.) ; Re Newton, 16 C. B.
97 (81 E. C. L. R.) ; Reg. v. Stokes, 1 Dem. C. C. 307. See further as to this,
post, p. 110, n. 3.

4 See per Pollock, C. B., Hagger v. Baker, 14 M. & W. 10. See Re Hopper,
L. R. 2 Q. B. 367 ; Phillips v. Evans, 12 M. & W. 309 ; Fuller v. Fenwick, 3
C. B. 704 (54 E. C. L. R.) ; Hutchinson v. Shepperton, 13 Q. B. 955 (66 E. C.
L. R.) ; Russell, Arbitr., 3d ed., 656.

6 This maxim is derived from the Roman law, see D. 50. 17. 167, $ 1.

THE JUDICIAL OFFICE. 93

minister of the Court who executes according to its tenor1 the pre-
cept or process of the Court, will not be liable to an action.2 But
when the Court has not jurisdiction of the cause, then the whole
proceeding is coram non judice? and actions will lie against the
above-mentioned parties without any regard to the precept or pro-
cess ; and in this case it is not necessary to obey one who is not judge
of the cause, any more than it is to obey a mere stranger, for the
rule is, judicium a non suo judice datum nullius est momenti.*

Accordingly, in Gosset v. Howard,5 it was held that *the r*Q4-i
warrant of the Speaker of the House of Commons, having
issued in a matter over which the House had jurisdiction, was to be con-
strued on the same principle as a mandate or writ issuing out of a
superior court acting according to the course of common law, and
that it afforded a valid defence to an action for assault and false
imprisonment brought against the Serjeant-at-Arms, who acted in
obedience to such warrant.

In the last-mentioned case it is observable that the matter in
respect of which the warrant issued was admitted to be within the
jurisdiction of the House, and it is peculiarly necessary to notice
this, because, in the previous case of Stockdale v. Hansard,6 it was
held to be no defence in law to an action for publishing a libel, that
the defamatory matter was part of a document, which was, by order
of the House of Commons, laid before the House, and thereupon
became part of the proceedings of the House, and which was after-

1 See Munday v. Stubbs, 10 C. B. 432 (70 E. C. L. R.).

2 See Prentice v. Harrison, 4 Q. B. 852 (45 E. C. L. R.) ; Brown v. Jones,
15 M. & W. 191 5 Judgm., Ex parte Story, 8 Exch. 201.

8 See Tinniswood v. Pattison, 3 C. B. 243 (54 E. C. L. R.) ; Factum a judice
quod ad officium ejus non pertinet ratum non est: D. 50. 17. 170.

4 Marshalsea Case, 10 Rep. 70; Taylor v. Olemson, 2 Q. B. 1014, 1015 (42
E. C. L. R.) ; s. c, 11 CI. & F. 610; cited Ostler v. Cooke, 13 Q. B. 143, 162
(66 E. C. L. R.) ; Morrell v. Martin, 4 Scott N. R. 313, 314; Jones v. Chap,
man, 14 M. & W. 124; Baylis v. Strickland, 1 Scott N. R. 540; Marhall v.
Lamb, 5 Q. B. 115 (48 E. C. L. R.) ; Watson v. Bodell, 14 M. & W. 57 ; Thomas
v. Hudson, Id. 353 ; Van Sandau v. Turner, 6 Q. B. 773 (51 E. C. L. R.) ;
Lloyd v. Harrison, 6 B. & S. 36 (118 E. C. L. R.).

5 10 Q. B. 411 (59 E. C. L. R.), reversing the judgment in the court below.
See Ex parte Fernandez, 10 C. B. N. S. 3 (100 E. C. L. R.) ; s. c, 6 H. & N.
717.

6 9 A. & E. 1 (36 E. C. L. R.) ; s. c, Broom's Const. L. 870, and Note
thereto, Id. 966 et seq.

94 broom's legal maxims.

wards, by order of the House, and which was afterwards, by order
of the House, printed and published by the defendant. The decision
in this case resulted from the opinion entertained by the Court being
adverse to the existence of the privilege under which the defendant
sought to justify the alleged wrongful act, and, in consequence of
this decision, the stat. 3 & 4 Vict. c. 9, was passed, which enacts,
that all proceedings, whether by action or criminal prosecution,
similar to the above, shall be stayed by bringing before the Court
or judge a certificate, under the hand of the Chancellor or of the
Speaker of the House of Commons, to the effect, that the publica-
p^qr-. tion in question is by order of either House of ^Parliament,
together with an affidavit verifying such certificate.1
A reference to Andrews v. Marris2 may serve further to illustrate
the above general and important doctrine : — The commissioners of a
court of request ordered a debt claimed by the plaintiff to be paid
by certain instalments, "or execution to issue." The clerk of the
Court, on default of payment, and on application made to him by
the plaintiff, issued a precept for execution without the further
intervention of the Court. It was held that the commissioners were
required, when acting on such default, to execute judicial powers,
which could not be delegated ; and, therefore, that the clerk who
made such precept was liable in trespass for its execution, though
the proceeding was conformable to the practice of the Court, inas-
much as the Court could not institute such a practice ; but it was
further held that the serjeant who executed the precept, and who
was the ministerial officer3 of the commissioners bound to execute

1 Entick v. Carrington, 19 Howell St. Tr. 1030, is the leading case in regard
to the power of arresting the person, and seizing papers, under a Secretary
of State's warrant. See Leach v. Money, Wilkes v. Wood, and Entick v. Car-
rington, Broom's Const. L. 525, 548, 558, and Note thereto, Id. 613 et seq. ;
Foster v. Dodd, L. R. 3 Q. B. 67.

a Andrews v. Marris, 1 Q. B. 3, 16, 17 (41 E. C. L. R.), recognised in Carratt
v. Morley, Id. 29 ; and distinguished in Dews v. Riley, 11 C. B. 434, 444 (73
E. C. L. R.) ; Levy v. Moylan, 10 C. B. 189 (70 E. C. L. R.). As to the lia-
bility of the party at whose suit execution issued, or of his attorney, see Car-
ratt v. Morley, supra ; Coomer v. Latham, 16 M. & W. 713 ; Ewart v. Jones,
14 M. & W. 774; Green v. Elgie, 5 Q. B. 99 (48 E. C. L. R.) ; Kinning v.
Buchanan, 8 C. B. 271 (65 E. C. L. R.) ; Abley v. Dale, 11 C. B. 378, 379 (73
E. C. L. R.) -post, p. 124, n. 4.

3 As regards the liability of ministerial officers, an important distinction to
be observed is between cases in which there has been an adjudication and

THE JUDICIAL OFFICE. 95

their warrants, having no means whatever of ascertaining whether
they issued upon valid judgments, or were otherwise *sus- r*qr»-i
tainable or not, was well defended by it, because the subject-
matter of the suit was within the general jurisdiction of the com-
missioners, and the warrant appeared to have been regularly issued.
The Court observed that his situation was exactly analogous to that
of the sheriff in respect of process from a superior court ; and that
it is the well-known distinction between the cases of the party and
of the sheriff or his officer, that the former, to justify his taking body
or goods under process, must show the judgment in pleading as well
as the writ, but for the latter it is enough to show the writ only.1

The case of a justification at common law by a constable under
the warrant of a justice of the peace offers another illustration of
the rule now under consideration ; for if the warrant issued by the
justice of the peace, in the shape in which it is given to the officer,
is such that the party may lawfully resist it,2 or, if taken on it, will
be released on habeas corpus, it is a warrant which, in that shape,
the magistrate had no jurisdiction to issue, which, therefore, the
officer need not have obeyed, and which, at common law, on the
principle above laid down, will not protect him against an action at
suit of the party injured.3 Where the cause is expressed but
imperfectly, the officer may not be expected to judge as to the suf-
ficiency of the statement; and, therefore, if the subject-matter be
within the jurisdiction of the magistrate, he may be bound- to exe-
cute it, and, as a consequence, be entitled to protection; *but [-#07-1
where no cause is expressed, there is no question as to the
want of jurisdiction.4

"A rule," observes Lord Denman, C. J., delivering judgment in
Reg. v. Inhabitants of Stainforth,5 " has been often recognised in
respect of proceedings by magistrates requiring all" the facts to be

those in which there has been an order only, see Foster v. Dodd, L. R. 3 Q.
B. 67, 76.

1 See Cotes v. Michill, 3 Lev. 20 ; Moravia v. Sloper, Willes 30, 34.

2 Reg. v. Tooley, 2 Lord Raym. 1296, 1302.

3 As to the legality of an arrest under a warrant which is not in possession
of the constable, see Galliard, app., Lp,xton, resp., 2 B. & S. 363 (110 E. C.
L. R.).

4 Per Coleridge, J., 10 Q. B. 390 (59 E. C. L. R.). See in illustration of the
remarks, supra, Clark v. Woods, 2 Exch. 395, and cases there cited.

' 6 11 Q. B. 75 (63 E. C. L. R.). See also Reg. v. Inhabs. of Totness, Id. 80.

97 broom's legal maxims.

stated which are necessary to show that a tribunal has been law-
fully constituted, and has jurisdiction. There is good reason for
the rule where a special authority is exercised which is out of the
ordinary course of common law, and is confined to a limited locality,
as in case either of warrants for arrest, commitment, or distress, or
of convictions, or orders by local magistrates where the duty of
promptly enforcing the instrument is cast on officers of the law,
and the duty of unhesitating submission on those who are to obey.
It is requisite that the instrument so to be enforced and obeyed
should show on inspection all of the essentials from which such
duties arise."

A plea of justification by a constable acting under the warrant
of a justice, will accordingly by the common law be bad, if it does
not show that the justice had jurisdiction over the subject-matter
upon which the warrant is granted.

By stat. 24 Geo. 2, c. 44, s. 6, it is enacted, that no action shall
be brought against any constable, head-borough, or other officer,
or against any person or persons acting by his order or in his aid,
for any thing done in obedience to any warrant under the hand or
seal of any justice of the peace, until demand shall have been made
r*qcn °f ^ne perusal and copy of such warrant, and the same Re-
fused or neglected for the space of six days after such
demand : that in case, after such demand and compliance therewith,
any action shall be brought against such constable, &c, for any
such cause as aforesaid, without making the justice or justices who
signed or sealed the said warrant defendant or defendants, then, on
producing or proving such warrant at the trial, the jury shall
give their verdict for the defendant or defendants, notwithstanding
any defect of jurisdiction in such justice or justices; and if such
action be brought against the justice and constable jointly, then, on
proof of such warrant, the jury shall find for such constable, not-
withstanding such defect of jurisdiction as aforesaid : and this
statute applies as well where the justice has acted without jurisdic-
tion, as where the warrant which he has granted is improper.1

It should be observed, however, that the officer must show that
he acted in obedience to the warrant,2 and can only justify that

1 Per Lord Eldon, C. J., Price v. Messenger, 2 B. & P. 158 ; Atkins v. Kilby,
11 A. & E. 777 (39 E. C. L. R.).

2 See Hoye v. Bush, 3 Scott N. R. 86.

THE JUDICIAL OFFICE. 98

which he lawfully did under it;1 and where the justice cannot be
liable, the officer is not entitled to the protection of the statute ; for
the Act was intended to make the justice liable instead of the
officer: where, therefore, the officer makes such a mistake as will
not make the justice liable, the officer cannot be excused.

Besides the statute 24 Geo. 2, c. 44, above mentioned, there are
other enactments, which, on grounds of public policy, specially
extend protection to persons who act bond fide, though mistakenly,
in pursuance of their provisions ; and as throwing light upon their
practical *operation, attention may specially be directed to r*qq-i
Hughes v. Buckland,2 which was an action of trespass
against the defendants, being servants of A. B., for apprehending
the plaintiff, whilst fishing in the night-time near the mouth of a
river in which A. B. had a several fishery ; at the trial, much evi-
dence was given to show that A. B.'s fishery included the place
where the plaintiff was apprehended; the jury, however, defined the
limits of the fishery so as to exclude that place by a few yards, but
they also found that A. B. and the defendants, " bond fide and
reasonably" believed that the fishery extended over that spot : it was
held, that the defendants were entitled to the protection of the stat.
7 & 8 Geo. 4, c. 29, s. 75, wThich is framed for the protection " of
persons acting in the execution" of that Act, and doing anything
in pursuance thereof. " The object of the clause in question,"
observed Pollock, 0. B., in the course of his judgment, "was to
give protection to all parties who honestly pursued the statute.
Now, every act consists of time, place, and circumstance. With
regard to circumstance, it is admitted, that, if one magistrate acts
where two are required, or imposes twelve months' imprisonment
where he ought only to impose six, he is protected if he has a
general jurisdiction over the subject matter, or has reason to think
he has. With respect to time, the case of Cann v. Clipperton3
shows that a party may be protected although he arrests another
after the time when the statute authorizes the arrest. Place is
another ingredient ; and I am unable to distinguish the present case
from that of a magistrate who is protected, although he acts out of
his jurisdiction. A party is protected if he acts bond fide, and in

1 Peppercorn v. Hoffman, 9M.&W. 618, 628.

2 15 M. &. W. 346.

3 10 A. & E. 188 (37 E. C. L. R.

100 broom's legal maxims.

reasonable *belief that he is pursuing the Act of Parlia-
L ^ ment."1 And the proper question for the jury in a case
such as referred to will be this: — " Did the defendant honestly
believe in the existence of those facts which, if they had existed,
would have afforded a justification under the statute?" — the belief
of the defendant resting upon some reasonable grounds.2

Lastly, we may observe, that, when considered with reference to
foreign communities, the jurisdiction of every court, whether in
personam, or in rem, must so far as regards the compelling obedi-
ence to its decrees,3 necessarily be bounded by the limits of the
kingdom in which it is established, and unless, by virtue of inter-
national treaties,4 such, jurisdiction has been extended, it clearly
cannot enforce process beyond those natural limits, according to
the maxim, Extra territorium jus dicenti impune non paretur.5

*" Municipal law may," however, "provide that judg-
L J ments and decrees may be lawfully pronounced against

1 il A thing is considered to be done in pursuance of a statute, when the per-
son who does it is acting honestly and bond Jide, either under the powers
which the Act confers, or in discharge of the duties which it imposes." Per
Parke, B., Jowle v. Taylor, 7 Exch. 61 ; Downing v. Capel, L. R. 2 C. P. 461 ;
Poulsum v. Thirst, Id. 449 ; Whatman v. Pearson, L. R. 3 C. P. 422.

2 Per Williams, J., Roberts v. Orchard, 2 H. & C. 774, as explained in Leete
v. Hart, L. R. 3 C. P. 322, 324, 325 ; Heath v. Brewer, 15 C. B. N. S. 803 (109
E. C. L. R.).

"The calendar month required by the statute 5 & 6 Vict. c. 97, s. 4, begins
at midnight of the day on which the notice was given ; and generally it ends
at midnight of the day with the corresponding number of the next ensuing
month in the calendar: " per Blackburn, J., Freeman v. Read, 4 B. & S. 185,
186 (116 E. C. L. It.).

3 See per Lord Cranworth, C, Hope v. Hope, 4 De G. M. & G. 345-6.

4 See In re Tivnan, 5 B. & S. 645 (117 E. C. L. R.).

5 D. 2, 1, 20 ; Story, Conn. Laws, § 539 ; arg. Canadian Prisoners' Case (rep.
by Fry), p. 48 ; Reg. v. Lewis, Dearsl. & B. 182; Reg. v. Anderson, L. R. 1 C.
C. 161.

hi It is a conceded principle that the laws of a state have no force proprio
vigore beyond its territorial limits. But the laws of one state are frequently
permitted by the courtesy of another, to operate in the latter for the promo-
tion of justice, when neither that state nor its citizens will suffer any incon-
venience from the application of the foreign law. This courtesy or comity is
established, not only from motives of respect for the laws and institutions of
foreign countries, but from considerations of mutual utility and advantage."
Per Ruggles, C. J., Hoyt v. Thompson, 1 Selden 'U. S.) R. 340.

As illustrating the maxim, supra, see Re Mansergh, 1 B. & S. 400 (101 E.
C. L. R.).

THE JUDICIAL OFFICE. 101

natural-born subjects when absent abroad, and may also enact that
they may be required to appear in the courts of their native country
even whilst resident in the dominions of a foreign sovereign. If a
statutory jurisdiction be thus conferred, courts of justice, in the
exercise of it, may lawfully cite and on non-appearance give judg-
ment in civil cases against natural-born subjects whilst they are
absent beyond seas in a foreign land. This jurisdiction depends on
the statute or written law of the country. Where it is not expressly
given, it cannot be lawfully assumed. If such a law does not exist
the general maxim applies, Extra territorium jus dicenti impune
non paretur.1

Even Parliament has no power, save in respect of matters of pro-
cedure, to legislate for foreigners out of the dominions and beyond
the jurisdiction of the British Crown.2 "It is clear," observed
Parke, B., in Jefferys v. Boosey,3 "that the legislature has no
power over any persons except its own subjects, that is, persons
natural-born subjects or resident or whilst they are within the
*limits of the kingdom. The legislature can impose no r*-\(\()-\
duties except on them ; and when legislating for the benefit
of persons, must primd facie be considered to mean the benefit of
those who owe obedience to our laws, and whose interests the legis-
ture is under a correlative obligation to protect."

Ad Qujestionem Facti non respondent Judices, ad Qu^istionem
Legis non respondent Juratores.

N (8 Rep. 308.)
It is the office of the judge to instruct the jury in points of law — of the jury to
decide on matters of fact.*

The object in view on the trial of a cause is to find out, by due
examination, the truth of the point in issue between the parties, in

1 Per Lord Westbury, C, Cookney v. Anderson, 32 L. J. Ch. 427, 428. Fur-
ther, " where it is well settled by the comity of nations that any question of
private rights falls to be decided by the law of a particular country, it would
seem reasonable that the courts of that country should receive jurisdiction,
and the power of citing absent parties, though residing in a foreign land."
Id. ibid.

2 Lopez v. Burslem, 4 Moore P. C. C. 300, 305.
8 4 II. L. Cas. 815, 926.

4 Co. Litt. 295 b. : 9 Rep. 13 ; Bishop of Meath v. Marquis of Winchester, 3

102 bkoom's legal maxims.

order that judgment may thereupon be given, and therefore the
facts of the case must, in the first instance, be ascertained (usually
through the intervention of a jury),1 for ex facto jus oritur — the law
arises out of the fact.2 If the fact be perverted or misrepresented
the law which arises thence will unavoidably be unjust or partial;
and, in order to prevent this, it is necessary to set right the fact
and establish the truth contended for, by appealing to some mode
of probation or trial which the law of the country has ordained for
a criterion of truth and falsehood.3

r*1031 *Where, then, the question at issue between the litiga-
ting parties is one of fact merely, qucestio facti — such issue
must be determined by the jury; but, if, as frequently happens, it
is qucestio juris, this may either be decided by the judge at Nisi
Prius, or may be raised and argued before the Court in banc on
demurrer, special verdict or special case, or in an appellate court, or
a court of error.

A few instances must suffice to show the application of the above
rule. Thus, there are two requisites to the validity of a deed: 1st,
that it be sufficient in law, on which the Court shall decide; 2dly,
that certain matters of fact, as sealing and delivery, be duly proved,
on which it is the province of the jury to determine ;4 and, where
interlineations or erasures are apparent on the face of a deed, it is
now the practice to leave it to the jury to decide whether the rasing
or interlining was before the delivery.5

Again, it is the duty of the Court to construe all written instru-
ments,6 as soon as the true meaning of the words in which they are

Bing. N. C. 217 (32 E. C. L. R.) ; s. c, 4 CI. & Fin. 557 ; Bushell's Case,
Vaugh. R. 149 ; per Lord Westbury, Fernie v. Young, L. R. 1 H. L. 78.

1 As to the privince of the jury in ancient times, see Sir F. Palgrave's Essay
on the Original Authority of the King's Council, p. 53.

2 See for instance Caterall v. Hindle, L. R. 2 C. P. 368.

3 2 Inst. 49.

4 Co. Litt. 255, a ; Altham's Case, 8 Rep. 308 ; Dr. Leyfield's Case, 10 Rep.,
92, cited Jenkin v. Peace, 6 M. & W. 728.

6 Co. Litt. 225, b. See Doe d. Fryer v. Coombs, 3 Q. B. 687 (43 E. C. L.
R.) ; Alsager v. Close, 10 M. & W. 576. And see the maxim, ubi eadem ratio
ibi idem jus (post, Chap. IV.), where additional cases on this subject are
cited.

6 "The construction of a specification, like other written documents, is for
the Court. If the terms used require explanation, as being terms of art or of

THE JUDICIAL OFFICE. 103

couched, and the surrounding circumstances, if any, have been
ascertained as facts by the jury ;! and it is the duty of the jury to
take the Construction from the Court either absolutely, if r*-in4-|
there be no words to be construed or explained,2 as words
of art or phrases used in commerce, and no surrounding circum-
stances to be ascertained, — or conditionally, when those words or
circumstances are necessarily referred to them.3 Unless this were
so, there would be no certainty in the law, for a misconstruction by
the Court is the proper subject, by means of a bill of exceptions, of
redress in a court of error, but a misconstruction by the jury can-
not be set right at all effectually.4 Accordingly the construction
of a doubtful document given in evidence to defeat the Statute of
Limitations is for the Court, and not for the jury ; but if it be ex-
plained by extrinsic facts, from which the intention of the parties
may be collected, they are for the consideration of the jury.5 It
may indeed be laid down generally, that although it is the province
of the Court to construe a written instrument, yet where its effect
depends not merely on the construction and meaning of the instru-

scientific use, explanatory evidence must be given, and with its aid the Court
proceeds to the office of construction:" per Lord Chelmsford, C, Simpson v.
Holliday, L. R. 1 H. L. 320.

1 Even where a written instrument has been lost, and parol evidence of its
contents has been received, its construction is for the court : Berwick v. Hors-
fall, 4 C. B. N. S. 450 (93 E. C. L. R.).

2 See Elliott v. The South Devon R. C, 2 Exch. 725.

3 *' Parcel or no parcel," is a question of fact for the jury, but the judge
should tell the jury what is the proper construction of any documents which
may have to be considered in deciding that question : Eyle v. Richards, L. R.
1 H. L. 222.

4 Judgm., Neilson v. Harford, 8 M. & W. 823. Per Erskine, J., Shore v.
Wilson, 5 Scott N. R. 988 ; Cheveley v. Fuller, 13 C. B. 122 (76 E. C. L. R.).
See per Maule, J., Doe d. Strickland v. Strickland, 8 C. B. 743, 744 (65 E. C.
L. R.) ; Booth v. Kennard, 2H.&N. 84 ; Bovill v. Pimm, 11 Exch. 718 ; Lind-
say v. Janson, 4 H. & N. 699, 704 ; Parker v. Ibbetson, 4 C. B. N. S. 346 (93
E. C. L. R.).

6 Morrell v. Frith, 3 M. & W. 402 ; Doe d. Curzon v. Edmunds, 6 M. & W.
295. See Worthington v. Grimsditch, 7 Q. B. 479 (53 E. C. L. R.) ; Rackham
v. Marriott, 2H.&N. 196 ; s. c, 1 Id. 605 ; Sidwell v. Mason, 2 H. & N. 306 ;
Godwin v. Culling, 4 Id. 373 ; Cornforth v. Smithard, 5 II. & N. 13 ; Buckmas-
ter v. Russell, 10 C. B. N. S. 745 (100 E. C. L. R.) ; Holmes v. Mackrell, 3 C.
B. N. S. 789 (99 E. C. L. R.) ; Cockrill v. Sparkes, 1 II. & C. 699; Francis v.
Hawkesley, 1 E. & E. 1052 (102 E. C. L. R.J.

6

104 broom's legal MAXIMS.

r*-inc-i ment, but upon collateral facts and *extrinsic circum-
stances, the inferences to be drawn from them are to be
left to the jury.1 And where a contract is made out partly by
written documents and partly by parol evidence, the whole must be
submitted to the jury so that they may determine what was the
real contract, if any, between the parties.2

Again, in an action for indicting maliciously and without proba-
cle cause, the question of probable cause is a mixed proposition of
law and fact: whether the circumstances alleged to show it probable
or not probable are true and existed, is a matter of fact; but
whether, supposing them true, they amount to a probable cause, is
a question of law.3 It therefore falls within the legitimate province
of the jury to investigate the truth of the facts offered in evidence,
and the justness of the inferences to be drawn from such facts ;
whilst, at the same time, they receive the law from the judge, viz.,
that according as they find the facts4 proved or not proved, and the
inferences warranted or not, there was reasonable and probable
r*10fil ground ft>r the prosecution, or the reverse; and this *rule
holds, however complicated and numerous the facts may be.5

1 Etting v. IT. S. Bank, 11 Wheaton (U. S ) R. 59.

As the office of the jury in interpreting an ambiguous contract, see Smith
v. Thompson, 8 C. B. 44 (65 E. C. L. R.), cited post, Chap. VIII.

2 Bolckow v. Seymour, 17 C. B. N. S. 107 (84 E. C. L. R.) ; Rogers v. Had-
ley, 2 II. & C. 227.

3 Johnstone v. Sutton (in error), 1 T. R. 545, 547 ; per Maule, J., 9 C. B.
152 (67 E. C. L. R.) ; per Alderson, B., Hinton v. Heather, 14 M. & W. 134 ;
per Coleridge, J., Haddrick v. Heslop, 12 Q. B. 275 (64 E. C. L. R.) ; per Pol-
lock, C. B., Heslop v. Chapman, 23 L. J. Q. B. 52 ; Gibbons v. Alison, 3 C. B.
181 (54 E. C. L. R.) ; Blackford v. Cod, 2 B. & Ad. 179 (22 E. C. L. R.) ; Rey-
nolds v. Kennedy, 1 Wils. 232 ; James v. Phelps, 11 A. & E. 483 (39 E. C. L.
R.) ; Broughtonv. Jackson, 18 Q. B. 378 (83 E. C. L. R.).

See further as to the action for malicious prosecution, Bas6b6 v. Matthews,
L. R. 2 C. P. 684.

4 Among the facts to be ascertained is the belief, or absence of belief, by
defendant, that he had reasonable and probable cause : Turner v. Ambler, 10
Q. B. 252, 260 (59 E. C. L. R.) ; James v. Phelps, 11 A. & E.483 (39 E. C. L.
11.) ; Delegal v. Highley, 3 Bing. N. C. 950 (32 E. C. L. R.).

5 Panton v. Williams, 2 Q. B. 169, 194 (42 E. C. L. R.), (which is the lead-
ing case upon this subject, see per Williams, J., West v. Baxendale, 9 C. B.
149 (67 E. C. L. R.), cited argument, Peck v. Boyes, 7 Scott N. R. 441 ;
Michell v. Williams, 11 M. & W. 205; per Bramwell, B., Ilailes v. Marks, 7
II. & N. 63. In an action of slander, it will be for the jury to say whether

THE JUDICIAL OFFICE. 106

In cases of libel also, it has been the course for a long time for
the judge first to give a legal definition of the offence, and then to
leave it to the jury to say, whether the facts necessary to constitute
that offence are proved to their satisfaction ; and this course is
adopted, whether the libel is the subject of a criminal prosecution
or of a civil action ; and although the judge may, as a matter of
advice to them in deciding that question, give his own opinion as to
the nature of the publication, yet he is not bound to do so as a
matter of law.1

Again, the amount of costs is a matter wholly within the pro-
vince of the Court to determine in those cases where a party is
entitled to them, but the right to costs is given by the statute law.
Now, where the amount merely depends on a fact which it is neces-
sary to notice on the record, — as, for instance, where a successful
plaintiff or defendant is entitled to double costs, — the Court may
award them on the taxation ; but where the right to any costs is in
question, and depends upon a fact the determination of which is not
by the statute law vested. in the Court, and which must be stated on
the record to justify *the award of costs contrary to the r*-io7l
usual course, the fact, if the opposite party insists upon it,
ought to be tried by a jury.2

We have seen that it is for the jury, not for the judge, to deter-
mine what was the contract between the parties, where it is evi-
denced partly by written instruments — partly by matters of fact.3
And we may add that the rules by which an English Court ought
to be governed, in construing a foreign contract, have been thus
stated4 — Where a written contract is made in a foreign country, and
in a foreign language, the Court, in order to interpret it, must ob-
tain 1st, a translation of the instrument ; 2dly, an explanation of
the terms of art, if it contains any ; 3dly, evidence of any foreign

the words were spoken with the meaning assigned to them in the innuendo ;
Hemmings v. Gasson, E., B. & E. 346 (96 E. C. L. R.). See Bushell's Case,
Vaugh. R. 147 ; Ewart v. Jones, 14 M. & W. 774.

1 Parmiter v. Coupland, 6 M. & W. 105. See also Padmore v. Lawrence,
11 A. & E. 380 (39 E. C. L. R.) ; Alexander v. North-Eastern R. C, 6 B. & S.
340 (118 E. C. L. R.) ; Stace v. Griffith, L. R. 2 P. C. 420, and cases collected
in Broom's Com., 4th ed., 758.

2 Judgm., Watson v. Quilter, 11 M. & W. 767.

3 Ante, p. 105.

4 Per Lord Cranworth, Di Sora v. Phillipps, 10 H. L. Cas. 633.

107 broom's legal maxims.

law applicable to the case ; and 4thly, evidence of any peculiar
rules of construction, if any such rules exist, by the foreign law.
With this assistance the Court must interpret the contract itself on
ordinary principles of construction.

The maxim under consideration may be further illustrated by the
ordinary case of an action for the price of goods supplied to the
defendant's wife. Here the real question is, whether the wife was
or was not authorized by the husband to order the goods in ques-
tion, and it is in general for the jury to say whether the wife had
any such authority, and whether the plaintiff, who supplied the
goods, must not have known that the wife was exceeding the autho-
rity given her in pledging the husband's credit.1 So, in an action
f*1081 against an attorney for negligence, *the question of negli-
gence is one of fact for the jury ;2 and, although whether
there is any evidence is a question for the judge3, yet whether the
evidence is sufficient is a question for the jury ;4 and very many

1 Per Parke, B., Lane v. Ironmonger, 13 M. & W. 370. See the cases upon
this subject, collected, Broom's Com., 4th ed. pp.. 597 et seq.

2 Hunter v. Caldwell, 10 Q. B. 69 (59 E. C. L. R.) ; Chapman v. Van Toll,
8 E. & B. 396 (92 E. C. L. R.) ; Cox v. Leech, 1 C. B. N. S. 617 (87 E. C. L.
L.) ; Long v. Orsi, 18 C. B. 610 (86 E. C. L. R.) ; Purves v. Landell, 12 CI. &
F. 91 5 and cases cited, Broom's Com., 4th ed., 88, 672.

3 See per Pollock, C. B., Hodges v. Ancrum, 11 Exch. 216.

4 Per Buller, J., Carpenters' Co. v. Hayward, Dougl. 375. It is also for the
jury and not for the Court to determine the amount of damages occasioned by
a tort, and the Court will not interfere unless they are grossly disproportioned
to the injury sustained, or unless the verdict were obtained by means of per-
jury, or there were fraud or misconduct on the part of the plaintiff, such as to
deprive the defendant of a fair opportunity of laying his case before the jury,
or unless it clearly appear that the jury acted under prejudice or misconcep-
tion of the evidence. See Smith v. Woodfine, 1 C. B. N. S. 660, 667 (87 E.
C. L. R.) ; Berry v. Da Costa, L. R. 1 C. P. 331 ; Creed v. Fisher, 9 Exch. 472 ;
Thompson v. Gordon, 15 M. & W. 610; Williams v. Currie, 1 C. B. 841 (50 E.
C. L. R.) ; Armytage v. Haley, 4 Q. B. 917 (45 E. C. L. R.) ; Lowe v. Steele,
15 M. & W. 380 ; Strutt v. Farlar, 16 M. & W. 249 ; Howard v. Barnard, 11
C. B. 653 (73 E. C. L. R.) ; Highmore v. Earl of Harrington, 3 C. B. N. S. 142
(91 E. C. L. R.).

The Court will not grant a new trial in an action for slander on the ground
that the damages are low, unless there has been some mistake in point of law
on the part of the judge who presided, or in the calculation of figures by the
jury. See per Byles, J., Forsdike v. Stone, L. R. 3 C. P. 612 ; Rendall v. Hay-
ward, 5 Bing. N. C. 424 (35 E. C. L. R.) ; Kelly v. Sherlock, L. R. 1 Q. B.
686.

THE JUDICIAL OFFICE. 108

other instances will readily suggest themselves to the reader, in
which the same comprehensive and fundamental principle is equally
applicable.

But although the general principle is as above laid down, there
are many exceptions to it.1 Thus, questions of reasonableness —
reasonable cause, reasonable time, and the like — are, strictly speak-
ing, matters of fact, even where it falls within the province of the
judge or the Court to decide them.2

*So, where a question arises as to the admissibility of evi-
dence, the facts upon which its admissibility depends are *- -•
to be determined by the judge, and not by the jury. If the oppo-
site course were adopted, it would be equivalent to leaving it to the
jury to say whether a particular thing were evidence or not.3 And
the question, whether a document comes from the proper custody
or whether it is properly stamped must be decided by the judge, for
the jury are not sworn to try any such issues.4

There are also certain statutes which give to the Court in particu-
lar cases cognisance of certain facts; and there is another and
distinct class of cases in which the Court, having a discretionary
power over its own process, is called upon to depart from the usual
course, upon the suggestion of some matter which renders such de-
parture expedient or essential for the purposes of justice; as where
a venue is to be changed because an impartial trial cannot be had,
or where the sheriff is a party.5

If at the close of the plaintiff's case there is no evidence upon
which the jury could reasonably and properly find a verdict for

1 Judgm., Watson v. Quilter, 11 M. & W. 767.

2 See per Lord Abinger, C. B., Startup v. Macdonald, 7 Scott N. R. 280 ;
Co. Litt. 566 ; Burton v. Griffiths, 11 M. & W. 817 ; Graham v. Van Diemen's
Land Co., 11 Exch. 101; per Crompton, J., Great Western R. C. v. Crouch, 3
H. & F. 189; Hogg v. Ward, Id. 417 ; Goodwyn v. Cheveley, 4 H. & N. 631 ;
Brighty v. Norton, 3 B. & S. 305 (113 E. C. L. R.) ; Massey v. Sladen, L. R.
4 Ex. 13 ; Vestry of Shoreditch v. Hughes, 17 C. B. N. S. 137 (112 E. C.
L. R.).

3 Per Alderson, B., Bartlett v. Smith, 11 M. & W. 486; Boyle v. Wiseman,
11 Exch. 360.

4 Per Pollock, C. B., Heslop v. Chapman, 23 L. J. Q. B. 52; Siordet v.
Kuczynski, 17 C. B. 251 (84 E. C. L. R.); per Pollock, C. B., Sharpies v.
Rickard, 2 H. & N. 57 ; Tattersall v. Fearnly, 17 C. B. 368. See 17 & 18 Vict,
c. 125, §31.

6 See some instances mentioned, Judg., 11 M. & W. 768.

109 broom's legal maxims.

him, the judge ought to direct a non-suit. Formerly, if there were
a scintilla of evidence in support of a case, the judge was held
r-,^-^-, hound to leave it to the *iury. "But a course of recent

r non . .

L J decisions (most of which are referred to in Ryder v. Womb-
well)1 has established a more reasonable rule, viz., that in every case,
before the evidence is left to the jury, there is a preliminary ques-
tion for the judge, not whether there is literally no evidence, but
whether there is any upon which a jury can properly proceed to
find a verdict for the party producing it, upon whom the onus of
proof is imposed."2

It remains to add, that where the judge misconceives his duty,
and presents the question at issue to the jury in too limited and
restrained a manner, and where, consequently, that which ought to
have been put to them for the exercise of their judgment upon it as
a matter of fact or of inference, is rather left to them as matter of
law, to which they feel bound to defer, the Court in banco will in
its discretion remedy the possible effect of such misdirection by
granting a new trial.

So, likewise, in a penal action, the Court will grant a new trial
when they are satisfied that the verdict is in contravention of law,
whether the error has arisen from the misdirection of the judge or
from a misapprehension of the law by the jury, or from a desire on
their part to take the exposition of the law into their own hands.3

*And we may observe, in conclusion, that the Court in

r*llll i • • ■

L J banco, always shows its anxiety to correct any miscarriage

which may have been occasioned by an infraction of either branch

*L. R. 4Exch. 32.

2 Judgm., Giblin v. McMullen, L. R. 2 P. C. 355. As to the province of
the judge and jury, and the evidence where the action is brought — for goods,
alleged to be necessaries, supplied to an infant, see Ryder v. Womb well, supra
— for damages alleged to have been caused by negligence, see Giblin v.
M'Mullen, supra; Heugh v. London and North-Western R. C, L. R. 5 Exch.
51 ; Welfare v. London and Brighton R. 0., L. R. 4 Q. B. 693 ; Daniel v.
Metropolitan R. C, L. R. 3 C. P. 591; Crafter v. Metropolitan R. C, L. R.
1 C. P. 300; Smiths London and South-Western R. C, L. R. 5 C. P. 98—
for slander where there is some evidence of actual or express malice, see
Jackson v. Hopperton, 16 C. B. N. S. 829 (111 E. C. L. R.) ; and cases there
cited.

3 See A.-G. v. Rogers, 11 M. & W. 670, cited in A.-G. v. Sillem, 2 H.
& C. 469.

A new trial cannot be had in a case of felony, Reg. v. Bertrand, L. R. 1 P.
C. 520; Reg. v. Murphy, 2 Id. 35.

THE JUDICIAL OFFICE. Ill

of the maxim, ad qumtionemlegis respondent judices, ad qucestionem
facti respondent juratores, acting in accordance with the principle1
emphatically laid down by Lord Hardwicke in these words: "It is
of the greatest consequence to the law of England and to the sub-
ject that these powers of the judge and jury be kept distinct, that
the judge determine the law, and the jury the fact; and if ever they
come to be confounded it will prove the confusion and destruction
of the law of England."2

IN PR^ISENTIA MAJORIS CESSAT POTENTIA MINORIS.

(Jenk. Cent. 214.)

In presence of the major the power of the minor ceases.

This maxim is usually3 cited with special reference to the trans-
cendant nature of the powers vested in the Court of Queen's Bench,
and therefore, although akin to one subsequently noticed,4 may
properly be included in this section.

The high court just named keeps all inferior jurisdictions within
the bounds of their authority and corrects irregularities in
their proceedings. It commands magistrates and others to •- -•
do what their duty requires in every case where there is no other
specific remedy. It protects the liberty of the subject by speedy
and summary interposition. It takes cognisance both of criminal
and civil causes ; the former in what is called the Crown side, or
Crown office; the latter in the plea side of the court.5 To it also
error lies from some inferior criminal courts.

To this supremacy of the Court of Queen's Bench may be attribu-
ted the fact, that on its coming into any county the power and
authority of other criminal tribunals therein situate are^ro tempore
suspended ;6 in prmsentid majoris cessat potestas minoris.1

1 Upon which, however, much innovation has been made, advantageously
for the community, by recent legislation: see the C. L. Proc. Act, 1854, sects.
3-17 et seq., and various provisions of the County Court Acts.

2 R. v. Poole, Cas. tern. Hardw. 28.

* See 10 Rep. 73, b; Lord Sanchar's Case, 9 Rep. 118, b; 2 Inst. 166.
4 See the maxim, Omne majus continet in se minus, post, Chap. IV.
6 3 Com. by Broom and Hadley 119; per Erie, J., Reg. v. Gillyard, 12 Q.
B. 530 (64 E. C. L. R.).

6 4 Inst. 73. See Stat. 25 Geo. 3, c. 18, § 1.

7 Per Coleridge, J., 13 Q. B. 740 (66 E. C. L. R.).

112 broom's legal maxims.

It has been held,1 however, that the authority of a Court of
Quarter Sessions, whether for a county or a borough, is not in law
either determined or suspended by the coming of the judges into
the county under their commission of assize, oyer and terminer,
and general gaol delivery, though "it would be highly inconvenient
and improper, generally speaking, for the magistrates of a county
to hold their sessions concurrently with the assizes, even in a differ-
ent part of the county."

§ II. THE MODE OF ADMINISTERING JUSTICE.

Having in the last section considered some maxims relating pecu-
r*1131 ^Vdr^y to tne judicial office, the reader is here *presented
with a few which have been selected in order to show the
mode in which justice is administered in our courts, and which re-
late rather to the rules of practice than to the legal principles
observed there.

Audi alteram Partem.

No man should be condemned unheard.

It has long been a received rule,2 that no one is to be condemned,
punished, or deprived of his property in any judicial proceeding,
unless he has had an opportunity of being heard;3 in the words of
the moralist and poet —

1 Smith v. Reg., 13 Q. B. 738, 744 (66 E. C. L. R.).

2 In Re Brook, 16 C. B. N. S. 416 (111 E. C. L. R.), Erie, C. J., says it is an
indispensable requirement of justice that the party who has to decide shall
hear both sides, giving each an opportunity of hearing what is urged against
him."

3 Per Parke, B., Re Hammersmith Rent-charge, 4 Exch. 97 ; per Lord Camp-
bell, C. J., Reg. v. Archbishop of Canterbury, 1 E. & E. 559 (102 E. C. L. R.) ;
per Lord Kenyon, C. J., Harper v. Carr, 7 T. R. 275, and in R. v. Benn, 6 Id.
198 ; per Bayley, B., Capel v. Child, 2 Cr. & J. 558 (see Daniel v. Morton, 16
Q. B. 198 (71 E. C. L. R.) ; Bagg's Case, 11 Rep. 93, b ; R. v. Chancellor, &c.
of the University of Cambridge, 1 Str. 557 ; R. v. Gaskin, 8 T. R. 209 ; Reg. v.
Saddlers' Co., 10 II. L. Cas. 404.

THE MODE OF ADMINISTERING JUSTICE. 113

Quicunque aliquid statuerit, parte inauditd alterd,
JEquum licet statuerit, haud aquus fuerit.1

A writ of sequestration, therefore, cannot properly issue from
the Consistory Court of the diocese to a vicar, who has disobeyed
a monition from his bishop, without notice previously given to the
incumbent, to show cause why it should not issue; for the seques-
tration is a proceeding partly in poenam, and no proposition is more

clearly established than that " a man cannot incur the *loss _ '_

... r*1141

of liberty or property for an offence by a judicial proceed- L J

ing until he has had a fair opportunity of answering the charge
against him, unless, indeed, the Legislature has expressly or
impliedly given an authority to act without that necessary pre-
liminary."2

An award made in violation of the above principle may be set
aside.3

No person should be punished for contempt of court, which is a
criminal offence, unless the specific offence charged against him be
distinctly stated, and an opportunity of answering it be given to
him.4 "The laws of God and man," says Fortescue, J., in Dr.
Bentley's Case,5 "both give the party an opportunity to make his
defence, if he has any." And immemorial custom cannot avail in
contravention of this principle.6

In conformity also with the elementary principle under considera-
tion, when a complaint has been made, or an information exhibited
before a justice of the peace, the accused person has due notice

1 Seneca Trag. Medea, cited 6 Rep. 52, a ; 11 Rep. 99, a; per Parke, B., 4
Exch. 97; 14 C. B. 165 (78 E. Cl L. R.).

2 Bonaker v. Evans, 16 Q. B. 162, 171 (71 E. C. L. R.), followed, but dis-
tinguished in Bartlettw. Kirwood, 2 E. & B. 771 (75 E..C. L. R.). See Daniel
v. Morton, 16 Q. B. 198 (71 E. C. L. R.) ; Ex parte Hopwood, 15 Q. B. 121 (69
E. C. L. R.) ; Ex parte Story, 8 Exch. 195 ; 12 C. B. 767, 775 (74 E. C. L. R.) ;
Reynolds v. Fenton, 3 C. B. 187 (54 E. C. L. R.) : Meeus v. Thellusson,8
Exch. 638 ; Ferguson v. Mahon, 11 A. & E. 179 (39 E. C. L. R.).

3 Thorburn v. Barnes, L. R. 2 C. P. 384, 401 ; Re Brook, 16 C. B. N. S. 403
(111 E. C. L. R.).

4 In re Pollard, L. R. 2 P. C. 106, 120.

6 R. v. Chancellor, &c, of Cambridge, 1 Str. 557 ; per Maule. J., Abley v.
Dale, 10 C. B. 71 (70 E. C. L. R.) ; per Lord Campbell, C. J., Ex parte Ram-
shay, 18 Q. B. 190 (83 E. C. L. R.) ; per Byles, J., 14 C. B. N. S. 194 (108 E.
C. L. R.).

6 Williams v. Lord Bagot, 3 B. & C. 772 (10 E. C. L. R.).

/

114 broom's legal maxims.

given him, by summons or otherwise, of the accusation against him,
in order that he may have an opportunity of answering it.1
P^-j-jri A statute establishing a gas-light company enacted that
*if any person should refuse or neglect, for a period of ten
days after demand, to pay any rent due from him to the company
for the supply of gas, such rent should be recovered by the com-
pany or their clerk by warrant of a justice of the peace and execu-
tion thereunder. A warrant issued by a justice under this Act,
without previously summoning and hearing the party to be dis-
trained upon, was held to be illegal, though a summons and hearing
were not in terms required by the Act; for the warrant is in the
nature of an execution ; without a summons the party charged has
no opportunity of going to the justice, and a man shall not " suffer
in person or in purse without an opportunity of being heard."2

The Metropolis Local Management Act, 1855 (18 & 19 Vict. c.
120), s. 76, empowers the vestry or district board to alter or
demolish a house where the builder has neglected to give notice of
his intention to build seven days before proceeding to lay or dig the
foundation. Held, that this enactment does not empower the
board to demolish such building without first giving the party
guilty of the omission an opportunity of being heard,3 for "a
tribunal which is by law invested with power to affect the property
of one of Her Majesty's subjects, is bound to give such subject an
opportunity of being heard before it proceeds," and ''that rule is
of universal application and founded upon the plainest principles
of justice."4

r*1 1 fil Doubtless the rule just stated universally prevails, *unless
where by force of the express wording of a statute an ex-
ception is engrafted on it. For instance: By the Tithe Commuta-
tion Act (6 & 7 Will. 4, c. 71), s. 82, when the half-yearly
payment of rent-charge on land shall be in arrear and unpaid for

1 Paley, Conv., 4th ed., 67, 93, where many cases illustrating the text are
collected. See Bessell v. Wilson, 1 E. & B. 489 (72 E. C. L. R.).

2 Painter v. Liverpool Oil Gaslight Co., 3 A. &. E. 433 (30 E. C. L. R.) ;
Hammond v. Bendyshe, 13 Q. B. 869 (66 E. C. L. R.) ; Reg. v. Totnes Union,
7 Q. B. 690 (53 E. C. L. R.) ; Bessell v. Wilson, 1 E. & B. 489 (72 E. C. L. R.) ;
Gibbs v. Steadman, 8 B. & C. 528 (15 E. C. L. R.).

3 Cooper v. Wandsworth Board of Works, 14 C. B. N. S. 180 (108 E. C. L.
R.), cited per Byles, J., Re Brook, 16 C. B. N. S. 419 (111 E. C. L. R.).

4 Per Willes, J., 14 C. B. N. S. 190 (108 E. C. L. R.).

THE MODE OF ADMINISTERING JUSTICE. 116

the space of forty days, and there shall be no sufficient distress
upon the premises liable to the payment thereof, a judge of one of
the superior courts is empowered, upon an affidavit of the fact, to
order a writ to issue to the sheriff requiring him to summon a jury
to assess the arrears of the rent-charge remaining unpaid, and to
return the inquisition thereupon taken as directed in the Act: it
was held, that such order could be made upon an ex parte applica-
tion to the judge.1

Nemo debet esse Judex in propria sua Causa.

(12 Rep. 113.)
No man can be judge in Ms own cause.

It is a fundamental rule in the administration of justice, that a
person cannot be judge in a cause wherein he is interested:2 nemo
sibi esse judex vel suis jus dicer e debet;3 and, therefore, in the reign
of James I., it was solemnly adjudged that the king cannot take
any cause, whether civil or criminal, out of any of his courts, and
give judgment upon it himself; but it must be determined and
adjudged in some court of justice according to the law and custom
of England; and in the case referred to, "the judges informed the
king that no king, after the conquest, ^assumed to himself
to give any judgment in any case whatsoever which con- •- ■*
cerned the administration of justice; but these were solely deter-
mined in the courts of justice,"4 and Hex non debet esse sub homine
sed sub Deo et lege.5

It is, then, a rule, observed in practice, and of the application of
which instances not unfrequently occur, that where a judge is inter-

1 Re Hammersmith Rent-charge, 4 Exch. 87, citing Re Camberwell Rent-
charge, 4 Q. B. 151 (45 E. C. L. R.).

2 Per Cur. 2 Stra. 1173 ; Roll. Abr., Judges, PI. 11 ; 4 H. L. Cas. 96, 240.
3C. 3, 5, 1.

4 Prohibitions del Roy, 12 Rep. 63 (cited Bridgman v. Holt, 2 Show. P. Ca.
126) ; 4 Inst. 71. In Gorham v. Bishop of Exeter, 15 Q. B. 52 (69 E. C. L.
R.) ; s. c, 10 C. B. 102 (70 E. C. L. R.) ; 5 Exch. 630; an argument based on
the maxim above exemplified was vainly urged. See also Ex parte Medwin,
1 E. & B. 609 (72 E. C. L. R.) ; R. v. Hoseason, 14 East 606.

5 Fleta, fo. 2, c. 5 ; ante, p. 47.

117 broom's legal maxims.

ested in the result of a cause, he cannot, either personally or by
deputy, sit in judgment upon it.1 If, for instance, a plea allege a
prescriptive right vested in the lord of the manor to seize cattle
damage feasant, and to detain the distress until fine paid for the
damages, at the lord's will, this prescription will be void, and the
plea consequently bad ; " because it is against reason, if wrong be
done any man, that he thereof should be his own judge ;2 and it is
a maxim of law, that aliquis non debet esse judex in proprid causd,
quia non potest esse judex et pars ;3 nemo potest esse simul actor et
judex;* no man can be at once judge and suitor.

A leading case in illustration of this maxim is Dimes v. The Pro-
r*11ftl prietors of the Grand Junction Canal,5 *where the facts
were as under: — the canal company filed a bill in equity
against a landowner in a matter touching their interest as copyhold-
ers in certain land. The suit was heard before the Vice-Chancellor,
who granted the relief sought by the Company, and the Lord Chan-
cellor— who was a shareholder in the company, this fact being un-
known to the defendant in the suit — affirmed the order of the Vice-
Chancellor. It was held on appeal to the House of Lords, that the
decree of the Lord Chancellor was under the circumstances voida-
ble and ought to be reversed. Lord Campbell, C. J., observing :
" It is of the last importance that the maxim that ' no man is to be
a judge in his own cause' should be held sacred. And that is not
to be confined to a cause in which he is a party, but applies to a
cause in which he has an interest. * * * * We have again and
again set aside proceedings in inferior tribunals, because an individ-
ual, who had an interest in a cause, took a part in the decision.
And it will have a most salutary effect on these tribunals when it is

1 Brooks v. Earl of Rivera, Hardw. 503 ; Earl of Derby's Case, 12 Rep. 114 ;
per Holt, C. J., Anon. 1 Salk. 396 ; Worsley v. South Devon R. C, 16 Q. B.
539 (71 E. C. L. R.).

2 Litt. I 212. 3 Co. Litt. 141, a.

4 See Reg. v. Great Western R. C, 13 Q. B. 327 (66 E. C. L. R.) ; Reg. v.
Dean, &c. of Rochester, 17 Q. B. 1 (79 E. C. L. R.) ; followed in Reg. v. Rand,
L. R. 1 Q. B. 230, 233 ; Re Ollerton, 15 C. B. 796 (80 E. C. L. R.) ; Re Chand-
ler, 1 C. B. N. S. 323 (87 E. C. L. R.).

6 3 H. L. Cas. 759 ; as to which see London and North-Western R. C. v.
Lindsay, 3 Macq. Sc. App. Cas. 114. Re Dimes, 14 Q. B. 554 (68 E. C. L. R.) .
• Ellis v. Hopper, 3 H. & N. 766 ; Williams v. Great Western R, C, Id. 869 ;
Lancaster and Carlisle R. C. v. Heaton, 8 E. & B. 952 (92 E. C. L. R.).

THE MODE OP ADMINISTERING JUSTICE. 118

known that this high court of last resort, in a case in which the
Lord Chancellor of England had an interest, considered that his
decree was on that account a decree not according to law, and should
be set aside. This will be a lesson to all inferior tribunals to take
care, not only that in their decrees they are not influenced by their
personal interest, but to avoid the appearance of laboring under
such an influence."

The opinion delivered by the Judges to the House in the case
just cited1 shows, however, that the decision of a judge made in a
cause in which he has an interest is, *in a case of neces- r*iiQ-i
sity, unimpeachable, ex. gr., if an action were brought
against all the Judges of the Court of Common Pleas in a matter
over which they had exclusive jurisdiction.2 Nor does the princi-
ple under consideration apply to avoid the award of a referee to
whom, though necessarily interested in the result, parties have con-
tracted to submit their differences,3 though ordinarily it is " contrary
to reason that an arbitrator or umpire should be sole and uncon-
trolled judge in his own cause."4

Conformable to the general rule Was a decision in the following
case : — Upon an appeal to the Quarter Sessions of the borough of
Cambridge, by a water company against an assessment to the poor-
rate, the deputy recorder of the borough presiding, the rate was
reduced and costs given to the appellants ; at the time of hearing
the appeal the deputy recorder was a shareholder in the company,
and although he had in fact sold his shares he had not completed
the transfer of them ; he was held incompetent to try the appeal.5
In like manner, proceedings had before commissioners under a
statute which forbad persons to act in that capacity when inter-
ested, have been adjudged void.6

Neither can a justice of the peace, who is interested7 *in a p*-. qq-i
matter pending before the court of quarter sessions, take

1 3 H. L. Cas. 787 ; citing Year Book, 8 Hen. 6, 19 ; 2 Roll. Abr. 93.

2 Per Lord Cranworth, C, Ranger v. Great Western R. C, 5 H. L. Cas. 88.
See Ex parte Menhennet, L. R. 5 C. P. 16.

3 Ranger v. Great Western R. C, 5 H. L. Cas. 72.

* Per Parke, B.. Re Coombs, 4 Exch. 841. Russell Arbitr. 2d ed. 375.
6 Reg. v. Recorder of Cambridge, 8 E. &. B. 637 (92 E. C. L. R.).

6 Reg. v. Aberdare Canal Co.. 14 Q. B. 854 (68 E. C. L. R.).

7 " There is no doubt that any direct pecuniary interest, however small, in

120 broom's legal maxims.

any part in the proceedings, unless indeed all parties know that he
is interested, and consent, either tacitly or expressly, to his presence
and interference.1 In such a case, it has been recently held that
the presence of one interested magistrate will render the Court im-
properly constituted, and vitiate the proceedings ; it being no answer
to the objection, that there was a majority in favor of the decision,
without reckoning the vote of the interested party.2 And, on the
same principle, where a bill was preferred before the grand jury at
the assizes against a parish for non-repair of a road, the liability to
repair which was denied by the parish, the Court of Queen's Bench
granted a criminal information against the parish, on the ground
that two members of the grand jury were large landed proprietors
therein, took part in the proceedings on the bill, and put questions
to the witnesses examined before them; one of them, moreover,
having stated to the foreman that the road in question was useless,
and the bill having been thrown out by the grand jury;3 for, " It is
very important that no magistrate who is interested in the case before
the Court should interfere while it is being heard in anyway that may
r*1911 create a suspicion that *the decision is influenced by his
presence or interference."4
The mere presence on the bench, however, of an interested mag-
istrate during part of the hearing of an appeal, will not be deemed
sufficient ground for setting aside an order of sessions made on such
hearing, if it be expressly shown that he took no part in the hear-

the subject of enquiry, does disqualify a person from acting as a judge in the
matter." Per Blackburn, J., Reg. v. Rand, L. R. 1 Q. B. 232.

See further as to the interest which will or will not disqualify, Wildes v.
Russell, L. R. 1 C. P. 722 ; Reg. v. Manchester, Sheffield, and Lincolnshire R.
C, L. R. 2 Q. B. 336, 339.

1 Reg. v. The Cheltenham Commissioners, 1 Q. B. 467 (41 E. C. L. R.) ;
Wakefield Board of Health v. West Riding, &c, R. C, 6 B. & S. 794 (118 E.
C. L. R.) 5 Reg. v. Justices of West Riding, Id. 802. " Nothing is better set-
tled than this, that a party aware of the objection of interest cannot take the
chance of a decision in his favor, and afterwards raise the objection." Per
Cockburn, C. J., 6 B. & S. 802 (118 E. C. L. R.).

2 Reg. v. Justices of Hertfordshire, 6 Q. B. 753 (51 E. C. L. R.). See Re Under-
wood and Bedford and Cambridge R. C, 11 C. B. N. S. 442 (103 E. C. L. R.).

3 Reg. v. Upton St. Leonard's, 10 Q. B. 827 (59 E. C. L. R.). See Esdaile
v. Lund, 12 M. & W. 734.

i Per Wightman, J., Reg. v. Justices of Suffolk, 18 Q. B. 416. 421 (83 E. C.
L. R.). See Reg. v. Justices of Surrey, 21 L. J. M. C. 195.

THE MODE OF ADMINISTERING JUSTICE. 121

ing, came into court for a different purpose, and did not in any way
influence the decision.1

It has been laid down2 that " even an Act of Parliament made
against natural equity, as to make a man a judge in his own case,
is void in itself; for jura naturae sunt immutabilia and they are
leges legum." But although it is contrary to the general rule of
law, not only in this country but in every other, to. make a person
judge in his own cause, " the legislature can, and no doubt in a
proper case would, depart from that general rule," and an intention
to do so being clearly expressed, the Courts would give effect to
their enactment.3 And if a particular relation is created by statute
between A. and B., and a duty is imposed upon A. to investigate
and decide charges preferred against B., the maxim nemo sibi esse
judex vel sttis jus dieere debet would not apply.4

Lastly, " There is no ground whatever for saying that the gov-
ernor of a colony cannot give his official consent to a legislative
measure in which he may be individually interested. It might as
well be asserted that the sovereign *of these realms could r^-joo-i
not give assent to a bill in Parliament in which the sovereign
was personally concerned'."6

Actus Curi^ Neminem gravabit.

(Jenk. Cent. 118.)
An act of the Court shall prejudice no man.

The above maxim " is founded upon justice and good sense ; and
affords a safe and certain guide for the administration of the law."6
In virtue of it where a case stands over for argument from term to
term on account of the multiplicity of business in the court, or for
judgment from the intricacy of the question, the party ought not to
be prejudiced by that delay, but should be allowed to enter up his

1 Reg. v. Justices of London, 18 Q. B. 421 (c) (83 E. C. L. R.).

2 Day v. Savadge, Hob. 85, 87, cited arg. 5 Exch. 671.

3 Per Blackburn, J., Mersey Docks Trustees v. Gibbs, L. R. 1 H. L. 110.

4 Wildes v. Russell, L. R. 1 C. P. 722, 747.

5 Judgm., Phillips v. Eyre, L. R. 4 Q. B. 244.

6 Per Cresswell, J., 12 C. B. 415 (74 E. C. L. R.).

122 bkoom's legal maxims.

judgment retrospectively to meet the justice of the case ;l and, there-
fore, if one party to an action die during a curia advisari vult,
judgment may be entered nunc pro tunc, for the delay is the act of
the Court, and therefore neither party should suffer for it.2

In a case involving issues both of law and fact, the issues of fact
were tried in the month of August, 1843, a verdict was found for
the plaintiff, and a rule for a new trial was discharged in Trinity
Term, 1844; in the same term the demurrers were set down in the
special paper, but did not come on for argument until May, 1845,'
when judgment was given upon them for the plaintiff. The
r*-ioq-i ^plaintiff having died in March, 1845, the Court made
absolute a rule to enter judgment as of Trinity Term, 1844.3
It being in accordance with the principles of the common law, irre-
spective of the stat. 17 Car. 2, c. 8, that, wherever, in such cases as
the above, the delay is the act of the Court, and not that of the
party, the judgment may be entered nunc fro tunc, unless, indeed,
it can be shown that the other party would be prejudiced by enter-
ing the judgment as prayed, which would, no doubt, be a sufficient
ground to justify the Court in refusing to interfere.4

Where, however, the delay is not attributable to the act of the
Court, the maxim supra does not apply.5

Again, a peremptory undertaking to proceed to trial is not an
undertaking to try at all events : and where the plaintiff having
peremptorily undertaken to try at a particular sittings, gave notice
of trial, and entered the cause as a special jury cause, on the last
day, and there being only two days' sittings, it was made a rema-
net : the Court held that the plaintiff was not in default, so as to

1 Per Garrow, B., 1 Y. & J. 372.

2 Cumber v. Wane, 1 Stra. 425 ; Moor v. Roberts, 3 C. B. N. S. 844 (91 E.
C. L. R.) ; per Tindal, C. J., Harrison v. Heathorn, 6 Scott N. R. 797 ; Toul-
min v. Anderson, 1 Taunt. 384 ; Jenk. Cent. 180. See Lanman v. Lord Aud"
ley, 2 M. & W. 535.

3 Miles v. Bough, 3D. & L. 105, recognising Lawrence v. Hodgson, 1 Yo#
& J. 368, and Brydges v. Smith, 8 Bing. 29 (21 E. C. L. R.) ; Miles v. Wil
liams, 9 Q. B. 47.

4 Miles v. Bough, supra, and cases there cited ; Vaughan v. "Wilson, 4 B. N.
C. 116 (13 E. C. L. R.) ; Green v. Cobden, 4 Scott 486 ; Evans v. Rees, 12 A.
& E. 167 (40 E. C. L. R.).

5 Freeman v. Tranah, 12 C. B. 406 (74 E. C. L. R.) ; recognised in Heath-
cote v. Wing, 11 Exch. 358 ; Fishmongers' Co. v. Robertson, 3 C. B. 970 (54
E. C. L. R.).

THE MODE OF ADMINISTERING JUSTICE. 123

entitle the defendant to judgment as in case of a nonsuit, for not
proceeding to trial pursuant to the undertaking.1

And if the plaintiff is under a peremptory undertaking to try at
a particular sittings, and when the cause comes on to be tried, ap-
plies to the judge and obtains leave to *postpone it, and it r*-io^-|
is thereupon postponed, the defendant will not be entitled
to make absolute the rule for judgment as in case of a nonsuit, for
the non-trial of the cause arose from the act of the judge, not by the
neglect of the plaintiff.2 Where, however, a plaintiff under a peremp-
tory undertaking to try at the first sitting in term, duly gave notice
of trial, and passed the record but two days before the sitting day,
obtained a rule for a special jury, and in consequence thereof the
cause was passed over and made a remanet, the plaintiff was held
to have broken his undertaking ;3 in this case the plaintiff's own act
effectually prevented the trial from taking place, as he had under-
taken that it should do.

The preceding examples will probably be sufficient to illustrate
the general doctrine, which is equally founded on common sense and
on authority, that the act of a Court of law shall prejudice no man ;4

1 Luniley v. Dubourg, 14 M. & W. 295 ; Rizzi v. Foletti, 5 C. B. 852 (57 E.
C. L. R.) ; Rogers v. Vandercombe, 1 B. C. R. 183.

2 Jackson v. Carrington, 4 Exch. 41. See Bennett v. Peninsular and Ori-
ental Steam Boat Co., 16 C. B. 29 (81 E. C. L. R).

3 Levy v. Moylan, 10 C. B. 657 (70 E. C. L. R.).

4 In connection with this rule may be noticed the following cases : — If an
individual prefers a complaint to a magistrate and procures a warrant to be
granted upon which the accused is taken into custody, the complainant in such
case is not liable in trespass for the imprisonment, even though the magis-
trate had no jurisdiction. Brown v. Chapman, 6 C. B. 365, 376 (60 E. C. L.
R.). See further on this subject Broom's Com., 4th ed., 730. One who mis-
takenly prefers a charge against another before a magistrate will not be liable
in trespass for a remand judicially ordered by him. Lock v. Ash ton, 12 Q.
B. 871 (64 E. C. L. R.). See also Freegard v. Barnes, 7 Exch. 827. Nor is
an execution creditor liable to the person whose goods have been wrongfully
taken in execution for damage sustained by him in consequence of their sale
under an interpleader order: Walker v. Olding, 1 H. & C. 621. The above
and similar cases seem properly referable to the rule, Nullus videtur dolo
facere qui jure suo utitur, D. 50, 17, 55.

A defendant who is taken in execution under a ca. sa. issued on a judgment
for less than £20, without the order of the judge who tried the cause, may
maintain an action of trespass against the plaintiff and his attorney : Brooks
v. Hodgkinson, 4 II. &. N. 712. See Gilding v. Eyre, 10 C. B. N. S. 592 (100
E. C. L. R.) ; Huffer v. Allen, L. R. 2 Ex. 15.

125 broom's legal maxims.

r*19^1 anc^ *n conf°rm^y *with this doctrine it has been observed,
that, as long as there remains a necessity in any stage of
the proceedings in an action, for an appeal to the authority of the
Court, or any occasion to call upon it to exercise its jurisdiction, the
Court has, even if there has been some express arrangement be-
tween the parties, an undoubted right, and is, moreover, bound to
interfere, if it perceives that its own process or jurisdiction is about
to be used for purposes which are not consistent with justice.1

Cases do, however, occur, in which injury is caused by the act of
a legal tribunal, as by the laches or mistake of its officer ; and
where, notwithstanding the maxim as to actus eurice, the injured
party is altogether without redress.2

Lastly, it is the duty of a judge to try the causes set down for
trial before him, and yet, if he refused to hold his court, although
there might be a complaint in Parliament respecting his conduct,
no action would lie against him.3 So, in the case of a petition to
the Crown to establish a peerage, if, in consequence of the absence
of peers, a committee for privileges could not be held, the claimant,
although necessarily put to great expense, and perhaps exposed to
the loss of his peerage by death of witnesses, wrould be wholly with-
out redress.4 In the above, and other similar cases, a wrong might
r*12fi1 ^e mn^cte(^ *ky a judicial tribunal, for which the law could
supply no remedy.

Actus Legis Nemlni est damnosus.

(2 Inst. 287.)
An act in law shall prejudice no man.6

Thus, the general principle is, that if a man marry his debtor,
the debt is thereby extinguished ;6 but still a case may be so cir-

1 Wade v. Simeon, 13 M. & W. 647 ; Thomas v. Harding, 3 C. B. N. S. 254
(91 E. C. L. R.) ; Sherborn v. Lord Huntingtower, 13 C. B. N. S. 742 (106 E.
C. L. R.) ; Burns v. Chapman, 5 C. B. N. S. 481, 492 (94 E. C. L. R.).

2 See Grace v. Clinch, 4 Q. B. 606 (45 E. C. L. R.) ; Leech v. Lamb, 11
Exch. 437 ; In re Llanbeblig and Llandyfrydog, 15 L. J., M. C, 92. In Winn
v. Nicholson, 7 C. B. 824 (62 E. C. L. R.), however, Coltman, J., remarks
that, " no doubt the Court will, correct the mistake of its own officer." See
Wilkes v. Perks, 5M.& Gr. 376 (44 E. C. L. R.) ; Hazer v. Wade, 1 B. & S.
728 (101 E. C. L. R.) j Morgan v. Morris, 3 Macq. Sc. App. Cas. 323.

3 Ante, p. 85 et seq. 4 Arg. 9 CI. & F. 276.
5 6 Rep. 68. 6 1 Inst. 264, b.

THE MODE OF ADMINISTERING JUSTICE. 126

cumstanced as not to come within that rule ; for instance, a bond
conditioned for the payment of money after the obligor's death,
made to a woman in contemplation of the obligor's marrying her,
and intended for her benefit if she should survive, is not released by
the marriage, but an action will lie at her suit against the execu-
tor ; and this results from the principle that the law will not work
a wrong, for the bond was given for the purpose of making provi-
sion for the wife in the event of her surviving the obligor, and it
would be iniquitous to set it aside on account of the marriage,
since it was for that very event that the bond was meant to
provide.1

So, where an authority given by law has been abused, the law
places the party so abusing it in the same situation as if he had, in
the first instance acted wholly without authority;2 and this, it has
been observed,3 is a *salutary and just principle, founded r*-|97-i
on the maxim, that the law wrongs no man : actus legis
n emini facit injur iam.

In Fictione Juris semper JEquitas existit.

(11 Rep. 51)
A legal fiction is always consistent with equity.

According to a commentator on the Roman law, Fictio nihil aliud
est quam legis adversus veritatem in re posibili ex justd causd
disposition and fictio juris is defined to be a legal assumption that
a thing is true which is either not true, or which is as probably
false as true ;5 the rule on this subject being, that the court will

I

1 Milbourn v. Ewart, 5 T. R. 381, 385 ; Cage v. Acton, 1 Lord Raym. 515 ;
Fitzgerald v. Fitzgerald, L. R. 2 P. C. 83 ; Smith v. Stafford, Hobart 216.
See another instance of rule, Calland v. Troward, 2 H. Bla. 324, 334 ; and see
Nadin v. Battie, 5 East 147 ; 1 Prest. Abs. of Tit. 346.

2 6 Bac. Ab. 559, Trespass (B.) : Six Carpenters' Case, 8 Rep. 290, cited
under the maxim acta exteriora indicant interiora secreta, post, Chap. V.

3 Arg. 11 Johnson (U. S.) R. 380.
* Gothofred. ad D. 22, 3, s. 3. See Spence, Chan. Jurisd. 213, 214. Law.

Mag. and Rev., vol. 3, pt. 1, p. 60.
6 Bell's Diet, and Dig. of Scotch Law 427 ; Finch's Law 66.
The doctrine that " money to be laid out in land is to be treated as land,"

127 broom's legal maxims.

not endure that a mere form or fiction of law, introduced for the
sake of justice, should work a wrong contrary to the real truth and
substance of the thing.1 " It is a certain rule," says Lord Mans-
field, C. J.,2 "that a fiction of law shall never be contradicted so as
l"*1 98T *° ^e^eat ^ne en(^ *f°r whidi it was invented, but for every
other purpose it may be contradicted." Its proper opera-
tion is to prevent a mischief or remedy an inconvenience which
might result from applying some general rule of law. Hence, we
read that if a man disseises me, and during the disseisin cuts down
the trees or grass, or the corn growing upon the land, and after-
wards I re-enter, I shall have an action of trespass against him,
for after my regress the law as to the disseisor and his servants
supposes the freehold always to have continued in me ; but if my
disseisor makes a feoffment in fee, gift in tail, or lease for life or
years, and afterwards I re-enter, I shall not have trespass against
those who came in by title ; for this fiction of the law, that the
freehold always continued in me, is moulded to meet the ends of
justice, and shall not, therefore, have relation to make him who
comes in by title a wrongdoer, but in this case I shall recover all
the mesne profits against my disseisor.3 It has been held also in
a modern case,4 that although the customary heir of a copyhold
tenement cannot maintain trespass without entry, there is after
entry a relation back to the time of accruing of the legal right to
enter, so as to support an action for trespasses committed prior to
such entry ; this relation being " created by law for the purpose of
preventing wrong from being dispunishable upon the same principle

long established in Courts of Equity, " is in truth a mere fiction." Vide per
Kelly, C. B.. in Re De Lancey, L. R. 4 Ex. 358; s. c, affirmed, 5 Id. 102.
So the doctrine, that a deed executing a power refers back to the instrument
creating the power, so that the appointee takes under him who created the
power, and not under him who executes it, is a fiction of law ; and so it was
considered in Bartlett v. Ramsden, 1 Keb. 570. See also per Lord Hardwicke,
C, Duke of Marlborough v . Lord Godolphin, 2 Ves. sen. 78, who explains the
above proposition ; Clere's Case, 6 Rep. 17.

1 Per Lord Mansfield, C. J., Johnson v. Smith, 2 Burr. 962. See 10 Rep.
40 ; Id. 89.

2 Mostyn v. Fabrigas, Cowp. 177 ; per Bramwell, B., A.-G. v. Kent, 1 H. &
C. 28.

3 Liford's Case, 11 Rep. 51 ; Hobart 98, cited per Coleridge, J., Garland v.
Carlisle, 4 CI. & Fin. 710.

4 Barnett v. Earl of Guildford, 11 Exch. 19, 33.

THE MODE OF ADMINISTERING JUSTICE. 128

on -which the law has given it to other cases."1 By fiction of law,
all judgments were formerly2 supposed to be recovered in term and
to relate *to the first day of the term, but in practice judg- r*-|9q-i
ments were frequently signed in vacation ; and it was held
that, where the purposes of justice required that the true time
when the judgment was obtained should be made apparent, a party
might show it by averment in pleading ; and it was observed gener-
ally, that, wherever a fiction of law works injustice, and the facts,
which by fiction are supposed to exist, are inconsistent with the
real facts, a court of law ought to look to the real facts.3

It has, indeed, been affirmed as a broad general principle, that
"the truth is always to prevail against fiction," and hence, although
for some purposes the whole assizes are to be considered as one
legal day, u the Court is bound, if required for the purpose of doing
substantial justice, to take notice that such legal day consists of
several natural days, or even of a fraction of a day." Evidence
may therefore be adduced to show that an assignment of his goods
by a felon bond fide made for a good consideration after the com-
mission day of the assizes, was in truth made before the day on
which he was tried and convicted, and, on proof of such fact, the
property will be held to have passed by the assignment.4

Still less will a legal fiction be raised so as to operate to the
detriment of any person, as in destruction of a lawful vested estate,
for fictio legis inique operatur *alicui damnum vel injuriam.5 p^-. qn-i
The law does not love that rights should be destroyed, but,
on the contrary, for the supporting of them invents notions and
fictions.6 And the maxim in fictione juris suhsistit cequitas is often

1 Some of which are specified in the judgment in Barnett v. Earl of Guil-
ford, supra.

2 But now, by R. G., H. T., 1855. Reg. 56, " all judgments, whether inter-
locutory or final, shall be entered of record of the day of the month and year,
whether in term or vacation, when signed, and shall not have relation to any
other day, but it shall be competent for the Court or a Judge to order a judg-
ment to be entered nunc pro tunc."

3 Lyttleton v. Cross, 3 B. & C. 317, 325 (10 E. C. L. R.).

* Whitaker v. Wisbey, 12 C. B. 44, 58, 59 (74 E. C. L. R.)„ See Reg. v.
Edwards and Wright v. Mills, cited ante, p. 71, and the maxim de minimis
non curat lex, post.

6 36 Rep. 3 ; per Cur., Waring v. Dewbury, Gilb. Eq. R. 223.

6 Per Gould, J., Cage v. Acton, 1 Lord Raym. 516, 517.

130 broom's legal maxims.

applied by our courts for the attainment of substantial justice, and
to prevent the failure of right.1 "Fictions of law," as observed by
Lord Mansfield, " hold only in respect of the ends and purposes for
which they were invented. When they are urged to an intent and
purpose not within the reason and policy of the fiction, the other
party may show the truth.2

Executio Juris non habet Injuriam.

(2 Inst. 482.)
The law will not in its executive capacity work a wrong.

It was a rule of the Roman, as it is of our own, law, that if an
action be brought in a court which has jurisdiction, upon insuffi-
cient grounds or against the wrong party, no injury is thereby done
for which an action can be maintained — Is qui jure publico utitur
non videtur injuria* faciendce causa hoc facere, juris enim executio
noil habet injuriam ;3 and Nullus videtur dolo facere qui suo jure
utitur* he is not to be esteemed a wrongdoer who merely avails
himself of his legal rights. On the other hand, if an individual,
r*1 311 un(^er c°l°r °f tae *law, does an illegal act, or if he abuses
the process of the Court to make it an instrument of oppres-
sion or extortion, this is a fraud upon the law, by the commission
of which liability will be incurred.5

In a leading case,6 illustrative of this latter proposition, the facts
were as follows : A ca. sa. having been sued out against the Countess
of Rutland, and the officers entrusted with the execution of the
sheriff's warrant being apprehensive of a rescue, the plaintiff was
advised to enter a feigned action in London, according to custom,
against the said countess, to arrest her thereupon, and then take
her body in execution on the ca. sa. In pursuance of this advice,
the countess was arrested and taken to the Compter, " and at the

1 Low v. Little, 17 Johnson (U. S.) R. 348.

2 Morris v. Pugh, 3 Burr. 1243. 3 D. 47, 10, 13, s. 1 ; Hobart 266.
* D. 50, 17, 55. See examples of this rule, ante, p. 124.

5 See per Pollock, C. B., Smith v. Monteith, 13 M. & W. 439. " The Court
has a general superintending power to prevent its process from being used for
the purpose of oppression and injustice." Per Jervis, C. J., Webb v. Adkins,
14 C. B. 407 (78 E. C. L. R.). See Alleyne v. Reg., 5 E. & B. 399 (85 E. C.
L. R.) ; M'Gregor v. Barrett, 6 C. B. 262 (60 E. C. L. R.) ; ante, p. 126.

6 Countess of Rutland's Case, 6 Rep. 53.

THE MODE OP ADMINISTERING JUSTICE. 131

door thereof the sheriff came, and carried the countess to his house,
where she remained seven or eight days, till she paid the debt." It
was, however, held, that the said arrest was not made by force of
the writ of execution, and was, therefore, illegal ; " and the enter-
ing of such feigned action was utterly condemned by the whole
Court, for, by color of law and justice, they, by such feigned means,
do against law and justice, and so make law and justice the author
and cause of wrong and injustice."

Again, in Hooper v. Lane1 it was held in accordance with the
spirit of the maxim under our notice, that if the sheriff having in
his hands two writs of ca. sa., the one valid and the other invalid,
arrests on the latter only, he *cannot afterwards justify the p*-. qn-i
arrest under the valid writ. Nor can the sheriff, whilst a
person is unlawfully in his custody by virtue of an arrest on an
invalid writ, arrest that person on a good writ : " to allow the
sheriff to make such an arrest while the party is unlawfully con-
fined by him, would be to permit him to profit by his own wrong,2
and therefore cannot be tolerated."3

We shall hereafter4 have occasion to consider the general doctrine
respecting the right to recover money paid under compulsion. We
may, however, take this opportunity of observing that, where such
compulsion consists in an illegal restraint of liberty, a contract
entered into by reason thereof will be void; if, for instance, a man
is under duress of imprisonment, or if, the imprisonment being law-
ful, he is subjected to undue and illegal force and privation, and in
order to obtain his liberty, or to avoid such illegal hardship, he
enters into a contract, he may allege this duress in avoidance of the
contract so entered into ; but an imprisonment is not deemed suffi-
cient duress to avoid a contract obtained through the medium of
its coercion, if the party was in proper custody under the regular
process of a court of competent jurisdiction; and this distinction
results from the above rule of law, executio juris non habet in-
juriam.5

1 6 H. L. Cas. 433. 2 Post, Chap. V.

3 Per Lord Cranworth, 6 H. L. Cas. 551.

4 See the maxim, Volenti non jit injuria, post, Chap. V.

6 2 Inst. 482 ; Stepney v. Lloyd, Cro. Eliz. 646 ; Anon., 1 Lev. 68 ; Waterer
v. Freeman, Hobart 266 ; R. v. Southerton, 6 East 140 5 Anon., Aleyn R. 92 }
2 Roll. R. 301.

132 " broom's legal maxims.

Further, although, as elsewhere stated, an action will not lie to
rjKI oo-i recover damages for the inconvenience Occasioned to a
party who has been sued by another without reasonable or
sufficient cause,1 yet, if the proceedings in the action were against
A., and a writ of execution is issued by mistake against the goods
of B., trespass will clearly lie, at suit of the latter, against the
execution creditor,2 or against his attorney, wrho issued execution ;3
and where an attorney deliberately directs the execution of a war-
rant, he, by so doing, takes upon himself the chance of all conse-
quences, and will be liable in trespass if it prove bad.4 In cases
similar to the above, however, the maxim as to ex emtio juris is not
in truth strictly applicable, because the proceedings actually taken
are not sanctioned by the law, and therefore the party taking them,
although acting under the color of legal process, is not protected.

CURSUS GURIM EST LEX CURI^l.

(3 Bulst. 53.)

The practice of the Court is the law of the Court.5

"Every court is the guardian of its own records and *mas-
f*1341 ,

L J ter of its own practice;"6 and where a practice has existed

1 Per Rolfe, B., 11 M. & W. 756; and cases cited under the maxim, Ubijus,
ibi remedium, post, Chap. V.

2 Jarmain v. Hooper, 7 Scott N. R. 663: Walley v. M'Connell, 13 Q. B.
903 (66 E. C. L. R.) ; see Riseley v. Ryle, 11 M. & W. 16 ; Collett v. Foster, 2
H. & N. 356 ; Churchill v. Siggers, 3 E. & B. 929 (79 E. C. L. R.) ; Roret v.
Lewis, 5 D. & L. 371 ; Dimmack v. Bowley, 2 C. B. N. S. 542.

3 Davies v. Jenkins, 11 M. & W. 745 ; Rowles v. Senior, 8 Q. B. 677- (55 E.
C. L. R.), and cases there cited.

4 Green v. Elgie, 5 Q. B. 99 (48 E. C. L. R.).

5 " It was a common expression of the late Chief Justice Tindal, that the
course of the Court is the practice of the Court;" per Cresswell, J., Freeman
v. Tranah, 12 C. B. 414 (74 E. C. L. R.).

" The power of each Court over its own process is unlimited ; it is a power
incident to all Courts, inferior as well as superior; were it not so, the Court
would be obliged to sit still and see its own process abused for the purpose
of injustice." Per Alderson, B., Cocker v. Tempest, 7 M. & W. 502, cited,
per Willes, J., Stammers v. Hughes, 18 C. B. 535 (86 E. C. L. R.).

6 Per Tindal, C. J., Scales v. Cheese, 12 M. & W. 687 ; Gregory v. Duke of

THE MODE OF ADMINISTERING JUSTICE. 134

it is convenient (unless in cases of extreme urgency and necessity)1
to adhere to it, because it is the practice, even though no reason
can be assigned for it;2 for an inveterate practice in the law
generally stands upon principles that are founded in justice and
convenience.3 Hence, if any necessary proceeding in an action be
informal, or be not done within the time limited for it, or in the
manner prescribed by the practice of the Court, it may often be
set aside for irregularity, for via trita via tuta,A and the Courts of
law will not sanction a speculative novelty without the warrant of
any principle, precedent or authority.5

It has been remarked, moreover, that there is a material distinc-
tion between those things which are required to be done by the
common or statute law of the land, and things required to be done
by the rules and practice of the Court. Anything required to be
done by the law of the land must be noticed by a court of error,
but a court of error does not notice the practice of another court.6
Moreover, " where, by an Act of Parliament, power is *given
to a single Judge to decide a matter, his decision is not *- -*
absolutely final; but the Court adopt the same rule as where he
acts in the exercise of his ordinary jurisdiction ; and though the
legislature says that he shall have power finally to determine a
matter, that does not mean that the practice of the Court shall be
departed from."7

In a court of equity, as in a court of law, the maxim, cursus
curia? est lex curia?, is frequently recognised and applied. The

Brunswick, 2 H. L. Cas. 415; Mellish v. Richardson, 1 CI. & Fin. 221, cited
Newton v. Boodle, 6 C. B. 529 (60 E. C. L. R.) ; per Alderson, B., Ex parte
Story, 8 Exch. 199 ; Jackson v. Galloway, 1 C. B. 280 (50 E. C. L. R.) ; Reg.
v. Justices of Denbighshire, 15 L. J. Q. B. 335 ; per Lord Wynford, Ferrier
v. Howden, 4 CI. & Fin. 32. But see Fleming v. Dunlop, 7 CI. & Fin. 43.

1 See, for instance, Finney v. Beesley, 17 Q. B. 86 (79 E. C. L. R.).

2 Per Lord Ellenborough, C. J., Bovill v. Wood, 2 M. & S. 25 ; 15 East
226 ; per Lord Campbell, C. J., Edwards v. Martyn, 21 L. J. Q. B. 88 ; s. c,
17 Q. B. 693 (79 E. C. L. R.).

3 Per Lord Eldon, C, Buck 279. See per Lord Abinger, C. B., Jacobs v.
Layborn, 11 M. & W. 690.

4 Wood v. Hurd, 3 B. N. C. 45 (32 E. C. L. R.) j 10 Rep. 142.

6 See Judgm., Ex parte Overseers of Tollerton, 3 Q. B. 799 (43 E. C. L. R.).

6 Per Hoiroyd, J., Sandon v. Proctor, 7 B. & C. 806, cited arg. Bradley v.
Warburg, 11 M. & W. 455.

7 Per Rolfe, B., Shortridge v. Young, 12 M. & W. 7.

135 broom's legal maxims.

Court will, however, as several times remarked,1 adapt its practice
and course of proceeding to the existing state of society, and not,
by too strict an adherence to forms and rules established under
different circumstances, decline to administer justice and to enforce
rights for which there is no remedy elsewhere.

Lastly, even where the course of practice in criminal law has
been unfavorable to parties accused, and contrary to the principles
of justice and humanity, it has been held that such practice con-
stituted the law, and could not be altered without the authority of
Parliament.2

Consensus tollit Errorum.

(2 Inst. 123.)

The acquiescence of a party who might take advantage of an error obviates its

effect.

In accordance with this rule, if the venue in an action is laid in the
wrong place, and this is done .per assensum *partium, with
L J the consent of both parties, and so entered of record, it shall
stand;3 and where, by consent of both plaintiff and defendant, the
venue was laid in London, it was held, that no objection could
afterwards be taken to the venue, notwithstanding it ought, under
a particular Act of Parliament, to have been laid in Surrey, for
per Curiam — Consensus tollit err or em.4" Consent cannot, however
(unless by the express words of a statute), give jurisdiction,5 for
a mere nullity cannot be waived.

On the maxim under consideration depends also the important
doctrine of waiver, that is, the passing by of a thing;6 a doctrine

1 Per Lord Cottenham, C, Wallworth v. Holt, 4 My. & Cr. 635 ; Taylor v.
Salmon, Id. 141-2 ; Mare v. Malachy, 1 My. & Cr. 559.

2 Per Maule, J., 8 Scott N. R. 599, 600.

3 Fineux v. Hovenden, Cro. Eliz. 664 ; Co. Litt. 126, a, and Mr. Hargrave's
note (1) ; 5 Rep. 37 ; Dyer 367. See Crow v. Edwards, Hob. 5.

4 Furnival v. Stringer, 1 B. N. C. 68.

6 See Andrews v. Elliott, 6 E. & B. 338 (88 E. C. L. R.) (recognised in
Tyerman v. Smith, Id. 719, 724), which illustrates the above maxim ; Law-
rence v. Wilcock, 11 A. & E. 941 (39 E. C. L. R.) ; Vansittart v. Taylor, 4 E.
& B. 910, 912 (82 E. C. L. R.).

6 Toml. Law. Diet., tit. Waiver. See Earl of Darnley v. London, Chatham
and Dover R. C, L. R. 2 H. L. 43 ; Ramsden v. Dyson, L. R. 1 H. L. 129, cited
post.

THE MODE OF ADMINISTERING JUSTICE. 136

which is of very general application both in the science of pleading
and in those practical proceedings which are to be observed in the
progress of a cause from the first issuing of process to the ultimate
signing of judgment and execution.

With reference to pleading however the rule, that an error will
be cured by the consent or waiver of the opposite party, must be
taken with considerable limitation ; for, although faults in pleading
are in some cases aided by pleading over, it frequently happens
that a party who has pleaded over, without demurring, may never-
theless afterwards avail himself of an insufficiency in the pleading
of his adversary: and the reason is, that, although the effect of a

demurrer is to admit the truth of all matters of *fact suffi-

P1371
ciently pleaded on the other side, yet, by pleading, a party *- J

does not admit the sufficiency in the law of the facts adversely
alleged;1 for, when judgment is to be given, whether the issue be
in law or fact, and whether the cause have proceeded to issue or
not, the Court is in general bound to examine the whole record,
and adjudge according to the legal right as it may on the whole
appear; so that, if, after pleading over, a demurrer arise at some
subsequent stage, the Court will take into consideration retrospect-
ively the sufficiency in law of matters to which an answer in fact
has been given; and hence it follows, that advantage may often be
taken by either party of a legal insufficiency in the pleading on the
other side, either by motion in arrest of judgment, or motion for
judgment non obstante veredicto, or on error, according to the cir-
cumstances of the case.2

These remarks are confined, however, to defects in matter of sub-
stance; for, with respect to objections of mere form, it is laid down
that, if a man pleads over, he shall never take advantage of any slip
committed in the pleading of the other side.3

When applied to the proceedings in an action, wraiver may be
defined to be the doing something after an irregularity committed,
and with a knowledge of such irregularity, where the irregularity
might have been corrected before the act was done ; and it is essen-
tial to distinguish a proceeding which is merely irregular from one
which is completely defective and void. In the latter case the pro-

1 Steph. PI., 6th ed., 136. See Brooke v. Brooke, Sid. 184.

2 Steph. PL, 6th ed., 112, 139, 140.

3 Per Holt, C. J., Anon., 2 Salk. 519.

137 broom's legal maxims.

ceeding is a nullity, which cannot be waived by any laches or sub-
sequent proceedings of the opposite party.

r*1S81 * Where, however, an irregularity has been committed,
and where the opposite party knows of the irregularity, it
is a fixed rule observed as well by courts of equity as of common
law, that he should come in the first instance to avail himself of it,
and .not allow the other party to proceed to incur expense. " It
is not reasonable afterwards to allow the party to complain of that
irregularity, of which, if he had availed himself in the first instance,
all that expense would have been rendered unnecessary;"1 and,
therefore, if a party, after any such irregularity has taken place,
consents to a proceeding which, by insisting on the irregularity, he
might have prevented, he waives all exceptions to the irregularity.
This is a doctrine long established and well known. Consensus
tollit errorem is a maxim of the common law, and the dictate of
common sense.2

It may appear in some measure superfluous to add, that the con-
sent which cures error in legal proceedings, may be implied as well
as expressed : for instance — where, at the trial of a cause, a pro-
posal was made by the judge in the presence of the counsel on both
sides, who made no objection, that the jury should assess the dam-
ages contingently, with leave to the plaintiff to move to enter a
verdict for the amount found by the jury, it was held that both
parties were bound by the proposal, and that the plaintiff's counsel
was not therefore at liberty to move for a new trial on the ground
of misdirection,3 for qui tacet consentire videturf the silence of coun-
sel implied their *assent to the course adopted by the
L -^ judge, and " a man who does not speak when he ought
shall not be heard when he desires to speak."5

1 Per Lord Lyndhurst, C, St. Victor v. Devereux, 14 L. J. Chan. 246.

2 See 7 Johnson (U. S.) R. 611.

3 Morrish v. Murrey, 13 M. & W. 52. Booth v. Clive, 10 C. B. 827 (70 E.
C. L. R.) ; Hughes v. Great Western R. C, 14 C. B. 637 (78 E. C. L. R.).
See also Harrison v. Wright, 13 M. & W. 816.

4 Jenk. Cent. 32. See judgment, Gosling v. Veley, 7 Q. B. 455 (53 E. C.
L. R.) ; Houldsworth v. Evans, L. R. 3 H. L. 263.

5 2 Comstock (U. S.) R. 281. See Martin v. Great Northern R. C, 16 C.
B. 179, 196-7 (81 E. C. L. R.) ; Perry v. Davis, 3 C. B. N. S. 769 ; Beaudry
v. Mayor, &c., of Montreal, 11 Moo. P. C. C. 399.

" If a client be present in court and stand by and see his solicitor enter into

the mode of administering justice. 139
Communis Error facit Jus.

(4 Inst. 240.)
Common error sometimes passes current as law.

The law so favors the public good, that it will in some cases per-
mit a common error to pass for right j1 as an instance of which may
be mentioned the case of common recoveries which were fictitious
proceedings introduced by a kind of pia fraus to elude the statute
de Donis, and which were at length allowed by the courts to be a
bar to an estate tail, so that these recoveries, however clandestinely
introduced, became by long use and acquiescence a most common
assurance of lands, and were looked upon as the legal mode of con-
veyance whereby tenant in tail might dispose of his lands and
tenements.2

*However, the above maxim, although well known, and r*-|4fn
therefore here inserted, must be received and applied with
very great caution.

"It has been sometimes said," observed Lord Ellenborough,
" communis error facit jus ; but I say, communis opinio is evidence
of what the law is — not where it is an opinion merely speculative
and theoretical, floating in the minds of persons ; but where it has
been made the groundwork and substratum of practice."3 So it
was remarked by another learned and distinguished judge,4 that he
hoped never to hear this rule insisted upon, because it would be to

terms of an agreement, and make no objection whatever to it, he is not at
liberty afterwards to repudiate it." Per Sir J. Romilly, M. R., Swinfen v.
Swinfen, 24 Beav. 559. See Chambers v. Mason, 5 C. B. N. S. 59 (94 E. C.
L. R.) ; Prestwich v. Poley, 18 C. B. N. S. 806.

1 Noy, Max., 9th ed.. p. 37 ; 4 Inst. 240 ; per Blackburn, J., Reg. v. Justices
of Sussex, 2 B. & S. 680 (110 E. C. L. R.), and in Jones v. Tapling, 12 C. B.
N. S. 846-7 (104 E. 0. L. R.) ; s. c, 11 H. L. Cas. 290 ; Waltham v. Sparkes,
1 Lord Raym. 42. See also the remarks of Lord Brougham in Phipps v.
Ackers, 9 CI. & Fin. 598 (referring to Cadell v. Palmer, 10 Bing. 140 (25 E.C.
L. R.)), and in the Earl of Waterford's Peerage claim, 6 CI. & Fin. 172; also
in Devaynes v. Noble, 2 Russ. & My. 506 ; Janvrin v. De la Mare, 14 Moo. P.
C. C. 334.

2 Noy, Max., 9th ed., pp. 37, 38 ; Plowd. 33 b.

3 Isherwood v. Oldknow, 3 M. & S. 396, 397 ; per Vaughan, B., Garland v.
Carlisle, 2 Cr. & M. 95 ; Co. Litt. 186, a.

4 Mr. Justice Foster, cited per Lord Kenyon, C. J., R. v. Eriswell, 3 T. R.
725 ; arg. Smith v. Edge, 6 T. R. 563.

140 broom's legal maxims.

set up a misconception of the law in destruction of the law ; and in
another case, it was observed that " even communis error, and a
long course of local irregularity, have been found to afford no pro-
tection to one qui spondet peritiam artis.1 Some useful and strin-
gent remarks on the practical application and value of the above
maxim were made also by Lord Denman, C. J., delivering judg-
ment in the House of Lords, in a well-known case, involving impor-
tant legal and constitutional doctrines ; in the course of this judg-
ment, which is well worthy of careful perusal, his lordship took
occasion to remark, that a large portion of the legal opinion which
has passed current for law falls within the description of " law taken
for granted;" and that "when, in the pursuit of truth, we are
obliged to investigate the grounds of the law, it is plain, and has
often been proved by recent experience, that the mere statement
!~*14.n anc^ re-sta'tement *of a doctrine — the mere repetition of the
cantilena of lawyers — cannot make it law, unless it can be
traced to some competent authority, and if it be irrrconcileable to
some clear legal principle."2

The foregoing remarks may be thus exemplified : — A general un-
derstanding has prevailed, founded on the practice of a long series
of years, that if patented inventions were used in any of the de-
partments of the public service, the patentees would be remunerated
by the ministers or officers of the crown administering such depart-
ments, as though the use had been by private individuals. In nu-
merous instances payments had been made to patentees for the. use
of patented inventions in the public service, and even the legal ad-
visers of the crown appeared also to have considered the right as
well settled. There was, further, little doubt that on the faith of
the understanding and practice many inventors had, at great ex-
pense of time and money, perfected and matured inventions, in the
expectation of deriving a portion of their reward from the adoption
of their inventions in the public service. It was, nevertheless, held
that the language of the patent should be interpreted according to
the legal effect of its terms, irrespective of the practice.3

1 6 CI. & Fin. 199.

2 Lord Denman' s judgment in O'Connell v. Reg., edited by Mr. Leahy, p.
28. See also the allusions to Hutton v. Balme, and Eeg. v. Millis, Id., pp.
23, 24. Et vide per Pollock, C. B., 2 H. & N. 139.

3 Feather v. Keg., 6 B. & S. 289-292 (118 E. C. L. R.).

THE MODE OF ADMINISTERING JUSTICE. 142

*DE MINIMIS NON CURAT LEX. [*142]

(Cro. Eliz. 353.)
The law does not concern itself about trifles.

Courts of justice do not in general take trifling and immaterial
matters into account ;x and they will not, for instance, take notice of
the fraction of a day, except in those cases where there are conflict-
ing rights, for the determination of which it is necessary that they
should do so.2

A familiar instance of the application of this maxim occurs like-
wise in the rule observed by the courts at Westminster, that new
trials shall not be granted, at the instance either of plaintiff or de-
fendant, on the ground of the verdict being against evidence, where
the damages are less than 207. 3

"In ordinary," as remarked by Lord Kenyon, C. J.,4 "where
the damages are small, and the question too inconsiderable to be
retried, the Court have frequently refused to send the case back to
another jury. But, *wherever a mistake of the judge has r*-|jQ-|
crept in and swayed the opinion of the jury, I do not recol-
lect a single case in which the Court have ever refused to grant a
new trial."

A superior court also will stay proceedings in an action of debt

1 Bell, Diet, and Dig. of Scotch Law 284 ; per Sir W. Scott, 2 Dods. Adm.
R. 163 ; Graham v. Berry, 3 Moo. P. C. C. N. S. 223.

2 Judgm., 14 M. & W. 582 ; per Holt, C. J., 2 Lord Raym. 1095 ; Reg. v. St.
Mary, Warwick, 1 E. & B. 816 (72 E. C. L. R.) ; Wright v. Mills, 4 H. & N.
48U, 493, 494 ; Evans v. Jones, 3 H. & C. 423 ; Page v. More, 15 Q. B. 684-6
(69 E. C. L. R.) ; Boosey v. Purday, 4 Exch. 145 (which illustrates the above
proposition in connection with the law of copyright).

3 Branson v. Didsbury, 12 A. & E. 631 (40 E. C. L. R.) ; Manton v. Bales, 1
C. B. 444 ; Macrow v. Hull, 1 Burr. 11 ; Burton v. Thompson, 2 Burr. 664 ;
Apps. v. Day, 14 C. B. 112 (78 E. C. L. R.) ; Hawkins v. Alder, 18 C. B. 640
(86 E. C. L. R.) ; see Allum v. Boultbee, 9 Exch. 738, 743 ; per Maule, J., 11
C. B. 653 (73 E. C. L. R.).

4 Wilson v. Rastall, 4 T. R. 753. See Vaughan v. Wyatt, 6 M. & W. 496,
497 ; per Parke, B., Twig v. Potts, 1 Cr., M. & R. 93 ; Lee & Evans, 12 C. B.
N. S. 368 (104 E. C. L. R.) ; Mostyn v. Coles, 7 H. & N. 872, 876. In Haine
v. Davey, 4 A. & E. 892 (31 E. C. L. R.), a new trial was granted for mis-
direction, though the amount in question was less than 11. See Poole v.
Whitcombe, 12 C. B. N. S. 770 (104 E. C. L. R.).

143 broom's legal maxims.

brought there, if it appear that the sum sought to be recovered is
under 40s.1

In further illustration of the maxim — de minimis non curat lex,
we may observe that there are some injuries of so small and little
consideration in the law that no action will lie for them f for instance,
in respect to payment of tithe, the principle which may be extracted
from the case appears to be, that for small quantities of corn, invol-
untarily left in the process of raking, tithe shall not be payable,
unless there be any particular fraud or intention to deprive the
parson of his full right. Where, however, a farmer pursued such a
mode of harvesting barley, that a considerable quantity of rakings
was left scattered after the barley was bound into sheaves, the Court
held, that tithe was payable in respect of these rakings, although
no actual fraud was imputed to the farmer, and although he and his
servants were careful to leave as little rakings as possible in that
mode of harvesting the crop.3

[~*144"1 *It may be observed, however, that for an injury to real
property incorporeal an action may be supported, however
small the damage, and therefore a commoner may maintain an action
on the case for an injury done to the common, though his propor-
tion of the damage be found to amount only to a farthing ;4 and
generally the superior courts of law have jurisdiction to hear and
determine all suits, without any reference to the magnitude of the
amount claimed or demanded, or to the extent of the injury com-
plained of, subject, however, to the power of the judge to certify
under stat. 43 Eliz. c. 6, where the damages recovered are less
than 40s., and thereby deprive the plaintiff of his costs ; and sub-
ject likewise to the provisions as to costs and jurisdiction contained
in the County Court and some other Acts.

1 Kennard v. Jones, 4 T. R. 495 ; Wellington v. Arters, 5 T. R. 64 ; Stutton
v. Bament, 3 Exch. 831, 834. See Nurdin v. Fairbanks, 5 Exch. 738.

2 See per Powys, J., Ashby v. White, 2 Lord Raym. 944, answered by Holt,
C. J., Id. 953 ; Whitcher v. Hall, 5 B. & C. 269, 277 (11 E. C. L. R.) ; 2 Bla.
Com., 21st ed., 262, where the rule respecting land gained by alluvion is
referred to the maxim treated of in the text. The maxim "would apply only
with respect to gradual accretions not appreciable except after the lapse of
time," per Pollock, C. B., 2 H. & N. 138 ; and in Ford v. Lacey, 7 Id. 155.

3 Glanville v. Stacey, 6 B. & C. 543 (13 E. C. L. R.).

4 Pindar v. Wadsworth, 2 East 154. See 22 Vin. Abr. " Waste," (N.) ; Har-
rop v. Hirst, L. R. 4 Ex. 43, and other cases cited post, Chap. V.

THE MODE OF ADMINISTERING JUSTICE. 144

The law having reference to the rights of a riparian proprietor to
apply to his own use the running water, as stated by Mr. Chancellor
Kent, in his commentaries,1 and recognised by our courts,2 illus-
trates how the maxim under notice may be applied. Every propri-
etor of land on the banks of a river has naturally an equal right to
the use of the water flowing in the stream adjacent to his land, as
it was wont to run without diminution or alteration. No proprietor
has a right to use the water *to the prejudice of other pro- r*-j4^-i
prietors above or below him, unless he has a prior right to
divert it, or a title to some exclusive enjoyment. Streams of water,
however, are intended for the use and comfort of man, and it would
be unreasonable and contrary to the universal sense of mankind, to
debar every riparian proprietor from the application of the water
to domestic, agricultural and manufacturing purposes, provided the
use of it be made without causing material injury or annoyance to
his neighbor below him. There will, no doubt, inevitably be, in the
exercise of a perfect right to the use of the water, some evapora-
tion and decrease of it, and some . variations in the weight and
velocity of the current ; but de minimis non curat lex ; and a right
of action by the proprietor below would not necessarily flow from
such consequences, but would depend upon the nature and extent of
the complaint or injury, and the manner of using- the water. All
that the law requires of the party, by or over whose land the
stream passes, is that he should use the water in a reasonable
manner, and so as not to destroy or render useless, or materially
diminish or affect the application of the water, by the proprietors
above or below on the stream.

"The same law," it has been observed, "will be found to be ap-
plicable to the corresponding rights to air and light. These also
are bestowed by Providence for the common benefit of man, and
so long as the reasonable use by one man of this common property

1 7th ed. vol. 3, pp. 537-539.

2 Judgm., Embrey v. Owen, 6 Exch. 369-371 ; Dickenson v. Grand Junction
Canal Co., 7 Excb. 282 ; Sampson v. Hoddinott, 1 C. B. N. S. 590 (87 E.
C. L. R.) ; s. c. affirmed, 3 Id. 591 ; Miner v. Gilmour, 12 Moo. P. C. C. 131
(where the rights of a riparian proprietor, as regards the use of water run-
ning by his land, are explained and defined) ; Nuttall v. Bracewell, 4 H. &
C. 714 ; Rochdale Canal Co. v. King, 14 Q. B. 122, 136 (68 E. C. L. R.) ; Wood
v. Waud, 3 Exch. 748. See Medway Navigation Co. v. Earl of Romney, 9 C.
B. N. S. 575 (99 E. C. L. R.).

8

145 broom's legal maxims.

does not do actual and perceptible damage to the right of another
to the similar use of it, no action will lie. A man cannot occupy a
dwelling and consume fuel in it for domestic purposes, without its
in some degree impairing the natural purity of the air; he cannot
[~*14.fi1 erec* a building or *plant a tree near the house of another
without in some degree diminishing the quantity of light
he enjoys; but such small interruptions give no right of action;
for they are necessary incidents to the common enjoyment by all.1

Nor only in cases analogous to those above mentioned, but in
others of a different description, viz., where trifling irregularities
or even infractions of the strict letter of the law are brought under
the notice of the Court, the maxim de minimis non currat lex is of
frequent practical application.2 It has, for instance, been applied
to support a rate, in the assessment of which there were some com-
paratively trifling omissions of established forms.3 So, with refer-
erence to proceedings for an infringement of the revenue laws,4 Sir
W. Scott observed — " The Court is not bound to a strictness at
once harsh and pedantic in the application of statutes. The law
permits the qualification implied in the ancient maxim, de minimis
non curat lex.5 Where there are irregularities of very slight conse-
quence, it does not intend that the infliction of penalties should be
inflexibly severe. If the deviation were a mere trifle, which, if
r*1471 continued in ^practice, would weigh little or nothing on the
public interest, it might properly be overlooked."

Lastly, in an indictment against several for a misdemeanor all
are principals, because the law does not descend to distinguish differ-
ent shades of guilt in this class of offences.

1 Judgm., 6 Exch. 372-3.

a See in connection with criminal liability for a nuisance, Reg. v. Charles-
worth, 16 Q. B. 1012 (71 E. C. L. R.) ; Reg. v. Betts, Id. 1022; Reg. v. Rus-
sell, 3 E. & B. 942 (77 E. C. L. R.).

3 White v. Beard, 2 Curt. 493. But where the amount of a poor-rate at so
much in the pound on the assessable value of premises involves the fraction
of a farthing, a demand by the overseer of the whole farthing is excessive and
illegal. Morton, app., Brammer, resp., 8 C. B. N. S. 791, 798 (98 E. C. L.
R.), citing Baxter v. Faulam, 1 Wils. 129.

4 The Reward, 2 Dods. Adm. R. 269, 270.

5 This maxim may likewise be applied as follows : — " When we say that
there is no evidence to go to a jury, we do not mean that there is literally
none, but that there is none which ought reasonably to satisfy a jury that the
fact sought to be proved is established." Per Maule, J., Jewell v. Parr, 13 C.
B. 916 (76 E. C. L. R.) ; ante, pp. 109, 110.

the mode of administering justice. 147
Omnis Innovatio plus Novitate perturbat quam Utilitate

PRODEST.

(2 Bulstr. 338.)

Every innovation occasions more harm and derangement of order by its novelty,

than benefit by its abstract utility.

It has been an ancient observation in the laws of England, that,
whenever a standing rule of law, of which the reason, perhaps,
could not be remembered or discerned, has been wantonly broken in
upon by statutes or new resolutions, the wisdom of the rule has in
the end appeared from the inconveniences that have followed the
innovation;1 and the judges and sages of the law have therefore
always suppressed new and subtle inventions in derogation of the
common law.2

It is, then, an established rule to abide by former precedents,
stare decisis, where the same points come again in litigation, as
well to keep the scale of justice even and steady, and not liable to
waver with every new judge's opinion, as also because, the law in
that case *being solemnly declared and determined, what _
before was uncertain, and perhaps indifferent, is now become L J
a permanent rule, which it is not in the breast of any subsequent
judge to alter or swerve from according to his private sentiments;
he being sworn to determine, not according to his own private judg-
ment,3 but according to the known laws and customs of the land, —
not delegated to pronounce a new law, but to maintain and expound
the old one4 — jus dieere et non jus dare.5

1 1 Com. by Broom & Hadley 60. See Ram's Science of Legal Judgment
112 et seq.

Lord Bacon tells us in his Essay on Innovations, that, "as the births of
living creatures at first are ill-shapen, so are all innovations which are the
births of time."

2 Co. Litt. 282 b, 379 b ; per Grose, J., 1 M. & S. 394.

3 See per Lord Camden, 19 Howell's St. Tr. 1071 ; per Williams, J., 4 CI.
&
per Alderson, B., 4 Exch. 806.

* Per Lord Kenyon, C. J., 5 T. R. 682 ; 6 Id, 605 ; and 8 Id. 239 ; per Grose,
J., 13 East 321 ; 9 Johnson (U. S.) R. 428 ; per Lord Hardwicke, C, Ellis v
Smith, 2 Ves.jun. 16.

6 7 T. R. 696 ; 1 B. & B. 563 (5 E. C. L. R.) ; Ram's Science of Legal Judg-
ment, p. 2 ; arg. 10 Johnson (U. S.) R. 566. " My duty," says Alderson, B.
in Miller v. Salomons, 7 Exch. 543, " is plain. It is to expound and not to
make the law — to decide on it as I find it, not as I may wish it to be ;" per
Coltman, J., 4 C. B. 560-1 (56 E. C. L. R.).

148 broom's legal maxims.

And here we may observe the important distinction which exists
between the legislative and the judicial functions. To legislate —
jus facer e or jus dare, is to exercise the will in establishing a rule
of action. To administer the law — jus dieere, is to exercise the
judgment in expounding and applying that rule according to legal
principles. "The province of the legislature is not to construe but
to enact, and their opinion not expressed in the form of law as a
declaratory provision would be, is not binding on courts whose duty
is to expound the statutes they have enacted,"1 for the maxim of
the Roman law, ejus est interpretari cujus est condere,2 does not
under our constitution hold. <

Our common-law system, as remarked by a learned judge, con-

r*1491 s*sts *n t^ie aPP^n& to new comDmations of Circum-
stances, those rules of law which we derive from legal
principles and judicial precedents ;3 and for the sake of attaining
uniformity, consistency and certainty, we must apply those rules
where they are not plainly unreasonable and inconvenient to all
cases which arise, and we are not at liberty to reject them, and to
abandon all analogy to them, in those to which they have not yet
been judicially applied, because we think that the rules are not. as
convenient and reasonable as we ourselves could have devised. "It
appears to me to be of great importance to keep this principle of
decision steadily in view, not merely for the determination of the
particular case, but for the interests of law as a science."4

Accordingly where a rule has become settled law, it is to be
followed, although some possible inconvenience may grow from a
strict observance of it, or although a satisfactory reason for it is
wanted, or although the principle and the policy of the rule may
be questioned.5 If, as has been observed, there is a general

1 Judgm., 14 M. & W. 589. 2 See Tayl. Civ. L., 4th ed., 96.

3 As to the value of precedents: Palgr. Orig. Auth. King's Council, 9, 10.
" An unnecessary departure from precedents, whether it spring from the love
of change, or be the result of negligence or ignorance on the part of the
pleader, ought not to be encouraged. It can only lead to useless litigation,
delay and expense." See per Cur., Austin v. Holmes, 3 Denio (U. S.) R. 244.

4 Per Parke, J., Mirehouse v. Rennell, 1 CI. & Fin. 546. " When the law
has become settled, no speculative reasoning upon its origin, policy or expe-
diency, should prevail against it." 3 Denio (U. S.) R. 50.

5 Per Tindal, C. J., Mirehouse v. Rennell, 8 Bing. 557 (21 E. C. L. R.). See
the authorities cited, Ram's Science of Legal Judgment 33-35.

THE MODE OF ADMINISTERING JUSTICE. 149

hardship affecting a general class of cases, it is a consideration
for the legislature, not for a court of justice. If there is a
particular hardship from the particular circumstances of the case,
nothing can be more dangerous or mischievous than upon those
particular circumstances to deviate from a general *rule of pH<1 r^-.
law;1 "hard cases," it has repeatedly been said, are apt to
" make bad law,"2 and misera est servitus ubi jes est vagum aut in-
certum3 — obedience to law becomes a hardship when that law is un-
settled or doubtful ; which maxim applies with peculiar force to
questions respecting real property ; as, for instance, to family
settlements, by which provision is made for unborn generations;
"and if, by the means of new lights occurring to new judges, all
that which was supposed to be law by the wisdom of our ancestors,
is to be swept away at a time when the particular limitations are to-
take effect, mischievous indeed will be the consequence to the
public."4

So, likewise, with respect to matters which do not affect existing
rights or properties to any great degree, but tend principally to in-
fluence the future transactions of mankind, it is generally more
important that the rule of law should be settled, than that it should
be theoretically correct.5

The above remarks as to the necessity of observing established
principles apply to rules acted upon in courts of equity, as well as
in the tribunals of common law, it *being a maxim that — r*1 ^11
jus respieit cequitatem,6 the law pays regard to equity.

1 Per Lord Loughborough, 2 Ves. jun. 426, 427 5 per T indal, C. J., Doe d.
Clarke v. Ludlam, 7 Bing. 180 (20 E. C. L. R.); per Pollock, C. B., Reg. v.
Woodrow, 15 M. & W. 412 ; per Wilde, C. J., Kepp v. Wiggett, 16 L. J. C.
P. 237 ; s. c, 6 C. B. 280 (60 E. C. L. R.).

2 See 4 CI. & Fin. 378 ; per Coleridge, J., 4 H. L. Cas. 611. " It is neces-
sary that courts of justice should act on general rules, without regard to the
hardship which in particular cases may result from their application."
Judgm., 4 Exch. 718. See also Judgm., 3 Exch. 278.

3 4 Inst. 246 ; Shepherd v. Shepherd, 5 T. R. 51 n. {a) ; 2 Dwarr. Stats. 786 ;
Bac. Aphorisms, vol. 7, p. 148 ; arg. 9 Johnson (U. S.) R. 427, and 11 Peters
(U. S.) R. 286.

* Per Lord Kenyon, C. J., Doe v. Allen, 8 T. R. 504. See per Ashhurst, J.,
7 T. R. 420.

5 See per Lord Cottenham, C, Lozon v. Pryse, 4 My. &. Cr. 617, 618.

6 Co. Litt. 24 b. A court of law will also, in some cases, notice equitable
rights : see per Parke, B., 12 M. & W. 445, and in 16 L. J. Exch. 163. * I

151 broom's legal maxims.

For, where a rule of property is settled in a court of equity, and is
not repugnant to any legal principle, rule or determination, there
is a propriety in adopting it at law, since it would be absurd and
injurious to the community that different rules should prevail in
different courts on the same subject.1 And it was observed by
Lord Eldon, while speaking of the practice of conveyancers in a
case concerning a lease under a power, that courts of law should
inquire of decisions in courts of equity, not for points founded on
determinations merely equitable, but for legal judgments proceed-
ing upon legal grounds, such as those courts of equity have for a
long series of years been in the daily habit of pronouncing as the
foundation of their decisions and decrees.2

The judicial rule — stare decisis* — does, however, admit of excep-
tions, where the former determination is most evidently contrary to
reason — much more, if it be clearly contrary to the divine law.
But, even in such cases, subsequent judges do not pretend to make
l"*1 Wl a new *^aw' ^u^ *° vindicate the old one from misrepresen-
tation. For if it be found that the former decision is
manifestly absurd or unjust, it is declared, not that such a sentence
was bad law, but that it was mot law ; that is, that it is not the
established custom of the realm, as has been erroneously deter-
mined.4

We may appropriately conclude these remarks with observing,
that, whilst on the one hand innovation on settled law is to be
avoided, yet, " the mere lateness of time at which a principle has
become established is not a strong argument against its soundness,
if nothing has been previously decided inconsistent with it, and it

have no doubt," observes Lord Campbell, C. J., in Sims v. Marryat, 17 Q. B.
292 (79 E. L. C. K.), that the Judges of a Common Law Court take judicial
notice, not only of the doctrines of equity, but of those of every branch of
English law when they incidentally come before them."

1 Farr v. Newman, 4 T. R. 636.

2 Smith v. Doe, 7 Price 590 ; s. c, 2 B. & B. 599. So in Ralston v. Hamil-
ton, 4 Macq. Sc. App. Cas. 405, Lord Westbury, C, observes, " The rules
which govern the transmission of property are the creatures of positive law,
and when once established and recognised, their justice or injustice in the
abstract is of less importance to the community than that the rules themselves
shall be constant and invariable."

3 As to which, see Gifford v. Livingston, 2 Denio (U. S.) R. 392-3.
* 1 Com. by Broom & Hadley 60.

THE MODE OF ADMINISTERING JUSTICE.

152

be in itself consistent with legal analogies."1 Nay, it is even true
that " a froward retention of custom is as turbulent a thing as an
innovation ; and they that reverence too much old times are but a
scorn to the new."2

1 Judgm., Gosling v. Veley, 7 Q. B. 441 (53 E. C. L. R.) ; per Lord Denman,
C. J., 10 Q. B. 950.

2 Bacon's Essays, " Of Innovations."

153 bkoom's legal maxims.

[*153] * CHAPTER IV.

RULES OF LOGIC.

The maxims immediately following have been placed together,
and entitled "Rules of Logic," because they result from a very
simple process of reasoning. Some of them, indeed, may be con-
sidered as axioms, the truth of which is self-evident, and conse-
quently admit of illustration only. A few examples have in each
case been given, showing how the particular rule has been held to
apply, and other instances of a like nature will readily suggest
themselves to the reader.1

Ubi eadem Ratio ibi idem Jus.

(Co. Litt. 10 a.)
Like reason doth make like law.2

The law consists, not in particular instances and precedents, but
in the reason of the law ;3 for reason is the life of the law, — nay,
the common law itself is nothing else but reason ; which is to be
understood of an artificial perfection of reason, acquired by long
study, observation and experience, and not of every man's natural
reason.4

r*1 ^4.1 *The following instances will serve to show in what man-
ner the above maxim may be practically applied : —

When any deed, as a bond, is altered in a point material5 by the
obligee, or by a stranger without his privity, the deed thereby be-

1 The title of this division of the subject has been adopted from Noy's
Maxims, 9th ed., p. 5.

2 Co. Litt. 10 a.

3 Ashby v. White, 2 Lord Raym. 957 : the judgment of Lord Holt in this
celebrated case well illustrates the position in the text.

4 Co. Litt. 97 b.

6 Secus, if the alteration be in a point immaterial, Aldous v. Cornwell, L.
R. 3 Q. B. 573, where the action was on a promissory note. See Andrews v.
Lawrence, 19 C. B. N. S. 768 (99 E. C. L. R.).

RULES OF LOGIC. 154

comes void j1 for the law will not permit a man to take the chance
of committing a fraud, and when that fraud is detected, of recover-
ing on the instrument as it was originally made. In such a case
the law intervenes, and says, that the deed thus altered no longer
continues the same deed, and that no person can maintain an action
upon it ; and this principle of the law is calculated to prevent fraud
and to deter men from tampering with written securities.2 The broad
principle thus recognised has been likewise established in regard to
bills of exchange and promissory notes;3 on all such instruments a
duty arises analogous to the duty arising on deeds, and "a party who
has the custody of an instrument made for his benefit, is bound to
preserve it in its original state." The law having been long settled
as to deeds, was held to be also applicable to those mercantile
^instruments, which, though not under seal, yet possess pro- pi cc-i
perties, the existence of which, in the case of deeds, was, it
must be presumed, the foundation of the rule above stated, — ubi
eadem est ratio eadem est lex ; and therefore, in the case below cited,
it was held that an unauthorized* alteration in the date of a bill of
exchange after acceptance, whereby the payment would be acceler-
ated, even when made by a stranger, avoids the instrument, and that
no action can be afterwards brought upon it by an innocent holder
for a valuable consideration.5 By a yet more recent decision, the

1 Pigot's Case, 11 Rep. 26 b, cited Davidson v. Cooper, 11 M. & W. 799 ; s.
c, in error, 13 Id. 343. Whelpdale's Case, 5 Rep. 119 a; per Lord Denman,
C. J. Harden v. Clifton, 1 Q. B. 524 (41 E. C. L. R.) ; Agricultural Cattle
Insurance Co. v. Fitzgerald, 16 Q. B. 432 (71 E. C. L. R.) ; Doe d. Tatum v.
Catomore, 16 Q. B. 745 ; Keane v. Smallbone, 17 C. B. 179 (79 E. C. L. R.) ;
arg. Bamberger v. Commercial Credit Mutual Ass. Soc, 15 C. B. 676, 692 (80
E. C. L. R.). See Gollan v. Gollan, 4 Macq. Sc. App. Cas. 585.

2 Master v. Miller, 4 T. R. 320; s. c, affirmed in error, 2 H. Bla. 140.
Gardner v. Walsh, 5 E. & B. 83 (85 E. C. L. R.), (overruling Catton v. Simp-
son, 8 A. & E. 136 (35 E. C. L. R.)) ; Burchfield v. Moore, 3 E. & B. 683 (77
E. C. L. R.) ; Saul v. Jones, 1 E. & E. 63 (72 E. C. L. R.) ; Warrington v.
Early, 2 E. & B. 763 (75 E. C. L. R.). See Green v. Attenborough, 3 H. &
C. 468 ; West v. Steward, 14 M. & W. 46 ; Fazakerley v, M'Knight, 6 E. & B.
795 (88 E. C. L. R.) ; Hamelin v. Bruck, 9 Q. B. 306 (58 E. C. L. R.).

3 Master v. Miller, 4 T. R. 320.

4 See Tarleton v. Shingler, 7 C. B. 812 (62 E. C. L. R.) ; 4 Scott N. R. 732,
n. (29).

5 Master v. Miller, supra; Hirschfeld v. Smith, L. R. 1 C. P. 340; Lord
Falmouth v. Roberts, 9 M. & W. 471 ; Judgm., Davidson v. Cooper, 11 M. &

155 broom's legal maxims.

same doctrine was extended to the case of bought and sold notes ; and
it was held, that a vendor, who, after the bought and sold notes had
been exchanged, prevailed on a broker, without the consent of the
vendee, to add a term to the bought note, for his (the vendor's)
benefit, thereby lost all title to recover against the vendee.1 And
the Court of Exchequer have since held that the same principle ap-
plies to a guarantee, and that it is a good ground of defence, that
the instrument has, whilst in the plaintiff's hands, received a mate-
rial alteration,2 from some person to the defendant unknown, and
without his knowledge or consent.3

I"*1 ^fil *^0' ^e ^nser^on °f material words in the margin of a
charter-party by the broker, but without the knowledge of
the owner, has in a recent case4 been held to vitiate it. " It is, no
doubt," observed Martin, B., delivering the judgment, " apparently
a hardship that, where what was the original charter-party, is per-
fectly clear and indisputable, and where the alteration or addition
was made without any fraudulent intention, and by a person not a
party to the contract, a perfectly innocent man should thereby be
deprived of a beneficial contract ; but, on the other hand, it must
be borne in mind, that, to permit any tampering with written docu-
ments, would strike at the root of all property, and that it is of the
most essential importance to the public interest that no alteration
whatever should be made in written contracts, but that they should
continue to be and remain in exactly5 the same state and condition
as when signed and executed, without addition, alteration, rasure,
or obliteration."6

W. 800; s. c, in error, 13 M. & W. 343 ; Mason v. Bradley, 11 M. & W. 590 j
Parry v. Nicholson, 13 M. & W. 778 ; Gould o. Coombs, 1 C. B. 543 (87 E. C.
L. K) ; Bradley v. Bardsley, 14 M. & W. 372 ; Crotty v. Hodges, 5 Scott N.
R. 221 ; Bell v. Gardiner, 4 Scott N. R. 621 ; Baker v. Jubber, 1 Id. 26. See
Harrison v. Cotgreave, 4 C. B. 562 (93 E. C. L. R.).

1 Powell v. Divett, 15 East 29; Mollet v. Wackerbarth, 5 C. B. 181 (94 E.
C. L. R.).

8 See Sanderson v. Symonds, 1 B. & B. 426 (5 E. C. L. R.).

3 Davidson v. Cooper, 11 M. & W. 778, 800; s. c, 13 M. & W. 343 ; Parry
v. Nicholson, 13 M. & W. 778 ; Mason v. Bradley, 11 M. & W. 590; Hemming
v. Trenery, 9 A. & E. 926 (36 E. C. L. R.) ; Calvert v. Baker, 4 M. & W. 407.

4 Crookewit v. Fletcher, 1 H. & N. 893.

6 An immaterial alteration, however, does not avoid the instrument, ante,
p. 154, n. 5.
6 Judgm., 1 H. & N. 912-3, recognising Davidson v. Cooper, supra. As to

RULES OF LOGIC. 156

"We may add, in connection with the subject here touched upon,
that, inasmuch as a deed cannot be altered, after it is executed,
without fraud or wrong, and the presumption is against fraud or
wrong, interlineations or erasures apparent on the face of a deed
will be presumed to have been made before its execution ; but, as a
testator may alter his will after execution without fraud or wrong,
the presumption is, that an alteration1 appearing on its *face, r*i c y-i
was, in the absence of evidence to the contrary, made sub-
sequent to its execution.2

There are, however, some things, for which, as Lord Coke ob-
serves, no reason can be given :3 and with reference to which the
words of the civil law holds true — non omnium quce d majoribus
constituta sunt ratio reddi potest ;4 and, therefore, we are compelled
to admit, that in the legal science, qui rationem in omnibus qucerunt
rationem subvertunt.5 It is, indeed, sometimes dangerous to stretch
the invention to find out legal reasons for what is undoubted law :
and this observation applies peculiarly to the mode of construing
an Act of Parliament, in order to ascertain and carry out the inten-
tion of the legislature : in so doing, the judges will bend and con-
form their legal reason to the words of the Act, and will rather
contrue them literally, than strain their meaning beyond the obvious
intention of Parliament.7 The spirit of the maxim prefixed to these
remarks, here, however, manifestly prevails ; for, as we read in the
Digest,8 non possunt omnes articuli singillatim aut legibus aut sena-
ttis-consultis comprehendi : sed cum in aliqud causd sententia eorum
manifesta est, is, qui jurisdictioni prceest, ad similia proeedere atque

the effect of an erasure in an affidavit, see Re Bingle, 15 C. B. 449 (80 E. C.
L. R.). As to altering a record, see Suker v. Neale, 1 Exch. 468.

1 There is, however, a " marked distinction" between an alteration and an
interlineation. In the goods of Cadge, L. R. 1 P. & D. 543.

2 Doe d. Tatum v. Catomore, 16 Q. B. 745 5 Doe d. Shallcross v. Palmer, Id.
747 ; In the goods of Hardy, 30 L. J. P. M. & A. 143.

8 Hix v. Gardiner, 2 Bulstr. 196 j cited arg. Leuckhart v. Cooper, 3 Bing.
N. C. 104 (32 E. C. L. R.).
«D. 1,3, 20. *2Rep. 75, a.

• Per Alderson, B., Ellis v. Griffith, 16 M. & W. 110.

7 T. Raym. 355, 356 ; per Lord Brougham, C, Leith v. Irvine, 1 My. & K#
289. As to the mode of construing Acts of Parliament, see further, post,
Chap. VIII. *

8 D. 1, 3, 12, and 13.

157 ~V5fc broom's legal maxims.

ita jus dicere debet. Nam, ut ait JPedius, quotiens lege aliquid
unum vel alterum introduction est, bona oecasio est, costera, qao3
r*l ^81 *tendunt ad eamdem utilitatem, vel interpretation, vel certe
jurisdictione suppleri.

Further, although it is laid down that the law is the perfection
of reason, and that it always intends to conform thereto, and that
what is not reason is not law, yet this must not be understood to
mean, that the particular reasons of every rule in the law can at
the present day be always precisely assigned : it is sufficient if
there be nothing in it flatly contradictory to reason, and then the
law will presume that the rule in question is well founded, multa in
jure communi, as Lord Coke observes, contra rationem disputandi,
pro communi utilitate introducta sunt1 — many things have been
introduced into the common law, with a view to the public good,
which are inconsistent with sound reason. Quod verb contra ratio-
nem juris receptum est, non est producendum ad consequentias?

The maxim cited from Lord Coke, is peculiarly applicable when
the reasonableness of an alleged custom has to be considered : in
such a case, it does not follow, from there being at this time no
apparent reason for such custom, that there never was.3 If, how-
ever, it be in tendency contrary to the public good, or injurious or
prejudicial to the many, and beneficial only to some particular per-
son, such custom is and must be repugnant to the law of reason, for
it could not have had a reasonable commencement.4
r*1 W\ * Again — A clerk who has held preferment in one bishop-
ric is not, on being presented to a living in another bishop-
ric, bound, as a condition precedent to his examination on the
question of fitness, to produce letters testimonial and commendatory
from his former bishop — if such a rule existed a door would thus
be opened to very arbitrary and capricious proceedings, rendering
the title of the clerk and the right of the patron dependent on the
will of the prior bishop — such a conclusion would be at variance

1 Co. Litt. 70 b. Multa autem jure civili contra rationem disputandi pro
utilitate communi recepta esse innumerabilibus rebus probari potest : D. 9, 2,
51, I 2.

2 D. 1, 3, 14.

3 Arg. Tyson v. Smith, in error, 9 A. & E. 406, 416.

4 Judgm., 9 A. & E. 421, 422 (36 E. C. L. R.)- See further as to the rea-
sonableness and validity of a custom, post, Chap. X.

RULES OF LOGIC. 159

with reason, and therefore repugnant to what is called " the policy
of the law."1

We may conclude these remarks, with calling to mind the well-
known saying : lex plus laudatur quando ratione probatur2 — then
is the law most worthy of approval, when it is consonant to reason ;
and with Lord Coke we may hold it to be generally true, "that the
law is unknown to him that knoweth not the reason thereof, and
that the known certainty of the law is the safety of all."3

Cessante Ratione Legis cessat ipsa Lex.

(Co. Litt. 70 b.)

Season is the soul of the law, and when the reason of any particular law
ceases, so does the law itself.4'

For instance, a Member of Parliament is privileged from arrest
during the session, in order that he may ^discharge his r*-ipn-i
public duties, and the trust reposed in him ; but the reason
of this privilege ceases at a certain time after the termination bf the
parliamentary session, because the public has then no longer an
immediate interest in the personal freedom of the individuals com-
posing the representative body, and cessante causd cessat effectus.5

Again, where trees are excepted out of a demise, the soil itself
is not excepted, but sufficient nutriment out of the land is reserved
to sustain the vegetative life of the trees, for, without that, the
trees which are excepted cannot subsist ; but if, in such a case, the
lessor fells the trees, or by the lessee's license grubs them up, then,
according to the above rule, the lessee shall have the soil.6 The

1 Bishop of Exeter to. Marshall, L. R. 3 H. L. 17, 54.

2 1 Inst. Epil., cited per Lord Kenyon, C. J., Porter v. Bradley, 3 T. R.
146 ; and Dalmer v. Barnard, 7 Id. 252 ; arg. Doe d. Cadogan v. Ewart, 7 A.
&E. 657 (34 E. C. L. R.).

3 1 Inst. Epil. " Certainty is the mother of repose, and therefore the com-
mon law aims at certainty ; " per Lord Hardwicke, C, 1 Dick. 245.

4 7 Rep. 69 ; per Willes, C. J., Davis v. Powell, Willes 46, cited arg., 8 C.
R. 786 (65 E. C. L. R.).

5 See arg. Cas. temp. Hardw. 32 ; Gowdy v. Duncombe, 1 Exch. 430.
6Liford's Case, 11 Rep. 49, cited Hewitt v. Isham, 7 Exch. 79, and post,

Chap. VI. s. 3.

160 broom's legal maxims.

same principle applies where a right exists of common pur cause de
vicinage: a right depending upon a general custom and usage,
which appears to have originated, not in any actual contract, but
in a tacit acquiescence of all parties for their mutual benefit. This
right does not, indeed, enable its possessor to put his cattle at once
on the neighboring waste, but only on the waste which is in the
manor where his own lands are situated ; and it seems that the right
of common vicinage should merely be considered as an excuse for
the trespass caused by the straying of the cattle, which excuse the
law allows by reason of the ancient usage, and in order to avoid
multiplicity of suits which might arise where there is no separation
or inclosure of adjacent commons.1

r*161 1 *But the parties possessing the respective rights of
common, may, if they so please, inclose against each other,
and, after having done so, the right of common pur cause de vicin-
age can no longer be pleaded as an excuse to an action of trespass
if the cattle stray, for cessante ratione legis cessat lex.2

A further illustration may be taken from the law of principal
and agent, in which it is an established rule,3 that where a contract
not under seal for the sale of goods is made by an agent in his own
name for an undisclosed principal, and on which therefore either
the agent or the principal may sue, the defendant as against the
latter is entitled to be placed in the same situation at the time of
the disclosure of the real principal, as if the agent dealing in his
own name had been in reality the principal : and this rule is to pre-
vent the hardship under which a purchaser would labor, if, after
having been induced by peculiar considerations, — such, for instance,
as the consciousness of possessing a set-off, — to deal with one man,
he could be turned over and made liable to another, to whom those
considerations would not apply, and with whom he would not will-
ingly have contracted. Where, however, the party contracting
either knew, had the means of knowing, or must, from the circum-

1 Jones v. Robin, 10 Q. B. 581, 620 (59 E. C. L. R.). See also Clarke v.
Tinker, Id. 604 ; Prichard v. Powell, Id. 589.

2 4 Rep. 38 ; Co. Litt. 122 a ; Finch's Law 8 ; per Powell, J., Broomfield v.
Kirber, 11 Mod. 72; Gullett v. Lopes, 13 East 348 ; Judgm., Wells v. Pearcy,
1 Bing. N. C. 556, 566 (27 E. C. L. R.) ; Heath v. Elliott, 4 Bing. N. C. 388
(33 E. C. L. R.).

3 Sims v. Bond, 5 B. & Ad. 393 (27 E. C. L. R.).

BULES OF LOGIC. 161

stances of the case, be presumed to have known, that he was deal-
ing not with a principal but with an agent, the reason of the above
rule ceases, and there the right of set-off cannot be maintained.1

*As regards the consent of parents to the marriage of r*i£o-i
their minor children, the Judge Ordinary recently observed2
that "any analogy which existed between marriages by banns and
marriages by notice to the registrar has been effaced — the attempt
at securing that consent in marriages of the latter class by pub-
licity relinquished— and the procurement of actual consent sub-
stituted in the same manner as had always been used in marriages
by license. There is no reason, therefore, why those decisions
which have hitherto only been applied to marriages by banns, and
which have their foundation in the necessity for securing that pub-
licity through which it is the object of banns to reach the parents'
consent, should be applied to marriages in which that consent is
otherwise attained and secured, cessante ratione cessat et lex."

The law, proceeding on principles of public policy, has wisely
said, that, where a case amounts to felony, the party injured shall
not at once recover against the felon in a civil action; and this rule
has been laid down and acted upon in order to secure the punish-
ment of offenders; after the trial, however, and after the prisoner
has been either acquitted or convicted, the case no longer falls
within the reason on which the rule is founded, and then an action
for the civil injury resulting from the wrongful act is maintainable.3

The science of pleading, also, will be found to present many apt
illustrations of the axiom under consideration; *ex. gr., r*i£Q"i
the general rule respecting the allegation of title in plead-
ing is, that it is not necessary to allege title more precisely than is
sufficient to show a liability in the party charged, or to defeat his
present claim ; and, except so far as these objects may require, a
party is not compellable to show the precise estate which his adver-
sary holds, even in a case where, if the same person were pleading

1 Broom's Com., 4th ed., 539.

2 Holmes v. Simmons, L. R. 1 P. & D. 528.

3 Stone v. Marsh, 6 B. & C. 557, 564 (13 E. C. L. R.) ; Wellock v. Constan-
tine, 2 H. & C. 146 5 per Buller, J., 4 T. R. 332. See White v. Spettigue, 13
M. & W. 603; Lee v. Bayes, 18 C. B. 599 (86 E. C. L. R.). See another
instance of the application of this maxim, per Lord Ellenborough, C. J., Rich-
ards v. Heather, 1 B. & Aid. 33.

163 broom's legal maxims.

his own title, such precise allegation would be necessary ; and the
reason of this difference is, that a party must be presumed to be
ignorant of his adversary's title, though he is bound to know his

De non apparentibus et non existentibus eadem est Ratio.

(5 Rep. 6.)

Where the Court cannot take judicial notice of a fact, it is the same as if the

fact had not existed.2

The above " old and well-established maxim in legal proceed-
ings," which " is founded on principles of justice as well as of law,"3
applies where reliance is placed by a party on deeds or writings
which are not produced in court, and the loss of which cannot be
accounted for or supplied in the manner which the law has pre-
scribed, in which case they are to be treated precisely as if non-
existent.4 So, on error brought for error in law, the Court will
not look out of the record ;5 and, on a special verdict they will
r*1fi41 neither assume a fact not stated *therein, nor draw infer-
ences of facts necessary for the determination of the case
from other statements contained therein.6

In reading an affidavit also, the Court will look solely at the
facts deposed to, and will not presume the existence of additional
facts or circumstances in order to support the allegations contained
in it. To the above, therefore, and similar cases, occurring not
only in civil, but also in criminal proceedings, the maxim quod non
apparet non est7 — that which does not appear must be taken in law
as if it were not8 — is emphatically applicable.9

1 See Judgm., Heap v. Livingston, 11 M. & W. 900.

2 See per Buller, J., R. v. Bishop of Chester, 1 T. R. 404, "That which does
not appear will not be presumed to exist," arg. 5 C. B. 53 ; per Cockburn,
C. J., Reg. v. Overseers of Walcot, 2 B. & S. 560 (110 E. C. L. R.).

3 See 12 Howard (U. S.) R. 253. 4 Bell's Diet, of Scotch Law 287.

5 Steph. Plead., 6th ed., 113.

6 Tancred v. Christy, 12 M. & W. 316 ; Caudrey's Case, 5 Rep. 5; ante, p.
103.

7 2 Inst. 479 ; Jenk. Cent. 207. 8 Vaugh. R. 169.

9 The matter of an indictment ought to be full, express, and certain, and to
import all the truth which is necessary by law : 4 Rep. 44, 47.

RULES OF LOGIC. 164

In an action by two commissioners of taxes1 on a bond against
the surety of a tax-collector, appointed under the provisions of the
stat. 43 Geo. 3, c. 99, it appeared, that the Act contained a proviso
that no such bond should be put in suit against the surety for any
deficiency, other than what should remain unsatisfied after sale of
the lands, tenements, &c, of such collector, in pursuance of the
powers given to the commissioners by the Act ; it further appeared
that, at the time when the said bond was put in suit, the obligor
had lands, &c, within the jurisdiction of the plaintiffs, but of which
they had no notice or knowledge : it was held, that seizure and sale
of lands and other property of the collector, of the existence of
which the commissioners had no notice or knowledge, was not a
condition precedent to their right to proceed against the surety ;
this conclusion resulting, as was *observed, from the plain r*-|f»ci
and sound principle contained in the above maxim.2

So, where a notice of dishonor of a bill of exchange describes
the bill generally as "Your draft on A. B.," the Court held, on
motion for a nonsuit, that, if there were other bills or drafts to
which the notice could refer, it was for the defendant to show such
to be the fact; and as he had not done so, that the above maxim
must be held to apply; for, inasmuch as it did not appear that there
were other bills or notes, the Court could not presume that there
were any.3

Again, the increase per alluvionem is described to be when the
sea, by casting up sand and earth by degrees, increases the land,
and shuts itself within its previous limits.4 In general, the land
thus gained belongs to the Crown, as having been a part of the very
fundus maris; but if such alluvion be formed so imperceptibly and
insensibly, that it cannot by any means be ascertained that the sea
ever was there — idem est non esse et non apparere, and the land
thus formed belongs as a perquisite to the owner of the land adja-
cent.5

1 Gwynne v. Burnell, 6 Bing. N. C. 453 (37 E. C. L. R.) ; s. c, 1 Scott N.
R. 711; 7 CI. & Fin. 572.

2 Per Vaughan, J., 6 Bing. N. C. 539 (37 E. C. L. R.) ; s. c, 1 Scott N. R.
798. See arg. Mather v. Thomas, 10 Bing. 47.

3 Shelton v. Braithwaite, 7 M. & W. 436 ; Bromage v. Vaughan, 9 Q. B.
608 (58 E. C. L. R.) ; Mellersh v. Rippen, 7 Exch. 578.

4 See Gifford v. Lord Yarborough, 5 Bing. 163 (15 E. C. L. R.).

5 Hale, De Jure Maris, pt. 1, c. 4, p. 14 ; R. v. Lord Yarborough, 3 B. & C.

9

165 broom's legal maxims.

Lastly, it has been suggested1 that "there is a distinction between
process of superior and inferior courts; in the former, omnia prce-
r*1661 sumuntur r^te esse act®,2 in *the latter the rule de non
apparentibus et non existentibus eadem est ratio applies."

Non potest adduci Exceptio ejusdem Kei cujus petitur Dis-

SOLUTIO.

(Bac. Max. reg. 2.)

A matter, the validity of which is at issue in legal proceedings, cannot be set
up as a bar thereto.

The above maxim, which is in strict accordance with logical
reasoning, may be thus more generally expressed — where the
legality of some proceeding is the subject-matter in dispute between
two parties, he who maintains its legality, and seeks to take advan-
tage of it, cannot rely upon the proceeding itself as a bar to the
adverse party ; for otherwise the person aggrieved would be clearly
without redress. "It were impertinent and contrary in itself,"
says Lord Bacon, "for the law to allow of a plea in bar of such
matter as is to be defeated by the same suit, for it is included; and
otherwise a man could never arrive at the end and effect of his
suit."3

A few instances will be sufficient to show the application of this
rule. Thus, if a man be attainted and executed, and the heir bring
error upon the attainder, it would be bad to plead corruption of
blood by the same attainder; for otherwise the heir would be
without remedy ever to reverse the attainder.4 In like manner,
although a person attainted cannot be permitted to sue for any civil

97, 106 (10 E. C. L. R.) ; s. c, 1 Dow N. S. 178. This right has also been
referred to the principle, de minimis non curat lex, arg. 3 B. & C. 99 (10 E. C.
L. R.).

1 Arg. Kinning v. Buchanan, 8 C. B. 286 (65 E. C. L. R.) ; ante, p. 96.

2 Post, Chap. X.

s Bac. Max. reg. 2. Pusey v. Desbouvrie, 3 P. Wms. 317.

4 Bac. Max. reg. 2. See 4 Bla. Com., 21st ed., 392 ; Loukes v. Holbeach, 4
Bing. 420, 423 (13 E. C. L. R.), cited and commented on, Byrne v. Manning,
2 Dowl. N. S. 403.

RULES OF LOGIC. 166

right in a court of law, yet he may take proceedings, *and

will be heard for the purpose of reversing his attainder.1 *- -*

On the same principle, in a court of equity, although a party in
contempt is not generally entitled to take any proceeding in the
cause, he will nevertheless be heard if his object be to get rid of the
order or other proceeding which placed him in contempt, and he is
also entitled to be heard for the purpose of resisting or setting
aside for irregularity any proceedings subsequent to his contempt.2
And where a man does not appear on a vicious proceeding, he is
not to be held to have waived that very objection which is a legiti-
mate cause of his non-appearance.3

Where the judge of an inferior court had illegally compelled a
plaintiff who appeared to be nonsuited, and upon a bill of exceptions
being brought, the nonsuit was entered on the record, the defendant
was not allowed to contend that the entry on record precluded the
plaintiff from showing that he had refused to consent to the non-
suit, for that would have been setting up as a defence the thing
itself, which was the subject of complaint, — a course prohibited by
the above maxim.4 So, where a writ of error is brought, the
judgment or opinion of the court below cannot, with propriety, be
cited as an authority on the argument, because such judgment and

opinion are *then under review.5 The Courts at West-

• T*1681

minster, it has been said,6 rightly abstain from over-ruling L J

cases which have been long established, because if they did so, they

would only disturb without finally settling the law. But when an

appeal from any of their judgments is made to the House of Lords,

however they may be warranted by previous authorities, the very

1 See 1 Taunt. 84, 93.

The same principle applies in the case of proceedings to reverse outlawry.
Jenk. Cent. 106 ; Finch's Law 46 ; Matthews v. Gibson, 8 East 527 ; Craig r.
Levy, 1 Exch. 570.

2 Per Lord Cottenham, C, Chuck v. Cremer, 1 Coop. 205 ; King v. Bryant,
3 My. & Cr. 191. See 1 Daniell's Ch. Pr. 3d ed., 354 et seq.

3 Per Knight Bruce, V.-C, 15 L. J. (Bankruptcy) 7.

4 Strother v. Hutchinson, 4 Bing. N. C. 83, 90 ; cited arg. Penny v. Slade, 5
Bing. N. C. 327 (35 E. C. L. R.) ; commented on and distinguished in Corsar
v. Reed, 17 Q. B. 540 (79 E. C. L. R.).

6 See per Alexander, C. B., R. v. Westwood, 7 Bing. 83 (20 E. C. L. R.) ;
per North, C. J., Barnardiston v. Soane, 6 St. Tr. 1094. See also, in further
illustration of the above maxim, Masters v. Lewis, 1 Lord Raym. 57.

6 Per Lord Chelmsford, 11 H. L. Cas. 510, et vide opinion of judges, Id. 477.

168 broom's legal maxims.

object of the appeal being to bring those authorities under review
for final determination, the House cannot upon the principle of
stare decisis1 refuse to examine the foundation upon which they rest.
The principal maxim seems also to apply, when the matter of the
plea is not to be avoided in the same but in a different suit: and,
therefore, if a writ of error be brought to reverse an outlawry in
any action, outlawry in another action shall not bar the plaintiff in
error; for otherwise, if the outlawry was erroneous, it could never
be reversed;2 the general rule, however, being that an outlaw
cannot enforce any proceeding for his own benefit.3

[*169] *Allegans contraria non est audiendus.

(Jenk. Cent. 16.)
He is not to be heard who alleges things contradictory to each other.

The above, which is obviously an elementary rule of logic, and
is not unfrequently applied in our courts of justice, will receive
occasional illustration in the course of this work.4 We may for the
present observe that it expresses, in technical language, the trite
saying of Lord Kenyon, that a man shall not be permitted to "blow
hot and cold" with reference to the same transaction, or insist, at
different times, on the truth of each of two conflicting allegations,
according to the promptings of his private interest.5

1 Ante, p. 147.

2 Jenk. Cent. 37 ; Gilb. For. Rom. 54. See Bac. Max. reg. 2.

3 Per Parke, B., Reg. v. Lowe, 8 Exch. 698. See Re Pyne, 5 C. B. 407
(57 E. C. L. R.) ; Davis v. Trevanion, 2 D. & L. 743 ; Walker v. Thelluson,
1 Dowl. N. S. 578.

4 See particularly cases bearing upon the doctrine of estoppel in pais, which
are collected under the maxim, Nullus commodum capere potest de injuria
sua propria, post, Chap. V.

5 See Wood v. Dwarris, 11 Exch. 493 ; Andrews v. Elliott, 5 E. & B. 502 (85
E. C. L. R.) ; Tyerman v. Smith, 6 E. & B. 719 (88 E. C. L. R.) ; Morgan v.
Couchman, 14 C. B. 100 (78 E. C. L. R.) ; Humblestone v. Welham, 5 C. B.
195 (57 E. C. L. R.) ; Williams v. Thomas, 4 Exch. 479; Taylor v. Best, 14 C.
& B. 487 (78 E. C. L. R.) ; Reg. v. Evans, 3 E. & B. 363 (77 E. C. L. R.) ; Wil-
liams v. Lewis, 7 E. & B. 929 (90 E. C. L. R.) ; General Steam Navigation Co.
v. Slipper. 11 C. B. N. S. 493 (103 E. C. L. R.) ; Elkin v. Baker, Id. 526, 543;

RULES OF LOGIC. 169

In Cave v. Mills,1 the maxim under notice was by the majority of
the Court of Exchequer held applicable. There the plaintiff was
surveyor to the trustees of certain turnpike roads ; as such sur-
veyor it was his duty to make all contracts, and to pay the amounts
due for labor and '"materials required for the repair of the
roads, he being authorized to draw on the treasurer to a ^ J
certain amount. His expenditure, however, was not strictly limited
to that amount, and in the yearly accounts presented by him to the
trustees a balance was generally claimed as due to him, and was
carried to the next year's account. Accounts were thus rendered
by the plaintiff for three consecutive years showing certain balances
due to himself. These accounts were audited, examined, and allowed
by the trustees at their annual meeting, and a statement based on
them of the revenue and expenditure of the trust was published as
required by stat. 3 Geo. 4, c. 126, s. 78. The trustees, moreover,
believing the accounts to be correct, paid off with moneys in hand a
portion of their mortgage debt. The plaintiff afterwards claimed
a larger sum in respect of payments which had in fact been made
by him, and which he ought to have brought into the accounts of
the above years, but had knowingly omitted. It was held that the
plaintiff was estopped from recovering the sums thus omitted, for
"a man shall not be allowed to blow hot and cold — to affirm at one
time and deny at another — making a claim on those whom he has
deluded to their disadvantage, and founding that claim on the very
matters of the delusion. Such a principle has its basis in common
sense and common justice, and whether it is called ' estoppel,' or by
any other name, it is one which courts of law have in modern times
most usefully adopted."

So where a vendor has recognised the right of his vendee to dis-
pose of goods remaining in the actual possession of the vendor, he
cannot defeat the right of a person claiming under the vendee on

Green v. Sichel, 7 C. B. N. S. 747 (97 E. C. L. R.) ; Pearson v. Dawson, E., F.
& E. 448 (96 E. C. L. R.) ; Haines v. East India Co., 11 Moo. P. C. C. 39;
Smith v. Hodson, 4 T. R. 211, 217 ; Brewer v. Sparrow, 7 B. & C. 310 (14 E.
C. L. R.) ; Lythgoe v. Vernon, 4 H. & N. 180.

A man is not entitled to stand by and allow proceedings to go on against
him to judgment, and then to ask the Court to interfere on his behalf on the
ground that his name was misspelt.. Judgm., Churchill v. Churchill, L. R. 1
P. & D. 486.

1 7 H. & N. 913. See Van Hasselt v. Sack, 13 Moo. P. C. C. 185.

170 broom's legal maxims.

the ground that no property passed to the latter by reason of the
r*1711 want of *a specific appropriation of the goods.1 Nor can
an individual who has procured an act to be done sue as one
of several co-plaintiffs for the doing of that very act.2 Where a
party accepts costs under a judge's order, which, but for such order,
would not at that time be payable, he cannot afterwards object that
the order was made without jurisdiction.3 And if A. agrees with
B. to pay him so much per ton for manufacturing and selling a sub-
stance invented and patented by B., it is not competent to A.,
having used the invention by B.'s permission, to plead in answer to
an action for moneys due in respect of such use that the patent was
void and the license given superfluous.4 A person cannot act
under an agreement and at the same time repudiate it.5

Again, "where a person is charged as a member of a partnership,
not because he is a member, but because he has represented himself
as such, the law proceeds on the principle, that if a person so con-
duct himself as to lead another to imagine that he fills a particular
situation, it would be unjust to enable him to turn round and say
that he did not fill that situation. If, therefore, he appears to the
world — or as the common and more correct expression is, if he
r*i79"i aPPears to tne party who is seeking to *charge him — to
be a partner, and has represented himself as such, he is
not allowed afterwards to say that that representation was incorrect,
and that he was not a partner."6 So a person cannot in the same
transaction buy in the character of principal, and at the same time
charge the seller for commission as his agent.7 And a person acting
professedly as agent for another, may be estopped from saying that

1 Woodley v. Coventry, 2 H. & C. 164.

2 Brandon v. Scott, 7E.&B. 234 (90 E. C. L. R.).

3 Tinkler v. Hilder, 4 Exch. 187. See Wilcox v. Odden, 15 C. B. N. S. 837
(109 E. C. L. R.) ; Freeman, app., Read, resp., 9 C. B. N. S. 301 (99 E. C. L.
R.).

A party who attends before an arbitrator under protest, cross-examines his
adversary's witnesses, and calls witnesses on his own behalf, does not thereby
preclude himself from afterwards objecting that the arbitrator was proceeding
without authority : Ringland v. Lowndes, 18 C. B. N. S. 514 (114 E. C. L. R.).

4 Lawes v. Purser, 6 E. & B. 930 (88 E. C. L. R.). See Harrup v. Bailey,
6 E. &. B. 218, cited under the maxim, volenti non Jit injuria, post, Chap. V.

5 Crossley v. Dixon, 10 H. L. Cas. 293, 310.

6 Per Rolfe, B., Ness v. Angas, 3 Exch. 813.

RULES OF LOGIC. 172

he was not such agent.1 Also it seems a true proposition that
"where parties have agreed to act upon an assumed state of facts,
their rights between themselves depend on the conventional state of
facts, and not on the truth,'2 and it is not competent to either
party afterwards to deny the truth of such statement.3

So, where rent accruing due subsequently to the expiration of a
notice to quit, is paid by the tenant and accepted by the landlord,
that is an act of the parties which evidences an intention that the
tenancy should be considered as still subsisting. So, if there be a
distress, the distrainor affirms by a solemn act that a tenancy sub-
sists; and it is not competent to him afterwards to deny it.*

In like manner, the maxim under consideration applies, in many
cases, to prevent the assertion of titles inconsistent with each other,
and which cannot coternporaneously take effect.5 And it is laid
down that "a person *who has a power of appointment,
if he chooses to create an estate or a charge upon his es- *- J
tate, by a voluntary act, cannot afterwards use the power for the
purpose of defeating that voluntary act;'* and if a bond be given
to the Crown under the stat. 33 Hen. 8, c. 39, binding all lands
over which he has at the time of executing the bond a disposing
power, the giving such bond is to be deemed a voluntary act on
the part of the obligor, so that he cannot by afterwards exercising
the power, defeat the right of the Crown.6

The maxim applies also in cases of estoppel,7 and whenever the

1 Rogers v. Hadley, 2 H. & C. 227. 2 Blackb. Contr. Sale 163.

3 M'Cance v. London and North Western R. C, 3 H. & C. 343.

* Per Maule, J., Blyth v. Dennett, 13 C. B. 181 ; per Crompton, J., Ward v.
Day, 4 B. & S. 353 (116 E. C. L. R.) ; s. c, affirmed in error, 5 B. & S. 359
(117 E. C. L. R.)^ and see per Lord Brougham, C, Clayton v. A.-G., 1 Coop.
(Rep. temp. Cottenham) 124.

6 1 Swanst. 427, note.

« Reg. v. tfllis, 4 Exch. 652, 661 ; s. c. affirmed in error, 6 Exch. 921.

7 Some of which are considered, post, Chap. V. For instance, the owner
of land cannot treat the occupier as tenant and trespasser at one and the
same time.

As to the estoppel on acceptor of bill of exchange, Ashpitel v. Bryan, 5
B. & S. 723 (117 E. C. L. R.) ; Morris v. Bethell, L. R. 5 C. P. 47 ; Phillips v.
Im Thurn, L. R. 1 C. P. 463, 18 C. B. N. S. 694 (114 E. C. L. R.).

The reason why in the case of a partnership a party is bound by an accept-
ance which is not his own, but that of his co-partner, is founded on the law
of estoppel in pais ; having consented to the exercise by another of an appa-

173 broom's legal maxims.

equitable doctrine of election is called into requisition, to prevent
a person from repudiating the onerous, whilst he accepts the bene-
T*1741 ^Gl3^> conditions attaching to the subject-matter of the
legacy or devise.1 So, *if a stranger begins to build on
land, supposing it to be his own, and the real owner, perceiving his
mistake, abstains from setting him right, and leaves him to perse-
vere in his error, a Court of Equity will not afterwards assist the
real owner asserting his title to the land.2

Lastly, where a witness in a court of justice makes contradictory
statements relative to the same transaction, the rule applicable in
determining the degree of credibility to which he may be entitled
obviously is, allegans contraria non est audiendus.3

Omne majus continet in se minus.

(5 Rep. 115.)

The greater contains the less.*

On this principle, if a man tender more than he ought to pay, it
is good ; and the other party ought to accept so much of the sum

rent authority to accept bills so as to bind him (even though such authority
has been fraudulently exercised) as against a person who has taken the bill
bond fide and without notice of the fraud, the acceptor is estopped from deny-
ing the acceptance, per Willes, J., 18 C. B. N. S. 432-3 (114 E. C. L. R.).

The estoppel against a bailee from disputing the title of his bailor, and
setting up a jus tertii, ceases when the bailment on which the estoppel is
founded is determined by what is equivalent to an eviction by title para-
mount: Biddle v. Bond, 6 B. & S. 225 (118 E. C. L. R.). A mere wrongdoer
may be estopped from setting up a jus tertii, Bourne v. Fosbrooke, 18 C. B.
N. S. 515 (114E. C. L. R.).

See also in further illustration of the above maxim, Doe d. Hudson v.
Leeds and Bradford R. C, 16 Q. B. 796 (71 E. C. L. R.).

1 As instances of this doctrine, see Talbot v. Earl of Radnor, 3 My. & K.
252 ; Messenger v. Andrews, 4 Russ. 478. On the same ground rests the
Scotch doctrine of " approbate and reprobate," as to which see Kerr v. Wau-
chope, 1 Bligh 121.

2 Ramsden v. Dyson, L. R. 1 H. L. 129, 141, 168.

8 See 17 & 18 Vict. c. 125, s. 22 ; 28 & 29 Vict. c. 18, s. 3.
4 Finch Law 21 ; D. 50. 17. 113. 110, pr.

RULES OF LOGIC. 174

tendered as is due to him.1 But a tender by a debtor of a bank-
note of a larger amount than the sum due, and out of which he
requires change, is not a good tender, for the creditor may be unable
to take what is due and return the difference ;2 though if the cred-
itor knows the amount due to him, and is offered *a larger r*-i >rc-i
sum, and, without any objection on the ground of change,
makes quite a collateral objection, that will be a good tender.3
Where, however, a party has separate demands for unequal sums
against several persons, an offer of one sum for the debts of all,
not distinguishing the claims against each, is not a valid tender,
and will not support a plea by one of the debtors, that his debt was
tendered.4

The above maxim admits, moreover, of familiar and obvious illus-
tration in the power which tenant in fee-simple possesses over the
estate held in fee ; for he may either grant to another the whole of
such estate, or charge it in any manner he thinks fit, or he may
create out of it any less estate or interest ; and to the estate or
interest thus granted he may annex such conditions, provided they
be not repugnant to the rules of law, as he pleases.5 In like
manner, a man having a power may do less than such power
enables him to do ; he may, for instance, lease for fourteen years,

1 3d Resolution in Wade's Case, 5 Rep. 115 ; cited arg. Rivers v. Griffiths, 5
B. & Aid. 631 (7 E. C. L. R.), and recognised Dean v. James, 4 B. & Ad.
546 (24 E. C. L. R.) ; Astley v. Reynolds, 2 Stra. 916 ; Wing. Max. p. 208.

A demand of a larger sum than is due may be good as a demand of the
lesser sum : Carr v. Martinson, 1 E. & E. 456 (102 E. C. L. R.).

See, as another instance of the maxim supra, Rylands v. Kreitman, 19 C.
B. N. S. 351 (99 E. C. L. R.).

2 Betterbee v. Davis, 3 Camp. 70, cited 4 B. & Ad. 548 (24 E. C. L. R.) ;
Robinson v. Cook, 6 Taunt. 336 (1 E. C. L. R.) ; Blow v. Russell, 1 C. & P.
365 (12 E. C. L. R.).

3 Per Lord Abinger, C. B., Bevans v. Rees, 5 M. & W. 308 ; Black v.
Smith, Peake N. P. C. 88 ; Saunders v. Graham, Gow R. 121 (5 E. C. L. R.) ;
Douglas v. Patrick, 3 T. R. 683. See Hardingham v. Allen, 5 C. B. 793 (57
E. C. L. R.) ; Ex parte Danks, 2 De G., M. & G. 936.

4 Strong v. Harvey, 3 Bing. 304 (11 E. C. L. R.). See also Douglas v.
Patrick, supra. Tender of part of an entire debt is a bad tender : Dixon v.
Clark, 5 C. B. 365 (57 E. C. L. R.) ; Searles v. Sadgrave, 5 E. & B. 539 (85
E. C. L. R.). Nor is a tender qualified or clogged with a condition good :
Finch v. Miller, 5 C. B. 428 (57 E. C. L. R.) ; Bowen v. Owen, 11 Q. B. 130
(63 E. C. L. R.).

6 1 Prest. Abstr. Tit. 316, 377.

175 -\v° broom's legal maxims.

under a power to lease for twenty-one years ;x or, if he have a
licence or authority to do any number of acts for his own benefit, he
r*i 7«-| may d° some of them and need not do all.2 In these *cases,
the rule of the civil law applies — Non debet cut plus licet
quod minus est non lieere ;3 or, as it is usually found expressed in our
books, cui licet quod majus non debet quod minus est non licerc* —
he who has authority to do the more important act shall not be
debarred from doing that of less importance ; a doctrine founded on
common sense, and of very general importance and application,
not only with reference to the law of real property, but to that
likewise of principal and agent, as we shall hereafter see. On this
principle, moreover, if there be a custom within any manor that
copyhold lands may be granted in fee-simple, by the same custom
they are gran table to one and the heirs of his body for life, for
years, or in tail.5 So, if there be a custom that copyhold lands
may be granted for life, by the same custom they may be granted
durante viduitate, but not e converso, because an estate during
widowhood is less than an estate for life.6

The doctrine of merger may also be specified in illustration of
the maxim now before us, for " when a less estate and a greater
estate, limited subsequent to it, coincide and meet in one and the
same person without any intermediate estate, the less is immedi-
ately annihilated; or in the law phraseology is said to be merged,
that is, sunk or drowned in the greater ; or to express the same
thing in other words, the greater estate is accelerated so as to be-
come at once an estate in possession."7

P^-h,-. ^Further, it is laid down as generally true, that, where

more is done than ought to be done, that portion for which

there was authority shall stand, and the act shall be void quoad the

1 Isherwood v. Oldknow, 3 M. & S. 382. See an instance of syllogistic rea-
soning founded on the above maxim : Johnstone v. Sutton, in error 1 T. R.
519.

2 Per Lord Ellenborough, C. J., Isherwood v. Oldknow, 3 M. & S. 392.

3 D. 50, 17, 21.

4 4 Rep. 23 ; also majus dignum trahit ad se minus dignum ; Co. Litt. 355
b ; 2 Inst. 307 ; Noy Max. 9th ed. p. 26 ; Finch Law 22.

6 4 Rep. 23 ; Wing. Max. p. 206.

6 Co. Copyholder, s. 33 ; Noy Max. 9th ed. p. 25. See another example, 9
Rep. 48.

' 2 Com. by Broom & Hadley 326-7.

RULES OF LOGIC. 177

excess only,1 quando plus Jit quam fieri debet, videtur etiam Mud
fieri quod faciendum est :2 as in the instance of a power above re-
ferred to, if a man do more than he is authorized to do under the
power, it shall be good to the extent of his power. Thus, if he have
power to lease for ten years, and he lease for twenty years, the lease
for the twenty years shall in equity be good for ten years of the
twenty.3

So. if the grantor of land is entitled to certain shares only of
the land granted ; and if the grant import to pass more shares than
the grantor has, it will nevertheless pass those shares of which he
is the owner.4 Where also there is a custom that a man shall not
devise any greater estate than for life, a devise in fee will be a good
devise for life, if the devisee will claim it as such.5

Lastly, in criminal law, the principle above exemplified sometimes
applies, ex. gr., on an indictment charging a misdemeanor the jury
may find the prisoner guilty of any lesser misdemeanor which is
necessarily included in the offence as charged.6

*Quod ab Initio non valet in Tractu Temporis r*-|7o-i

NON CONVALESCIT.

(Noy, Max. 9th ed., p. 16.)

That which was originally void, does not by lapse of time become valid.

The above rule is one of very general importance in practice, in
pleading, and in the application of legal principles to the occurrences
of life.7 And, accordingly, in that part of the Digest entitled " Be
Regulis Juris" we find it laid down in these words — Quod initio
vitiosum est non potest tractu temporis convalescere.8

1 Noy, Max. 9th ed. p. 25. 2 5 Rep. 1 15.

3 See Bartlett v. Rendle, 3 M. & S. 99 ; Doe d. Williams v. Matthews, 5 B.
& Ad. 298 (27 E. C. L. R.).

4 3 Prest. Abstr. Tit. 35. 6 Gr. & Rud. of Law, p. 242.

6 Reg. v. Taylor, L. R. 1 C. C. 194, 196. See Reg. v. Hodgkiss, Id. 212.

7 See instances of the application of this rule in the case of marriage with
a deceased wife's sister, Fenton v. Livingstone, 3 Macq. Sc. App. Cas. 497,
555; of the surrender of a copyhold, Doe d. Tofield v. Tofield, 11 East 246;
of a parish certificate, R. v. Upton Gray, 10 B. & C. 807 (21 E. C. L. R.) ; R.
v. Whitchurch, 7 B. & C. 573 (14 E. C. L. R.) ; of an order of removal, R. v.
Chilverscoton, 8 T. R. 178.

8 D. 50, 17, 29, 210.

178 broom's legal maxims.

Instances in which the above rule applies will be found to occur
in various parts of this work, particularly in that which treats of
the law of contracts. The following cases have here been selected,
in order to give a general view of its application in diiferent and
distinct branches of the law.

If a bishop makes a lease of lands for four lives, which is con-
trary to the stat. 13 Eliz. c. 10, s. 3, and one of the lives falls in,
and then the bishop dies, yet this lease will not bind his successor,
for those things which have a bad beginning cannot be brought
to a good end.1 So, if a man seised of lands in fee make a lease
for twenty-one years, rendering rent to begin presently, and the
same day he make a lease to another for the like term, the
l"*1 791 *second lease is void ; and if the first lessee surrender his
term to the lessor, or commit any act of forfeiture of his
lease, the second lessee shall not have his term, because the
lessor at the making of the second lease had nothing in him but the
reversion.2

Again, in the case of a lease for years, there is a distinction be-
tween a clause by which, on a breach of covenant, the lease is made
absolutely void, and a clause which' merely gives the lessor power to
re-enter. In the former case, if the lessor make a legal demand of
the rent, and the lessee neglect or refuse to pay, or if the lessee be
guilty of any breach of the condition of re-entry, the lease is void
and absolutely determined, and cannot be set up again by accept-
ance of rent due after the breach of the condition, or by any other
act ; but if, on the other hand, the clause be, that for non-payment
of the rent it shall be lawful for the lessor to re-enter, the lease is
only voidable, and may be affirmed by acceptance of rent accrued
afterwards, or other act, provided the lessor had notice of the breach
of condition at the time ; and it is undoubted law, that, though an
acceptance of rent or other act of waiver may make a voidable lease
good, it cannot make valid a deed,3 or a lease which was void ab
initio.41

Where a remainder is limited to A., the son of B., he having no

1 Noy, Max. 9th ed., p. 16. See Doc d. Brammall v. Collinge, 7 C. B. 939
(62 E. C. L. R.) ; Doe d. Pennington v. Taniere, 12 Q. B. 998 (64 E. C. L. R.).

2 Smith v. Stapleton, Plowd. 432; Noy, Max., 9th ed., p. 16.

3 See De Montmorency v. Devereaux, 7 CI. & Fin. 188.

4 Doe d. Bryan v. Banks, 4 B. & Aid. 401 (6 E. C. L. R.) ; Co. Litt. 215 a;
Jones v. Carter, 15 M. & W. 719.

RULES OF LOGIC. 179

such son, and afterwards a son is born to him, whose name is A.,
during the continuance of the particular estate, he will not take by
this remainder.1

*So, where uses are raised by a deed which is itself void, r*-|on-|
as in the instance of the conveyance of a freehold infuturo,
the uses mentioned in the deed cannot arise.2 When the estate to
which a warranty is annexed is defeated, the warranty is also de-
feated ;3 and when a spiritual corporation to which a church is ap-
propriate is dissolved, the church is disappropriated.4

In the ordinary case, also, of a will void by reason of its not
being duly attested according to the provisions of the statute, or on
account of the coverture of the testatrix at the time of making the
will, all the dispositions and limitations of property contained
therein are also necessarily void, nor can the original defect in the
instrument be cured by lapse of time.5

In the above and similar cases, accordingly, the maxim applies,
debile fundamentum fallit opus6 — where the foundation fails all goes
to the ground.

So, where a living becomes vacant by resignation or canonical
deprivation, or if a clerk presented be refused for insufficiency,
these being matters of which the bishop alone is presumed to be
cognisant, the law requires him to give notice thereof to the patron ;7
otherwise he can take no advantage by way of lapse ; neither in
this case shall any lapse accrue to the metropolitan or to the
Crown, for the first step or beginning fails — quod non habet prin-
eipium *non habet finem,8 it being universally true, that r*-in-i-i
neither the archbishop nor the Crown shall ever present by
lapse, but where the immediate ordinary might have collated by
lapse within the six months, and has exceeded his time.9

1 Noy, Max., 9th ed.f p. 17 ; 2 Com. by Broom & Hadley 320-1.

2 Arg. Goodtitle v. Gibbs, 5 B. & C. 714 (10 E. C. L. R.).

8 Litt. s. 741, and Butler's note, (1); Co. Litt. 389 a; but this may with
more propriety be referred to the maxim, sublato principali tollitur adjunc-
tum. lb.

4 Noy, Max., 9th ed., p. 20.

6 Gr. & Rud. of Law and Equity, p. 289; Noy, Max., 9th ed., p. 15.

6 Noy, Max., 9th ed., p. 20; per Blackburn, J., Mersey Docks Trustees v.
Gibbs, L. R. 1 H. L. 116.

7 See Bishop of Exeter v. Marshall, L. R. 3 H. L. 17.

8 Wing. Max., p. 79; Co. Litt. 345 a.

9 2 Com. by Broom & Hadley 452; Co. Litt. 345 a.

181 broom's legal maxims.

In connection with the practice of our courts, also, the above
maxiun admits of many important applications ; when, for instance,-
any proceeding taken by one of the adverse parties is altogether
unwarranted, and different from that which, if any, ought to have
been taken, then the proceeding is a nullity, and cannot be waived
by any act of the party against whom it has been taken. So it is
clear, that pleading over cannot supply a defect in matter of sub-
stance,1 although in some cases an imperfection in the pleading will
be aided or cured by verdict ; and, with respect to this latter propo-
sition, the rule is thus laid down, that, where a matter is so essen-
tially necessary to be proved, that, had it not been in evidence, the
jury could not have given such a verdict as that recorded, there the
want of stating that matter in express terms in a declaration, pro-
vided it contains terms sufficiently general to comprehend it in fair
and reasonable intendment, will be cured by the verdict; and where
a general allegation must, in fair construction, so far require to be
restricted that no judge and no jury could have properly treated it
in an unrestrained sense, it may reasonably be presumed after ver-
dict that it was so restrained at the trial.2

In every case, however, where an objection to the sufficiency
J" *1821 *0^ t^ie cause °f acti°n apparent on the record, is sustained
after verdict, the effect will be as fatal as if the objection
had been taken at an earlier stage of the proceedings, in accord-
ance with the obvious principle under consideration — debile funda-
mentum fallit opus.3

Notwithstanding the very general application of the maxim
which we have above briefly considered, some few cases do occur
where an act done contrary to the express direction or estab-
lished practice of the law will not be found to invalidate the
subsequent proceedings, and where, consequently, quod fieri non
debet factum valet.4

1 Ante, p. 136-7.

2 Jackson v. .Pesked, 1 M. & S. 234; 1 Wms. Saund. 228 (1).

3 Finch's Law 14, 36; Wing. Max. 113, 114. See, also, the judgment,
Davies dera., Lowndes ten , 8 Scott N. R. 567, where the above maxim is cited
and applied.

4 Gloss, in 1. 5, Cod. 1. 14. Pro infectis : D. 1. 14, 3. Wood Inst. 25; 5
Rep. 38. This maxim holds true likewise in certain cases, some of which are
hereafter noticed, relating to contracts. Under the stat. 7 Geo. 2, c. 8, it was
held, that an executory contract to transfer stock which the party was not

RULES OF LOGIC. 182

The Banwen Iron Company v. Barnett1 seems to *fall r*i oq-i
•within the class of cases to winch the maxim just cited
applies. There a certificate of complete registration had been
granted by the Registrar of Joint Stock Companies, pursuant to
the stat. 7 & 8 Yict. c. 110, s. 7 ; although the deed of settlement
omitted some of the provisions required to be inserted therein :
and it was held that a shareholder could not, in answer to an
action brought against him for calls, object that the certificate
had been granted upon the production of an insufficient deed.

Conformably to the principle on which the foregoing case was
decided, the maxim quod fieri non debet factum valet, will in general
be found strictly to apply wherever a form has been omitted which
ought to have been observed, but of which the omission is ex post
facto immaterial.2 It frequently happens, indeed, that a particular
act is directed to be done by one clause of a statute, and that the
omission of such act is, by a separate clause, declared immaterial
with reference to the validity of proceedings subsequent thereto.

possessed of might be void and illegal, and yet that the actual transfer of the
stock by such party, or on his procurement, might be legal ; and that the
apparent difficulty (which, in fact, arose from applying the principle quad ab
initio non valet tractu temporis non convalescit) disappeared on reference to
the provisions of the Act, which were framed with a view to secure in every
case an actual transfer of all stock bargained to be sold, and within the
mischief centemplatcd by which Act the above case does not consequently
fall; M'Callan v. Mortimer, in error, 9 M. & W. 636, 640; s. c, 7 M. & W.
20; 6 M. & W. 58. The maxim cited in the text may sometimes apply to an
order of justices of the peace, Keg. v. Lord Newborough, L. R. 4 Q. B. 585,
587. *

It may apply also in a criminal proceeding; thus, "It is very doubtful
whether a judge has power to adjourn a case after the jury have retired to
consider the verdict, and it is also a doubtful question whether the having
refreshment would not have vitiated their verdict ; though, perhaps, the maxim
quod fieri non debet factum valet might have applied and the refreshment
having been ordered by the judge might not be illegal." Per Blackburn, J.,
Winsor v. Reg. 6 B. & S. 183 (118 E. C. L. R.).

1 8 C. B. 406, 433 (65 E. C. L. R.). See Pilbrow v. Pilbrow's Atmospheric
R. C, 5 0. B. 440 (57 E. C. L. R,).

2 Per Lord Brougham, 6 CI. & Fin. 708; arg. 9 Wheaton (U. S.) R. 478.
" There is a known distinction between circumstances which are of the essence
of a thing required to be done by an Act of Parliament, and clauses merely
directory.11 Per Lord Mansfield, C. J., R. v. Loxdale, 1 Burr. 447, adopted
per Tindal, C. J., Southampton Dock Co. v. Richards, 1 Scott 239, and cited

183 broom's legal maxims.

In all such cases, it is true, that what ought not to have been done
is valid when done. Thus, residence in the parish before procla-
mation is directed by the stat. 26 Geo. 2, c. 33, " For the better
preventing of Clandestine Marriages," as a requisite preliminary to
the celebration of a marriage by banns ; but if this direction,
although very material for carrying out the object of that Act, be
P1841 not comP^e(^ w^n5 *tne marriage will nevertheless be valid
under the 10th section, for here the legislature has expressly
declared, that non-observance of this statutory direction shall, after
the marriage has been solemnized, be immaterial.1 The applica-
bility of this maxim, in regard to the validity of a marriage irreg-
ularly solemnized, was also discussed in Beamish v. Beamish, which
will hereafter more conveniently be noticed.2

Lastly, it is said, that "void things" may nevertheless be "good
to some purpose;"3 as if A., by indenture, let B. an acre of land
in which A. has nothing, and A. purchase it afterwards, this will be
a good lease ;4 and the reason is, that what, in the first instance,
was a lease by estoppel only,5 becomes subsequently a lease in in-
terest, and the relation of landlord and tenant will then exist as
perfectly as if the lessor had been actually seised of the land at the
time when the lease was made.6

1 See per Lord Brougham, 6 CI. & Fin. 708 et seq.

2 5 Irish C. L. Rep. 136; s. c, 6 Id. 142; 9 H. L. Cas. 274.
'3 Finch's Law 62.

4 Noy, Max., 9th ed., p. 17, and authorities cited, Id. n. (a).

5 See Cuthbertson v. Irving, 4 H. & N. 742, 754; s. c, 6 Id. 135; Duke v.
Ashby, 7 Id. 600.

6 Blake v. Foster, 8 T. R. 487 ; Stokes v. Russell, 3 T. R. 678 ; per Alderson,
B., 6 M. & W. 662; Webb v. Austin, 8 Scott N. R. 419; Pargeter v. Harris,
7 Q. B. 708 (53 E. C. L. R.); Co. Litt. 47 b., 1 Piatt on Leases 53, 54; Bac.
Abr. Leases (o).

rules of logic. 184

Argumentum ab inconvenienti plurimum valet in Lege.

(Co. Litt. 66 a.)
An argument drawn from inconvenience is forcible in law.1

In doubtful cases arguments drawn from inconvenience are
*of great weight.2 Thus, arguments of inconvenience are r*iQ^n
sometimes of great value upon the question of intention.
If there be in any deed or instrument equivocal expressions, and
great inconvenience must necessarily follow from one construction,
it is strong to show that such construction is not according to the
true intention of the grantor ; but where there is no equivocal ex-
pression in the instrument, and the words used admit only of one
meaning, arguments of inconvenience prove only want of foresight
in the grantor. But because he wanted foresight, courts of justice
cannot make a new instrument for him : they must act upon the in-
strument as it is made ;3 and generally, if there be any doubts what
is the law, judges solve such doubts by considering what will be the
good or bad effects of their decision ; but if the law is clear, incon-
veniences afford no argument of weight with the judge : the legis-
lature only can remedy them.4 And again, " where the law is
known and clear, though it be inequitable and inconvenient, the
judges must determine as the law is, without regarding the unequi-
tableness or inconvenience. These defects, if they happen in the
law, can only be remedied by Parliament ; therefore we find many
statutes repealed and laws abrogated by Parliament as inconvenient,
which, before such repeal or abrogation were, in the courts of law,
to be strictly observed. But *where the law is doubtful r*ie«i
and not clear, the judges ought to interpret the law to be

1 Co. Litt. 97, 152 b. As to the argument ab inconvenienti, see per Sir W.
Scott, 1 Dods. 402; per Lord Brougham, 6 CI. & Fin. 671 ; 1 Mer. 420.

The argument ab inconvenienti was applied in Sheppard v. Phillimore, L.
R. 2 P. C. 450, 460.

2 Per Heath, J., 1 H. Bla. 61 ; per Dallas C. J., 7 Taunt. 527 (2 E. C. L.
R.) 5 8 Id. 762 (4 E. C. L. R.)j per Holroyd, J., 3 B. & C. 131 (10 E. C. L.
R.) ; Judgm., Doe v. Acklam, 2 B. & C. 798 (11 E. C. L. R.).

3 Per Sir J. Leach, V.-C, A.-G. v. Duke of Marlborough. 3 Madd. 540; per
Burrough, J., Deane v. Clayton, 7 Taunt. 496 (2 E. C. L. R.) ; per Best, C, J.,
Fletcher v. Lord Sondes, 3 Bing. 590 (11 E. C. L. R.).

4 Per Lord Northington, C, Pike v. Hoare, 2 Eden 184; per Abbott, C. J.,
3B. & C. 471 (10 E. C. L. R.).

10

186 bkoom's legal maxims.

as is most consonant to equity and least inconvenient."1 And,
hence, the doctrine, that nihil quod est ineonveniens est licitum,2
which is frequently advanced by Sir E. Coke, must certainly be re-
ceived with some qualification, and must be understood to mean,
that against the introduction or establishing of a particular rule or
precedent inconvenience is a forcible argument.3

This argument ah inconvenient^ moreover, is, under many cir-
cumstances, valid to this extent, that the law will sooner suffer a
private mischief than a public inconvenience — a principle which we
have already had occasion to consider in its general application.
It is better to suffer a mischief which is peculiar to one, than an
inconvenience which may prejudice many.4

Lastly, in construing an Act of Parliament, the same rule applies.
If the words used by the legislature, in framing any particular
clause, have a necessary meaning, it will be the duty of the
Court to construe the clause accordingly, whatever may be the
inconvenience of such a course.5 Where a statute is imperative no
reasoning ah inconvenienti should prevail. But, unless it is very
clear that violence would be done to the language of the Act by
adopting any other construction, any great inconvenience which
might result from that suggested, may certainly afford fair ground
l~*1871 ^or suPPosmg tnat ^ could *not be what was contemplated
by the legislature, and will warrant the Court in looking
for some other interpretation.6

1 Vaugh. R. 37, 38.

1 Co. Litt. 66 a; cited per Pollock, C. B., 4 H. L. Cas. 145, and per Lord
Truro, Id. 195.

3 Ram, Science of Legal Judgment 57.

4 Co. Litt. 97 b, 152 b. ; Hobart, 224 ; ante, pp. 1, 5.

6 Per Erie, J., Wansey, app., Perkins, resp., 8 Sc. N. R. 969 ; per Parke,
J., Mirehouse v. Rennell, 1 CI. & Fin. 546.

6 Judgm., Doe d. Governors of Bristol Hospital v. Norton, 11 M. & W.
928 ; Judgm., Turner v. Sheffield R. C, 10 M. & W. 434.

Lord Bacon, it will be remembered, tells us in his Essays (" Of Judica-
ture," ad. Jin.), that "Judges ought, above all, to remember the conclusion
of the Roman Twelve Tables, salus populi suprema lex ; and to know that
laws, except they be in order to that end, are but things captious, and ora-
cles not well inspired." See also per Pollock, C. B., 4 H. L. Cas. 152.

RULES OF LOGIC. 187

NlMIA SUBTILITAS IN JURE REPROBATUR, ET TALIS CERTITUDO

Certitudinem CONFUNDIT.

(4 Rep. 5.)

The law does not allow of a captious and strained intendment, for such nice
pretence of certainty confounds true and legal certainty.1

A pleading is not objectionable as ambiguous or obscure, if it be
certain to a common intent, that is, if it be clear enough, according
to reasonable intendment or construction, though not worded with
absolute precision.2

It is said, however, that all pleadings in estoppel, and also the
plea of alien enemy, must be certain in every particular, which
seems to amount to this, that they must meet and remove by anti-
cipation every possible answer of the adversary, for they are
regarded unfavorably by the Courts, as having the effect of exclud-
ing the truth.3

ua w-iaTT nnonvua onntnoi' movim r\T low ^infi.

[*188]

And here we may observe another maxim of law inti-

mately connected with that under consideration, viz.
apices juris non sunt jura* — it is an excellent and profitable law
which disallows curious and nice exceptions, tending to the over-
throw or delay of justice.5 True it is, however, that, by the inge-
nuity of special pleaders, the Courts are sometimes placed in a
difficulty6 in coming to a correct conclusion in the administration
of justice ; and where such is the case, they can only dispose of the
matter in the way which seems to them to be most in accordance

1 Wing. Max. p. 26.

2 Steph. Plead., 6th ed., 312. See Hammond v. Dod, Cro. Car. 6 ; Harlow
v. Wright, Cro. Car. 105.

3 Steph. Plead., 6th ed., 273. See Casseres v. Bell, 8 T. R. 166 ; Le Bret v.
Papillon, 4 East 502 5 recognised Allen v. Hopkins, 13 M. & W. 101 ; Alcinous
v. Nygren, 4 E. & B. 217 (82 E. C. L. R.) ; Shepeler v. Durant, 23 L. J. C. P.
140.

4 10 Rep. 126.

5 Co. Litt. 304, b ; Wing. Max. p. 19. See Yonge v. Fisher, 5 Scott N. R.
893 ; per Eyre, C. J., Jones v. Chune, 1 B. & P. 364; cited per Cresswell, J.,
Wilson v. Nisbett, 4 Scott N. R. 778 ; Newton v. Rowe, 7 Id. 545. A grant
from the Crown under the Great Seal shall not, propter apices juris, be made
void and of no effect. (Earl of Rutland's Case, 8 Rep. 112; cited arg., R. v.
Mayor of Dover, 1 Cr. M. & R. 732.) See also Richardson v. Barnes, 4 Exch.
128.

6 See Vander Donckt v. Thellusson. 8 C. B. 821 (65 E. C. L. R.).

188 - broom's legal maxims.

with the established rules of pleading. Whoever really understands
the important objects of pleading will always appreciate it as a
most valuable mode of furthering the administration of justice,
though some cases are calculated to create in the minds of persons
unacquainted with the science but a mean opinion of its value.1

" The object of having certain recognised forms of pleadings, is
to prevent the time of the court from being occupied with vain and
useless speculations as to the meaning of ambiguous terms ;"2 and,
therefore, as remarked by Sir E. Coke, "the order of good plead-
ing is 1o be observed, which, being inverted, great prejudice may
grow to the party tending to the subversion of law — Ordine plaei-
tandi servato servatur etjus.,,s

r*1891 However, in some cases, the Court may be bound to
i*pronounce upon apices juris, and in doing so it has no
pleasure in disappointing the expectations of parties suing ; but the
certainty of the law is of infinitely more importance than any con-
sideration of individual inconvenience.4

1 Per Lord Abinger, C. B , Fraser v. Welsh, 8 M. & W. 634.

2 Per Pollock, C. B., Williams v. Jarman, 13 M. & W. 133.

3 Co. Litt. 303, a.

* Per Lord Ellenborough, C. J., Bell v. Janson, 1 M. & S. 204 ; and in
Robertson v. Hamilton, 14 East 532; Judgm., Galloway v. Jackson, 3 Scott
N. R. 773. In Brancker v. Molyneux, 4 Scott N. R. 767, and in Yonge v.
Fisher
juris.

FUNDAMENTAL LEGAL PRINCIPLES. 190

"CHAPTER V. [*190]

FUNDAMENTAL LEGfAL PRINCIPLES.

Many of the principles set forth and illustrated in this chapter
are of such general application that they may be considered as
exhibiting the very grounds or foundations on which the legal
science rests. To these established rules and maxims the remark
of Sir W. Blackstone (Com., 21st ed., vol. i., p. 68) is peculiarly
applicable: — Their authority "rests entirely upon general reception
and usage, and the only method of proving that this or that maxim
is a rule of the common law, is by showing that it hath been always
the custom to observe it." it would, indeed, be highly interesting
and useful to trace from a remote period, and through successive
ages, the gradual development of these principles, to observe 'their
primitive and more obvious meaning, and to show in what manner
and under what circumstances they have been applied by the
"living oracles" of the law to meet the increasing exigencies of
society, and those complicated facts which are the result of com-
merce, civilization and refinement. Such an inquiry would, how-
ever, be too extensive to be compatible with the plan of. this work ;
our object, therefore, in the following pages, is limited to exhibiting
a series of the elementary and fundamental rules of law, accom-
panied by a few observations, when necessary, with occasional
references to the civil law, and a sufficient *number of cases
to exemplify the meaning and qualifications of the maxims ^ J
cited.

These will be found to comprise the following important princi-
ples : that where there is a right there is a remedy, and if there be
no remedy by action, the law will in some cases give one in another
way — that the law looks not at the remote, but at the immediate
cause of damage — that the act. of God shall not, by the instrumen-
tality of the law, work an injury — that damages shall not in general
be recovered for the non-performance of that which was impossible
to be done — that ignorance of the law does not, although ignorance
of facts does,, afford an excuse — that a party shall not convert that
which was done by himself, or with his assent, into a wrong — that

191 broom's legal maxims.

a man shall not take advantage of his own tortious act — that the
abuse of an authority given by law shall, in some cases, have a
retrospective operation in regard to the liability of the party
abusing it — that the intention, not the act, is regarded by the law, —
and that a man shall not be twice vexed in respect of the same
cause of action.

Ubi Jus ibi Remedium.

(See 1 T. R. 512.)
There is no wrong without a remedy.1

Jus, in the sense in which it is here used, signifies "the legal
authority to do or to demand something."2

Remedium may be defined to be the right of action, or the -means
given by law for the recovery of a right, and, according to the
r*iQ9i aDove elementary maxim, whenever the *law gives any-
thing, it gives a remedy for the same: lex semper dabit
remedium.2. If a man has a right, he must, it has been observed
in a celebrated case, have a means to vindicate and maintain it, and
a remedy if he is injured in the exercise and enjoyment of it; and,
indeed, it is a vain thing to imagine a right without a remedy, for
want of right and want of remedy are reciprocal.4

It appears, then, that remedium, although sometimes used as
s}Tnonymous with actio, has, in the maxim which we now propose
to consider, a more extended signification than the word "action"
in its modern sense. An "action" is, in fact, one peculiar mode
pointed out by the law for enforcing a remedy, or for prosecuting

1 Johnstone v. Sutton (in error), 1 T. R. 512; Co. Litt. 197, b. See, also,
Lord Camden's judgment in Entick v. Carrington, 19 How. St. Trials 1066.

2 Mackeld. Civ. Law 6.

3 Jacob, Law Diet, title " Remedy;" Bac. Abr., " Actions in General" (B).
The reader is referred for general information as to the nature of legal rights
and remedies to Broom's Com., 4th ed.,' Bk. i. chap. 3. "Upon principle,
wherever the common law imposes a duty, and no other remedy can be shown
to exist, or only one which has become obsolete or inoperative, the Court of
Queen's Bench will interfere by mandamus." Judgm., 12 A. & E. 266.
See, also, Gosling v. Veley, 7 Q. B. 451 (53 E. C. L. R.).

4 Per Holt, C. J., Ashby v. White, 2 Lord Raym. 953; per Willes, C. J.,
"VYinsmore v. Greenbank, Willes 577 ; Vaugh. R. 47, 253.

FUNDAMENTAL LEGAL PRINCIPLES. 192

a claim or demand, in a court of justice — action nest auter chose
que lot/all demande de son droit,1 an action is merely the legitimate
mode of enforcing a right, whereas remedium must here be under-
stood to signify rather the right of action, or jus persequendi in
judicio quod sibi debetur,2 which is in terms the definition of the
word actio in the Roman law.3

The maxim ubijus ibi remedium has been considered so valuable,
that it gave occasion to the first invention of that form of action

called an action on the case; for the ^statute of Westmin-

r*1931
ster 2 (13 Edw. 1, c. 24), which is only in affirmance of L J

the common law on this subject, and was passed to quicken the

diligence of the clerks in the Chancery, who were too much

attached to ancient precedents, enacts, that, "whensoever from

thenceforth a writ shall be found in the Chancery, and in a like

case, falling under the same right and requiring like remedy, no

precedent of a writ can be produced, the clerks in Chancery shall

agree in forming a new one; and if they cannot agree, it shall be

adjourned till the next Parliament, where a writ shall be framed by

consent of the learned in the law, lest it happen for the future that

the Court of our Lord the King be deficient in doing justice to the

suitors."

The principle adopted by courts of law accordingly is, that the
novelty of the particular complaint alleged in an action on the case
is no objection, provided that an injury cognisable by law be shown
to have been inflicted on. the plaintiff";4 in which case, although
there be no precedent, the common law will judge according to the
law of nature and the public good.5

It is, however, important to observe this distinction, that, where
cases are new in principle, it is necessary to have recourse to legis-
lative interposition in order to remedy the grievance ; but where
the case is only new in the instance, and the sole question is upon
the application of a principle recognised in the law to such new
case, it will be just as competent to courts of justice to apply the

1 Co. Litt. 285, a. 2 1. 4. 6. pr.

8 See Phillimore, Introd. to Rom. L. 61.

4 Per Pratt, C. J., Chapman v. Pickersgill, 2 Wils. 146 ; Novello v. Sudlow>
12 C. B. 177, 190 (74 E. C. L. R.) ; et vide per Coleridge, J., Gosling v. Veley,
4 H. L. Cas. 768 ; Catchpole v. Ambergate, &c, R. C, 1 E. & B. Ill (72 E.
C. L. R.).

6 Jenk. Cent. 117.

193 broom's legal maxims.

principle to any case that may arise two centuries hence as it was

two centuries ago.1

r*1Q41 *^-n accordance with the spirit of the maxim, ubi jus ibi

remedium, it was held, in a case usually cited to illustrate
it, that a man who has a right to vote at an election for members
of Parliament, may maintain ah action against the returning officer
for maliciously2 refusing to admit his vote, though his right was
never determined in Parliament, and though the persons for whom
he offered to vote were elected ;3 and in answer to the argument,
that there was no precedent for such an action, and that establish-
ing such a precedent would lead to multiplicity of actions, Lord
Holt observed, that if men will multiply injuries, actions must be
multiplied too, for every man that is injured ought to have his
recompense.4

It is true, therefore, that, in trespass and for torts generally, new
actions may be brought as often as new injuries and wrongs are
repeated.5 And every statute made against an injury, mischief, or
grievance, impliedly gives a remedy, for the party injured may, if
no remedy be expressly given, have an action upon the statute;
r^qr-, and if a penalty be given by statute, but no action for the

^recovery thereof be named, an action of debt will lie for
the penalty.6 So, where a statute requires an act to be done for
the benefit of another, or forbids the doing of an act which may be

1 Per Ashhurst, J., Pasley v. Freeman, 3 T. R. 63 ; per Park, J., 7 Taunt.
515 (2 E. C. L. R.) ; Fletcher v. Lord Sondes. 3 Bing. 550 (11 E. C. L. R.).

2 Proof of malice is essential to the maintenance of such an action. Tozer
v. Child, 7 E. & B. 377 (90 E. C. L. R.) ; s. c, 6 Id. 289, citing Lord Holt's
judgment in Ashby v. White (ed. 1837).

Where damage is occasioned by a wrongful act, i. e. an act which the law
esteems an injury, malice is not a necessary ingredient in the right of action.
Judgm., Rogers v. Dutt, 13 Moo. P. C. C. 236.

3 Ashby v. White, 2 Ld. Raym. 338 ; cited Stockdale v. Hansard, 9 A. & E.
135 (36 E. C. L. R.), and in Rochdale Canal Co. v. King, 14 Q. B. 122, 138
(68 E. C. L. R.). In connection with Ashby v. White, see also Pyrce v.
Belcher, 3 C. B. 58 (54 E. C. L. R.) ; s. c, 4 Id. 866 (where the maxim above
illustrated Avas much considered), and Tozer i\ Child, supra; et vide Jenkins
v. Waldron, 11 Johns. {U.S.) R. 120.

4 2 Ld. Raym. 955; Millar v. Taylor, 4 Burr. 2344.

5 Ilambleton v. Veere, 2 Wins. Saund. 171, b (1) ; cited per Lord Denman,
C. J., Ilodsoll v. Stallebrass, 11 A. & E. 306 (39 E. C. L. R.).

6 2 Dwarr. Stats. 677.

FUNDAMENTAL LEGAL PRINCIPLES. 195

to his injury, though no action be given in express terms by the
statute for the omission or commission, the general rule of law is,
that the party injured shall have an action;1 for " where a statute
gives a right, there, although in express terms it has not given a
remedy, the remedy which by law is properly applicable to that
right follows as an incident."2 And, in like manner, when a person
has an important public duty to perform, he is bound to perform
that duty, and if he neglects or refuses so to do, and an individual
in consequence sustains injury, that may lay the foundation for an
action to recover damages by way of compensation for the injury
that he has so sustained.3

There is, however, a class of cases from which it is important to
distinguish those above referred to, in which a damage is sustained
by the plaintiff, but a damage not occasioned by any thing which
the law esteems an injury. This kind of damage is termed in law
damnum absque injuridf and for it no action can be maintained.5
*For instance, if a person build a house on the edge of his r*i qfn
land, and the proprietor of the adjoining land, after twenty

1 Ashby v. White, supra, cited arg. 9 CI. & Fin. 274 ; Hilcoat v. Archbishop
of Canterbury, 10 C. B. 327 (70 E. C. L. R.) ; Caledonian R. C. v. Cort, 3
Macq. Sc. App. Cas. 833.

2 See per Maule, J., Braithwaite v. Skinner, 5 M. & W. 327 ; citing per
Holt, C. J., Ewer v. Jones, Salk. 415 ; s. c, 2 Ld. Raym. 937 ; per Willes, J.,
Wolverhampton New Waterworks Co. v. Hawkesford, 6 C. B. N. S. 356 (95
E. C. L. R.).

'Per Lord Lyndhurst, C, 9 CI. & Fin. 279; citing Sutton v. Johnstone, 1
T. R. 493 ; Bartlett v. Crozier, 15 Johns. (U. S.) R. 254, 255.

4 As to the distinction between damnum and injuria, see Hall v. Mayor of
Bristol, L. R. 2 C. P. 322 ; Smith v. Thackerah, L. R. 1 C. P. 564.

6 Broom's Com., 4th ed., 75 et seq.; Cooke v. Waring, 2 H. & C. 332.

" In this country we do not recognise the absolute right of a person to a
particular name to the extent of entitling him to prevent the assumption of that
name by a stranger. The right to the exclusive use of a name in connection
with a trade or business is familiar to our law ; and any person using that
name after a relative right of this description has been acquired by another,
is considered to have been guilty of a fraud, or at least of an invasion of
another's right, and renders himself liable to an action, or he may be
restrained from the use of the name by injunction. But the mere assumption
of a name which is the patronymic of a family by a stranger who had never
before been called by that name, whatever cause of annoyance it may be to
the family, is a grievance for which our law affords no redress." Per Sir R.
Phillimore, Du Boulay v. Du Boulay, L. R. 2 P. C. 441-2.

196 broom's legal maxims.

years have elapsed, dig so near that it falls down, an action on the
case will lie, because the plaintiff has by twenty years' use acquired
a presumptive right to the support, and to infringe that right is an
injury.1 But, if the owner of land adjoining a newly-built
house dig in a similar manner, and produce similar results, in this
case, though there is damage, yet, as there is no right to the sup-
port, no injury is in legal contemplation committed by withdrawing
it, and consequently no action will be maintainable, unless the
weight of the house did not contribute to the subsidence.2 The
T*1Q71 cases wifr<& are worthy of *perusal, with reference not
merely to the proposition just stated, but to the right of
the surface-owner under various and dissimilar circumstances to the
support of the subjacent strata.

Further, it often happens, in the ordinary proceedings of life,
that a man may laivfully use his own property so as to cause dam-
age to his neighbor, which is not injuriosum ;4 or he may whilst
pursuing the reasonable exercise of an established right,5 casually

1 Stansell v. Jollard, Selw. N. P., 10th ed., 435 ; Hide v. Thornborough, 2
Car. & K. 250 (61 E. C. L. R.) ; Dodd v. Holme, 1 A. & E. 493 (28 E. C. L.
R.) ; Backhouse v. Bonomi, 9 H. L. Cas. 503 ; s. c, E., B. & E. 422 (96 E. C.
L. R.), which is the leading ease illustrative of the proposition stated in
the text : Smith v. Thackerah, L. R. 1 C. P. 564.

2 Brown v. Robins, 4 H. & N. 186 : S troy an v. Knowles, 6 H. & N. 454.

8 Wyatt v. Harrison, 3 B. & Ad. 876 (23 E. C. L. R.) ; Gayford v. Nicholls,
9 Exch. 702; Hilton v. Whitehead, 12 Q. B. 734 (64 E. C. L. R.) ; Row-
botham v. Wilson, 8 H. L. Cas. 348, cited Murchie v. Black, 19 C. B. N.
S. 208 (99 E. C. L. R.) ; Humphries v. Brogden, 12 Q. B. 739 (64 E. C. L. R.) ;
as to which see Solomon v. Vintners' Co., 4 H. & N. 598-9, cited per Wood,
V.-C, Hunt v. Peake, 29 L. J. Chanc. 785 ; North-Eastern R. C. v. Elliot, 10
H. L. Cas. 333 ; Allaway v. Wagstaff, 4 H. & N. 681 ; Rogers v. Taylor, 2 H.
& N. 828, 834; Brown v. Robins, 4 H. & N. 186 ; Smart v. Morton, 5 E. & B.
30 (85 E. C. L. R.) ; Richards v. Rose, 9 Exch. 218 ; Smith v. Kenrick, 7 C.
B. 515 (62 E. C. L. R.) ; Haines v. Roberts, 6 E. & B. 625, 643 (88 E. C. L.
R.) ; Fletcher v. Great Western R, C, 4 H. & N. 242; approved in Great West-
ern R. C. v. Bennett, L. R. 2 H. L. 27 ; Judgm., Keyse v. Powell, 2 E. & B.
144 (75 E. C. L. R.) ; Caledonian R. C. v. Sprot, 2 Macq. Sc. App. Cas. 449 j
Richards v. Harper, L. R. 1 Ex. 199 ; Popplewell v. Hodkinson, L. R. 4 Ex.
248.

4 Rogers v. Dutt, 13 Moo. P. C. C. 209, 237, 241, well illustrates the above
proposition.

6 The Eleanor, 2 Wheaton (U. S.) R. 358 ; Panton v. Holland, 17 Johns.
(U. S.) R. 100.

FUNDAMENTAL LEGAL PRINCIPLES. 197

cause an injury, which the law will regard as a misfortune merely,
and for which the party from whose act it proceeds will be liable
neither at law nor in the forum of conscience.

In cases of this nature a loss or damage is indeed sustained by
the plaintiff, but it results from an act done by another free and
responsible being, which is neither unjust nor illegal.1 Thus, the
establishment of a rival school, which draws away the scholars from
a school previously established, is illustrative of such a loss.2 So, a
man may lawfully build a wall on his own ground in such a manner
as to obstruct the lights of his neighbor, who may not have ac-
quired a right to them by grant or adverse user. He may obstruct
the prospect from his neighbor's *house.3 He may build r*iqQ-i
a mill near the mill of his neighbor, to the grievous dam-
age of the latter by loss of custom.4 He may, by digging in his
own land, intercept or drain off the water collected from under-
ground springs in his neighbor's well. In these and similar cases,
the inconvenience caused to his neighbor falls within the description
of damnum absque injurid, which cannot become the ground of an
action.5 And although it may seem to be a hardship upon the
party injured to be without a remedy, by that consideration courts
of justice ought not to be influenced. Hard cases, it has been
already observed, are apt to introduce bad law.6

1 See Kennet and Avon Navigation Co. v. Witherington, 18 Q. B. 531 (83
E. C. L. R.) ; Laing v. Whaley, 3 H. & N. 675, 901 ; s. c, 2 Id. 476 ; with
which compare Hodgkinson v. Ennor, 4 B. & S. 229 (116 E. C. L. R.).

2 Bell, Diet, and Dig. of Scotch Law 252 ; Bac. Abr., " Actions in Gen-
eral" (B).

8 See Re Penny, 7 E. & B. 660, 671 (90 E. C. L. R.).

4 As to liability for obstructing the current of air to a windmill, see Webb
v. Bird, 10 C. B. N. S. 268 (100 E. C. L. R.).

» Acton v. Blundell, 12 M. & W. 341, 354 ; cited Judgm., Dickinson v. Grand
Junction Canal Co., 7 Exch. 300 ; s. c, 15 Beav. 260 ; and in Smith v. Ken-
rick, 7 C. B. 566 (62 E. C. L. R.), and commented on per Coleridge, J., diss.,
Chasemore v. Richards, 2 H. & N. 190 et seq. ; s. c, 7 H. L. Cas. 349; Baird
v. Williamson, 15 C. B. N. S. 376 (109 E. C. L. R.) ; per Bramwell, B., Ibott-
son v. Peat, 3 H. & C. 647, 650; per Pollock, C. B., Dudden v. Guardians of
Clutton Union, 1 H. & N. 630. See Rawstron v. Taylor, 11 Exch. 369;
Broadbent v. Ramsbotham, Id. 602; Beeston v. Weate, 5 E. & B. 986 (85 E.
C. L. R.) ; Wardle v. Brocklehurst, 1 E. & E. 1058 (102 E. C. L. R.).

6 Ante, p. 150. Per Lord St. Leonards, 7 H. L. Cas. 93 ; per Lord Camp-
bell, Id. 628 ; per Rolfe, B., 10 M. & W. 116. In Walker v. Hatton, 10 M. &

198 BROOM'S LEGAL MAXIMS.

Again, where process is served by mistake on a wrong person,
and all the proceedings in the action are taken against him, the de-
fendant so wrongfully sued will undoubtedly have a good defence
to the action, and will consequently recover his costs ; but if it be
asked what further remedy he has for the inconvenience and trouble
he has been put to, the answer is, that, in point of law, if the pro-
r*i qcn ceedings have been adopted purely through mistake, *though
injury may have resulted to him, it is damnum absque in-
jurid, and no action will lie. Indeed, every defendant against
whom an action is unnecessarily brought, experiences some injury
or inconvenience beyond what the costs will compensate him for.1

It has been held too that an action does not lie against a man for
a statement made by him in the course of a judicial proceeding,
even though it be alleged to have been made " falsely and maliciously,
and without any reasonable and probable cause."2

Again, if the legislature directs or authorizes the doing of a par-
ticular thing, the doing of it cannot be wrongful ; though, if damage
thence results, it may be just and proper that compensation should
be made for it. No action lies, however, for what is damnum sine
injuria" ; the remedy, if any, being to apply for compensation under
the provision of the statate legalizing what would otherwise be a
wrong. And this is so whether the thing be authorized for a public
purpose or for private profit. For example, no action will lie
against a railway company for erecting a line of railway authorized
by its Acts, so long as the directors pursue the authority given
them, any more than it would lie against the trustees of a turnpike

W. V59, Gurney, B., says, " The plaintiff may have been extremely ill-used,
but I think he has no remedy."

1 Per Rolfe, B., Davies v. Jenkins, 11 M. & W. 755, 756; Cotterell v. Jones,
11 C. B. 713 (73 E. C. L. R.) ; Ilobart 266 ; Ewart v. Jones, 14 M. & W. 774;
Yearsley v. Heane, Id. 322 ; recognised judgm., Phillips v. Naylor, 3 H. & N.
25; s. c, 4 Id. 565; Daniels v. Fielding, 16 M. & W. 200; De Medina v.
Grove, 10 Q. B. 152, 172 (59 E. C. L. R.); Churchhill v. Siggers, 3 E. & B.
929 (77 E. C. L. R.) ; Farley v. Danks, 4 E. & B. 493 (82 E. C. L. R.);
Fivaz v. Nicholls, 2 C. B. 501 (52 E. C. L. R.) ; Collett v. Foster, 2 H. & N.
356 ; Jennings v. Florence, 2 C. B. N. S. 467 (89 E. C. L. R.). See further,
judgm., Wren v. Weild, L. R. 4 Q. B. 735.

2 Revis v. Smith, 18 C. B. 126, 143 (86 E. C. L. R.) ; ace. Henderson *.
Broomhead, 4 H. & N. 569. The class of cases supra is adverted to by Cock-
burn, C. J., diss, in Dawkins v. Lord Paulet, L. R. 5 Q. B. 107. See Blagrave
v. Bristol Waterworks Co., 1 H. & N. 369.

<

FUNDAMENTAL LEGAL PRINCIPLES. 200

road for *making their road under their Acts ; though the r*oooi
one road is made for the profit of the shareholders in the
company and the other is not. In either case the act is not wrong-
ful, because it is authorized by the legislature.1

"The rule," accordingly, "is well established that for any act
done which is injurious to property, but which an Act of Parlia-
ment has authorized to be done, though the consequence of the act
is damnum to the owner, it ceases to be injuria; and the loss
would fall upon him, as no damages could be recovered in an action."
To prevent that injustice, the legislature sometimes says that in lieu
of an action the party affected shall have compensation in the man-
ner provided by the Act. Where, however, the particular Act of
Parliament does not authorize the wrong, and consequently the
action is not taken away, the case is not one for compensation, but
the remedy is by action.2

In most of the cases to which we have just been adverting, the
party aggrieved has no remedy, because no right has, in contempla-
tion of law, been invaded. Every injury, however, to a legal right
necessarily imports a damage' in the nature of it, though there be no
pecuniary loss.3 Thus, where a prisoner is in execution on final
process, the creditor has a right to the body of his debtor, every
hour till the debt is paid ; and an escape of the debtor, for ever so
short a time, is necessarily a damage to him, *and the action r^o^-i-i
for an escape lies.4 In like manner, if a banker has re-

1 Per Blackburn, J., Mersey Docks Trustees v. Gibbs, L. R. 1 H. L. 112.

2 Per Blackburn, J., Reg. v. Darlington Board of Health, 5 B. & S. 526
(117 E. C. L. R.) ; s. c, affirmed in error, 6 B. & S. 562 ; Cracknell v. Mayor,
&c, of Thetford, L. R. 4 C. P. 629 ; Coe v. Wise, L. R. 1 Q. B. 711 ; Ham-
mersmith and City R. C. v. Brand, L. R. 4 H. L. 171 ; Broadbent v. Imperial
Gas Co., 7 H. L. Cas. 600; and cases cited ante, p. 5, n. 5.

8 Per Lord Holt, C. J., Ashby v. White, 2 Lord Raym. 955.

4 Williams v. Mostyn, 4 M. & W. 153, recognised in Wylie v. Birch, 4 Q. B.
566, 577 (45 E. C. L. R.), and Clifton v. Hooper, 6 Q. B. 468 ; Lloyd v. Harri-
son, 6 B. & S. 36 (118 E. C. L. R.) ; s. c, affirmed in error, L. R. 1 Q. B.
502. See Macrae v. Clarke, L. R. 1 C. P. 403 ; Arden v. Goodacre, 11 C. B.
367, 371 (73 E. C. L. R.); Hemming v. Hole, 7 C. B. N. S. 487 (97 E. C.
L. R.).

The reasoning in the text has no application to the case of not levying on
goods, to support an action for which actual damage must be shown : Hobson
v. Thelluson, L. R. 2 Q. B. 642, 651.

An action lies at suit of the tenant against his landlord for an excessive dis-
tress without proof of actual damage : Chandler v. Doulton, 3 H. & C. 553.

201 broom's legal maxims.

ceived sufficient funds from his customer, he is bound to honor his
check ; and if he make default in doing so, he will be liable,
although no actual damage has been sustained by the customer in
consequence of such default,1 and an attorney who compromises a
suit contrary to instructions from his client will be liable without
proof of special damage.2

From the preceding examples it will be inferred, that an injury
to a right may consist either in a misfeasance or a nonfeasance ;
and it may not be improper here to remark, that there is in fact a
large class of cases, in which the foundation of the action lies in a
privity of contract between the parties, but in which, nevertheless,
the remedy for the breach or non-performance is indiffer-
*- -■ cntly *either assumpsit or case. Such are actions against
attorneys, surgeons, and other professional men, for want of compe-
tent skill or proper care in the service they undertake to render.
Actions, also, againsi.common carriers, against shipowners on bills
of lading, or against bailees of different descriptions, may often be
brought in tort or contract, at the election of the plaintiff. Nor is
it true that this election is only given where the plaintiff sues for a
misfeasance and not for a nonfeasance, for the action of case upon
tort very frequently occurs where there is a simple non-performance
of the particular contract, as in the ordinary instance of case against
shipowners for not safely and securely delivering goods according to
the bill of lading; the principle in all such cases being, that the
contract creates a duty, and the neglect to perform that duty, or
the nonfeasance, is a ground of action upon tort.3 So that, "where

1 Marzetti v. Williams, 1 B. & Ad. 415, recognised 6 Q. B. 475 (51 E. C. L.
R.) ; Ilolin a. Steward, 14 C. B. 595 (78 E. C. L. R.) ; Warwick v. Rogers, 6
Scott N. R. 1 ; Gray v. Johnston, L. R. 3 H. L. 1, 14, where Lord Westbury
says, " A banker is bound to honor an order of his customer with respect to
the money belonging to that customer which is in the hands of the banker ;
and it is impossible for the banker to set up a jus tertii against the order of
the customer, or to refuse to honor his draft, on any other ground than some
sufficient one resulting from an act of the customer himself."

As to the duty of a banker towards his customer, see also, Hardy v. Veasey,
L. R. 3 Ex. 107 ; Prehn v. Royal Bank of Liverpool, L. R. 5 Ex. 92.

2 Fray v. Voules, 1 E. & E. 839, 848, 849 (102 E. C. L. R.), recognising
Marzetti v. Williams, supra; see Butler v. Knight, L. R. 2 Ex. 109.

3 Judg., Boorman v. Brown, 3 Q. B. 525, 526 (43 E. C. L. R.) ; s. c, affirmed
11 CI. & Fin. 1; Farrant v. Barnes, 11 C. B. N. S. 553 (103 E. C. L. R.)

FUNDAMENTAL LEGAL PRINCIPLES. 202

there is an employment, which employment itself creates a duty,
an action on the case will lie for a breach of that duty, although it
may consist in doing something contrary to an agreement made in
the course of such employment by the party upon whom the duty is
cast."1

"An action," however, "will not lie at the suit of A. for the
breach by B. of a duty which B. owes to C."2 Nor *will
an action for a mandamus lie under the C. L. Proc. Act, *~ J
1854, s. 68, to compel the fulfilment of a duty arising merely from
a personal contract,3 or where there is any other remedy.4

Having stated it as generally true, that, when a right has been
invaded, an action for damages will lie,5 although no damage has
been actually sustained, we may observe, that the principle on which
many such cases proceed, is, that it is material to the establishment
and preservation of the right itself, that its invasion should not pass
with impunity ; and in these cases, therefore, nominal damages only
are usually awarded, because the recovery of such damages suffi-
ciently vindicates the plaintiff's right ; as, for instance, in trespass
qua. cl. fr., which is maintainable for an entry on the land of
another, though there be no real damage, because repeated acts of
going over the land might be used as evidence of a title to do so,
and thereby the right of the plaintiff* might be injured; or, in an
action by a commoner for an injury done to his common, in which

(following Brass v. Maitland, 6 E. & B. 470 (88 E. C. L. R.), and cases there
cited. Preston v. Norfolk R. C, 2 H. & N. 735, 752 ; per Lord Abinger, C.
B., Winterbottom v. Wright, 10 M. & W. 115; Marzetti v. Williams, 1 B. &
Ad. 415,426.

1 Per Jervis, C. J., Courtenay v. Earle, 10 C. B. 83 (70 E. C. L. R.) ; citing
Boorman v. Brown, supra. See Howard v. Shepherd, 9 C. B. 297, 322.

2 Per Willes, J., Barker v. Midland R. C, 18 C. B. 59 (86 E. C. L. R.),
referring to Winterbottom v. Wright, 10 M. & W. 109.

3 Benson v. Paull, 6 E. & B. 273, distinguished in Norris v. Irish Land
Company, 8 E. & B. 512, 526 (92 E. C. L. R.).

4 Bush v. Beavan, 1 H. & C. 50Q, 514 ; per Mellor, J., Burland v. Hull
Board of Health, 3 B. & S. 279 (113 E. C. L. R.).

An action for a mandamus may, however, lie even when no actual damage
has been sustained: Fotherby v. Metropolitan R. C, L. R. 2 C. P. 188.

6 This proposition is more fully stated and illustrated in Broom's Com., 4th
ed., pp. 652 et seq. See Blofeld v. Payne, 4 B. & Ad. 410 (24 E. C. L. R.) ;
Rogers v. Nowill, 5 C. B. 109 (57 E. C. L. R.) ; Wells v. Watling, 2 W. Bla.
1333; Pindar v. Wadsworth, 2 East 154; ante, p. 200.

203 broom's legal maxims.

action evidence need not be given of the exercise of the right of
common by the plaintiff.1

r*904.1 *^ *s not' mdeed, Dy any ffleans true, as a general propo-
sition, that the actual injury offers, in an action ex delicto,
the proper measure of damages to be given; for instance, my neigh-
bor may take from under my house coal, which I have no means of
getting at, and yet I may recover the value, notwithstanding I have
sustained no real injury ;2 and other cases might readily be instanced
showing that such an action may be maintainable without evidence
being adduced of pecuniary loss or damnum to the plaintiff.3

The maxim, however, ubi jus ibi remedium, though generally, is
not universally true, and various cases occur to which it does not
apply, or at least in which the remedy cannot be in the shape of a
civil action to recover damages. Some of these are cases in which
the act done is a grievance to the entire community, no one of
whom is injured by it more than another. In such cases, the mode
of punishing the wrongdoer is usually by indictment only ;4 although,
if any person has suffered a particular damage beyond that suf-
fered by the public, he may maintain an action in respect thereof;

thus, if A. *dio; a trench across the highway, this is the
r*2051
L J subject of an indictment; but if B. fall into it and sustain

1 Per Taunton, J., 1 B. & Ad. 426 (20 E. C. L. R.); Wells v. Watland, 2
W. Bla. 1233; 1 Wins. Saunds. 346 a, note; cited per Martin, B., and Kelly,
C. B., Harop v. Hirst, L. R. 4 Ex. 43, 45, 47, which shows the test to be
whether the act complained of would if repeated operate in derogation of the
right of another; if so, an action will lie at the suit of the person whose
right may be affected, without proof of individual or specific damage.

2 See per Maule, J., Clow v. Brogden, 2 Scott N. R., 315, 316 ; per Lord
Denman, C. J., Taylor v. Henniker, 12 A. & E. 488, 492 (40 E. C. L. R.) ;
which case is overruled by Tancred v. Leyland (in error), 16 Q. B. 669 (71
E. C. L. R.). Pontifex v. Bignold, 3 Scott N. R,, 390.

3 Embrey v. Owen, 6 Exch. 653; Dickinson v. Grand Junction Canal Com-
pany, 7 Exch. 282 ; Northam v. Hurley, 1 E. & B. 665 (72 E. C. L. R.), recog-
nised in Whitehead v. Parks, 2 H. & N. 870; Rolin v. Steward, 14 C. B. 595
(78 E. C. L. R.) ; Matthews v. Discount Corp., L. R. 4 C. P. 228. In refer-
ence to the question whether substantial damage must be proved, the wording
of a statute may be material ; ex. gi\, see Rogers v. Parker, 18 C. B. 112 (74
E. C. L. R.) ; Medway Navigation Company v. Earl of Romney, 9 C. B. N.
S. 575 (99 E. C. L. R.).

4 Co. Litt. 56 a; per Channel], B., Harrop v. Hirst, L. R. 4 Ex. 47. See
Reg. v. Train, 2 B. & S. 640 (110 E. C. L. R.).

FUNDAMENTAL LEGAL PRINCIPLES. 205

a damage, then the particular damage thus sustained will support
an action.1

Where, for instance, the Crown, by letters-patent, granted to a
corporation the borough or town of L., together with the pier or
quay belonging thereto, and it appeared from the whole instrument
that the things granted were, in fact, the consideration for repair-
ing certain buildings and erections, the Court held that the corpo-
ration, by accepting the letters-patent, bound themselves to do the
repairs ; and that this obligation being one which concerned the
public, an indictment would lie, in case of non-repair, against the
mayor and burgesses for their general default, and an action on
the case for a direct and particular damage sustained in conse-
quence by an individual.2 So, in the ordinary case of a nuisance
arising from the act or default of a person bound to repair ratione
tenurce, an indictment may be sustained for the general injury to
the public, and an action on the case for a special and particular
injury to an individual.3 It is indeed an important rule, that
*the law gives no private remedy for anything but a r*9f)fn
private wrong ; and, that, therefore, no action lies for a
public or common nuisance ; and the reason of this is, that the damage
being common to all the subjects of the Crown, no one individual
can ascertain his particular proportion of it, or, if he could, it
would be extremely hard if every subject in the kingdom were
allowed to harass the offender with separate actions.4 So "where
a statute prohibits the doing of a particular act affecting the public,

1 Per Holt, C. J., 2 Lord Raym. 955 ; Winterbottom v. Lord Derby, L. R*
2 Ex. 316 ; arg. Davidson v. Wilson, 11 Q. B. 895 (63 E. C. L. It.) ; Simmons
v. Lillystone, 8 Exch. 431 ; Hart v. Bassett, T. Jones 156 ; Chichester v. Leth-
bridge, Willes 73 ; Rose v. Miles, 4 M. & S. 101 ; Rose v. Groves, 6 Scott N.
R. 645, and cases there cited ; Kearns v. Cordwainers' Co., 6 C. B. N. S. 388,
401 (95 E. C. L. R.) ; Dobson v. Blackmore, 9 Q. B. 991 (58 E. C. L. R.).

* Mayor, &c, of Lyme Regis v. Henley (in error), 3 B. & Ad. 77 (23 E. C. L.
R.) ; s. c, 2 CI. & Fin. 331 ; Nicholl v. Allen, 1 B. & S. 916, 934, 936 (101 E.
C. L. R.). See R. v. Ward, 4 A. & E. 384 (31 E. C. L. R.).

3 3 B. & Ad. 93 (23 E. C. L. R.), citing Year Book, 12 Hen. 7, fol. 18 ; Co.
Litt. 56 a ; Rose v. Groves, 6 Scott N. R. 645, and the cases there cited. See
also, as to the liability to repair, Russell v. Men of Devon, 2 T. R. 667, 671,
cited judgm., M'Kinnon v. Penson, 8 Exch. 327 ; s. c, affirmed in error, 9
Exch. 609; Young v. Davis, 2 H. & C. 197, affirming s. c, 7 H. & N. 760.
As to the rights to abate a nuisance ; post, Chap. VI., $ 2.

4 Co. Litt. 56 a; 1 Chit. Gen. Pr. Law 10.

11

206 broom's legal maxims.

no person has a right of action against another merely because he
has done the prohibited act. It is incumbent on the party com-
plaining to allege and prove, that the doing of the act prohibited has
caused him some special damage, some peculiar injury beyond
that which he may be supposed to sustain in common with the rest
of the Queen's subjects by an infringement of the law. But where
the act prohibited is obviously prohibited for the protection of
a particular party, there it is not necessary to allege special
damage."1

Again, where the damage resulting from the act of another is too re-
mote,2 or in other words, flows not naturally, legally, and with suffi-
r*9071 cient directness from the *alleged injury, the plaintiff will
not be entitled to recover ;3 for instance the temporary ob-
struction of a highway, which prevented the free passage of persons
along it, and so incidentally interrupted the resort to the complain-
ant's public house, is not, by reason of remoteness, the subject of
an action at common law as an individual injury sustained by the
plaintiff distinguishing his case from that of the rest of the public ;
and such interruption of persons who wTould have resorted to the
plaintiff's house but for the obstruction of the highway, is a conse-
quential injury too remote to be within the provisions of the 16th
section of the Railway Clauses Consolidation Act (8 & 9 Vict. c.
20), entitling "parties interested " to compensation.4

1 Judgm., Chamberlaine v. The Chester and Birkenhead R. C, 1 Exch.
876-7.

2 Com. Dig., " Action upon the case for Defamation " (F. 21 ). See Fitzjohn
v. Mackinder, 9 C. B. N. S. 505 ; s. c, 8 Id. 78 ; Barber v. Lesiter, 7 Id. 175 ;
Steward v. Gromett, Id. 191 ; Walker v. Goe, 4 IT. & N. 350 ; 3 Id. 395 ; Assop
v.Yates, 2 H. & N. 768 ; Hoey v. Felton, 11 C. B. N. S. 142 (103 E. C. L. R.) .
Collins v. Cave, 6 H. & N. 131 ; s. c, 4 Id. 225 ; Allsop v. Allsop, 5H.&N.
534, approved in Lynch v. Knight, 9 II. L. Cas. 577, 592 ; Martinez v. Gerber,
3 Scott N. R. 386 ; Dawson v. The Sheriffs of London, 2 Ventr. 84, 89 ;
Everett v. London Assurance, 19 C. B. N. S. 126 (115 E. C. L. R.) ; Burrows
v. March Gas Co., L. R. 5 Exch. 67.

3 Per Patteson, J., Kelley v. Partington, 5 B. & Ad. 651 (27 E. C. L. R.) ;
Bac. Abr., " Actions in General" (B.) ; Haddon v. Lott, 15 C. B. 411 (80 E.
C. L. R.) ; Butler v. Kent, 19 Johns. (U. S.) R, 223. See also Boyle v. Bran-
don, 13 M. & W. 738, and cases cited under the maxim, In jure non remota
causa sed proxima spectatur, post, p. 216.

4 Ricket v. Metropolitan R. C, L. R. 2 II. L. 175, 188, 196 ; Cameron v.
Charing Cross R. C, 19 C. B. N. S. 764 (99 E. C. L. R.) ; Herring v. Metro-

FUNDAMENTAL LEGAL PRINCIPLES. 207

In an action for slander, the special damage must be the legal
and natural consequence of the words spoken, otherwise it will
not sustain the declaration. It is not sufficient to prove a mere
wrongful act of a third person induced by the slander, as, that he
dismissed the plaintiff from his employ before the end of the term
for which they had contracted ; for this is an illegal act, which the
law will not presume to be a natural result of the words spoken.1
So, where the plaintiff, being director *of certain musical r*9Ao-i
performances, brought an action on the case against the de-
fendant, for publishing a libel on a public singer, engaged by the
plaintiff, alleging that she was thereby debarred from performing
in public through the apprehension of being ill received, so that
the plaintiffs lost the profits which would have otherwise accrued to
him as such director, it was held that the damage was too remote,
and the action not maintainable.2

The above test, for determining whether any particular damage
is too remote or not, although probably the most accurate which
can be given, must, nevertheless, be applied with much caution ;
for an action is sometimes maintainable where the damage does not,
at first sight, appear to flow, either naturally or directly, from the
alleged wrongful act ; ex. gr. case was held to lie against the de-
fendant for not repairing his fences, per quod the plaintiff's horses
escaped into the defendant's close, and were there killed by the
falling of a haystack; the Court being of opinion that the damage
was not too remote.3 And even in trespass, a person who sets in
motion a dangerous thing, which occasions mischief, will be liable,
if the circumstances show such mischief to have resulted from a
continuation of the original force applied to the moving body by

politan Board of Works, Id. 510; Reg. v. Vaughan, L. R. 4 Q. B. 190 ; Reg.
v. Metropolitan Board of Works, Id. 358 ; Hammersmith and City R. C. v.
Brand, L. R. 4 H. L. 171 ; Beckett v. Midland R. C, L. R. 3 C. P. 82; Eagle
v. Charing Cross R. C, L. R. 2 C. P. 638.

1 Vicars v. Wilcocks, 8 East 1 ; observed upon in Lynch v. Knight, 9 H. L.
Cas. 577, 590, 600. See Knight v. Gibbs, 1 A. & E. 43 (28 E. C. L. R.) ;
Ward v. Weeks, 4 M. & P. 706.

2 Ashley v. Harrison, 1 Esp. 48 ; Lumley v. Gye, 2 E. & B. 216 (75 E. C. L.
R.), may be considered a leading case upon the above subject.

3 Powell v. Salisbury, 2 Yo. & J. 391 ; Lee v. Riley, 18 C. B. N. S. 722
(114 E. C. L. R.) ; Wanstall v. Pooley, 6 H. L. Cas. 910, note. See also Tar-
ner v. Walker, L. R. 2 Q. B. 301, 1 Q. B. 641.

208— V» broom's legal maxims.

the defendant, or if he can be considered, in legal language, as the

causa causans.1

r*90Ql *There are also cases in which, on grounds of public

policy, an action may not lie,2 ex. gr. an action on the case
for a malicious prosecution, though the act complained of be admit-
ted to be malicious ; as, at the suit of a subordinate against his
commanding officer for libellous statements contained in an official
report,3 or for an act done in the course of discipline and under the
powers legally incident to his situation, notwithstanding that the
perversion of his authority is made the ground of the action ;4 and
the principle of all such cases is, that the law will rather suffer a
private mischief than a public inconvenience.5 Again, the matter
litigated may be alienifori* thus no action at law lies to recover
damages from an executor for not paying a general legacy,7 nor by
a cestui que trust against a trustee for breach of trust,'8 nor for dis-
turbance of a pew in the body of the church, unless attached to a
r*9im nouse-9 ^n tnese *cases there are remedies, but not by ac-

tions in the courts of common law ;10 and, although it is

1 Scott v. Shepherd, 2 W. Bla. 892 ; s. c, 3 Wils. 403 ; Collins v. Middle
Level Commissioners, L. R. 4 C. P. 279, 287. Per Lord Ellenborough, C.
J., Leame v. Bray, 3 East 596 ; Gilbertson v. Richardson, 5 C. B. 502 (57 E.
C. L. R.) 5 Wormes v. Storey, 11 Exch. 427 ; Guille v. Swan, 19 Johns. (U.
S.)R. 381 ; Vanderburgh v. Truax, 4 Denio (U. S.) R. 464 ; Piggot v. Eastern
Counties R. C, 3 C. B. 229 (54 E. C. L. R.) (which was case for damage
caused by a spark from an engine) : per Martin, B., Blyth v. Birmingham
Waterworks Co., 11 Exch. 783. See the maxim, Sic utere tuo ut alienum non
lcedas,post, Chap. VI., \ 2.

2 See per North, C. J., Barnardiston v. Soame, 6 St. Tr. 1099 ; Henderson
v. Broomhead, cited ante, p. 199; Swinfen v. Lord Chelmsford, 5 H. & N.
890 (see Chambers v. Mason, 5 C. B. N. S. 59 (94 E. C. L. R.)) ; Kennedy v.
Broun, 13 C. B. N. S. 677 (106 E. C. L. R.).

3 Dawkins v. Lord Paulet, L. R. 5 Q. B. 94.

4 Johnstone v. Sutton (in error), IT. R. 510, 548.

6 Johnstone v. Sutton (in error), 1 T. R. 510, 548 5 Dawkins v. Lord Paulet,
L. R. 5 Q. B. 94. An action does not lie against a man for maliciously doing
his duty, Id. 114 ; Dawkins v. Lord Rokeby, 4 F. & F. 841. See Hodgkinson
v. Fernie, 3 C. B. N. S. 189 (91 E. C. L. R.).

6 See per North, C. J., 6 St. Tr. 1098.

7 2 Wms. Exors., 6th ed., 1783 ; Barlow v. Browne, 16 M. & W. 126.

8 7 Chitt. PI., 7th ed., 3.

9 Mainwaring v. Giles, 5 B. & Aid. 356 (7 E. C. L. R.).

10 Qucere, whether an action at law lies against a clergyman for refusing to
perform the marriage ceremony ? Davis v. Black, 1 Q. B. 900 (41 E. C. L.
K.) 5 cited 1 Roberts. R. 183.

FUNDAMENTAL LEGAL PRINCIPLES. 210

ordinarily true that " every wrong has its remedy," it is equally
true that " the remedy must be appropriately pursued."1 We have,
moreover, already seen that, from motives of public policy, the
sovereign is not personally answerable for negligence or miscon-
duct ; and if such misconduct occurs in fact, the law affords no
remedy. We may add, that a mandamus, the object of which writ
is to enforce a clear legal right where there is no other means of
doing it, will not lie to the Crown, or its servants strictly as such,
to compel the payment of money alleged to be due from the Crown.2
Lastly, where the act of another, though productive of injury to
an individual, amounts to a felony, the private remedy is (except
where the stat. 9 & 10 Vict. c. 93,3 s. 1, applies)4 suspended5 until
justice shall have been satisfied ; for public policy requires that of-
fenders against the law shall be brought to justice; and, therefore,
*it is a rule of the law of England, that a man shall not r*oii-i
be allowed to make a felony the foundation of a civil action,
nor to waive the felony and go for damages;6 and where, at the
trial of an action, the case is found to involve a charge of felony
against the defendant, which has not been prosecuted, the judge
may properly direct a verdict to be entered for him.7 For a mere

1 Per Maule, J., Lewis v. Clifton, 14 C. B. 255 (78 E. C. L. R.). See Ste-
vens v. Jeacocke, 11 Q. B. 731 (63 E. C. L. R.), cited arg. 1 H. & N. 382;
Marshall v. Nicholls, 18 Q. B. 882 (83 E. C. L. R.) ; Boyce y. Higgins, 14 C.

B. 1 (78 E. C. L. R.); Hollis v. Marshall, 2 H. & N. 755, 765-, Glynn v.
Thomas, 11 Exch. 870 (where a grievous wrong had been done, yet the law-
gave no remedy, vide per Erie, J., Loring v. Warburton, E. B. & E. 508 (96
E. C. L. R.) ; Watkins v. Great Northern R. C, 16 Q. B. 961 (71 E. C. L. R.) ;
Kennet and Avon Navigation Co. v. Witherington, 18 Q. B. 531 (83 E. C. L.
R.) ; Gwyn v. Hardwicke, 1 H. & N. 49 ; Couch v. Steel, 3 E. & B. 402 (77 E.

C. L. R.) ; Reeves v. White, 17 Q. B. 995 (79 E. C. L. R.).

2 Ante, p. 57 ; Viscount Canterbury v. A.-G., 1 Phill. 306 ; In re Baron de
Bode, 6 Dowl. P. C. 776.

8 Amended by 27 & 28 Vict. c. 95.

4 See Pym v. Great Northern R. C, 2 B. & S. 759 (110 E. C. L. R ) ; s. c.
4 Id. 396 ; Dalton v. South Eastern R. C, 4 C. B. N. S. 396 (93 E. C. L. R.).

6 Ante, p. 162. As to the restitution of stolen property, see stat. 24 & 25
Vict. c. 96, s. 100

6 Judgm., Stone v. Marsh, 6 B. & C. 564 (13 E. C. L. R.) ; Crosby v. Leng,
12 East 409 5 Williams v. Bayley, L. R. 1 H. L. 200 ; per Rolfe B., 13 M. &
W. 608. See also, per Sir W. Scott, The Hercules, 2 Dods. 375-6 ; 1 H. Bla.
588 5 Higgins v. Butcher, Yelv. 89 ; Chowne v. Baylis, 31 L. J. Chanc. 757.

7 Wellock v. Constantine, 2 H. •& C. 146.

211 broom's legal maxims.

misdemeanor, however, such as an assault, hattery, or libel, the
right of action is subject to no such impediment as just mentioned;
and even where a felony has been committed, it seems that the rule
of public policy above set forth applies only to proceedings between
the plaintiff and the felon himself, or, at the most, the felon and
those with whom he must be sued, and does not apply where an ac-
tion is brought against a third party, who is innocent of the feloni-
ous transaction.1 Moreover, it is clear that the liability to an action
cannot of itself furnish any answer to an indictment for fraud.2

r,oim *Quod Remedio destituttor ipsa Re valet si
[*212J ^

Culpa absit.

(Bac. Max., reg. 9.)

That which is without remedy avails of itself ] if there be no fault in the party
seeking to enforce it.

There are certain extra-judicial remedies as well for real as per-
sonal injuries, which are furnished or permitted by the law, where
the parties are so peculiarly circumstanced as to make it impossible
to apply for redress in the usual and ordinary methods.

" The benignity of the law is such," observes Lord Bacon, " that,
when, to preserve the principles and grounds of law, it deprives a
man of his remedy without his own fault, it will rather put him in
a better degree and condition than in a worse ; for if it disable him
to pursue his action, or to make his claim, sometimes it will give
him the thing itself by operation of law without any act of his own ;
sometimes it will give him a more beneficial remedy."3

On this principle depended the doctrine of remitter, which, prior
to the abolition of real actions, was applicable where one, who had

1 White v. Spettigue, 13 M. & W. 603, 606 ; Lee v. Bayes, 18 C. B. 599 (86
E. C. L. R.) ; Stone v. Marsh, 6 B. & C. 551 (13 E. C. L. R.) ; Marsh v. Keat-
ing, 1 Bing. N. C. 198 (27 E. C. L. R.).

2 Judgm., Reg. v. Kenrick, 5 Q. B. 64, 65 (48 E. C. L. R.) j in connection
with which case, see Reg. v. Abbott, 1 Den. C. C. 273; Reg. v. Eagleton,
Dearsl. 376, 515; Reg. v. Burgon, Dearsl. & B. 11 ; Reg. v. Roebuck, Id. 24;
Reg. v. Keighley, Id. 145 ; Reg. v. Sherwood, Id. 251 ; Reg. v. Bryan, Id. 265 ;
Reg. v. Goss, Bell, 208 ; Reg. v. Ragg, Id. 214; Reg. v. Lee, L. & C. 418.

3 Bac. Max., reg. 9 ; 6 Rep. 68.

FUNDAMENTAL LEGAL PRINCIPLES. 212

the true property, or jus proprietatis, in lands, but was out of pos-
session, and had no right to enter without recovering possession by-
real action, had afterwards the freehold cast upon him by some sub-
sequent and, of course, defective title, in which case he was remit-
ted or sent back by operation of law to his ancient and more certain
title, and the right of entry which he had gained by a bad title was
held to be, ipso facto, annexed to his own inherent good one, so that
his defeasible estate was utterly defeated and annulled by the in-
stantaneous *act of law, without his participation or con- r*oio-i
sent.1 The reason of this was, because he who possessed
the right would otherwise have been deprived of all remedy ; for, as he
himself was the person in possession of the freehold, there was no
other person against whom he could bring an action to establish his
prior right ; and hence the law adjudged him to be in by remitter, that
is, in the like condition as if he had lawfully recovered the land by
suit.2 There could, however, according to the above doctrine, be no
remitter where issue in tail was barred by the fine of his ancestor, and
the freehold was afterwards cast upon him ; for he could not have re-
covered such estate by action, and, therefore, could not be remitted to
it.3 Neither will the law supply a title grounded upon matter of
record ; as if a man be entitled to a writ of error, and the land descend
to him, he shall not be in by remitter.4 And if land is expressly
given to any person by Act of Parliament, neither he nor his heirs
shall be remitted, for he shall have no other title than is given by
the Act.5

The following instance is that usually given, in order to show the
operation and explain the meaning of the doctrine of remitter.
Suppose that A. disseises. B., that is, turns him out of possession,
and afterwards demises the land to B. (without deed) for a term of
years, by which B. enters, this entry is a remitter to B., who is in
of his former and better title.6

*ln Doe d. Daniel v. Woodroffe, which went by writ of r*9i4.-|
error before the Court of Exchequer Chamber and House

1 3 Com. by Broom & Hadley 15-17. See this subject treated at length,
Vin. Ab., " Remitter:" Shep. Touch., by Preston, 156, n. (82), 286.

2 Finch's Law 19 ; 3 Com. by Broom & Hadley 16 ; Litt., s. 661.

3 3 Com. by Broom & Hadley 17. See also Bac. Max., vol. 4, p. 40.

4 Bac. Max., reg. 9 adjinem. 6 1 Rep. 48.
6Finch*sLaw61.

214 broom's legal maxims.

of Lords,1 the law of remitter was much considered, and several im-
portant points were decided, which are here stated shortly, for
the consideration of tne reader. The facts of this case were as
under : —

H. W. being tenant in tail in possession of certain lands, with
the reversion to the heirs of her late husband, executed a deed-poll
in 1735, which operated as a covenant to stand seised to the use of
her only son, G. W., in fee. G. W. afterwards, and during the
lifetime of his mother, suffered a recovery of the same lands to the
use of himself in fee. He died in 1779, without issue, having by
his will devised the lands to trustees and their heirs, in trust to pay
an annuity to his nephew, and subject thereto to his great-nephew,
"VV. B. for life, with certain remainders over. The trustees entered
into and continued in possession until the death of the annuitant,
in 1790, when they gave possession to W. B., who continued in
possession of the rents and profits of the entirety up to the time of
his death, in 1824 ; and did various acts, showing that he claimed
and held under the will. Upon the facts thus shortly stated, the
Court decided, 1st, that the base fee created by the deed-poll did
not, upon H. W.'s death become merged in the reversion in fee in
G. W. ; as the estate tail still subsisted as an intermediate estate:
2dly, that G. W. was not remitted to his title under the estate tail,
the recovery suffered by him having estopped him ; 3dly, that W.
B., although taking by the Statute of Uses, was capable of being
r*o-| —i remitted, as the *estate tail had not been discontinued ;
4thly, that the acts done by W. B. did not amount to a dis-
claimer by him of the estate tail, as a party cannot waive an estate
to which he would be remitted, where the remitter would enure to
the benefit of others as well as himself; 5thly, that the right of
entry first accrued on the death of G. W., in 1779, when there was
first an available right of entry ; and, consequently, that the entry
by W. B. in 1790 was not too late; and, 6thly, it was held, revers-
ing the judgment given in the court below, that the entry and re-
mitter of W. B., in 1790, did not operate to remit A. W. (his co-
parcener,) to the other moiety of the estate ; the Court observing,
with reference to the last of the above points, that possession of

1 2 II. L. Cas. 811 ; s. c, 15 M. & W. 769 ; cited per Rolfe, B., Spottswood
U.Barrow, 5 Exch. 113; and in Cowan v. Milbourn, L. R. 2 Ex. 235 ; and
arg. Tarleton v. Liddell, 17 Q. B. 406 (79 E. C. L. R.).

FUNDAMENTAL LEGAL PRINCIPLES. ' 215

land by one parcener cannot, since the passing of the statute 3 &
4 Will. 4, c. 27, be considered as the possession of a co-parcener,
and, consequently, that the entry of one cannot have the effect of
vesting the possession in the other.1

The principle embodied in the above maxim likewise applies in
the case of retainer,2 that is, where a creditor is made executor or
administrator to his debtor. If a person indebted to another makes
his creditor his executor, or if such creditor obtains letters of ad-
ministration to his debtor, in these cases the law gives him a remedy
for his debt, by allowing him to retain so much as will pay himself
before any other creditor whose debts are of equal degree. This,
be it observed, is a remedy by the mere act of law, and grounded
upon this reason, that the executor cannot, without an evident ab-
surdity, commence a suit *against himself3 as representa- r*o-|fri
tive of the deceased to recover that which is due to him in
his own private capacity ; but having the whole personal estate in
his hands, so much as is sufficient to answer hie own demand is, by
operation of law, applied to that particular purpose :4 and, in this
case, the law, according to the observation of Lord Bacon above
given, rather puts him in a better degree and condition than in a
worse, because it enables him to obtain payment before any other
creditor of equal degree has had time to commence an action. An
executor de son tort is not, however, allowed to retain, for that
would be contrary to another rule of law, which will be hereafter
considered — that a man shall not take advantage of his own
wrong.5

iJudgm., 15 M. &W. 769.

2Bac. Max., Reg. 9; arg. Thomson v. Grant, 1 Rus. 540 (a). But the
principle of retainer is by some writers referred to the maxim, potior est con-
ditio possidentis. See 2 Wms. Exors., 5th ed., 937 (n) ; 2 Fonblan. Eq.,
5th ed., 406 (m).

3 A man cannot be at once actor and reus in a legal proceeding — nemo agit
in seipsum — (Jenk. Cent. 40). See, in support and illustration of this
rule, per Best, C. J., 4 Bing. 151 (13 E. C. L. R.) ; Faulkner v. Lowe, 2 Exch.
595 (the authority of which case is questioned per Williams, J., Aulton v.
Atkins, 18 C. B. 253 (86 E. C. L. R.) ; Rose v. Poulton, 2 B. & Aid. 822.

4 3 Com. by Broom & Hadley 11.

5 Id. 12. See Thomson v. Harding, 2 E &. B. 630 (75 E. C. L. R.)

216 broom's legal maxims.

In Jure non remota Causa sed proxima spectatur.

(Bac. Max., reg. 1.)
In law, the immediate, not the remote, cause of any event is regarded.

" It were infinite for the law to consider the causes of causes,
and their impulsions one of another ; therefore it contenteth itself
with the immediate cause, and judgeth of acts by that, without
looking to any further degree.1 The above maxim thus explained,
r*fM 7-1 or rather paraphrased, *by Lord Bacon, although of general
application,2 is, in practice, usually cited with reference to
that particular branch of the law which concerns marine3 insurance ;
and we shall, therefore, in the first place, illustrate it by briefly
adverting to some cases connected with that subject.

It is, then, a well-known and established rule, that in order to
entitle the assured to recover upon his policy, the loss must be a
direct and not too remote a consequence of the peril insured against;
and that, if the proximate cause of the loss or injury sustained be
not reducible to some one of the perils mentioned in the policy, the
underwriter will not be liable.4 If, for instance, a merchant vessel
is taken in tow by a ship of war, and thus exposed to a tempestuous
sea, the loss thence arising is properly ascribable to the perils of
the sea.5 And where a ship meets with sea damage, which checks

1 Bac. Max., Reg., 1 ; Babcock v. Montgomery County Mutual Insurance
Co., 4 Comst. (U. S.) R. 326.

2 As to remote damage and the liability of one who is the causa causans,
ante, pp. 206, 208. See per Lord Mansfield, C. J., Wadham v. Marlow, 1 H.
Bla. 439, note.

3 In Marsden v. City and County Ass. Co., L. R. 1 C. P. 232, the same
principle was applied to an insurance on plate glass in a shop front ; in
Everett v. London Ass., 19 C. B. N. S. 126 (115 E. C. L. R.), it was applied
to an insurance against fire, the damage having been directly caused by an
explosion of gunpowder ; in Fitton v. Ace. Death Ins. Co., 17 C. B. N. S. 122
(112 E. C. L. R.), to an insurance against death by accident.

4 Taylor v. Dunbar, L. R. 4 C. P. 206.

" The general rule is clear, that to constitute interest insurable against a
peril, it must be an interest such that the peril would by its proximate effect
cause damage to the assured." Judgm., Seagrave v. Union Mar. Ins. Co., L.
R. 1 C. P. 320.

6 Hagedorn v. Whitmore, 1 Stark. N. P. C. 157 (2 E. C. L. R.). See Grill
v. General Iron Screw Colliery Co., L. R. 3 C. P. 476; s. c, L. R. 1 C. P.
600.

FUNDAMENTAL LEGAL PRINCIPLES. 217

her rate of sailing, so that she is taken by an enemy, from whom
she would otherwise have escaped, the loss is to be ascribed to the
capture, not to the sea damage.1 So, *the underwriters
are liable for a loss arising immediately from a peril of the *- -■
sea, or from fire, but remotely from the negligence of the master
and mariners;2 and, where a ship, insured against the perils of the
sea, was injured by the negligent loading of her cargo by the
natives on the coast of Africa, and being pronounced unseaworthy
was run ashore in order to prevent her from sinking and to save
the cargo, the Court held, that the rule Causa proxima non remota
spectatur must be applied, and that the immediate cause of loss,
viz., the stranding, was a peril of the sea.3

A policy of insurance contained the following clause : that " the
assurers took no risk in port but sea risk." It appeared that the
ship was driven from her moorings, and stranded within the port
of Cadiz; and that while she lay on dry land, and above high-
water mark, she was forcibly taken possession of and burnt by the
French troops. It further appeared that the cargo was not injured
by the stranding, and that no effort was made to unload the ship
after she was stranded: it was held, that the loss of the cargo must
be attributed to the act of the French, which was a peril not
insured against, and not to the stranding of the vessel, which was
within the words of the policy; that, although the stranding of the
vessel *led to her subsequent destruction by the enemy, yet
the latter was the immediate cause of the loss, according to •- -*
the maxim, Causa proxima et non remota spectatur.* So, where
the ship, being delayed by the perils of the sea from pursuing her

1 Judgm., Livie v. Janson, 12 East 653 ; citing Green v. Elmslie, Peake N.
P. C. 212 ; Hahn v. Corbett, 2 Bing. 205 (9 E. C. L. R.).

2 Walker v. Maitland, 5 B. & Aid. 171 (7 E. C. L. R.) ; Busk v. R. E. A.
Co., 2B.& Aid. 73 ; per Bayley, J., Bishop v. Pentland, 7 B. & C. 223 (14 E.
C. L. R.) ; Phillips v. Nairne, 4 C. B. 343, 350-1 (56 E. C. L. R.). See
Hodgson v. Malcolm, 2 N. R. 336 ; Judgm., Waters v. Louisville Insurance
Co., 11 Peters (U. S.) R. 220, 222, 223 ; Columbine Insurance Co. v. Law-
rence, 10 Peters (U. S.) R. 517 ; The Patapsco Insurance Co. v. Coulter, 3
Peters (U. S.) R. 222; General Mutual Insurance Co. v. Sherwood, 14
Howard (U. S.) R. 351.

3 Redman v. Wilson, 14 M. & W. 476 ; Laurie v. Douglas, 15 Id. 746 ; Cor-
coran v. Gurney, 1 E. & B. 456 (72 E. C. L. R.).

4 Patrick v. Commercial Insurance Co., 11 Johns. (U. S.) R. 14.

219 broom's legal maxims.

voyage, was obliged to put into port to repair, and, in order to
defray the expenses of such repairs, the master, having no other
means of raising money, sold part of the goods, and applied the
proceeds in payment of these expenses, the Court held, that the
underwriter was not answerable for this loss, for the damage was to
be considered, according to the above rule, as not arising immedi-
ately from, although in a remote sense it might be said to have
been brought about by, a peril of the sea.1

A policy of insurance on bags of coffee on a voyage from Rio to
New Orleans and thence to New York, contained the following
exception: "Warranted free from capture, seizure and detention,
and all the consequences thereof, or of any attempt thereat, and
free from all consequences of hostilities, &c." The insured ship,
whilst on her voyage, ran ashore, and was eventually lost south of
Cape Hatteras. It appeared in evidence that at Cape Hatteras,
until the secession of the Southern States of America, a light had
always been maintained, and that the light had for hostile purposes
been extinguished by the Confederates whilst in possession of the
adjacent country. If the light had been maintained the ship might
have been saved. Whilst she was ashore near the land a portion
of the *coffee was saved by certain officers acting, on
L J behalf of the Federal Government, and a further portion
thereof might in like manner have been got ashore but for the
interference of the Confederate troops, in consequence of which
the entire residue of the cargo was wholly lost. The question
upon the above facts arose — had the goods insured, or any, and if
so, what portion of them, been lost by the perils of the sea, or by
perils from which they were by the policy warranted free? The
Court unanimously held that the insurers were liable as for a
partial loss in respect of the coffee which remained on board
incapable of being saved — the proximate cause of the loss being a
peril of the sea — but that as to so much of the coffee as was got
ashore, and as to so much as would have been saved but for the
interference of the troops, this was a loss by a consequence of

1 Powell v. Gudgeon, 5 M. & S. 431, 436 ; recognised Sarquy v. Hobson, 4
Bing. 131 (13 E. C. L. R.) ; Gregson v. Gilbert, cited Park, Mar. Insur., 8th
ed., 138. See also Bradlie v. Maryland Insurance Co., 12 Peters (U. S.) R.

FUNDAMENTAL LEGAL PRINCIPLES. 220

hostilities within the warranty, so that in respect of it the insurers
were not liable.1

"The maxim, causa proxima non remota spectator," remarked
Erie, C. J., in delivering his judgment in the above case, "is
particularly applicable to insurance law. The loss must be imme-
diately connected with the supposed cause of it. Now the relation
of cause and eifect is matter which cannot always be actually [ac-
curately?] ascertained; but if, in the ordinary course of events, a
certain result usually follows from a given cause, the immediate
relation of the one to the other may be considered to be established.
Was the putting out the light at Cape Hatteras so immediately
connected with the loss *of this ship as to make the one the
consequence of the other? Can it be said that the absence L J
of the light would have been followed by the loss of the ship if the
captain had not been out of his reckoning ? It seems to me that
these two events are too distantly connected with each other to
stand in the relation of cause and effect. I will put an instance of
what I conceive to be 'a consequence of hostilities' within the
meaning of this policy. Suppose there was a hostile attempt to
seize the ship, and the master, in seeking to escape capture, ran
ashore, and the ship was lost ? there the loss would be a loss by the
consequences of hostilities within the terms of this exception. Or,
suppose the ship chased by a cruiser, and, to avoid seizure, she
gets into a bay, where there is neither harbor nor anchorage, and
in consequence of her inability to get out she is driven on shore by
the wind, and lost ; that again would be a loss resulting from an
attempt at capture, and would be within the exception. But I will
suppose a third case — the ship chased into a bay where she is
unable to anchor or to make any harbor, and putting out again on
a change of wind, but, in pursuing her voyage, encountering a
storm, which, but for the delay she would have escaped; and being
overwhelmed and lost: there, although it may be said that the loss
never would have occurred but for the hostile attempt at seizure,

1 Ionides v. Universal Marine Insurance Co., 14 C. B. N. S. 259 (108 E. C.
L. R.) ; cited per Willes, J., Marsden v. City and County Ass. Co., L. R. 1 C.
P. 240. Lloyd v. General Iron Screw Collier Co., 3 H. & C. 284 ; Sully v.
Duranty, Id. 270.

Dent v. Smith, L. R. 4 Q. B. 414, is important in reference to the subject
supra.

221 broom's legal maxims.

and that the consequence of the attempt at seizure was the cause
without which the loss would not have happened, yet the proximate
cause of loss would be the perils of the sea, and not the attempt at
seizure. Take another instance: the warranty extends to loss from
all the consequences of hostilities. Assume that the vessel is about
to enter a port having two channels, in one of which torpedoes are

sunk in order to protect the port from hostile *aggression,
L -I and the master of the vessel, in ignorance of the fact,
enters this channel, and his ship is blown up: in that case the
proximate cause of the loss would clearly be the consequences of
hostilities, and so within the exception. But, suppose the master
being aware of the danger presented in the one channel, and in
order to avoid it, attempts to make the port by the other, and by
unskilful navigation runs aground and is lost — in my opinion that
would not be a loss within the exception, not being a loss proxi-
mately connected with the consequences of hostilities, but a loss by
a peril of the sea, and covered by the policy."

The preceding cases, conjointly with those below cited, in which
the maxim before us has, under different states of facts, been ap-
plied,1 will sufficiently establish the general proposition, that, in
order to recover for a loss on a maritime policy, the loss must be
shown to have been directly occasioned by some peril insured
against ;2 but this rule, although generally and substantially true,
must not be applied in all cases literally and without qualification.3
Thus, where a loss by fire was one of the perils insured against, and
the loss resulted from fire occasioned by the barratrous act of the
master and crew, it was held, that the loss by fire so caused was not

within the policy.4 So, where salvage is decreed by a
L J Court *of Admiralty, for services rendered to a vessel in

1 Naylor v.% Palmer, 8 Exch. 739; s. c. (affirmed ia error), 10 Exch. 382,
where the loss resulted from the piratical act of emigrant passengers ; M'Swi-
ney v. Royal Exchange Assurance Company, 14 Q. B. 634, 646 (68 E. C. L. R.) ;
which is observed upon per Cur. Chope v. RBynolds, 5 C. B. N. S. 651, 652
(94 E. C. L. R.).

2 See also, per Story, J., Smith v. Universal Insurance Company, 6 Whea-
ton (U. S.) R. 185; per Lord Alvanley, C. J., Hadkinson v. Robinson, 3 B.
& P. 388 ; Phillips v. Nairne, 4 C. B. 343 (56 E. C. L. R.).

3 See 14 Peters (U. S.) R. 108, 110, where several instances are given,
showing how the rule must be modified.

4 Per Story, J., Waters v. Louisville Insurance Company, 11 Peters (U. S.)
R. 219, 220.

FUNDAMENTAL LEGAL PRINCIPLES. 223

distress, the vessel having been long before dismasted, or otherwise
injured or abandoned by her crew, in consequence of the perils of
the sea, the salvage decreed might, at first sight, seem far removed
from, and unconnected with, the original peril, and yet, in the law
of insurance, it is constantly attributed to it as the direct and proxi-
mate cause; and the underwriters are held responsible for the loss
incurred, although salvage be not specifically and in terms insured
against.1

Again, it may, in general, be said, that everything which happens
to a ship in the course of her voyage, by the immediate act of God,
without the intervention of human agency, is a peril of the sea ;2
for instance, if the ship insured is driven against another by stress
of weather, the injury which she thus sustains is admitted to be
direct, and the insurers are liable for it; but if the collision causes
the ship injured to do some damage to the other vessel, both vessels
being in fault, a positive rule of the Court of Admiralty requires
that the damage done to both ships be added together, and that the
combined amount be equally divided between the owners of the two;
and, in such a case, if the ship insured has done more damage than
she has received, and is consequently obliged to pay the balance,
this loss can neither be considered a necessary nor a proximate
effect of the perils of the sea. It grows out of a provision of the
law of nations, and cannot be charged upon the underwriters.3

*The maxim before us, however, is not to be applied in
the class of cases above noticed, if it would contravene the *- J
fundamental rule of insurance law, that the assurers are not liable
for a loss occasioned by the wrongful act of the assured, and the
manifest intention of the parties.4 Thus, where a vessel laden with
hides and tobacco had, in the course of the voyage, shipped large
quantities of sea-water, and at the termination of the voyage it was
discovered that the sea-water had rendered the hides putrid, and
that the putrefaction of the hides had imparted an ill flavour to the

1 See 14 Peters (U. S.) R. 108, 110. 2 Park, Mar. Insur., 8th ed., 136.

3 De Vaux v. Salvador, 4 A. & E. 420, 431 (31 E. C. L. R.) (cited 6 E. & B.
790 (88 E. C. L. R.)), the decision in which case is controverted, 14 Peters
(U. S.) R. 111. See per Lord Campbell, C. J., Dowell v. General Steam
Navigation Company, 5 E. & B. 195 (85 E. C. L. R.) ; per Sir W. Scott, 2
Dods. 85, and the maxim, Sic utere tuo ut alienum non Icedas—post, Chap.
VI. I 2.

* Judg., 6 E. & B. 948-9 (88 E. C. L. R.).

224 broom's legal maxims.

tobacco, and had thereby injured it, it was held that the damage
thus occasioned to the tobacco was a loss by perils of the sea.1

But though the rule adverted to clearly holds in connection with
insurance law, that " no man shall take advantage of his own
wrong"2 — the misconduct of the assured need not, in order to
exempt the assurers from liability, be the direct and proximate
cause — the causa eausans — of the loss ; if their misconduct was
causa sine qud non, the efficient cause of the loss, the assured will
be disentitled to recover.3 The question in any such case, for solu-
tion must, therefore, be — " whether the loss was fortuitous, or
whether it was induced or occasioned by, or proceeded from, the
wrongful act or neglect of the assured.4 This will not lead to the
consideration of an ^indefinite series of causes supposed to
L -1 act upon each other.5 Unless the proximate cause of the
loss was put in motion by the wrongful act or neglect of the assured,
so that the jury can clearly see that without this act or neglect the
loss would not have happened, they cannot say the assured induced
or occasioned the loss, and the underwriter would be held liable,
the proximate cause being a peril for which, by the policy, he is
liable."6 If, therefore, ballast is thrown overboard by the negli-
gent and improper, though not barratrous, act of the master and
crew, whereby the ship becomes unseaworthy and is lost by perils
of the sea, which otherwise she would have overcome, the under-
writers will be liable.7

1 Montoya v. London Assurance Company, 6 Exch. 451, cited judgm., 6 E.
& B. 948 (88 E. C. L. R.).

2 Thompson v. Hopper, 6 E. & B. 172, 191 (88 E. C. L. R.) ; Fawcus v. Sars-
field, Id. 192; Phillips v. Nairne, 4 C. B. 343 (56 E. C. L. R.).

3 The above test is applied by Pollock, C. B., in Wilson v. Newport Dock
Company, 4 H. & C. 235, in regard to the conduct of the insurers.

4 Or even from over-prudence on his part: Philpott v. Swann, 11 C. B. N.
S. 270 (103 E. C. L. R.).

5 Ante, p. 216. See Alston v. Herring, 11 Exch. 822.

6 Judgm., Thompson v. Hopper, 6 E. & B, 950, 952 (88 E. C .L. R.) (citing
Bell v. Carstairs, 14 East 374, which is a leading case illustrating the quali-
fication of Lord Bacon's maxim adverted to supra). The judgment in Thomp-
son v. Hopper was reversed by the Exch. Ch. which differed from the Q. B.
in regard to the mode of applying the maxim supra. See s. c, E. B. & E.
1038,°1045, 1051 (96 E. C. L. R.), cited Aubert& Gray, 3 B. & S. 171-2 (113
E. C. L. R.).

7 Sadler v. Dixon, 8 M. & W. 895, cited Wilton v. Atlantic Royal Mail
Steam Company, 10 C. B. N. S. 465 (100 E. C. L. R.).

FUNDAMENTAL LEGAL PRINCIPLES. 225

The remarks just made, as well as the general principle — that
the law looks to the immediate, not to the remote, cause of damage,
may be further illustrated by the following cases : — An action was
brought against the defendants, as carriers by water, for damage
done to the cargo by water escaping through the pipe of a steam-
boiler, in consequence of the pipe having been cracked by frost ;
and the Court held that the plaintiff was entitled to recover, because
the damage resulted from the negligence of the captain in filling his
boiler before the proper time had arrived for so doing, although it
was urged in argument, that the above maxim applied, and r*o9f»-i
*that the immediate cause of the damage was the act of
God.1

Again, — the plaintiff put on board defendant's barge a quantity
of lime, to be conveyed from the Medway to London ; the master
of the barge deviated unnecessarily from the usual course, and, dur-
ing the deviation, a tempest wetted the lime, and, the barge taking
fire in consequence thereof, the whole was lost. It was held, that
the defendant was liable, and that the cause of loss was sufficiently
proximate to entitle plaintiff to recover under a declaration alleging
the defendant's duty to carry the lime without unnecessary devia-
tion, and averring a loss by unnecessary deviation ; a duty being
implied on the owner of a vessel, whether a general ship, or hired
for the express purpose of the voyage, to proceed without unneces-
sary deviation in the usual course.2

The maxim as to remoteness has an important application in con-
nection with the measure of damages :3 the question which in prac-
tice most frequently presents itself, being — the particular item of
damage properly referable to the cause of action alleged and proved

1 Siordet v. Hall, 4 Bing. 607 (13 E. C. L. R.) ; post, p. 230.

2 Davis v. Garrett, 6 Bing. 716 (19 E. C. L. R.).

3 With respect to damages in general, it has been said that they are of three
kinds : 1st, nominal damages, which occur in cases where the judge is bound
to tell the jury only to give such 5 as, for instance, where the seller brings an
action for the non-acceptance of goods, the price of which has risen since the
contract was made ; 2dly, general damages, which are such as the jury may
give when the judge cannot point out any measure by which they are to be
assessed except the opinion and judgment of a reasonable man ; 3dly, special
damages, which are given in respect of any consequences reasonably or
probably arising from the breach complained of: per Martin, B., Prehn v.
Royal Bank of Liverpool, L. R. 5 Ex. 99, 100.

12

226 " BROOM'S LEGAL MAXIMS.

by the complainant?1 The general rule2 for our guidance upon
r*907"i *this subject, "where the action is founded in contract, as
laid down by the Court of Exchequer in Hadley v. Baxen-
dale,3 and since recognised,4 is as follows: — "Where two parties
have made a contract which one of them has broken, the damages
which the other party ought to receive in respect of such breach of
contract should be such as may fairly and reasonably be con-
sidered either arising naturally, i. e., according to the usual course
of things, from such breach of contract itself, or such as may rea-
sonably be supposed to have been in the contemplation5 of both par-
ties at the time they made the contract as the probable result of the
breach of it."6 Of this rule the former alternative clause may be
sufficiently illustrated by cases already cited,7 the latter is, in the

1 Hodgson v. Sidney, 4 H. & C. 492.

2 Which was much considered in Wilson v. Newport Dock Co., 4 H. & C.
232.

3 9 Exch. 341 ; Woodger v. Great Western R. C, L. R. 2 C. P. 318 ; Theo-
bald v. Railway Passengers' Assurance Co., 10 Exch. 45; Hamlin v. Great
Northern R. C, 1 II. & N. 408 ; Hales v. London and North Western R. C,
4 B. & S. 66 (116 E. C. L. R.) ; Burton v. Pinkerton, L. R. 2 Ex. 340; Bor-
ries v. Hutchinson, 18 C. B. N. S. 445 (114 E. C. L. R.) ; Fletcher v. Tayleur,
17 C. B. 21 (84 E. C. L. R.). See Pounsett v. Fuller, 17 C. B. 660 ; Sikes v.
Wild, 1 B. & S. 587 (101 E. C. L. R.) ; s. c, affirmed in error, 4 B. & S. 421
(116 E. C. L. R.).

4 See Gee v. Lancashire and Yorkshire R. C, 6 H. & N. 211 ; Portman v.
Middleton, 4 C. B. N. S. 322, 328 (93 E. C. L. R.) ; Randall v. Roper, E., B.
& E. 84, 90 (96 E. C. L. R.) ; Spark v. Heslop, 1 E. & E. 563, 602 (102 E. C.
L. R.) ; Collard v. South Eastern R, C, 7 H. & N. 79, 86, following Smeed v.
Foord, 1 E. & E. 602; Dingle v. Hare, 7 C. B. N. S. 145 (97 E. C. L.
R.) ; Wilson v. Lancashire and Yorkshire R. C, 9 C. B. N. S. 632 (99 E. C.
L. R.).

6 Mere knowledge on the part of the contractor or bailee might not be suffi-
cient— it must form part of the contract: British Columbia Saw-Mill Co. v.
Nettleship, L. R. 3 C. P. 499, 508, which should be compared with Hadley v.
Baxendale, supra.

6 See Engell v. Fitch, L. R. 4 Q. B. 659, 668, where the rule supra, was
applied in an action against the vendor of realty for breach of contract : Cory
v. Thames Ironworks Co., L. R. 3 Q. B. 181 ; Lock ». Fourze, 19 C. B. N. S.
96 (115 E. C. L. R.).

7 Supra, n. 3. See also Lumley v. Gye, 2 E. & B. 216 (75 E. C. L. R.) ;
Crouch v. Great Northern R. C, 11 Exch. 742; Randall v. Trimen, 18 C. B.
786 ; Hill v. Balls, 2 H. & N. 299, 305 ; Collen v. Wright, 8 E. & B. 647 (75
E. C. L. R.j, affirming s. c, 7 Id. 301 ; Kelner v. Baxter, L. R. 2 C. P. 174;

FUNDAMENTAL LEGAL PRINCIPLES, 228

♦judgment specified, thus explained and exemplified by the r*9o«i
Court, " If the special circumstances under which the con-
tract was actually made were communicated by the plaintiffs to the
defendants and thus known to both parties, the damages resulting
from the breach of such a contract which they would reasonably
contemplate would be the amount of injury which would ordinarily
follow from a breach of contract under these special circum-
stances, so known and communicated. But, on the other hand, if
these special circumstances were wholly unknown to the party
breaking the contract, he at the most could only be supposed to
have had in his contemplation the amount of injury which would
arise generally, and in the great multitude of cases not affected by
any special circumstances, from such a breach of contract. For
had the special circumstances been known, the parties might have
specially provided for the breach of contract by special terms as to
the damages in that case ; and of this advantage it would be very
unjust to deprive them."1 The general doctrine as to remoteness
of damage and the principle deducible from Hadley v. Baxendale
apply in actions founded upon tort, as well as in actions ex con-
tractu.2

The maxim, In jure non remota causa sed proxima spectator,
does not, however, apply to any transaction originally founded in
fraud or covin ; for the law will look to the corrupt beginning, and
consider it as one entire act, according to the principle, r^ooq-i
dolus circuitu *non purgatur3 — fraud is not purged by *"

circuity.4

Neither does the above maxim, according to Lord Bacon, ordi-

Spedding v. Nevell, L. R. 4 C. P. 212 ; Rolph v. Crouch, L. R. 3 Exch. 44 ;
Richardson v. Dunn, 8 C. B. N. S. 655 (98 E. C. L. R.).

1 See Great Western R. C. v. Redmayne, L. R. 1 C. P. 329, and cases there
cited-, Williams v. Reynolds, 6 B. & S. 495 (118 E. C. L. R.).

2 See, for instance, Mullett v. Mason, L. R. 1 C. P. 559.

3 "Dolus here means any wrongful act tending to the damage of another:"
Judgm., 6 E. & B. 948 (88 E. C. L. R.). " There can be no dolus without a
breach of the law:" per Wiles, J. (citing the above maxim), Jeffries v. Alex-
ander, 8 H. L. Cas. 637, and in Thompson v. Hopper, E., B. & E. 104 ; ct vide
per Bramwell, B., Id. 1045 ; per Williams, J., Id. 1054 ; Fitzjohn v. Mackin-
der, 9 C. B. N. S. 505, 514 (99 E. C. L. R.).

4Bac. Max., reg. 1 ; Noy, Max., 9th ed., p. 12; Tomlin's Law Diet., tit.
Fraud.

229 broom's legal maxims.

narily hold in criminal cases, because in them the intention is
matter of substance, and, therefore, the first motive, as showing
the intention, must be principally regarded.1 As, if A., of malice
prepense, discharge a pistol at B., and miss him, whereupon he
throws down his pistol and flies, and B. pursues A. to kill him, on
which he turns and kills B. with a dagger ; in this case, if the law
considered the immediate cause of death, A. would be justified as
having acted in his own defence ; but, looking back, as the law
does, to the remote cause, the offence will amount to murder,
because committed in pursuance and execution of the first murder-
ous intent.2

Nevertheless an indictment will sometimes fail to be sustainable
on the ground of remoteness.3 For instance, if the trustees of a
road neglect to repair it in pursuance of powers vested in them by
statute, and one passing along the road is accidentally killed by
reason of the omission to repair, the trustees are not indictable
r*ooA-i *for manslaughter, for " not only must the neglect, to
make the party guilty of it liable to the charge of felony,
be personal, but the death must be the immediate result of that
personal neglect.4

Actus Dei Nemini Facit Injuriam.

(2 Bla. Com. 21st ed. 122.)
The act of God is so treated by the law as to affect no one injuriously.

The act of God signifies, in legal phraseology, any inevitable
accident occurring without the intervention of man, and may,

1 Bac. Max., vol. iv., p. 17. 2 Bac. Max., reg. 1.

3 See Reg. v. Bennett, Bell C. C. 1, where fireworks kept by the prisoner in
contravention of stat. 9 & 10 Will. 3, c. 7, s. 1, either accidentally or through
the negligence of his servants exploded, and, setting fire to a neighboring
house, caused a person's death. Held, that the illegal act of the prisoner in
keeping the fireworks was too remotely connected with the death to support
an indictment for manslaughter.

4 Beg. v. Pocock, 17 Q. B. 34, 39 (79 E. C. L. R.) ; Reg. v. Hughes, Dearsl.
& B. 248. See also Reg. v. Gardner, Dearsl. & B. 40, with which compare

FUNDAMENTAL LEGAL PRINCIPLES. 230

indeed, be considered to mean something in opposition to the act
of man, as storms, tempests and lightning.1 The above maxim
may, therefore, be paraphrased and explained as follows : it would
be unreasonable that those things which are inevitable by the act
of God, which no industry can avoid, nor policy prevent, should
be construed to the prejudice of any person in whom there has been
no laches.2

Thus, if a sea-bank or wall, which the owners of particular lands
are bound to repair, be destroyed by tempest, without any default
in such owners, the commissioners of sewers may order a new wall
to be erected at the expense of the whole level ;3 and the reason of
this *is, that although, by the law, an individual be bound r*9Q-H
to keep the wall in repair, yet that which comes by the act
of God, and is so inevitable that it can by no foresight or industry
of him that is bound be prevented, shall not charge such party.4
But there must be no default in the owner ; for, where the owner
of marsh lands was bound by the custom of the level to repair the
sea-walls abutting on his own land, and by an extraordinary flood-
tide the wall was damaged, the Court refused to grant a mandamus
to the commissioners of sewers to reimburse him the expense of the
repairs, it appearing, by affidavit, that the wall had been previously
presented for being in bad repair, and was out of repair at the time
the accident happened.5

In another more recent case, it was held, that a land-owner may
be liable, by prescription, to repair sea-walls, although destroyed
by extraordinary tempest ; and, therefore, on presentment against
such owner for suffering the walls to be out of repair, it ought not,
in point of law, to be left as the sole question for the jury, whether
the walls were in a condition to resist ordinary weather and tides ;
but it is a question to be determined on the evidence, whether the

1 Per Lord Mansfield, C. J., Forward v. Pittard, 1 T. R. 33 ; Bell Diet. &
Dig. of Scotch Law, p. 11 ; Trent Navigation v. Wood, 3 Esp. 131 ; Oakley v.
Portsmouth and Ryde Steam Packet Co., 11 Exch. 618; Blyth v. Birmingham
Waterworks Co., 11 Exch. 781.

2 1 Rep. 97.

3 R. v. Somerset (Commissioners of Sewers), 8 T. R. 312; Wing. Max., p.
610.

4 Keighley's Case, 10 Rep. 139 ; Reg. v. Bamber, 5 Q. B. 279 (48 E. C.
L. R.).

6 R. v. Essex (Commissioners of Sewers), 1 B. & C. 477 (8 E. C. L. R.).

231" broom's legal maxims.

proprietor was bound to provide against the effects of ordinary
tempests only, or of extraordinary ones also.1

On the same principle, where part of land demised to a tenant is
lost to him by any casualty, as the overflowing of the sea, this
appears to be a case of eviction, in which the tenant may claim an
apportionment of the rent, provided that the loss be total ; for, if
[~*2321 tnere De merery a ^partial irruption of water, the exclusive
right of fishing, which the lessee would thereupon have,
would be such a preception of the profits of the land as to annul
his claim to an apportionment.2 Where, also, land is surrounded
suddenly by the rage or violence of the sea, without any default of
the tenant, or if the surface of a meadow be destroyed by the erup-
tion of a moss, this is no waste (if the injury be repaired in a con-
venient time), but the act of God, that vis major for which the
tenant is not responsible.3

With respect to the liability of either landlord or tenant, where
premises under demise are destroyed by fire, the rule is, that, in
the absence of any special contract between the parties, the land-
lord is never liable to rebuild, even if he has received the value
from an insurance office ;4 neither is the tenant, since the stat. 6
Anne, c. 31, s. 6 ; but the latter is liable to the payment of rent
until the tenancy is determined.5

In Izon v. Gorton,6 the defendants were tenants from year to

year to the plaintiff, of the upper floors of a warehouse, at a rent

payable quarterly ; the premises were destroyed by an accidental

fire in the middle of a quarter, and were wholly untenantable until

rebuilt about seven months after; and it was held that the

relation of ^landlord and tenant was not determined by

1 Reg. v. Leigh, 10 A. & E. 398 (37 E. C. L. R.).

2 1 Roll. Abr. 236, 1. 40; Bac. Abr., " Bent" (M. 2). See Dyer 56.

3 Per Tindal, C. J., Simmons v. Norton, 7 Bing. 647, 648 (20 E. C. L. R.) ;
Com. Dig., " Waste" (E. 5).

4 Pindar v. Ainsley, cited per Buller, J. ; Belfour v. Weston, 1 T. R. 312 ;
Bayne v. Walker, 3 Dow. R. 233 ; Leeds v. Cheetham, 1 Sim. 146 ; with which
ace. Lofft v. Dennis, 1 E. & E. 474, 481 (102 E. C. L. R.).

6 Paradine v. Jene, Aleyn R. 27. As to the stat. 6 Anne, c. 31, see Lord
Lyndhurst's judgment in Viscount Canterbury v. A.-G., 1 PhilL 306.

6 5 Bing. N. C. 591 (35 E. C. L. R.) ; recognised Surplice v. Farnsworth, 8
Scott N. R. 307. See Packer v. Gibbins, 1 Q. B. 421 (41 E. C. L. R.) ; Upton
r. Townend, 17 C. B. 30 (84 E. C. L. R.).

FUNDAMENTAL LEGAL PRINCIPLES. 233

l

the destruction of the premises, but that the defendants remained
liable for the rent until the tenancy should be in the usual way
put an end to, and that such rent was recoverable in assumpsit for
use and occupation.

Where there is a general covenant by the lessee to repair and
leave repaired at the end of the term, the lessee is clearly liable to
rebuild in case of the destruction of the premises by accidental fire,
or by any other unavoidable contingency, as lightning, or an
extraordinary flood. And the principle on which this rule depends
is, that if a party, by his own contract, creates a duty or a charge
upon himself, he is bound to make it good, if he can, notwithstand-
ing any accident by inevitable necessity ; for, if he had chosen to
guard against any loss of this kind, he should have introduced it
into the contract by way of exception ;! and, accordingly, an excep-
tion of accidents caused by fire and tempest is now usually intro-
duced into leases, in order to protect the lessee.

Where the lessee covenants to pay rent, he is, in accordance
with the above principles, bound to pay it whatever injury may
happen to the demised premises;2 *and a tenant from year
to year, in order to free himself from liability in such a L -*
case, should give a regular notice to quit.

The principle under consideration is likewise applicable in other
contracts than those between landlord and tenant.3 Thus, where

1 Paradine v. Jane, Aleyn R. 27 5 cited, per Lord Ellenborough, C. J., 10
East 533, and Spence v. Chodwick, 10 Q. B. 517, 530 (59 E. C. L. R.); per
Lord Campbell, C. J., Hall v. Wright, E., B. & E. 761 (96 E. C. L. R.) ; per
Martin, B., Id. 789; Brown v. Royal Insur. Co., 1 E. & E. 853, 859 (102 E. C.
L. R.) ; arg. Brecknock Co. v. Pritchard, 6 T. R. 751 ; recognised per Lord
Kenyon, C. J., Id. 752 ; Finch Law 64.

"By the common law of England a person who expressly contracts abso-
lutely to do a thing, not naturally impossible, is not excused for non-per-
formance because of being prevented by the act of God." Judgm., Lloyd v.
Guibert, L. R. 1 Q. B. 121, citing Paradine v. Jane, supra.

2 In an action of debt for rent due under a lease, held, that the destruction
of the premises by fire would not excuse the lessee from payment of the rent
according to his covenant: Hallett v. Wylie, 3 Johnson (U. S.) R. 44.

3 "The act of God is in some cases said to excuse the breach of a contract.
This is, in fact, an inaccurate expression, because where it is an answer to a
complaint of an alleged breach of contract, that the thing done or left undone
was so by the act of God, what is meant is, that it was not within the con-
tract." Judgm., Baily v. De Crespigny, L. R. 4 Q. B. 185 ; citing per Maule,

234 broom's legal maxims.

performance of a contract depends on the continued existence of a
given person or thing, a condition may be implied that the impos-
sibility arising from the perishing of the person or thing shall
excuse the performance.1

"Where personal considerations," it has been said,2 "are of the
foundation of the contract, as in cases of principal and agent, and
master and servant, the death of either party puts an end to the
relation ; and in respect of service after the death, the contract is
dissolved, unless there be a stipulation, express or implied, to the
contrary." To an action for breach of a covenant to serve con-
tained in an apprenticeship deed, the defendant, the father of the
apprentice, pleaded that the apprentice was prevented "by the act
of God, to wit, by permanent illness happening and arising after
the making of the indenture, from remaining with or serving" the
plaintiff during the said term; and this plea was held good in
excuse of performance, on the ground that, from the nature of
the contract, it was necessarily to be implied that the continued
r*9qc-] ^existence of the apprentice in a state to perform his part
of it was contemplated by the contracting parties, and that,
if prevented by the act of God, the performance was to be excused.3

Again the plaintiffs contracted to erect certain machinery on the
defendant's premises, at specific prices for particular portions, and
J., Canham v. Barry, 15 C. B. 619 (80 E. C. L. R.) ; and in Mayor of Berwick
v. Oswald, 3 E. & B. 665 (77 E. C. L. R.) ; Shelley's Case, 1 Hep. 98 a;
Brewster v. Kitchell, 1 Salk. 198.

1 Judgm., Taylor v. Caldwell, 3 B. & S. 826 (113 E. C. L. R.).

2 Per Willes, J., Farrow v. Wilson, L. R. 4. C. P. 744, 746.

3 Boast v. Firth, L. R. 4 C. P. 1.

In Hall v. Wright, E., B. & E. 749 (96 E. C. L. R.), Crompton, J., observes,
"Where a contract depends upon personal skill, and the act of God renders
it impossible, as, for instance, in the case of a painter employed to paint a
picture who is struck blind, it may be that the performance might be excused,
and his death might also have the same effect."

And Pollock, C. B., remarks (Id. 793), "All contracts for personal services
which can be performed only during the lifetime of the party contracting,
are subject to the implied condition that he shall be alive to perform them,
and should he die his executor is not liable to an action for the breach of
contract occasioned by his death." See Stubbs v. Holywell R. C, L. R. 2
Ex. 311, 314.

Where incapacity to perform a contract is occasioned by the act of God,
the contractor may be justified in determining the contract. See judgm.,
Cuckson v. Stone, 1 E. & E. 257 (102 E. C. L. R.).

FUNDAMENTAL LEGAL PRINCIPLES. 235

to keep it in repair for two years — the price to be paid upon the
completion of the whole. After some portions of the work had
been finished — other portions being in course of completion — the
premises, with the machinery and materials thereon, were acci-
dentally destroyed by fire: Held, that both parties were excused
from further performance of the contract, but that the plaintiffs
were not entitled to sue in respect of those portions of the work*
which had been completed, the ratio decidendi being thus ex-
pressed:— "The plaintiffs having contracted to do an entire work
for a specific sum, can recover nothing unless the work be done, or
it can be shown that it was the defendant's fault that the work was
incomplete, or that there is something to justify the conclusion that
the parties have entered into a fresh contract."1

*So if the condition of a bond was possible at the time
of making it, and afterwards becomes impossible by the act *■ J
of God, the obligor shall be excused;2 and, it is said, that, if the
condition be in the disjunctive, with liberty to the obligor to do
either of two things at his election, and both are possible at the
time of making the bond, and afterwards one of them becomes
impossible by the act of God, the obligor shall not be bound to
perform the other.3

A., upon the marriage of B., his daughter, covenanted with her
husband, C, his executors, &c, by deed or will, to give, leave, and
bequeath unto B., one eighth part or share (that being an equal
share with his other children) of all the real and personal estate
of which he should die seised or possessed. B. having died in
the lifetime of A., and A. having by will devised and bequeathed
his real and personal estate for the benefit of his widow and some
surviving daughters, it was held that C. had not any right of action
against the executors of A.4

1 Appleby v. Myers, L. R. 2 C. P. 651, 661.

2 Per Williams, J., 9 C. B. N. S. 747 (99 E. C. L. R.) Com. Dig., " Condi-
tion," L. 12, D. 1; 2 Bla. Com. 21st ed., 340; Co. Litt. 206 a; Williams w
Hide, Palm. R. 548. See Roll. Abr. 450, 451.

8 Com. Dig., " Condition," D. 1; Laughter's Case, 5 Rep. 22; followed in
Jones v. How, infra-, Wing. Max., p. 610. See per Crompton, J., Exposito v.
Bowden, 4 E. &B. 974, 975 (82 E. C. L. R.) ; s. c, 7 Id. 763 ; 1 B. & S. 194
(101 E. C. L. R.).

4 Jones v. How, 9 C. B. 1 (67 E. C. L. R.) ; cited arg. L. R. 2 C. P. 237. It
is obvious, however, that a man may, for a good consideration, contract to do

236 broom's legal maxims.

Again, if a lessee covenants to leave a wood in as good a plight
as the wood was in at the time of making the lease, and afterwards
the trees are blown down by tempests, *he is discharged
L " J from his covenant.1 Further, we read, that, where the law
prescribes a means to perfect or settle any right or estate, if, by
the act of God, which no industry can avoid, nor policy prevent,
this means becomes impossible in any circumstance, no one who
was to have been benefited, if the means had been with all circum-
stances executed, shall be prejudiced for not executing it in that
which has thus become impracticable, unless he has been guilty of
some laches, and has neglected something possible for him to
perform.2

In a devise or conveyance of lands, on a condition annexed to
the estate conveyed, which is possible at the time of making it, but
afterwards becomes impossible by the act of God, there, if the
condition is precedent, no estate vests at law or in equity, because
the condition cannot be performed; but, if subsequent, the estate
becomes absolute in the grantee, for the condition is not broken.3
Thus, where a man enfeoffed another, on the condition subsequent
of re-entry, if the feoffor should within a year go to Paris about
the feoffee's affairs, but feoffor died before the year had elapsed,
the estate was held to be absolute in the feoffee.4 So, where a man
devised his estate to his eldest daughter, on condition that she
should marry his nephew on or before her attaining twenty-one
years; but the nephew died young, and the daughter was never
required, and never refused to marry him, but, after his death, and
before attaining twenty-one years, married; it was held, that the
condition was unbroken, having become impossible by the act of
God.5

that which he cannot be sure that he will be able to do (see per Maule, J.,
Canham v. Barry, 15 C. B. 619 (80 E. C. L. R.), and in Jones v. How, 9 C. B.
10 (67 E. G. L. R.), and which may by the actus Dei become impracticable,
and yet be absolutely bound, i. e. bound, on default, to compensate the con-
tractee in damages.

1 1 Rep. 98. 2 Shelley's Case, 1 Rep. 97 b.

3 Com. Dig. " Condition;' D. 1 ; Co. Litt. 206 a ; and Mr. Butler's note (1) \
Id. 218 a, 219 a.

4 Co. Litt. 206 a.

5 Thomas v. Howell, 1 Salk. 170 ; Aislabie v. Rice, 8 Taunt. 459 (4 E. C. L.
E.).

FUNDAMENTAL LEGAL PRINCIPLES. 238

*By the custom of the realm, common carriers are bound
to receive and carry the goods of the subject for a reason- L J
able hire or reward, to take due care of them in their passage, to
deliver them safely and within a reasonable time,1 or in default
thereof to make compensation to the owner for loss, damage, or de-
lay, which happens while the goods are in their custody. Where,
however, such loss, damage, or delay arises from the act of God, as
storms, tempests, and the like, the maxim under consideration applies,
and the loss must fall upon the owner, and not upon the carrier:2
in this case, res perit suo domino.3 For damage occasioned by
acccidental fire, resulting neither from the act of God nor of the
king's enemies, a common carrier, being an insurer, is responsible.4
But where an injury is sustained by a passenger, from an inevitable
accident,5 as, from the upsetting of the coach in consequence of the
horses taking fright, the coach-owner is not liable, provided there
were no negligence in the driver.6 And the breach of a contract
to convey a. passenger from A. to B., if caused by vis major, would
seem to be excusable.7

*Death is a dispensation of Providence which sometimes
renders applicable the rule as to actus Dei; one familiar *- -*
instance of such application occurs where rent is apportioned, under
stat. 11 Geo. 2, c. 19, s. 15 (the provisions of which are extended

1 Taylor v. Great Northern R. C, L. R. 1 C. P. 386.

2 Amies v. Stevens, Stra. 128 ; Trent Navigation v. "Wood, 3 Esp. 127 ; per
Powell. J.. Coggs v. Bernard, 2 Lord Raym. 910, 911 ; per Tindal, C. J., Ross
v. Hill, 2 C. B. 890 (52 E. C. L. R.) ; Walker v. British Guarantee Society, 18
Q. B. 277, 287 (83 E. C. L. R.).

3 As to this maxim, see Bell, Diet, and Dig. of Scotch Law 857 ; Appleby v.
Myers, L. R. 2 C. P. 651, 659, 660 ; Bayne v. Walker, 3 Dow R. 233 ; Payne
v. Meller, 6 Ves. 349 ; Bryant v. Busk, 4 Russ. 1 j Logan v. Le Mesurier, 6
Moo. P. C. C. 116.

4 Story on Bailments, 5th ed., s. 528 ; Collins v. Bristol and Exeter R. C, 1
II. & N. 517.

* As to the meaning of this word, see Fenwick v. Schmalz, L. R. 3 C. P.
313 ; Readhead v. Midland R. C, L. R. 4 Q. B. 379.

8 Aston v. Heaven, 2 Esp. 533 ; per Parke, J., Crofts v. Waterhouse, 3 Bing.
321. See Sharp v. Grey, 9 Bing. 457 ; Perren v. Monmouthshire R. and Can.
Co., 11 C. B. 855.

7 Per Lord Campbell, C. J., Denton v. Great Northern R. C, 25 L. J. Q. B.
129; s. c, 5 E. & B. 860 (85 E. C. L. R.) j Bridden v. Great Northern R. C,
28 L. J. Ex. 51 ; Great Western R. C. of Canada v. Braid, 1 Moo. P. C. C.
101, and cases there cited. See Kearon v. Pearson, 7 II. & N. 386.

239 broom's legal maxims.

by 4 & 5 Will. 4, c. 22), on the death of a lessor who has only a
life estate, and who happens to die before or on the day on which
rent is reserved or made payable. The right to emblements, also,
is referable to the same principle; for those only are entitled to
emblements who have an uncertain estate or interest in land, which
is determined either by the act of God or of th e law, between the
period of sowing and the severance of the crop ; and the object of
the rule respecting emblements is to compensate for the labor and
expense of tilling, sowing, and manuring the land to encourage hus-
bandry and promote the public good, lest in the absence of some
special protection, the ground should remain uncultivated.1 With-
out entering minutely into this subject, the law respecting it (which
will, however, be again adverted to2, may be thus stated: where the
right to occupy land depends on the continuance of the life of the
occupier or some other person, and is determined by the death of
either after the land has been sown, but before severance of the
crop, the occupier, or his personal representatives, as the case may
be, shall be entitled to one crop of that species only which ordi-
narily repays the labor by which it is produced within the
L J year *within which that labor is bestowed, though the crop
may, in extraordinary seasons, be delayed beyond that period.3

The following cases may also be noticed as applicable to the pres-
ent subject, and as showing that death, which is the act of God,
shall not be allowed to prejudice an innocent party if such a result
can be avoided : — Lessor and lessee, in the presence of lessor's
attorney, signed an agreement that a lease should be prepared by
lessor's attorney, and paid for by lessee. The lease was prepared
accordingly, but the lessor, who had only a life estate in the property
to be demised, died, and the lease consequently was never executed.
It was held, that the lessor's attorney was entitled to recover from
lessee the charge for drawing the lease, for it was known to all the
parties that the proposed lessor had only a life estate; and the non-
execution of the lease, was owing to no fault of the attorney, who
ought not, therefore, to remain unpaid.4

1 Co. Litt. 55 a.

2 See the maxim, Quicquid plantatur solo solo cedit—post, Chap. VI. § 2.

3 Judgm., Graves v. Weld, 5 B. & Ad. 117, 118 (27 E. C. L. R.) ; citing
Kingsbury v. Collins, 4 Bing. 202. See, also, Latham v. Atwood, Cro. Car. 515.

2 Webb v. Rhodes, 3 Bing. N. C 732 (32 E. C. L. R.).

For another illustration of the above maxim, see Morris v. Matthews, 2 Q.

FUNDAMENTAL LEGAL PRINCIPLES. 240

The case of Keg. v. The Justices of Leicestershire,1 where a per-
emptory mandamus was issued to Quarter Sessions to hear an
appeal against a bastardy order of two justices, offers another apt
illustration of the maxim now before us. There it appeared that
the appellant, having entered into the proper recognisances, on the
same day sent by post a written notice of his having done so in
pursuance of the stat. 8 & 9 Vict. c. 10, s. 3, addressed to r^0A1-.
*the mother of the child; three days, however, before this L - J
notice was posted, the woman had died, and upon this state of facts
the Sessions refused to hear the appeal, considering that the appel-
lant had not complied with the requirements of the statute. But
the Court of Queen's Bench held that as the duty of the appellant
to give the notice in question was cast upon him by the law, not
by his own voluntary contract he was excused from performing
that duty, inasmuch as it had become impossible by the act of God.2

The above general rule must, however, be applied with due cau-
tion:3 ex. gr., notice of appeal having been given from the decision
of a revising barrister, a case was thereupon drawn up by the bar-
rister, and approved and signed by the attorneys of the respective
parties ; the revising barrister shortly afterwards died, and the case
approved and signed by the two attorneys was found amongst his
papers, but was not signed by him. The Court of Common Pleas
held, that, under the stat. 6 & 7 Vict. c. 18, s. 42, they had no
jurisdiction to hear the appeal, and that the case did not fall within
the operation of the general maxim under consideration.4 And
where, after the indictment — arraignment — the jury charged — and
evidence given on a trial for a capital offence, one of the jurymen
became incapable, through illness, of proceeding to verdict, the
court of oyer and terminer discharged the jury, charged a fresh
jury with the prisoner, and convicted him, although it was argued that
actus Dei nemini nocet, and that the sudden illness *was a
Godsend, of which the prisoner ought to have the benefit.5 *- -*

B. 293 (42 E. C. L. R.). See also per Best, C. J., Tooth v. Bagwell, 3 Bing.
375(11E.C. L.R.).

1 15Q.B. 88 (69E.C.L. R.).

2 See, also, in further illustration of the maxim as to actus Dei, Newton v.
Boodle, 3 C. B. 795 (54 E. C. L. R.).

3 Lord Raym. 433.

4 Nettleton v. Burrell, 8 Scott N. R. 738, 740 ; cited per Maule, J., Pring v.
Estcourt, 4 C. B. 72 (56 E. C. L. R.).

6 R. v. Edwards, 4 Taunt. 309, 312.

242 broom's legal maxims.

Lastly, illness of a material witness is a sufficient ground to
excuse a plaintiff in not proceeding to try, and so would be the
death of one of two co-defendants, no suggestion of it having been
made on the record, the trial being thus suspended by the act of
God.1

Lex non cogit ad Impossibilia.

(Co. Litt.' 231, b.)
The law does not seek to compel a man to do that which he cannot possibly

perform.

This maxim, or, as it is also expressed, impotentia excusat legem,2
is intimately connected with that last considered, and must be under-
stood in this qualified sense, that impotentia excuses when there is a
necessary or invincible disability to perform the mandatory part of
the law, or to forbear the prohibitory.3

The law itself and the administration of it, said Sir W. Scott,
with reference to an alleged infraction of the revenue laws, must
yield to that to which everything must bend — to necessity ; the law,
in its most positive and peremptory injunctions, is understood to
disclaim, as it does in its general aphorisms, all intention of com-
pelling to impossibilities, and the administration of laws must adopt
that general exception in the consideration of all particular cases.
"In the performance of that duty, it has three points to which its
attention must be directed. In the first place, it must see that the
nature of the ""necessity pleaded be such as the law itself
L J would respect, for there may be a necessity which it wTould
not. A necessity created by a man's own act, with a fair previous
knowledge of the consequences that would follow, and under cir-
cumstances which he had then a power of controlling, is of that
nature. Secondly, that the party who was so placed, used all prac-
tical endeavors to surmount the difficulties which already formed
that necessity, and which, on fair trial he found insurmountable. I
do not mean all the endeavors which the wit of man, as it exists in
the acutest understanding, might suggest, but such as may reason-
ably be expected from a fair degree of discretion and an ordinary

1 Pell v. Linnell, L. R. 3 C. P. 441. 2 Co. Litt. 29 a.

8 Hobart 96.

FUNDAMENTAL LEGAL PRINCIPLES. 243

knowledge of business. Thirdly, that all this shall appear by dis-
tinct and unsuspected testimony, for the positive injunctions of the
law, if proved to be violated, can give way to nothing but the clear-
est proof of the necessity that compelled the violation."1

It is, then, a general rule which admits of ample practical illus-
tration, that impotentia excusat legem; where the law creates a duty
or charge, and the party is disabled to perform it, without any
default in him, and has no remedy over, there the law will in general
excuse him:2 ex. gr., If performance of the condition of a bond be
rendered impracticable by an Act of Parliament the obligor will be
discharged.3

The maxim under notice may, in the first place, be exemplified by
reference to the law of mandamus : —

*A writ of mandamus issuing to a railway or other com-
pany, enjoining them to prosecute works in pursuance of *> ■*
statutory requirements, supposes the required act to be possible,
and to be obligatory when the writ issues ; and, in general, the writ
suggests facts showing the obligation, and the possibility of fulfilling
it;4 though, where an obligation is shown to be incumbent on the
company, onus lies upon those who contest the demand of fulfil-
ment of proving that it is impossible ;5 if they succeed in doing so,
the doctrine applies that " on mandamus, nemo tenetur ad impossi-
bilia.,,Q

Again we find it laid down, that, " where H. covenants not to do
an act or thing which was lawful to do, and an Act of Parliament
comes after and compels him to do it, the statute repeals t'he cove-

1 The Generous, 2 Dods. 323, 324.

2 Paradine v. Jane, Aleyn 27 ; cited per Lawrence, J., 8 T. R. 267. See
Evans v. Hutton, 5 Scott N. R. 670, and cases cited, Id. 681.

3 Brown v. Mayor, &c, of London, 9 C. B. N. S. 726 (99 E. C. L. R.) ; s. c,
13 Id. 828.

4 Reg. v. London and North Western R. C, 16 Q. B. 864, 884 (71 E. C/R.
R.) ; Reg. v. Ambergate, &c, R. C, 1E.&B. 372, 381 (72 E. C. L. R.). See
Reg. v. York and North Midland R. C, 1 E. & B. 178 ; s. c, (reversed in
error), Id. 858 ; Reg. v. Great Western R. C, 1 E. & B. 253 ; s. c. (reversed in
error), Id. 874 ; Reg. v. South Eastern R. C, 4 II. L. Cas. 371 ; Reg. v. Lan-
cashire and Yorkshire R. C.,. 1 E. & B. 228 (72 E. C. L. R.) ; s. c. (reversed in
error), Id. 873 (a) ; Tapping on Mandamus 359.

6 Reg. v. York, Newcastle and Berwick R. C, 16 Q. B. 886, 904 (71 E. C.
L. R.) ; Reg. v. Great Western R. C, 1 E. & B. 774 (72 E. C. L. R.).

6 Per Lord Campbell, C. J., Reg. v. Ambergate, &c, R. C, 1 E. & B. 380
(72 E. C. L. R.). See Reg. v. Coaks, 3 E. &. B. 249 (77 E. C. L. R.).

244 broom's legal maxims.

nant. So, if H. covenants to do a thing which is lawful, and an
Act of Parliament comes in and hinders him from doing it, the
covenant is repealed. But, if a man covenants not to do a thing
which then was unlawful, and an Act comes and makes it lawful to
do it, such Act of Parliament does not repeal the covenant."1 If,
before the expiration of the ^running days allowed by a
*- -• charter-party for loading, the performance of his contract
by the shipper becomes, by virtue of an Order in Council, illegal,
he is discharged.2

A declaration in covenant set forth that the defendant demised
by deed certain premises to the plaintiff for a term of years, the
defendant Covenanting that neither he nor his assigns would, during
the term, permit any messuage, &c, to be built on a paddock front-
ing the demised premises. Breaches, 1st, that the defendant during
the term permitted a railway station to be built on the paddock,
2dly; that the defendant assigned the paddock to a railway com-
pany, who erected the railway station on the paddock. To this
declaration the defendant pleaded that after the making of the
lease the railway company required to take the paddock under
statutory powers then conferred on them — that the said company
did for the purposes of their undertaking, compulsorily purchase
and take the paddock, and defendant assigned it to them in com-
pletion of their purchase, and that the company afterwards built
upon such paddock the erections complained of, which were reason-
ably required for the purpose of their undertaking. Replication —
that though the erections were reasonable, it was not necessary or
compulsory for the company to build them. On demurrers to the
above plea and replication, the defendant was, in virtue of the
principal maxim, held entitled to judgment, having been discharged

1 Brewster v. Kitchell, ] Salk. 198 ; Davis v. Cary, 15 Q. B. 418 (69 E. C.
L. R.) ; Wynn v. Shropshire Union R. and Can. Co., 5 Exch. 420, 440, 441 ;
Doe d. Lord Anglesey v. Churchwardens of Rugeley, 6 Q. B. 107, 114 (5J E.
C. L. R.). See also Doe d. Lord Grantley v. Butcher, Id. 115 (b).

'l Reid v. Hoskins, 6 E. & B. 953 1 88 E. C. L. R.) ; s. c, 5 Id. 729, 4 Id. 979 j
Avery v. Bowden, 6 E. & B. 953, 962; s. c, 5 Id. 714. See Esposito v. Bow-
den, 4 E. & B. 963 (82 E. C. L. R.) ; s. c, 7 Id. 763 ; 1 B. & S. 194 ( 101 E. C.
L. R.) ; Pole v. Cetcovitch, 9 C. B. N. S. 430 (99 E. C. L. R.). Parties may
by apt words bind themselves by a contract as to any future state of the law ;
per Maule, J., Mayor of Berwick v. Oswald, 3 E. & B. 665 (77 E. C. L. R.) ;
s. c, 5 II. L. Cas. 856; Mayor of Dartmouth v. Silly, 7 E. & B. 97 (90 E. C.
L. R.)

FUNDAMENTAL LEGAL PRINCIPLES. 246

from his * covenant by the subsequent Act of Parliament, r*94f>-i
which put it out of his power to perform it. In thus decid-
ing, the Court made the following remarks, which are pertinent
to our present subject : —

" There can be no doubt that a man may by an absolute con-
tract bind himself to perform things which subsequently become
impossible, or to pay damages for the non-performance, and this
construction is to be put upon an unqualified undertaking, where
the event which causes the impossibility was, or might have been,
anticipated and guarded against in the contract, or where the
impossibility arises from the act or default of the promissor. But
where the event is of such a character that it cannot reasonably be
supposed to have been in the contemplation of the contracting
parties when the contract was made, they will not be held bound
by general words which, though large enough to include, were not
used with reference to the possibility of the particular contingency
which afterwards happens." The plaintiff in the case above ab-
stracted, was accordingly held to be one of a numerous class of
persons injured by the construction of a railway for whom com-
pensation had not been provided by the legislature.1

If, however, as above stated, a person by his own contract, abso-
lutely engages to do an act, it is deemed to be his own fault and
folly that he did not thereby expressly provide against contingen-
cies, and exempt himself from responsibility in certain events ; in
such case therefore, that is, in the instance of an absolute and
general contract, the performance is not excused by an inevitable
accident or other contingency, although not *foreseen by, r*94.7i
nor within the control of, the party.2 And, if the condi-
tion of a bond be impossible at the time of making it, the condition
alone is void, and the bond shall stand single and unconditional.3

1 Baily v. De Crespigny, L. R. 4 Q. B. 180, 185, 189.

2 Per Lawrence, J., Hadley v. Clarke, 8 T. R. 267 ; per Lord Ellenborough,
C. J., Atkinson v. Ritchie, 13 East 533, 534; Marquis of Bute v. Thompson,
13 M. & W. 487; Hills v. Sughrue, 15 M. & W. 253, 262; Jervis v. Tomkinson,
1 H. & N. 195, 208; Spence v. Chodwick, 10 Q. B. 517, 528 (59 E. C. L. R.)
(recognising Atkinson v. Ritchie, supra) ; Schilizzi v. Derry, 4 E. & B. 873
(82 E. C. L. R.) ; Hale v. Rawson, 4 C. B. N. S. 85 (93 E. C. L. R.) ; Adams
v. Royal Mail Steam Packet Co., 5 C. B. N. S. 492 (94 E. C. L. R.)

3 Co. Litt. 206, a; Sanders v. Coward, 15 M. & W. 48; Judgm., Duvergier
v. Fellows, 5 Bing. 265 (15 E. C. L. R.). See also Dodd, Eng. Lawy. 100.

13

247 broom's legal maxims.

When performance of the. condition of a bond becomes impossible
by the act of the obligor, such impossibility forms no answer to an
action on the bond ;l for " in case of a private contract, a man
cannot use as a defence an impossibility brought upon himself."2
But the performance of a condition shall be excused by the default
of the obligee, as by his absence, when his presence was necessary
for the performance,3 or if he do any act which renders it impossi-
ble for the obligor to perform his engagement.4 And, indeed, it
may be laid down generally, as clear law, that, if there is an obli-
gation defeasible on performance of a certain condition, and the
performance of the condition becomes impossible by the act of the
obligee, the obligor shall be excused from the performance of it.5
r*04.s"i *^t seems> however, that the performance of a condition
precedent, on which a duty attaches, is not excused, where
the prevention arises from the act or conduct of a mere stranger.
If a man, for instance, covenant that his son shall marry the cove-
nantee's daughter, a refusal by her will not discharge the cove-
nantor from making pecuniary satisfaction.6 So, if A. covenant
with C. to enfeoff B., A. is not released from his covenant by B.'s
refusal to accept livery of seisin.7

Where an estate is conveyed on condition expressed in the grant,
and such condition is impossible at the time of its creation, it is
void; and, if it be a condition subsequent, that is to be performed
after the estate is vested, the estate shall become absolute in the
tenant ; as, if a feoffment be made to a man in fee-simple, on con-

1 Judgm., Beswick v. Swindells, 3 A. & E. 883 (30 E. C. L. R.).

2 Per Lord Campbell, C. J., Reg. v. Caledonian R. C, 16 Q. B. 28 (71 E. C.
L. R.).

3 Com. Dig., "Condition" L. 4, 5; cited, per Tindal, C. J., Bryant v.
Beattie, 4 Bing. N. C. 263 (33 E. C. L. R.).

4 Com. Dig. "Condition," L. 6; per Parke, B., Holme v. Guppy, 3 M. & W.
389; Thornhill v. Neats, 8 C. B. N. S. 831, 846 (98 E. C. L. R.); Russell v.
Da Bandeira, 13 Id. 149, 203, 205. See Roberts v. Bury Commissioners, L. R.
4 C. P. 759.

5 Judgm., Hayward v. Bennett, 3 C. B. 417, 418 (54 E. C. L. R.) (citing Co.
Litt. 206, a) ; s. c, 5 C. B. 593.

6 Perkins, s. 756.

7 Co. Litt. 209, a; per Lord Kenyon, C. J., Cook v. Jennings, 7 T. R. 384,
and in Blight v. Page, 3 B. & P. 296, n. See Lloyd v. Crispe, 5 Taunt. 249
(1 E. C. L. R.)j Bac. Abr., "Conditions," Q. 4; cited, Thornton v. Jenyns, 1
Scott N. R. 66.

FUNDAMENTAL LEGAL PRINCIPLES. 248

dition that, unless he goes to Rome in twenty-four hours, the
estate shall determine ; here the condition is void, and the estate
made absolute in the feoffee ;l but if such conduct be precedent,
the grantee shall take nothing by the grant, for he has no estate
until the condition be performed.2

Further, where the consideration for a promise is such that its
performance is utterly and naturally impossible, such consideration
is insufficient, for no benefit can, by *any implication, be r*o4q-i
conferred on the promissor,3 and the law will not notice an
act the completion of which is obviously ridiculous and impracti-
cable. In this case, therefore, the maxim of the Roman law applies
— Impossibilium nulla obligatio est.* Moreover, a promise is not
binding, if the consideration for making it be of such a nature,
that it was not in fact or law in the power of the promisee, from
whom it moved, to complete such consideration, and to confer on
the promissor the full benefit meant to be derived therefrom.5 Thus,
if a man contract to pay a sum of money in consideration that
another has contracted to do certain things, and it should turn out
before anything is done under the contract, that the latter party
was incapable of doing what he engaged to do, the contract is at an
end ; the party contracting to pay his money is under no obliga-
tion to pay for a less consideration than that for which he has stipu-
lated.6 But if a party by his contract lay a charge upon himself,
he is bound to perform the stipulated act, or to pay damages for
the non-completion,7 unless the subject-matter of the contract were
at the time manifestly and essentially impracticable ; for the im-
probability of the performance does not render the promise void,

1 Co. Litt. 206 a; Com. Dig., "Condition," D. 1 ; 1 Fonbl. Eq., 5th ed., 212.

2 Id. per Cockburn, C. J., Earl of Shrewsbury v. Scott, 6 C. B. N. S. 173
(95 E. C. L. R.). In regard to the distinction between conditions precedent
and conditions subsequent, the leading case is Egerton v. Earl Brownlow, 4
H. L. Cas. 1. See Clavering v. Ellison, 7 H. L. Cas. 720.

3 Chanter v. Leese, 4 M. & W. 295 ; per Holt, C. J., Courtenay v. Strong,
2 Lord Raym. 1219.

4 D. 50. 17. 185 ; 1 Pothier, Oblig., pt. 1, c. 1, s. 4, \ 3 ; 2 Story, Eq. Jurisp.,
6th ed., 763.

6 Harvey v. Gibbons, 2 Lev. 161 ; Nerot v. Wallace, 3 T. R. 17.

6 Per Lord Abinger, C. B., 4 M. & W. 311.

7 See Thornborow v. Whitacre, 2 Lord Raym. 1164; Pope v. Bavidge, 10
Exch. 73 ; Hale v. Rawson, 4 C. B. N. S. 85, 95 (93 E. C. L. R.).

249 broom's legal maxims.

because the contracting party is presumed to know whether the
completion of the duty he undertakes be within his power; and,
therefore, an engagement upon a sufficient consideration for the per-
r*9^01 f°rmance °f an act> even Dy a thir(l person, 13 binding,
*although the performance of such act depends entirely on
the will of the latter.1 Neither will the promissor be excused, if the
performance of his promise be rendered impossible by the act of a
third party ;2 although if an exercise of public authority render im-
possible the further performance of a contract which has been in
part performed, the contract is, ipso facto, dissolved.3

However, if a party, by his own act, disables himself from fulfill-
ing his contract, he thereby makes himself at once liable for a
breach of it, and dispenses with the necessity of any request to per-
form it by the party with whom the contract has been made ;4 and
this is in accordance with an important rule of law, and which we shall
presently consider ; viz., " that a man shall not take advantage of
his own wrong."5

To a declaration for breach of promise of marriage, a plea that
after the promise, and before breach, the defendant became afflicted
with disease, which rendered him "incapable of marriage without
great danger of his life, and therefore unfit for the married state,"
was recently held bad,5 in accordance with the general rule that a

1 1 Pothier, Oblig., pt. 1, c. 1, s. 4, \ 2; M'Neill v. Reid, 9 Bing. 68 (23 E.
C. L. R.).

2 Thurnell v. Balbirnie, 2 M. & W. 786 j Brogden v. Marriott, 2 Bing. N. C.
473 (29 E. C. L. R.).

3 Melville v. De Wolf, 4 E. & B. 844, 850 (82 E. C. L. R) ; Esposito v. Bow-
den, Id. 963, 976.

4 Lovelock v. Franklin, 8 Q. B. 371 (55 E. C. L. R.) ; Hochster v. De la
Tour, 2 E. & B. 678 (15 E. C. L. R.) ; cited and distinguished in Churchward
v Reg., L. R. 1 Q. B. 208 ; per Williams, J ., 3 C. B. N. S. 166 (91 E. C. L. R) ;
Danube, &c, R. C. v. Xenos, 13 C. B. N. S. 825 (106 E. C. L. R.) ; Lewis v.
Clifton, 14 C. B. 245.(78 E. C. L. R.) ; arg. Reid v. Hoskins, 6E.&B. 960-1
(88 E. C. L. R.), and 5 Id. 737, 4 Id. 982 ; Avery v. Bowden, 5 E. & B. 722
(85 E. C. L. R.) ; s. c, 6 Id. 953. See Jonassohn v. Young, 4 B. & S. 300 (116
E. C. L. R.).

6 Post, p. 279.

• Hall v. Wright, E., B. & E. 746 (96 E. C. L. R.) .See Beachey v. Brown,
Id. 796 ; Baker v. Cartwright, 10 C. B. N. S. 124 (100 E. C. L. R.).

Quaere, whether the decision in Reg. v. Millis, 10 CI. & F. 534, applies to a
marriage "of necessity entered into where the presence of a minister in holy

FUNDAMENTAL LEGAL PRINCIPLES. 251

*man who has voluntarily contracted shall either perform r*or-i-i
his contract or pay damages for breach of it, the plea,
moreover, not showing an impossibility of performance.

The following additional illustrations of the maxim before us may
also be specified. Where documents are stated in the answer to a
bill in equity to be in the possession of A., B., and C, the Court
will not order that A. shall produce them, and that, as observed by
Lord Cottenham, for the best possible reason, viz., that he could
not produce them.1 So, to render a man tenant by the curtesy of
land, it is necessary that the wife should have had actual seisin or
possession of the land, and not merely a bare right to possess ; and
therefore a man cannot be tenant by the curtesy of a remainder or
reversion.2 There are, however, some incorporeal hereditaments of
which a man may be tenant by the curtesy, though there have been
no actual seisin of the wife ; as in the case of an advowson in gross,
where the church has not become void in the lifetime of the wife,
which a man may hold by the curtesy, because it is impossible ever
to have actual seisin of it, and impotentia excusat legem.3

The appellant having applied to justices to state a case under the
stat. 20 & 21 Vict. c. 43, received the case from them on Good
Friday, and transmitted it to the proper Court on the following
Wednesday. He was held to have sufficiently complied with the
requirements of the second section of the Act, which directs that
the case shall be *transmitted by the appellant within three r*ono-i
days after he has received it; for the offices of the Court
having been closed from Friday till Wednesday it would have been
impossible to have transmitted the case sooner.4

To several maxims in some measure connected with that above
considered, it may, in conclusion, be proper briefly to advert.
First, it is a rule, that lex spectat naturce ordinem,5 the law respects
the order and course of nature, and will not force a man to demand

orders may have been impossible." Per Lord Cranworth, Beamish v. Beam-
ish, 9 H. L. Cas. 348 ; per Lord Wensleydale, Id. 352.

1 Murray v. Walter, 1 Cr. & Ph. 124. See Taylor v. Rundell, Id. 111.

2 2 Com. by Broom & Hadley 247. 3 Id. 248.

4 Mayor v. Harding, L. R. 2 Q. B. 410, where Mellor, J., says, that where
a statute requires a thing to be done within any particular time, such time
may be circumscribed by the fact of its being impossible to comply with the
statute on the last day of the period so fixed.

6 Co. Litt. 197, b.

252 broom's legal maxims.

that which he cannot recover.1 Thus, where the thing sued for by
tenants in common is in its nature entire, as in a quare impedit, or
in detinue for a chattel, they must of necessity join in the action,
contrary to the rule which in other cases obtains, and according to
which they must sue separately.2 Secondly, it is a maxim of our
legal authors, as well as a dictate of common sense, that the law
will not itself attempt to do an act which would be vain, lex nil
frustra facit, nor to enforce one which would be frivolous — lex
neminem cogit ad vana seu inutilia, — the law will not, in the lan-
guage of the old reports, enforce any one to do a thing which will
be vain and fruitless.3

I"*25T1 *IGN0RANTIA Facti excusat— Ignorantia Juris

NON EXCUSAT.

(Gr. and Rud. of Law 140, 141.)

Ignorance of fact excuses — ignorance of the law does not excuse.*

Ignorance may be either of law or of fact — for instance, if the
heir is ignorant of the death of his ancestor, he is ignorant of a
fact ; but, if being aware of his death, and of his own relationship,
he is nevertheless ignorant that certain rights have thereby become
vested in himself, he is ignorant of the law.5 Such is the example

1 Litt.; s. 129 ; Co. Litt. 197 b.

2 Litt., s. 314 ; cited Marson v. Short, 2 Bing. N. C. 120 (29 E. C. L. R.) ;
Co. Litt. 197 b.

" One tenant in common cannot be treated as a wrong-doer by another,
except for some act which amounts to an ouster of his co-tenant, or to a
destruction of the common property." Per Smith, J., Jacobs v. Seward, L.
R. 4 C. P. 329, 330.

3 Per Kent, C. J., 3 Johnson (U. S.) R. 598; 5 Rep. 21 ; Co. Litt. 127 b.,
cited, 2 Bing. N. C. 121 ; Wing. Max., p. 600; R. v. Bishop of London, 14
East 420 (a) ; per Willes, J., Bell v. Midland R. C, 10 C. B. N. S. 306 (100
E. C. L.R.).

4 " It is said ignorantia juris haud excusat, but in that maxim the word
jus is used in the sense of denoting general law, the ordinary law of the
country." "When the word jus is used in the sense of denoting a private
right, that maxim has no application." Per Lord Westbury, Cooper v.
Phipps, L. R. 2 H. L. 170.

5 D. 22. 6. 1. The doctrines of the Roman law upon the subject treated in
the text are shortly stated in 1 Spence's Chan. Juris. 632-3.

FUNDAMENTAL LEGAL PRINCIPLES. 253

given to illustrate the distinction between ignorantia juris and
ignorantia facti in the Civil Law, where the general rule upon the
subject is thus laid down : Regula est, juris quidem ignorantiam
cuique nocere, facti vera ignorantiam non nocere1 — ignorance of a
material fact may excuse a party from the legal consequences of
his conduct; but ignorance of the law, which every man is pre-
sumed to know, does not afford excuse — ignorantia juris, quod
quisque scire tenetur, neminem excusat.2 With respect to the
"presumption of legal knowledge" here spoken of, we may ob-
serve, that, although ignorance of the law does not excuse persons,
so as to exempt them from the consequences of their acts, as, for
example, from *punishment for a criminal offence,3 or r^nrjn
damages for breach of contract, the law nevertheless takes
'notice that there may be a doubtful point of law, and that a person
may be ignorant of the law, and it is quite evident that ignorance
of the lawT does in reality exist.4 It would, for instance, be con-
trary to common sense to assert, that every person is acquainted
with the practice of the Courts ; although, in such a case, there is
a presumption of knowledge to this extent, that ignorantia juris non
excusat, the rules of practice must be observed, and any deviation
from them will entail consequences detrimental to the suitor.5 It

1 D. 22. 6. 9 pr. ; Cod. 1. 18. 10. The same rule is likewise laid down in
the Basilica, 2. 4. 9. See Irving's Civil Law, 4th ed., 74.

2 2 Rep. 3 b ; 1 Plowd. 343 ; per Lord Campbell, 9 CI. & F. 324 ; per Erie,
C. J., Pooley v. Brown, 11 C. B. N. S. 575 (103 E. C. L. R.) ; Kitchen v.
Hawkins, L. R. 2 C. P. 22.

3 Post, p. 267.

4 " The maxim is ignorantia legis neminem excusat, but there is no maxim
which says that for all intents and purposes a person must be taken to know
the legal consequences of his acts." Per Lush, J., L. R. 3 Q. B. 639.

In reference *to the equitable doctrine of election, Lord Westbury, C,
observes, that although " it is true as a general proposition that knowledge
of the law must be imputed to every person," " it would be too much to
impute knowledge of this rule of equity." Spread v. Morgan, 11 H. L.
Cas. 602.

See also, Noble v. Noble, L. R. 1 P. & D. 691, 693.

8 See per Maule, J., Martindale v. Falkner, 2 C. B. 719, 720 (52 E. 0. L.
R.) ; cited per Blackburn, J., Reg. v. Mayor of Tewkesbury, L. R. 3 Q. B.
635; per Willes, J., Poole v. Whitcomb, 12 C. B. N. S. 775 (104 E. C. L. R.) ;
per Lord Mansfield, C. J., Jones v. Randall, 1 Cowp. 40; per Coltman, J.,
Sargent v. Gannon, 7 C. B. 752 (62 E. C. L. R.) ; Edwards v. Ward, 4 C. B.
315 (56 E. C. L. R.). See also Newton v. Belcher, 12 Q. B. 921 (64 E. C. L.
R.) ; Newton v. Liddiard, Id. 925.

254 broom's legal maxims.

is, therefore, in the above qualified sense alone that the saying,
that " all men are presumed cognisant of the law,"1 must be under-
stood.

The following case, decided by the House of Lords, will illustrate
the above general rule, and will likewise show that our Courts must
necessarily recognise the existence of doubtful points of law, since
the adjustment of claims involving them is allowed to be a good
consideration for a promise,2 and to sustain an agreement between
r the *litigating parties : — The widow, brother, and sister, of

L *'-' an American who died in Italy, leaving considerable per-
sonal estate in the hands of trustees in Scotland, agreed, by advice
of their law agent, to compromise their respective claims to the
succession, by taking equal shares. The widow, after receiving her
share, brought an action in Scotland to rescind the agreement, on
the ground of having thereby sustained injury, through ignorance
of her legal rights and the erroneous advice of the law agent ; there
was, however, no allegation of fraud against him or against the
parties to the agreement. It was held, that, although the fair
inference from the evidence was, that she was ignorant of her legal
rights, and would not have entered into the agreement had she
known them, yet as the extent of her ignorance and of the injury
sustained was doubtful, and there was no proof of fraud or im-
proper conduct on the part of the agent, she was bound by his acts,
and affected by the knowledge which he was presumed to have of
her rights, and was therefore not entitled to disturb the arrange-
ment which had been effected.3

"If," remarked Lord Cotterham, C, in the above case, "it were
necessary to show knowledge in the principal, and a distinct under-
standing of all the rights and interests affected by the complicated
arrangements which are constantly taking place in families, very
few, if any, could be supported."

It is, then, a true rule, if understood in the sense above assigned
to it, that every man must be taken to be cognisant of the law ; for
otherwise, as observed by Lord Ellenborough, C. J., there is no

1 Grounds and Rudiments of the Law 141.

2 Per Maule, J., 2 C. B. 720 (52 E. C. L. R.). See Wade v. Simeon, 1 C.
B. 610 (50 E. C. L. R.).

3 Stewart v. Stewart, 6 CI. & Fin. 911 5 Clifton v. Cockburn, 3 My. & K. 99;
vide Cod. 1. 18. 2 ; Teede v. Johnson, 11 Exch. 840.

FUNDAMENTAL LEGAL PRINCIPLES. 255 ^t

saying to what extent the *excuse of ignorance might not r5K0-A1
be carried; it would be urged in almost every case;1 and, ■- J
from this rule, coupled with that as to ignorance of fact, are de-
rived the two following important propositions : — 1st, that money
paid with full knowledge of the facts, but through ignorance of the
law, is not recoverable, if there be nothing unconscientious in the
retaining of it ; and, 2dly, that money paid in ignorance of the
facts is recoverable, provided there have been no laches in the
party paying it, and there was no ground to claim it in conscience.2

In a leading case on the first of the above rules, the facts were
these — the captain of a king's ship brought home in her public
treasure upon the public service, and treasure of individuals, for
his own emolument. He received freight for both, and paid over
one-third of it, according to an established usage in the navy, to
the admiral under whose command he sailed. Discovering, how-
ever, that the law did not compel captains to pay to admirals one-
third of the freight, the captain brought an action for money had
and received, to recover it back from the admiral's executrix ; and
it was held that he could not recover back- the private freight,
because the whole of that transaction was illegal ; nor the public
freight, because he had paid it with full knowledge of the facts,
although in ignorance of the law, and because it was not against
conscience for the executrix to retain it.3

*The following cases may also here be noticed: — A., r*2571
tenant to B., received notice from C, a mortgagee of B.'s
term, that the interest was in arrear, and requiring payment to her

1 Bilbie v. Lumley, 2 East 469 5 Preface to Co. Litt. ; Gomery v. Bond, 3
M. & S. 378.

2 See note to Marriot v. Hampton, 2 Smith L. C, 6th ed., 376 et seq. ; Wil-
kinson v. Johnston, 3 B. & C. 429 (10 E. C. L. R.) ; per Lord Mansfield, C.
J., Bize v. Dickason, 1 T. R. 286, 287 ; Piatt v. Bromage, 24 L. J. Ex. 63.
See Lee v. Merrett, 8 Q. B. 820 (55 E. C. L. R.), observed upon in Gingell v.
Purkins, 4 Exch. 723, recognising Standish v. Ross, 3 Exch. 527.

8 Brisbane v. Dacres, 5 Taunt. 143 (1 E. C. L. R.) ; per Lord Ellenborough,
C. J., Bilbie v. Lumley, 2 East 470 ; Cumming v. Bedborough, 15 M. & W.
438; Branston v. Robins, 4 Bing. 11 (13 E. C. L. R.); Stevens v. Lynch, 12
East 38 ; per Lord Eldon, C, Bromley v. Holland, 7 Ves. jun. 23 ; Lowry v.
Bourdieu, Dougl. 468 ; Gomery v. Bond, 3 M. & S. 378 ; Lothian v. Henderson,
3 B. & P. 420 ; Dew v. Parsons, 2 B. & Aid. 562 (22 E. C. L. R.). See arg.
Gibson v. Bruce, 6 Scott, N. R. 309 5 Smith v. Bromley, cited 2 Dougl. 696,
and 6 Scott N. R. 318 ; Atkinson v. Denby, 6 H. & N. 778 ; s. c, 7 Id. 934.

257 broom's legal maxims.

(C.) of the rent then due. A., notwithstanding this notice, paid the
rent to B. and was afterwards compelled, by distress, to pay the
amount over again to C. Held, that the money having been paid
to B. with full knowledge of the facts, could not be recovered
back.1

In an action for money paid to the defendant's use by drawer
against acceptor of an accommodation bill, the plaintiff must show
not merely that the money paid pro tanto discharges the liability of
the acceptor to the holder of the bill, but also that it was paid at
the request, express or implied, of the defendant — a mere volun-
tary payment by the plaintiff Avill not entitle him to recover.2

Where, however, there is bona fides, and money is paid with full
knowledge of the facts, though there be no debt, still it cannot be
recovered back ;3 as, where an underwriter having paid the loss,
sought to recover the amount paid, on the ground that a material
circumstance had been concealed; it appearing, however, that he
knew of this at the time of the adjustment, it was held that he could
P^oco-i not *recover.4 And the same principle has been held to
extend to an allowance on account, as being equivalent for
this purpose to the payment of money.5

Secondly, when money paid by the plaintiff to the defendant
under a bond fide forgetfulness or ignorance6 of facts, which disen-
titled the defendant to receive it, may be recovered back as money

1 Higgs v. Scott, 7 C. B. 63 (62 E. C. L. R.). See Wilton v. Dunn, 17 Q. B.
294 (79 E. C. L. R.).

3 Sleigh v. Sleigh, 5 Exch. 514.

» Per Patteson, J., Duke de Cadaval v. Collins, 4 A. & E. 866 (31 E. C. L.
R.) ; Bloor v. Huston, 15 C. B. 266 (80 E. C. L. R.). See the maxim, Volenti
nonfit injuria — post, p. 268.

4 Bilbie v. Lumley, 2 East 469 ; Gomery v. Bond, 3 M. &. S. 378 ; Lothian
v. Henderson, 3 B. &. P. 420.

6 Skyring v. Greenwood, 4 B. & C. 281 (10 E. C. L. R.) ; cited and recog-
nised, Bate v. Lawrence, 8 Scott N. R. 131, in Reg. v. Lords of the Treasury,
16 Q. B. 362 (71 E. C. L. R.), and in Swan v. North British Australasian
Co., 7 H. & N. 632; per Best, C. J., Bramston v. Robins, 4 Bing. 15 (13 E.
C. L. R.) ; Holland v. Russell, 4 B. & S. 14 (116 E. C. L. R.) ; Cave v. Mills,
7 H. & N. 925, 926 (cited, ante, p. 169). As to the question,— when may
an account settled between parties be reopened on the ground of error? see
M'Kellar v. Wallace, 8 Moore P. C. C. 378 ; Perry v. Attwood, 6 E. & B. 691
(88 E. C. L. R.).

«D. 12.6. 1.

FUNDAMENTAL LEGAL PRINCIPLES. 258

had and received.1 The principle, it has been said,2 upon which the
action for money had and received to recover money paid by mis-
take is maintainable, is clear and simple — " No man should by law
be deprived of his money which he has parted with under a mistake,
and where it is against justice and conscience that the receiver should
retain it. If A. pay money to B. supposing him to be the agent of
C, to whom he owes the money, and B. be not the agent, it may be
"'recovered back again. If A. and B. are settling an r*259~]
account, and make a mistake in summing up the items —
A. paysB. 100?. too much — he may recover it back again ;" but the
law is different where money is paid with full knowledge of the facts.3
Where, however, money is paid to another under the influence of
a mistake, that is, upon the supposition that a specific fact is true,
which would entitle the other to the money, but which fact is untrue,
and the money would not have been paid if it had been known to
the payer that the fact was untrue, an action will lie to recover it
back, and it is against conscience to retain it,4 though a demand may
be necessary in those cases in which the party receiving may have
been ignorant of the mistake. If, indeed, the money is intentionally
paid, without reference to the truth or falsehood of the fact, the
plaintiff, being a mere volunteer,5 or if the plaintiff mean to waive

1 Kelly v. Solari, 9 M. & W. 54 (cited and distinguished per Erie, C. J.,
Chambers v. Miller, 13 C. B. N. S. 133 (76 E. C. L. R.) ; Lucas v. Worswick,
1 Moo. & Rob. 293 ; Strickland v. Turner, 7 Exch. 208 ; cited per Pollock, C.
B., 8 Exch. 49; Mills v. Alderbury Union, 3 Exch. 590; Barber v. Brown, 1
C. B. N. S. 121 (87 E. C. L. R.).

"It seems from a long series of cases from Kelly v. Solari (supra) , down to
Dails v. Lloyd, 12 Q. B. 531 (64 E. C. L. R.), that where a party pays money
under a mistake of fact he is entitled to recover it back , although he may at
the time of the payment have had means of knowledge of which he has
neglected to avail himself;" per Erie, C. J., Townsend v. Crowdy, 8 C. B. N.
S. 493-4 (98 E. C. L. R.) ; Stewart v. London and Northwestern R. C, 3 H.
&C. 135.

2 Per Kelly, C. B., Freeman v. Jeffries, L. R. 4 Ex. 197, 198.

3 Ante, p. 257.

4 See Milnes v. Duncan, 6 B. & C. 671 (13 E. C. L. R.) ; Bize v. Dickason,
1 T. R. 285; cited per Mansfield, C.J., Brisbane v. Dacres, 5 Taunt. 162 (1
E. C. L. R.) ; Harris v. Lloyd, 5 M. & W. 432. It is a good plea to an action
on a promissory note that the note was obtained by a misrepresentation,
whether of law or of fact: Southall v. Rigg, and Forman v. Wright, 11 C. B.
481, 492-3 (73 E. C. L. R.).

6 See Aiken v. Short, 1 H. & N. 210. It is obvious that "if a person vol-
untarily pays money for another, he cannot sue the latter for it; in order to

259 broom's legal maxims.

all inquiry into the fact,1 and that the person receiving shall have
the money at all events whether it be true or false, the latter is
certainly entitled to retain it; but if it is paid under the impression
of a fact which is untrue, it may, generally speaking, be recovered
back, however careless the party paying may have been in omitting
P2601 to use *^ue diligence, or to inquire into the fact ;2 and,
therefore, it does not seem to be a true position in point of
law, that a person so paying is precluded from recovering by laches,
in not availing himself of the means of knowledge in his power,3
though, if there be evidence of means of knowledge, the jury will
very readily infer actual knowledge.4

In an action on a marine policy of insurance, the question was,
whether the captain of a vessel which sailed to a blockaded port
knew of the blockade at a particular period ; and it was observed
by Lord Tenterden, C. J., that, if the possibility or even proba-
bility of actual knowledge should be considered as legal proof of
the fact of actual knowledge, as a presumptio juris et de jure, the
presumption might, in some cases, be contrary to the fact, and
such a rule might work injustice; and that the question, as to the
knowledge possessed by a person of a given fact, was for the
decision and judgment of the jury. It was also remarked, in the
same case, that the probability of actual knowledge upon considera-
tion of time, place, the opportunities of testimony, and other cir-
cumstances, may in some instances be so strong and cogent as to
cast the proof of ignorance on the other side in the opinion of the
jury, and, in the absence of such proof of ignorance, to lead them
to infer knowledge ; but that such inference properly belongs to
them.5

render him liable, it must be shown that there was a previous authority or an
adoption of the payment;" per Martin, B., Wycombe Union v. Eton Union,
1 II. & N. 699.

1 Per Willes, J., Townsend v. Crowdy, 8 C. B. N. S. 490 (98 E. C. L. E.).

2 Per Parke, B., Kelly v. Solari, 9 M. & W. 58, 59, recognised Bell v.
Gardiner, 4 Scott N. R. 621, 633, 634; per Ashhurst, J., Chatfield v. Paxton,
cited 2 East 471, n. (a). See D 22. 6. 9. g 2.

3 Per Parke, B., 9 M. & W. 58, 59, controverting the dictum of Bayley, J.,
in Milnes v. Duncan, 6 B. & C. 671 (13 E. C. L. R.); Lucas v. Worswick, 1
Moo. & Rob. 293; Bell v. Gardiner, 4 Scott N. R. 621, 635. See per Dallas,
C. J., Martin v. Morgan, 1 B. & B. 291 (5 E. C. L. R.).

4 Per Coltman, J., 4 Scott N. R. 633.

6 Harratt v. Wise, 9 B. & C. 712, 717 (17 E. C. L. R.).

FUNDAMENTAL LEGAL PRINCIPLES. 261

*In ejectment by A., claiming title under a second mort- rtofiil
gage, it was held that a tenant, who had paid rent to the
lessor of the plaintiff under a mistake of the facts, although
estopped from disputing A.'s title at the time of the demise, might
nevertheless show in defence a prior mortgage to B., together with
notice from, and payment of rent to B. ; and that he was not pre-
cluded from this defence by having paid rent to A. under a
mistake.1

Although a tenancy from year to year is ordinarily implied from
the mere receipt of rent, this presumption may be rebutted by
showing that it was received in ignorance of the death of a party,
upon whose life the premises were held.2

A policy of insurance was granted by the defendants on the life
of A., at a certain premium, payable on the 13th of October in
each year — with a condition that the policy should be void, inter
alia, " if the premiums were not paid within thirty days after they
should respectively become due, but that the policy might be revived
within three calendar months on satisfactory proof of the health of
the party on whose life the insurance was made," and payment of
a certain fine. On the 13th of October, 1855, an annual premium
became due, and on the 12th of November following A. died, the
premium remaining unpaid, and the thirty days allowed by the con-
dition having then expired. On the 14th of November the plaintiff
for whose benefit the policy had been effected, sent the defendants
a check for the premium, for which on the next day cash was ob-
tained, and a receipt given as for *"the premium for the r*ofio-|
renewal of the policy to October 13, 1856, inclusive," —
both parties being ignorant that A. was then dead. The policy
was held not to have been revived by the payment — the whole
transaction, including such payment and receipt, having been
" founded upon a mistake."3

Further, it has been stated,4 as a general rule, that "in matters

1 Doe d. Higgmbotham v. Barton, 11 A. & E. 307 (39 E. C. L. R.). See also
Watson v. Lane, 11 Exch. 769; Perrott v. Perrott, 14 East 422, which was a
case as to the cancellation of a will.

2 Doc d. Lord v. Crago, 6 C. B. 90 (60 E. C. L. R.).

3 Pritchard v. Merchants' Life Assurance Co., 3 C. B. N. S. 622 (91 E. C.
L. R.).

4 Per Pollock, C. B., Emery v. Webster, 9 Exch. 242, 246, which well illus-
trates the proposition in the text.

262 broom's legal maxims.

connected with the administration of justice where a mistake is
discovered, before any further step is taken, the Court interferes
to cure the mistake, taking care that the opposite party shall not
be put to any expense in consequence of the application to amend
the error." In some cases also, where at the time of applying to
the Court, the applicant is ignorant of circumstances material to
the subject-matter of his motion, he may be permitted to open the
proceedings afresh ; for instance, under very peculiar circumstances
the Court re-opened a rule for a criminal information, it appearing
that the affidavits on which the rule had been discharged were
false.1

In Courts of equity, as well as of law, the twofold maxim under
consideration is admitted to hold true ; for on the one hand it is a
general rule, in accordance with the maxim of the civil law, non
videntur qui errant consentire,2 that equity will relieve where an
act has been done, or contract made, under a mistake, or ignorance
r*9fim °^ a mate"a^ f{lct f anc^ on tne otner hand, it is *laid down
as a general proposition, that in Courts of equity the igno-
rance of the law shall not affect agreements, nor excuse from the
legal consequences of particular acts,4 and this rule, as observed by
Mr. J. Story, is fully borne out by the authorities.5 For instance,
a bill was filed, to redeem an annuity, suggesting that it was part
of the agreement, that it should be redeemable, but that the clause
for redemption was left out of the annuity deed, under the idea
that, if inserted, the transaction would be usurious: the Court
refused relief, no case of fraud being established by the evidence.6

1 K. v. Eve, 5 A. & E. 780 (31 E. C. L. R.) ; Bodfield v. Padmore, Id. 785, n.
2D. 50. 17. 116, §2.

3 1 Story, Eq. Jurisp., 6th ed., 165. See Scott v. Littledale, 8 E. & B. 815
(92 E. C. L. R.) ; Simmons v. Heseltine, 5 C. B. N. S. 554, 565 (94 E. C. L.
R.).

If parties contract under a mutual mistake and misapprehension as to their
relative and respective rights, the agreement thus made is liable to be set
aside in equity as having proceeded upon a common mistake : Cooper v. Phibbs,
L. R. 2 II. L. 149, 170.

4 1 Fonbl. Eq., 5th ed., 119, note.

5 1 Story, Eq. Jurisp., 6th ed., 128. The case of The Directors of the Mid-
land Great Western R. C. v. Johnson, 6 H. L. Ca«. 798, illustrates the text.

6 Lord Irnham v. Child, 1 Brown C. C. 92 ; cited and distinguished per
Lord Eldon, C, Marquis Townshend v. Stangroom, 6 Ves. jun. 3^2 ; per Lord

FUNDAMENTAL LEGAL PRINCIPLES. 263

Where a deed of appointment was executed absolutely, without
introducing a power of revocation, which was contained in the deed
creating the power, and this omission was made through a mistake
in law. and on the supposition that the deed of appointment, being
a voluntary deed, was therefore revocable, relief was likewise
i\ fused by the Court.1 So, where two are jointly bound by a bond,
and the obligee releases one, supposing, erroneously, that the other
will remain bound, the obligee will not be relieved in equity upon
the mere ground of his mistake of the law, for ignorantia juris non
excusat.2 Nor will a Court of *equity direct payments, r^.nRArx
made under a mistaken construction of a doubtful clause *- -*
in a settlement, to be refunded after many years of acquiescence
by all parties, and after the death of one of the authors of the
settlement, especially where subsequent family arrangements have
proceeded on the footing of that construction.3 It is, however,
well settled that a Court of equity will relieve against a mistake or
ignorance of fact; and in several cases, which are sometimes cited
as exceptions to the general rule as to ignorantia juris, it will be
found that there was a mistake or misrepresentation of fact suffi-
cient to justify a Court of equity in interfering to give relief.4 In
a leading case,5 illustrative of this remark, the testator, being a
freeman of the city of London, left to his daughter a legacy of
£10,000, upon condition that she should release her orphanage
part, together with all her claim or right to his personal estate, by
virtue of the custom6 of the city of London or otherwise. Upon
her father's death, his daughter accepted the legacy, and executed
the release, and, before executing it, her brother informed her that
she had it in her election either to have an account of her father's

Hardwicke, C, Pullen v. Ready, 2 Atk. 591 ; Mildmay v. Hungerford, 2 Vern.
243. See Judgni., Hunt v. Rousmaniere's Administrators, 1 Peters (U. S.) R.
1, 15 ; commenting on Lansdowne v. Lansdowne, 2 Jac. & W. 205.

1 Worrall v. Jacob, 3 Meriv. 256, 271.

2 Harinan v. Cam, 4 Vin. Abr. 387, pi. 3; 1 Fonbl. Eq.. 5th ed., 119, note.

3 Clifton v. Cockburn, 3 My. & K. 76 ; A.-G. v. Mayor of Exeter, 3 Russ.
395.

4 The reader is referred to 1 Story, Eq. Jurisp., 6th ed., Chap. V., where
the cases are considered.

6 Pusey v. Desbouvrie, 3 P. Wins. 315. See also M'Carthy v. Decaix, 2 R.
& M. 614.
6 See Pulling, Laws and Customs of London 180 et seq.

/

264 broom's legal maxims.

personal estate, or to claim her orphanage part. Upon a bill after-
wards filed by the husband of the daughter in her right against the
brother, who was executor under the will, Lord Talbot, C, expressed
an opinion1 that the release should be set aside, and the daughter
T*2firl ^e rest°red to her orphanage *share, which amounted to up-
wards of 40,000Z. The decision thus expressed seems, in
part, to have rested on the ground, that the daughter had not been in-
informed of the actual amount to which she would be entitled under the
custom, and did not appear to have known that she was entitled to
have an account taken of the personal estate of her father, and
that when she should be fully apprised of this, and not till then,
she was to make her election; and it is a rule that a party is
always entitled to a clear knowledge of the funds between which he
is to elect before he is put to his election.2 In like manner, it has
been held, in a recent case, which is frequently cited with reference
to this subject, that, where a person agrees to give up his claim to
property in favor of another, such renunciation will not be support-
ed if, at the time of making it, he was ignorant of his legal rights
and of the value of the property renounced, especially if the party
with whom he dealt possessed, and kept back from him, better in-
formation on the subject.3

Upon an examination, then, of the cases which have been relied
upon as exceptions to the general rule4 observed by Courts of equity,
some, as in the instances above mentioned, may be supported upon the
ground that the circumstances disclosed an ignorance of fact as
well as of law, and in others there will be found to have existed

either actual misrepresentation, undue influence, *mental
r*2661 . •

L J imbecility, or that sort of surprise which equity regards as

a just foundation for relief. It is, indeed, laid down broadly that,

if a party acting in ignorance of a plain and settled principle of

law, is induced to give up a portion of his property to another,

under the name of a compromise, a Court of equity will grant re-

1 The suit was compromised. 2 3 P. Wins. 321 (a;).

3 M'Carthy v. Deeaix, 2 R. & M. 614; considered in Warrender v. Warren-
der, 2 CI. & Fin. 488.

4 Bearing upon the subject touched upon in the text, see per Sir J. Leach,
Cockerill v. Cholmeley, 1 Russ. & My. 418, 424, 425; s. c, affirmed 1 CI. & F.
60; and see s. c, 3 Russ. 565, where the facts are set out at length; Marq. of
Breadalbane v. Marq. of Chandos, 2 My. & Cr. 711 ; s. c, 4 CI. & F. 43.

FUNDAMENTAL LEGAL PRINCIPLES. 266

lief; and this proposition may be illustrated by the case of an heir-
at-law, who, knowing that he is the eldest son, nevertheless agrees,
through ignorance of the law, to divide undivised fee-simple estates
of his ancestor with a younger brother, such an agreement being
one which would be held invalid by a Court of equity. Even in so
simple a case, however, there may be important ingredients, indepen-
dent of the mere ignorance of law, and this very ignorance may
well give rise to a presumption of imposition, weakness or abuse of
confidence, which will give a title to relief ; at all events, in cases
similar to the above, it seems clear that the mistake of law is not, per
se, the foundation of relief; but is only the medium of proof by
which some other ground of relief may be established, and on the
whole it may be safely affirmed that a mere naked mistake of law,
unattended by special circumstances, will furnish no ground for the
interposition of a Court of equity, and that the present disposition
of such a Court is rather to narrow than to enlarge the operation of
exceptions to the above rule.1

In criminal cases the above maxim as to ignorantia facti applies
when a man, intending to do a lawful act, does that which is unlaw-
ful. In this case there is not *that conjunction between

T*2671
the deed and the will which is necessary to form a criminal L J

act; but, in order that he may stand excused, there must be an

ignorance or mistake of fact, and not an error in point of law; as

if a man, intending to kill a thief or housebreaker in his own house,

and under circumstances which would justify him in so doing, by

mistake kills one of his own family, this is no criminal action ; but

if a man thinks he has a right to kill a person excommunicated or

outlawed wherever he meets him, and does so, this is wilful murder.

For a mistake in point of law, which every person of discretion

not only may, but is bound and presumed to know, is, in criminal

cases, no sort of defence.2 Ignorantia eorum quw quis scire tene-

tur non excusat.3

1 See 1 Story, Eq. Jurisp., 6th ed., 133 et seq.; per Lord Cottenhara, C,
Stewart v. Stewart, 6 CI. & Fin. 964-971. See also Spence, Chanc. Juris. 633
et seq.

2 4 Com. by Broom & Hadley 26 ; Doct. and Stud., Dial. ii. c. 46. A plea
of ignorance of the law was rejected in Lord Vaux's Case, 1 Bulstr. 197.
See also Re Barronet, 1 E. & B. 1, 8 (72 E. C. L. R.).

3 Hale, PI. Cr. 42. " The law is administered upon the principle that every

14

267 broom's legal maxims.

Lastly, every man is presumed to be cognisant of the statute
law of this realm, and to construe it aright; and if any individual
should infringe it through ignorance, he must, nevertheless, abide
by the consequences of his error. It will not be competent to him,
to aver, in a court of justice, that he has mistaken the law, this
being a plea which no court of justice is at liberty to receive.1
Where, however, the passing of a statute could not have been
known to an accused at the time of doing an act thereby rendered
criminal, the Crown would probably *think fit, in case of

[*268]

conviction, to exercise its prerogative of mercy.

Volenti non fit Injuria.

(Wing. Max. 482.)
That to which a person assents is not esteemed in law an injury.

It is a general rule of the English law that no one can maintain
an action for a wrong where he has consented to the act which
occasions his loss ;3 and this principle has often been applied under
states of facts, showing that though the defendant was in the wrong,
the plaintiff's negligence had contributed to produce the damage
consequential on the act complained of.4 Cases such as now alluded
to will hereafter be noticed in connection with the maxims Sic utere
tuout alienurn non Icedas5 and .Respondeat superior*

one must be taken conclusively to know it without proof that he does know
it:" per Tindal, C. J., 10 CI. & F. 210.

1 Per Sir W. Scott, The Charlotta, 1 Dods. R. 392; per Lord Hardwicke,
Middleton v. Croft, Stra. 1056; per Pollock, C. B., Cooper v. Simmons, 7 H. &
N. 717 ; The Katherina, 30 L. J., P., M. & A. 21.

2 R. v. Bailey, Russ. & Ry. 1 ; R. v. Esop, 7 C. & P. 456 (32 E. C. L. R,).

3 Per Tindal, C. J., Gould v. Oliver, 4 B. N. C. 142 (33 E. C. L. R.) ; cited
s. c, 2 Scott N. R. 257; per Lord Campbell, C. J., Haddon v. Ayers, 1 E. &
E. 148 (102 E. C. L. R.) ; per Wood, V.-C, A.-G. v. College of Physicians, 30
L. J., Chanc. 769. See Bird v. Holbrook, 4 Bing. 628, 639, 640 (13 E. C. L.
R.) ; Wootton v. Dawkins, 2 C. B. N. S. 367 (89 E. C. L. R.) ; Plowd. 501 ; D.
50. 17. 203.

4 Per Curtis, J., Byam v. Bullard, 1 Curtis (U. S.) R. 101. Caswell v.
Worth, 6 E. & B. 849 (85 E. C. L. R.), and Senior v. Ward, 1 E. & E. 385,
393 (102 E. C. L. R.), well illustrate the text. See also Holmes o. Clarke, 6
H. & N. 349; Adams v. Lancashire and Yorkshire R. C, L. R. 4 C. P. 739.

6 Post, Chap. VI. sect. 2. 8 Post, Chap IX.

FUNDAMENTAL LEGAL PRINCIPLES. 268 ~2V]

In accordance with the rule volenti non jit injuria, in an action
for criminal conversation, prior to the statute 20 & 21 Vict. c. 85,
the law was clearly settled to be, that the husband's consent to his
wife's adultery went in bar of his action : if the husband were
guilty of negligence, or even of loose or improper conduct not
amounting to a *consent, it only went in reduction of dam- , **&.
ages.1 And it is observable that the claim for " damages L J
from any person on the ground of his having committed adultery"
with the wife of the petitioner, under s. 332 of the Act just cited,
is to be "heard and tried on the same principles, in the same man-
ner, and subject to the same or the like rules and regulations as
actions for criminal conversation" were tried and decided in Courts
of common law before the passing of that enactment.3

The following cases, involving dissimilar states of facts, will be
found further to illustrate the maxim under consideration : — Al-
though the deck of a vessel is primd facie an improper place for
the stowage of a cargo, or any part of it, yet, when the loading on
the deck has taken place with the consent of the merchant, it is
obvious that no remedy against the shipowner or master for a
wrongful loading of the goods on deck can exist.4 So, if a person
says, generally, " There are spring-guns in this wood," and if
another then takes upon himself to go into the wood, knowing that
he is in hazard of meeting with the injury which the guns are
calculated to produce, he does so at his own peril, and must take the
consequences of his own act.5 Moreover, although, as will hereafter
*appear, the maxim Injuria non excusat injuriam is of fre-
quent applicability, " a wrong-doer, cannot, any more than ■- J

1 Per Buller, J., Duberley v. Gunning, 4 T. R. 657 ; per De Grey, C. J.,
Howard v. Burtonwood, cited 1 Selw. N. P., 10th ed., 8, n. (3) ; Id. 10, n. (6) ;
per Alderson, J., Winter v. Henn, 4 C. & P. 498 (19 E. C. L. R.). As to the
application and meaning of the maxim, Volenti non Jit injuria, in the eccle-
siastical courts, see per Sir J. Nicholl, Rogers v. Rogers, 3 Hagg. 57 ; cited,
Phillips v. Phillips, 1 Robertson 158 ; per Sir W. Scott, Forster v. Forster, 1
Consist. R. 146 ; Stone v. Stone, 1 Robertson 99; Judgm., Cocksedge v. Cock-
sedge, Id. 92 ; 2 Curt. 213 ; Shelf, on Marriage and Div. 445 et seq.

2 See also ss. 28-30.

3 See Comyn v. Comyn, 32 L. J., P., M. & A. 210 ; 3 Com. by Broom & Had
ley 411.

4 Gould v. Oliver, 2 Scott N. R. 257, 264; s. c, 4 B. N. C. 134 (33 E. C. L.
R.).

5 Per Bayley, J., Ilott v. Wilkes, 3 B. & Aid. 311 (5 E. C. L. R.).

270 broom's legal maxims.

one who is not a wrong-doer, maintain an action, unless he has a right
to complain of the act causing the injury, and complain thereof
against the person he has made defendant in the action "x No man
by his wrongful act can impose a duty on another,2 nor can one
who avails himself of a mere license to enter upon premises impose
upon their owner a duty to have them in a safe condition.3 So, if
a man, passing in the dark along a footpath, should happen to fall
into a pit, dug by the owner of the adjoining field, in such a case,
the party digging the pit would be responsible for the damage sus-
tained if the pit were dug across the road ; but if it were only in
an adjacent field, the case would be very different, for the falling
into it would then be the act of the injured party himself.4

Again, if an action be brought for slander of title, the special
damage laid being, that a third party was thereby deterred from
purchasing the lands in question and the plaintiff was prevented
from disposing of the same, the action will fail if it appear that,
r*2711 prior to the speaking of *the words, a valid contract of sale
had been entered into; and that, subsequently thereto, such
contract had been rescinded at request of the intended purchaser,
but with the plaintiff's consent.5

By a local Act, a right of appeal was given to any person think-
ing himself aggrieved by the order of commissioners appointed
under it ; one who had been present at a meeting, and concurred in
a resolution upon which the order appealed against was founded, was
held disentitled to appeal against the order.6

1 Degg v. Midland R. C, 1 H. & N. 773, 780, followed in Potter v. Faulk-
ner, 1 B. & S. 800 (101 E. C. L. R.) ; Griffiths v. Gidlow, 3 H. & N. 648 ; Lygo
v. Newbold, 9 Exch. 302; Skipp v. Eastern Counties R. C, 9 Exch. 223, 225;
Great Northern R. C. v. Harrison, 10 Exch. 376 ; Pardington v. South Wales
R. C, 1 H. & N. 392 ; Wise v. Great Western R. C, 1 H. & N. 63. And see
Cleveland v. Spier, 16 C. B. N. S. 399 (111 E. C. L. R.).

2 Judgm., 1 H. & N. 782.

3 Gautret v. Egerton, L. R. 2 C. P. 371, with which compare Indermaur v.
Dames, Id. 311, and cases cited post, Chap. VI. sect. 2.

* Judgm., Jordin v. Crump, 8 M. & W. 787, 788. See also Home v. Wid-
lake, Yelv. 141 ; cited and followed per Ruggles, C. J., Hamilton v. White, 1
Selden (U. S.) R. 12, 13. And see the cases hereafter cited in connection
with Jcrdin v. Crump, supra, and Barnes v. Ward, 9 C. B. 392 (67 E. C. L.
R.) ; with which ace. Hadley v. Taylor, L. R. 1 C. P. 53.

6 Kendall v. Stone, 1 Selden (U. S.) R. 14.

6 Harrup v. Bayley, 6 E. & B. 224 (88 E. C. L. R.).

FUNDAMENTAL LEGAL PRINCIPLES. 271

In addition to the above and similar decisions, there is, as already
intimated, an extensive class of cases illustrating the maxim Volenti
non Jit injuria, in which redress is sought for an injury which has
resulted from the negligence of both plaintiff and defendant, and in
many of which it has been held, that the former is precluded from
recovering damages.1

Another important application of the maxim in question, is to
cases in which money which has been voluntarily paid is sought to
be recovered, on the ground that it was not, in fact, due.

The first rule which we shall notice in reference to cases of this
description, is that where a man has actually paid what the law
would not have compelled him to pay, but what in equity and con-
science he ought to have paid, he cannot recover it back again in
an action for money had and received. Thus, if a man pay a debt,
which could have been barred by pleading the statute of limitations,
or one contracted during infancy, which, in justice, *he r*979-j
ought to discharge, in these cases, though the law would
not have compelled payment, yet, the money being paid, it will not
oblige the payee to refund it.2

There is also a large class of cases in which it has been held, that
money paid voluntarily cannot be recovered, although the original
payment was not required by any equitable consideration ; and
these cases are very nearly allied in principle to those which have
been considered in treating of a payment made in ignorance of the
law.

Thus, an occupier of lands, during a course of twelve years, paid
the property-tax to the collector, under stat. 46 Geo. 3, c. 65, and
likewise the full rent as it became due to the landlord, without
claiming, as he might have done, any deduction on account of the
tax so paid ; and it was held, that the occupier could not maintain
an action for money had and received against the landlord, for any
part of the tax so paid, on the ground that the payment being vol-
untary, could not, according to the principle above stated, be recov-
ered.3 So, where a tenant pays property-tax assessed on the pre-

1 See remarks on the maxim Sic utere tuo utalienum non lcedas,post, Chap.
VI. I 2.

2 Per Lord Mansfield, C. J., Bize v. Dickason, 1 T. R. 286, 287 ; Farmer v.
Arundel, 2 W. Bla. 824.

3 Denby v. Moore, 1 B. & Aid. 123 : cited, per Bayley, J., Stubbs v. Parsons,

[*273]

272 broom's legal maxims.

mises, and omits to deduct it in his next payment of rent, he cannot
afterwards recover the amount as money paid to the use of the
landlord.1

The maxim under consideration holds, however, in those
:cases only where the party has a freedom of exercising
his will ; and therefore, where a debtor from mere necessity, occa-
sioned, for instance, by a wrongful detainer of goods, pays more
than the creditor can in justice demand, he shall not be said to pay
it willingly, and has a right to recover the surplus so paid.2 So,
likewise, may money paid to recover possession of goods wrongfully
detained,3 or under pressure of an extortionate demand, colore
officii,* be recovered.

All the cases, indeed, upon this subject, show, that where a
party is in, claiming under legal process, the owner of the goods
contending that the possession is illegal and paying money to avert
the evil and inconvenience of a sale, may recover it back in an
action for money had and received, if the claim turns out to have
been unfounded.

Where, on the contrary, money is voluntarily paid, with full
knowledge of all the facts,5 or where a party pays the money,
intending to give up his right, he cannot afterwards bring an action
for money had and received, though it is otherwise where, at the

3 B. & Aid. 518 (5 E. C. L. R.). See also Cartright v. Rowley, 2 Esp. 723 >
Fulham v. Down, 6 Esp. 26, note ; Bull. N. P. 131 ; cited, 8 T. R. 576 ; Spragg
v. Hammond, 2 B. & B. 59 (6 E. C. L. R.) ; per Dallas, C. J., Andrew v. Han-
cock, 1 B. & B. 43 (5 E. C. L. R.).

1 Cumming v. Bedborough, 15 M. & W. 438 ; Franklin v. Carter, 1 C. B.
750 (50 E. C. L. R.j. See Payne v. Burridge, 12 M. & W. 727 ; Sweet v. Sea-
ger, 2 C. B. N. S. 119 (89 E. C. L. R.), (distinguished in Tidswell v. Whit-
worth, L. R. 2 C. P. 326) ; Thompson v. Lapworth, L. R. 3 C. P. 149, 160.

2 See per Lord Mansfield, C. J,, Smith v. Bromley, cited Dougl. 696, and
followed in Atkinson v. Denby, 6 H. & N. 778 ; s. c, 7 Id. 934 ; per Patteson,
J., and Coleridge, J., Ashmore v. Wainwright, 2 Q. B. 845, 846 (42 E. C. L.
R.), which case is commented on, Parker v. Bristol and Exeter R. C, 6 Exch.
704, 706.

8 Oates v. Hudson, 6 Exch. 346. See Kearns v. Durell, 6 C. B. 596 (60 E.
C. L. R.).

4 Steele v. Williams, 8 Exch. 625 ; Traherne v. Gardner, 5 E. & B. 913 (85
E. C. L. R.) ; Re Combs, 4 Exch. 839, 841.

6 Remfry v. Butler, E., B. & E. 887, 897 (96 E. C. L. R.), followed in Stray
v. Russell, 1 E. & E. 905, 911 (102 E. C. L. R.) ; s. c, Id. 916 ; Chapman v.
Shepherd, Whitehead v. Izod, L. R. 2 C. P. 228, 238 ; Barber v. Pott, 4 H. &
N.759.

FUNDAMENTAL LEGAL PRINCIPLES. 273

time of paying the money, the party gives notice that he intends
to resist the claim, and that he yields to it merely for the purpose
of *relieving himself from the inconvenience of having his r*c)nA-\
goods sold.1

In Close v. Phipps,2 the attorney for a mortgagee, who had
advertised a sale of the mortgaged property, under .the power
reserved to him, for non-payment of interest, having extorted from
the administratrix of the mortgagor money exceeding the sum
really due for principal, interest, and costs, under a threat that he
would proceed with the sale unless his demands were complied with,
it was held, that the administratrix might recover back the money
•so paid as money had and received to her use. " The interest of
the plaintiff," observed Tindal, C. J., "to prevent the sale, by sub-
mitting to the demand, was so great, that it may well be said, the
payment was made under what the law calls a species of duress."

The plaintiff having, in the month of August, pawned some
goods with the defendant for 20Z., without making any agreement
for interest, went in the October following to redeem them, when
the defendant insisted on having 10?., as interest for the 20?. The
plaintiff tendering him 20/., and 41. for interest, knowing the same
to be more than the legal interest amounted to, the defendant still
insisted on having 10?. as interest ; whereupon the plaintiff, finding
that he could not otherwise get his goods back, paid defendant the
sum which he demanded, and brought an action for the surplus
beyond the legal interest as money had and received to his use.
The Court held, that the action would well lie, for it was a payment
by compulsion.3

*In connection with cases such as the foregoing, it may
be well to add that "the compulsion of law which entitles L " J
a person paying the debt of another to recover against that other
as for money paid, is not such a compulsion of law as would avoid
a contract, like imprisonment." Restraint of goods, by reason of
the non-payment of a debt due by one to another, is sufficient com-

1 Per Tindal, C. J., Valpy v. Manley, 1 C. B. 602, 603 (50 E. C. L. R.).

2 8 Scott N. R. 381 ; recognising Parker v. Great Western R. C, 7 M. &
Gr. 253 (49 E. C. L. R.). See 1 C. B. 788, 798 (50 E. C. L. R.).

3 Astley v. Reynolds, Stra. 915 ; Parker v. Bristol and Exeter R. C, 6 Exch.
702; Hills v. Street, 5 Bing. 37 (15 E. C. h. R.). Bosanquet v. Dashwood,
Cas. temp. Talbot 38.

275 broom's legal maxims.

pulsion of the law to entitle a person who has paid the debt, in
order to relieve his goods from such restraint, to sustain a claim
for money paid.1

Where an action was brought to recover back money paid to the
steward of a manor for producing, at a trial, some deeds and court-
rolls, for which he had charged extravagantly, the objection was
taken that the money had been voluntarily paid, and therefore
could not be recovered back again ; but, it appearing that the
money was paid through necessity and the urgency of the case, it
was held to be recoverable.2 On the same principle, where a rail-
way company, by a general arrangement with carriers, in consider-
ation of such carriers loading, unloading, and weighing the goods
forwarded by them, made a ^deduction in their favor of
*- J 10/. per cent, from the charges made to the public at large
for the carriage of goods, it was decided that the plaintiff, a carrier,
who, although willing to perform the above duties, was excluded
from participation in the said arrangement, was entitled to recover
from the company the above percentage, as well as other sums
improperly exacted from him by the company, such payments not
having been made voluntarily, but in order to induce the company
to do that which they were bound to do without them, and for the
refusal to do which an action on the case3 might have been main-
tained against them.4

1 Judgm., Johnson v. Royal Mail Steam Packet Co., L. R. 3 C. P. 44-45,
where the following state of facts is putter Cur. " A. lends B. his horse for
a limited period, which would imply that he must pay the expense of the
horse's keep during the time he retains it. B. goes to an inn and runs up a
bill which he does not pay, and the innkeeper detains the horse. In the
meantime A. has sold the horse out-and-out for its full price to C, and C. is
informed that the horse is at the inn ; he proceeds there to take him away,
but is told he cannot take him until he pays the bill, and he pays the bill
accordingly and gets his horse. Can C, who in order to get his horse is
obliged to pay the debt of another, sue that other in an action for money
paid? We are clearly of opinion that he could."

2 Anon. v. Pigot, cited 2 Esp. 723. See Traherne v. Gardner, 5 E. & B.
913 (85 E. C. L. R.).

3 Pickford v. Grand Junction R. C, 10 M. & W. 399. See Kent v. Great
Western R. C, 3 C. B. 714 (54 E. C. L. R.).

4 Parker v. Great Western R. C, 7 M. & Gr. 253 (49 E. C. L. R.) ; cited, per
Williams, J., Kearns v. Durell, 6 C. B. 602 (60 E. C. L. R.), and per Cress-
well, J., Devaux v. Connolly, 8 C. B. 657 (65 E. C. L. ft.).

FUNDAMENTAL LEGAL PRINCIPLES. 276

An action for money had and received lies to recover back
money which has been obtained through compulsion, although it
has been received by defendant acting for a principal and has been
paid over by him, unless the money were paid to the agent ex-
pressly for the use of the principal.1

In another class of cases which necessarily fall under present
consideration, it has been decided, that money may be recovered
back if paid under compulsion of law, imposed upon defendant by
the fraudulent practices of the plaintiff in the original proceedings,
or if the payment be made under the compulsion of colorable
legal process. For instance, plaintiff being a foreigner, ignorant
of the English language, was arrested by the defendant for a ficti-
tious debt of 10,0002. upon a writ, which *was afterwards _

. r*2771

set aside for irregularity. Plaintiff, in order to obtain his L J

release, agreed in writing to pay 500Z., and to give bail for the
remainder of the sum. The 500Z. was to be as a payment in part
of the writ, and both parties were to abide the event of the action,
the agreement containing no provision for refunding the money if
the action should fail. The 5001. was accordingly paid, and an
action having been brought to recover it back, the jury found for
the plaintiff, and that the defendant knew that he had no claim
upon the plaintiff. The Court of Queen's Bench discharged a rule
for a new trial or to enter a nonsuit, on the ground that the arrest,
according to the finding of the jury, was fraudulent, and that the
money was parted with under the arrest to get rid of the pressure :2
it being a true position that, " if an undue advantage be taken of
a person's situation, and money be obtained from him by com-
pulsion, such money may be recovered in an action for money had
and received."3

The authorities above cited will sufficiently establish the position,

1 Snowden v. Davis, 1 Taunt. 359 5 Parker v. Bristol and Exeter R. C, 6
Exch. 702, 707.

2 Duke de Cadaval v. Collins, 4 A. & E. 858 (31 E. C. L. R.). See Smith
v. Monteith, 13 M. & W. 427 ; De Medina v. Grove, 10 Q. B. 152, 172 (59 E.
C. L. R.).

3 1 Selw. N. P., 10th ed., 83 ; cited and adopted by Coleridge, J., 4 A. &
E. 867 (31 E. C. L. R.) ; Pitt v. Combes, 2 A. & E. 459 (29 E C. L. R.) ; per
Gibbs, J., Brisbane .». Dacres, 5 Taunt. 156 (1 E. C. L. R.) ; Jendwine v.
Slade, 2 Esp. 573 ; Follett v. Hoppe, 5 C. B. 226 (57 E. C. L. R.) ; Green v.
Laurie, 1 Exch. 335.

277- broom's legal maxims.

that money paid under compulsion of fraudulent legal process, or
of wrongful pressure exercised upon the party paying it, may, in
general, be recovered back, as money had and received to his use ;
and it therefore only remains to add, that, a fortiori, money will be
recoverable which is paid, and that an instrument may be avoided
r*97S1 wn^cn ^s executed, under threats of personal *violence, du-
ress, or illegal restraint of liberty;1 and this is in strict
accordance with the maxims laid down by Lord Bacon: Nonvidetur
consensum retinuisse si quis ex prcescripto minantis aliquid immu-
tavit,2 and corporalis injuria non recipit cestimationem defuturo.3

Lastly, it is worthy of observation, that there are cases where an
intentional wrong-doer will be to a certain extent, protected by the
law through motives of public policy. Thus, a horse with a rider
on him cannot be distrained damage feasant, on the ground of the
danger to the peace which might result if such a distress were
levied; and, therefore, to a plain trespass, justifying the taking of a
horse, cart, and other chattels, damage feasant, it is a good replica-
tion that the horse, cart, and chattels were, at the time of the dis-
tress, in the actual possession and under the personal care of, and
then being used by, the plaintiff'.4

1 See De Mesnil v. Dakin, L. R. 3 Q. B. 18 (43 E. C. L. R.) ; Clark v.
Woods, 2 Exch. 395 ; Skeate v. Beale, 11 A. & E. 983, 990 (39 E. C. L. R.) ;
Wakefield v. Newbon, 6 Q. B. 276, 280 (51 E. C. L. R.). As to what may
constitute duress, see per Lord Cranworth,. C, Boyse v. Rossborough, 6 II.
L. Cas. 45 ; Cumming v. Ince, 11 Q. B. 112 (63 E. C. L. R.) ; Powell v. Hoy-
land, 6 Exch. 67 ; Edward v. Trevellick, 4 E. & B. 59 (82 E. C. L. R.).

2 Bac. Max., reg. 22 ; post; Nil consensui tarn contrarium est quam vis
atque metus, D. 50. 17. 116.

3 Bac. Max., reg. 6.

4 Field v. Adames, 12 A. & E. 649 (40 E. C. L. R.), and cases there cited ;
Storey v. Robinson, 6 T. R. 138 ; Bunch v. Kennington, 1 Q. B. 679 (41 E. L.
C. R.), where Lord Denman, C. J., observes, that "' perhaps the replication in
Field v. Adames was rather loose. ': See Gaylard v. Morris, 3 Exch. 695 ;
Sunbolf v. Alford, 3 M. & W. 248.

FUNDAMENTAL LEGAL PRINCIPLES. 279

*N"ULLUS COMMODUM CAPERE POTEST DE INJURIA SUA po-TCH

PROPRIA.

(Co. Litt. 148 b.)
No man should take advantage of his own wrong.

It is a maxim of law, recognised and established, that no man
shall take advantage of his own wrong j1 and this maxim, which is
based on elementary principles, is fully recognised in courts of law
and of equity, and, indeed, admits of illustration from every branch
of legal procedure. The reasonableness and necessity of the rule
being manifest, we shall proceed at once to show its practical appli-
cation by reference to decided cases ; and, in the first place, we
may observe, that a man shall not take advantage of his own wrong
to gain the favorable interpretation of the law2 — -frustra legis auxil-
lium qucerit qui in legem committit ;3 — and, therefore, A. shall not
have an action of trespass against B., who lawfully enters to abate
a nuisance caused by A.'s wrongful act4, nor shall an executor, de
son tort, obtain that assistance which the law affords to a rightful
executor.5 So if A., on whose goods a distress has been levied, by
his *own misconduct prevent the distress from being r*oc>01
realized, A. cannot complain of a second distress as un-
lawful.6 So B., into whose field cattle have strayed through defect
of fences, which he was bound to repair, cannot distrain such cattle
damage feasant in another field, into which they have got by break-

1 Per Lord Abinger, C. B., Findon v. Parker, 11 M. & W. 680; Daly v.
Thompson, 10 M. & W. 309; Malins v. Freeman, 4 Bing. N. C. 395, 399 (33
E. C. L. R.) ; per Best, J., Doe d. Bryan v. Bancks, 4 B. & Aid. 409 (6 E. C.
L. R.) ; Co. Litt 146, b ; Jenk. Cent. 209 ; 2 Inst. 713 ; D. 50. 17. 134, § 1.

" No man is allowed to take advantage of his own wrong ; far less of his
wrong intention which is not expressed;" per Willes, J., Rumsey v. North
Eastern R. C, 14 C. B. N. S. 653 (78 E. C. L. R.).

It. " is contrary to all legal principle" that " the plaintiff can take advantage
of his own wrong." Per Willes, J., Ames v. Waterlow, L. R. 5 C. P. 55.

See also Dean, &c, of Christ Church v. Duke^of Buckingham, 17 C. B. N.
S. 391 (112 E. C. L. R.).

J 1 Hale P. C. 482. 3 2 Hale P. C. 386.

* Dodd. 220, 221. See Perry v. Fitzhowe, 8 Q. B. 757 (55 E. C. L. R.), and
analogous cases cited post, Chap. VI. § 2, ad Jin.

6 See Carmichael v. Carmichael, 2 Phill. 101 ; Paull v. Simpson, 9 Q. B.
365 (58 E. C. L. R.) ; ante, p. 216.

• Lee v. Cooke, 3 H. & N. 203 : s. c, 2 Id. 584.

280 broom's legal maxims.

ing through a hedge, which had been kept by him in good repair,
because B.'s negligence was causa sine qud non of the mischief.1
So if a man be bound to appear on a certain day, and before that
day the obligee put him in prison, the bond is void.2

Hyde v. Watts3 is strikingly illustrative of the maxim, that a man
shall not be permitted to take advantage of his own wrong. That
was an action of debt for work and labor, to which the defendant
pleaded a release under an indenture or trust deed for the benefit
of such of his creditors as should execute the same. The replica-
tion set out the indenture in hcec verba, by which it appeared that
the defendant covenanted, inter alia, to insure his life for 1500?.,
and to continue the same so insured during a period of three years ;
and, in case of his neglect or refusal to effect or to keep on foot this
insurance, the indenture was to be utterly void to all intents and
purposes whatsoever : — breach, that the defendant did not insure
his life, whereby the said indenture became utterly void. The ma-
terial question in the above case was, whether the deed, in case of a
neglect on the part of the defendant to effect or keep alive the
policy for 1500?., was absolutely void, and incapable of being con-
r*28H firmed as to oM parties, or only *void as against the plain-
tiff, who was a party to the deed, if he should so* elect ;
and the latter was held by the Court of Exchequer to be the true
construction, by reason of the absurd consequences which would
follow, if the defendant, against the consent of all other parties in-
terested in the validity of the indenture, could avail himself of his
own wrong, and thus absolve himself and the trustees from liability
on their respective covenants.

In another case also illustrative of the subject before us, the
defendants, who were merchants, employed a person licensed to act
as agent at the Custom-house in London, under the stat. 3 & 4
Will. 4, c. 2, s. 144, to pay the duty on goods, and to procure their
delivery from the warehouse for home consumption. The defend-
ants, in fact, paid the amount of duty to the person thus employed
by them; and, he having subsequently represented to them that he
had duly paid the duty upon certain goods, they sent for and

1 Singleton v. Williamson, 7 H. & N. 410.

2 Noy, Max., 9th ed., p. 45 ; Arg. Williams v. Gray, 9 C. B. 737 (67 E. C.
L. R).

8 12 M. & W. 254, and cases cited, Id. 262, 263.

FUNDAMENTAL LEGAL PRINCIPLES. 281

obtained such goods from the warehouseman upon presentation of
the usual merchant's order. The duty, however, not having really
been paid, the merchants were held liable to an information in
respect of such non-payment, it not being competent to them to set
up the default of their own agent by way of defeasance, and thus
to take advantage of their own wrong.1

The following instances, familiar doubtless to the reader, may
also serve further to illustrate the same general principle: — If
tenant for life or years fell timber-trees, they will belong to the
lessor; for the tenant cannot, by his own wrongful act, acquire a
greater property in them than he would otherwise have had.2
*Where the lessee is evicted from part of the lands de-
mised, by title paramount, he will have to pay a rateable *- -*
proportion for the remainder;3 whereas, if he be evicted from part
of the lands by his landlord, no apportionment, but a suspension
of the whole rent, takes place, except in the case of the king; and
there is no suspension, if the eviction has followed upon the lessee's
own wrongful act, as for a forfeiture, but an apportionment only.4
And it is a well-known rule, that a lessor or grantor cannot dispute,
with his lessee or grantee, his own title to the land which he has
assumed to demise or convey.5 Nor can a grantor derogate from
his own grant.6

It is moreover a sound principle, that he who prevents a thing
being done, shall not avail himself of the non-performance he has
occasioned. Hence, in an action for breach of covenant in not
insuring, the tenant may defend himself by showing that the land-
lord prevented him from insuring, by representing that he had him-
self insured, and that, in fact, the covenant had not been broken if
such representation were true.7 If a man make a feoffment in fee
upon condition that the feoffee shall reinfeoff him before a certain

1 A.-G. v. Ansted, 12 M. & W. 520, 529. See Reg. v Dean, Id. 39.
1 Wing. Max., p. 574.

3 Smith v. Malings, Cro. Jac. 160. See The Mayor of Poole v. Whitt, 15
M. & W. 571 ; Selby v. Browne, 7 Q. B. 632 (53 E. C. L. R.).

4 Walker's Case, 3 Rep. 22; Wing. Max., p. 569. See Boodle v. Cambell,
8 Scott N. R. 104.

6 Judgm., Doe d. Levy v. Home, 3 Q. B. 766 (43 E. C. L. R.) ; cited, per
Alderson, B., 15 M. & W. 576.

6 2 Shepp. Touchst., by Preston, 286.

7 See Judgm., Doe d. Muston v. Gladwin, 6 Q. B. 963 (51 E. C. L. R.).

282 broom's legal maxims.

day, and before that day the feoffor disseise the feoffee, and hold
him out by force until the day be past ; in this case, the estate of
the feoffee is absolute, because the feoffor shall not take advantage
r*ooqi of his own wrongful act, which occasioned the *non-per-
formance of the condition.1 And, generally, where the
condition of a bond was possible at the time of making it, and
afterwards becomes impossible by the act of the obligee himself, as
in the case of imprisonment of the obligor above mentioned, the
obligation shall be saved.2 So, where, by the terms of a contract,
a service to be performed by A. for B. is to be paid for in goods,

A. cannot declare in debt for the value of the service, but must sue
on the special contract. But if B., by his own act, render the
delivery of the goods impossible, A. may sue in debt for the value
of the service.3 So where an agreement for the purchase of a
medical practice, and the mode of making the stipulated payments
for it implied that the business was to be carried on by the pur-
chaser for a certain period, he was held liable for breach of con-
tract in having, by his wilful default during such period, incapaci-
tated himself from carrying on the business.4

An insurance company covenanted with A. for valuable considera-
tion to appoint him their agent at G., together with B., and that if

B. should be displaced from the agency, they would pay A. a cer-
tain sum ; the company, having transferred their business to
another company, and wound up their affairs and dissolved them-
selves, were held to have displaced A. within the meaning of the
covenant.5

To an action of covenant against a master for not teaching his
r*2841 aPPrent^ce5 ifc is a good plea that the ^apprentice would
not be taught, and by his own wilful act prevented the
master from teaching him, for "the cause of the apprentice not
being taught is that he has made it impossible, and the master
cannot be called on to perform an impossibility."6

1 Co. Litt. 206, b.

2 Com. Dig., " Condition" (D. 1). See Hayward v. Bennett, 3 C. B. 404
(54 E. C. L. R.);s.c., 5 Id. 593.

3 Keys v. Harwood, 2 C. B. 905 (52 E. C. L. R.).

* M'lntyre v. Belcher, 14 C. B. N. S. 654 (78 E. C. L. R.).
6 Stirling v. Maitland, 5 B. & S. 840, 853 (117 E. C. L. R.) ; citing Charnley
v. Winstanley, 5 East 266.

6 Raymond v. Minton, L. R. 1 Ex. 244, 246.

FUNDAMENTAL LEGAL PRINCIPLES. 284

So if a man promises to marry a woman on a future day, and
before that day marries another woman, he is instantly liable to an
action for breach of promise of marriage.1 If a man contracts to
execute a lease on and from a future day for a certain term, and
before that day executes a lease to another for the same term, he
may be immediately sued for breaking the contract.2 If a man
contracts to sell and deliver specific goods on a future day, and
before that day he sells and delivers them to another, he is imme-
diately liable to an action at the suit of the person with whom he
first contracted to sell and deliver them.3 And, generally, " the
man who wrongfully renounces a contract into which he has deliber-
ately entered cannot justly complain if he is immediately sued for
a compensation in damages by the man whom he has injured ; and
it seems reasonable to allow an option to the injured party either
to sue immediately or to wait till the time when the act was to be
done, still holding it as prospectively binding for the exercise of
the option which may be advantageous to the innocent party, and
cannot be prejudicial to the wrongdoer."4 And so "where a
^contract is for the performance of a thing on a given r^noc-i
day it is competent to the party who is to perform it to
declare before the day that he will not perform it, and then the
other party has the option of treating that as a breach of the
contract."5

"All the cases admit," says Lord Alvanley, in Touteng v. Hub-
bard,6 "that where a party has been disabled from performing his

1 Short v. Stone, 8 Q. B. 358 (55 E. C. L. R.). See Caines v. Smith, 15 M.
& W. 189; Wild v. Harris, 7 C. B. 999 (62 E. C. L. R.).

2 Ford v. Tiley, 6 B. &. C. 325 (13 E. C. L. R.) ; Lovelock v. Franklyn, 8 Q.

B. 371 (55 E. C. L. R.).

3 Bowdell v. Parsons, 10 East 359.

4 Hochster v. De La Tour, 2 E. & B. 678, 691 (75 E. C. L. R.), recognised
Avery v. Bowden, 5 E. &. B. 728 (85 E. C. L. R.) ; and cited Crookewit v.
Fletcher, 1 H. & N. 915, and per Jervis, C. J., 6 E. & B. 961 (88 E. C. L. R.) ;
Bartholomew v. Markwick, 15 C. B. N. S. 711, 716 (109 E. C. L. R.) ; per
Maule, J., Lewis v. Clifton, 14 C. B. 253 (78 E. C. L. R.) ; Cort v. Ambergate,
&c, R. C, 17 Q. B. 127 (79 E. C. L. R.) ; Emmens v. Elderton, 4 H. L. Cas.
624; s. c, 6 C. B. 160 (60 E. C. L. R.), 4 Id. 479; Barrick v. Buba, 2 C. B. N.
S. 563 (52 E. C. L. R.). See Lewis v. Peachey, 1 H. & C. 518.

6 Per Erie, C. J., Danube, &c, R. C. v. Xenos, 11 C. B. N. S. 175 (103 E.

C. L. R.);s. c, 13 Id. 825.

• 3 B. & P. 302, adopted Esposito v. Bowden, 4 E. & B. 978 (82 E. C. L. R.) ;

285 broom's legal maxims.

contract by his own default, it is not competent to him to allege
the circumstances by which he was prevented as an excuse for his
omission;" and "if a man binds himself to do certain acts which
he afterwards renders himself unable to perform, he thereby dis-
penses with the performance of conditions precedent to the act
which he has so rendered himself unable to perform."1

Again, where a creditor refuses a tender sufficient in amount,
and duly made, he cannot afterwards, for purposes of oppression
or extortion, avail himself of such refusal ; for, although the debtor
still remains liable to pay whenever required so to do, yet the ten-
der operates in bar of any claim for damages and interest for not
paying or for detaining the debt, and also of the costs of an action
brought to recover the demand.2

According to the same principle, if articles of unequal value are
r*98fi1 mixed together, producing an article of a different *value
from that of either separately, and, through the fault of
the person mixing them, the other party cannot tell what was the
original value of his property, he must have the whole.3 "At law,"
remarks Lord Redesdale, in Bond v. Hopkins,4 "fraud destroys
rights — if I mix my corn with another's he takes all f but if I induce
another to mix his corn with mine, I cannot then insist on having
the whole, the law in that case does not give me his corn." So,
where the plaintiff, pretending title to hay standing in defendant's
land, mixed some of his own with it, it was held that the defendant
thereby became entitled to the hay.6

By the mixture of bales of cotton on board ship, and their be-
coming undistinguishable by reason of the action of the sea, and

s. c. (reversed in error), 7 Id. 763 (90 E. C. L. R.). See Reid v. Hoskins, 4
E. & B. 979 ; s. c, 5 Id. 729, 6 Id. 953 ; Avery v. Bowden, 5 E. & B. 714 (85
E. C. L. R.); s. c, 6 Id. 962 (88 E. C. L. R.). See Webster v. Newsome, 5
II. & N. 42.

1 Judm., 8 C. B. 762 (65 E. C. L. R.).

2 Vide per Williams, J., Smith v. Manners, 5 C. B. N. S. 636 (94 E. C. L. R.).

3 Per Lord Eldon, C, Lupton v. White, 15 Ves. 442. See Colwill v. Reeves,
2 Camp. N. P. C. 575 ; Warde v. Eyre, 2 Bulstr. 323.

4 1 Scho. & Lefr. 433.

6 In Aldridge v. Johnson, 7 E. & B. 899 (90 E. C. L. R.), Lord Campbell,
C. J., observes, "Where the owner of such articles as oil or wine mixes them
with similar articles belonging to another, that is a wrongful act by the owner
for which he is punished by losing his property."

8 Popham 38, pi. 2.

FUNDAMENTAL LEGAL PRINCIPLES. 286

without the fault of their respective owners, these parties become
tenants in common of the cotton in proportion to their respective
interests ; but such a result would follow in those cases only where,
after the adoption of all reasonable means and exertions to identify
or separate the goods, it has been found impracticable to do so.1

In general, the act of the officer is, in point of law, the act of
the sheriff, yet, where the officer is guilty of misconduct, and that
misconduct is produced by the act of the execution creditor, it is
not competent to the latter to say that the act of the officer, done
in breach of his duty *to the sheriif, and induced by the
execution creditor himself, is the act of the sheriff.2 Also, *- ■*
if a man employs an attorney to defend an action in which he has
no interest, and the attorney defends the action accordingly, it does
not lie in the mouth of the person who employs him to say that he
was guilty of maintenance in employing him.3

Again, where a party is sued by a wrong name, and suffers judg-
ment to go against him, without attempting to rectify the mistake,
he cannot afterwards, in an action against the sheriff for false
imprisonment, complain of an execution issued against him by that
name;4 and, if a bond, or any other instrument, is executed under
an assumed name, the obligor or party executing it, is bound
thereby in the same manner as if he had executed it in his true
name.5 So, "if a man, having an opportunity of seeing what he is
served with, wilfully abstains from looking at it, that is virtually
personal service;"6 and, where one of the litigating parties takes a
step after having had notice that a rule has been obtained to set
aside the proceedings, he does so in his own wrong, and the step
taken subsequently to notice will be set aside.7

The foregoing examples have been selected, in order to show in
what manner the rule, which they will serve to illustrate, has been

1 Spence v. Union Marine Ins. Co., L. R. 3 C. P. 427. See Webster v.
Power, L. R. 2 P. C. 69.

2 Per Bayley, J., Crowder v. Long, 8 B. & C. 603, 604 (15 E. C. L. R.).

3 Per Lord Abinger, C. B., 11 M. & W. 681.

* Fisher v. Magnay, 6 Scott N. R. 588 ; Morgan v. Bridges, 1 B. & Aid. 647.
See De Mesnil v. Dakin, L. R. 3 Q. B. 18 ; Kelly v. Lawrence, 3 H. & C. 1.

6 13 Peters (U. S.) R. 428. See Judgm., Truman v. Loder, 11 A. & E.
594-5 (39 E. C. L. R.).

6 Per Tindal, C. J., Emerson v. Brown, 8 Scott N. R. 222.

7 Per Pollock, C. B., Tiling v. Hodgson, 13 M. & W. 638.

15

287 broom's legal maxims.

I~*9881 aPP^e^ t° promote the ends of justice, *in various and dis-
similar circumstances. The maxim under review applies
also with peculiar force to that very extensive class of cases in
which fraud is alleged to have been committed by one of the parties
to a transaction, and is relied upon as a defence by the other.
Both Courts of equity and Courts of law have, it has been observed
by Lord Mansfield, a concurrent jurisdiction to suppress and relieve
against fraud, although the interposition of the former is often
necessary for the better investigation of the truth, and in order to
give more complete redress.1 We do not, in this treatise, propose
to consider in what manner a Court of equity will deal with fraud,
nor how, if fraud be proved, it will interfere to give relief: but we
may state the principle which is by that Court invariably acted
upon, to be — that the author of wrong, who has put a person in a
position in which he had no right to put him, shall not take advan-
tage of his own illegal act, or, in other words, shall not avail him-
self of his own wrong.2 But, although it is peculiarly, and often
exclusively,3 the province of a Court of equity to relieve against
fraud, there are very many cases in which a Court of law will
adjudge void a transaction on the ground of fraud and covin, or
will expressly refuse to sanction dishonest views and practices by
enabling an individual to acquire through the medium of his decep-
tion any right or interest.

r*9QQ-| In a leading case, on this subject,4 the facts were, *that
A. was indebted to B. in 400Z., and was indebted also to
C. in 200Z. ; C. brought an action of debt against A., and, pending
the writ, A., being possessed of goods and chattels of the value of
300?., in secret made a general deed of gift of all his goods and
chattels, real and personal, whatsoever, to B., in satisfaction of his

1 Bright v. Enon, 1 Burr. 396.

2 Per Lord Cottenham, C, Hawkins v. Hall, 4 My. & Cr. 281.

3 See Doe d. Richards v. Lewis, 11 C. B. 1035 (73 E. C. L. R ).

4 Twyne's Case, 3 Rep. 80 (with which compare Evans v. Jones, 3 H. & C.
423) ; Graham v. Furber, 14 C. B. 410, 418 (78 E. C. L. R.) ; Tarleton v. Lid-
dell, 17 Q. B. 390 (79 E. C. L. R.) ; Fermor's Case (3 Rep. 77), is also a lead-
ing case to show that the Courts will not sustain or sanction a fraudulent
transaction. In that case it was held, that a fine fraudulently levied by lessee
for years should not bar the lessor ; and see the law on this subject stated per
Tindal, C. J., in Davies v. Lowdnes, 5 Bing. N. C. 172 (15 E. C. L. R.). See
also Wood v. Dixie, 7 Q. B. 892 (53 E. C. L. R.).

FUNDAMENTAL LEGAL PRINCIPLES. 289

debt, but nevertheless remained in possession of the said goods,
some of which he sold; he also shore the sheep, and marked them
with his own mark. Afterwards C. obtained judgment, and issued
afi.fa. against A., and the question arose, whether the above gift
was,* under the circumstances, fraudulent and of no effect, by virtue
of the statute 13 Eliz. c. 5 ; and it was determined, for the following
reasons, that the gift was fraudulent within the statute : — 1st, this
gift has the signs and marks of fraud, because it is general, without
excepting the wearing-apparel, or other necessaries, of the party
making it ; and it is commonly said, that dolosus versatur in gene-
ralibus* — a person intending to deceive deals in general terms ; a
maxim, we may observe, which has been adopted from the civil law,
and is frequently cited and applied in our courts ;2 2dly, the donor
continued in possession and used the goods as his own, and by
reason thereof he traded and trafficked with others, and defrauded
and deceived them ;3 3dly, the gift was made in secret, and dona
*clandestina sunt semper suspiciosa4 — clandestine gifts are r*9qn-i
always open to suspicion ;/4thly, it was made pending the
writ ; 5thly, in this case, there was a trust between the parties, for
the donor possessed the goods and us,ed them as his own, and fraud
is always apparelled and clad with trust, and a trust is the cover
of fraud ; and, 6thly, the deed states, that the gift was made
honestly, truly, and bond fide, and clausulce inconsuetce semper in-
ducunt suspieioncm — unusual clauses always excite suspicion.

In the foregoing case, it will be observed, that the principal
transaction was invalidated on the ground of fraud, according to
the principle, that a wrongful or fraudulent act shall not be allowed
to conduce to the advantage of the party who committed it ; nul
prendra advantage de son tort demesne? And this principle further

1 Wing. Max. 636 ; 2 Rep. 34 ; 2 Bulstr. 226 ; 1 Roll. R. 157 ; Moor 321 ;
Mace v. Cammel, Lofft 782.

2 Presbytery of Auehterarder v. Earl of Kinnoull, 6 CI. & Fin. 698, 699 ;
Spicot's Case, 5 Rep. 58.

3 Cited per Lord Mansfield, C. J., Worseley v. Demattos, 1 Burr. 482 ; Mar-
tiridale v. Booth, 3 B. & Ad. 498 (23 E. C. L. R.). See this subject considered
in the Note to Twyne's Case, 1 Smith L. C, 6th ed., 1 ; arg. Wheeler v.
Montefiore, 2 Q. B. 138 (42 E. C. L. R.).

4 Noy, Max., 9th ed., p. 152 ; Latimer v. Batson, 4 B. & C. 652 (10 E. C. L.
R.) ; per Lord Ellenborough, C. J., Leonard v. Baker, 1 M. & S. 253 (28 E. C.
L. R.).

6 2 Inst. 713 ; Branch, Max., 5th ed., p. 141.

290 broom's legal maxims.

extends so as ofttimes to preclude a party to a fraud from setting
it up as a defence, — a topic which -will most conveniently be dis-
cussed in connection with the maxim, In pari delicto potior est con-
ditio possidentis or defendentis.2

The doctrine of estoppel in pais, which has in many recent cases
been applied, is obviously referable to the principle set forth in the
maxim before us, and may be thus exemplified : —

In an action of trover, it appeared that the goods in question
were seized while in the actual possession of a third party, under
an execution against such third party, and sold to the defendant.
r*9Ql 1 I* further appeared that no *claim had been made by the
plaintiff after the seizure, and that the plaintiff had con-
sulted with the execution creditor as to the disposal of the property,
without mentioning his own claim, after he knew of the seizure,
and of the intention to sell the goods ; it was held, that a jury
might properly infer, from the plaintiff's conduct, that he had
authorized the sale, and had, in point of fact, ceased to be the owner ;
and Lord Denman, C. J., in delivering the judgment of the Court,
laid down the following principle, which will be found applicable to
a large class of cases, and results directly from the maxim that no
man shall take advantage of his own wrong. " The rule of law,"
said his lordship, "is clear, that, where one, by his words or con-
duct, wilfully causes another to believe the existence of a certain
state of things, and induces him to act on that belief, so as to alter
his own previous position, the former is concluded from averring
against the latter a different state of things as existing at the same
time."2 So, in Gregg v. Wells,3 it was held, that the owner of
goods, who stands by, and voluntarily allows another to treat them
as his own, whereby a third person is induced to buy them bond
fide, cannot recover them from the vendee. "A party," says the
Lord Chief Justice, " who negligently or culpably stands by, and
allows another to contract, on the faith and understanding of a fact

1 Post, Chap. IX.

2 Pickard v. Sears, 6 A. & E. 469 (33 E. C. L. R.), (cited per Lord Denman,
C. J., Nickells v. Atherstone, 10 Q. B. 949 (59 E. C. L. R.)) ; with which com-
pare Richards v. Johnston, 4 H. & N. 660. See Machu v. London and South
Western R. C, 2 Exch. 420 ; Foste*r v. Mentor Life Assurance Co., 3 E. & B.
48 (77 E. C. L. R.).

8 10 A. & E. 90, 98 (37 E. C. L. R.). See Doe d. Groves v. Groves, 10 Q.
B. 486 (59 E. C. L. R.) ; Nickells v. Atherstone, Id. 944, 949.

FUNDAMENTAL LEGAL PRINCIPLES. 291

which he can contradict, cannot afterwards dispute that r*oQo-|
fact in an *action against the person whom he has himself
assisted in deceiving."

The principle thus stated by Lord Denman in Pickard v. Sears,
and more broadly in Gregg v. Wells, was well explained by the
Court of Exchequer in Freeman v. Coke,1 the judgment in which
case must now be considered to lay down the governing rule upon
the subject.2 By the term "wilfully" above used, is to be under-
stood " if not that the party represents that to be true which he
knows to be untrue, at least that he means his representation to be
acted upon, and that it is acted upon accordingly ; and if, whatever
a man's real intention may be, he so conducts himself that a rea-
sonable man would take the representation to be true, and believe
that it was meant that he should act upon it, and did act upon it as
true, the party making the representation would be equally pre-
cluded from contesting its truth; and conduct by negligence or
omission, where there is a duty cast upon a person by usage of
trade or otherwise to disclose the truth, may often have the same
effect. As, for instance, a retiring partner omitting to inform his
customers of the fact in the usual mode, that the continuing part-
ners were no longer authorized to act as his agents, is bound by all
contracts made by them with third persons, on the faith of their
being so authorized. * * * In truth, in most cases *to r*oQq-i
which the doctrine in Pickard v. Sears is to be applied,
the representation is such as to amount to the contract or license of
the party making it."3

1 2 Exch. C54, 663-4 ; In re Bahia and San Francisco R. C. L. R. 3 Q. B.
584, 594, 597 ; Swan v. North British Australasian Co., 2 H. & C. 175, 188,
affirming s. c, 7 H. & N. 603 ; per Crompton, J., Howard v. Hudson, 2 E. &
B. 13 (75 E. C. L. R.) ; Price v. Groom, Id. 542, 548 ; Waller v. Drakeford,
1 E. & B. 749 (72 E. C. L. R.). See Schuster v. M'Kellar, 26 L. J. Q. R.
281.

2 Per Williams, J., Simpson v. Accidental Death Insurance Co., 2 C. B. N.
S. 289 (89 E. C. L. R.) ; per Erie, C. J., White, app., Greenish, resp., 11 C.
B. N. S. 229-230 (103 E. C. L. R.) ; per Lord Chelmsford, C, Clarke v. Hart,

6 H. L. Cas. 655-6.

8 Vide per Lord Chelmsford, C, 6 H. L. Cas. 656. See also in illustration
of the text, Marty n v. Gray, 14 C. B. N. S. 824 (108 E. C. L. R.) ; Stephens o.
Reynolds, 5 H. & N. 513 ; Gurney v. Evans, 3 Id. 122 ; Summers v. Solomon,

7 E. & B. 879 (90 E. C. L. R.) ; Ramazotti v. Bowring, 7 C. B. N. S. 857 (97
E. cl L. R.) ; Castellani v. Thompson, 13 C. B. N. S. 105, 121-2 (106 E. C.
L. R.).

293 broom's legal maxims.

The rule as to estoppel in pais, by words or conduct, may, ac-
cordingly, be thus stated in two propositions: 1st, "If a man so
conducts himself, whether intentionally or not, that a reasonable
person would infer that a certain state of things exists, and acts
on that inference, he shall be afterwards estopped from denying it;"1
2dly,2 "If a man has wilfully made a false assertion, calculated to
lead others to act upon it, and they have done so to their prejudice,
he is forbidden as against them to deny that assertion. * * *■ If he
has led others into the belief of a certain state of facts by conduct
of culpable neglect, calculated to have that result, and they have
acted on that belief to their prejudice, he shall not be heard after-
wards as against such persons to show that that state of facts did
not exist. In short and popular language, a man is not permitted
to charge the consequences of his own fault on others, and complain
of that which he has himself brought about."3

The cases above noticed are evidently in principle identical with
those in which it has been held, that a person who has expressly
r*-?cui ma(^e a verbal representation, on *the faith of which
another has acted, shall not afterwards be allowed to con-
tradict his former statement, in order to profit by that conduct
which it has induced.4 "If there be one principle of law more
clear than another, it is this, that where a person has made a de-
liberate statement with the view to induce another to act, and he
has acted upon it, the former is not at liberty to deny the truth of
the statement so made."5 Whenever an attempt is made in the course
of legal proceedings to violate this principle, the law replies in the
words of a maxim which we have already cited,6 allegam contraria

1 Per Bramwell, B., Cornish v. Abington, 4 H. & N. 556.

2 See the cases collected in Ex parte Swan, 7 C. B. N. S. 400 (97 E C. L.
R,)? — (particularly Bank of Ireland v. Trustees of Evans's Charities, 5 H. L.
Cas. 389), and in n. I, supra.

3 Per Wilde, B., Swan v. North British Australasian Co., 7 H. & N. 633-4;
s. c, affirmed 2 H. & C. 175.

4 Trickett v. Tomlinson, 13 C. B. N. S. 663 (106 E. C. L. R.).

6 Per Bramwell, B., M'Cann v. London and North-Western R. c!, 7 H. &
N. 490.

6 Ante, p. 169. See also Cannam v. Farmer, 3 Exch. 698 ; Hallifax v. Lyle,
Id. 446 ; Money v. Jorden, 21 L. J. Chanc. 531 ; Fairhurst v. Liverpool Adel-
phi Loan Association, 9 Exch. 422 ; Standish v. Ross, 3 Exch. 527 ; Freeman
v. Steggall, 14 Q. B. 202 (68 E. C. L. R.) ; Morgan v. Couchman, 14 C. B.
100 (78 E. C. L. R.) ; Dunstan v. Paterson, C. B. N. S. 495 (89 E. C. L. R.)

FUNDAMENTAL LEGAL PRINCIPLES. 294

non est audiendus, and, by applying the doctrine of estoppel
therein contained, prevents the unjust consequences which would
otherwise ensue.1 We may, therefore, lay it down as a general rule,
applicable alike in law and equity, that a party shall not entitle him-
self to substantiate a claim, or to enforce a defence, by reason
of acts or misrepresentations which proceeded from himself,
or were adopted or acquiesced in by him after full knowledge of
their nature and quality :2 and further, that where misrepresentations
have been made by one of two litigating parties, in his dealings with
the other, a Court of law will either decline to interfere, or will so
*adjust the equities between the plaintiff and defendant,
as to prevent an undue advantage from accruing to that L ~ J
party who is unfairly endeavoring to take advantage of his own
wrong.3

If, therefore, the acceptor of a bill of exchange at the time of
acceptance knew the payee to be a fictitious person, he shall not
take advantage of his own fraud ; but a bond fide holder may re-
cover against him on the bill, and declare on it as payable to
bearer ;4 and, generally, a person will not be allowed as plaintiff in
a Court of law to rescind his own act, on the ground that such act
was a fraud on another person, whether the party seeking to do
this has sued in his own name or jointly with such other person.5

1 Price v. Carter, 7 Q. B. 838 (53 E. C. L. R.) ; Reg. v. Mayor of Sandwich,
10 Q. B. 563, 571 (59 E. C. L. R.) ; Banks v. Newton, 11 Q. B. 340 (63 E. C.
L. R.) ; Petch v. Lyon, 9 Q. B. 147, and cases there cited ; Braithwaite v. Gar-
diner, 8 Q. B. 473 (55 E. C. L. R.). See Dresser v. Bosanquet, 4 B. & S. 460,
486 (10 E. C. L. R.).

2 Vigers v. Pike, 8 CI. & Fin. 562.

3 See Harrison v. Ruscoe, 15 M. & "W. 231, where an unintentional misrep-
resentation was made in giving notice of the dishonor of a bill ; Rayner v.
Grote, Id. 359, where an agent represented himself as principal (citing Bick-
erton v. Burrell, 5 M. & S. 383) ; Humble v. Hunter, 12 Q. B. 310 (64 E. V.
L. R.) ; Schmaltz v. Avery, 16 Q. B. 655 (71 E. C. L. R.) ; Cox v. Hubbard, 4
C. B. 317, 319 (56 E. C. L. R.) ; Cooke v. Wilson, 1 C. B. N. S. 153 (87 E. C.
L. R.).

4 Gibson v. Minet (in error), 1 H. Bla. 569.

6 Per Lord Tenterden, C. J., Jones v. Yates, 9 B. & C. 538 (17 E. C. L. R.) ;
Sparrow v. Chisman, Id. 241 ; "Wallace v. Kelsall, 7 M. & W. 264 ; which cases
are recognised, Gorden v. Ellis, 8 Scott N. R. 305; Brandon v. Scott, 7 E. &
B. 234 (90 E. C. L. R.) ; Husband v. Davis, 10 C. B. 645 (70 E. C. L. R.).
See Heilbut v. Nevill, L. R. 4 C. P. 354.

295 broom's legal maxims.

Allied to the preceding maxim is that cited by Lord Coke,1
Quod semel placuit in electionibus amplius displicere non potest :
it may be thus illustrated: — A policy insuring plaintiff's premises
against fire was executed by defendants, reserving to themselves
" the right of reinstatement in preference to the payment of claims."
The premises having been damaged by fire, the defendants elected
to reinstate them, but did not do so. To an action for not paying,
r*9Qfi1 compensating, and reinstating, the ^defendants pleaded
that they elected to reinstate, and were proceeding to do
so, when the Commissioners of Sewers, under " The Metropolitan
Building Act, 1855,"2 caused the premises to be taken down as
being in a dangerous condition, such dangerous condition not
having been caused by damage from the fire. This plea was, on
demurrer, held bad. "The case," observed Lord Campbell, C. J.,
" stands as if the policy had been simply to reinstate the premises
in case of fire; because where a contract provides for an election,
the party making the election is-in the same position as if he had
originally contracted to do the act which he elected to do." This
being so, the defendants were bound by their election, and in the
event of performance of their contract becoming impossible, or
more expensive than had been anticipated, were liable to pay
damages for non-performance.3

The maxim above cited from Lord Coke might admit of ample
illustration from the relation of landlord and tenant, and rights
incident thereto ; ex. gr. where a lease has been forfeited,4 and the
landlord can elect whether to enter or not ; if either by word or by
act he determine that the lease shall continue, and communicates
his determination to the tenant, the election is completed, and the
rule applies that " if a man once determines his election, it shall
be determined forever ;"5 a rule which is a branch of the general
law, that where a man has an election or option to enter into an
estate vested in another, or to deprive another of some existing
l"*9971 r*&kt, before the party having the option acts, he must
elect, once for all, whether *he will do that act or not.6

1 Co. Litt. 146 a. 2 18 & 19 Vict. c. 122.

3 Brown v. Royal Insurance Co., 1 E. & E. 853 (102 E. C. L. R.).

4 See Note to Dumpor's Case, 1 Smith L. C, 6th ed., 36.
6 Com. Dig., "Election" (C. 2).

6 Per Blackburn, J., Ward v. Day, 4 B. & S. 356 (116 E. C. L. R.), which
illustrates the text.

FUNDAMENTAL LEGAL PRINCIPLES. 297

"In order," however, "that a person who is put to his election should
be concluded by it, two things are necessary: — 1st, a full know-
ledge of the nature of the inconsistent rights and of the necessity
of electing between them ; 2d, an intention to elect manifested,
either expressly, or by acts which imply choice and acquiescence."1

Further, we may remark that the maxim which precludes a man
from taking advantage of his own wrong is, in principle, very closely
allied to the maxim, Ex dolo malo non oritur actio, which is like-
wise of very general application, and will be treated of more conve-
niently hereafter in the Chapter upon Contracts. The latter
maxim is, indeed, included in that above noticed; for it is clear,
that, since a man cannot be permitted to take advantage of his own
wrong, he will not be allowed to found any claim upon his own
iniquity — Nemo exproprio dolo consequitur actionem; and, as before
observed, frustra legis auxilium qucerit in legem committit.2

Nevertheless, the principal maxim under our notice, and likewise
the kindred rule, Fraus et dolus nemini patrocinari debent* are
sometimes qualified in operation by the maxim cited at a former
page,4 — Quod fieri non debet factum valet.5 " Fraud, ' ' as observed,6
*" renders any transaction voidable at the election of the „ _

party defrauded; and if, when it is avoided, nothing has L J
occurred to alter the position of affairs, the rights and remedies of
the parties are the same as if it had been void from the beginning;
but if any alteration has taken place, their rights and remedies are
subject to the effect of that alteration." This may be illustrated
by Reg. v. The Saddlers' Company,7 where the facts were as under :
— By the charter of the Saddlers' Company, the warden and assist-
ants were empowered to elect assistants from the freemen, and to

1 Per Lord Chelmsford, Spreads. Morgan, 11 H. L. Cas. 615.

2 The following cases also illustrate the maxim that a man shall not be per-
mitted to take advantage of his own wrong or default ; respecting the right to
costs : Pope v. Fleming, 5 Exch. 249 ; the enrolment of memorial of an annu-
ity : Molton v. Camroux, 4 Exch. 17 ; s. c, 2 Exch. 487 ; an action against
the sheriff for an escape, Arden v. Goodacre, 11 C. B. 371, 377 (73 E. C. L.

it.).

• 3 Rep. 78 b. * Ante, p. 182.

8 Cited per Martin, B., and Wilde, B., 6 H. & N. 787, 792.

6 Per Blackburn, J., 10 H. L. Cas. 420-1 ; citing Clarke v. Dickson, E., B.
& E. 148 (96 E. C. L. R.), and Feret v. Hill, 15 C. B. 207 (80 E. C. L. R.)

7 10 H. L. Cas. 404.

298 broom's legal maxims.

remove any for ill-conduct, or other reasonable cause, and to make
such by-laws as should seem to them salutary and necessary for the
good government of the body in general and its officers. A by-law
was duly made in these terms, "that no person who has been a
bankrupt or become otherwise insolvent, shall hereafter be admitted
a member of the court of assistants, unless it be proved to the
satisfaction of the Court that such person, after his bankruptcy or
insolvency, has paid his creditors in full," &c. D. being otherwise
qualified, but being in insolvent circumstances, and unable to pay
his creditors twenty shillings in the pound, was elected an assistant,
and after his election, of which he was not aware, but before his
admission, he made to the agents of the wardens and assistants a
statement, false to his own knowledge, that he was solvent; he was
then admitted, and exercised the office of assistant. The by-law,
as above stated, being adjudged good, it was further held, that the
mere statement of a falsehood by D. did not nullify his election,
r*9QQ~i an^ that D. could not be legally removed from his office by
*the wardens and assistants of the company without being
heard in his defence.1

In Hooper v. Lane,2 cited at p. 131, which strikingly illustrates
the rule that "no man shall take advantage of his own wrong,"
various instances are put by a learned judge,3 exemplifying that the
rule in question " only applies to the extent of undoing the advan-
tage gained, where that can be done, and not to the extent of tak-
ing away a right previously possessed." The instances adduced
are as under : — " If A. lends a horse to B., who uses it and puts it
in his stable, and A. comes for it, and B. is away and the stable
locked, and A. breaks it open and takes his horse, he is liable to an
action for the trespass to the stable ; and yet the horse could not
be got back, and so A. would take advantage of his own wrong.
So, though a man might be indicted at common law for a forcible
entry, he could not be turned out if his title were good. So, if
goods are bought on a promise of cash payment, the buyer, on non-
payment, is subject to an action, but may avail himself of a set-off,
and the goods cannot be gotten back. So, if I promise a man I

1 See the maxim, Audi alteram partem, ante, p. 113.

2 6 II. L. Cas. 443 ; Ockford v. Freston, and Chapman v. Freston, 6 H. & N.
466, 472, 480, 481.

3 Bramwell, B., 6 H. L. Cas. 461.

FUNDAMENTAL LEGAL PRINCIPLES. 299^Vt>'

will sell him more goods on credit if he pays what he already owes,
and he does so, and I refuse to sell, I may retain the money. So,
if I force another from a fishing-ground at sea, and catch fish, the
fish are mine."

The maxim, moreover, according to the opinion of the learned
judge whose words have been above cited, "is never applicable
where the right of a third party is to be affected. * * * Can one
man by his wrongful act to another *deprive a third of r*qnrr|
his right against that other ? * * A. obtains goods from
B. under a contract of sale, procured by A. from B. by fraud. A.
sells to C. ; C. may retain the goods.1 Surely A. might recover
the price from C. at which he sold to him ; yet he would in so doing
take advantage of his own wrong. So, if my lessee covenants at
the end of his term to deliver possession to me, and in order to do
so forcibly evicts one to whom he had sub-let for a longer term, and
I take possession without notice, surely I can keep it ; at least, at
the common law I could, So, if a sub- lessee at an excessive rent
purposely omits to perform a covenant, the performance of which
would be a performance of the lessee's covenant to his lessor, and
by such non-performance the lessee's covenant is broken, and the
first lessor enters and avoids the lease and evicts the sub-lessee, the
sub-lessee may defend himself against a claim for rent by his lessor ;2
yet there he takes advantage of his own wrong, because of the right
of the third person. So, if I sell goods, the property not to pass
till payment or tender, and the vendee has a week in which to pay,
and during that week I resell and deliver to a third person, no
action is maintainable against me as for a detention or conversion,
but only for non-delivery ; yet there I take advantage of my own
wrong, because the right of a third party has accrued."3

1 White v. Garden, 10 C. B. 919 (70 E. C. L. R.).

2 Logan v. Hall, 4 C. B. 598 (56 E. C. L. R.).

3 Per Bramwell, B., 6 H. L. Cas. 461-2.

301 broom's legal maxims.

[*301] *acta exteriora indicant interiora secreta.

(8 Rep. 291.)
Acts indicate the intention.1

The law in some cases, judges of a man's previous intentions by
his subsequent acts; and, on this principle, it was decided in a well-
known case, that if a man abuse an authority given him by the law,
he becomes a trespasser ab initio,2 but that, where he abuses an
authority given him by the party, he shall not be a trespasser ab
initio. The reason assigned for this distinction being, that, where
a general authority or license is given by the law, the law judges
by the subsequent act, quo animo, or to what intent, the original
act was done ; but when the party himself gives an authority or
license to do anything, to enter upon land, he cannot for any sub-
sequent cause convert that which was originally done under the
sanction of his own authority or license into a trespass ab initio ;
and in this latter case, therefore, the subsequent acts only will
amount to trespasses.3

For instance, the law gives authority to enter into a common inn
or tavern ; in like manner to the owner of the ground to distrain
damage feasant ;4 and to the commoner to enter upon the land to
see his cattle. But, if he who enters into the inn or tavern commits
T*S021 a tresPass> *or if ^he owner who distrains a beast damage
feasant works or kills the distress, or if the commoner cuts
down a tree, in these and similar cases the law adjudges that the
party entered for the specific purpose of committing the particular
injury, and because the act which demonstrates the intention is a
trespass, he shall be adjudged a trespasser ab initio ;5 or, in other

1 The remarks in illustration of the maxim Actus non facit reum nisi mens
sit rea (post, p. 306), should be read in connection with those which imme-
diately follow.

2 See North v. London and South Western R. C, 14 C. B. N. S. 132 (108
E. C. L. R.).

3 The Six Carpenters' Case, 8 Rep. 290 ; per Erie, J., Ambergate, &c, R.
C. v. Midland R. C, 23 L. J., Q. B. 17, 20. See Jacobsohn v. Blake, 6 M. &
Gr. 919 (46 E. C. L. R.) ; Peters v. Clarson, 7 M. & Gr. 548 (49 E. C. L. R.) ;
Webster v. Watts, 11 Q. B. 311 (63 E. C. L. R.) ; Wing. Max., p, 108.

4 See Layton v. Hurry, 8 Q. B. 811 (55 E. C. L. R.) ; Gulliver v. Cosens, 1
C. B. 788 (50 E. C. L. R.).

5 8 Rep. 291 ; Wing. Max., p. 109 ; Oxley v. Watts, 1 T. R. 12 ; Bagshaw v.
Goward, Cro. Jac. 147 ; Aitkenhead v. Blades, 5 Taunt. 198 (1 E. C. L. R.).

FUNDAMENTAL LEGAL PRINCIPLES. 302

words, the subsequent illegality shows the party to have contem-
plated an illegality all along, so that the whole becomes a trespass.1
For the same reason, a custom to seize a heriot is an authority
given by the law, and an abuse of it renders the party making a
seizure a trespasser ab initio ;2 and if a sheriff continues in posses-
sion after the return day of the writ, this irregularity makes him a
trespasser ab initio?

One consequence of the above doctrine, as to the abuse of an
authority given by law, was, that, if a party entering lawfully4 to
make a distress committed any subsequent abuse, he became a
trespasser ab initio ; and, as this was found to bear hard on land-
lords, it was enacted by stat. 11 Geo. 2, c. 19, s. 19,5 that where
any distress shall be made for any rent justly due, and any irregu-
larity or unlawful act shall be afterwards done by the party dis-
training, *or his agent, the distress shall not be deemed r*ono-|
unlawful, nor the distrainer a trespasser ab initio, but the
party grieved may recover satisfaction for the damage in a special
action of trespass, or on the case,6 at the election of the plaintiff,
and if he recover he shall have full costs. Where a landlord dis-
trained for rent, amongst other things, goods which were not dis-
trainable in law, he was held to be a trespasser ab initio as to those
particular goods only.7

Also, by stat. 17 Geo. 2, c. 38, s. 8, where any distress shall be
made for money justly due for the relief of the poor, the party dis-
training shall not be deemed a trespasser ab initio, on account of

1 Per Littledale, J., Smith v. Egginton, 7 A. & E. 176 (34 E. C. L. R.) ; dis-
tinguished in Moone v. Rose, L. R. 4 Q. B. 486, 492 (45 E. C. L R.). See
Taylor v. Cole, 3 T. R. 292.

2 Price v. Woodhouse, 1 Exch. 559.

3 Aitkenhead v. Blades, 5 Taunt, 198 (1 E. C. L. R.). See Ash v. Dawnay,
8 Exch. 237; Percival v. Stamp, 8 Exch. 167; cited, post.

4 Where the entry is effected in an unlawful manner, trespass of course
lies. See Attack v. Bramwell, 3 B. & S. 520 (113 E. C. L. R.).

6 See also stat. 2 W. & M. c. 5 ; Judg., Thompson v. Wood, 4 Q. B. 498 (45
E. C. L. R.) ; Rodgers v. Parker, 18 C. B. 112 (86 E. C. L. R.).

6 See Winterbourne v. Morgan, 11 East 395, 401 ; Etherton v. Popplewell,
1 East 139.

7 Harvey v. Pocock, 11 M. & W. 740, with which compare Price v. Wood-
house, 1 Exch. 559. As to the effect of ratification by the landlard of the act
of the bailiff, see Lewis v. Read, 13 M. & W. 834, and cases cited, post, Chap.
IX.

303 broom's legal maxims.

any act subsequently done by him ; but the party grieved may
recover satifaction for the special damage in an action of trespass,
or on the case, with full costs, unless tender of amends is made
before action brought.

With respect to the second proposition laid down in the Six Car-
penters' Case, viz., that the abuse of authority or license given by
the party will not make a person a trespasser ab initio, it should be
observed, that such a license to do an act which per se would be a
trespass, is in some cases implied by law. Thus, all the old author-
ities say that, where a party places upon his own close the goods of
another, he, by so doing, gives to the owner of them an implied
license to enter for the purpose of recaption.1 If a man takes my
r*S041 Sooc*s> anc^ carries them into *his own land, I may justify
my entry into the said land to take my goods again, for
they came there by his own act.2 So, a man may sometimes justify
an entry on his neighbor's land to retake his own property which
has by accident been removed thither ; as in the instance of fruit
falling into the ground of another, or in that of a tree which is
blown down, or, through decay, falls into the ground of a neighbor :
in these cases, the owner of the fruit or of the tree may, by his plea,
show the nature of the accident, and that he was not responsible for
it, and thus justify the entry.3 This distinction must, however, be
remarked, that, if the fruit or tree had fallen in the particular direc-
tion in consequence of the owner's act or negligence, he could not
justify the entry.4

Another case also occurs, in which the law presumes a license.
Thus, if A. wrongfully place goods in B.'s building, B. may lawfully
go upon A.'s close adjoining the building, for the purpose of remov-
ing and depositing the goods there for A.'s use; that is to say, the
law allows a person to enter into a plaintiff's own close, for the pur-
pose of depositing there the plaintiff's own goods, which he had

1 Per Parke, B., Patrick v. Colerick, 3 M. & W. 485; ace. Burridge v. Nich-
oletts, 6 H. & N. 383, 388, 392 ; 2 Roll. R. 565, pi. 54.

2 Vin. Abr., " Trespass,1' (1) a ; cited, 3 M. & W. 485, and arg. Williams v.
Roberts, 7 Exch. 626. See Earl of Bristol v. Wilsmore, 1 B. & C. 514 (8 E.
C. L. R.), which also illustrates the rule, that "fraud vitiates a contract:"
post, Chap. IX.

3 Per Tindal, C. J., Anthony v. Haney, 8 Bing. 192 (21 E. C. L. R.).

4 Millen v. Hawery, Latch. 13; Vin. Abr., " Trespass,11 H. a 2, L. a; per
Tindal, C. J., 8 Bing. 192 (21 E. C. L. R.).

FUNDAMENTAL LEGAL PRINCIPLES. 304

wrongfully placed on the premises of the defendant.1 So, also, if a
man finds cattle trespassing on his own land, he may chase them out,
and is not bound to distrain them damage feasant.2 And if a distrainor
takes the distress *out of the place where it was originally r*Qn^n
impounded, and misuses it, the owner may retake his
property without rendering himself liable for a rescue or pound-
breach.3

Where, however, the goods are placed on the ground or premises
of a third party, the common law is different; for, if individuals
were allowed to use private force as a remedy for private injuries,
the public peace would be endangered, and, therefore, the right of
recaption shall never be exerted where such exertion must occasion
strife and bodily contention.4 If, for instance, my horse is taken
away, and I find him on a common, in a fair, or at a public inn, I
may, it is said, lawfully seize him to my own use, but I cannot justify
breaking open a private stable, or entering on the grounds of a
third person to take him, unless he be feloniously stolen.5 Never-
theless, if A. take chattels out of the actual possession of B., and
against his will, B. might justify using force sufficient to defend
his right, and retake the chattels,6 and recaption is expressly per-
mitted in any case falling within the provisions of stat. 11 Geo. 2,
c. 19, s. I.7

Lastly, it was resolved in the principal case, that a *mere
non-feasance will not make a man a trespasser ab initio* L J

1 Vin. Abr., "Trespass," 516, pi. 17 (I. a) ; Roll. Abr. I. pi. 17, p. 566;
cited, judgm., Rea v. Sheward, 2 M. & W. 426.

2 Tyrringham's Case, 4 Rep. 38 ; cited 2 M. & W. 426.

3 Smith v, Wright, 6 H. & N. 821.

* "The law of England appears to me, both in spirit and in principle, to
prevent persons from redressing their grievances by their own act : " per Pol-
lock, C. B., Hyde v. Graham, 1 H. & C. 598.

6 3 Com. by Broom & Hadley 4-5 ; per Parke, B., 3 M. & W. 485 ; per Tin-
dal, C. J., and Park, J., 8 Bing. 192, 193 ; 2 Roll. R. 55, 56, 208 j 6 M. & Gr.
1056 (a) (46 E. C. L. R.). As to entering on the land of another to search
for goods stolen, see 2 Roll. R. 565, pi. 15 ; Webb v. Beavan, 7 Scott N. R.
936.

6 Blades v. Higgs, 11 H. L. Cas. 621.

Secus if the property in the chattels had become vested in A. : Chambers v.
Miller, 13 C. B. N. S. 125 (106 E. C. L. R.).

7 See Williams v. Roberts, 7 Exch. 618.

8 8 Rep. 290 ; West v. Nibbs, 4 C. B. 172, 187 (56 E. C. L. R.). See Gard-

306 broom's legal maxims.

Actus non facit reum nisi mens sit rea.

(3 Inst. 107.)
The act itself does not make a man guilty unless his intention were so.

Having just seen that the law will, in some cases, imply the
nature of a previous intention from a subsequent act, we purpose in
the next place to consider the maxim, Actus non facit reum nisi
mens sit rea, with reference mainly to penal statutes, to criminal
law, and to civil proceedings for slander and libel; for, although
the principle involved in it applies in many other cases,1 we shall
defer for the present the consideration of its meaning when so
applied, and restrict our remarks almost wholly in this place to an
examination of the important doctrine of criminal intention.

"It is," says Lord Kenyon, 0, J.,2 "a principle of natural jus-
tice and of our law, that the intent and the act must both concur
to constitute the crime;" "a man," as remarked by Erie, C. J,3
"cannot be said to be guilty of a delicit, unless to some extent his
mind goes with the act," and the first observation which suggests
r*°071 ^setf in limitation of the principle thus enunciated is, that
whenever *the law positively forbids a thing to be done, it
becomes thereupon ipso facto illegal to do it wilfully, or, in some
cases, even ignorantly,4 or, may be, to effect an ulterior laudable
object,5 and consequently the doing it may form the subject-matter
of an indictment, information, or other penal proceeding, simpliciter
and without the addition of any corrupt motive.6 If there be an

ner v. Campbell, 15 Johnson (U. S) R. 401 ; Jacobsohn v. Blake, 6 M. & Gr.
919 (46 E. C. L.R.).

1 See the maxim, Caveat emptor, post, Chap. IX.

2 7 T. R. 514. Bowman v. Blyth, 7 E. & B. 26 (90 E. C. L. R.), offers a
simple illustration of the above proposition.

Et vide Hearne v. Garton, 2 E. & E. 66, 74 (105 E. C. L. R.) ; Coward v.
Baddeley, 4 H. & N. 478, 481.

3 Buckmaster, app., Reynolds, resp., 13 C. B. N. S. 68 (106 E. C. L. R.).

4 Ante, p. 267.

5 Reg. v. Hicklin, L. R. 3 Q. B. 360, 372, where Cockburn, C. J., says, " I
think the old sound and honest maxim, that you shall not do evil that good
may come, is applicable in law as well as in morals."

6 Per Ashhurst, J., R. v. Sainsbury, 4 T. R. 457 ; cited 2 A. & E. 612 ; R.
v. Jones, Stra. 1146 ; per Lord Mansfield, C. J., R. v. Woodfall, 5 Burr. 2667 ;
per Pollock, C. B., Hipkins v. Birmingham Gas Light Co., 5 H. & N. 84 ; per
Martin, B., Id. 86. See Re Humphreys, 14 Q. B. 388 (68 E. C. L. R.J ; Reg.

FUNDAMENTAL LEGAL PRINCIPLES. 307

infraction of the law the intention to break the law must be inferred,
ex. gr., where a man publishes a work manifestly obscene he must
be taken to have had the intention which is implied from that act.1

So it has been held,2 that a dealer in tobacco, having in his pos-
session adulterated tobacco, although ignorant of the adulteration,
is liable under the stat. 5 & 6 Vict. c. 93, s. 3, to the penalties
therein mentioned, and this decision merely affirms the principle
established in previous cases,3 and shows that penalties may be in-
curred under a prohibitory statute, without any intention on the
part of *the individual offending against the statute law, r*ono-i
to infringe its provisions.4

In like manner, in an action against the defendant for penalties
under the stat. 3 & 4 Will. 4, c. 15, s. 2, " for representing a
pantomime of which the plaintiff was the author, without his
license, at a place of dramatic entertainment," it was held unne-
cessary to prove that the defendant knew that the plaintiff was the
author ; inasmuch as he had infringed property of the plaintiff pro-
tected by the Act, he was, consequently, an offender within its terms.5

So, "public policy has, for the protection of the Bank of England
against forgery, rendered it criminal to make paper bearing the
same water-mark as Bank of England notes. The making of such
paper is in itself an indifferent act ; but inasmuch as it may afford
facilities for forgery, the legislature has on that account prohibited
the act."6

v. Thomas, L. & C. 313 ; Morden, app., Porter, resp., 7 C. B. N. S. 611 (97 E.
C. L. R.).

1 Reg. v. Hicklin, L. R. 3 Q. B. 360, 370, 373.

In A.-G. v. Sillein, 2 H. & C. 431, 535, where the question as to intent was
much considered, Bramwell, B., observes, " I think it cannot properly be said
that a man does an act with intent, unless he intends the act to bring about
the thing intended, or unless the act is particularly fitted to do so."

2 Reg. v. Woodrow, 15 M. & W. 404.

3 A.-G. v. Lockwood, 9 M. & W. 378, 401 ; R. v. Marsh, 4 D. & Ry. 261.

4 It may be requisite to determine whether an act, ex. gr. shooting a
pigeon, was done unlawfully, so as to be brought within the words of a
statute : Taylor v. Newman, 4 B. & S. 89 (116 E. C. L. R.), with which com-
pare Hudson v. MacRae, Id. 585.

6 Lee v. Simpson, 3 C. B. 871 (54 E. C. L. R.). See Russell v. Briant, 8
C. B. 836 (65 E. C. L. R.) ; Gambart v. Sumner, 5 H. & N. 5.

6 Per Pollock, C. B., Atkyns v. Kinnier, 4 Exch. 782. See 24 & 25 Vict. c.
98, s. 14.

16

308 BROOM'S LEGAL MAXIMS.

In general, however, the intention of the party at the time of
committing an act charged as an offence is as necessary to be
proved as any other fact laid in the indictment, though it may happen
that the proof of intention consists in showing overt acts only, the
reason in such cases being, that every man is primd facie supposed
to intend the necessary, or even probable or natural consequences
r*30Ql °^ ^is own act.1 Thus, a prisoner was indicted *for set-
ting fire to a mill, with intent to injure and defraud the
occupiers; and it was held that, as such injury was a neces-
sary consequence of setting fire to the mill, the intent to injure
might be inferred.2 So, in order to constitute the crime of
murder, which is always stated in the indictment to be committed
with malice aforethought, it is not necessary to show that the
prisoner had any enmity to the deceased ; nor would proof of
absence of ill-will furnish the accused with any defence, when it is
proved that the act of killing was intentional, and done without
any justification or excusable cause.3 And it is, as a general pro-
position, true, that if an act manifestly unlawful and dangerous be
done deliberately, the mischievous intent will be presumed, unless
the contrary be shown.4

It is also a rule, laid down by Lord Mansfield, and which has
been said to comprise all the principles of previous decisions upon
this subject,5 that, so long as an act rests in bare intention, it is
not punishable by our law ; but when an act is done, the law
judges not only of the act itself, but of the intent with which it was
done ; and if the act be coupled with an unlawful and malicious in-
tent, though in itself the act would otherwise have been innocent,

1 Per Lord Campbell, 9 CI. & Fin. 321 ; per Littledale, J., R. v. Moore, 3
B. & Ad. 188 (23 E. C. L. R.), and in Reg. v. Lovett, 9 C. & P. 466 (38 E. C.
L. R.) ; per Lord Ellenborough, C. J., Newton v. Chantler, 7 East 143, and in
R. v. Dixon, 3 M. & S. 15 (30 E. C. L. R.) ; cited Reg. v. Hicklin, L. R. 3 Q.

B. 375 ; R. v. Harvey, 2 B. & C. 261, 267 (9 E. C. L. R.) ; Wilkin v. Manning,
9 Exch. 575, 582; Pennell v. Reynolds, 11 C. B. N. S. 709 (103 E. C. L. R.),
and cases there cited ; Bell v. Simpson, 2 H. & N. 410. See Deai-den v. Town-
send, L. R. 1 Q. B. 10.

2 R. v. Farrington, Russ. & Ry. 207 ; per Bayley, J., R. v. Harvey, 2 B. &

C. 264 (9 E. C. L. R.).

3 Per Best, J., 2 B. & C. 268.
«1 East P. C. 231.

6 Per Lawrence, J., R. v. Higgins, 2 East 21.

FUNDAMENTAL LEGAL PRINCIPLES. 309

yet, the intent being criminal, the act likewise becomes criminal
and punishable.1

*It is accordingly important to distinguish an attempt2 r*Qioi
from a bare intention; for the former a man may — and
most justly, in many cases — be made answerable; for the latter he
cannot be so. The "will is not to be taken for the deed," unless
there be some external act which shows that progress has been
made in the direction of it, or towards maturing and effecting it.
If there be an attempt, if there be something tangible and osten-
sible of which the law can take hold, which can be alleged and
proved — there is nothing offensive to our ideas of justice in declar-
ing it to be criminal and punishable. Hence, an attempt to commit
a felony is, in many cases, a misdemeanor ; and the general rule is,
that " an attempt to commit a misdemeanor is a misdemeanor,
whether the offence is created by statute, or was an offence at com-
mon law.3 Moreover, under various statutes attempts to commit
particular offences are indictable and punishable as therein specified,
and the statute 14 & 15 Vict. c. 100, s. 9, enables a jury to convict
of the attempt upon an indictment for commission of the substan-
tive offence, wherever the evidence suffices to establish the one
though not the other.4

Our law, moreover, will sometimes, with a view to determining
the intention, couple together two acts which have been separated
the one from the other by an appreciable interval of time, and
ascribe to the latter of these acts that character and quality which
undeniably attached and was ascribable to the earlier ; and the doc-
trine of ^relation is also occasionally brought into play r*Qii"i
with a view to determining the degree of guilt of an of-
fender. Thus A. whilst engaged in the prosecution of some felonious
act, undesignedly causes the death of B. ; in strictness A. may be
convicted of murder, the felonious purpose conjoined with the homi-
cide being held to fill out the legal conception of that crime.5 So,

1 R. v. Scofield, cited 2 East P. C. 1028 ; Dugdale v. Reg., 1 E. & B. 435,
439 (72 E. C. L. R.).

2 Which Dr. Johnson defines to be an " essay " or " endeavor "to do an
act: Diet, ad verb. See Reg. v. M'Pherson, Dearsl. & B. 197 ; Reg. v. Col-
lins, L. & C. 471 ; Reg. v. Cheeseman, Id. 140.

3 Russ. Cr., 3d ed., vol. 1, p. 47.

* See Reg. v. Hapgood, L. R. 1 C. C. 221.

8 Fost. Disc. Horn. 258, 259 ; Crim. L. Com., 1st Rep., 40, 41.

311 broom's legal maxims.

in Reg. v. Riley,1 a felonious intent was held to relate back, and
couple itself with a continuing act of trespass, so as, taken in con-
nection with it, to constitute the crime of larceny.

The first part of the rule already adverted to2 — that "so long as
an act rests in bare intention it is not punishable," agrees, we may
observe, with that laid down by Ulpian :3 Cogitationis pcenam nemo
patitur ; and by Montesquieu,4 who says, Les lois ne se chargent de
punir que les actions exterieures ; and must evidently be recognised,
unless where the worst form of tyranny prevails. In the case of
treason, however, the old maxin, Voluntas reputatur pro facto5 — ■
the will is taken for the deed — is said to apply to its full extent ;
by which, however, we must understand, that if a treasonable
design be entertained, and if any open or overt act be done
towards effectuating such design, then the mere imagination of the
heart is, in contemplation of law, as guilty as it would have been if
carried into actual execution ; even in this case, however, the mere
treasonable intention, to wit, the compassing and imagining the
death of the sovereign, although strictly charged in the indictment
l~*3191 as ^e substantive treason, cannot be brought within legal
^cognisance, unless accompanied by overt acts, which fur-
nish the means and evidence whereby the intention may be made
manifest.6 For instance, although mere words spoken by an indi-
vidual not relating to any treasonable act or design then in agita-
tion, do not amount to treason, since nothing can be more equivocal
and ambiguous than words,7 yet words of advice and persuasion,
and all consultations for the furtherance of traitorous plans, are
certainly overt acts of treason ; and if the words be set down in
writing, this writing, as arguing more deliberate intention, has
been held to be an overt act of treason, on the principle that
scribere est agere ;8 but even in this case the bare words are not the
treason, but the deliberate act of writing them ; the compassing
and imagination, which is the purpose and intent of the heart, is
manifested by the specific overt act.

1 Dearsl. 149. 2 Ante, p. 309. 3 D. 48. 19. 18.

* Esp. des Lois, Bk. 12, c. 11. 5 3 Inst. 5, 69.

6 1 East P. C. 58 ; stat. 7 & 8 Will. 3, c. 3, s. 8.

7 4 Bla. Com. by Stewart 80 ; 1 Hawk. P. C. by Curwood, p. 14, n. (6).

8 2 Roll. R. 89. As to the maxim, supra, see Algernon Sidney's Case, 9
How. St. Tr. 818 ; Fost. Disc. High. Tr. 198.

FUNDAMENTAL LEGAL PRINCIPLES. 312

Likewise, with respect to misdemeanors, the rule is, that a bare
criminal intent is not in itself indictable if merely expressed in
words, gestures, or otherwise, without further proceeding to the
crime to which it points.1 The gist of the offence of conspiracy,
however, "is the bare engagement and association to break the
law, whether an act be done in pursuance thereof by the conspi-
rators or not;"2 and, provided the indictment *show either r^o-to-i
that the conspiring together was for an unlawful purpose
or to effect a lawful purpose by unlawful means, this will be suffi-
cient ; and whether anything has been done in pursuance of it or
not is immaterial, so far as regards the sufficiency of the indictment.3

The observations already made as to the meaning of the word
"attempt," in connection with criminal law, may here generally be
referred to: it is worthy also of remark, that in Reg. v. Eagleton,4
the Court, after observing that, although "the mere intention to
commit a misdemeanor is not criminal, some act is required to make
it so," add, "we do not think that all acts towards committing: a
misdemeanor are indictable. Acts remotely leading towards the
commission of the offence are not to be considered as attempts to
commit it, but acts immediately connected with it are:" the doc-
trine of "remoteness," already commented on,5 has here, conse-
quently, an important application.

1 Dick. Quart. Sess., by Serjeant Talfourd, 5th ed., 286. See per Lord
Abinger, C. B., R. v. Meredith, 8 C. & P. 590 (34 E. C. L. R.).

2 Per Tindal, C. J., O'Connell v. Reg., 11 CI. & F. 233 ; Judgra., R. v. Ken-
rick, 5 Q. B. 61 (48 E. C. L. R.).

" A conspiracy consists not merely in the intention of two or more, but in
the agreement of two or more to do an unlawful act, or to do a lawful act by
unlawful means. v So long as such a design rests in intention only it is not
indictable. When two agree to carry it into effect, the very plot is an act in
itself, and the act of each of the parties, promise against promise, actus contra
actum, capable of being enforced, if lawful, punishable, if for a criminal
object or for the use of criminal means." Opinion of the judges in Mulcahy
v. Reg., L. R. 3 II. L. 317.

3 See further as to the offence of conspiracy, per Lord Denman, C. J., R.
v. Seward, 1 A. & E. 713 (28 E. C. L. R.) ; per Bayley, J., R. v. Gill, 2 B. &
Aid. 205 ; 9 Rep. 56, 57. See also King v. Reg., 7 Q. B. 782, 795 (53 E. C.
L. R.) ; Lord Denman's judgm. in O'Connell v. Reg., by Leahy, p. 19 ; Gregory
v. Duke of Brunswick, 6 M. & Gr. 205, 953 (46 E. C. L. R.) ; s. c, 3 C. B.
481 (54 E. C. L. R.), which was an action on the case for conspiracy.

4 Dearsl. 515. See Reg. v. Roberts, Id. 539 ; Reg. v. Gardner, Dearsl. & B.
40, with which compare Reg. v. Martin, L. R. 1 C. C. 56.

• Ante, pp. 206, 216.

313 broom's legal maxims.

A point, moreover, analogous to that just noticed, and by no
means free from difficulty, sometimes arises where a person is in-
dicted for attempting to commit a particular offence; in this case,
r*3141 w^ a v*ew to sat*sfymg ^ourselves whether or not he can
be convicted of the attempt, we must consider whether, if
he had succeeded in carrying out his object, he could have been
convicted of the substantive offence1 — whether there was such a
beginning as would, if interrupted, have ended in the completion of
the act.2

Having thus briefly noticed that, with some few peculiar excep-
tions, in order to constitute an offence punishable by law, a criminal
intention must either be presumable, as where an unlawful act is
done wilfully, or must be proved to have existed from the surround-
ing circumstances of the case, it remains to add, that, since the
guilt of offending against any law whatsoever necessarily supposes
wilful disobedience, such guilt can never justly be imputed to those
who are either incapable of understanding the law, or of conform-
ing themselves to it; and, consequently, that persons laboring under
a natural disability of distinguishing between good and evil, by
reason of their immature years, or of mental imbecility, are not
punishable by any criminal proceeding for an act done during the
season of incapacity;3 the maxims of our own, as of the civil law,
upon this subject being, In omnibus poenalibus judiciis et cetati et
imprudentice succurritur,4 and Furiosi nulla voluntas est.5 With
regard to acts in violation of the law, an allowance is made in
respect of immaturity of years and judgment; and one who is de-
void of reason is not punishable, because he can have no criminal
intention.

r*31 ^1 *^n tw0 cases' wn^cn were actions upon policies of life
insurance, the doctrine relative to criminal intention was
much considered. In the first of these, a proviso in the policy
declared that the same should be void, inter alia, in case the assured
"should die by his own hands;" and the learned judge, who pre-

1 See Reg. v. Garrett, Dearsl. 232, in connection with which case see, now,
stat. 24 & 25 Vict. c. 96. s. 89.

2 Reg. v. Collins, L. & C. 471.

3 Hawk. P. C. by Curwood, Bk. 1, c. 1 ; 4 Com. by Broom & Hadley,
Chap. 2.

« D. 50. 17. 108. 6 D. 50. 17. 5 : D. 1. 18. 13, g 1.

FUNDAMENTAL LEGAL PRINCIPLES. 315

sided at the trial of the cause, left it to the jury to say, whether at
the time of committing the act which immediately occasioned death,
the deceased was so far deprived of his reason as to be incapable of
judging between right and wrong; and this question was answered
by the jury in the negative, a further question being, by assent of
parties, reserved for the Court, viz., whether the proviso included
only criminal self-destruction. After argument in banco, three
judges of the Court of Common Pleas held, in opposition to the
opinion of the Chief Justice, that the words of the proviso above
stated were large enough, according to their ordinary acceptation,
to include all intentional acts of self-destruction, whether criminal
or not, if the deceased was laboring under no delusion as to the
physical consequences of the act which he was committing, and if
the act itself was a voluntary and wilful act ; and they thought that
the question "whether at the time he was capable of understanding
and appreciating the moral nature and quality of his purpose," was
not relevant to the inquiry, further than as it might help to illustrate
the extent of his capacity to understand the physical character of
the act itself.1 In a subsequent case,2 which came, by bill of excep-
tions, *before the Court of Exchequer Chamber, the proviso r*9ifii
was that the policy should be void if the insured should
"commit suicide, or die by duelling or the hands of justice;" and
the majority of the Court held that the word "suicide" must be
interpreted in accordance with its ordinary meaning, and must be
taken to include every act of self-destruction, provided it were the
intentional act of the party, knowing at the time the probable con-
sequences of what he was about to do. The above decisions are
obviously of much importance with reference to the law of life in-
surance, and show in what manner and in what qualified sense the
maxim Actus non facit reum nisi mens sit rea, must be understood,
when applied to this branch of the law.

With regard to persons of immature years, the rule is, that no
infant within the age of seven years can be guilty of felony,3 or be

1 Borradaile v. Hunter, 5 M. & Gr. 639 (57 E. C. L. R.) 5 Dormay v. Borra-
daile, 5 C. B. 380 (57 E. C. L. R.).

2 Clift v. Schwabe, 3 C. B. 437 (54 E. C. L. R.) ; Dufaur v. Professional
Life Ass. Co., 25 Beav. 599. See Horn v. Anglo-Australian, &c, Ass. Co.,
30 L. J., Ch., 511 ; Amicable Ass. Soc. v. Bolland, 2 Dow & C. 1.

3 Marsh v. Loader, 14 C. B. N. S. 535 (108 E. C. L. R.).

316 broom's legal maxims.

punished for any capital offence ; for within that age, an infant is,
by presumption of law, doli incapax, and cannot be endowed with
any discretion, and against this presumption no averment shall be
received.1 This legal incapacity, however, ceases when the infant
attains the age of fourteen years, after which period his act becomes
subject to the same rule of construction as that of any other
person.2

Between the ages of seven and fourteen years an infant is deemed
primd facie to be doli incapax ; but in this case the maxim applies,
malitia supplet astatem3 — malice (which is here used in its legal
sense, and means the doing of a wrongful act intentionally, without
r*3171 Just *cause or excuse>4 supplies the want of mature years.
Accordingly, at the age above-mentioned, the ordinary
legal presumption may be rebutted by strong and pregnant evi-
dence of mischievous discretion; for the capacity of doing ill or
contracting guilt is not so much measured by years and days, as by
the strength of the delinquent's understanding and judgment. In
all such cases, however, the evidence of malice ought to be strong,
and clear beyond all doubt and contradiction.5 And two questions
ought, moreover, to be left for the consideration of the jury; first,
whether the accused committed the offence; and, secondly, whether
at the time he had a guilty knowledge that he was doing wrong.6
In the case of rape, we may add, it is a presumption of law, not

1 4 Com. by Broom & Hadley 18.

2 Id.

3 Dyer 104 b.

4 Arg., Mitchell v. Jenkins, 5 B. & Ad. 590 (27 E. C. L. R.). " Malice,
in the legal acceptation of the word, -is not confined to personal spite against
individuals, but consists in a conscious violation of the law to the prejudice
of another ; " per Lord Campbell, 9 CI. & Fin. 321. See also per Pollock, C.
B., Sherwin v. Swindall, 12 M. & W. 787, 788; per Littledale, J., M'Pherson
v. Daniels, 10 B. & C. 272 (21 E. C. L. R.) ; per Best, J., R. v. Harvey, 2 B.
& C. 267, 268 (9 E. C. L. R.).

6 4 Com. by Broom & Hadley 19.

6 R. v. Owen, 4 C. & P. 236 (19 E. C. L. R'.).

An infant, or one non compos, is liable civilly for a tortious act, as a tres-
pass ; see Burnard, app., Haggis, resp., 14 C. B. N. S. 45 (108 E. C. L. R.) ;
per Lord Kenyon, C. J., Jennings y. Rundall, 8 T. R. 337 ; Johnson v. Pye,
1 Lev. 169; Bartlett v. Wells, 1 B. & S. 836 (101 E. C. L. R.), with which
ace. De Roo v. Foster, 12 C. B. N. S. 272 (104 E. C. L. R.) ; per curiam,
Weaver v. Ward, Hobart 134 ; Bac. Max., reg. 7, adjinem.

FUNDAMENTAL LEGAL PRINCIPLES. 317

admitting of proof to the contrary, that within the age of fourteen
years this particular offence cannot hy reason of physical inability,
be committed.1

A libel is " anything written or printed,2 which, from *its
terms, is calculated to injure the character of another, by }• -•
bringing him into hatred, contempt, or ridicule, and which is pub-
lished without lawful justification or excuse;"3 and, again, "every-
thing printed or written, which reflects on the character of another,
and is published without lawful justification or excuse, is a libel,
whatever the intention may have been."4

With respect to libel and slander, the rule, as deduced from an
extensive class of cases, is that, where an occasion exists, which, if
fairly acted upon, furnishes a legal protection to the party who
makes the communication complained of, the actual intention of the
party affords a boundary of legal liability. If he had that legiti-
mate object in view which the occasion supplies, he is neither civilly
nor criminally amenable; if, on the contrary, he used the occasion
as a cloak for maliciousness, it can afford him no protection.5 It
must, moreover, be observed, that, as the honesty and integrity
with which a communication of hurtful tendency is made cannot
exempt from civil liability, unless it be coupled with an occasion
recognised by the law, so responsibility may attach, if the mode or

1 Reg. v. Philips, 8 C. & P. 736 (34 E. C. L. R.) ; Reg. v. Jordan, 9 C. &
P. 118 (38 E. C. L. R.) ; Reg. v. Brimilow, Id. 366 j R. v. Groombridge, 7 C.
& P. 582 (32 E. C. L. R.). But an infant under fourteen years of age may-
be a principal in the second degree. (R. v. Eldershaw, 3 C. & P. 396 (14 E.
C. L. R.). As to the liability of an infant for misdemeanor, see 4 Com. by
Broom & Hadley 17.

2 The full definition of a libel, however, includes defamation of another by
signs; see Du Bost v. Beresford, 2 Camp. N. P. C. 511.

3 Per Parke, B., Gathercole v. Miall, 15 M. & W. 321 ; Digby v. Thompson,
4 B. & Ad. 821 (24 E. C. L. R.) ; Bloodworth v. Gray, 8 Scott N. R. 9 ; Pem-
berton v. Calls, 10 Q. B. 461 (59 E. C. L. R.).

4 Per Parke, B., O'Brian v. Clement, 15 M. & W. 437 ; O'Brien v. Bryant,
15 M. & W. 168 ; Darby v. Ouseley, 1 H. & N. 1 ; Fray v. Fray, 17 C. B. N.
S. 603 (112 E. C. L. R.) ; Cox v. Lee, L. R. 4 Ex. 284 ; Walker v. Brogden,
19 C. B. N. S. 65 (115 E. C. L. R.).

6 1 Stark. Sland. and Lib., 2d ed., Prel. Dis. p. lxxxvi. See per Parke, B., ,
Parmiter v. Coupland, 6 M. & W. 108.

An action for libel will lie against a corporation aggregate, Whitfield v.
South-Eastern R. C, E., B. & E. 115 (96 E. C. L. R.).

318 broom's legal maxims.

nature of the communication in any respect exceeds that which the
legal occasion warrants.1

f*S191 *The rule applicable for determining whether a particu-
lar communication is privileged, has been thus stated : —

" A communication, made bond fide upon any subject-matter in
which the party communicating has an interest, or in reference to
which he has a duty, is privileged, if made to a person having a
corresponding interest or duty, although it contain criminatory
matter which, without this privilege, would be slanderous and
actionable."2

If, for instance, a man received a letter informing him that his
neighbor's house would be plundered or burnt on the night following
by A. and B., which he himself believed, and had reason to believe,
to be true, he would be justified in showing that letter to the owner
of the house, though it should turn out to be a false accusation of
A. and B.3 So, if A. knew that B. was about to employ an agent,
whom he (A.) suspected to be a man of unprincipled character, A.
would be justified in communicating his knowledge to B., although
he was in fact mistaken ; but he would not be justified in doing so
in the hearing of other persons who were not interested in the fact,
for the occasion warrants a communication to B. only, and, as to
r^oQA-i the rest, it is mere excess, not warranted by the Occa-
sion.4 In like manner, a character of a servant bond fide

1 See Spill v. Maule, L. R. 4 Ex. 232 ; Kelly v. Tinling, L. R. 1 Q. B. 699 ;
Fryer v. Kinnersley, 15 C. B. N. S. 422 (109 E. C. L. R.).

2 Judgm., Harrison v. Bush, 5 E. & B. 348 (85 E. C. L. R.) ; Whiteley v.
Adams, 15 C. B. N. S. 392, 419, 421 (109 E. C. L. R.) ; Force v. Warren, Id.
806. The subject of privileged communications was much considered in Cox-
head v. Richards, 2 C. B. 569 (52 E. C. L. R.) ; Blackham v. Pugh, Id. 611 ;
Dawkins v. Lord Paulet, L. R. 5 Q. B. 94 ; Scott v. Stansfeld, L. R. 3 Ex.
220 ; Wason v. Walter, L. R. 4 Q. B. 73 ; Ex parte Wason, L. R. 4 Q. B. 573 ;
Kelly v. Tinling, L. R. 1 Q. B. 699 ; Lawless v. Anglo-Egyptian Cotton Co.,
L. R. 4 Q. B. 262 ; Beatson v. Skene, 5 H. & N. 838. See Tighe v. Cooper, 7
E & B. 639 (90 E. C. L. R.); Davison v. Duncan, 7 E. & B. 229; Lewis v.
Levy, E., B. & E. 537 (96 K. C. L. R.).

3 Per Tindal, C. J., 2 C. B. 596 (52 E. C. L. R.) ; Amann v. Damm, 8 C. B.
N. S. 597 (98 E. C. L. R.).

4 1 Stark. Sland. and Lib., 2d ed. , Prel. Dis. p. lxxxvii. See Padmore v. Law-
rence, 11 A. & E. 380 (39 E. C. L. R.) ; Toogood v. Spyring, 1 Cr., M. & R.
181 ; followed by Coltman, J., 2 C. B. 599 (52 E. C. L. R.), and Cresswell, J.,
Id. 603 ; Kine v. Sewell, 3 M. & W. 297 ; Goslin v. Corry, 8 Scott N. R. 21.

FUNDAMENTAL LEGAL PRINCIPLES. 320

given is a privileged communication,1 and in giving it bona fides is
to be presumed; and, even though the statement be untrue in fact,
the master will be held justified by the occasion in making that
statement, unless it can be shown to have proceeded from a mali-
cious mind, one proof of which may be, that it is false to the
knowledge of the party making it.2 So, a comment upon a literary
production, exposing its follies and errors, and holding up the
author to ridicule, will not be deemed a libel, provided such com-
ment does not exceed the limits of fair and candid criticism, by
attacking the character of the writer unconnected with his publica-
tion ; and a comment of this description, subject to the above pro-
viso, every one has a right to publish, although the author may
suffer a loss from it. But, if a person, under the pretence of criti-
cising a literary work, defames the private character of the author,
and, instead of writing in the spirit and for the purpose of fair and
candid discussion, travels into collateral matter, and introduces
facts not stated in the work, accompanied with injurious comments
upon them, such person is a libeller, and liable to an action.3

*In the case of an author, just supposed, or of an actor, r*qo-n
whose performances are, by the acknowledged usages of
society, held out to public criticism, and likewise in that of a min-
ister of the Crown, or of a judge, or any other public functionary,
it seems clear that comments bond fide and honestly made upon the
conduct of the individual thus before the public, are perfectly justi-
fiable; and if an injury be sustained in consequence of such criti-
cism, it is an injury for which the law affords no redress by dam-
ages. It may, indeed, not unfrequently be difficult to say how far
the criticism in question applies to the public, and how far to the
private conduct of the individual, and yet this distinction is highly

1 See Affleck v. Child, 9 B. & C. 403, 406 (17 E. C. L. R.), recognising the
rule laid down by Lord Mansfield, C. J., in Edmonson v. Stevenson, cited
Bull. N. P. 8 ; Pattison v. Jones, 8 B. & C. 578 (15 E. C. L. R.).

2 Judgm., Fountain v. Boodle, 3 Q. B. 11, 12 (43 E. C. L. R.) ; Somerville
v. Hawkins, 10 C. B. 583 (70 E. C. L. R.) ; Taylor v. Hawkins, 16 Q. B. 308
(71 E. C. L.R.) ; Manby v. Witt, and Eastmead v. Witt, 18 C. B. 544 (86 E.
C. L. R.).

3 Carr v. Hood, 1 Camp. 355, n. (recognised, Green v. Chapman, 4 Bing.
N. C. 92 (13 E. C. L. R.)) ; Campbell v. Spottiswoode, 3B.& 'S. 769 (113 E.
C. L. R.) ; Thompson v. Shaked, M. & M. 187 (22 E. C. L. R.); Soane v.
Knight, Id. 74. See Paris v. Levy, 9 C. B. N. S. 342 (99 E. C. L. R.).

321 broom's legal maxims.

important, since much greater latitude is allowed to comments upon
the former than upon the latter, and remarks perfectly unobjec-
tionable in the one case might be unjustifiable and libellous in the
other. Of course no general rule upon such a subject can be
stated, nor can a difference of opinion amongst the highest authori-
ties, in regard to a distinction so subtle, excite surprise.1

With respect to the evidence of intention in an action for libel,
the rule is, that a mere wicked and mischievous intention cannot
make matter libellous which does not come within the definition of
a libel already given; but, if libellous matter be published under
circumstances which do not constitute a legal justification, and
injury ensue, the malicious intention to injure will be presumed,
according to the principle stated at the commencement of these
remarks, that every man must be presumed to intend the natural
r*322"l an(* orc^nai7 consequences of his own *act.2 In such case,
however, the spirit and quo animo of the party publishing the
libel are fit to be considered by the jury in estimating the amount
of injury inflicted on the plaintiff.3

So, in ordinary actions for slander, malice in law may be inferred
from the act of publishing the slanderous matter, such act itself
being wrong and intentional, and without just cause or excuse; but
in actions for slander primd facie excusable, on account of the
cause of publishing the slanderous matter, malice in fact must be

1 See the opinions of the Court of Exchequer in Gathercole v. Miall, 15 M.
& W. 319; James v. Brook, 9 Q. B. 7 (58 E. C. L. R.).

2 Fisher v. Clement, 10 B. & C. 472 (21 E. C. L. R.) ; Haire v. Wilson, 9 B.
& C. 643 (17 E. C. L. R.) ; Parmiter v. Coupland, 6 M. & W. 105, recognised
Baylis v. Lawrence, 3 P. & D. 526 ; per Best, C. J., Levi v. Milne, 4 Bing. 199
(13 E. C. L. R.)

3 1 Stark., Sland. and Lib., 2d ed., Prel. Dis., p. cxxxviii., cxxxix. ; 2 Id.
242, n. (6), 322, 323. See Pearson v. Lemaitre, 6 Scott N. R. 607 ; Wilson v.
Robinson, 7 Q. B. 68 (53 E. C. L. R.) ; Barrett v. Long, 3 H. L. Cas. 395.

The following cases may be consulted with reference to pleas of justifica-
tion of matter primd facie libellous : Tighe v. Cooper, 7 E. & B. 639 (90 E.
C. L. R.); Prior v. Wilson, 1 C. B. N. S. 95 (87 E. C. L. R.); Tidman v.
Ainslie, 10 Exch. 63. See Earl of Lucan v. Smith, 1 H. & N. 481. To an
action for a libel published in a newspaper, it is no defence that the alleged
libel consists of a true and accurate report of the proceedings at a public
meeting held under a local Act for the improvement of a town : Davison v.
Duncan, 7 E. & B. 229 (90 E. C. L. R.) ; ace. Popham v. Pickburn, 7 H. &
N. 891.

FUNDAMENTAL LEGAL PRINCIPLES. 322

proved;1 and, in an action for slander of title, the plaintiff must
give evidence both that the statement was false, and that it was
malicious, and although want of probable cause may justify a jury
in inferring malice, yet it is clear that the Court will not draw such
an inference from the fact, that defendant has put a wrong construc-
tion on a complicated Act of Parliament.2

*The respective functions of judge and jury at the trial
of an action for libel or slander have been thus indicated.3 L -•
" It is matter of law for the judge to determine whether the occa-
sion of writing or speaking criminatory language which would
otherwise be actionable repels the inference of malice, constituting
what is called a privileged communication ; and if at the close of
the plaintiff's case there be no intrinsic or extrinsic evidence of
malice," then, "it is the duty of the judge to direct a nonsuit or a
verdict for the defendant, without leaving the question of malice
to the jury, as a different course would be contrary to principle,
and would deprive the honest transactions of business and of social
intercourse of the protection which they ought to enjoy."

Connected with the subject of criminal intention above briefly
discussed are two important rules relative thereto, which are laid
down by Lord Bacon in his collection of maxims. The first is —
In criminalibus sufficit generalis malitia intentionis cum facto parts
gradus. "All crimes," he remarks, "have their conception in a
corrupt intent, and have their consummation and issuing in some
particular fact, which, though it be not the fact at the which the
intention of the malefactor levelled, yet the law giveth him no
advantage of the error, if another particular ensue of as high a
nature." Thus, if a poisoned apple be laid in a certain place,
with a view to poison A., and B. comes by chance and eats it, this

1 Padmore v. Lawrence, 11 A. &. E. 380 (39 E. C. L. R.) ; Toogood v. Spy-
ring, 1 Cr., M. & R. 181 j Huntley v. Ward, 6 C. B. N. S. 514 (95 E. C. L. R.) ;
Kine v. Sewell, 3 M. & W. 297 ; Griffiths v. Lewis, 7 Q. B. 61 (53 E. C. L. R.).
See Coxhead v. Richards, and cases cited ante.

2 Pater u. Baker, 3 C. B. 831 (54 E. C. L. R.), recognising Pitt v. Donovan,
1 M. & S. 639 ; Brook v. Rawl, 4 Exch. 521 ; Judgm., Wren v. Weild, L. R. 4
Q. B. 734.

3 Judgm., Cooke v. Wildes, 5 E. & B. 340 (85 E. C. L. R.), recognising
Somerville v. Hawkins, 10 C. B. 583 (70 E. C. L. R.) ; Taylor v. Hawkins, 16
Q. B. 308 (71 E. C. L. R.) ; and, per Maule, J., Gilpin v. Fowler, 9 Exch. 615.
See also Homer v. Taunton, 5 H. & N. 661 ; Croft v. Stevens, 7 H. & N. 570.

323 BROOM'S LEGAL MAXIMS.

amounts nevertheless to murder, although the malicious intention of
[~*394.1 tne *Person wno placed the apple was directed against A.,
and not against B.1

The second of Lord Bacon's rules above adverted to is as follows :
Excusat aut extenuat delictum in capitalibus quod non operatur
idem in civilibus. " In capital causes, in favorem vitce, the law
will not punish in so high a degree, except the malice of the will and
intention appear; hut in civil trespasses, and injuries that are of
an inferior nature, the law doth rather consider the damage of
the party wronged than the malice of him that was the wrongdoer.2
For instance, the law makes a difference between killing a man
upon malice aforethought, and upon present heat and provocation,
in malifieiis voluntas spectatur non exitus ;3 but, if I slander a
man, and thereby damnify him in his name and credit, it is not
material whether I do so upon sudden choler, or of set malice ; but
I shall be, in either case, answerable for damages.4 For there is a
distinction in this respect, which will be further illustrated here-
after, between answering civiliter et criminaliter for acts injurious
to others : in the latter case, the maxim ordinarily applies, actus
non facit reum nisi mens sit rea ; but it is ofttimes otherwise in
civil actions, where the intent may be immaterial if the act done
were injurious to another ;5 of which rule a familiar instance occurs
in the liability of a sheriff, who by mistake, seizes the goods of the
wrong party under a writ of fi. fa. So, on an action for the in-
r*^9^1 fringement °f a patent " is maintainable in *respect of what
the defendant does, not of what he intends ;"6 the patentee
is not the less prejudiced because the invasion of his right was
unintentional.7

We may add that whilst, on the one hand, " an act which does
not amount to a legal injury cannot be actionable because it is done

1 Bac. Max., reg. 15 ; D. 47 ; 10, 18, \ 3 : Wood. Inst. 307 ; R. v. Oneby, 2
Ld. Raym. 1489: Reg. v. Smith, Dearsl. C59 ; Reg. v. Fretwell, L. & C. 443.

2 Bac. Max., reg. 7. 3 D. 48. 8. 14.
4 Bac. Max., reg. 7.

6 Per Lord Kenyon, C. J., 2 East 103-104.

6 Stead v. Anderson, 4 C. B. 80G, 834 (56 E. C. L. R.); Lee v. Simpson, 3
C. B. 871 (54 E. C. L. R.), cited judgm. Reade v. Conquest, 11 C. B. N. S.
492 (103 E. C. L. R.).

7 Per Shadwell, V.-C. E., Heath v. Unwin, 15 Sim. 552; s. c. (in error), 5
II. L. Cas. 505.

FUNDAMENTAL LEGAL PRINCIPLES. 325

with a bad intent,"1 on the other hand, an act primd facie lawful
may be unlawful if done with an improper or lawless object: ex. gr.>
"I take it to be clear law," says Erie, J., in Reg. v. Pratt,2 "that
if in fact a man be on land where the public have a right to pass
and repass, not for the purpose of passing and repassing, but for
other and different purposes, he is in law a trespasser."

One case, in which the principle in favorem vitce, adverted to by
Lord Bacon,3 was considered, may here be noticed, since it involves
a point of considerable importance, and has attracted much atten-
tion. It was decided by the House of Lords, on writ of error from
the Court of Queen's Bench in Ireland, that the privilege of per-
emptory challenge on the part of the prisoner extends to all felonies,
whether capital or not; and it was observed by Wightman, J.
(delivering his opinion on a question proposed for the consideration
of the judges, and commenting on the position, that the privilege
referred to was allowed only in favorem vita?, and did not extend to
cases in which the punishment is not capital), that it would seem
that the origin of the privilege in felony may *have been
the capital punishment usually incident to the quality of L J
crime; but that the privilege was, at all events, annexed to the
quality of crime called felony, and continued so annexed in practice
in England (at least down to the time when the question was
raised), in all cases of felony, whether the punishment was capital
or not.4

As a fitting conclusion to our remarks upon the subject of crimi-
nal intention, and the maxim of Lord Bacon, lastly above mentioned,
we may observe in the words of a distinguished judge, that, in
criminal cases generally, and especially in cases of larceny, " the
variety of circumstances is so great, and the complications thereof
so mingled, that it is impossible to prescribe all the circumstances
evidencing a felonious intent, or the contrary, but the same must be
left to the due and attentive consideration of the judge and jury,

1 Judgm., Stevenson v. Newnham, 13 C. B. 297 (76 E. C. L. R.)j Dawkins
v. Lord Paulet, L. R. 5 Q. B. 94, 114.

2 4 E. & B. 867 (82 E. C. L. R.), citing Dovaston v. Payne, 2 H. Bla. 527.
8 Ante, p. 324.

* Gray v. Reg., 11 CI. & Fin. 427 ; Mulcahy v. Reg., L. R. 3 H. L. 306. The
right of peremptory challenge by the Crown was much considered in Mansell
v. Reg., 8 E. & B. 54 (92 E. C. L. R.).

326 broom's legal maxims.

wherein the best rule is, in dubiis, rather to incline to acquittal
than conviction."1

Tutius semper est errare in acquietando quam in puniendo, ex
parte miser icor dice, quam ex parte justitia?.2

[*327] *Nemo debet bis vexari pro una et eadem Causa.

(5 Rep. 61.)

It is a rule of law that a man shall not be twice vexed for one and the same

cause?

According to the Roman law, as administered by the praetors, an
action might be defended in any of the following modes :4 1. By a
simple denial or traverse of the facts alleged as the ground of
action ; 2. By pleading new facts which constituted, ipso jure, a
bar to the plaintiff's claim, although such claim might, in the first
instance, have been well founded, as payment or a release ; 3. By
showing such facts as might induce the praetor, on equitable grounds,
to declare certain defences admissible, the effect of which, if estab-
lished, would be not, indeed, to destroy the action ipso jure, but to
render it ineffectual by means of the " exception " thus specially
prescribed by the praetor for the consideration of the judge, to
whose final decision the action might be referred. JExceptio is,
therefore, defined to be, quasi qucedam exclusio quce opponi actioni
cujusque rei solet, ad elidendum id, quod in intentionem consen-
tionemve deductum est,5 and, according to Paulus, JExceptio est con-
ditio quos modo eximit reum damnatione, modo minuit condem-
nationem.6

In the class of exceptions just adverted to was included the ex-
ceptio rei judicata?, from which the plea of judgment recovered in
our own law may be presumed to have derived its origin.7 The res

1 1 Hale P. C. 509 ; Quod dubitas ne feceris, — especially in cases of life: 1
Hale P. C. 300 — if the matter sub judice be doubtful, the court cannot give
judgment upon it: per Willes, J., Beckett v. Midland R. C, L. R. 1 C. P. 245.

2 2 Hale P. C. 290. 3 5 Rep. 61.
4 Mackeld. Civ. Law 207.

6 Brisson. (ed. curd Heinec.) ad verb. Ees.

6 D. 44. 1. 22. pr.

7 See 1 CI. & Fin. 435 ; Phillimore Rom. L. 43.

FUNDAMENTAL LEGAL PRINCIPLES. 327- ^

judicata was, in fact, a result of the definitive sentence, or decree
of the judge, *and was binding upon, and in general unim- r*ooo-i
peachable by the litigating parties ;J and this was expressed
by the well-known Roman maxim, Res judicata pro veritate accipitur2
which must, however, be understood to have applied only when the
same question which had been once judicially decided was again
raised between the same parties, the rule being exceptionem rei judi-
cata* obstare quoties eadem quaistio inter easdem personas revocatur?
The mode in which this particular exception was, in practice, made
available under the Roman law may thus be illustrated. A. having
purchased a chattel from B., who had, in fact, no title to it, on
being sued by the rightful owner, obtains a judicial decision in his
favor. A., however, subsequently loses the chattel, which comes
into the hands of the true owner, against whom he, therefore, brings
his action ; and to a plea denying A.'s title may be successfully
replied the res judicata, or prior judgment, between the same par-
ties.4 The exceptiones, then, which were unknown to the old
Roman law, were originally introduced in order to mitigate its rigor
by letting in defences which were not admissible or valid stricti
juris; by long usage, however, these exceptions became establisned
in such a manner as to be recognised by the jus civile, and ceasing
to depend merely upon the will of the praetor, became in some
measure compulsory upon him ; there is, therefore, a wide distinc-
tion between the meaning of the word " exceptio," as used in the
praetorian and in the civil law ; and by modern writers an " excep-
tion " is often employed as synonymous with "defence," r*oocn
and is made to ^include any matter which can be set up
by the defendant in opposition to the plaintiff's claim.5

In our own law, the plea of judgment recovered at once suggests
itself as analogous to the " exceptio rei judicata? " above-mentioned,
and as directly founded on the general rule that "a man shall not
be twice vexed for the same cause." "If," as remarked by Lord
Kenyon, C. J., "an action be brought; and the merits of the ques-

1 Brisson. ad verb. Res. Pothier, ad D. 42. 1. pr.

2 D. 50. 17. 207.

3 D. 44. 2. 3. Pothier, ad D. 44. 1. 1. pr.
* D. 44. 2. 24.

6 Mackcld. Civ. Law 209, note. See further as to the Exceptiones, Philli-
more Rom. L. 47, 53, el seq.

17

329 broom's legal maxims.

tion be discussed between the parties, and a final judgment1 obtained
by either, the parties are concluded, and cannot canvass the same
question again in another action,2 although, perhaps, some objection
or argument might have been urged upon the first trial, which
would have led to a different judgment." In such a case, the mat-
ter in dispute having passed in rem judicatam, the former decision
is conclusive between the parties, if either attempts, by commencing
another action, to re-open the question.3

r-^ooQ-i * "After a recovery by process of law," says the same
learned judge, " there must be an end of litigation; if it
were otherwise there would be no security for any person,"4 and
great oppression might be done under the color and pretence of
law.5 To unravel the grounds and motives which may have led to
the determination of a question once settled by the jurisdiction to
which the law has referred it, would be extremely dangerous ; it is
better for the general administration of justice that an inconveni-

1 A judgment or sentence "is a judicial determination of a cause agitated
between real parties ; upon which a real interest has been settled. In
order to make a sentence, there must be a real interest, a real argument, a
real prosecution, a real defence, a real decision. Of all these requisites, not
one takes place in the case of a fraudulent and collusive suit. There is no
judge; but a person invested with the ensigns of a judicial office is misem-
ployed in listening to a fictitious cause proposed to him ; there is no party
litigating, there is no party defendant, no real interest brought into question."
Per Wedderburn, S.-G., arg. in The Duchess of Kingston's Case, 20 Howell St.
Tr. 478, 479 ; adopted per Lord Brougham, Eat-1 of Bandon v. Becher, 3 Cla.
& F. 510. See Doe d. Duntze v. Duntze, 6 C. B. 100 (60 E. C. L. R.) ; Fin-
ney v. Finney, L. R. 1 P. & D. 483; Conradi v. Conradi, Id. 514; 31 & 32
Vict. c. 54.

2 Also, " The law will never compel a person to pay a sum of money a
second time which, he had paid once under the sanction of a court having
competent jurisdiction." Judgm., Wood v, Dunn, L. R. 2 Q. B. 80, citing
Allen v. Dundas, 3 T. R. 125.

3 Per Lord Kenyon, C. J., Greathead v. Bromley, 7 T. R. 456; Huffier v.
Allen, 4 H. & C. 634; s. c, L. R. 2 Ex. 15 • Lord Bagot v. Williams, 3 B. &
C. 325 (10 E. C. L. R.) ; Place v. Potts, 8 Exch. 705 ; s. c. (affirmed in error),
10 Exch. 370, 5 H. L. Cas. 383 ; Tommey v. White, 1 II. L. Cas. 160 ; s. c, 3
Id. 49 ; 4 Id. 313 ; Overton v. Harvey, 9 C. B. 324, 337 (67 E. C. L. R.).

* 7 T. R. 269 ; Co. Litt. 303 b.

"The reason why a matter once adjudicated upon is not permitted to be
opened again is because it is expedient that there should be an end to litiga
tion." Per Lush, J., Commings v. Heard, L. R. 4 Q. B. 673.

6 6 Rep. 9.

FUNDAMENTAL LEGAL PRINCIPLES. 330

ence should sometimes fall upon an individual, than that the whole
system of law should be overturned and endless uncertainty be in-
troduced.1

The general rule, then, both at law and in equity, is to refuse a
second trial where the propriety of the verdict in the former is not
impeached as against law or evidence, though there be material
evidence for the party against whom the verdict has passed which
was not adduced, unless it be shown to have been discovered after
the trial, or unless the verdict has been obtained by fraud or sur-
prise.2 If a mistake in practice or inadvertence furnished reasons
for a new trial, it would encourage litigation and reward ignorance
and carelessness at the ^expense of the other party;3 and,
therefore, our law in such cases wisely acts upon the maxim, *- J
Interest reipublicce ut sit finis litium,4 — it is for the public good
that there be an end to litigation ; and if there be any one principle
of law settled beyond all question it is this, that whensoever a
cause of action, in the language of the law, transit in rem judica-
tam, and the judgment thereupon remains in full force and unre-
versed, the original cause of action is merged, and gone for ever.5
A plea of res judicata must show either an actual merger or that
the same point has already been decided between the same parties —
that the plaintiff had an opportunity of recovering, and but for his
own fault might have recovered in the original suit that which
he seeks to recover in the second action.6 "I apprehend," said a
learned judge in a recent case, "that if the same matter or cause
of action has already been finally adjudicated on between the
parties by a court of competent jurisdiction, the plaintiff has lost

1 Judgm., Reg. v. Justices of West Riding, 1 Q. B. 631 (41 E. C. L. R.) ;
Schumann v. Weatherhead, 1 East 541 ; Vin. Abr. "Judgment" (M. a.).

2 See 1 Ves. jun. 134 ; as to granting a new trial where the proceeding is
quasi-criminal, see Reg. v. Russell, 3 E. & B. 942 (77 E. C. L. R.) ; ante, p.
110.

3 See per Spencer, J., 1 Johnson (U. S.) R. 555.

4 6 Rep. 9; per Willes, J., Great Northern R. C. v. Mossop, 17 C. B. 140
(84 E. C. L. R.) ; judgm., Cammell v. Sewell, 3 H. & N. 647; per Sir J.
Romilly, M. R., Ex parte Brotherhood, 31 L. J. Chanc. 865 ; per Loi-d Camp-
bell, C, Beavan v. Mornington, 8 H. L. Cas. 540.

6 11 Peters (U. S.) R. 100, 101. See, also, 18 Johnson (U. S.) R. 463.
6 Nelson v. Couch, 15 C. B. N. S. 99, 108, 109 (80 E. C. L. R.), and cases
there cited.

331 broom's legal maxims.

his right to put it in suit, either before that or any other court.
The conditions for the exclusion of jurisdiction on the ground of
res judicata, are, that the same identical matter shall have come in
question already in a court of competent jurisdiction, that the
matter shall have been controverted, and that it shall have been
finally decided."1

r*ooi?-, *In Marriot v. Hampton,2 which is strikingly illustrative
of the preceding remarks, the facts were as follow : A.
sued B. for the price of goods sold, for which B. had before paid,
and obtained a receipt. Not being able to find the receipt, and
having no other proof of the payment, B. was obliged to submit to
pay the money again ; but having afterwards found the missing
document,3 he thereupon brought an action against A. for money
had and received, to recover back the amount of the sum the pay-
ment of which had been thus wrongfully enforced. But Lord Ken-
yon was of opinion at the trial, that, after the money had been paid
under legal process, it could not be recovered back again ; and this
opinion was fully confirmed by the Court in banc.4 The same
principle has likewise been held to apply where the payment was
made without knowledge, or reasonable means of knowledge, of the
facts on which the original demand proceeded ;5 and it may be laid
down as a general rule, that, where money has been paid by one
party to the other after bond fide legal proceedings have been actu-
ally commenced, which money is afterwards discovered not to have
been really due, the party who has paid will nevertheless be pre-
cluded from recovering it as money had and received to his use.6

1 Per Willes, J., Langmead v. Maple, 18 C. B. N. S. 270 (114 E. C. L. R).

2 7 T. R. 269. In accordance with the principle on which the decision in
Marriot v. Hampton proceeded, " a man, against whom damages have been
recovered in an action of trespass, cannot recover back the amount in an
action for money had and received on proof that no trespass was in fact com-
mitted ;" per Maule, J., Follett v. Hoppe, 5 C. B. 238. See Smith v. Monteith,
13 M. &. W. 427.

3 See 1). 44. 2. 27. * Marriot v. Hampton, supra.

5 Hamlet v. Richardson, 9 Bing. 644, 645 (23 E. C. L. R.).

6 Marriot v. Hampton, 7 T. R. 269 ; with which compare Canaan v. Rey-
nolds, 5 E. & B. 301 (85 E. C. L. R.) ; per Patteson, J., Duke de Cadaval v.
Collins, 4 A. & E. 866 (31 E. C. L. R.) ; Judgm., Wilson v. Ray, 10 A. & E.
88 (51 E. C. L. R.); Brown v. M'Kinally, 1 Esp. 279; per Holroyd, J.,
Milnes v. Duncan, 6 B. & C. 679 (13 E. C. L. R.) ; Moses v. Macfarlane, 2
Burr. 1009, must be considered as overruled ; see per Eyre, C. J., Phillips v.

FUNDAMENTAL LEGAL PRINCIPLES. 332 '?>V!

In accordance also with the same principle, *it has been r*ooo-i
held that assumpsit will not lie by the party against whom
&fi. fa. has issued on a subsisting judgment to recover the sum
levied under it, on the ground that such judgment was signed on a
warrant of attorney, which was obtained by fraud or duress.1 The
principle above stated does not however apply where the original
transaction was res inter alios acta.2

Having thus premised that a court of law will not, except under
peculiar circumstances, re-open a question which has once been
judicially decided between the parties,3 we may remark that
the maxim of the civil law already cited — res judicata pro veritate
accipitur — is generally recognised and applied by our own.*
"The *authorities," as observed by Lord Tenterden, C. *- -*

Hunter, 2 H. Bla. 414; per Heath, J., Brisbane v. Dacres, 5 Taunt. 160 (1 E.
0. L. R.).

1 De Medina v. Grove, 10 Q. B. 152, 168 (59 E. C. L. R.).

2 Per Maule, J., Follett v. Hoppe, 5 0. B. 243 (57 E. C. L. R.) ; post,
Chap. X.

3 It must be taken as a positive rule, that when parties consent to withdraw
a juror, no future action can be brought for the same cause ; per Pollock, C.
B., Gibbs v. Ralph, 14 M. & W. 805 ; per Lord Abinger, C. B., Harries v.
Thomas, 2 M. & W. 37, 38.

4 See per Knight Bruce, V.-C, 1 Y. & Coll. 588, 589 ; Preston v. Peeke, E.,
B. & E. 336 (96 E. C. L. R.) ; per Wightman, J., Mortimer v. South Wales
R. C, 1 E. & E. 382-3 (102 E. C. L. R.) ; Notman v. Anchor Ass. Co., 6 C. B.
N. S. 536 (95 E. C. L. R.) ; Kelly v. Morray, L. R. 1 C. P. 667 ; Williams v.
Sidmouth R. and Harb. Co., L. R. 2 Ex. 284.

" The Court is always at liberty to look at its own records and proceedings"
(per Kelly, C. B., Craven v. Smith, L. R. 4 Ex. 149) ; and nothing can be
assigned for error, in fact, which is inconsistent with the record (Irwin v.
Grey, 19 C. B. N. S. 585 (115 E. C. L. R.)).

As to the efficacy of a judgment of the House of Lords, #see A.-G. v. Dean,
&c, of Windsor, 8 H. L. Cas. 369; Beamish v. Beamish, 9 Id. 274.

The resolution of a Committee for Privileges in favor of a claimant of a
peerage agreed to by the House and communicated to the Crown, followed by
a writ of summons to the claimant by the title of the dignity claimed, estab-
lishes the right to that dignity (at all events from the date of the writ of
summons), which can never afterwards be called in question. But a resolu-
tion of a Committee for Privileges is in no sense a judgment, and though ad-
mitted to be prima facie valid and conclusive, does not establish a precedent
which future committees are bound to follow. Wiltes Peerage, L. R. 4 H.
L. 126, 147-8.

As to the finality of an award, see Hodgkinson v. Fernie, 3 C. B. N. S. 189
(91 E. C. L. R.) ; Commings v. Heard, L. R. 4 Q. B. 669.

334 broom's legal maxims.

J.,1 "are clear, that a party cannot be received to aver as error in
fact a matter contrary to the record," and "a record imports such
absolute verity that no person against whom it is admissible shall be
allowed to aver against it,"2 and this principle is invariably acted
upon by our courts.3 It is necessary, however, in order to com-
prehend the full bearing and importance of the above rule, that we
should consider more particularly in what manner, and between
what parties, a judgment recovered may be rendered operative as a
bar to legal proceedings; and upon this subject The Duchess of
Kingston's Case4 is usually cited as the leading authority. "From
the variety of cases," there says Lord Chief Justice De Grey,
"relative to judgment being given in evidence in civil suits,
these two deductions seem to follow as generally true: First, that
the judgment of a court of concurrent jurisdiction directly upon
the point, is as a plea, a bar, or as evidence, conclusive, between
the same parties, upon the same matter directly in question in
another court. Secondly, that the judgment of a court of exclu-
sive jurisdiction directly upon the point is, in like manner, conclu-
sive upon the same matter, between the same parties,5 coming
incidentally in question in another *court for a different
*- J purpose. But neither the judgment of a concurrent or ex-
clusive jurisdiction is evidence of any matter which came collaterally
in question, though within their jurisdiction, nor of any matter
incidentally cognisable, nor of any matter to be inferred by argu-
ment from the judgment."

In connection with the above passage, and with the subject now
under consideration, we may observe, 1st, that although a judgment
recovered, if for the same cause of action, and between parties sub-
stantially the same, will be admissible in evidence, yet, in order to
render it conclusive as an estoppel, it must, if the opportunity pre-
sents itself,6 be so pleaded.7

1 Judgm., R. v. Carlile, 2 B. & Ad. 367 (22 E. C. L. R.).

2 lb. ; 1 Inst. 260.

3 Reed v. Jackson, 1 East 355. i 20 Howell St. Tr. 538.

5 Judgm., King v. Norman. 4 C. B. 898 (56 E. C. L. R.); Needham v.
Bremner, L. R. 1 C. P. 583.

6 See Whittaker v. Jackson, 2 H. & C. 926.

7 Doe v. Huddart, 2 Or., M. & R. 316 ; per Parke, B., Doe d. Strode v. Seaton,
Id. 731 : Doe v. Wright, 10 A. & E. 763 (37 E. C. L. R.). The proper requi-
sites to a plea of judgment recovered are thus specified by Vinnius, lib. 4, tit.

FUNDAMENTAL LEGAL PRINCIPLES. 335

In Todd v. Stewart,1 the effect of a plea of judgment recovered
for a less sum than that sued for in the action then before the
Court was much considered. That was an action of debt on simple
contract for 400/. ; the defendant pleaded as to 43Z. 6s. 9c?. pay-
ment, and as to the residue that plaintiffs impleaded defendants for
the same in an action on promises, and recovered 314Z. 8s. as well
for their damages in the said action as for their costs. The repli-
cation alleged that the residue of the said causes of action, in the
declaration mentioned, were not the causes of action in respect of
which the judgment was *recovered ; and on the issue thus r*oo^-i
raised the jury found for the defendants. It was held by
the Court of Exchequer Chamber that the above plea was good
after verdict, and that it amounted to an ordinary plea of judgment
recovered.

2dly. We may remark, that a judgment recovered will be admis-
sible as evidence, not only between the same parties, if suing in the
same right,2 but likewise between their privies, whether in blood,
law, or estate ;3 and that a judgment will, moreover, be evidence
between those who, although not nominally, are really and substan-
tially the same parties.4

In the well-known case of King v. Hoare,5 it was held, that a
judgment without satisfaction recovered against one of two joint
debtors may be pleaded in bar of an action against the other con-
tracting party, and the Court observed, that " If there be a breach
of contract or wrong done, or any other cause of action, by one
against another, and judgment be recovered in a court of record,

13, s. 5 : — Hcec autem exceptio (rei judicatce) non aliter genii obstat quam si
eadem qucestio inter easdem personas revocetur ; itaque ita demum nocet si
omnia sint eadem, idem corpus, eadem quantitas, idem jus, eadem causa
petendi, eademque conditio per sonar urn ; cited, Arg. Ricardo v. Garcias, 12 CI.
& Fin. 368. See Nelson v. Couch, cited, ante, p. 331.

1 9 Q. B. 758, 767 (59 E. C. L. R.).

2 Outram v. Morewood, 3 East 346, 365 ; Com. Dig. Estoppel (C.) ; 5 Rep.
32 b.

3 Trevivan v. Lawrence, Salk. 276.

4 Kinnersley v. Cope, 2 Dougl. 517, commented on, 3 East 366, and recog-
nised in Simpson v. Pickering, 1 Cr., M. & R. 529 ; Strutt v. Bovingdon, 5
Esp. 56 ; Hancock v. Welsh, 1 Stark. N. P. C. 347 (2 E. C. L. R.).

* 13 M: & W. 494; Buckland v. Johnson, 15 C. B. 145 (80 E. C. L. R.).
See Holmes v. Newlands, 5 Q. B. 634 (48 E. C. L. R.) ; Florence v. Jenings,
2 C. B. N. S. 454 (89 E. C. R. R.).

336 broom's legal maxims.

the judgment is a bar to the original cause of action, because it is
thereby reduced to a certainty, and the object of the suit attained
so far as it can be at that stage, and it Would be useless and vexa-
tious to subject the defendant to another suit for the purpose of ob-
taining the same result. Hence the legal maxim Transit in rem

r- ^ judicatam — the cause of action is changed into matter of

T 3371 . .

L J ^record, which is of a higher nature, and the inferior

remedy is merged in the higher. This appears to be equally true
where there is but one cause of action, whether it be against a
single person or many. The judgment of a court of record changes
the nature of that cause of action, and prevents its being the sub-
ject of another suit, and the cause of action being single, cannot
afterwards be divided into two." The rule here laid down does
not, however, apply in the case of a joint and several contract, for
there the instrument sued on comprises the joint contract of all
and the several contracts of each of the contracting parties, and
gives different and distinct remedies to the person with whom the
contract has been entered into.1

A judgment recovered with satisfaction against one of two or
more joint and several debtors, will be a bar to an action against
another of them ;2 but otherwise, it would seem, if the judgment be
not satisfied.3

3rdly. We may observe, that a judgment recovered will be evi-
dence whenever the cause of action is the same,4 although the form
r*qoQ-i of the second action be different from *that of the first;5
and the record, when produced, must be such as to show

1 Judgm., 13 M. & W. 504, 505, 507, citing Ward v. Johnson, 15 Mass. (U.
S.) R. 148 ; per Jervis, C. J., Buckland v. Johnson, 15 C. B. 164 (80 E. C. L.
R.) ; per Bayley, B., Lechmere v. Fletcher, 1 C. &. M. 623 ; Higgens's Case,
6 Rep. 44 b, 46 a, cited per Jervis, C. J., Price v. Moulton, 10 C. B. 570 (70
E. C. L. R.) ; Dick v. Tolhausen, 4 H. & N. 695. See Henry v. Goldney, 15
M. & W. 494 ; Haigh v. Paris, 16 M. & W. 144.

2 Per Parke, B., Morgan v. Price, 4 Exch. 619.

3 King r.'Hoare, 13 M. & W. 491, and cases there cited ; per Popham, C. J.,
Broome v. Wooton, Yelv. 67 ; s. c, Cro. Jac. 73, as explained 13 M. & W. 505 ;
Phillips v. Ward, 2 H. & C. 773.

4 Per cur., Williams v. Thacker, 1 B. & B. 514 (5 E. C. L. R.) ; cited, arg.
Hopkins v. Freeman, 13 M. & W. 372; Guest v. Warren, 9 Exch. 379; per
Beardsley, C. J., Dunckle v. Wiles, 5 Denio (U. S.) R. 303 ; Fetter fc. Beal, 1
Lord Raym. 339, 692; cited, Sayer on Damages 89.

6 See, per Buller, J., Foster v. Allanson, 2 T. R. 483 ; Pease v. Chaytor, 32
L. J., M. C, 121. Bona fides non patitur ut bis idem exigatur ; D. 50. 17. 57.

FUNDAMENTAL LEGAL PRINCIPLES. 338

on its face that the cause of action in the second case may be the
same as that for which the judgment was recovered in the former
action.1 A recovery in trover will vest the property in the chattel
sued for in the defendant, and will be a bar to an action of trespass
for the same thing ;2 and " If two jointly convert goods, and one of
them receive the proceeds, you cannot, after a recovery against
one in trover, have an action against the other for the same con-
version, on an action for money had and received to recover the
value of the goods, for which a judgment has already passed in the
former action."3

If, however, it be doubtful whether the second action is brought
pro eddem causd it is a proper test to consider whether the same
evidence would sustain both actions,4 and what was the particular
point or matter determined in the former action ; for a judgment in
each species of action is final only for its own purpose and object,
and quoad the subject-matter adjudicated upon, and no. further ;
for instance, a judgment for the plaintiff in trespass affirms a right
of possession to be, as between *the plaintiff and defendant r*qqq-i
in the plaintiff at the time of the trespass committed, but
in a subsequent ejectment between the same parties, would not be
conclusive with respect to the general right of property in the locus
in quo.5 Where, in a action for the stipulated price of a specific chat-
tel, the defendant pleaded payment into court of a sum, which the
plaintiffs took out in satisfaction of the cause of action : it was held,
that the defendant in that action was not thereby estopped from suing
the plaintiffs for negligence in the construction of the chattel.6

1 Per Crompton, J., Wadsworth v. Bentley, 23 L. J. Q. B. 3 ; Ricardo v.
Garcias, 12 CI. & F. 368, 387.

2 Per Lord Hardwicke. C. J., Smith v. Gibson, Cas. temp. Hardw. 319 ;
Buckland v. Johnson, 15 C. B. 145 (80 E. C. L. R.) ; Moor v. Watts, 1 Lord
Raym. 614.

8 Per Jervis, C. J., 15 C. B. 161 (80 E. C. L. R.); citing Cooper v. Shep-
herd, 3 C. B. 266 ; Adams v. Broughton, Andr. 18 5 Jenk. Cent. 4th cent. cas.
88.

4 See Hadley v. Green, 2 Tyrw. 390 ; Wiat v. Essington, 2 Lord Raym. 1410;
Clegg v. Dearden, 12 Q. B. 576 (64 E. C. L. R.) ; (with which compare Smith
v. Kenrick, 7 C. B. 515 (62 E. C. L. R.)); per Lord Westbury, C, Hunter v.
Stewart, 31 L. J. Chanc. 346, 350.

8 See Judgm., 3 East 357.

6 Rigge v. Burbidge, 15 M. & W. 589 ; recognising Mondel v. Steele, 8 M. &
W. 858.

339 broom's legal maxims.

Not merely is it true, moreover, that the facts actually decided
by an issue in any suit cannot be again litigated between the same
parties, and are evidence between them, and that conclusive, for
the purpose of terminating litigation ; but so likewise are the
material facts alleged by one party, which are directly admitted
by the opposite party, or indirectly admitted by taking a traverse
on some other facts, provided that the traverse thus taken be found
against the party making it.1 "The statements," however, "of a
party in a declaration or plea, though for the purposes of the cause
he is bound by those that are material, and the evidence must be
confined to them upon an issue, ought not, it should seem, to be
treated as confessions of the truth of the facts stated.2

With respect to the action of ejectment, we may remark, that by
r*3401 the judgment therein the plaintiff ^obtains possession of
the lands recovered by the verdict, but does not acquire
any title thereto, except such as he previously had ; if, therefore,
he had previously a freehold interest in them, he is in as a free-
holder ; if he had a chattel interest, he is in as a termor ; and if he
had no title at all, he is in as a trespasser, and will be liable to
account for the profits to the legal owner.3 Moreover, although a
judgment in ejectment is admissible in evidence in another eject-
ment between the same parties,4 yet it is not conclusive evidence,
because a party may have a title to possession of land at one time,
and not at another; nor can a judgment be pleaded in ejectment
by way of estoppel, for the issue is made up in this action without
pleadings ; and hence there is a remarkable diiference between
ejectment and other actions with regard to the application of the
maxim under consideration.5 The courts of common law have,
however, sometimes interfered to stay proceedings in ejectment,

1 Boileau v. Rutlin, 2 Exch. 665, 681 ; recognised, per Parke, B., Buckmaster
v. Meiklejohn, 8 Exch. 687. See Carter v. James, 13 M. & W. 137, and the
remark upon that case, per Pollock, C. B., Hutt v. Morrell, 3 Exch. 241.

2 Judgm., Boileau v. Rutlin, supra.

3 Per Lord Mansfield, C. J., Taylor d. Atkyns v. Horde, 1 Burr. 114. The
effect of a judgment in ejectment is, under the C. L. P. Act, 1852, s. 207,
" the same as that of a judgment in the action of ejectment heretofore used."

* Doe d. Strode v. Seaton, 2 Cr., M. & R. 728. •

5 The order of a County Court judge under the 19 & 20 Vict. c. 108, s. 50,
is not analogous to a judgment in ejectment so as to entitle a landlord to
maintain an action for mesne profits, Campbell v. Loader, 3 II. & C. 520.

FUNDAMENTAL LEGAL PRINCIPLES. 340-]>K

either in order to compel payment of the costs in a former action,1 or
where such proceedings were manifestly vexatious and oppressive.2

*Upon the whole, it seems that we may fitly sum up r*o,ii-i
these remarks upon the conclusiveness of a judgment of
a court of competent authority, quoad the subject-matter in respect
whereof such judgment is relied upon as a bar to future litigation,
in the words of a learned judge who, in a case below cited, thus ex-
presses himself: "It is, I think, to be collected, that the rule
against reagitating matter adjudicated is subject generally to this
restriction — that, however essential the establishment of particular
facts may be to the soundness of a judicial decision, however it may
proceed on them as established, and however binding and conclusive
the decision may, as to its immediate and direct object, be, those
facts are not all necessarily established conclusively between the
parties, and that either may again litigate them for any other pur-
pose as to which they may come in question, provided the imme-
diate subject of the decision be not attempted to be withdrawn from
its operation, so as to defeat its direct object. This limitation to
the rule appears to me, generally speaking, to be consistent with
reason and convenience, and not opposed to authority."3

4thly. But although the judgment of a court of competent juris-
diction upon the same matter will, in general, be conclusive
between the same parties, such a judgment may nevertheless be set
aside on the ground of mistake,4 or may be impeached on the
ground of fraud;5 for "fraud," in the language of De Grey,

1 Doe d. Brayne v. Bather, 12 Q. B. 941 (64 E. C. L. R.) ; Morgan v. Nicholl,
3 II. & N. 215. See Prowse v. Loxdale, 32 L. J. Q. B. 227 ; Hoare v. Dickson,
7 C. B. 164 (62 E. C. L. R.) ; Stead v. Williams, 5 C. B. 528 (57 E. C. L. R.) ;
Stilwell v. Clarke, 3 Exch. 264 ; Danvers v. Morgan, 17 C. B. 530 (84 E. C.
L. R.).

2 See Cobbett v. Warner, L. R. 2 Q. B. 108 (42 E. C. L. R.) ; Doe d. Pultney
v. Freeman, cited 2 Sellon Pract. 144 5 Doe d. Henry v. Gustard, 5 Scott N.
R. 818 ; Thrustout d. Park v. Troublesome, Andr. 297, recognised Haigh v.
Paris, 16 M. & W. 144.

Per Knight Bruce, V.-C, Barrs v. Jackson, 1 Yo. & Coll. 597-8 : where,
however, the rule was wrongly applied ; see s. c, 1 Phill. 582.

4 Cannan v. Reynolds, 5 E. & B. 301 (85 E. C. L. R.).

6 " It may be conceded that if a judgment has been obtained by fraud, or is
contrary to natural justice, it may be impeached in a collateral proceeding;"
per Byles, J., Wildes v. Russell, L. R. 1 C. P. 745.

" There is no more stringent maxim than that no one shall be permitted to

342 broom's legal maxims.

P3421 *^' ^''l " 1S an extrmsic collateral act, which vitiates the
most solemn proceedings of Courts of justice." Lord Coke
says2 "it avoids all judicial acts, ecclesiastical or temporal." And
in a modern case3 before the House of Lords, it was observed,
that the validity of a decree of a court of competent jurisdiction
upon parties legally before it may be questioned, on the ground
that " it was pronounced through fraud, contrivanc?, or covin of
any description, or not in a real suit, or, if pronounced in a real
and substantial suit, between parties who were really not in contest
with each other."

In connection with the finality of judgment,4 we may add that
r*3431 *^e Prac^ce ^s " inveterate and every-day Occurrence at
chambers of setting aside judgments, whether regular or
irregular, whether after execution executed or before, on terms."5

We have in the preceding remarks, endeavored to point out the

aver against a record ; but where fraud can be shown this maxim does not
apply ;" per Pollock, C. B., Rogers v. Hadley, 2 H. & C. 247.

1 Duchess of Kingston's Case, ante, p. 334. See Ex parte White, 4 II. L.
Cas. 313.

2 Fermor's Case, 3 Rep. 78 a.

3 Earl of Bandon v. Becher, 3 CI. & Fin. 510; Meddowcroft v. Huguenin, 4
Moore, P. C. C. 386 ; Perry v. Meddowcroft, 10 Beav. 122 ; per Lord Eldon,
C, Gore v. Stackpole, I Dow 18 ; Patrick v. Shedden, 2 E. & B. 14 (75 E. C.
L. R.); Phillipson v. Earl of Egremont, 6 Q. B. 587, 604 (51 E. C. L. R.);
Green v. Nixon, 27 L. J. Chanc. 819, 821 ; per Tindal, C. J., Fowler v.
Rickerby, 2 M. & Gr. 777 (40 E. C. L. R.) ; Dodgson v. Scott, 2 Exch. 457 ;
Bank of Australasia v. Nias, 16 Q. B. 717 (71 E. C. L. R.); Shattock v.
Carden, 6 Excb. 725 ; Place v. -Potts, 5 H. L. Cas. 383 ; Harris v. Willis, 15 C.
B. 710 (80 E. C. L. R.). In Allen v. M'Pherson, 1 H. L. Cas. 191, it was
held, that if probate of a will alleged to have been executed under undue
influence and false representations be granted in the Ecclesiastical Court, the
Court of Chancery has no jurisdiction in the matter.

4 As to the finality of a judgment of the Consular Court at Constantinople,
see Barber v. Lamb, 8 C. B. N. S. 95 (98 E. C. L. R.)— of the judgment of a
foreign court, see Hobbs v. Henning, 17 C. B. N. S. 791 (112 E. C. L. R.);
Scott v. Pilkington, 2 B. & S. 11 (110 E. C. L. R.) ; Brissac v. Rathbone, 6 H.
& N. 301 ; Frayes v. Worms, 10 C. B. N. S. 149 (100 E. C. L. R.) ; Castrique
v. Imrie, 8 C. B. N. S. 405 (98 E. C. L. R.) ; Cammell v. Sewell, 3 II. & N.
617, 646 ; s. c, 5 Id. 728; Sheehy v. Professional Life Ass. Co., 3 C. B. N. S.
597 (91 E. C. L. R.) ; Vanquelin v. Bovard, 15 C. B. N. S. 341 (109 E. C.
L. R.).

6 Per Coleridge, J., Cannan v. Reynolds, 5 E. & B. 307 (85 E. C. L. R.).
See Webster v. Emery, 10 Exch. 901 ; s. c, 9 Exch. 242.

FUNDAMENTAL LEGAL PRINCIPLES. 343

most direct application in civil proceedings of the rule that a man
shall not be bis vexatus, which rule is in fact included in the
general maxim — Interest reipublicce ut sit finis litium. This latter
maxim has, as may readily be supposed, a wide application ; it in
fact embraces the whole doctrine of estoppels, which is obviously
founded in common sense and sound policy, since, if facts once
solemnly affirmed to be true were to be again denied whenever the
affirmant saw his opportunity, there would never be an end to litiga-
tion and confusion. To the same maxim may likewise be referred
the principle of the limitation of actions, which we shall treat of
hereafter,1 the statutes of set-off, which were enacted to prevent the
necessity of cross actions,2 and the rule which forbids circuity in
legal proceedings — circuities est evitandus ;3 in accordance with
which a court of law will endeavor to prevent circuity and multi-
plicity of suits, where the circumstances of the litigant parties are
such that, on changing their relative positions of plaintiff
*and defendant, the recovery by each would be equal in *- -■
amount.4

The rule just cited, which is intended to avoid "the scandal and
absurdity "5 of a circuity of action, is deserving of far more minute
consideration than can here be given to it. According to this rule
a defendant is entitled to set up a cross demand by way of defence,
provided he can show that "the sum which he claims to be entitled
to recover back is of necessity the identical sum which the plain-

1 See maxim, Vigilantibus et non dormientibus jura subveniunt; post,
Chap. IX.

2 Judgm., Hill v. Smith, 12 M. & W. 631 ; per Pollock, C. B., Turner v.
Berry, 5 Exch. 860; per Lord Campbell, C. J., Walker v. Clements, 15 Q. B.
1050 (69 E. C.*L. R.). See Rees v. Watts, 11 Exch. 410; s. c, 9 Id. 696;
Gingell v. Purkins, 4 Exch. 720; Luckie v. Bushby, 13 C. B. 864 (76 E. C. L.
11.) ; Bell v. Carey, 8 C. B. 887 (65 E. C. L. R.).

" The Courts are always astute to promote set-off in aid of justice and
honesty ;" per Byles, J., Alliance Bank v. Holford. 16 C. B. N. S. 463 (111
E. C. L. R.).

3 5 Rep. 31 ; Co. Litt. 348 a; 2 Saund. R. 150. See Wilders v. Stevens, 15
M. & W. 208 ; Milner v. Field, 5 Exch. 829.

* See Carr v. Stephens, 9 B. & C. 758 (17 E. C. L. R.); per Parke, B.,
Penny v. Innes, 1 Cr., M. & R. 442; arg. Hall v. Bainbridge, 5 Q. B. 242 (48
E. C. L. R.) ; Simpson v. Swan, 3 Camp. 291.

5 Per Lord Denman, C. J., Walmesley v. Cooper, 11 A. & E. 221-2 (39 E.
C. L. R.) ; per Jervis, C. J., 15 C. B. 62 (E. C. L. R.).

344 broom's legal maxims.

tiff is suing for,"1 or where the damages would necessarily be the
same.2

Plaintiff by agreement in writing agreed to serve defendant for
the term of ten years in the capacity of a brewer, and in considera-
tion thereof, and "of the due, full, and complete service" of plain-
tiff :'as aforesaid," defendant agreed, inter alia, to pay plaintiff
"the weekly sum of 21. 10s. during the said term of ten years."
Plaintiff entered into defendant's service under the agreement, but
some years afterwards fell ill, and was unable to attend personally
to business. In an action for wages alleged to have accrued during
the period of plaintiff's illness, a plea was held good which averred
l"*3451 t^lat ^e pk"ntiff was not> *during any part of the time for
and in respect of which such wages were claimed, "ready
and willing, or able to render, and did not in fact, during any part
of such time, render the agreed or any service." It was objected,
indeed, on behalf of the plaintiff, that his breach of the contract
declared upon could only be ground for a cross-action, but the
Court held that, to avoid circuity, it might well be considered the
action should be barred, so as to prevent an unjust advantage therein,
and to put an end to litigation.3

Difficulty is sometimes felt in applying the rule as to circuity
above exemplified. Thus, in assumpsit by payee against maker of
two promissory notes for 200?. and 140/., the defendant pleaded in
bar that after the notes became due it was mutually agreed by
plaintiff, defendant, and A., that A. should pay to plaintiff 25/.,
per annum by quarterly payments, and so long as A. so paid,
the right of action on the notes should be suspended, and that A.
had hitherto made the quarterly payments. This plea was held to

1 Charles v. Altin, 15 C. B. 46, 62 (80 E. C. L. R.) ; Alston v. Herring, 11
Exch. 822, 831; Schloss v. Heriot, 14 C. B. N. S. 59 (108 E. C. L. R.);
Thompson v. Gillespy, 5 E. & B. 209, 223 (85 E. C. L. R.) ; Bartlett v. Holmes,
13 C. B. 630, 638 (76 E. C. L. R.) ; Stimson v. Hall, 1 H. & N. 831 ; Atterbury
v. Jarvie, 2 H. & N. 114 ; Bell v. Richards, 2 II. & N. 311 ; Owen v. Wilkin-
son, 5 C. B. N. S. 526 (94 E. C. L. R.) ; Pedder v. Mayor, &c, of Preston, 12
C. B. N. S. 535 (104 E. C. L. R.). See Beecham v. Smith, E., B. & E. 442
(96 E. C. L. R.) ; Minshull v. Oakes, 2 H. & N. 793.

2 Speeding v. Young, 16 C. B. N. S. 824, 826-7 (111 E. C. L. R.), citing
Alston v. Herring, 11 Exch. 822. See De Rosaz v. Anglo-Italian Bk., L. R.
4 Q. B. 462.

3 Cuckson v. Stones, 1 E. & E. 248 (102 E. C. L. R.).

FUNDAMENTAL LEGAL PRINCIPLES. 345

offer no answer to the action, inasmuch as if plaintiff were barred
of his right to sue on the notes, such right would by law be extin-
guished altogether; which appeared not to be the intention of the
agreement, and the defendant was therefore held entitled merely to
his right of action on the agreement, if plaintiff had sued on the
notes before default made in payment of the annuity.1

We may add that, as a general rule, "where two parties have
judgments against each other, the Court will, for the *pur-
pose of avoiding uncertainty, vexation, and expense, order L J
them to be set off against each other."2

The principle of law just now alluded to — "that the right to
bring a personal action once existing, and by act of the party sus-
pended for ever so short a time, is extinguished and discharged, and
can never revive" — is very old and well established.3 It is usually
applied where persons have by their own acts placed themselves in
circumstances incompatible with the application of the ordinary
legal remedies.4

In accordance with the doctrine which forbids circuity, are the
maxims, Frustra petis quod statim alteri reddere cogeris5 — Dolo
facit qui petit quod redditurus est,6 which may be illustrated by the
rule that one partner cannot at common law sue his co-partners in
respect of a partnership debt,7 and by cases already cited.8

Recurring to a consideration of the principal maxim, we may add
to what has been above said concerning it, that where two or more
actions are brought by the same plaintiff at the same time against
the same defendant, for causes of action which might have been

• * Ford v. Beech, 11 Q. B. 852 (63 E. C. L. R.) ; s. c, Id. 842 ; cited in Frazer
v. Jordan, 8 E. & B. 309, 310 (92 E. C. L. R.) ; Gibbons v. Vouillon, 8 C. B.
483 (65 E. C. L. R.) ; Belshaw v. Bush, 11 C. B. 191 (73 E. C. L. R.), (as to
which see Cook v. Lister, 13 C. B. N. S. 543 (106 E. C. L. R.)) ; Webb v.
Spicer and Webb v. Salmon, 13 Q. B. 886, 894 (66 E. C. L. R.) ; Salmon v.
Webb, 3 ILL. Cas. 510.

2 Per Willes, J., Alliance Bank v. Holford, 16 C. B. N. S. 463 (111 E. C.
L. R.).

3 Judgm., 11 Q. B. 867 (63 E. C. L. R.), where cases are cited in support
the above proposition.

4 Judg., 11 Q. B. 870 (63 E. C. L. R.) 6 Jenk. Cent. 256.

6 Phillimore Jurisp. 233.

7 Story on Partnership 325. See Boulter v. Peplow, 9 C. B. 493 (67 E. C.
L. R.) ; Sedgwick v. Daniell, 2 H. & N. 319 ; Broom's Pr. C. C, 2d ed., 99.

8 Ante, p. 344, n. 1.

346 broom's legal maxims.

joined in the same suit, the Court, or a judge at chambers, if they
deem the proceedings oppressive, will in general compel the plain-
tiff to consolidate them, and to pay the costs of the application.1
Where several actions are brought upon the same policy of insur-
T*S471 ance> tne Court, or a judge, upon *application of the defend-
ants, will grant a rule or order to stay the proceedings in
all the actions but one, the defendants undertaking to be bound by
the verdict in such action, and to pay the amount of their several
subscriptions and cost, if the plaintiff* should recover, together with
such other terms as the Court or judge may think proper to impose
upon them.2 And where many actions are oppressively and vexa-
tiously brought by the same plaintiff, for the purpose of trying the
same question, the Court or a judge will interfere, either by stay-
ing the proceedings or giving time to plead in all the actions but
one upon terms.3

An important application of the general principle now under
notice occurs in criminal law, for there it is a well-established rule,
that when a man has once been indicted for an offence, and acquitted,
he cannot afterwards be indicted for the same offence, provided the
first indictment were such that he could have been lawfully con-
victed upon it by proof of the facts contained in the second indict-
ment ; and if he be thus indicted a second time he may plead autre-
fois acquit, and it will be a good bar to the indictment ;4 and this

1 Cecil v. Brigges, 2 T. R. 639 ; 2 Sellon Pract. 144 ; 2 Chitt. Arch. Pr.,
11th ed., 1347.

2 Doyle v. Anderson, 1 A. & E. 635 (28 E. C. L. R.). See Syers v. Pickers-
gill, 27 L. J. Exch. 5.

3 2 Chitt. Arch. Pr., 11th ed., 1348. See Frith v. Guppy, L. R. 2 C. P. 32 ;
Sturges v. Lord Curzon, 1 H. & N. 17.

In the case of a bill of exchange every party to the instrument may be sued
at the same time by the holder, for, by the custom of merchants, every such
party is separately liable ; per Pollock, C. B., 3 II. & C. 981. See Woodward
v. Pell, L. R. 4 Q. B. 55.

Where the master of a ship signs a bill of lading in his own name and is
sued upon it, and judgment is obtained against him, though not satisfied, the
owner of the ship cannot be sued upon the same bill of lading ; Priestly v.
Fernie, 3 II. & C. 977.

4 Reg. v. Bird, 2 Den. C. C. 94, 198-200, 214 ; Reg. v. Knight, L. & C. 378 ;
R. v. Vandercomb, 2 East P. C. 519 ; cited, per Gurney, B., R. v. Birchenough,
1 Moo. Cr. Cas., 479. See Reg. v. Button, 11 Q. B. 929 (63 E. C. L. R.) ;
Reg. v. Machen, 14 Q. B. 74 (68 E. C. L. R.) ; Reg. v. Gaunt, L. R. 2 Q. B.

FUNDAMENTAL LEGAL PRINCIPLES. 347

plea is clearly founded *on the principle, that no man shall r* 040-1
be placed in peril of legal penalties more than once upon
the same accusation — nemo debet bis puniri pro uno delicto.1
Which great fundamental maxim of our criminal law means that " a
man shall not twice be put in peril after a verdict has been returned
by the jury ; that verdict being given on a good indictment, and
one on which the prisoner could be legally convicted and sentenced.
It does not, however, follow, if from any particular circumstances a
trial has proved abortive, that then the case shall not be again sub-
mitted to the consideration of a jury, and determined as right and
justice may require."2

Thus an acquittal upon an indictment for murder may be pleaded
in bar of another indictment for manslaughter; and an acquittal
upon an indictment for burglary and larceny may be pleaded to an
indictment for the larceny of the same goods ; because in either of
these cases the prisoner might, on the former trial, have been con-
victed of the offence charged against him in the second indictment ;3
the true test by which to decide whether a plea of autrefois acquit
is a sufficient bar in any particular case being — whether the evi-
dence necessary to support the second indictment would have been
sufficient to procure a legal conviction upon the first.

On the principle that " a man should not twice be put in
jeopardy for one and the same offence," a plea of *autre- r*q4q-i
fois convict will operate to bar a second indictment, unless
the judgment on the former has been reversed for error.4 It may,
however, be laid down generally, that where, " by reason of some
defect in the record, either in the indictment, place of trial, process,
or the like, the prisoner was not lawfully liable to suffer judgment
for the offence charged on that proceeding," he cannot, after rever-

466; Reg. v. Moah, Dearsl. 626. As to the meaning of the words "convic-
tion " and "acquittal," see per-Tindal, C. J., Burgess v. Boetefeur, 8 Scott
N. R. 211, 212; Re Newton, 13 Q. B. 716 (66 E. C. L. R.).

1 4 Rep. 40, 43 ; 1 Chitt. Crim. Law 452 5 per Pollock, C. B., Re Baker, 2
H. & N. 248.

2 Per Cockburn, C. J., Winsor v. Reg., L. R. 1 Q. B. 311 ; s. c, affirmed in
error, Id. 390.

3 2 Hale P. C. 246. See also Helsham v. Blackwood, 11 C. B. Ill (73 E.
C. L. R.).

* Reg. v. Drury, 18 L. J., M. C, 189. See Reg. v. Morris, cited post, p.
350.

18

349 broom's legal maxims.

sal of the judgment, properly be said to have been " in jeopardy "
within the meaning of the maxim under consideration.1 So where,
on a trial for misdemeanor, the jury are improperly, and against the
will of the defendant, discharged from giving a verdict after the
trial has begun, this is not equivalent to an acquittal.2

The general rule, which obtains as well in purely civil as in
criminal cases, being that "a man shall not be twice vexed in re-
spect of the same matter," is subject to exceptions. For instance, —
a man may at common law be compelled to make reparation in
damages to the injured party, and be liable also to punishment for
a breach of the public peace in consequence of the same act,3 and
may thus be said in common parlance to be twice punished for the
P^ocn-i same offence.* So, it has been held *that a conviction for
an assault by justices at petty sessions, at the instance of
the person assaulted, and imprisonment consequent thereon, do not
bar an indictment for manslaughter against the defendant, should
the person assaulted afterwards die from the effects of the assault,
for "the form and the intention of the common law pleas of autre-
fois convict and autrefois acquit show that they apply only where
there has been a former judicial decision on the same accusation in
substance, and where the question in dispute has been already de-
cided."5 If there be a continuing breach by a workman of a con-
tract to serve his master, the servant may, under the stat. 4 Geo. 4,

1 Per Coleridge, J., Reg. v. Drury, supra; Reg. v. Green, Dearsl. & B. 113.
See'also Lord Denman's judgment, O'Connell v. Reg., by Mr. Leahy, pp. 19
et seq., and p. 44 ; Reg. v. Gompertz, 9 Q. B. 824, 839 (58 E. C. L. R.).

- Reg. v. Charles worth, 1 B. & S. 160 (101 E. C. L. R.) ; et vide per Cock-
burn, C. J., Id. 507, as to the maxim supra.

3 See stat. 25 & 26 Vict. c. 88, ss. 11, 22.

* Per Grier, J., 14 Howard (U. S.) R. 20. See stat. 24 & 25 Vict. c. 100,
ss. 44, 45 (as to which see Hartley v. Hindmarsh, L. R. 1 C. P. 553 ; Reg. v.
Elrington, 1 B. & S. 688 (101 E. C. L. R.) ; Hancock v. Somes, 1 E. & E. 795
(102 E. C. L. R ) ; Costar v. Hetherington, Id. 802) ; Justice v. Gosling, 12
C. B. 39 (74 E. C. L. R.) ; R. v. Mahon, 4 A. & E. 575 (31 E. C. L. R.) ; Anon.,
Id. 576, n.

In Scott v. Lord Seymour, 1 H. & C. 219, an action was held maintainable
here by a British subject against another British subject for an assault com-
mitted at Naples, although proceedings for the same assault were pending in
a Neapolitan court. See Cox v. Mitchell, 7 C. B. N. S. 55 (97 E. C. L. R.) ;
Phillips v. Eyre, L. R. 4 Q. B. 225.

6 Reg. v. Morris, L. R. 1 C. C. 90, 94.

FUNDAMENTAL LEGAL PRINCIPLES. 350

c. 34, s. 3, be convicted more than once of the offence thereby con-
stituted.1 In construing, however, a statute which gives a penalty
to a common informer, the Court will take care not to impose a
heavier burthen than the legislature contemplated.2 A party at-
tached for contempt in not performing an award, and sentenced to
imprisonment, on undergoing such imprisonment is not thereby
exonerated from performance of the award.3 Although the general
rule is, that a landlord cannot distrain twice for the same rent, he
may under special circumstances be justified in doing so.4 A court
of law will not stay an action on the ground that a suit in equity is
pending in which the same *demand comes in question, un-
less the court of equity has stayed the action by injunction.5 •- J
In conclusion, we may further mention one remarkable excep-
tion which formerly existed to the principle above stated and illus-
trated. This occurred in the proceedings in case of appeal of
death, which might be instituted against a supposed offender after
trial and acquittal, and by which punishment for some heinous
crime was demanded, on account of the particular injury suffered
by an individual, rather than for the offence against the public ;6
but this method of prosecution having attracted the attention of the
legislature in the celebrated case of Ashford v. Thornton,7 was
abolished by stat. 59 Geo. 3, c. 46\

1 Unwin v. Clarke, L. R. 1 Q. B. 417. See also Allen v. Worthy, L. R. 5
Q. B. 163 ; Ex parte Short, Id. 174.

2 Per Byles, J., Garrett v. Messenger, L. R. 2 C. P. 585.

3 Reg. v. Hemsworth, 3 C. B. 745 (54 E. C. L. R.).

* Bagge v. Mawby, 8 Exch. 641, 649; Wollaston v. Stafford, 15 C. B. 278
(80 E. C. L. R.). See Lee v. Cooke, cited, ante, p. 280.

6 Pearse v. Robins, 26 L. J. Ex. 183. See 15 & 16 Vict, c. 76, s. 226;
Simpson v. Sadd, 16 C. B. 26 (81 E. C. L. R.) ; Phelps v. Prothero, Id. 370.

See also, as bearing on the subject touched upon supra, Ward v. Broom-
head, 7 Exch. 726 ; Lievesley v. Gilmore, L, R, 1 C. P. 570 ; Hookpayton v.
Bussell, 9 Exch. 279 ; Giles v. Hutt, 3 Exch. 18 ; Great Northern R. C. v. Ken-
nedy, 4 Exch. 417 ; as to a second arrest pro eddem causa, see Masters v. John,
son, 8 Exch. 63; Hamilton v. Pitt, 7 Bing. 230 (20 E. C. L. R.) ; et vide Mellin
v. Evans, 1 Cr. & J. 82, and Talbot v. Bulkeley, 16 M. & W. 196, where the
maxim commented on in the text is cited and applied.

6 4 Com. by Broom & Hadley 420 n. {g) ; 1 Chit. Crim. Law 452.

7 1 B. & Aid. 405.

352 broom's legal maxims.

[*352] ^CHAPTER VI.

ACQUISITION, ENJOYMENT AND TRANSFER OF PROPERTY.

In the present chapter are contained three sections, which treat
respectively of the acquisition, enjoyment, and transfer of property.
In connection with the first-mentioned of these subjects, one maxim
only has been considered, which sets forth the general principle,
that title is acquired by priority of occupation ; a prniciple so ex-
tensively applicable, and embracing so wide a field of inquiry, that
the following pages will be found to present to the reader little
more than a mere outline of a course of investigation, which, if
pursued in detail, would prove alike interesting and instructive.
It is, indeed, only proper to observe in limine — since, from the
titles which have been selected with a view to showing clearly the
mode of treatment adopted, much more might reasonably be ex-
pected in the ensuing pages than has been attempted — that a suc-
cinct statement of the more important only of the rights, liabilities,
and incidents annexed to property has here been offered ; so that a
perusal of the contents of this chapter may prove serviceable in re-
calling the attention of the practitioner to the application and illus-
tration of principles with which he must necessarily have been
previously familiar ; and may, without wearying his attention,
direct the student to sources of information whence may be de-
rived more copious and accurate supplies of knowledge.

[*353]

:§ I. — THE MODE OF ACQUIRING PROPERTY.

Qui prior est Tempore, potior est Jure.

(Co. Litt. 14 a.)
He has the better title who wasjirst in point of time.

The title of the finder to unappropriated land or chattels must
evidently depend either upon the law of nature, upon international
law, or upon the laws of that particular community to which he

THE MODE OF ACQUIRING PROPERTY. 353

belongs. According to the law of nature, there can be no doubt
that priority of occupancy alone constitutes a valid title, quod mil-
lius est id ratione naturali occupanti eonceditur ;l but this rule has
been so much restricted by the advance of civilization, by inter-
national laws, and by the civil and exclusive ordinances of each
separate state, that it has comparatively little practical application
at the present day. It is, indeed, true, that an unappropriated
tract of land, or a desert island, may legitimately be seized and
reduced into possession by the first occupant, and, consequently,
that the title to colonial possessions may, and in some cases does,
in fact, depend upon priority of occupation. But within the limits
of this country, and between subjects, it is apprehended that the
maxim which we here propose to consider, has no longer any direct
application as regards the acquisition of title to reality by entry
and occupation. It was, indeed, formerly held, that where a tenant
pur autre vie died, living the cestui que *vie, the party who
first entered upon the land thus left untenanted became ^ ■*
entitled to the residue of the estate therein ; but the law upon this
subject has been much modified by successive enactments, and such
estate, if not devised, would, under the circumstances supposed,
now vest in the personal representatives of the deceased.2 It is,
moreover, a general rule, that whenever the owner or person actu-
ally seised of land dies intestate and without heir, the law vests the
ownership of such land either in the Crown,3 or in the subordinate
lord of the fee by escheat ;4 and this is in accordance with the spirit
of the ancient feudal doctrine expressed in the maxim, Quod nullius
est, est domini regis.5

On the maxim, Prior tempore, potior jure, may depend, however,
the right of property in treasure trove, in wreck, derelicts,6 waifs,

'D. 41. 1.3; I. 2. 1. 12.

2 See 2 Com. by Broom & Hadley 268-272.

3 So, " there is no doubt that, by the law of the land the Crown is entitled
to the undisposed of personal estate of any person who happens to die without
next of kin:" 14 Sim. 18 ; Robson v. A.-G., 10 CI. & Fin. 497 ; Dyke v. Wal-
ford, 5 Moore P. C. C. 434.

4 2 Com. by Broom & Hadley 397.

6 Fleta, lib. 3 ; Bac. Abr., " Prerogative" (B.).

6 Goods are " ' derelict' which have been voluntarily abandoned and given
up as worthless, the mind of the owner being alive to the circumstances at
the time:'' per Tindal, C. J., Legge v. Boyd, 1 C. B. 112 (50E.C.L. R.).

354 broom's legal maxims.

and estrays, which, being bona vacantia, belong by the law of
nature to the first occupant or .finder, but which have, in some
cases, been annexed to the supreme power by the positive laws of
the state.1 "There are," moreover, "some few things which, not-
withstanding the general introduction and continuance of property,
must still unavoidably remain in common ; being such that nothing
but an usufructuary ^property is capable of being had in
L -I them ; and therefore they still belong to the first occupant
during the time he holds possession of them, and no longer. Such
(among others) are the elements of light, air, and water, which a
man may occupy by means of his windows, his gardens, his mills,
and other conveniences. Such, also, are the generality of those
animals which are said to heferce natural, or of a wild and untame-
able disposition :2 which any man may seize upon, and keep for his
own use or pleasure. All these things, so long as they remain in
possession, every man has a right to enjoy without disturbance ;
but, if once they escape from his custody, or he voluntarily aban-
dons the use of them, they return to the common stock, and any
man else has an equal right to seize and enjoy them afterwards."3

So, the finder of a chattel lying apparently without an owner
may, by virtue of the maxim under notice, acquire a special pro-
perty therein.4

1 The reader is referred for information on these subjects to 2 Com. by
Broom & Hadley, Chap. VIII.

2 See Rigg v. Earl of Lonsdale, 1 H. & N. 923 ; s. c, 11 Exch. 654 ; followed
in Blades v. Higgs, 12 C. B. N. S. 501 (104 E. C. L. R.) ; Morgan v. Earl of
Abergavenny, 8 C. B. 768 (65 E. C. L. R.) ; Ford v. Tynte, 31 L. J. Chanc.
177; Hannam v. Mockett, 2 B. & C. 934 (9 E. C. L. R.) ; Ibottson v. Peat, 3
H. & C. 644.

3 2 Com. by Broom & Hadley 12; Wood Civ. L., 3d ed., 82 ; Holden v.
Smallbrooke, Vaugh. 187. See Acton v. Blundell, 12 M. & W. 324, 333 ;
Judgm., Embrey v. Owen, 6 Exch. 369, 372 ; Chasemore v. Richards, 2 II. &
N. 168;s.c, 7H. L. Cas. 349.

* Armory v. Delamirie, 1 Stra. 504 (cited White v. Mullett, 6 Exch. 7 ; and
distinguished in Buckley v. Gross, 3 B. & S. 564 (113 E. C. L. R.)) ; Bridges
v. Hawkesworth, 21 L. J. Q. B. 75. See also Wallar v. Drakeford, 1 E. & B.
749 (72 E. C. L. R.) ; Mortimer v. Cradock (C. P.) 7 Jur. 45 ; Merry v. Green,
7 M. & W. 623.

"There is no authority," however, "nor sound reason for saying that the
goods of several persons which are accidentally mixed together thereby abso-
lutely cease to be the property of their several owners, and become bona

THE MODE OF ACQUIRING PROPERTY. 355

In accordance with the maxim, Qui prior est tempore, r*ocg-i
^potior est jure, the rule in descents is, that amongst males
of equal degree the eldest shall inherit land in preference to the
others, unless, indeed, there is a particular custom to the contrary ;
as in the case of gavelkind, by which land descends to all the males
of equal degree together ; or borough English, according to which
the youngest son, and not the eldest, succeeds on the death of his
father ; or burgage tenure, which prevails in certain towns, and is
characterized by special customs.1 Where A. had three sons, B.,
C. and D., and D. the youngest, died, leaving a daughter E., and
then A. purchased lands in borough English, and died, it was held,
in accordance with the custom, that the lands should go to E.
The right of primogeniture above mentioned does not, however,
exist amongst females, and therefore, if a person dies possessed of
land, leaving daughters only, they will take jointly as co-par-
ceners.3

Further, it is a general rule, that, where there are two conflict-
ing titles, the elder shall be preferred, and of this one instance has
already been noticed in considering the law of remitter ; for, if a
disseisor lets the land to the disseisee for years, or at will, and the
latter enters, the law will say that he is in on his ancient and
better title.4 So, where there are conflicting rights as to real pro-
perty, courts of equity will inquire, not which party was first in
possession, but under what instrument he*was in posses- poc^-i
sion, and when his right is dated in point of time ; or, if
there be no instrument, they will ask when did the right arise —
who had the prior right ?5 It forms, moreover, the general rule
between encumbrancers and purchasers, that he whose assignment

vacantia.'''' Judgm., Spence v. Union Marine Ins. Co., L. R. 3 C. P. 438 ;
ante, p. 286.

1 2 Com. by Broom & Hadley 168, 170, 383. See Muggleton v. Barnett, 1
H. &N. 282 5 s. c, 2 Id. 653.

2 Clements v. Scudamore, 2 Ld. Raym. 1024.

3 2 Com. by Broom & Hadley 356. In Godfrey v. Bullock, 1 Roll. 623, n.
(3) ; cited 2 Ld. Raym. 1027 ; the custom was, that, in default of issue male,
the eldest daughter should have the land.

* Noy Max., 9th ed., p. 53 ; Co. Litt. 347 b ; Wing. Max., p. 159 ; ante, p.
213.

6 Argument of Sir E. Sugden in Cholmondeley v. Clinton, 2 Meriv. 239;
Scott v. Scott, 4 H. L. Cas. 1065, 1082.

357 broom's legal maxims.

of an equitable interest in a fund is first in order of time, has, by
virtue of that circumstance alone, the better right to call for the
possession of the fund.1 This rule prevails amongst mortgagees,
who are considered purchasers pro tanto ; and where, therefore, of
three mortgages, the first is bought in by the owner of the third,
such third mortgagee thereby acquires the legal title, and, having
thus got the law on his side, with equal equity, will be permitted
to tack the first and third mortgages together to the exclusion of
the second ;2 and thus the priority of equitable titles may be
changed by the diligence of one of the claimants in obtaining the
legal estate to himself, or to a trustee, for the protection of his
equitable interest.3

It will, however, be borne in mind that the doctrine of tacking
only applies where the legal has been annexed to the equitable es-
tate in the manner above indicated ; *where, therefore, the
L J legal estate is outstanding, the several encumbrancers will
be paid off according to their actual priority in point of time, and
in strict accordance with the maxim, Prior tempore, 'potior jure.41
Indeed, it may be laid down as a general rule that, as between mere
equitable claims, equity will give no preference, and mortgages,
judgments, statutes, and recognisances, will be alike payable, accord-
ing to their respective priority of date.5 We may add, also, that a
prior lien gives a prior claim, which is entitled to prior satisfaction
out of the fund upon which it attaches, unless such lien either be
intrinsically defective, or be displaced by some act of the party

1 "Grantees and encumbrancers claiming in equity take and are ranked
according to the dates of their securities, and the maxim applies Qui prior
est tempore, potior est in jure. The first grantee is potior, that is potentior.
He has a better and superior, because a prior equity ;" per Lord Westbury,
C, Phillips v. Phillips, 31 L. J. Chanc. 325.

2 Willoughby v. Willoughby, 1 T. R. 773, 774 5 Robinson v. Davison, 1 Bro.
C. C, 5th ed., 61 ; Brace v. Duchess of Marlborough, 2 P. Wins. 491 ; 1 My.
& K. 297; 2 Sim. 257. See Hopkinson v. Rolt, 9 H. L. Cas. 514. "The
doctrine of tacking is founded on an application of the equitable maxims —
that he tvho seeks equity shall do equity to the person from whom he requires
it — and where equities are equal, the law shall prevail." Coote Mortg., 3d
ed., 385.

3 3 Prest, Abs., Tit. 274, 275.

4 Brace v. Duchess of Marlborough, 2 P. Wms. 491, 495 ; cited per Lord
Hardwicke, C, Willoughby v. Willoughby, 1 T. R. 773.

THE MODE OF ACQUIRING PROPERTY. 358

holding it, which may operate in a court of law or equity to post-
pone his right to that of a subsequent claimant.1

In the case of hypothecation bonds, however, the last executed
must be first paid. "According to, the rule of law applicable to
instruments of this description," as observed by Lord Stowell,
"that which is last in point of time, must, in respect of payment,
supersede and take precedence of the others."2

On the same principle, a mortgagee may recover in ejectment,
without previously giving notice to quit, against a tenant who claims
under a lease from the mortgagor, granted after the mortgage, and
without the privity of the mortgagee; for the tenant stands exactly
in the place of the mortgagor, and the possession of the
*mortgagor cannot be considered as holding out a false L J
appearance, since it is of the very nature of the transaction that
the mortgagor should continue in possession; and whenever one of
two innocent parties must be a loser, then the rule applies, Qui
prior est tempore, potior est jure. If, in the instance just given,
one party must suffer, it is he who has not used due diligence in
looking into the title.3

It may, in pursuance of these remarks, be almost unnecessary to
call to mind, that, in very many cases where a question arises as to
the title to goods, it does, in fact, resolve itself into this considera-
tion,— in whom did the title first become vested ? Thus, it is a
general rule of the law of England, that a man who has no
authority to sell cannot, by making a sale, transfer the property to
another;4 that is to say, he cannot, in this manner, divest of his
property the party previously entitled. To this rule there is,
indeed, one exception, viz., the case of a sale of goods in market
overt ;5 which, however, does not bind the Crown.6 The law relat-

1 See Judm.. Rankin v. Scott, 12 Wheat. (U. S.) R. 179.

2 1 Dods. Adm. R. 2. The Betsey, 1 Dods. Adm. R. 289 ; The Rhada-
manthe, Id. 201, 204.

3 Keech v. Hall, Dougl. 21. See Judgm., Dearie v. Hall, 3 Russ. R. 20.
As to the relation of mortgagor and mortgagee, see, further, judgm., Trent
v. Hunt, 9 Exch. 21, 22; followed in Snell v. Finch, 13 C. B. N. S. 651 (106
E. C.L. R.) ; Mossw.Gallimore, 1 Smith L. C, 6th ed., 561, and note thereto;
Hickman v. Machin, 4H.&N. 716, 722.

* Per Abbott, C. J., Dyer v. Pearson, 3 B. & C. 42 (10 E. C. L. R.).
6 3 B. & C. 42 (10 E. C. L. R.) ; Peer v. Humphrey, 2 A. & E. 495 (29 E. C.
L. R.). See Scattergood v. Sylvester, 15 Q. B. 506 (69 E. C. L. R.).
6 Chit. Pre. Cr. 195, 285.

359 BROOM'S LEGAL MAXIMS.

ing to the sale of goods and to market overt will be again adverted
to under the maxim, Caveat emptor, to which very comprehensive
principle it is usually referred.1

We may further observe, that the respective rights of execution
[~*3fifn crec^tors inter se,2 must often be determined *by applying
the maxim as to priority under consideration. For in-
stance, where two writs of execution against the same person are
delivered to the sheriff, he is bound to execute that writ first which
was first delivered to him ;3 unless, indeed, the first writ or the pos-
session held under it were fraudulent, in which case the goods
seized cannot be considered as in the custody of the law at the date
of the delivery of the second writ, which latter, therefore, shall
have priority; and where goods seized under afi.fa. founded on a
judgment fraudulent against creditors remain in the sheriff's hands,
or are capable of being seized by him, he ought to sell, or seize and
sell, such goods under a subsequent writ oi fi. fa. founded on a
hond fide debt.4 Where, moreover, a party is in possession of
goods apparently the property of a debtor, the sheriff who has &fi.
fa. to execute is bound to inquire whether the party in possession
is so hond fide, and, if he find that the possession is held under a
fraudulent or an unregistered5 bill of sale, he is bound to treat it as
null and void, and levy under the writ.6

Further, by the stat, 29 Car. 2, c. 3, s. 16, it was enacted that

" no writ of fieri facias,, or other writ of execution, shall bind the

property of the goods of the party against whom such writ of

r-^oft-p execution issued forth, but from the time that such writ

shall be delivered to the ^sheriff;" the operation of this

1 Post, Chap. IX.

2 See Anderson v. Radcliffe, E., B. & E. 806 (96 E. C. L. R.).

3 Per Ashhurst, J., Hutchinson v. Johnston, 1 T. R. 131 ; judgm., Drewe v.
Lainson, 11 A. & E. 537 (39 E. C. L. R.) ; Jones v. Atherton, 7 Taunt. 56 (2
E. C. L. R.) ; 29 Car. 2, c. 3, s. 16. See Aldred v. Constable, 6 Q. B. 370 (51
E. C. L. R.) ; Atkinson Sher. L., 3d ed., 179.

* Christopherson v. Burton, 3 Exch. 160 ; Shattock v. Carden, 6 Exch. 725-,
Imray v. Magnay, 11 M. & W. 267 ; Drewe v. Lainson, 11 A. & E. 529 (39 E.
C. L. R.).

6 See Richards v. James, L. R. 2 Q. B. 285.

"Lovick v. Crowder, 8 B. & C. 135, 137 (15 E. C. L. R.) ; Warmoll v.
Young, 5 B. & C. 660, 666 (11 E. C. L. R.). See also the cases cited, arg.
12 Mf& W. 664.

THE MODE OF ACQUIRING PROPERTY. 361

clause being that if, after the writ was so delivered, the defendant
made an assignment of the goods, except in market overt, the
sheriff might take them in execution.1 But now, by stat. 19 & 20
Vict. c. 97, s. 1, "no writ of fieri facias or other writ of execution,
and no writ of attachment against the goods of a debtor, shall
prejudice the title to such goods acquired by any person bond fide
and for a valuable consideration before the actual seizure or attach-
ment thereof by virtue of such writ ;" provided such person had
not, at the time when he acquired such title, notice that such or any
other writ of execution or attachment had been delivered to and re-
mained unexecuted in the hands of the sheriff.2

It has been held, that if a writ of fi. fa. be delivered to the
sheriff, and notice be subsequently given to restrain execution, the
writ cannot be considered as in the hands of the sheriff to be ex-
ecuted, within the meaning of the section of the statute just cited,
and in this case, therefore, the sheriff will be bound to execute a
subsequent writ of fi.fa., which may be issued during such stay of
execution, and before order given to proceed with the execution of
the first-mentioned writ.3

We may, in the next place, observe, that the law *rela- r*o^9-i
tive to patents and to copyright is altogether referable to
the above maxim as to priority. With respect to patents, the
general rule is, that the original inventor of a machine, who has
first brought his invention into actual use, is entitled to priority as
patentee, and that consequently a subsequent original inventor will
be unable to avail himself of his invention ; and this is evidently
in accordance with the strict rule, qui prior est tempore, potior est
jure} If, therefore, several persons simultaneously discover the

1 Per Lord Hardwicke, C, Lowthal v. Tonkins, 2 Eq. Cas. Abr. 381 ; cited
4 East 539. " That the general property in goods, even after seizure, remains
in the debtor, is clear from this, that the debtor may after seizure, by
payment, suspend the sale and stop the execution ;" per Patteson, J., 9 Bing.
138 (23 E. C. L. R.) ; adopted per Alderson, B., Playfair v. Musgrove, 14 M.
& W. 246. And see, further, as to the statute, supra, per Lord Ellenborough,
C. J., 4 East 538 ; Briggs v. Sowry, 8 M. & W. 729, 739 ; Giles v. Grover, 9
Bing. 128 (23 E. C. L. R.).

2 See per Mellor, J., Hobson v. Thelluson, L. R. 2 Q. B. 651.

3 Hunt v. Hooper, 12 M. & W. 664 ; Sturgis v. Bishop of London, 7 E. &
B. 542, 553 (90 E. C. L. R.). See Levi v. Abbott, 4 Exch. 588, 590. •

* See 3 Wheaton (U. S.) R., App. 24.

362 broom's legal maxims.

same thing, the party first communicating it to the public under the
protection of the patent becomes the legal inventor, and is entitled
to the benefit of it.1

A person, however, to be entitled to a patent for an invention
must be the first and true inventor ;2 so that, if there be any public
user thereof by himself or others prior to the granting of the pa-
tent,3 or if the invention has been previously made public in this
country by a description contained in a work, whether written or
printed, which has been publicly circulated, one who afterwards
takes out a patent for it will not be considered as the true and first
inventor within the meaning of the stat. 21 Jac. 1, c. 3, even
though, in the latter case, he has not borrowed his invention from
such publication.4 Although, moreover, it is generally true that a
P^q^o-i new principle, *or modus operandi, carried into practical
and useful effect by the use of new instruments, or by a
new combination of old ones, is an original invention, for which a
patent may be supported ;5 yet, if a person merely substitutes, for
part of a patented invention, some well-known equivalent, whether
chemical or mechanical, this, being in truth but a colorable varia-
tion, will amount to an infringement of the patent:6 and'where let-
ters patent were granted for improvements in apparatus for the
manufacture of certain chemical substances, and the jury found
that the apparatus was not new, but that the patentee's mode of
connecting the parts of that apparatus was new, the Court, in an
action for an alleged infringement of the patent, directed the verdict

1 Per AbboU, C. J., Forsyth v. Riviere, Webs. Pat. Cas. 97, note ; per Tin-
dal, C. J., Cornish v. Keene, Id. 508.

2 See Norman Pat. Chap. 8.

3 The Househill Coal and Iron Co. v. Neilson, 9 CI. & Fin. 788. See Brown
v. Annandale, Webs. Pat. Cas. 433. And generally, in regard to the ques-
tion, what is such prior user as will avoid a patent, see Norman Pat., Chap. 5.

4 Stead v. Williams, 7 M. & Gr. 818 (49 E. C. L. R.) ; Stead v. Anderson, 4
C. B 806 (56 E. C. L. R.). See Booth v. Kennard, 2 H. & N. 84.

5 Boulton v. Bull, 2 II. Bla. 463 ; s. c, 8 T. R. 95 ; Hall's Case, Webs. Pat.
Cas. 98 5 cited, per Lord Abinger, C. B., Losh v. Hague, Id. 207, 208 5 Holmes
v. London & North-Western R. C, 12 C. B. 831, 851 (74 E. C. L. R.). See
Tetley v. Easton, 2 C. B. N. S. 106 (89 E. C. L. R.) 5 Patent Bottle Envelope
Co. v. Seymer, 5 Id. 164.

8 See Heath v. Unwin, 13 M. & W. 583 ; s. c, 12 C. B. 522 (74 E. C. L. R.) 5
5 H. L; Cas. 505. And see further on this subject, Newton v. Grand Junc-
tion R. C, 5 Exch. 331 5 Newton v. Vaucher, 6 Exch. 859.

THE MODE OF ACQUIRING PROPERTY. 363

to be entered for the defendant, upon an issue taken as to the
novelty of the invention ;x and " no sounder or more wholesome
doctrine " in reference to this subject was ever established than that
a patent cannot be had "for a well-known mechanical contrivance
merely when it is applied in a manner or to a purpose which is not
quite the same, but is analogous to the manner or the purpose in or
to which it has been hitherto notoriously used."2

*"A copyright is the exclusive right of multiplying pogji
copies of an original work or composition, and consequently
preventing others from so doing,"3 the great object of the law of
copyright being " to stimulate, by means of the protection secured
to literary labor, the composition and publication to the world of
works of learning and utility ;"* and the right of an author accord-
ingly depends on the same principle as that of a patentee, viz., pri-
ority of invention or composition and publication. It was, indeed,
at one time thought, that a foreigner resident abroad would by first
publishing his work in Great Britain acquire a copyright therein ;5
but this interpretation of the repealed6 stat. 8 Anne, c. 19, was
declared by the highest tribunal to be erroneous in Jefferys v.
Boosey;7 and it is clear that a foreigner, whether resident here or
not, cannot have an English copyright, if he has first published his
work abroad, before any publication of it in this country.8 But an

1 Gamble v. Kurtz, 3 C. B. 425 (54 E. C. L. R.).

2 Per Lord Westbury, C, Harwood v. Great North. R. C, 11 H. L. Cas. 682.
In order to obtain an extension of the term of letters patent, the petitioner

must establish, 1, that the invention is of considerable merit; 2, that it is of
public utility ; and 3, that there has been inadequate remuneration. In re
McDougal's Patent, L. R. 2 P. C. 1 ; In re Mclnnes' Patent, Id. 54.

3 Judgm., 14 M. & W. 316. See, generally, as to copyright, Millar v. Tay-
lor, 4 Burr. 2303 ; Jefferys v. Boosey, 4 H. L. Cas. 815 •, s. c, 6 Exch. 580 ;
Routledge v. Low, L. R. 3 H. L. 100 ; Sweet v. Benning, 16 C. B. 459 (81 E.
C. L. R.).

The term of copyright in books is now fixed by stat. 5 & 6 Vict. c. 45. See
also 10 & 11 Vict. c. 95.

As to copyright in works of art, see 25 & 26 Vict. c. 68 ; Gambart v. Ball,
14 C. B. N. S. 306 (108 E. C. L. R.) ; approved in Graves v. Ashford, L. R. 2
C. P. 410.

« Per Lord Cairns, C, L. R. 3 H. L. 108.

6 See the cases cited, 4 H. L. Cas. 959, 960, 974.

6 See 5 & 6 Vict. c. 45, s. 1.

7 4 H. L. Cas. 815, where the cases bearing on the above subject are col-
lected.

8 Chappell v. Purday, 14 M. & W. 303 ; Boucicault v. Delafiel, 33 L. J.

364 broom's legal maxims.

alien friend, who, during his temporary residence in a British
p^opr-i colony, publishes in the United Kingdom a book of which
he is the author, is, under the *stat. 5 & 6 Vict. c. 45,
entitled to the benefit of English copyright.1

Lastly, we may observe that the maxim under consideration may
sometimes be applied in reference to the practice of the courts of
law.2

§ II. — PROPERTY — ITS RIGHTS AND LIABILITIES.

In this section are contained remarks upon the legitimate mode
of enjoying property, the limits and extent of that enjoyment, and
the rights and liabilities attaching to it. The maxims commented
upon, in connection with this subject, are four in number :. that a
man shall so use his own property as not to injure his neighbor —
that the owner of the soil is entitled likewise to that which is above
and underneath it — that what is annexed to the freehold becomes,
in many cases, subject to the same rights of ownership — that " every
man's house is his castle."

Sic utere tuo ut alienum non l^idas.

(9 Rep. 59.)
Enjoy your own property in such a manner as not to injure that of another

person?

A man must enjoy his own property in such a manner as not to

r*3Pn ^nva(^e tne legal rights of his neighbor — Expedit *reipub-

licce ne sud re quis male utatur.4 " Every man," observed

Chanc. 38. See Beard v. Egerton, 3 C. B. 97 (54 E. C. L. R.) ; 7 Vict. c. 12,
s. 19; 15 & 16 Vict. c. 12.

* Routledge v. Low, L. R. 3 H. L. 100.

2 See per Tindal, C. J., 3 Bing. N. C. 260 (32 E. C. L. R.).

3 Such is the literal translation of the above maxim ; its true legal meaning
would rather be, " So use your own property as not to injure the rights of
another." See Arg. Jeffries v. Williams, 5 Exch. 797.

The maxim is cited, commented on, or applied, in Bonomi v. Backhouse, E.,
B. & E. 637, 639, 643 (96 E. C. L. R.) ; s. c, 9 H. L. Cas. 511, (in connection
with which see Smith v. Thackerah, L R. 1 C. P. 564) ; Chasemore v. Rich-
ards, 7 H. L. Cas. 388 ; per Pollock, C. B., Bagnall v. London & North-West-
ern 11. C, 7 II. & N. 440 ; In re Groucott v. Williams, 4 B. & S. 149, 155-6
(116 E. C. L. R.).

* I. 1. 8. 2.

PROPERTY — ITS RIGHTS AND LIABILITIES. 366

Lord Truro,1 " is restricted against using his property to the pre-
judice of others ;" and, as further remarked by the same learned
Lord, " the principle embodied in the maxim, Sic utere tuo ut
alienum non Icedas, applies to the public in at least as full force as
to individuals. There are other maxims equally expressive of the
principle — Nihil quod est inconveniens est licitum,2 and Sahcs rei-
publicce suprema lex ;"3 to so large a class of cases, indeed, and
under circumstances so dissimilar, is the rule before us capable of
being applied, that we can here merely suggest some few leading
illustrations of it, omitting references to many reported decisions
which might be found, perhaps, equally well to exemplify its
meaning.

In the first place, then, we must observe that the invasion of an
established right will in general, per se, constitute an injury, for
which damages are recoverable; for in all civil acts our law does
not so much regard the intent of the actor as the less and damage
of the party suffering. In trespass qu. el. fr., the defendant
pleaded, that he had land adjoining plaintiff's close, and upon it a
hedge of thorns ; that he cut the thorns, and that they, ipso invito,
fell upon the plaintiff's land, and the defendant took them off as
soon as he could, which was the *same trespass, &c. On r* 0^7-1
demurrer, judgment was given for the plaintiff, on the
ground that, though a man do a lawful thing, yet, if any damage
thereby befalls another,* he shall be answerable if he could have
avoided it. Thus, if a man lop a tree, and the boughs fall upon
another, ipso invito, yet an action lies ; so, if a man shoot at a butt,
and hurt another unawares, an action lies. A. has land through
which a river runs to turn B.'s mill; A. lops the trees growing on
the river side, and the loppings accidentally impede the progress
of the stream, which hinders the mill from working : A. will be
liable. So, if I am building my own house, and a piece of timber
falls on my neighbor's house, and injures it, an action lies ; or, if
a man assault me, and I lift up my staff to defend myself, and in
lifting it strike another, an action lies by that person, and yet I
did a lawful thing ; and the reason of all these cases is, because he
that is damaged ought to be recompensed ; but it is otherwise in
criminal cases, for in them it is generally true, as we have seen in

1 Egerton v. Earl Brownlow, 4 H. L. Cas. 195.

2 Ante, p. 186. 3 Ante, p. 1.

367 broom's legal maxims.

the preceding chapter, that actus non facit reum nisi mens sit rea :x
the intent and the act must concur to constitute the crime.2

Accordingly, in considering whether a defendant is liable to a
plaintiff for damage which the latter may have sustained, the ques-
tion in general is, not whether the defendant has acted with due
T*3fi81 care an(^ cau^01l> Dut *wnother his acts have occasioned the
damage; and this doctrine is founded on good sense. For
when one person in managing his own affairs causes, however inno-
cently, damage to another, it is obviously only just that he should
be the party to suffer. He is bound sic uti suo ut non Icedat
alienum.3

In the next place it may be laid down, as a true proposition, that,
although bare negligence unproductive of damage to another will
not give a right of action, negligence causing damage will do so :4
negligence being defined to be " the omission to do something which
a reasonable man, guided upon those considerations which ordinarily
regulate the conduct of human affairs, would do, or doing something
which a prudent and reasonable man would not do;"5 negligence,
moreover, not being "absolute or intrinsic," but "always relative
to some circumstances of time, place, or person."6

1 See Lambert v. Bessey, T. Raym. 422; Weaver v. Ward, Hob. 134; per
Blackstone, J., Scott v. Shepherd, 3 Wils. 403 ; per Lord Kenyon, C. J., Hay-
craft v. Creasy, 2 East 104; Turberville v. Stampe, 1 Id. Raym. 264; cited
Jones v. Festiuiog R. C, L. R. 3 Q. B. 736 ; recognised, Vaughan v. Menlove,
3 Bing. N. C. 468 (32 E. C. L. R.) ; Piggot v. Eastern Counties R. C, 3 C. B.
229 (54 E. C. L. R.) ; Grocers' Co. v. Donne, 3 Bing. N. C. 34 (32 E. C. L.
R.) ; Aldridge v. Great Western R. C, 4 Scott N. R. 156.

2 Per Lord Kenyon, C. J., Fowler v. Padget, 7 T. R. 514 ; cited, 3 Inst. 54 ;
Borradaile v. Hunter, 5 Scott N. R. 429, 430.

3 Per Lord Cranworth, Rylands v. Fletcher, L. R. 3 II. L. 341, citing Lam-
bert v. Bessey, supra, n. 1.

4 See Broom's Com., 4th ed., 656 ; Whitehouse v. Birmingham Can. Co., 27
L. J. Ex. 25 ; Bayley v. Wolverhampton Waterworks Co., 6 H. & N. 241 ;
Duckworth v. Johnson, 4 II. & N. 653.

6 Per Alderson, B., Blyth v. Birmingham Waterworks Co., 11 Exch. 784.

Laches has been defined to be " a neglect to do something which by law a
man is obliged to do; " per Lord Ellenborough, C. J., Sebag v. Abitbol, 4 M.
& S. 462 ; adopted per Abbott, C. J., Turner v. Hayden, 4 B. & C. 2 (10 E. C.
L. R.).

e Judgm., Degg v. Midland R. C, 1 H. & N. 781 ; approved in Potter v.
Faulkner, 1 B. & S. 800 (101 E. C. L. R.). As to proof of negligence, ante,
p. 110, n. 2; Assop v. Yates, 2 II. & N. 768 ; Perren v. Monmouthshire R.

PROPERTY — ITS RIGHTS AND LIABILITIES. 369

*Having thus premised, the following instances will serve r*ofq-|
to show in what manner the maxim which we have placed
at the head of these remarks is applied, to impose restrictions, first,
upon the enjoyment of property,1 and, secondly, upon the acts and
conduct of each individual member of the community. In illustra-
tion of the first branch of the subject, we may observe, that, if a
man builds a house so close to mine that his roof overhangs mine,
and throws the water off upon it, this is a nuisance, for which an
action will lie.2 So, an action will lie, if, by an erection on his own
land, he obstructs my ancient lights and windows ; for a man has
no right to erect a new edifice on his ground so as to prejudice
what has long been enjoyed by another3 — cedificare in tuo proprio
solo non licet quod alteri noceat} In like manner, if a man, by
negligence and carelessness in pulling down his house, occasion
damage to, or accelerate the fall of, his neighbor's, he will be clearly
liable,5 although the mere circumstance of juxtaposition does not,

C.j 11 C. B. 855 (73 E. C. L. R.) ;'Vose v. Lancashire and Yorkshire R. C, 2
II. & N. 728 ; Harris v. Anderson, 14 C. B. N. S. 499 (108 E. C. L. R.) ; Reeve
v. Palmer, 5 C. B. N. S. 84 (94 E. C. L. R.) ; Manchester, &c, R. C, app.,
Fullerton, resp., 14 0. B. N. S. 54 (108 E. C. L. R.) j Roberts v. Great West-
ern R. C, 4 C. B. N. S. 506 (93 E. C. L. R.) ; North v. Smith, 10 C. B. N. S.
572 (100 E. C. L. R.) ; Manley v. St. Helen's Canal and R. C, 2 II. & N. 840 ;
Willoughby v. Horridge, 12 C. B. 742 (74 E. C. L. R.) ; Templeman v. Hay-
don, Id. 507 5 Melville v. Doidge, 6 C. B. 450 5 Grote v. Chester and Holyhead
R. C, 2 Exch. 251 ; Dansey v. Richardson, 3 E. & B. 144 (77E. C. L. R.) ;
Roberts v. Smith, 2 H. & N. 213 ; Cashill v. Wright, 6 E. & B. 891 (88 E. C.
L. R.) ; Holder v. Soulby, 8 C. B. N. S. 254 (98 E. C. L. R.).

1 See per Holt, C. J., Tenant v. Goldwin, 2 Ld. Raym. 1092-3, followed
in llodgkinson v. Ennor, 4 B. & S. 241 (116 E. C. L. R.).

2 Penruddocke's Case, 5 Rep. 100; Fay v. Prentice, 1 C. B. 828 (50 E. C. L.
R.).

3 Vide, per Pollock, C. B., Bagnall v. London and Northwestern R. C, 7
II. & N. 440 ; s. c, 1 II. & C. 544, which well illustrates toe maxim commented
on, supra. See Dodd v. Holme, 1 A. & E. 493 (28 E. C. R. R.) ; recognised,
Bradbee v. Mayor, &c, of London, 5 Scott N. R. 120 ; Partridge v. Scott, 3
M. & W. 220; recognising Wyatt v. Harrison, 3 B. & Ad. 871 (23 E. C. L.
R.) ; Brown v. Windsor, 1 Cr. & J. 20.

* 3 Inst. 201.

8 Bradbee v. Mayor, &c, of London, 5 Scott N. R. 120; per Lord Denraan,
C. J.; Dodd v. Holme, 1 A. & E. 505 (28 E. C. L. R.). Sec Peyton v. Mayor,
&c, of London, 9 B. & C. 725 (17 E. 0. L. R.) ; Butler v. Hunter, 7 H. & N.
826, where the maxim Respondeat superior applied to exonerate the defend-
ant from liability.

19

369^- j-] t> brooxm's legal maxims.

T*S701 *n ^ie a^sence °f any right- of easement, render it Neces-
sary for a person who pulls down his wall to give notice of
his intention to the owner of an adjoining wall, nor is such person,
if he be ignorant of the existence of the adjoining wall, bound to
use extraordinary caution in pulling down his own.1

Neither is any " obligation towards a neighbor cast by law on the
owner of a house, merely as such, to keep it repaired in a lasting
and substantial manner : the only duty is to keep it in such a state
that his neighbor may not be injured by its fall ; the house may,
therefore, be in a ruinous state, provided it be shored sufficiently, or
the house may be demolished altogether."2 Where, however,
several houses belonging to the same owner are built together, so
that each requires the support of the adjoining house, and the
owner parts with one of these houses, the right to such support is
not thereby lost.3

Where a person builds a house on his own land, which has been
previously excavated to its extremity for mining purposes, it has
been held that he does not thereby acquire a right to support for
the house from the adjoining land of another; at least, such right
will not be acquired until twenty years have elapsed since the house
first stood on excavated land, and was in part supported by the ad-
joining land, in which case a grant from the owner of the adjoining
'land of such right to support may be inferred ; and this case is an
r* 971-1 authority to show, that a man, by *building a house on the
extremity of his own land, does not thereby acquire any
right of easement for support, or otherwise, over the adjoining land
of his neighbor. He has no right to load" his own soil, so as to
make it require the support of that of his neighbor, unless he has
some grant to that effect.4

1 Chadwick v. Trower, 6 Bing. N. C. 1 ; reversing s. c, 3 Bing. N. C. 334
(32 E. C. L. R.) ; cited 5 Scott N. R. 119; Grocers' Co. v. Donne, 3 Bing. N.

K3, 34 (37 E. C. L. R.) ; Davis v. London & Blackwall R. C, 2 Scott N. R. 74.
See further, as to the right to support by an adjacent house, Solomon v.
Tintners' Co., 4 H. & N. 585, where the cases are collected.

2 Judgm., Chauntler v. Robinson, 4 Exch. 170. As to the right of support
for a sewer, see Metropolitan Board of Works v. Metropolitan R. C, L. R. 4
C. P. 192.

3 Richards v. Rose. 9 Exch. 218.

4 Partridge v. Scott, 3 M. & W. 220, 228 ; recognised, Acton v. Blundell, 12
M. & W. 352 ; judgm., Gay ford v. Nicholls, 9 Exch. 707, 708. See Jeffries v.

PROPERTY — ITS RIGHTS AND LIABILITIES. 371

As between the owner of the surface of the land and the owner
of the subjacent mineral strata, and as between the owners of ad-
joining mines, questions frequently arise involving a consideration
of the maxim, Sic utere tuo ut alienum non Icedas,1 and needing an
interpretation of it not too much infringing on the rights of owner-
ship. In Humphreys v. Brogden,2 the plaintiff, being the occupier
of the surface of land, sued the defendant in case, for negligently
and improperly, and without leaving any sufficient pillars and sup-
ports, and contrary to the custom of mining in that district,
working the subjacent minerals, per quod the surface gave way.
Issue being joined on a plea of not guilty to this declaration, it
was proved at the trial that plaintiff was in occupation of the sur-
face, which was not built upon, and defendant of thesubjacent minerals,
but there was no evidence showing how the occupation of the supe-
rior and inferior strata came into ^different hands. The r*Q70-|
jury found that the defendant had worked the mines care-
fully and according to the custom, but without leaving sufficient
support for the surface. And the Court of Q. B. held, that upon
this finding the verdict should be entered for the plaintiff, because
of common right the owner of the surface is entitled to support
from the subjacent strata.

The prima facie rights and obligations of parties so situated
relatively to each other, as above supposed, may, however, be varied
by the production of title deeds or other evidence.3

In Smith v. Kenrick,4 the mutual obligations of the owners of

Williams, 5 Exch. 792, 800 ; followed in Bibby v. Carter, 4 H. & N. 153. As
to the right of the owner of land to lateral support, see, also, judgm., 12 Q.
B. 743 (64 E. C. L. R.) ; Hunt v. Peake, cited ante p. 196, n. 3.

1 See In re Groucott v. Williams, 4 B. & S. 149 (116 E. C. L. R.).

2 12 Q. B. 739 (64 E. C. L. R.) (with which compare Hilton v. Whitehead,
Id. 734) ; Haines v. Roberts, 7 E. & B. 625 (90 E. C. L. R.) ; s. c, 6 E. & B.
643 (88 E. C. L. R.) ; Rowbotham v. Wilson, 8 H. L. Cas. 348 ; s. c, 8 E. &
B. 123 (92 E. C. L. R.), 6 Id. 593 (1 E. C. L. R.) ; Smart v. Morton, 5 E. &
B. 30 (85 E. C. L. R.)'; Backhouse v. Bonomi, 9 H. L. Cas. 503; s. c, E., B. &
E. 503 (96 E. C. L. R.) ; Smith v. Thackerah, L. R. 1 C. P. 564; Blackett v.
Bradley, 1 B. & S. 940 (101 E. C. L. R.).

3 Per Lord Campbell, C. J., in Humphries v. Brogden, and Smart v. Morton,
supra ; Robotham v. Wilson, supra.

See Solomon v. Vintners' Co., 4 H. & N. 599, 601.

There is no right, such as above considered, to the support of water ; Pop-
plewell v. Hodkinson, L. R. 4 Ex. 248.

4 7 C. B. 515, 564 (62 E. C. L. R.), with which compare Baird v. Williamson,

372 broom's legal maxims.

adjoining mines were much considered by the Court of C. P., who
conclude as follows — that "it would seem to be the natural right
of each of the owners of two adjoining coal mines — neither being
subject to any servitude to the other — to work his own in the man-
ner most convenient and beneficial to himself, although the natural
consequence may be that some prejudice will accrue to the owner
of the adjoining mine, so long as that does not arise from the neg-
ligent or malicious conduct of the party."

From the above and similar cases we may infer that much cau-
tion is needed in applying the maxim now under our notice — in
determining how far it may, on a given state of facts, restrict the
i-* 070-1 mode in which property may be * enjoyed or used ; a prin-
ciple here applicable under very dissimilar circumstances
being, that " If a man brings or uses a thing of a dangerous nature
on his own land, he must keep it in at his own peril, and is liable
for the consequences if it escapes and does injury to his neighbor."1
"The person," therefore, "whose grass or corn is eaten down by
the escaping cattle of his neighbor, or whose mine is flooded by the
water from his neighbor's reservoir,2 or whose cellar is invaded by
the filth of his neighbor's privy, or whose habitation is made un-
healthy by the fumes and noisome vapors of his neighbor's alkali
works,3 is damnified without any fault of his own; and it seems but
reasonable and just, that the neighbor who has brought something
on his own property, which was not naturally there, harmless to
others so long as it is confined to his own property, but which he
knows will be mischievous if it gets on his neighbor's, should be
obliged to make good the damage which ensues if he does not suc-
ceed in confining it to his own property."4

15 C. B. N. S. 376 (109 E. C. L. R.), which is distinguished from Smith v.
Kenrick, svpra, by Lord Cranworth, Rylands v. Fletcher, L. R. 3 H. L.
341-2.

1 Jones v. Festiniog R. C, L. R. 3 Q. B. 736; Rylands v. Fletcher, L. R. 3
II. L. 330, 339, 340, where many cases illustrating the text are collected. »

2 " Suppose A. has a drain through the lands of B. and C, and C. stops up
the inlet into his land from B.'s, and A. nevertheless, knowing this, pours
water in the drain and damages B., A. is liable to B." Judgm., Harrison
v. Great Northern R. C, 3 H. & C. 238 ; Collins v. Middle Level Commis-
sioners, L. R. 4 C. P. 279.

* St. Helen's Smelting Co. v. Tipping, 11 II. L. Cas. 642.

* Judgm., Fletcher v. Rylands, L. R. 1 Ex. 280, adopted per Lord Cairns,
C.} in a. c, L. R. 3 H. L. 340.

PROPERTY — ITS RIGHTS AND LIABILITIES. 373-^'

Again, the rule of law which governs the enjoyment of a stream
flowing in its natural course over the surface of land belonging
to different proprietors is well established, and is illustrative of the
maxim under notice. According to this rule, each proprietor of
the land has a right to the *advantage of the stream flow- r*Q74"i
ing in its natural course over his land, and to use the same
as he pleases for any purposes of his own, provided that they be
not inconsistent with a similar right in the proprietor of the land
above or below ; so that neither can any proprietor above diminish
the quantity or injure the quality of the water, which would other-
wise naturally descend ; nor can any proprietor below throw back
the water without the license or the grant of the proprietor above.1
Where, therefore, the owner of land applies the stream running
through it to the use of a mill newly erected, or to any other pur-
pose, he may, if the stream is diverted or obstructed by the pro-
prietor of land above, recover against such proprietor for the conse-
quential injury to the mill ; and the same principle seems to apply
where the obstruction or diversion has taken place prior to the erec-
tion of the mill, unless, indeed, the owner of land higher up the
stream has acquired a right to any particular mode of using the
water by prescription, that is, by user continued until the presump-
tion of a grant has arisen.2

What has been just said applies generally to surface water, flow-
ing naturally over land — between which and water so artificially
flowing the distinction is important as regards the mode of applying
our principal maxim, and was thus recently explained : —

*uThe flow of a natural stream creates natural rights r*Q7cn
and Liabilities between all the riparian proprietors along
the whole of its course. Subject to reasonable use by himself, each
proprietor is bound to allow the water to flow on without altering
the quantity or quality. These natural rights and liabilities may

1 Mason v. Hill, 5 B. & Ad. 1 (27 E. C. L. R.) ; Wright v. Howard, 1 Sim.
& Stu. 190 ; cited Judgm., 12 M. & W. 349 ; cited Judgm., Embrey v. Owen, 6
Exch. 368-373 ; Chasemore v. Richards, 7 H. L. Cas. 349 ; Rawstron v. Taylor,
11 Exch. 369 ; Broadbent v. Ramsbotham, Id. 602. See, also, Whaley v. Laing
3 H. & N. 675, 901 ; Hipkins v. Birmingham and Staffordshire Gas Light
Co., 6 H. & N. 250 ; s. c, 5 Id. 74 ; Hodgkinson v. Ennor, cited ante, p. 369.

2 Judgm., Mason v. Hill, 5 B. & Ad. 25 (27 E. C. L. R.), where the Roman
law upon this subject is briefly considered.

375 broom's legal maxims.

be altered by grant or by user of an easement to alter the stream,
as by diverting, or fouling, or penning back, or the like. If the
stream flows at its source by the operation of nature, that is, if it
is a natural stream, the rights and liabilities of the party owning
the land at its source are the same as those of the proprietors in
the course below. If the stream flows at its source by the opera-
tion of man, that is, if it is an artificial stream, the owner of the
land at its source or the commencement of the flow is not subject
to any rights or liabilities towards any other person, in respect of
the water of that stream. The owner of such land may make him-
self liable to duties in respect of such water by grant or contract ;
but the party claiming a right to compel performance of those
duties must give evidence of such right beyond the mere suffering
by him of the servitude of receiving such water."1

Eights and liabilities in respect of artificial streams when first
flowing on the surface are entirely distinct from rights and liabili-
ties in respect to natural streams so flowing. The water in an arti-
ficial stream flowing in the land of the party by whom it is caused to
flow is the property of that party, and is not subject to any rights
or liabilities in respect of other persons. If the stream so brought
to the surface is made to flow upon the land of a neighbor without
r*q~£-| hls consent, it is a wrong, *for which the party causing it
so to flow is liable. If there is a grant by the neighbor,
the terms of the grant regulate the rights and liabilities of the
parties thereto. If there is uninterrupted user of the land of the
neighbor for receiving the flow as of right for twenty years, such
user is evidence that the land from which the water is sent into
the neighbor's land has become the dominant tenement having a
right to the easement of so sending the water, and that the neigh-
bor's land has become subject to the easement of receiving that
water. But such user of the easement of sending on the water of
an artificial stream is of itself alone no evidence that the land from
which the water is sent has become subject to the servitude of being
bound to send on the water to the land of the neighbor below.
The enjoyment of the easement is of itself no evidence that the
party enjoying it has become subject to the servitude of being
bound to exercise the easement for the benefit of the neighbor.

1 Judgm., Gaved v. Martyn, 19 C. B. N. S. 759, 760 (115 E. C. L. R.), and

PROPERTY — ITS RIGHTS AND LIABILITIES. 376

* * * A party by the mere exercise of a right to make an artificial
drain into his neighbor's land, either from mine or surface, does
not raise any presumption that he is subject to any duty to con-
tinue his artificial drain by twenty years' user, although there may
be additional circumstances by which that presumption could be
raised, or the right proved. Also, if it be proved that the stream
was originally intended to have a permanent flow, or if the party
by whom or on whose behalf the artificial stream was caused to
flow is shown to have abandoned permanently, without intention to
resume, the works by which the flow was caused, and given up all
right to and control over the stream, such stream may become sub-
ject to the laws relating to natural streams."1

*With respect to water flowing in a subterraneous course,
it has been held, that, in this, the owner of land through *■ -■
which it flows has no right or interest (at all events, in the absence
of an uninterrupted user of the right for more than twenty years),
which will enable him to maintain an action against a landowner,
who, in carrying on mining operations in his own land in the usual
manner, drains away the- water from the land of the first-mentioned
owner, and lays his well dry ;2 for, according to the principle
already stated, if a man digs a well in his own land, so close to the
soil of his neighbor as to require the support of a rib of clay or of
stone in his neighbor's land to retain the water in the well, no
action would lie against the owner of the adjacent land for digging
away such clay or stone, which is his own property, and thereby
letting out tbe water; and it would seem to make no difference as
to the legal rights of the parties if the well stands some distance
within the plaintiff's boundary, and, the digging by the defendant,
which occasions the water to flow from the well, is some distance
within the defendant's boundary, which is, in substance, the very
case above stated.3

The principle which the above instances have been selected to

1 Judm., Gaved v. Martyn, 19 C. B. N. S. 758-9, 760 (115 E. C. L. R.), and
cases there cited.

2 Acton v. Blundell, 12 M. & W. 324 ; Chasemore v. Richards, 2 H. & N.
168 (where see, particularly in reference to the maxim supra, per Coleridge,
J., diss.) ; s. c, 7 H. L. Cas. 349 ; South Shields Waterworks Co. v. Cookson,
15 L. J. Ex. 315.

3 Judgm., 12 M. & W. 352, 353.

377 broom's legal maxIxMS.

illustrate, likewise applies where various rights, which are at par-
ticular times unavoidably inconsistent with each other, are exercised
concurrently by different individuals: as, in the case of a highway,
where right of 'common of pasture and right of common of turbary
r-, c,*-,-, maT exist at the same time; or of the ocean, * which in time
L J of peace, is the common highway of all;1 in that of a right
of free passage along the street, which right may be sometimes in-
terrupted by the exercise of other rights;2 or in that of a port or
navigable river,3 which may be likewise subject at times to tempo-
rary obstruction. In these and similar cases, where^ such different
co-existing rights happen to clash, the maxim, Sic utere tuo ut
alienum non Icedas, will, it has been observed, generally serve as a
clue to the labyrinth.4 And, further, the possible jarring of pre-
existing rights can furnish no warrant for an innovation which
seeks to create a new right to the prejudice of an old one; for
there is no legal principle^ to justify such a proceeding.5

Not only, moreover, does the law give redress where a substan-
tive injury to property is committed, but, on the same principle,
the erection of anything offensive so near the house of another as
to render it useless and unfit for habitation is actionable;6 the

' Per Story, J., The Marianna Flora, 11 Wheaton (U. S.) R. 42.

2 Ante, p. 207.

• See Mayor of Colchester v. Brooke, 7 Q. B. 339 (53 E. C. L. R.) ; Morant
v. Chamberlin, 6 H. & N. 541 ; Dobson v. Blackmore, 9 Q. B. 991 ; Dimes v.
Petley, 15 Q. B. 276 (69 E. C. L. R.) ; Reg. v. Betts, 15 Q. B. 1022. As to
the liability of the owner of a vessel, anchor, or other thing, which having
been sunk in a river obstructs the navigation, see Brown v. Mallett, 5 C. B.
599, recognised 2 II. & N. 854; Hancock v. York, &c, 11. C, 10 C. B. 348
(70 E. C. L. R.) ; White v. Crisp, lOExch. 312; per Bovill, C. J., Vivian v.
Mersey Docks Board, L. R. 5 C. P. 29 ; Bartlett v. Baker, 3 II. & C. 153.

As to the liability of a shipowner for negligently damaging a telegraphic
cable, see Sub-marine Telegraph Co. v. Dickson, 15 C. B. N. S. 757 (109 E.
C. L. R.).

See also Mersey Docks Trustees v. Gibbs, Same v. Penhallow, L. R. 1 II.
L. 93 ; White v. Phillips, 15 C. B. N. S. 245 (109 E. C. L. R.).

4 Judgm., R. v. Ward, 4 A. & E. 384 (31 E. C. L. R.) ; Judgm., 15 Johns.
(U. S.) R. 218 ; Panton v. Holland, 17 Id. 100.

6 Judgm., 11. v. Ward, supra.

6 Per Burrough, J., Deane v. Clayton, 7 Taunt. 497 (2 E. C. L. R.) ; Doe d.
Bish v. Keeling, 1 M. & S. 95 (28 E. C. L. R.). See Simpson v. Savage, 1 C.
B. N. S. 347 (87 E. C. L. R.); Mumford v. Oxford, Worcester and Wolver-
hampton R. C, 1 II. & N. 34.

PROPERTY — ITS RIGHTS AND LIABILITIES. 378 ]

action in such case being ^founded on the infringement or
violation of the rights and duties arising by reason of L ■*
vicinage.1 The doctrine upon this subject, as laid down by the
Court of Exchequer Chamber,2 and substantially adopted by the
House of Lords,3 being, "that -whenever, taking all the circum-
stances into consideration, including the nature and extent of the
plaintiff's enjoyment before the acts complained of, the annoyance
is sufficiently great to amount to a nuisance according to the ordi-
nary rule of law, an action will lie, whatever the locality may be;"
but trifling inconveniences merely are not to be regarded,4 for lex
non favet votis delicatorum.5 An action, however, does not lie if a
man build a house whereby my prospect is interrupted,6 or open a
window whereby my privacy is disturbed ; in which latter case, the
only remedy is to build on the adjoining land opposite to the offen-
sive window.7 In these instances the general principle applies —
qui jure suo utitur neminem Icedit?

In connection with the law concerning nuisances, the practitioner
may have to decide between asserted rights which are in conflict
with each other — the right to erect or maintain, and the right to
abate a nuisance — in doing *so the following propositions,
recently stated,9 may guide him. 1. That a person may L J
justify an interference with the property of another for the purpose
of abating a nuisance, if that person is the wrongdoer, but only so

1 Alston v. Grant, 3 E. & B. 128 (77 E. C. L. R.) ; judgm., 4 Exch. 256,
257.

2 Bamford v. Turnley, 3 B. & S. 62, 77 (113 E. C. L. R.).

3 St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642.
* Id. 644, 655.

6 9 Rep. 58 a.

See further as to what may constitute a nuisance, Reg. v. Bradford Nav.
Co., 6 B. & S. 631 (118 E. C. L. R.) ; Cleveland v. Spier, 16 C. B. N. S. 399
(111 E. C. L. R.).

a Com. Dig., " Action upon the Case for a Nuisance" (C.) ; Aldred's Case,
9 Rep. 58. According to the Roman law it was forbidden to obstruct the
prospect from a neighbor's house: see D. 8. 2. 3. & 15 ; Wood Civ. Law. 3d
ed., 92, 93.

'Per Eyre, C. J., cited 3 Camp. 82; Jones v. Tapling, 11 H. L. Cas. 290 ;
post, p. 383.

8 Vide J). 50. 17. 151. & 155. | 1.

9 Roberts v. Rose, 4 H. & C. 103, 105-6 (in error affirming s. c, 3 II. & N.
162). See further as to abating a nuisance, Drake v. Pywell, 4 II. & C. 78.

380 broom's legal maxims.

far as his interference is necessary to abate the nuisance. 2. That
it is the duty of a person who enters upon the land of another in
abating a nuisance, to do it in the way least injurious to the owner
of the land. 3. That where there is an alternative way of abating
a nuisance, if one way would cause injury to the property of an
innocent third party or to the public, that cannot be justified al-
though the nuisance may be abated by interference with the pro-
perty of the wrongdoer. Therefore, where the alternative way
involves an interference with the property either of an innocent
person or of the wrongdoer, the interference must be with the
property of the wrongdoer.

By stat. 2 & 3 Will. 4, c. 71,1 s. 2,2 it is provided, that, where
an easement, such as is therein mentioned, "shall have been actually
enjoyed by any person claiming right thereto without interruption,
for the full period of twenty years," such claim shall not be de-
feated or destroyed by showing only that such easement was first
enjoyed at a time prior to such period of twenty years, though it
may be defeated in any other way in which it might have been de-
feated prior to that statute.

In case for annoying plaintiff in the enjoyment of his
*- -■ *house, by causing offensive smells to arise near to, in, and
about it, defendant pleaded enjoyment as of right for twenty years
of a mixen on defendant's land contiguous and near to plaintiff's
house, whereby, during all that time, offensive smells necessarily
and unavoidably arose from the said mixen ; and, after verdict for
the defendant, the Court of Queen's Bench held the plea bad, be-
cause it did not show a right to cause offensive smells in the plain-
tiff's premises, nor that any smells had, in fact, been used to pass
beyond the limits of defendant's own land.3

Again, if the owner of adjacent land erects a building so near

1 As to the applicability of this statute to easements or profits a prendre in
gross, see Shuttleworth v. Le Fleming, 19 C. B. N. s! 687 (115 £. C. L. R.) ;
Mounsey v. Ismay, 3 H. & C. 486.

2 As to which see Staffordshire and Worcestershire Can. Nav. v. Birming-
ham Can. Nav., L. R. 1 H. L. 254 ; Gaved v. Martyn, 19 C. B. N. S. 372
(115 E. C. L. R.).

3 Flight v. Thomas, 10 A. & E. 590 (37 E. C. L. R.). See also Holford v.
Hankinson, 5 Q. B. 584 (48 E. C. L. R.) ; Arkwright v. Gell, 5 M. & W. 203;
Beeston v. Weate, 5 E. & B. 986 (85 E. C. L. R.) ; Ward v. Robins, 15 M. &
W. 237.

PROPERTY — ITS RIGHTS AND LIABILITIES. 381

the house of the plaintiff as to prevent the air and light from enter-
ing and coming through the plaintiff's windows, an action will, in
some cases, lie.1 The law on this subject formerly was, that no
action would lie, unless a right had been gained in the lights by
prescription ;2 but it was subsequently held, that, upon evidence of
an adverse enjoyment of lights for twenty years or upwards unex-
plained, a jury might be directed to presume a right by grant or
otherwise, even though no lights had existed there before the com-
mencement of the twenty years ;3 and although, formerly, if the
period of enjoyment fell short of twenty years, a presumption in
favor of the plaintiff's right might have been raised from other cir-
cumstances, it is now enacted by 2 & 3 Will. 4, c. 71, s. 6, that no
presumption shall be * allowed or made in support of any r* 009-1
claim upon proof of the exercise of the enjoyment of the
right or matter claimed for less than twenty years ; and by sect. 3
of the same statute, that, " when the access and use of light to and
for any dwelling-house, workshop, or other building, shall have been
actually enjoyed* therewith for the full period of twenty years,
without interruption,5 the right thereto shall be deemed absolute and
indefeasible, any local usage or custom to the contrary notwith-
standing, unless it shall appear that the same was enjoyed by some
consent or agreement expressly made or given for that purpose by
deed or writing." And by sect. 4, it is further enacted, that "the
period of twenty years shall be taken to be the period next before
some suit or action wherein the claim shall have been brought into
question ; and no act or matter shall be deemed to be an interrup-
tion within the meaning of the statute, unless the same shall have
been submitted to, or acquiesced in, for one year after the party in-
terrupted shall have had notice thereof, and of the person making
or authorizing the same to be made." The last section of this Act
is applicable not only to obstructions preceded and followed by por-
tions of the twenty years, but also to an obstruction ending with
that period ; and, therefore, a prescriptive title tb the access and

1 In regard to the right to enjoyment of light and air, see White v. Bass, 7
H. & N. 722: Frewen v. Philipps, 11 C. B. N. S. 449 (103 E. C. L. R.).

8 See D. 8. 2. 9. 3 2 Selw. N. P., 12th ed., 1 134.

4 See Courtauld v. Legh, L. R. 4 Ex. 126.

6 See Bennison v. Cartwright, 5 B. & S. 1 (117 E. C. L. R.) ; Plasterers'
Co. v. Parish Clerks' Co., 6 Exch. 630.

382 '/V; broom's legal maxims.

use of light may be gained by an enjoyment for nineteen years and
330 days, followed by an obstruction for thirty-five days.1

It may be well to add that "where a person has wrongfully
P^qoo-i Obstructed another in the enjoyment of an easement, as
for instance, by building a wall across a path over which
there is a right of way, public or private, any person so unlawfully
obstructed may remove the obstruction ; and if any damage thereby
arises to him who wrongfully set it up, he has no right to complain.
His own wrongful act justified what would otherwise have been a
trespass." But "every man may open any number of windows
looking over his neighbor's land ; and, on the other hand, the
neighbor may, by building on his own land within twenty years
after the opening of the window, obstruct the light which would
otherwise reach it.2

To the instances already given, showing that, according to the
maxim, Sic utere tuo ut alienum non Icedas, a person is held liable
at law for the consequences of his negligence, may be added the
following : — It has been held, that an action lies against a party for
so negligently constructing a hay-rick on the extremity of his land,
that, in consequence of its spontaneous ignition, his neighbor's
house was burnt down.3 So, the owners of a canal, taking tolls for
the navigation, are, by the common law, bound to use reasonable
care in making the navigation secure, and will be responsible for
the breach of such duty, upon a similar principle to that which
makes a shopkeeper, who invites* the public to his shop,
L -" liable for *neglect in leaving a trap-door open without any

1 Flight v. Thomas (in error), 11 A. & E. 688 (39 E. C. L. R.), affirmed 8
8 CI. & Fin. 231. See Eaton v. Swansea Waterworks Co., 17 Q. B. 267 (79
E. C. L. R.).

2 Per Lord Cranworth, Tapling v. Jones, 11 II. L. Cas. 311.

3 Vaughan v. Menlove, 3 Bing. N. C. 468 (32 E. C. L. R.) ; Tuberville v.
Stampe, Ld. Raym. 264; s. c, 1 Salk. 13 ; Jones v. Festiniog R. C, L. R. 3 Q.
B. 733 (43 E. C. L. R.). As to liability for fire, caused by negligence, see
further, Filliter v. Phippard, 11 Q. B. 347 (63 E. C. L. R.) ; per Tindal, C. J.,
Ross v. Hill, 2 C. B. 899 (52 E. C. L. R.), and 3 C. B. 241 (54 E. C. L. R.) ;
Smith v. Frampton, 1 Ld. Raym. 62 ; Vise. Canterbury v. A.-G., 1 Phil. 306 ;
Smith v. London and South Western R. C, L. R. 5 C. P. 98, and cases cited,
post, p. 394, n. 2.

4 See Nicholson v. Lancashire and Yorkshire R. C, 3 H. & C. 534 ; Holmes
v. North Eastern R. C, L. R. 4 Ex. 254 ; Lunt v. London and North Western
R. C, L. R. 1 Q. B. 277, 286.

PROPERTY — ITS RIGHTS AND LIABILITIES. 384

protection, by which his customers suffer injury.1 The trustees of
docks will likewise be answerable for their negligence and breach
of duty causing damage.2

Where, however, in cases involving an inquiry as to liability for
negligence, the immediate and proximate cause of damage is the
unskilfulness or negligence of the plaintiff himself, he clearly cannot
recover.3 Thus, some bricklayers, employed by the defendant, had
laid several barrowfulls of lime rubbish before the defendant's door,
and, whilst the plaintiff was passing in a one-horse chaise, the wind
raised a cloud of dust from the lime rubbish, which frightened the
horse, although usually very quiet ; he, consequently, started on
one side, and would have run against a wagon which was meeting
thern, but the plaintiff hastily pulled him round, and the horse then
ran over a lime heap lying before another man's door ; by the shock
the shaft was broken, and the horse, being thus still more frightened,
ran away, and, the chaise being upset, the plaintiff was thrown out
and hurt : it was held, that, as the immediate and proximate cause
of the injury was the unskilfulness of the driver, the action could
not be maintained.4

In very many recent cases, of which some only can be cited here5
without adequate analysis or discussion, the *doctrine of r*oor-i
contributory negligence has been considered. The result
of such cases seems to be that where the doctrine referred to is
involved, the question for the jury will be as follows — "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

1 Parnaby v. Lancaster Canal Co., 11 A. & E. 223, 243 (39 E. C. L. R.) ;
Birkett v. Whitehaven Junction R. C, 4 H. & N. 730 ; Chapman v. Rothwell,
E., B. & E. 168 (96 E. C. L. R.) ; Bayley v. Wolverhampton Waterworks Co..
6 H. & N. 241 ; and cases cited, post.

2 Mersey Docks Trustees v. Gibbs 5 Same v. Penhallow, L. R. 1 II. L. 93,
and cases cited, ante p. 7, n. 3.

3 Schloss v. Heriot, 14 C. B. N. S. 59 (108 E. C. L. R.)
* Flower v. Adam, 2 Taunt. 314.

8 Burrows v. March Gas, &c, Co., L. R. 5 Ex. 67 ; Fordham v. London,
Brighton and South Coast R. C, L. 11. 4 C. P. 619 ; Coleman v. South Eastern
R. C, 4 H. & C. 699; Adams v. Lancashire and Yorkshire R. C, L. R. 4 C.
P. 739 ; Skelton v. London and North Western R, C, L. R. 2 C. P. 631 ;
Mangan v. Atterton, L. R. 1 Ex. 239 5 Hughes v. Macfie ; Adams v. Same, 2
H. & C. 744.

385 broom's legal maxims.

ordinary and common care and caution, that, but for such negli-
gence or want of ordinary care and caution on his part, the misfor-
tune would not have happened. In the first case the plaintiff would
be entitled to recover; in the latter not, as but for his own fault
the misfortune would not have happened. Mere negligence or want
of ordinary care or caution would not, however, disentitle him to
recover, unless it were such that but for that negligence or want of
ordinary care and caution the misfortune could not have happened,
nor if the defendant might by the exercise of care on his part have
avoided the consequences of the neglect or carelessness of the plain-
tiff."1 Ordinary *care, it has been observed, must mean
L J that degree of care which may reasonably be expected from
a person in the plaintiff's situation ;2 and, in the absence of such
ordinary care on the part of the plaintiff, the case will fall within and
be governed by the general rule of the English law, that no one can
maintain an action for a wrong where he has consented or has directly*
and materially contributed to the act which occasions his loss.4

1 Per Wightman, J., Tuff v. Warman, 5 C. B. N. S. 585 (94 E. C. L. R.) ;
Wetherley v. Regent's Canal Co., 12 C. B. N. S. 2, 8 (104 E. C. L. R.) ; Ellis
v. London and South Western R. C, 2 H. & N. 424 ; Martin v. Great North-
ern R. C, 16 C. B. 179 (81 E. C. L. R.) ; Bridge v. Grand Junction R. C, 3
M. & W. .-44 ; recognised in Davies v. Mann, 10 M. & W. 546 ; cited and
explained per Lord Campbell, C. J., Dowell v. Steam Nav. Co., 5 E. & B. 195
(S5 E. C. L. R.) ; Holden v. Liverpool New Gas & Coke Co., 3 C. B. 1 (54 E.
C. L. R.) ; Caswell v. Worth, 5 E. & B. 849 (85 E. C. L. R.) ; Clayards v.
Dethick, 12 Q. B. 439 (64 E. C. L. R.) ; cited per Blackburn, J., Wyatt v.
Great Western R. C, 6 B. & S. 720 (118 E. C. L. R.) ; Wise v. Great Western
R. C, 1 H. & N. 63 ; Marriott v. Stanley, 1 Scott N. R. 392 ; Goldthorpe v.
Hardmans, 13 M. & W. 377 ; Pardington v. South Wales R. C, 11 Exch. 392;
Dakin v. Brown, 8 C. B. 92 (65 E. C. L. R.) ; Thorogood v. Bryan, 8 C. B.
115, as to which see per AVilliams, J., Tuff v. Warman, 2 C. B. N. S. 750 (89
E. C. L. R.) ; Waite v. North Eastern R. C, E., B. &"E. 719, 727 (96 E. C. L.
R.) ; The Milan, 1 Lush. Adra. R. 388, 403.

2 Judgm., 1 Q. B. 36 (41 E. C. L. R.).

" Though degrees of care are not definable, they are with some approach
to certainty distinguishable " by a jury " led by a cautious and discriminating
direction of the judge." Judgm., Giblin v. McMullen, L. R. 2 P. C. 337.

3 Dowell v. Steam Nav. Co., 5 E. & B. 195 (85 E. C. L. R.); Dynan v.
Leach, 26 L. J. Ex. 221 ; Clarke v. Holmes, 7 II. & N. 937 ; Senior v. Ward,
1 E. & E. 385 (102 E. C. L. R) ; Williams v. Clough, 3H.&N. 258. See also
Burrows v. March Gas, &c, Co., L. R. 5 Ex. 67.

4 See per Tindal, C. J., Gould v. Oliver, 2 Scott N. R. 257. See Smith v.
Dobson, 3 Scott N. R. 336 ; Taylor v. Clay, 9 Q. B. 713 (58 E. C. L. R.).

PROPERTY — ITS RIGHTS AND LIABILITIES. 386

In cases such as are now before us the rule as to remoteness
would seem, however, to have a twofold applicability, — for, first, a
plaintiff will not necessarily be disentitled to redress whose negli-
gence was but remotely connected with the accident;1 and, secondly,
it may well be doubted whether "a person who is guilty of negli-
gence is responsible for all the consequences which may under any
circumstances arise, and in respect of mischief which could by no
possibility have been foreseen, and which no reasonable person
would have anticipated.'2

*It is not, however, true, as a general proposition, that r*QQ7-i
misconduct, even wilful and culpable misconduct, must
necessarily exclude the plaintiff who is guilty of it from the right to
sue; for not unfrequently the rule holds that injuria non excusat
injuria m ;3 a trespasser, although liable to an action for the injury
which he does, does not necessarily forfeit his right of action for
an injury which he has sustained;4 ex. gr. by falling into a hole
newly5 excavated on defendant's premises, adjoining to a public
way, and rendering it unsafe to persons lawfully using the way
with ordinary care.6 If the defendant has been guilty of a breach

1 Tuff v. Warman, 2 C. B. N. S. 740 (89 E. C. L. R.) ; s. c, 5 Id. 573 ;
Witherley v. Regent's Canal Co., 12 C. B. N. S. 2, 7 (104 E. C. L. R) ; Dowell
v. Steam Nav. Co., 5 E. & B. 195 (85 E. C. L. R.) ; Morrison v. General Steam
Nav. Co., 8 Exch. 733.

2 Per Pollock, C. B., Greenland v. Chaplin, 5 Exch. 248 ; and in Rigby v.
Hewitt, Id. 243.

3 See Alston v. Herring, 11 Exch. 822; Dimes v. Petley, 15 Q. B. 276 (69
E. C. L. R.) ; Roberts v. Rose, L. R. 1 Ex. 82; Ellis v. London and South
Western R. C, 2 H. & N. 424 ; and analogous cases cited, post.

4 See judgin., Degg v. Midland R. C, 1 H. & N. 780.

5 A highway may be dedicated to the public, and accepted by them, subject
to the inconveniences and risk caused by an existing erection or excavation :
Fisher v. Prowse, and Cooper v. Walker, 2 B. & S. 770 (110 E. C. L. R.) ;
Robbins v. Jones, 33 L. J. C. P. 1, 6 ; s. c, 15 C. B. N. S. 121 (109 E. C. L.
R.). See Mercer v. Woodgate, L. R. 5 Q. B. 26.

6 Barnes v. Ward, 9 C. B. 392, 420 (67 E. C. L. R.) ; In Re Williams v.
Gro.ucott, 4 B. & S. 149, 157 (116 R. C. L. R.) ; Binks v. South Yorkshire R.
C, 3 B. & S. 244 (113 E. C. L. R.) ; Hounsell v. Smyth, 7 C. B. N. S. 731
(97 E. C. L. R.) ; Hardcastle v. South Yorkshire R. C, 4 H. & N. 67.

With Barnes v. Ward, supra, compare Stone v. Jackson, 16 C. B. 199 (81
E. C. L. R.) ; Holmes v. North Eastern R. C, L. R. 4 Ex. 254 ; Indermaur v.
Dames, L. R. 1 C. P. 274 ; and Cornwell v . Metropolitan Commissioners of
Sewers, 10 Exch. 771, 774, where Alderson, B., says, "Suppose there is an

387 broom's legal maxims.

|-*ooo-i of duty — public or private1-— ^producing the damage com-
plained of, lie will in general, under circumstances such as
here supposed, be responsible. Nor does this proposition, if rightly
understood, conflict with the rule already stated,2 that " no man by
his wrongful act can impose a duty."3

In Bird v. Holbrook4 the defendant for the protection of his
property, some of which had been stolen, set a spring-gun, without
notice, in a walled garden, at a distance from his house, and the
plaintiff, who climbed over the wall in pursuit of a stray fowl, hav-
ing been shot, and seriously injured, the defendant was held liable
in damages.5 It was, indeed, observed in a subsequent case, that
this decision proceeded on the ground, that setting spring-guns
without notice was, independently of the statute6 then in force7 an
unlawful act; but, it was likewise remarked that, although the cor-
rectness of such a position might perhaps be questioned, yet, if it
were sound, the above ruling was correct8 and, on the whole we may,

inclosed yard with several dangerous holes in it, and the owner allows the
public to go through the yard, does that cast on him any obligation to fill up
the holes? Under such circumstances caveat viator." See Corby v. Hill, 4
C. B. N. S. 556 (93E.C. L.R.).

1 See Collis v. Selden, L. R. 3 C. P. 495 ; Seymour v. Maddox, 16 Q. B. 326
(71 E. C. L. R.) ; Southcote v. Stanley, 1 H. & N. 247, which is explained per
Williams, J., Corby v. Hill, 4 C. B. N. S. 565 (93 E. C. L. R.) ; and with which
compare Chapman v. Rothwell, E., B. & E. 168, 170 (96 E. C. L. R.) ; Bolch
v. Smith, 7 H. & N. 736 ; Wilkinson v. Fairrie, 1 H. & C. 633 ; White v. Phil-
lips, 15 C. B. N. S. 245 (109 E. C. L. R.) ; Brass v. Maitland, 6 E. & B. 470,
484 (88 E. C. L. R.) ; followed in Farrant v. Barnes, 11 C. B. N. S. 553 • and
Hutchinson v. Guion, 5 C. B. N. S. 149 (94 E. C. L. R.).

2 Ante, p. 270.

8 Judgm., 1 H. & N. 782 ; Dalton v. Denton, 1 C. B. N. S. 672 (87 E. C. L.
R.).

4 4 Bing. 628, with which compare Wootton v. Dawkins, 2 C. B. N. S. 412
(89 E. C. L. R.) See also Judgm., Mayor of Colchester i\ Brooke, 7 Q. B.
339 (53 E. C. L. R.), citing Davies v. Mann, ante, p. 385, n. 1.

5 Bird v. Holbrook, 4 Bing. 628 (13 E. C. L. R.) ; cited 1 Q. B. 37 (41 E.
C. L. R.), and in judgm., 1 H. & N. 780 ; Ilott v. Wilkes, 3 B. & Aid. 304 (5
E. C. L. R.). See also arg., 1 Scott N. R. 393, 394.

6 7 & 8 Geo. 4, c. 18.

7 See now statute 24 & 25 Vict. c. 100, s. 31.

8 Judin., Jordin v. Crump, 8 M. & W. 789, where the Court agree in opin-
ion with Gibbs, C. J., in Deane v. Clayton, 7 Taunt. 489 (2 E. C. L. R.), which
was an, action for killing plaintiff's dog by a spike placed on defendant's land
for the preservation of his game.

PROPERTY — ITS RIGHTS AND LIABILITIES. 388

it seems, conclude, with reference to this subject, that although the
law, in certain cases, forbids the setting of instruments capable of
causing injury to man, where such injury will be a probable conse-
quence of setting them *yet with the exception of those r*Qcqi
cases, a man has a right to do what he pleases with his
own land.1

As bearing to some extent upon the doctrine of contributory neg-
ligence, and the legal principles discussed in Bird v. Holbrook, the
cases below cited,2 which have reference to the liability of a railway
company for damage sustained by cattle trespassing on their line or
by persons crossing it, may further be consulted.

With respect to one important class of cases of frequent occur-
rence, falling directly within the general principle under review, viz.
where damage is caused by collision between two vessels, it has
been judicially observed in the Admiralty Court, that " there are
four possibilities under which an accident of this sort may occur.
In the first place, it may happen without blame being imputable to
either party, as where the loss is occasioned by a storm, or any
other vis major. In that case, the misfortune must be borne by the
party on whom it happens to light, the other not being responsible
to him in any degree. Secondly, a misfortune of this kind may
arise where both parties are to blame, where there has been a want
of due diligence or of skill on both sides. In such a case, the rule
of law is, that the loss must be apportioned between them, as having
been occasioned by the fault of both of *them. Thirdly, r*QQfn
it may happen by the misconduct of the suffering party
only, and then the rule is, that the sufferer must bear his own bur-
then. Lastly, it may have been the fault of the ship which ran the

1 Judgm., 8 M. & W. 787.

2 Fawcett v. York and North Midland R. C, 16 Q. B. 610 (71 E. C. L. R.) ;
Ricketts v. East and West India Docks, &c, R. C, 12 C. B. 160 (74 E. C. L.
R.) ; Manchester, Sheffield, and Lincolnshire R. C. v. Wallis, 14 C. B. 213
(78 E. C. L. R.) ; Midland R. C. v. Daykin, 17 C. B. 126 (84 E. C. L. R.) •
Bessant v. Great Western R. C., 8 0. B. N. S. 368 (98 E. C. L. R.) ; Marfell
v. South Wales R. C, Id. 525 ; Ellis v. London and South Western R. C, 2
H. & N. 424.

Stubley v. London and North Western R. C, 4 II. & C. 83 ; Stapley v. Lon-
don, Brighton, and South Coast R. C, Id. 93 ; Nicholson v. Lancashire and
Yorkshire R. C, 3 II. & C. 534 ; Holmes v. North Eastern R C, L. R. 4 Ex.
254 ; Lunt v. London and North Western R. C, L. R. 1 Q. B. 277, 286.

20

390 broom's legal maxims.

other down ; and, in this case, the injured party would be entitled
to an entire compensation from the other.1

Again with reference to restitution in a case of capture, Lord
Stowell has observed : " The natural rule is, that, if a party be un-
justly deprived of his property, he ought to be put, as nearly as
possible, in the same state as he was before the deprivation took
place ; technically speaking, he is entitled to restitution, with costs
and damages. This is the general rule upon the subject ; but, like
all other general rules, it must be subject to modification. If, for
instance, any circumstances appear, which show that the suffering
party has himself furnished occasion for the capture, — if he has,
by his own conduct, in some degree contributed to the loss, — then
he is entitled to a somewhat less degree of compensation than what
is technically called simple restitution."2

The law also, through regard to the safety of the community,
poQi-i *requires that persons having in their custody instruments
of danger, should keep them with the utmost care.3 Where,
therefore, defendant, being possessed of a loaded gun, sent a young
girl to fetch it, with directions to take the priming out, which was
accordingly done, and a damage accrued to the plaintiff's son in
consequence of the girl's presenting the gun at him and drawing
the trigger, when the gun went off; it was held, that the defendant
was liable to damages in an action on the case.4 " If," observed

1 Judgm., The Woodrop-Sims, 2 Dods. Adm. R. 85; Hay v. Le Neve, 2
Shaw, Scotch App. Cas., 395; judgm., De Vaux v. Salvador, 4 A. & E. 431
(31 E. C. L. R.) ; The Agra, L. R. 1 P. C. 501 ; Brown v. Wilkinson, 15 M.
& W. 391 ; Dowell v. Steam Nav. Co., 5E.&B. 195 (85 E. C. L. R.) ; Tuff v.
Warman, cited ante, p. 385; Morrison v. General Steam Nav. Co., 8 Exch.
733 ; General Steam Nav. Co. v. Morrison, 13 C. B. 581 (76 E. C. L. R.).

The onus probandi lies on the party seeking to recover compensation, Mor-
gan v. Sim, 11 Moo. P. C. C. 307.

See further as to the principles of law applicable in cases of collision,
Bland v. Ross, 14 Moo. P. C. C. 210; The Milan, 1 Lush. Adm. R. 388.

As to exemption from liability under stat. 17 & 18 Vict. c. 104, s. 388, see
General Steam Nav. Co. v. British and Colonial Steam Nav. Co.,»L. R. 4 Ex.
238 ; The Iona, L. R. 1 P. C. 426 ; The Velasquez, Id. 494.

2 The Acteon, 2 Dods. Adm. R. 51-2 ; The Ostsee, 9 Moo. P. C. C. 157.

3 " The law of England, in its care for human life, requires consummate
caution in the person who deals with dangerous weapons ;" per Erie, C. J.,
Potter v. Faulkner, 1 B. & S. 805 (101 E. C. L. R.); Rylands v. Fletcher, L.
R. 3 H. L. 330, cited ante, p. 373, also exemplifies the text.

4 Dixon v. Bell, 5 M. & S. 198.

PROPERTY — ITS RIGHTS AND LIABILITIES. 391

Lord Denman, delivering the judgment of the Court of Queen's
Bench in another and more recent case, " I am guilty of negligence
in leaving anything dangerous in a place where I know it to be
extremely probable that some other person will unjustifiably set it
in motion, to the injury of a third, and if that injury should be
brought about, I presume that the sufferer might have redress by
action against both or either of the two, but unquestionably against
the first."1 In the case referred to, the evidence showed that the
defendant had negligently left his horse and cart unattended in the
street ; and the plaintiff, a child seven years old, having got upon
the cart to play, another child incautiously led the horse on,
whereby plaintiff' was thrown down and hurt ; and, in answer to
the argument, that plaintiff could not recover, having, by his own
act, *contributed to the accident, it was observed, that the r*qQ.?-i
plaintiff, although acting without prudence or thought, had
shown these qualities in as great a degree as he could be expected
to possess them, and that his misconduct, at all events, bore no
proportion to that of the defendant.2

The rule of law applicable for determining the liability of one
who lends, or allows to another the use of, a chattel which by
reason of its defective condition causes damage to the latter, has
been thus laid down :3 " The duties of the borrower and lender 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 use; above
all, for anything which may be qualified 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 borrower is injured."4

1 Lynch v. Nurdin, 1 Q. B. 29, 35 (41 E. C. L. R.), with which compare,
Mangan v. Atterton, L. R. 1 Ex. 239 ; Lygo v. Newbold, 9 Exch. 302 5 Great
Northern R>. C. v. Harrison, 10 Exch. 376 ; Austin v. Great Western R. C, L.
R. 2 Q. B. 442 5 Caswell v. Worth, 5 E. & B. 849 (85 E. C. L. R.).

s Lynch v. Nurdin, supra. See Waite v. North Eastern R. C, E., B. & E.,
719 (96 E. L. C. R.) ; Illidge v. Goodwin, 5 C. & P. 190 (24 E. C. L. R.).

3 Blakemore v. Bristol & Exeter R. C, 8 E. & B. 1035, 1050-1 (92 E. C. L.
R.) ; followed in McCarthy v. Young, 6 H. & N. 329, 336.

4 Citing the maxim of the Roman law, Adjuvari quippe 110s, non decipi,
beneficio oportet, D. 13. 6. 17. \ 3.

392 -,f . BROOM'S LEGAL MAXIMS.

Further, we may observe that, although a man has a right to
keep an animal which is ferce naturce, and no one can interfere
with him in doing so until some mischief happens, yet, as soon as
the animal has caused bodily hurt to any person, then the act of
keeping it becomes, as regards that person, an act for which the
owner is ""responsible ; and there is, in truth, as judicially
L -I observed, no distinction between the case of an animal
which breaks through the tameness of its nature and is fierce, and
knoivn by the owner to be so, and one which is ferce naturae}
"Whosoever," says Lord Denman, C. J.,2 "keeps an animal accus*
tomed to attack and bite mankind, with knowledge that it so accus-
tomed, is primd facie liable in an action on the case at the suit of
any person attacked and injured by the animal, without any aver-
ment of negligence or default in the securing or taking care of it.
The gist of the action is the keeping the animal after knowledge of
its mischievous propensities."3 No proof of the scienter, however,
need now be given where the complainant sues for hurt done to his
cattle* or sheep by the defendant's dog.5

We may add that, where an accident happens entirely from a
superior agency, and without default on the part of the defendant,
or blame imputable to him, an action for injury resulting from such
accident cannot be maintained.6 A carrier, though an insurer, is
not liable for damage arising from an inherent defect in the chattel
r*3Q4.1 delivered to him to be carried.7 Nor will a railway Com-
pany be liable for an accident arising from the fire in a

1 Jackson v. Smithson, 15 M. & W. 563, 565; May v. Burdett, 5 Q. B. 101
(58 E. C. L. R.). See also Mason v. Keeling, 1 Lord Raym. 606; Jenkins v.
Turner, Id. 109, and cases infra.

2 Judgm., 9 Q. B. 110, 111 (43 B. C. L. R.) ; Card v. Case, 5 C. B. 622, 633,
634 (57 E. C. L. R.) ; Hudson v. Roberts, 6 Exch. 697.

3 See judgm., 5 H. & N. 685; Worth v. Gilling, L. R. 2 C. P. 1 ; Cox v.
Burbridge, 13 C. B. N. S. 430, 437 (106 E. C. L. R.). See Cock v. Waring,
2 H. & C. 332.

4 See Wright v. Pearson, L. R. 4 Q. B. 582.
6 Stat. 28 & 29 Vict. c. 60.

As to damage done by a dog to plaintiff's game, see Read v. Edwards, 17
C. B. N. S.245 (112 E. C. L. R.).

6 Wakeman v. Robinson, 1 Bing. 213, 215 (8 E. C. L. R.); Hammack v.
White, 11 C. B. N. S. 588 (103 E. C. L. R.); Hall v. Fearnley, 3 Q. B. 919
(43 E. C. L. R.) ; Weaver v. Ward, Hobart 134 ; per Alderson, B., Skinner v.
London, Brighton and South Coast R. C, 5 Exch. 789.

7 Hudson v. Baxendale, 2 H. & N. 575.

PROPERTY — ITS RIGHTS AND LIABILITIES. 394

locomotive engine, which they have been authorized by the legislature
to use,1 provided every due precaution be taken consistent with its

The above instances (which might easily be extended through a
much greater space than it has been thought desirable to occupy),
will, it is hoped, suffice to give a general view of the manner in
which the maxim, Sic utere tuo ut alienum non Icedas, is applied in
our law to restrict the enjoyment of property, and to regulate in
some measure the conduct of individuals, by enforcing compensation
for injuries wrongfully occasioned by a violation of the principle
which it involves, a principle which is obviously based in justice,
and essential to the peace, order, and well-being of the community.
As deducible from the cases cited in the preceding pages, and from
others to be found in our Reports, the following propositions may,
it is conceived, be stated : —

1. It is, prim & facie, competent to any man to enjoy and deal
with his own property as he chooses.

2. He must, however, so enjoy and use it as not to affect injuri-
ously, the rights of his fellow-subjects.

3. Where rights are such as, if exercised, to conflict with each
other, we must consider whether the exercise of the right claimed
by either party be not restrained by the existence of some duty im-
posed on him towards the other. *Whether such duty be r*qqc-i
or be not imposed must be determined by reference to ab-
stract rules and principles of law.

4. A man cannot by his tortious act impose a duty on another.

5. But, lastly, a wrongdoer is not necessarily, by reason of his
being such, disentitled to redress by action, as against the party
who causes him damage, for sometimes the maxim holds that Inju-
ria non excusat injur iam?

1 See Jones v. Festiniog R. C, L. R. 3 Q. B. 733.

2 Vaughan v. Taff Vale R. C., 5 H. & N. 679 (recognising R. v. Pease, 4 B.
& Ad. 30 (24 E. C. L. R.)) ; 'cited and explained in Jones v. Festiniog R. C,
L. R. 3 Q. B. 737; and approved in Hammersmith, &c, R. C. v. Brand, L. R.
4 H. L. 171, 201-2. Secus, if the company were guilty of negligence, Smith
v. London and South Western R. C, L. R. 5 C. P. 98.

3 This maxim is also sometimes applicable where the action is founded upon
contract. See [ex. gr.) Alston v. Herring, 11 Exch. 822, 830; Hilton v.
Eckersley, 6 E. & B. 76 (88 E. C. L. R.) ; with which ace. Hornby v. Close, L.
R. 2 Q. B. 153 ; Farrer v. Close, L. R. 4 Q. B. 602.

395 broom's legal maxims.

In connection with the above propositions the doctrine as to con-
tributory negligence must be kept in mind, and the rule which has,
at p. 268, been briefly noticed, that Volenti non fit injuria.

Cujus est Solum ejus est usque ad C(elum.

(Co. Litt. 4 a.)
He who possesses land possesses also that which is above it.

Land, in its legal signification, has an indefinite extent upwards,
so that, by a conveyance of land, all buildings, growing timber, and
water, erected and being thereupon, shall likewise pass.1 So, if a
man eject another from land, and afterwards build upon it, the
building belongs to the owner of the ground on which it is built,
according *to the principle oedificatum solo solo cedit,2 which
L J we shall presently consider^

From the maxim Cujus est solum ejus est usque ad coelum, it fol-
lows, that a person has no right to erect a building on his own land
which interferes with the due enjoyment of adjoining premises, and
occasions damage thereto, either by overhanging them, or by the
flow of water from the roof and eaves upon them, unless, indeed, a
legal right so to build has been conceded by grant, or may be
presumed by user, and by operation of the stat. 2 & 3 Will. 4,
c. 71.

Where the declaration alleged that the defendant had erected a
house upon his freehold, so as to project over the house of the plain-
tiffs ad nocumentum liberi tenementi ipsorum, but did not assign
any special nuisance, the Court, on demurrer, held the declaration
good, inasmuch as the erection must evidently have been a nuisance
productive of legal damage;3 and, in a modern case, it was held,

1 Co. Litt. 4 a ; 9 Rep. 54 ; Allaway v. Wagstaff, 4 H. & N. 307. As to
the distinction between "land" and "tenements," see per Martin, B., Elec-
tric Telegraph Co. v. Overseers of Salford, 11 Exch. 189; judgm., Vauxhall
Bridge Co. v. Sawyer, 6 Exch. 508 ; Fredericks, app., Howie, resp., 1 H. &.
C. 381.

2 Post, p. 401.

3 Baten's Case, 9 Rep. 53. See also Penruddock's Case, 5 Rep. 100.

PROPERTY — ITS RIGHTS AND LIABILITIES. 396

that the erection of a cornice projecting over the plaintiff's garden
was a nuisance, from which the law would infer injury to the plain-
tiff, and for which, therefore, an action on the case would lie.1

With respect to the nature of the remedy for an injury of the
kind to which we are now alluding, the general rule is, that case is
the proper form of action for the consequential, and trespass for the
immediate and direct injury caused by the act complained of.2 And
not *only for such injury will an action lie at suit of the r* 00,7-1
occupier, but the reversioner may also sue where injury has
been done to the reversion ; provided such injury be of a permanent
character,3 or prejudicially affect the plaintiff's reversionary inter-
est.4 It is now well settled, that a man may be guilty of a nuis-
ance as well in continuing as in erecting a building on the land of
another.5

Not only will a man be liable who erects a building either upon
or so as to overhang his neighbor's land,6 but an action will lie
against him if the boughs of his tree are allowed to grow so as to
overhang the adjoining land, which they had not been accustomed

1 Fay v. Prentice, 1 C. B. 828 (50 E. C. L. R.) ; per Pollock, C. B., Solomon
v. Vintner's Co., 4 H. & N. 600.

2 See Reynolds u. Clarke, 2 Ld. Raym. 1399; Thomas v. Thomas, 2 Cr., M.
& R. 34 ; 9 Rep. 54 ; Wells v. Ody, 1 M. & W. 452 ; Crofts 0. Haldane, L. R.
2 Q. B. 194, 198, 199.

3 Simpson v. Savage, 1 C. B. N. S. 347 (87 E. C. L. R.), where the cases
are collected. See particularly Mumford v. Oxford, Worcester and Wolver-
hampton R. C, 1 H. & N. 34; Battishill v. Reed, 18 C. B. 696 (86 E. C. L.
R.) ; Cox v. Glue, 5 C. B. 533 (57 E. C. L. R.) ; Tucker v. Newman, 11 A. &
E. 40 (39 E. C. L. R.) ; Jackson v. Pesked, 1 M. & S. 234 ; Kidgill v. Moor, 9
C. B. 364 (67 E. C. L. R.) 5 Bell v. Midland R. C, 10 C. B. N. S. 287 (100 E.
C. L. R.).

As to the distinction between injuries to realty of a permanent and of a
merely temporary kind, see also Hammersmith and City R. C. v. Brand, L.
R. 4 H. L. 171 ; Ricket v. Metropolitan R. C, L. R. 2 H. L. 175.

Case will lie by the reversioner for a permanent injury to a chattel let out
on hire, Mears v. London and South Western R. C, 11 C. B. N. S. 850 (103
E. C. L. R.).

4 Metropolitan Association v. Petch, 5 C. B. N. S. 504 (94 E. C. L. R.).

5 Battishill v. Reed, 18 C. B. 713 (86 E. C. L. R.) ; citing Holmes v. Wilson,
10 A. & E. 503 (37 E. C. L. R.) ; Thompson v. Gibson, 7 M. & W. 456 ; Bovr-
yer v. Cook, 4 C. B. 236 (56 E. C. L. R.).

6 3 Inst. 201; Vin. Abr., "Nuisance" (G.); per Pollock, C. B., 4 II. &
N. 600.

397/^1

BROOM S LEGAL MAXIMS.

to do.1 In a case before Lord Ellenborough, at Nisi Prius,2 which
was an action of trespass for nailing a board on the defendant's
own wall, so as to overhang the plaintiff's garden, and where the

maxim Cujus est solum ejus est *usque ad caelum, was
L u -■ cited in support of the form of action, his Lordship ob-
served, that he did not think it was a trespass to interfere with the
column of air superincumbent on the close; that, if it was, it would
follow, that an aeronaut was liable to an action of trespass qu. el.
fr. at the suit of the occupier of every field over which his balloon
might happen to pass ; since the question, whether or not the action
was maintainable, could not depend upon the length of time for
which the superincumbent air was invaded : and the Lord Chief
Justice further remarked, that, if any damage arose from the object
which overhung the close, the remedy was by action on the case,
and not by action of trespass.3

It must be observed, moreover, that the maxim under considera-
tion is not a presumption of law applicable in all cases and under all
circumstances ; for example, it does not apply to chambers in the
inns of court ;4 for " a man may have an inheritance in an upper
chamber, though the lower buildings and soil be in another."5

Not only has land in its legal signification an indefinite extent
upwards, but in contemplation of law it extends also downwards, so
that whatever is in a direct line between the surface of any land and
the centre of the earth belongs to the owner of the surface ; and
hence the word "land," which is nomen generalissimum, includes
not only the face of the earth, but everything under it or over it '■>
and, therefore, if a man grants all his lands, he grants thereby all
his mines, his woods, his waters, and his houses, as well as his fields

and meadows.6 Where *however, a demise was made of
L rfyyJ premises lately in the occupation of A. (particularly de-

1 Norris v. Baker, 1 Roll. Rep. 393, ad Jin. See Brook v. Jenney, 2 Q. B.
265 (42 E. C. L. R.).

2 Pickering v. Rudd, 4 Camp. 219; per Shadwell, V.-C. E., Saunders v.
Smith, ed. by Crawford 20 ; Kenyon v. Hart, 6 B. &"S. 249, 252 (118 E. C. L.
R.).

3 See Reynolds v. Clarke, 2 Ld. Raym. 1399 ; Fay v. Prentice, 1 C. B. 828
(50 E. C. L. R.).

* Per Maule, J., 1 C. B. 840 (50 E. C. L. R.).
6 Co. Litt. 48 b.

• 2 Com. by Broom & Hadley 15, 17.

PROPERTY — ITS RIGHTS AND LIABILITIES. 399

scribed), part of which was a yard, it was held, that a cellar, situate
under the yard, and late in the occupation of B., did not pass by
the demise; for though primd facie it would do so, yet that might
be regulated and explained by circumstances.1

The maxim, then, above cited, gives to the owner of the soil all
that lies beneath its surface, and accordingly the land immediately
below is his property. Whether, therefore, it be solid rock, or
porous ground, or venous earth, or part soil and part water, the
person who owns the surface may dig therein, and apply all that
is there found to his own purposes, at his free will and pleasure ;2
although, as already stated, he may in some cases incur liability by
so digging and excavating at the extremity and under the surface
of his own land as to occasion damage to the house or other build-
ing of his neighbor.3

But, although the general rule, which obtains in the absence of
any express covenant or agreement between the parties interested
in land, is as above stated, and although it is a presumption of law
that the owner of the freehold has a right to the mines and minerals
underneath, yet this presumption may be rebutted by showing a
distinct title to the surface, and to that which is beneath ; for mines
may form a distinct possession and different inheritance : and, in-
deed, it frequently happens that a person, being entitled both to
the mines and to *the land above, grants away the land,
excepting out of the grant the mines, which would other- *• J
wise have passed under the conveyance of the land, and also re-
serving to himself the power of entering upon the surface of the
land which he has granted away, in order to do such acts as may
be necessary for the purpose of getting the minerals excepted out
of the grant, a fair compensation being made to the grantee for so
entering and working the mines. In this case one person has the
land above, the other has the mines below, with the power of get-
ting the minerals ; and the rule is, according to the maxim Sic
utere tuo ut alienum non Icedas, already considered, that each shall
so use his own right of property as not to injure his neighbor;

1 Doe d. Freeland v. Burt, 1 T. E. 701. See Denison v. Holliday, 1 H. &
N. 631 ; and the maxim Cuicunque aliquis quid concedit concedere videtur et
id sine quo res ipsa esse non potuit, — post.

2 Judgm., 12 M. & W. 324, 354.

3 1 Crabb, Real. Prop., p. 93.

400 broom's legal maxims.

and, therefore, the grantor will be entitled to such mines only as
he can work, leaving a reasonable support to the surface. And
here we may observe, that the bare exception of the mines and
minerals, without a reservation of right of entry, would vest in the
grantor the whole of the mines and minerals ; but he would have
no right to work or get them except by the consent of the plaintiff,
or by means of access through other shafts and channels, with
which the grantee's land had nothing to do , because, in the case
here put, the two properties, viz., in the surface and in the subter-
ranean products, are totally distinct.1 So, if there be a grant of
an upper room in a house, with a reservation by the grantor of a
lower room, he undertaking not to do anything which will derogate
from the right to occupy the *upper room; in this case,
L -"if the grantor were to remove the supports of the upper
room, he would be liable in an action of covenant.2

QUICQUID PLANTATUR SOLO SOLO CEDIT.

(Wentw. Off. Ex., 14th ed\, 145.)

Whatever is affixed to the soil belongs thereto.

It may be stated, as a general rule of great antiquity, that, what-
ever is affixed3 to the soil becomes, in contemplation of law, a part
of it, and is consequently subjected to the same rights of property
as the soil itself. In the Institutes of the Civil Law it is laid down,
that if a man builds on his own land with the materials of another,
the owner of the soil becomes, in law, the owner of the building
also — quia omne quod solo incedificatur solo cedit} In this case,
indeed, the property in the materials used still continued in the

1 Harris v. Ryding, 5 M. & W. 60, 66, 73 ; Humphries v. Brogden, 12 Q. B.
739 (64 E. C. L. R.); Keyse v. Powell, 2 E. & B. 132, 144, 145 (75 E. C. L.
R.), and cases cited ante, p. 371. See Earl of Rosse v. Wainman, 14 M. &
W. 859; s. c, 2 Exch. 800 ; Micklethwait v. Winter, 6 Exch. 644; 1 Crabb
Real Prop. 95.

2 5 M. & W. 71, 76.

3 " In several of the old books the word fixatar is used as synonymous with
plantatur-"1 in the maxim supra, judgm., L. R. 3 Ex. 260.

4 I. 2. 1. 29 ;D. 47. 3. 1.

PROPERTY — ITS RIGHTS AND LIABILITIES. 401

original owner; and although, by a law of the XII. Tables, the
object of which was to prevent the destruction of buildings, he was
unable, unless the building were taken down, to reclaim the mate-
rials in specie, he was, nevertheless, entitled to recover double their
value as compensation, by the action de tigno juncto.1 On the other
hand, if a person built, with his own materials, on the land of
another, the house likewise belonged to the owner of the soil ; for
in this case, the builder was presumed intentionally to have trans-
ferred his property in the materials *to such owner.2 In r*jAo-i
like manner, if trees were planted or seed sown in the land
of another, the proprietor of the soil became proprietor also of the
tree, the plant, or the seed, as soon as it had taken root.3 And this
latter proposition is fully adopted, almost in the words of the civil
law, by our own law writers — Britton, Bracton, and Fleta.4 Ac-
cording to the Roman law, indeed, where buildings were erected
upon, or improvements made to property, by the party in posses-
sion, bond fide and without notice of any adverse title, compensa-
tion was, it seems, allowed for such buildings and improvements to
the party making them, as against the rightful owner ;5 and although
this principle is not recognised by our own common law, nor to its
full extent by courts of equity, yet, where a man, supposing that
he has an absolute title to an estate, builds upon the land with the
knowledge of the rightful owner, who stands by, and suffers the
erection to proceed, without giving any notice of his own claim, he
will be compelled, by a court of equity, in a suit brought for recov-
ery of the land, to make due allowance and compensation for such
improvements.6 "As to the equity arising from valuable and last-
ing improvements, I do not consider," remarked Lord Chancellor

1 I. 2. 1. 29 ; D. 47. 3. 1. 2 I. 2. 1. 30.

3 I. 2. 1. 31 & 32; D. 41. ].7. 13.

4 Britton (by Wingate), c. 33, 180 ; Bracton. c. 3, ss. 4, 6 ; Fleta, lib. 3, c.
2, s. 12.

6 Sed quamvis cedificiumfundo cedai, fundi tamen dominus condemnari solet
ut cum duntaxat recipiat, reddito sumptu quo pretiosior f actus est, aut super
fundo afque cedifcio pensio imponatur ex meliorationis cestimatione si malue-
rit: Gothofred. ad. 1,2. 1. 30.

8 1 Story, Eq. Jurisp., 0th ed., s. 388 ; 2 Id., s. 1237 ; ante, p. 174. Where
a sale is set aside on account of the inadequacy of the consideration, the pur-
chaser will be allowed for lasting and valuable improvements : Sugd., T. &
P., 14th ed., 287.

402 BROOM'S LEGAL MAXIMS.

r*4031 dare>1 " that a man who is conscious of a *defect in his
title, and with that conviction on his mind expends a sum
of money in improvements, is entitled to avail himself of it. If
the person really entitled to the estate will encourage the possessor
of it to expend his money in improvements, or if he will look on
and suffer such expenditure without apprising the party of his in-
tention to dispute his title, and will afterwards endeavor to avail
himself of such fraud — upon the ground of fraud the jurisdiction
of a court of equity will .clearly attach upon the case."

Having thus touched upon the general doctrine, that what has
been affixed to the freehold becomes a portion of it, we shall proceed
to consider in what manner, and with what qualifications, the
maxim, Quicquid plantatur solo solo cedit, applies with reference
to : 1st, trees ; 2dly, emblements ; 3dly, away-going crops ; and
4thly, fixtures ; — treating these important subjects with brevity,
and merely endeavoring to give a concise outline of the law re-
specting each.

1. The general property in trees being timber, is in the owner
of the inheritance of the land upon which they grow ; that in
bushes and underwood, on the other hand, is in the tenant. The
tenant cannot indeed, without rendering himself liable to an action
on the case for waste, do anything which will change the nature
of the thing demised; he cannot, for instance, stub up a wood, or
destroy a park paling; neither can he destroy young plants destined
to become trees, nor grub up or cut down and destroy fences ; nor
in short, do any act prejudicial to the inheritance. He may, how-
r*4041 ever' cut ^own trfces *which are not timber, either by
general law, or by particular local custom ; and he may
likewise cut down such trees as are of seasonable wood, i. e., such
as are usually cut as underwood, and in due course grow up again
from the stumps, and produce again their ordinary and usual profit
by such growth.2

It follows from the rule just stated, that if trees, being timber,

1 Kenney v. Browne, 3 Ridgw. Par. Cas. 462, 519 ; cited, arg. Austin v.
Chambers, 6 CI. & Fin. 31. See, per Lord Brougham, C, Perrott v. Palmer,
3 My. & K. 640.

2 Lord D'Arcy v. Askwith, Hob. 234 ; judgm., Phillipps v. Smith, 14 M. &
W. 589 ; per Tindal, C. J., Berriman v. Peacock, 9 Bing. 386, 387 (23 E. C.
L. R.) ; Com. Dig., " Biens " (H.).

PROPERTY — ITS RIGHTS AND LIABILITIES. 404

are blown down by the wind, the lessor shall have them, for they
are part of his inheritance, and not the tenant for life or years ;
but, if the}7 be dotards, without any timber in them, the tenant for
life or years shall have them.1

So, where timber is severed by a trespasser, and by wrong, it
belongs to him who has the first vested estate of inheritance,
whether in fee or in tail, and he may bring trover for it.2 And if
there are intermediate contingent estates of inheritance, and the
timber is cut down by combination between the tenant for life and
the person who has the next vested estate of inheritance, or, if the
tenant for life himself has such an estate, and fells timber, in these
cases the Court of Chancery will order it to be preserved for him
who has the first contingent estate of inheritance under the settle-
ment.3

On the other hand, where trees not fit for timber are cut down
by the lessor, the property in such trees vests in the tenant ; for
the lessor would have no right to them if severed by the act of
God, and, therefore, can have no *right to them where r*4Q5i
they have been severed by his own wrongful act ; and the
same rule holds where they are severed by a stranger.4

A tenant, who is answerable for waste only, may cut down trees
for the purpose of reparation, without committing waste, either
where the damage has accrued, during the time of his being in pos-
session, in the ordinary course of decay, or where the premises were
ruinous at the time he entered ; if, however, the decay happened
by his default, in this case to cut down trees, in order to do the
repair, would be waste ;5 and, at all events, the tenant can only
justify felling such trees as are fit for the purposes of repair.6 It
is, moreover, a general rule, that waste can only be committed of
the thing demised : and, therefore, if trees are excepted out of the
demise, no waste can be committed of them.7

1 Herlakenden's Case, 4 Rep. 62, 3d Resolution ; Countess of Cumberland's
Case, Moore 813.

2 Woodf., L. & T., 9th ed., 513 ; Ward v. Andrews, 2 Chit. R. 636.

3 Bewick v. Wintfield, 3 P. Wms. 268.

* Channon v. Patch, 5 B. & C. 897, 902 (11 E. C. L. R.) ; Ward v. Andrews,
2 Chit. R. 636.
6 Woodf., L. & T., 9th ed., 514.

6 Simmons v. Norton, 7 Bing. 640 (20 E. C. L. R.).

7 Goodright v. Vivian, 8 East 190 ; Rolls v. Rock, cited, 2 Selw. N. P. 13th
ed , 1244.

405 broom's legal maxims.

A tenant "without impeachment of waste" is entitled to cut down
timber, which he could not otherwise do ; but this clause does not
extend to allow destructive or malicious waste, such as cutting down
timber which serves for the shelter or ornament of the estate.1 A
tenant for life without impeachment of waste has as full power to
cut down trees for his own use as if he had an estate of inheritance,
and is equally entitled to the timber if severed by others, so that
an action of trover for such timber will not lie against him at suit
of a tenant in tail expectant on the termination of a life estate.2

P4061 "^ut' ^ ^e tenant *f°r l^e cut timber so as not to leave
enough for repairs, or, if he cut down trees planted for
ornament or shelter to the mansion-house, or saplings not fit to be
felled for timber, a court of equity will restrain him by injunction.3
And where a tenant for life without impeachment of waste pulled
down a mansion-house and rebuilt it in a more eligible situation, an
act which was not complained of by the remainderman, an injunc-
tion was granted to restrain the tenant for life from destroying
timber which had formed an ornament and shelter to the original
mansion.4

Lastly, it is an inseparable incident to an estate tail, that the
tenant shall not be punished for committing waste by felling tim-
ber ; but this power must be exercised, if at all, during the life of
the tenant in tail; for, at the instant of his death, it ceases. If,
therefore, tenant in tail sells trees growing on the land, the vendee
must cut them down during the life of the tenant in tail; for other-
wise they will descend to the heir as part of the inheritance.5 Ten-
ant in tail, after a possibility of issue extinct, is not liable for
waste,6 though equity would, in this case, interfere to restrain ex-
travagant and malicious devastation.7

2. The next exception to the general rule, that whatever is
planted or annexed to the soil or freehold passes with it, occurs in

1 Packington's Case, 3 Atk. 215. 2 Pyne v. Dor, 1 T. R. 55.

3 Woodf., L. & T., 9th ed., 963 ; Drewry on Injunct. 144.
* Morris v. Morris, 16 L. J. Chanc. 201. See Duke of Leeds v. Earl
Amherst, Id. 5; s. c, 2 Phill. 117.
6 Woodf., L. &T., 9th ed., 514.

6 Williams v. Williams, 15 Ves. jun. 427 ; 2 Com. by Broom & Hadley 244.

7 2 Bla. Com., 16th ed., 283, n. (10).

PROPERTY — ITS RIGHTS AND LIABILITIES. 406 M

the case of emblements, which term *comprises not only r*407i
corn sown, but roots planted, and other annual artificial
profits of the land ;l and these, in certain cases, are distinct from
the realty, and subject to many of the incidents attending personal
property.

The rule upon this subject at common law, and irrespectively of
a recent statute hereinafter noticed, as already stated,2 is, that those
only are entitled to emblements who have an uncertain estate or in-
terest in land, which is determined by the act of God, or of the law,
between the period of sowing and the severance of the crop.3
Where, however, the tenancy is determined by the tenant's own
act, as by forfeiture for waste committed, or by the marriage of a
feme copyholder or a tenant durante viduitate, or in other similar
cases, the tenant is not entitled to emblements; for the principle on
which the law gives emblements is, that the tenant may be en-
couraged to cultivate by being sure of receiving the fruit of his
labor, notwithstanding the determination of his estate by some un-
foreseen and unavoidable event.4 By this rule, however, the tenant
is not entitled to all the fruits of his labor, or such right might be
extended to things of a more permanent nature, such as trees, or to
more crops than one, since the cultivator very often looks for a com-
pensation for his capital and labor in the produce of successive
years ; but the principle is limited to this extent, that he is entitled
to one crop of that species only which ordinarily repays the labor
by which it is produced within the year in which that labor is
bestowed, though the crop may, in extraordinary seasons, be delayed
beyond that period.5

*If, then, a tenant for life, or pur autre vie, sows the r*4ncn
land, and dies before harvest, his personal representatives
shall have the emblements or profits of the crop ; and if the tenant
for life sows the land, and afterwards grants over his estate, and
the grantee dies before the corn is severed, it shall go to the tenant

1 Com. Dig., "Biens" (G. 1). s Ante, p. 239.

3 Co. Litt. 55 a. * Com. Dig., " Biens" (G. 2).

6 Judg., Graves v. Weld, 5 B. & Ad. 117, 118 (27 E. C. L. R.) ; citing Kings-
bury v. Collins, 4 Bing. 202 (13 E. C. L. R.). In Latham v. Atwood, Cro.
Car. 515, hops growing from ancient roots were held to be like emblements,
because they are "such things as grow by the manurance and industry of the
owner."

408 broom's legal maxims.

for life, and not to the grantee's executor ; and, if a man sows land,
and lets it for life, and the lessee for life dies before the corn is
severed, the reversioner, and not the lessee's executor, shall have
the emblements, although, if the lessee had sown the land himself,
it would have been otherwise.1

Further, the under-tenants or lessees of tenant for life will be
entitled to emblements in cases where tenant for life shall not have
them, viz., where the title estate determines by the act of the last-
mentioned party ; as, in the case of a woman who holds durante
viduitate, her taking husband is her own act, and therefore deprives
her of the emblements : but if she leases her estate to an under-
tenant, who sows the land, and she then marries, this act shall not
deprive the tenant of his emblements; for he is a stranger and
could not prevent her.2 All these cases evidently involve the appli-
cation of the general principle above stated.

The rule as to emblements likewise applies where a life estate is
determined by the act of law ; therefore, if a lease be made to hus-
band and wife during coverture, which gives them a determinable
estate for life, and the husband sows the land, and afterwards the
r*409"l Part'es are *divorced « vinculo matrimonii, the husband
shall have the emblements ; for the sentence of divorce
is the act of law, and actus legis nemini facit injuriam.3

So, the parochial clergy are tenants for their own lives, and the
advantages of emblements are expressly given to them by stat. 28
Hen. 8, c. 11, s. 6, together with a power to enable the parson to
dispose of the corn by will; but if the estate is determined by the
act of the party himself, as by resigning his living, according to
the principle above stated, he will not be entitled to emblements.
The lessee of the glebe of a parson who resigns is, however, in a
different situation; for, his tenancy being determined by the act of
another, he shall have the emblements.4

A tenant for years, or from year to year, is not entitled to em-

1 Arg. Knevett v. Pool, Cro. Eliz. 464 ; Woodf., L. & T., 9th ed., 588.

2 Co. Litt. 55 b.

3 Oland's Case, 5 Rep. 116; 1 Roll. Abr. 726, "Emblements," (A.). But
in this case the marriage was void ab initio — causa prcecontr actus ; and there-
fore the supposed husband never had any estate: see Davis v. Eyton, 7 Bing.
159, 160 (15 E. C. L. R.).

* Bulwer v. Bulwer, 2 B. & Aid. 470, 472; Woodf. L. & T., 9th ed., 588.

PROPERTY — ITS RIGHTS AND LIABILITIES. 409

blements where the duration of the tenancy depends upon a cer-
tainty; as, if tenant for years holds for a term of ten years from
Midsummer, and, in the last year, sows a crop of corn which is not
ripe and cut before Midsummer, at the end of the term his land-
lord shall have it; for the tenant knew the expiration of his term,
and, therefore, it was his own folly to sow that of which he could
never reap the profits.1 But where the tenancy for years, or from
year to year, depends upon an uncertainty, as upon the death of
the lessor being himself only tenant for life, or being a husband
seised in right of his wife, or if the term of years be determinable
upon a life or lives, in *these and similar cases, the estate
not being certainly to expire for a time foreknown, but L J
merely by the act of God, the tenant, or his representatives, shall
have the emblements in the same manner as a tenant for life would
be entitled to them;2 and, if the lessee of tenant for life be dis-
seised, and the lessee of the disseisor sow, and then the tenant for
life dies, and the remainderman enters, the latter shall not have
the corn, but the lessee of the tenant for life.3

Where, however, a tenant for years, or from year to year,* him-
self puts an end to the tenancy, as if he does anything amounting
to a forfeiture, the landlord shall have the emblements ;4 and it is a
general rule that he shall take them when he enters for a condition
broken, because he enters by title paramount, and is in as of his
first estate.5 Where a lease was granted on condition, that, if the
lessee contracted a debt on which he should be sued to judgment,
followed by execution, the lessor should re-enter as of his former
estate; it was held that the lessor, having accordingly re-entered
after a judgment and execution, was entitled to the emblements.6

Where a tenant of any farm or lands, holds the same at a rack,
rent, it is now provided by stat. 14 & 15 Vict. c. 25, s. 1, that in-
stead of claiming emblements he u shall continue to hold and occupy

1 But the lessee would be entitled to emblements, if there was a special
covenant to that effect: Co. Litt. 55 a, and Mr. Hargrave's note (5).

2 Woodf. L. & T ., 9*h ed., 588.

3 Knevett v. Pool, Cro. Eliz. 463.

4 Co. Litt. 55 b.

•Per Bosanquet, J., 7 Bing. 160 (20 E. C. L. R.) ; Com. Dig., " Biens,"
(G. 2) ; Co. Litt. 55 b.
6 Davis v. Eyton, 7 Bing. 154 (20 E. C. L. R.).

21

410 broom's legal maxims.

such farm or lands until the expiration of the then current year of
his tenancy, and shall then quit, upon the terms of his lease or
holding, in the same manner as if such lease or tenancy were then
r*411~l determined Dy effluxion of time or other lawful means

during the continuance of his landlord's estate;" and the
section further provides for an apportionment of the rent as between
the tenant and the succeeding landlord or owner. The above Act
applies to any tenancy in respect of which there is a substantial
claim to emblements.1

It has been mentioned that emblements are subject to many of
the incidents attending personal property. Thus, by stat. 11 Geo.
2, c. 19, they may be distrained for rent,2 they are forfeitable by
outlawry in a personal action, they were devisable by testament
before the statute of wills, and at the death of the owner they vest
in his executors and not in his heir.3 So, where tenant in fee or
in tail dies after the corn has been sown, but before severance, it
shall go to his personal representatives and not to the heir.4 If,
however, tenant in fee sows land, and then devises the land by will
and dies before severance, the devisee shall have the corn, and
not the devisor's executors ;5 and although it is not easy to ac-
count for this distinction, which gives corn growing to the devisee,
but denies it to the heir,6 it is clear law that the growing crops
pass to the devisee of the land unless they be expressly bequeathed
by the will to some one else.7 The remainderman for life shall
r*4.l9"l a^so nave *tm3 emblements sown by the devisor in fee, in

preference to the executor of the tenant for life;8 and the
legatee of goods, stock, and movables, is entitled to growing corn
in preference both to the devisee of the land and the executor.9

1 Haines v. Welch, L. R. 4 C. P. 91.

See also as to the operation of the above statute, Lord Stradbroke v. Mul-
cahy, 2 Ir. 0. L. Rep. N. S. 406.

2 See also stat. 56 Geo. 3, c. 50; Hutt v. Morrell, 11 Q. B. 425 (63 E. C.
L. R.).

3 2 Com. by Broom & Hadley 282.

4 Com. Dig., " Biens," (G. 2) ; Co. Litt. 55 b, note (2), by Mr. Hargrave.

6 Anon., Cro. Eliz. 61 ; Co. Litt. 55 b, n. (2) ; Spencer's Case, Winch. 51.
• See Co. Litt. 55 b, n. (2) ; Gilb. Ev. 250.

7 Cooper v. Woolfitt, 2 H. & N. 122, 127; citing Shepp. Touch, (ed. by
Preston) 472.

8 Toll. Exors. 157.

9 Cox v. Godsalve, 6 East 604, note ; West v. Moore, 8 East 339.

PROPERTY — ITS RIGHTS AND LIABILITIES. 412

In the case of strict tenancy at will, if the tenant sows his land,
and the landlord, before the corn is ripe, or before it is reaped,
puts him out, yet the tenant shall have the emblements, since he
could not possibly know when his landlord would determine his
will, and therefore could make no provision against it; but it is
otherwise when the tenant himself determines the will, for in this
case the landlord shall have the profits of the land.1

Tenants under execution are entitled to emblements, when, by
some sudden and casual profit, arising between seed-time and har-
vest, the tenancy is put an end to by the judgment being satisfied.2
Again, if A. acknowledge a statute or recognisance, and after-
wards sow the land, and the conusee extend the land, the latter
shall have the emblements;3 and where judgment was given against
a person, and he then sowed the land and brought a writ of error
to reverse the judgment, but it was affirmed, it was held, that the
recoveror should have the corn.4

3. An away-going crop may be defined to be the crop sown
during the last year of tenancy, but not ripe until *after r*A-i o-i
its expiration. The right to this is usually vested in the
out-going tenant, either by the express terms of the lease or con.
tract, or by the usage or custom of the country ; but, in the absence
of any contract or custom, and provided the law of emblements
does not apply, the landlord is entitled to crops unsevered at the
determination of the tenancy, as being a portion of the realty, and
by virtue of that general maxim the exceptions to which we are
now considering.

The common law, it has been observed, does so little to prescribe
the relative duties of landlord and tenant, that it is by no means
surprising the Courts should have been favorably inclined to the
introduction of those regulations in the mode of cultivation which
custom and usage have established in each district to be the most
beneficial to all parties.5 The rule, therefore, is, that evidence of
custom is receivable, although there be a written instrument of de-
mise, provided the incident which it is sought to import by such

1 Litt. s. 68, with the commentary thereon; Co. Litt. 55.

2 Woodf. L. & T., 9th ed., 589. ' s 2 Leon. R. 54.
* Wicks v. Jordan, 2 Bulstr. 213.

6 Judgm., Hutton v. Warren, 1 M. & W. 4GG.

413- broom's legal maxims.

evidence into the contract is consistent with the terms of such con-
tract ; but evidence of custom is inadmissible, if inconsistent with
the express or implied terms of the instrument ; and this rule ap-
plies to tenancies as well by parol agreement as by deed or written
contract of demise.1

In Wigglesworth v. Dallison,3 which is a leading case on this
subject, the tenant was allowed an away-going crop, although there
r*4.14.1 was a f°rmal lease under seal. * There the lease was en-
tirely silent on the subject of such a right; and Lord
Mansfield said, that "the custom did not alter or contradict the
lease, but only added something to it."

The same point subsequently came under the consideration of
the Court of King's Bench in the case of Senior v. Armytage,3
which was an action by a tenant against his landlord for compen-
sation for seed and labor under the denomination of tenant right.
Mr. Justice Bayley, on its appearing that there was a written
agreement between the parties, nonsuited the plaintiff; but the
Court afterwards set aside the nonsuit, and held, that though there
was a written contract between landlord and tenant, the custom of
the country would still be binding, if not inconsistent with the terms
of such written contract, and that, not only all common law obli-
gations, but those imposed by custom, were in full force where the
contract did not vary them ; and the Court seems to have held, that
the custom operated, unless it could be collected from the instru-
ment, either expressly or impliedly, that the parties did not mean
to be governed by it. On the second trial, the Lord Chief Baron
Thompson held, that the custom prevailed, although the written
instrument contained an express stipulation, that all the manure
made on the farm should be spent on it, or left at the end of the
tenancy, without any compensation being paid ; such a stipulation
certainly not excluding by implication the tenant's right to receive
a compensation for seed and labor.4

1 Wigglesworth v. Dallison, 1 Dougl. 201 : Faviell v. Gaskoin, 7 Exch. 273 ;
Muncey v. Dennis, 1 H. & N. 216; Clark,e v. Roystone, 13 M. & W. 752.

2 1 Dougl. 201; affirmed in error, Id. 207, n. (8). See Beavan v. Delahay,
1 H. Bla. 5; recognised Griffiths v. Puleston, 13 M. & W. 358, 360 ; Knight v.
Bennett, 3 Bing. 361 ; (11 E. C. L. R.) ; White v. Sayer, Palm. R. 211.

3 Holt N. P. C. 197 (3 E. C. L. R.).

4 In Holding v. Pigott, 7 Bing. 465 (20 E. C. L. R.), it is observed, that the
rights of landlord and tenant may be governed by the terms of the agree-

PROPERTY — ITS RIGHTS AND LIABILITIES. 415

*The next reported case as to the admissibility of evi- p* . , r-i
deuce of custom respecting the right to an away-going
crop, is Webb v. Plummer,1 in which there was a lease of down
lands, with a covenant to spend all the produce on the premises,
and to fold a flock of sheep upon the usual part of the farm, and
also, in the last year of the term, to carry out the manure on parts
of the fallowed farm pointed out by the lessor, the lessor paying
for fallowing land and carrying out the dung, but nothing for the
dung itself, and paying for grass on the ground and threshing the
corn. The claim was for a customary allowance for foldage (a
mode of manuring the ground), but the Court held, that, as there
was an express provision for some payment, on quitting, for the
things covenanted to be done, and an omission of foldage, the
customary obligation to pay for the latter was excluded, the lan-
guage in the lease being equivalent to a stipulation that the lessor
should pay for the things mentioned and no more.

The substance of the preceding remarks is extracted from the
judgment delivered in the case of Hutton v. Warren,2 where it was
held that a custom, by which the tenant, cultivating according to
the course of good husbandry, was entitled on quitting to receive
from the landlord or incoming tenant a reasonable allowance for
seeds and labor bestowed on the arable land in the last year of the
tenancy, and was bound to leave the manure for the landlord, if he
would purchase it, was not excluded by a stipulation in the lease to
consume three-fourths of the hay and straw on the farm, and spread
the manure *arising therefrom, and leave such of it as r*4.ifn
should not be so spread on the land for the use of the
landlord on receiving a reasonable price for it.

Where a tenant continues to hold over after the expiration of his
lease, without coming to any fresh agreement with his landlord, he
must be taken to hold generally under the terms of the lease,3 on
which, therefore, the admissibility of evidence of custom will depend.4

ment during the tenancy, and by the custom immediately afterwards. Hold-
ing v. Pigott was followed in Muncey v. Dennis, 1 H. & N. 216, 222.

1 2 B. & Aid. 750.

2 1 M. & W. 466. Proof of the custom lies on the outgoing tenant: Calde-
cott v. Smythies, 7 C. & P. 808 (32 E. C. L. R.).

3 See further as to this, Hyatt v. Griffiths, 17 Q. B. 505 (79 E. C. L. R.) ;
Thomas v. Packer, 1 II. & N. 669.

^oraston v. Green, 16 East 71; Roberts v. Barker, 1 Cr. & M. 808;
Griffiths v. Puleston, 13 M. & W. 358. See Kimpton v. Eve, 3 Ves. & B. 349.

416 broom's legal maxims.

The principle with respect to the right to take an away-going
crop, applies equally to the case of a tenancy from year to year as
to a lease for a longer term ;l such custom, it has been observed, is
just, for he who sows ought to reap, and it is for the benefit and
encouragement of agriculture. It is, indeed, against the general
rule of law concerning emblements, which are not allowed to tenants
who know when their term is to cease, because it is held to be their
fault or folly to have sown when they knew their interest would
expire before they could reap. But the custom of a particular
place may rectify what otherwise would be imprudence or folly.2
It may be observed, too, that the question as to away-going crops
under a custom is quite a different matter from emblements, which
are by the common law.3

r*4171 *^* "^ie doctrine as to fixtures is peculiarly illustrative
of the legal maxim under consideration; for the general
rule, as laid down in the old books, is. that u whenever a tenant
has affixed anything to the demised premises during his term, he
can never again sever it without the consent of his landlord.''4
"The old rule" upon this subject, observes Martin, B.,5 "laid down
in the old books is, that if the tenant or the occupier of a house
or land annex anything to the freehold, neither he nor his repre-
sentatives can afterwards take it away, the maxim being Quicquid
plantatur solo, solo cedit. But as society progressed, and tenants
for lives or for terms of years of houses, for the more convenient
or luxurious occupation of them, or for the purposes of trade,
affixed valuable and expensive articles to the freehold, the injustice
of denying the tenant the right to remove them at his pleasure, and
deeming such things practically forfeited to the owner of the fee
simple by the mere act of annexation, became apparent to all; and

1 Onslow v. , 16 Ves. Jan. 173. See Thorpe v. Eyre, 1 A. & E. 926

(28 E. C. L. R.), where the custom was held not to be available in the case
of a tenancy which was determined by an award. Ex parte Mandrell, 2
Mad. 315.

2 Judgm., Wigglesworth v. Dallison, 1 Dougl. 201 ; Dalby v. Hirst, 1 B. &
B. 224 (5 E. C. L. R.).

8 Per Taunton, J., 1 A. & E. 933 (28 E. C. L. R.) ; citing Com. Dig.,
"Biens" (G. 2).

4 Amos & Fer., on Fixtures, 2d ed., 19.

5 10 Exch. 507, 508, citing Minshall v. Lloyd, 2 M. & W. 450. See also per
Wood, V.-C, Mather v. Fraser, 2 K. & J. 536.

PROPERTY — ITS RIGHTS AND LIABILITIES. 417

there long ago sprung up a right, sanctioned and supported both by
the Courts of law and equity, in the temporary owner or occupier
of real property, or his representative, to disannex and remove
certain articles, though annexed by him to the freehold, and these
articles have been denominated fixtures."

Questions respecting the right to what are ordinarily called fix-
tures principally arise between three classes of persons; 1st,
between heir and executor or administrator of tenant in fee; 2dly,
between the personal representatives of tenant for life or in tail and
*the remainderman or reversioner; 3dly, between landlord r*.±iQ-|
and tenant. In the first of these cases, the general rule
obtains with the most rigor in favor of the inheritance, and against
the right to disannex therefrom, and to consider as a personal chat-
tel anything which has been affixed thereto;1 in the second case, the
right to fixtures is considered more favorably for the personal rep-
resentatives than in the preceding ; and, in the last case, the greatest
latitude and indulgence have always been allowed in favor of the
tenant;2 — so that decisions, establishing the right of the personal
representatives to fixtures in the first and second of the above cases,
will apply, a fortiori, to the third.

It is here necessary to remark, that the term "fixtures" is often
used indiscriminately in reference to those articles which are not by
law removable when once attached to the freehold, as well as to those
which are severable therefrom.3 But, in its correct sense, the word

1 Per Lord Ellenborough, C. J., Elwes v. Maw, 3 East 51 ; per Abbott, C.
J., Colegrave v. Dias Santos, 2 B. & C. 78 (9 E. C. L. R.).

2 Ibid.

8 Per Parke, B., Minshall v. Lloyd, 2 M. & W. 459 ; Judgm., L. R. 3 Ex.
260.

" There is no doubt that sometimes things annexed to land remain chattels as
much after they have been annexed as they were before. The case of pictures
hung on a wall for the purpose of being more conveniently seen, may be men-
tioned by way of illustration. On the other hand things may be made so
completely a part of the land as being essential to its convenient use, that
even a tenant could not remove them. An example of this class of chattel
may be found in doors or windows. Lastly, things may be annexed to land
for the purposes of trade, or of domestic convenience or ornament, in so per-
manent a manner as really to form a part of the land, and yet the tenant who
has erected them is entitled to remove them during his term, or it may be
within a reasonable time after its expiration." Judgm., L. R. 4 Ex. 329 ;

419 broom's legal maxims.

r*4191 "fixtures" includes such things only of a personal nature
as have been annexed to the realty, and which may be
afterwards severed or removed by the party who united them, or his
personal representatives, against the will of the owner of the free-
hold.1 The word " fixtures " has been described as " very modern,"
and is generally understood to comprehend "any article which a
tenant has a power of removing."2 The precise signification of this
word, when used in an indenture of demise, may have to be deter-
mined by reference to the context.3

In connection with the law of distress, the true meaning of the
word "fixtures " often needs consideration, things fixed to the free-
hold not being at common law distrainable.4 In regard to the ques-
tion, whether certain machines were to be deemed parcel of the free-
hold or not, it has been observed that it was really one of fact, depend-
ing on the particular circumstances of the case, and principally on
two considerations ; 1st, the mode and extent of annexation to the
soil or fabric of the house, whether the machines could easily be re-
moved integre, salve, et commode, or not, without injury thereto or
to the fabric of the building ;5 2dly, on the object and purpose
r*4<?fn *0^ tne aniiexation, whether it was for the permanent and
substantial improvement of the dwelling, in the language of
the Civil Law perpetui us'tis eausd,6 or in that of the Year Book,7

Longbottom v. Berry, L. R. 5 Q. B. 123, 139 ; per Blackburn, J., Reg. v. Lee,
L. R. 1 Q. B. 253.

1 Judg., Hallen v. Runder, 1 Cr., M. & R. 276 ; adopted, per Martin, B., 10
Exch. 508. See also the word " fixtures," defined per Lord Cranworfch. C,
Ex parte Barclay, 5 De G., M. & G. 410 (where the leading cases at common
law concerning fixtures are reviewed) ; London Loan, &c, Co. v. Drake, 6 C.

B. N. S. 798, 808.

2 Judgm., Wiltshear v. Cottrell, 1 E. & B. 690 (72 E. C. L. R.) ; per Parke,
B., Sheen v. Rickie, 5 M. & W. 182 ; per Martin, B., 10 Exch. 507. See Hors-
fall v. Hey, 2 Exch. 778.

3 Bishop v. Elliott, 11 Exch. 113 ; s. c, 10 Id. 496. See Burt v. Haslett, 18

C. B. 162 (86 E. C. L. R.) ; s. c, Id. 893.

4 The law upon this subject is stated in the Note to Simpson v. Hartopp, 1
Smith, L. C, 6th ed., 390; Swire v. Leach, 18 C. B. N. S. 479 (114 E. C. L.
R.)

6 If the injury be very trifling, the law will not regard it, in accordance
with the maxim De minimis non curat lex (ante, p. 142) ; judg., Martin v.
Roe, 7 E. & B. 244 (90 E. C. L. R.).

• See Mackeld. Civ. L. 152.

PROPERTY ITS RIGHTS AND LIABILITIES. 420

pour un profit del inheritance, or merely for a temporary purpose, or
the more complete enjoyment and use of it as a chattel.1

Where the article annexed to the land is irremovable, it is viewed
in law as part of the freehold, and is subject to the rules and inci-
dents of real property.2

With the above preliminary remarks we shall proceed very
briefly to consider the three classes of cases specified at p. 417, viz.,
between heir and the personal representatives of tenant in fee;
— between the personal representatives of tenant for life or in tail
and the remainderman or reversioner ; — between landlord and
tenant ; noticing also under these heads the right to fixtures as
between some other parties.

In the class of cases arising between heir and executor, the rule
has been thus stated: that whatever is* strongly affixed to the free-
hold or inheritance, and cannot be severed thence without violence
or damage, quod ex cedibus non facile revellitur, is become a member
of the inheritance, and shall, therefore, pass to the heir ;3 and, in
the first place, it must be observed, that a chattel *does not r^o-M
lose its personal nature unless fixed in or to the ground, or
in or to some foundation which in itself forms part of the freehold.
It is not sufficient that the article in question merely rests upon the
soil, or upon such foundation ;4 unless there be annexation, no dif-
ficulty can under any circumstances occur. It is frequently, how-
ever, a matter of doubt, whether the annexation can be considered as
sufficient ; and in such cases the best test appears to be whether the
removal can be effected without substantial injury to the freehold.5

1 Judgm., Hellawell v. Eastwood, 6 Exch. 312, followed in Waterfall v.
Penistone, 6 E. & B. 876, 889, 891 (88 E. C. L. R.) ; and Reg. v. Lee, L. R. 1
Q. B. 254, and distinguished in Climie v. Wood, L. R. 3 Ex. 257, 4 Id. 328,
and Longbottom v. Berry, L. R. 5 Q. B. 123, where various cases concerning
fixtures are collected.

2 Per Parke, B., Minshall v. Lloyd, 2 M. & W. 459; recognised, Mackintosh
v. Trotter, 3 M. & W. 186 ; cited in Dumergue v. Rumsey, 2 H. & C. 777, 790 ;
judgm., Wiltshear v. Cottrell. 1 E. & B. 674 (72 E. C. L. R.).

3 See Shep. Touch. 469, 470; Com. Dig., " Biens" (B).

4 Wiltshear v. Cottrell, 1 E. & B. 674 (72 E. C. L. R.) ; Huntley v. Russell,
13 Q. B. 572 (66 E. C. L. R.) ; Hutchinson v. Kay, 23 Beav. 413; Mather v.
Frazer, 2 K. & J. 536 ; R. v. Inhabs. of Otley, 1 B. & Ad. 161, 165 (20 E. C.
L. R.). See also Wood v. Hewett, 8 Q. B. 913 (55 E. C. L. R.) ; Lancaster v.
Eve, 5 C. B. N. S. 717 (94 E. C. L. R.).

6 Avery v. Cheslyn, 3 A. & E. 75 (30 E. C. L. R.) ; Judgm., Martin v. Roe, 7

421 broom's legal maxims.

The strictness of the rule under consideration was, it may be
remarked, very early relaxed, as between landlord and tenant, in
favor of such fixtures as are partly or wholly essential to trade or
manufacture ;l and the same relaxation has, in several modern
cases, been extended to decisions of that class which we are now
considering, viz., those between heir and executor. In the case of
Elwes v. Maw, which is justly regarded as a leading authority on
the subject of fixtures, Lord Ellenborough observed,2 that, in deter-
mining whether a particular fixed instrument, machine, or even
building, should be considered as removable by the executor as
between him and the heir, the Court in three principal cases3 on the
r*49o-i subject may be considered as *having decided mainly on
this ground, that where the fixed instrument, engine, or
utensil (and the building covering the same falls within the same
principle), was an accessory to a matter of a personal nature, it
should be itself considered as personalty. In two of these cases,4
a fire-engine was considered as an accessory to the carrying on the
trade of getting and vending coals — a matter of a personal nature.
In Lord Dudley v. Lord Ward, Lord Hardwicke says, " A colliery
is not only an enjoyment of the estate, but in a part carrying on a
trade ;" and in Lawton v. Lawton he says, " One reason that
weighs with me is its being a mixed case, between enjoying the
profits of the lands and carrying on a species of trade ; and con-
sidering it in this light, it comes very near the instances in brew-
houses, &c, of furnaces and coppers." Upon the same principle
Lord C. B. Comyns may be considered as having decided the case
of the cider-mill,5 i. e., as a mixed case, betwreen enjoying the pro-

E. & B. 244 (90 E. C. L. R.), where the right to remove ornamental fixtures
as between the executors of an incumbent and his successor is considered.

1 Judgm., 3 East 51, 52; per Story, J., delivering the judgment in Van
Ness v. Pacard, 2 Peters (U. S.) R. 143, 145.

2 3 East 38.

3 Viz., Lawton v. Lawton, 3 Atk. 13, which was the case of a lire engine to
work a colliery erected by tenant for life ; Lord Dudley v. Lord Ward, Amb.
113, which was also the case of a fire-engine ; and Lawton v. Salmon, 1 H.
Bla. 259, n., which was trover for salt pans brought by the executor against
the tenant of the heir-at-law.

* Lawton v. Lawton, 3 Atk. 13 ; Lord Dudley v. Lord Word, Amb. 113.
6 Cited in Lawton v. Lawton, 3 Atk. 13 ; but see the observations respecting
this case by Lord Hardwicke in Lawton v. Salmon, 1 H. Bla. 259, n. ; Lord Dud-

PROPERTY — ITS RIGHTS AND LIABILITIES. 422

fits of the land and carrying on a species of trade, and as consider-
ing the cider-mill as properly an accessory to the trade of making
cider. In the case of the salt-pans,1 Lord Mansfield does not seem
to have considered *them as accessory to the carrying on r*49o-i
a trade, but as merely the means of enjoying the benefit of L J
the inheritance. Upon this principle he considered them as belong-
ing to the heir as parcel of the inheritance, for the enjoyment of
which they were made, and not as belonging to the executor as the
means or instrument of carrying on a trade.2

In a modern case before the House of Lords, it appeared that
the absolute owner of land, for the purpose of better using and
enjoying that land, had erected upon and affixed to the freehold
certain machinery. It was held that, in the absence of any dispo-
sition by him of this machinery it would go to the heir as part of
the real estate ; and, further, that if the corpus of the machinery
passed to the heir, all that belonged to such machinery, although
more or less capable of being detached from it, and of being used
in such detached state, must also be considered as belonging to the
heir.3

As between devisee and executor the rule seems, in principle, to
be the same as that already considered, the devisee standing in
place of the heir as regards his right to fixtures ; for, if a freehold
house be devised, fixtures pass ;4 but if the tenant for life or in tail de-
ley v. Lord Ward, Amb. 113 ; and in Ex parte Quincey, 3 Atk. 477, and Bull.
N. P. 34. It seems that no rule of law can be extracted from a case of the par-
ticulars of which so little is known ; see per Lord Cottenham, Fisher v. Dixon,
12 CI. & Fin. 329 ; and see as to the cider-mill case, per Wood, V.-C, Mather
v. Fraser, 2 K. & J. 536, reviewing the prior authorities.

1 Lawton v. Salmon, 1 H. Bla. 259, n.

2 Per Lord Ellenborough, C. J., 3 East 54. See Winn v. Ingelby, 5 B. &
Aid. 625 (7 E. C. L. R.) ; R. v. St. Dunstan, 4 B. & C. 686, 691 (10 E. C. L.
R.) ; Harvey v. Harvey, Stra. 1141.

8 Fisher v. Dixon, 12 CI. & Fin. 312. In this case the exception in favor of
trade was held not applicable; the judgments delivered contain, however,
some remarks as to the limits of this exception, which are well worthy of con-
sideration. See also Mather v. Fraser, 2 K. & J. 536, 545 ; judgm., Climie v.
Wood, L. R. 4 Ex. 330; judgm., Longbottom v. Berry, L. R. 5 Q. B. 136,
which latter cases also show that the decisions establishing a tenant's right
to remove trade fixtures (post, p. 425) " do not apply as between mortgagor
and mortgagee any more than between heir-at-law and executor."

* Per Best, J., Colegrave v. Dias Santos, 2 B. & C. 80 (9 E. C. L. R.).

424 broom's legal maxims.

r*494"l v*se fixtures> *his Revise is void, he having no power to
devise the reality to which they are incident. He may,
however, devise such fixtures as would pass to his executor.1

As between the heir and devisee, it may be considered as a rule
that the latter will be entitled to all articles which are affixed to
the land, whether the annexation in fact took place prior or subse-
quent to the date of the devise, according to the maxim, Quod
adijicatur in ared legatd cedit legato ; and, therefore, by a devise
of a house, all personal chattels which are annexed to the house,
and which are essential to its enjoyment, will pass to the devisee.2

As between vendor and vendee, everything which forms part of
the freehold passes by a sale and conveyance of the freehold itself,
if there be nothing to indicate a contrary intention.3

Thus, in Colegrave v. Dias Santos,4 the owner of a freehold
house, in which there were various fixtures, sold it by auction.
Nothing was said about the fixtures. A conveyance of the house
was executed, and possession given to the purchaser, the fixtures
still remaining in the house. It was held, that they passed by the
conveyance of the freehold ; and that, even if they did not, the ven-
dor, after giving up possession, could not maintain trover for them.
r*49fn ^ne result of various recent decisions5 is that the *old
maxim quicquid plantatur solo, solo cedit applies in all its
integrity to the relation of mortgagor and mortgagee, for a mort-
gage being a security or pledge for a debt, it is not unreasonable if
a fixture be annexed to land at the time of a mortgage, or if the
mortgagor in possession afterward annexes a fixture to it, that the
fixture shall be deemed an additional security for the debt — whether
it be a trade fixture or a fixture of any other kind ; though upon

1 Shep. Touch. 469, 470 ; 4 Rep. 62.

2 Amos & Fer., Fixtures, 2d ed\, 246.

* Colegrave v. Dias Santos, 2 B. & C. 76 (9 E. C. L. R.) ; cited, arg. Id.
610; per Parke, B., Hitchman v. Walton, 4 M. & W. 416; per Patteson, J.,
Hare v. Horton, 5 B. & Ad. 730 (27 E. C. L. R.). See Steward v. Lombe, 1
B. & B. 506, 513 (5 E. C. L. R.) ; Ryall v. Rolle, 1 Atk. 175; Thompson v.
Pettit, 10 Q. B. 101 (59 E C. L. R.) ; Wiltshear v. Cottrell, 1 E. & B. 674 (72
E. C. L. R.).

* 2 B. & C. 76 (9 E. C. L. R.). See Manning v. Bailey, 2 Exch. 45.

5 Collected in Climie w. Wood, L. R. 3 Ex. 257, affirmed L. R. 4 Ex. 328,
with which ace. Longbottom v. Berry, L. R. 5 Q. B. 123. See Tebb v. Hodge,
L. R. 5 C. P. 73.

PROPERTY — ITS RIGHTS AND LIABILITIES. 425

the true construction of a mortgage deed trade fixtures may be
removable by the mortgagor.1 It has accordingly been established
that trade fixtures which have been annexed to the freehold for the
more convenient using of them, and not to improve the inheritance,
and which are capable of being removed without appreciable dam-
age to the freehold, pass under a mortgage of the freehold to the
mortgagee.2

The effect of a mortgage then with regard to fixtures, is,.in brief,
similar to that of a conveyance ;3 and trover will not lie against
either vendee or mortgagee4 in possession for chattels affixed to the
freehold ; but which *might have been removed before pos- r*4.ofr|
session was given under the deed. Where, however, there
was a mortgage of dwelling-houses, foundries, and other premises,
u together with all grates, &c, in and about the said two dwelling-
houses, and the brewhouses thereto belonging," it was held that,
although without these words the fixtures in the foundries would
have passed, yet by them the fixtures intended to pass were confined
to those in the dwelling-houses and brewhouses.5

In case of an absolute sale of premises, where the conveyance is
not general, but contains a stipulation that " the fixtures are to be
taken at a valuation," those things only should in strictness be
valued which would be deemed personal assets as between heir and
executor, and would not pass with the inheritance.6

1 Judgm., L. R. 3 Ex. 260.

2 Climie v. Wood, L. R. 3 Ex. 257, affirmed in error, L. R. 4 Ex. 328 ; Long-
bottom v. Berry, L. R. 5 Q. B. 123 ; Tebb v. Hodge, L. R. 5 C. P. 73, in which
eases the prior decisions are collected.

3 Per Parke, B., 4 M. & W. 416 ; Longstaff v. Meagoe, 2 A. & E. 167 (29 E.
C. L. R.). See Trappes v. Harter, 2 Cr. & M. 153 ; cited Hellawell v. East-
wood, 6 Exch. 313 5 and in Ex parte Barclay, 5 De G., M. & G. 412 ; but said,
per Cresswell, J., to have been overruled (Wilde v. Waters, 16 C. B. 647 (81
E. C. L. R.))- Trappes v. Harter has, however, frequently been recognised as
an authority ; Mather v. Fraser, 2 K. & J. 536. It was cited and distinguished
in Walmsley v. Milne, 7 C. B. N. S. 133-4 (97 E. C. L. R.). See Haley v.
Hammersley, 30 L. J. Chanc. 771 5 Watson v. Lane, 11 Exch. 769.

* 2 B. & C. 76 (10 E. C. L. R.) ; Longstaff v. Meagoe, 2 A. & E. 167 (29 E.
C. L. R.). See Boydell v. M'Michael, 1 Cr., M. & R. 177 ; Ex parte Bentley,
2 M. D. & De G. 591.

8 Hare v. Horton, 5 B. & Aid. 726 (27 E. C. L. R.) (distinguished in Mather
v. Fraser, cited supra, n. 3 ; Haley v. Hammersley, and Walmsley v. Milne,
supra; Metropolitan Counties Assurance Co. v. Brown, 26 Beav. 454.

• Amos & Fer., Fixtures, 2d ed., 221.

426 broom's legal maxims.

With respect to ornamental fixtures, there are some cases in
which the executor has been permitted to remove even these against
the heir.1 But on the whole, as observed by a learned writer, it
would seem that the law is by no means clearly settled respecting
the right of the executor of tenant in fee to fixtures set up for orna-
ment or domestic convenience.2

Secondly, we have already observed,3 that the heir is more
favored in law than the remainderman or reversioner, and, there-
fore, all cases in which an executor or administrator of the tenant
r*497~l ^n ^ee wou^ be entitled to ^fixtures as against the heir,
will apply, a fortiori, to support the claim of the represen-
tatives of tenant for life, or in tail, against the remainderman or
reversioner. The personal representatives, therefore, in the latter
case, seem clearly entitled to fixtures erected for purposes of trade,
as against the party in remainder or reversion.4

In the third class of cases above mentioned, that, viz.,- between
landlord and tenant, the general rule, that whatever has once
been annexed to the freehold becomes a part of it, and cannot after-
wards be removed, except by or with the consent of him who is
entitled to the inheritance,5 must be qualified more largely than in
the preceding classes: thus, the tenant may take away during the
continuance of his term, or at the end of it, although not after he
has quitted possession, such fixtures as he has himself put upon the

1 See Harvey v. Harvey, Stra. 1141 ; Squier v. Mayer, 2 Freem. 240 ; Beck
v. Rebow, 1 P. Wms. 94.

2 1 Williams Executors, 6th ed., 697.

3 Ante, p. 418.

* Lawton v. Lawton, 3 Atk. 13 ; Lord Dudley v. Lord Ward, Amb. 113.

6 Co. Litt. 53 a; per Kindersley, V.-C, Gibson v. Hammersmith R. C, 32
L. J. Chanc. 340 et seq. Trover does not lie for fixtures until after severance ;
Dumergue v. Rumsey, 2 II. & C. 777, 790 ; Minshall v. Lloyd, 2 M. & W. 450 ;
recognised, Mackintosh v. Trotter, 3 Id. 184-186 ; Roffey v. Henderson, 17 Q.
B. 574, 586 (79 E. C. L. R.) ; London Loan, &c, Co. v. Drake, 6 C. B. N. S.
798, 81 1 (95 E. C. L. R.). In Wilde v. Waters, 16 C. B. 651 , 81 E. C. L. R.),
Maule, J., delivering the judgment of the Court, observes, "Generally speak-
ing, no doubt, fixtures are part of the freehold, and are not such goods and
chattels as can be made the subject of an action of trover. But there are
various exceptions to this rule, in respect of things which are set up for orna-
ment or for the purpose of trade, or for other particular purposes. As to
these, there are many distinctions, some of which are nice and intricate."
See also Clarke v. Holford, 2 C. & K. 540 (47 E. C. L. R.).

PROPERTY — ITS RIGHTS AND LIABILITIES. 427

demised premises, either for the purposes of trade, or for the orna-
ment or furniture of his house:1 but here a distinction must be
observed *between erections for the purposes of trade i-jmoq-i
annexed to the freehold, and those which are for purposes
merely agricultural.2 With respect to the former, the exception
engrafted upon the general rule is of almost as high antiquity as
the rule itself, being founded upon principles of public policy, and
originating in a desire to encourage trade and manufactures. With
respect to the latter class, however, it has been expressly decided
that to such cases the general rule must (irrespective of the stat. 14
& 15 Vict. c. 25) be applied.

In the leading case on this subject,3 it was held that a tenant
in agriculture, who erected at his own expense, and for the neces-
sary and convenient occupation of his farm, a beast-house, and car-
penter's shop, &c, which buildings were of brick and mortar, and
tiled, and let into the ground, could not legally remove the same
even during his term, although by so doing he would leave the
premises in the same state as when he entered ; and a distinction was
here taken between annexations to the freehold for the purposes of
trade, and those made for the purposes of agriculture and for better
enjoying the immediate profits of the land. Where, indeed, a super-

1 Such as stoves, grates, ornamental chimney-pieces, wainscots fastened
with screws, coppers, a pump very slightly affixed to the freehold, and various
other articles ; per Erie, J., and Crowder, J., Bishop v. Elliott, 11 Exch. 115 ;
Grimes v. Boweren, 6 Bing. 437 (19 E. C. L. R.) ; and per Tindal, C. J., Id.
439, 440 ; Horn v. Baker, 9 East 215, 238. In Buckland v. Butterfield, 2 B.
& B. 54 (6 E. C. L. R.), which is another important decision on this subject,
it was held, that a conservatory erected on a brick foundation, attached to a
dwelling-house, and communicating with it by windows, and by a flue pass-
ing into the parlor chimney, becomes part of the freehold, and cannot be re-
moved by the tenant or his assignees. See West v. Blakeway, 2 M. & Gr.
729 (40 E. C. L. R.) ; Burt v. Haslett, 18 C. B. 162 (86 E. C. L. R.) ; s. c,
Id. 893.

See also Powell, app., Farmer, resp., 18 C. B. N. S. 168, 178 (114 E. C. L.
R); Powell, app., Boraston, resp. Id. 175.

2 Per Lord Kenyon, C. J., Penton v. Robart, 2 East 90; judgm., Earl of
Mansfield v. Blackburne, 3 Bing. N. C. 438 (32 E. C. L. R.). A nurseryman
may, at the end of his term, remove trees planted for the purpose of sale ;
Amos & Fer., Fixtures, 2d ed., 68.

3 Elwes v. Maw, 3 East 38. See Smith v. Render, 27 L. J. Ex. 83 ; and
cases there cited.

429 broom's legal maxims.

P4291 incumhent *shed is erected as a mere accessory to a personal
' chattel, as an engine, it may, as coming within the defini-
tion of a trade fixture, be removed ; but where it is accessory to the
realty it can in no case be removed.1

Where the tenant of a farm or land, with the consent in writing
of his landlord, erects at his own cost farm-buildings, engines, or
machinery, either for agricultural purposes, or for the purposes of
trade and agriculture, they will now be the property of the tenant,
and removable by him, subject to the provisions of the statute be-
low cited,2 although built in or permanently fixed to the soil, or the
landlord may purchase them at his election.

It has been stated, that the right of removal, where it exists,
should be exercised during the continuance of the term; for, if the
tenant forbears to exercise it within that period, or during such
further period as he holds the premises under a right still to con-
sider himself as tenant, or after the expiration of. the term, but
whilst he remains in possession of the premises — though the precise
state of the law upon this point is somewhat doubtful3 — the tenant
will be presumed to have voluntarily relinquished the claim in favor
of his landlord.4 It is also important to remark, that the legal
right of the tenant to remove fixtures is capable of being either
extended or controlled by the express agreement of the parties; and
l~*4301 *^ie or(^inaiT right of the tenant to disannex tenants' fix-
tures during the term may thus be renounced by him ;5 it is,
in fact, very usual to introduce into a lease a covenant for this pur-
pose, either specifying what fixtures shall be removable by the
tenant, or stipulating that he will, at the end of the term, deliver
up all fixtures annexed during its continuance to the landlord's

1 Whitehead v. Bennett, 27 L. J. Ch. 474.
2 14 & 15 Vict. c. 25, s. 3.

3 Judgm., Leader v. Homewood, 5 C. B. N. S. 553 (94 E. C. L. R.).

4 See per Jervis, C. J., Heap v. Barton, 12 C. B. 280; per Patteson, J.,
Roffey v. Henderson, 17 Q, B. 58G (79 E. C. L. R.) ; per Parke, B., 3 M. &
W. 186; Leader v. Homewood, 5 C. B. ■ N. S. 546 (94 E. C. L. R.) ; per
Williams, J., Stransfeld v. Mayor, &c, of Portsmouth, 4 C. B. N. S. 128 (93
E. C. L. R.) ; and in London Loan, &c, Co. v. Drake, 6 Id. 810 ; Amos & Fer.,
Fixtures 87 ; cited by Lord Tenterden, C. J., Lyde v. Russell, 1 B. & Ad. 395
(20 E. C. L. R.) ; Weeton v. Woodcock, 7 M. & W. 14, 19 ; Lee v. Risdon, 7
Taunt. 188 (2 E. C. L. R.).

6 Dumergue v. Rumsey, 2 H. & C. 777.

PROPERTY — ITS RIGHTS AND LIABILITIES- 430

use.1 Where a lessee mortgaged tenant's fixtures, and afterwards
surrendered his lease to the lessor, who granted a fresh lease to a
third party, the mortgagees were held entitled to enter and sever
the fixtures.2

In an action of trespass for breaking and entering the plaintiff's
apartment, and for taking a certain brass plate from the outer door
of the dwelling-house, the defendant pleaded, first, not guilty; and,
secondly, as to removing the brass plate, that the plaintiff was not
possessed thereof; no evidence was given as to whether it was or
was not a fixture, nor was any question as to this point raised at
the trial. The jury assessed the damages separately, for the break-
ing and entering, and for the removal of the door-plate ; and the
Court held, that, after verdict, it must be assumed that the said
plate was not a fixture, and that the defendant, having treated it as
an independent chattel, and thereby thrown the plaintiff off his
guard, could not, the verdict being against him, turn round and
treat the matter differently;3 for this would *have been rejoin
"blowing hot and cold," and therefore inadmissible, as
opposed to a principle already mentioned.4

It is also worthy of notice, that the right of property in fixtures
may be modified by proof of a special usage prevailing in the par-
ticular neighborhood:5 and it may, also, as in case of landlord and
tenant, be modified by evidence of the intention of the parties ; ex.
gr., a chattel placed by the owner upon the freehold of another, but
severable from it without injury thereto, does not necessarily be-
come part of the freehold, it is matter of evidence whether by
agreement it does not remain the property of the orignal owner.6

1 See Bishop v. Elliott, 11 Exch. 113 ; Stansfield v. Mayor, &c, of Ports-
mouth, 4 C. B. N. S. 120 (93 E. C. L R.) ; Earl of Mansfield v. Blackburne,
3 Bing. N. C. 438 (32 E. C. L. R.) ; Foley v. Addenbrooke, 13 M. & W. 174;
Sleddon v. Cruikshank, 16 M. & W. 71 ; Heap v. Barton, 12 C. B. 274 (74 E.
C. L. R.), citing Penton v. Robart, 2 East 88.

2 London Loan, &c, Co. v. Drake, 6 C. B. N. S. 798 (95 E. C. L. R.).

3 Lane v. Dixon, 3 C. B. 776 (54 E. C. L. R.) ; cited Huddert v. Rigby, L.
R. 5 Q. B. 139.

4 Ante, p. 169.

6 Vin. Abr., " Executors," U. 74. See Davis v. Jones, 2 B. & Aid. 165,
168.

6 Wood v. Hewett, 8 Q. B. 913 (55 E. C. L. R.), followed in Lancaster v.
Eve, 5 C. B. N. S. 717. 722, 727, 728 (94 E. C. L. R.), where Williams, J.,

22

431 broom's legal maxims.

In concluding these remarks concerning fixtures, we may observe
that the uncertainty of the law on this subject results necessarily
from the fact, that each case involving a question as to the right
to fixtures is professedly and necessarily, in a great measure, de-
cided according to its own particular circumstances ; and a perusal
of the preceding pages will sufficiently show that the maxim Quic-
quid plantatur solo, solo cedit is held up by our law only to be de-
parted from on account of the acknowledged ill effects which would
ensue from too strict an application of it.

[*432] *DOMUS SUA CUIQTJE EST TTJTISSIMUM ReFUGIUM.

(5 Kep. 92.)
Every marts house is Ms castle.1

In a leading case which well exemplifies the application of the
above maxim, the facts may be shortly stated thus : — the defendant
and one B. were joint tenants of a house in London. B. acknowl-
edged a recognisance in the nature of a statute staple to the plain-
tiff, and, being possessed of certain goods in the said house, died,
whereupon the house in which the goods remained became vested in
the defendant by survivorship. Plaintiff sued out process of extent
on the statute to the sheriffs of London ; and, on the sheriffs having
returned the conusor dead, he had another writ to extend all the
lands which B. had at the time of acknowledging the statute, or at
any time after, and all the goods which he had at the day of his
death. This writ plaintiff delivered to the sheriffs, and told them
that divers goods belonging to B. at the time of his death were in
the defendant's house ; upon which the sheriffs charged the jury to
make inquiry according to the said writ, and the sheriffs and jury

observes, ;' No doubt the maxim Quicquid plantatur solo, solo cedit is well
established ; the only question is, what is meant by it? It is clear that the
mere putting a chattel into the soil by another cannot alter the ownership of
the chattel. To apply the maxim, there must be such a fixing to the soil as
reasonably to lead to the inference that it was intended to be incorporated
with the soil."

" In connection with what has been said supra, respecting the right to fix-
tures as between landlord and tenant, may be consulted the cases cited ante,
p. 425, which concern mortgagor and mortgagee.

1 Nemo de doma sua extrahi debet, D. 50. 17. 103.

PROPERTY — ITS RIGHTS AND LIABILITIES. 432

came to the house aforesaid, and offered to enter in order to extend
the goods, the outer door of the house being then open ; whereupon
the defendant, prcemissorum non ignarus, and intending to disturb
the execution, shut the door against the sheriffs and jury, whereby
the plaintiff lost the benefit of his writ.1

In the above case, the following points, which, bear upon the
present subject, were resolved, and may be thus shortly stated.

*lst. That the house of every one is his castle, as well r*4.oo-i
for his defence against injury and violence, as for his re-
pose ; and, consequently, although the life of man is a thing pre-
cious and favored in law, yet if thieves come to a man's house to
rob or murder him, and the owner or his servants kill any of the
thieves in defence of himself and his house, this is not felony. So,
if any person attempt to burn or burglariously2 to break and enter
any dwelling-house in the night-time, or attempt to break open a
house in the day time with intent to rob, and be killed in the
attempt, the slayer shall be acquitted and discharged, for the homi-
cide is justifiable.3 And in such cases, not only the owner whose
person or property is thus attacked, but his servants and the
members of his family, or even strangers who are present at the
time, are equally justified in killing the assailant.4

In order, however, that a case may fall within the preceding
rule, the intent to commit such a forcible and atrocious crime as
above mentioned must be clearly manifested by the felon; otherwise
the homicide will amount to manslaughter, at least, if not to
murder.5

2dly. It was resolved in the principal case, that when any house
is recovered by ejectment, the sheriff may break the house, in
order to deliver seisin and possession thereof to the lessor of the

1 Semayne's Case, 5 Hep. 91 ; cited per Tindal, C. J., Hollier v. Laurie, 3
C. B. 339 (54 E. C. L. R.). ■

2 In determining what is a burglarious entry of a dwelling-house, our law
has, in favorem vitce, resorted to many refinements and much nicety of con-
struction. See per Coltman, J., 6 C. B. 10 (60 E. C. L. R.).

3 1 Hale P. C. 481, 488. By stat. 24 & 25 Vict. c. 100, s. 7, no punishment
or forfeiture shall be incurred by any person who shall kill another in his
own defence.

4 1 Hale P. C. 481, 484, et seq.

6 1 Hale P. C. 484 ; R. v. Scully, 1 C. & P. 319 (12 E. C. L. R.).

433^ broom's legal maxims.

plaintiff. The officer may, if necessary, break open doors, in order
r*4-^41 ^° execu^e a wr^ *°f habere facias possessionem, if the
possession be not quietly given up ; or he may take the
posse comitatus with him, if he fear violence;1 and he may remove
all persons, goods, &c, from off the premises before he gives
possession.2 After verdict and judgment in ejectment, it is in
practice usual for the lessor of the plaintiff to point out to the
sheriff the premises recovered, and then the sheriff gives the lessor,
at his own peril, execution of what he demands.3 By the stat. 1 &
2 Vict. c. 74, s. I,4 which was passed in order to facilitate the
recovery of tenements held at a rent not exceeding 201. a year,
the officers acting under the warrant obtained in pursuance of that
Act are expressly authorized to enter by force, if needful, into the
premises of which possession is sought to be recovered, and to give
possession of the same to the landlord or his agent; and a summary
mode of obtaining possession of small tenements is also, in certain
cases, available under the County Court Acts.5

3dly. The third exception to the general rule is, where the exe-
cution is at suit of the Crown, as where a felony or misdemeanor
has been committed, in which case the sheriff may break open the
outer door of the defendant's dwelling-house, having first signified
the cause of his coming and desired admission.6
r*4^1 *But bare suspicion touching the guilt of the party will
not warrant the proceeding to this extremity, though a
felony has been actually committed, unless the officer comes armed
with a warrant from a magistrate grounded on such suspicion.7

1 5 Rep. 91. 2 Upton v. Wells, 1 Leon. R. 145.

3 Ad. Eject, 4th ed., 300, 301. See per Patteson, J., Doe d. Stevens v.
Lord, 6 Dowl. 256, 266.

4 See Delaney v. Fox, 1 C. B. N. S. 166 (87 E. C. L. R.).

5 As to recovering possession of a tenement in the County Court, see
Broom's C. C. Pr., 2d ed., 288, 292.

6 Semayne's Case, 3d resolution; Finch's Law 39. See also Sherwin v.
Swindall, 12 M. & W. 783 ; Launock v. Brown, 2 B. & Aid. 592, which was
a case of arrest for a misdemeanor; Burdett v. Abbot, 14 East 157, 158, where
the plaintiff was arrested under the Speaker's warrant for a breach of privi-
lege ; Foster on Homicide 320. As to the power of arrest under the warrant
of a Secretary of State, see R. v. Wilkes, 2 Wils. 151 ; Entick v. Carrington,
Id. 275 ; s. c, 19 Howell, St. Tr. 1030.

7 Foster on Homicide 320.

PROPERTY — ITS RIGHTS AND LIABILITIES. 435

And a plea justifying the breaking and entering a man's house
without warrant, on suspicion of felony, ought distinctly to show,
not only that there was reason to believe that the suspected person
was there, but also that the defendant entered for the purpose of
apprehending him.1

4thly. In all cases where the outer door of a house is open the
sheriff may enter and do execution, either of the body or goods of
the occupier, at the suit of any subject of the Crown, and the land-
lord may, in such case, likewise, enter to distrain for rent, or may
even open the outer door in the ordinary manner — as by lifting the
latch — to levy the distress,2 or he may, it has been held, for that
purpose enter through an open window.3 But the sheriff cannot,
in order to execute a writ of ca. sa. or *ji. fa. at suit of r*4.Qfri
a private person, break open the outer door of a man's
house even after request made, and refusal to open it.4 " Nothing
is more certain than that in the ordinary cases of the execution of
civil process between subject and subject, no person is warranted in
breaking open the outer door in order to execute such process ; the
law values the private repose and security of every man in his own
house, which it considers as his castle, beyond the civil satisfaction

1 Smith v. Shirley, 3 C. B. 142 (54 E. C. L. R.).

2 Ryan v. Shilcock, 7 Exch. 72.

3 Nixon v. Freeman, 5 II. & N. 652, as to which see per Cockburn, C. J., L.
R. 2 Q. B. 502. Secus if the window be fastened by a hasp, Hancock v.
Austin, 14 C. B. N. S. 634 (108 E. C. L. R.) ; Attack v. Bramwell, 3 B. & S.
520 (113 E. C. L. R.).

" The ground of holding entry through a closed but unfastened door to be
lawful is that access through the door is the usual mode of access, and that
the license from the occupier to any one to enter who has lawful business,
may therefore be implied from his leaving the door unfastened. Entry
through a window is not the usual mode of entry, and, therefore, no such
license can be implied from the window being left unfastened ;" per Lush, J.,
L. R. 2 Q. B. 593.

* Duke of Brunswick v. Slowman, 8 C. B. 317 (65 E. C. L. R.) ; Curlewis v.
Laurie, 12 Q. B. 640 (64 E. C. L. R.). See Percival v. Stamp, 9 Exch. 167.

Where the sheriff's officer put his hand into the debtor's dwelling-house
and touched the debtor, who was inside the house, saying, "You are my pris-
oner," and thereupon broke open the outer door and seized the debtor, the
arrest was held to have been legally effected ; Sandon v. Jervis, E., B. & E.
935 (96 E. C. L. R.) ; discussed and explained in Nash v. Lucas, L. R. 2 Q.
B. 590, 594.

436 broom's legal maxims. .

of a creditor.1 .Nor can the outer door of a house be broken open,
nor an entry be made through a window which is shut but not fast-
ened,2 in order to make a distress, except in the case of goods
fraudulently removed, and under the provisions of the stat. 11 Geo.
2, c. 19 ;3 neither can a landlord break open the outer door of a
stable, though not within the curtilage, to levy an ordinary distress
for rent.4

Where, however, the sheriff has obtained admission to a house,
he may justify subsequently breaking open inner doors, if he finds
that necessary, in order to execute his process.5 Where A., there-
l~*4371 ^ore' ^et a nouse> except one *room, which he reserved for
himself and occupied separately, and, the outer door of
the house being open, a constable broke open the door of the inner
room occupied by A. in order to arrest him ; it was held that tres-
pass would not lie against the constable.6 So, where it appeared
that the front door of the house was in general kept fastened, the
usual entrance being through the back door, and that the sheriff,
having entered by the back door while it was open in the night,
broke open the door of an inner room in which A. B. was with his
family, and there arrested him; the arrest was held to have been
lawful.7 In an action of trespass against a sheriff for breaking and
spoiling a lock, bolt, and staple, affixed to the outer door of plain-
tiff's dwelling-house, the defendant pleaded that, being lawfully in
a room of the dwelling-house occupied by D., as tenant to the
plaintiff, he peaceably entered into the residue of the said house
through the door communicating between the room and the residue,
and took plaintiff's goods in execution under a ft. fa.; and because
the outer door was shut and fastened with the lock, bolt, and staple,
so that defendant could not otherwise take away the goods, and
because neither plaintiff nor any other on his behalf was in the
dwelling-house to whom request could be made,8 defendant did, for

1 Per Lord Ellenborough, C. J., Burdett v. Abbot, 14 East 154.

2 Nash v. Lucas, L. R. 2 Q. B. 590.

3 Williams v. Roberts, 7 Exch. 618. See Thomas v. Watkins, Id. 630.
< Brown v. Glenn, 16 Q. B. 254 (71 E. C. L. R.).

5 Lee v. Gansel, Cowp. 1 ; Ratcliffe v. Burton, 3 B. & P. 223 ; Browning v.
Dann, Cas. temp. Hardw. 167. See Woods v. Durrant, 16 M. & W. 149;
Hutchison v. Birch, 4 Taunt. 619.

6 Williams v. Spence, 5 Johns. (U. S.) R. 352.

7 Hubbard v. Mace, 17 Johns. (U. S.) R. 127.

8 See Ratcliffe v. Burton, 3 B. & P. 223.

PROPERTY — ITS RIGHTS AND LIABILITIES. 437

the purpose aforesaid, open the outer door, and, in so doing, did
break and spoil the lock, &c, doing no unnecessary damage.1 The
Court held that the plea was good, although it was not shown how
the defendant entered into the house, nor who fastened the f:(:1QQn
outer door ; they also thought it sufficiently appeared that •- J
there was no other way of getting out than that adopted ; and that,
in the absence of the plaintiff, the sheriff was excused from making
a demand, and was justified in breaking the lock, &c, as matter of
necessity, in order to get the goods out to execute the writ. In
the previous case of White v. Whitshire,2 it had been held that,
though the sheriff cannot break open a house in order to make exe-
cution under a fi.fa., yet, if the door is open, and the bailiffs enter
and are disturbed in their execution by the parties who are within
the house, he may break into the house and rescue his bailiffs, and
so take execution. In this case, as observed by the Court in Pugh
v. Griffith, above cited, the breaking into the house was justified,
because the plaintiff himself had occasioned the necessity of it ; but
it does not follow that there may not be other occasions where the
outer door may be broken.3

The privilege which, by the fourth resolution in Semayne's Case,
was held to attach to a man's house, must, however, be strictly con-
fined thereto, and does not extend to barns or outhouses uncon-
nected with the dwelling-house.4 It admits also of this exception,
that if the defendant escape from arrest, the sheriff may, after
demand of admission and refusal, break open either his own house
or that of a stranger for the purpose of retaking him.5 Moreover,
if the sheriff breaks open an outer door when he is not justified in
doing so, this, it would seem, does not vitiate the execution, but
merely *renders the sheriff liable to an action of trespass.6 r*4QQi
A sheriff's officer, in execution of a bailable writ, peace-
ably obtained entrance by the outer door ; but before he could

1 Pugh v. Griffith, 7 A. & E. 827 (34 E. C. L. R.).

2 Palm. R. 52 ; Cro. Jac. 555.

3 Judgm., 7 A. & E. 840 (34 E. C. L. R.).

4 Penton v. Browne, 1 Sid. 186 ; distinguished in Brown v. Glenn, 16 Q. B.
254, 257 (71 E. C. L. R.).

5 Anon., 6 Mod. 105; Lloyd v. Sandilands, 8 Taunt. 250 (4 E. C. L. R.).
See Genner v. Sparkes, 1 Salk. 79.

6 See 4th resolution, in Semayne's Case, ad Jinem ; 2 Bac. Abr., " Execu-
tion" (N.) ; Percival v. Stamp, 9 Exch. 167.

439 broom's legal maxims.

make an actual arrest, was forcibly expelled from the house, and
the outer door fastened against him. The officer thereupon, having
obtained assistance, broke open the outer door and made the arrest ;
and it was held that he was justified in so doing; for, the outer
door being open in the first instance, the officer was entitled to
enter the house under civil process, and, being lawfully in the
house, the prosecutor was guilty of a trespass in expelling him ;
and that, the act of locking the outer door being unlawful, the pro-
secutor could confer no privilege upon himself by that unlawful act.
In the above case it was further held, that a demand of re-entry by
the officer was not, under the circumstances, requisite to justify him
in breaking open the outer door ; for " the law, in its wisdom, only
requires this ceremony to be observed when it possibly may be
attended with some advantage, and may render the breaking open
of the outer door unnecessary."1

5thly. It was resolved that a man's house is not a castle for any
one but himself, and shall not afford protection to a third party who
flies thither, or to his goods, if brought or conveyed into the house
to prevent a lawful execution, and to escape the ordinary process of
law. In these latter cases, therefore, the sheriff may, after request
and denial, break open the door, or he may enter if the door be
r*4.401 *°Pen-2 I* must be observed, however, that the sheriff
does so at his peril ; and if it turn out that the defendant
was not in the house, or had no property there, he is a trespasser.3

The distinction being now clearly established, that, if a sheriff
enters the house of the defendant himself for the purpose of arrest-
ing him or taking his goods, he is justified, provided he has reason-
able grounds for believing that the party is there or his goods ; but
if he enters the house of a stranger with the like object in view, he
can be justified only by the event.4

It may not be inappropriate to add, in connection with the

1 Aga Kurboolie Mahomed v. The Queen, 4 Moore P. C. Cas. 239.

2 Semayners Case, supra; per Tindal, C. J., Cook v. Clark, 10 Bing. 21 •,
Com. Dig., "Execution" (C. 6); Penton v. Browne, 1 Sid. 186.

3 Johnson v. Leigh, 6 Taunt. 246 (1 E. C. L. R.) ; Morrish v. Murray, infra;
Com. Dig., "Execution" (C. 5).

4 Morrish v. Murray, 13 M. & W. 52, 57; Cooke v. Birt, 5 Taunt. 765 (1 E.
C. L. R.).

PROPERTY — ITS RIGHTS AND LIABILITIES. 440

maxim under consideration, that although, as a general rule, where
a house has been unlawfully erected on a common, a commoner,
whose enjoyment of the common has been thus interrupted, may
pull it down ; he is, nevertheless, not justified in doing so without
previous notice or request,1 if there are persons actually in it at the
time.2 But, as remarked by Lord Campbell, C. J.,3 it would be
giving a most dangerous extension to the doctrine thus laid down
"to hold that the owner of a house could not exercise the right of
pulling it down because a trespasser was in it." And notwith-
standing some conflict amongst judicial dicta upon the subject,4
*it seems that in trespass "it is a perfectly good justifica- r^^-i
tion to say that the plaintiff was in possession of the land
against the will of the defendant, who was owner, and that he en-
tered upon it accordingly, even though in so doing a breach of the
peace was committed."5 The learned judge, whose words have been
just quoted, further intimates an opinion6 that " where a breach of
the peace is committed by a freeholder who, in order to get into
possession of his land, assaults a person wrongfully holding pos-
session of it against his will, although the freeholder may be
responsible to the public in the shape of an indictment for a forci-
ble entry,7 he is not liable to the other party."

We may conclude these remarks with observing, that, although
the law of England has so particular and tender a regard to the

1 Davies v. Williams, 16 Q. B. 546, 556.

2 Perry v. Fitzhowe, 8 Q. B. 757 (55 E. C. L. R.) ; Jones v. Jones, 1 H. &
0.1.

3 Burling v. Read, 11 Q. B. 904, 908 (63 E. C. L. R.) ; Davison v. Wilson,
Id. 890.

4 See Newton v. Ilarland, 1 M. & Gr. 644 (39 E. C. L. R.) ; Pollen v.
Brewer, 7 C. B. N. S. 371 (97 E. C. L. R.) ; per Cresswell, J., Davis v. Burrell,
10 C. B. 825 (70 E. C. L. R.), per Parke, B., and Alderson, B., 14 M. & W.
437. In Delaney v. Fox, 1 C. B. N. S. 166 (87 E. C. L. R.), the point above
mentioned was also raised. See Butcher v. Butcher, 7 B. & C. 399 (14 E. C.
L. R.).

6 Per Parke, B., Harvey v. Brydges, 14 M. & W. 44?; s. c, 1 Exch. 261.
See per Cresswell, J., Meriton v. Coombes, 9 C. B. 789.

« 14 M. & W. 442 : cited judgm., Blades v. Higgs, 10 C. B. N. S. 721 (100
E. C. L. R.) ; s. c, 11 II. L. Cas. 621 (where the principle laid down supra
was applied to the retaking of chattels) ; Pollen v. Brewer, 7 C. B. N. S. 371
(97 E. C. L. R.).

7 See per Lord Kenyon, C. J., Taunton v. Costar, 7 T. R. 432.

441 broom's legal maxims.

immunity of a man's house, that it will not suffer it to be violated
with impunity, — and although, for this reason, outward doors can-
not, in general, be broken open to execute any civil process (the
main exception which occurs to the rule, viz., in criminal cases, re-
sulting from the principle that the public safety should supersede
the private), — yet, in the words of an eminent lawyer,1 "This rule,
r*44.91 ^at every man's house is his castle, when ^applied to
arrests in legal process, hath been carried as far as the
true principles of political justice will warrant — perhaps beyond
what, in the scale of sound reason and good policy, they will war-
rant."

§ III. — THE TRAXSFER OF PROPERTY.

The two leading maxims relative to the transfer of property are,
first, that alienation is favored by the law : and, secondly, that an
assignee holds property subject to the same rights and liabilities as
attached to it whilst in the possession of the grantor. Besides the
above very general principles, we have included in this section
several minor maxims of much practical importance, connected with
the same subject; and each of these, according to the plan pur-
sued throughout this Work, has been briefly illustrated by decided
cases.

Alienatio Rei prjefertur Juri accrescendi.

(Co. Litt. 185 a.)
Alienation is favored by the law rather than accumulation. \

Alienatio is defined to be, omnis actus per quern dominium trans-
ferer,2 and it is the well known policy of our law to favor alien-
ation, and to discountenance every attempt to tie up property
unreasonably, or, in other words, to create a perpetuity.

The reader will at once remark, that the feudal policy was directly

1 Sir M. Foster, Discourse of Homicide, p. 319.

2 Brisson. ad verb. "Alienatio."

THE TRANSFER OF PROPERTY. 442

opposed to those more wise and liberal views *which have r*44Qi
now long prevailed. It is, indeed, generally admitted,1
that, under the Saxon sway, the power of alienating real property
was altogether unrestricted; and that land first ceased to be aliena-
ble when the feudal system was introduced into this country, shortly
after the Norman conquest; for, although the Conqueror's right to
the crown of England seems to have been founded on title, and not
on conquest, yet, according to the fundamental principle of that
system, all land within the king's territories was held to be derived,
either mediately or immediately, from him as the supreme lord, and
was subjected to those burthens and restrictions which were incident
to the feudal tenure. Now this tenure originated in the mutual con-
tract between lord and vassal, whereby the latter, in consideration
of the feud with which he was invested, bound himself to render
certain services to the former, and as the feudatory could not, with-
out the consent of his lord, substitute the services of another for
his own,2 so neither could the lord, without the feudatory's consent,
transfer his fealty and allegiance to another.3 It is, however, neces-
sary to bear in mind the distinction which was recognised by the
feudal laws between alienation and subinfeudation ; for, although
alienation, meaning thereby the transfer of the original feud, and
substitution of a new for the old feudatory, was strictly prohibited,
yet subinfeudation, whereby a new and inferior feud was carved
out of that originally created, was practised and permitted. More-
over, as feudatories did, in fact, under color of subinfeudation, fre-
quently dispose of their lands, this practise, which* was in ^444-1
its tendency opposed to the spirit of the feudal institutions,
was expressly restrained by the 32d chap, of Magna Charta, which
was merely in affirmance of the common law on this subject, and
which allowed the tenants of common or mesne lords — though not,
•it seems, such as held directly of the Crown — to dispose of a rea-
sonable part of their lands to subfeudatories.

The right of subinfeudation to the extent thus expressly allowed
by statute, evidently prepared the way for the more extensive power
alienation which was conferred on mesne feudatories by the statute
Quia Umptores, 18 Edw. 1, st. 1, c. 1. This statute, which effected,

1 Wright, Tenures, 154 et seq.

2 See Bradshaw v. Lawson, 4 T. R. 443.

3 Wright, Tenures, 171; Mr. Butler's note, Co. Litt. 309 a (1).

444 broom's legal maxims.

indeed, a most material change in the nature of the feudal tenure,
by permitting the transfer or alienation of lands in lieu of subin-
feudation, after stating, by way of preamble, that, in consequence
of this latter practice, the chief lords had many times lost their
escheats, marriages, and wardships of lands and tenements belong-
ing to their fees, enacted, "that from henceforth it shall be lawful
to every freeman to sell at his own pleasure his lands and tenements,
or part of them, so that the feoffee shall hold the same lands and
tenements of the chief lord of the same fee, by such service and
customs as his feoffee held before."

This statute, it will be observed, did not extend to tenants in
capite ; and although by the subsequent Act, 17 Edw. 2, c. 6, De
Prcerogativd Regis, it was declared that no one holding of the Crown
by military service can, without the king's license, alien the greater
part of his lands, so that enough shall not remain for the due per-
formance of such service : from which it has been inferred that,
prior to this enactment, tenants in capite possessed the same right
P44V1 °^ subinfeudation as ordinary* feudatories possessed prior
to the stat. Quia Emptor es ; yet it does not appear that
even after the stat. of De Prosrogativd, alienation of any part of
lands held in capite ever occurred without the king's license ; and,
at all events, this question was set at rest by the subsequent stat. 34
Edw. 3, c. 15, which rendered valid such alienations as had been
made by tenants holding under Henry 3, and preceding sovereigns,
although there was a reservation of the royal prerogative as regarded
alienations made during the reigns of the two first Edwards.

Having thus remarked, that, by a fiction of the feudal law, all
land was held, either directly or (owing to the practice of subinfeu-
dation) mediately of the Crown, we may next observe that gifts of
land were in their origin simple, without any condition or modifica-
tion annexed to them ; and although limited or conditional donations
were gradually introduced for the purpose of restraining the right of
alienation, yet, since the Courts construed such limitations liberally,
in order to favor that right which they were intended to restrain,
the stat. of Westm. 2, 13 Edw. 1, usually called the statute De
Donis, was passed, which enacted, " That the will of the giver,
according to the form in the deed of gift, manifestly expressed,
shall be from henceforth observed, so that they to whom the land
was given under such condition shall have no power to alien the

THE TRANSFER OF PROPERTY. 445 - (.

land so given, but that it shall remain unto the issue of them to
whom it was given after their death, or shall revert unto the giver,
or his heir, if issue fail." The effect, therefore, of the above statute
was to prevent a tenant in tail from alienating his estate for a
greater term than that of his own life ; or rather, its effect was to
render the grantee's estate certain and indefeasible during r*44«n
the life of the tenant in *tail only, upon whose death it
became defeasible by his issue or the remainderman or reversioner.1

Prior to this Act, indeed, where land was granted to a man and
the heirs of his body, the donee was held to take a conditional fee-
simple, which became absolute the instant issue was born ; but after
the passing of the statute De Donis, the estate was, in contempla-
tion of law, divided into two parts, the donee taking a new kind of
particular estate, which our judges denominated a fee-tail, the ulti-
mate fee-simple of the land expectant on the failure of issue remain-
ing vested in the donor.

"At last," says Lord Mansfield, C. J.,2 "the people having
groaned for two hundred years under the inconveniences of so much
property being unalienable ; and the great men, to raise the pride
of their families, and (in those turbulent times) to preserve their
estates from forfeitures, preventing any alteration by the legisla-
ture," the judges adopted various modes of evading the statute De
Donis, and of enabling tenants in tail to charge or alien their
estates.3 The first of these was founded on the idea of a recom-
pense in value ; in consequence of which it was held, that the issue
in tail was bound by the warranty of his ancestor, where assets of
equal value descended to him from such ancestor. In the next
place, they were held, in the reign of Edw. 4, that a feigned recovery
should bar the issue in tail and the remainders and rever- r^^47-i
sion.4 And, by the stat. 32 Hen. 8, c. 36, *the legislature ^ -*
expressly declared that a fine should be a bar to the issue in tail.5

1 1 Cruise, Dig., 4th ed., 77, 78. 2 Taylor v. Horde, 1 Burr. 115.

3 In Mary Portington's Case, 10 Rep. 35 b, it was held, in accordance
with prior authorities, that tenant in tail could not be restrained by any con-
dition or limitation from suffering a common recovery.

* Taltarum's Case, Yr. Bk. 12 Edw. 4, 14, 19, where the Court expressly
founded their argument upon the assumption that a recovery properly suf-
fered would destroy an entail, although they decided that, under the particu-
lar circumstances of that case, the entail had not been destroyed.

6 Except where the reversion was in the Crown, 34 & 35 Hen. 8, c. 20. As

447 broom's legal maxims.

Further, under the Act for abolishing fines and recoveries, 3 &
4 Will. 4, c. 74, a tenant in tail may, by any species of deed duly
enrolled, and otherwise made in conformity with the Act, absolutely
dispose of the estate of which he is seised in tail in the same man-
ner as if he were absolutely seised thereof in fee;1 and the sale of
"settled estates"2 is, by the stat. 19 & 20 Vict. c. 120 (amended
and extended by 21 & 22 Vict. c. 77,)3 much facilitated.

Having thus seen in what manner the restrictions which were, in
accordance with the spirit of the feudal laws, imposed upon the aliena-
tion of land by deed, have been gradually relaxed, we must further
observe, that the power of disposing of land by will was quite as much
opposed to the policy of those laws; and, consequently, although land
in this country was devisable until the conquest, yet it shortly after-
wards ceased to be so, and, in fact, remained inalienable by will4
until the stats. 32 Hen. 8, c. 1, and 34 & 35 Hen. 8, c. 5 ; the lat-
ter of which statutes is explanatory of the former, and declares
that every person (except as therein mentioned) having a sole
estate or interest or being seised in fee-simple of and in any manors,
r*4.48n lands> tenements, *rents or other hereditaments in posses-
sion, reversion, remainder, or of rents or services incident
to any reversion or remainder, shall have full and free liberty,
power, and authority to give, dispose, will, or devise to any person
or persons (except bodies politic and corporate) by his last will and
testament in writing, all his said manors, lands, tenements, rents,
and hereditaments, or any of them, at his own free will and pleas-
ure. It is, indeed, true, that, by the above statutes, some restric-
tion was imposed upon the right of alienating by will lands held by
military tenure; yet since such tenures were, by the stat. 12 Car.
2, c. 24, converted into free and common socage tenures, we do, in
fact derive from the Acts passed in the reign of Hen. 8, the im-
portant right of disposing by will of all (except copyhold5) lands

1 See 1 Cruise Dig., 4th ed., 83.

2 For the statutory signification of this term, see the interpretation clause
(s. 1).

3 See also 27 & 28 Vict. c. 45, s. 3.

4 A tenant in gavelkind, however, could devise by will prior to the Statute
of Wills: Wright Tenures 207.

6 As to which see now, 1 Vict. c. 26, s. 3 ; Shelf. Copyholds 52.

THE TRANSFER OF PROPERTY. 448

and tenements: a privilege which has received some important ex-
tensions by the modern stat. 1 Vict. c. 26, (amended by 15 & 16
Vict. c. 24,) and which now attaches to all real and personal estate
to which an individual may be entitled, either at law or in equity,
at the time of his death.1

It remains to consider how far the right of alienation exists at
common law, when viewed without reference to the arbitrary re-
strictions which were imposed under the feudal system, and to show
in what manner this right has been recognised and favored by our
courts of law, and encouraged by the legislature. And, in the first
place, we must observe, that the potestas alienandi, or right of alien-
ation, is a right necessarily incident, in contemplation of law, to
an estate in fee-simple; it is inseparably annexed to it, and cannot,
in general, be indefinitely restrained by any proviso or condition
whatsoever2 *for, although a "fee-simple" is explained by r*44q-|
Littleton3 as being hcereditas pura, yet it is not so described
as importing an estate purely allodial (for we have already seen
that such an estate did not, in fact, exist in this country), but
because it implies a simple inheritance clear of any condition,
limitation, or restriction to any particular heirs, and descendible to
the heirs general, whether male or female, lineal or collateral.4 In
illustration of the above incident of an estate in fee-simple, we find
it laid down,5 that "if a man makes a feoffment on condition that
the feoffee shall not alien to any, the condition is void, because,
where a man is enfeoffed of land or tenements, he has power to
alien them to any person by the law; for, if such condition should
be good, then the condition would oust him of the whole power
which the law gives him, which would be against reason, and there-
fore such condition is void." A testator devised land to A. B. and
his heirs for ever; but in case A. B. died without heirs, then to C.
D. (who was a stranger in blood to A. B.) and his heirs; and, in
case A. B. offered to mortgage or suffer a fine or recovery upon the
whole or any part thereof, then to the said C. D. and his heirs. It
was held, that A. B. took an estate in fee, with an executory devise

JS. 3.

2 4 Cruise Dig., 4th ed., 330. And see the analogous cases, cited post, pp.
452, 455.

• 3S. 1. * Wright Tenures 147.

6 Mildmay's Case, 6 Rep. 42 ; Co. Litt. 206 b.

449 rAVJ broom's legal maxims.

over, to take effect upon the happening of conditions which were
void in law, and that a purchaser in fee from A. B. would have a
good title against all persons claiming under the said will.1 So, if
a man, before the statute De Donis, had made a gift to one and
the heirs of his body, after issue born he had, by the common law,
r*4/ri01 *P°^e^a^em alienandi; and, therefore, if the donor had

in such a case added a condition, that, after issue the donee
should not alien, the condition would have been repugnant and
void. And, by like reasoning, if, after the statute a man had made
a gift in tail, on condition that the tenant in tail should not suffer a
common recovery, such condition would have been void ; for, by the
gift in tail, the tenant has an absolute power given to suffer a
recovery, and so to bar the entail.2 And here we may conveniently
remark, that the distinction which exists between real and personal
property is further illustrative of the present subject; for, with
respect to the latter, it is laid down, that, where an estate tail in
things personal is given to the first or any subsequent possessor, it
vests in him the total property, and no remainder over shall be per-
mitted on such a limitation ; for this, if allowed, would tend to a
perpetuity, as the devisee or grantee in tail of a chattel has no
method of barring the entail; and, therefore, the law vests in him
at once the entire dominion of goods, being analogous to the fee-
simple which a tenant in tail may acquire in real estate.3 A. B.,4
wishing to devise his estates to each son and his issue successively
in remainder, and to prevent the possibility of alienation, so as to
defeat the remainder over, caused an indenture to be made to this
purport: "that the lands and tenements were given to his eldest
son upon such condition ; that, if the eldest son alien in fee or in
fee tail, &c, or if any of his sons alien, &c, that then their estate
r*4511 snould cease and be void, and that then *the same lands

and tenements immediately should remain to the second son,
and to the heirs of his body begotten, et sic ultra, the remainder to
his other sons;" and livery of seisin was made accordingly. "But,"
observes Littleton,5 it "seemeth by reason, that all such remainders

1 Ware v. Cann, 10 B. & C. 433 (21 E. C. L. R.)

2 6 Rep. 41 ; arg., Taylor v. Horde, 1 Burr. 84 ; Corbet's Case, 1 Rep. 83 ;
Portington's Case, 10 Rep. 35.

3 2 Com. by Broom & Hadley 593, 611.

4 Litt. s. 720 ; Co. Litt. 379 b (1). 6 Litt. s. 721.

THE TRANSFER OF PROPERTY. 451

in the form aforesaid are void and of no value." And if, in the
case put, the eldest son had aliened in fee, the estates would there-
upon have vested in the alienee, and the parties in remainder would
have been barred ; that is to say, the condition which the testator
attempted to annex to the estate would have been inoperative.

We may, in connection with this subject, likewise refer to Sir W.
Blackstone's celebrated judgment in Perrin v. Blake,1 where a dis-
tinction is drawn between those rules of law which are to be con-
sidered as the fundamental rules of the property of this kingdom,2
and which cannot be exceeded or transgressed by any intention of
a testator, however clearly or manifestly expressed, and those rules
of a more arbitrary, technical, and artificial kind, which the inten-
tion of a testator may control. Amongst rules appertaining to the
first of these two classes, Sir W. Blackstone mentioned these : — 1st,
that every tenant in fee-simple or fee-tail shall have the power of
alienating his estates by the several modes adapted to their respect-
ive interests; and, 2dly, that no disposition shall be allowed which,
in its consequence, tends to a perpetuity.3 Mr. Butler, moreover,
remarks,4 with reference to the case from Littleton above cited,
that it "is one of the many attempts which have been r^^cn-i
*made at different times to prevent the exercise of that
right of alienation which is inseparable from the estate of a tenant
in tail."

Not only will our Courts oppose the creation of a perpetuity by
deed, but they will likewise frustrate the attempt to create it by
will ; and, therefore, " upon the introduction of executory devises,
and the indulgence thereby allowed to testators, care was taken that
the property which was the subject of them should not be tied up
beyond a reasonable time, and that too great a restraint upon alien-
ation should not be permitted.5 The rule is accordingly well estab-
lished, that, although an estate may be rendered inalienable during
the existence of a life or of any number of lives in being, and
twenty-one years after, or, possibly, even for nine months beyond

1 Hargrave's Tracts, fol. 500.

2 See also Egerton v. Earl Brownlow, 4 H. L. Cas. 1, passim.

3 Mr. Butler's note, Co. Litt. 376 b (1).

4 Co. Litt. 381 a, note.

6 Judgm., Cadell v. Palmer, 10 Bing. 142 (25 E. C. L. R.). See Ware v
Cann, 10 B. & C. 433 (21 E. C. L. R.).

23

452 broom's legal maxims.

the twenty-one years, in case the person ultimately entitled to the
estate should be an infant in ventre sa mere,1 at the time of its
accruing to him, yet that all attempts to postpone the enjoyment of
the fee for a longer period are void.2

With respect to trusts for accumulation, we may observe, that
these are now regulated by stat. 39 & 40 Geo. 3, c. 98, an Act
[~*4rTl wn^cn was passed in consequence of the *will of the late
Mr. Thellusson, and subsequently to the decision establish-
ing the validity of that will in the well-known case of Thellusson v.
Woodford.3 The above-mentioned statute enacts, that no person
shall thenceforth, by any deed, surrender, will, codicil, or other-
wise, settle or dispose of any real or personal property, so that the
rents or produce thereof shall be wholly or partially accumulated
for any longer term than the life of the grantor or settlor, or the
term of twenty-one years from the death of the grantor, settlor, or
testator, or during the minority or respective minorities of any per-
son or persons who shall be living, or in ventre sa mere, at the time
of the death of such grantor or testator, or during the minority or
respective minorities only of any person or persons who, under the
uses or trusts of the deed, surrender, will, or other assurance,
directing such accumulations, would, for the time being, if of full
age, be entitled to the rents or annual produce so directed to be
accumulated.

It will be evident, from the preceding remarks and cases already
cited, that the rule against perpetuities is observed by courts both of
law and of equity.4 In consequence, however, of the peculiar juris-
diction which courts of equity exercise, for the protection of the in-

1 In an executory devise, the period of gestation may be reckoned both at
the beginning and the end of the twenty-one years ; thus, if land is devised
with remainder over in case A.'s son die under the age of twenty-one, and
A. dies leaving a son in ventre sa mere, then if the son marries in his twenty-
first year, and dies leaving his widow enceinte, the estate vests, nevertheless,
in the infant in ventre sa mire, and does not go over. See, per Lord Eldon,
C, Thellusson v. AVoodford, 11 Ves. jun. 149.

2 Cadell v. Palmer, 10 Bing. 140. See Lord Dungannon v. Smith, 12 CI. &
Fin. 54G, distinguished in Christie v. Gosling, L. R. 1 II. L. 279, 292 ; Spencer
v. Duke of Marlborough, 3 Bro. P. C. 232.

3 4 Ves. jun. 227 ; s. c, 11 Id. 112, in which case Mr. Hargrave's argument
respecting perpetuities is well worthy of perusal.

4 See also, per Wilmot, C. J., Bridgeman v. Green, Wilmot, Opin. 61.

THE TRANSFER OF PROPERTY. 453 — M ^

terests of married women, the right of alienation has, in one case,
with a view to their benefit, been restricted, and that restriction
thus imposed may, in fact, be regarded as an exception to the oper-
ation of the maxim in favor of alienation, which we have been con-
sidering. It is now fully established, that where property is con-
veyed to the *separate use of a married woman in fee, with r^^r^-i
a clause in restraint of anticipation, such clause is valid ;
for equity, having in this instance created a particular kind of
estate, will reserve to itself the power of modifying that estate in
such manner as the Court may think fit, and will so regulate its en-
joyment as to effect the purpose for which the estate was originally
created.1 The law upon this subject may be considered to have
been finally settled by the decisions in Tullett v. Armstrong,2 and
Scarborough v. Borman,3 where Lord Cottenham, C, after an elab-
orate review of the cases and authorities, held that a gift to the sole
and separate use of a woman, whether married or unmarried, with
a clause against anticipation, was good against an after-acquired
husband; and this decision has been in subsequent cases fully recog-
nised and adopted.4

The reason of the rule thus established is fully stated by his lord-
ship, in a subsequent case, in these words : — " When first, by the law
of this country, property was settled to the separate use of the wife,
equity considered the wife as a feme sole, to the extent of having a
dominion over the property. But then it was found that that,
though useful and operative, so far as securing to her a dominion
over the property so devoted to her support, was open to this diffi-
culty— that she, being consided as a feme sole, was of course at
liberty to dispose of it as afeme sole might have disposed of it, and
that, of course, exposing her to the influence of her husband, was
found to destroy the object of giving her a separate property ;
therefore, to meet that, a provision was adopted of pro- r^j. cc-i
hibiting the anticipation of the income of the property, so
that he had no dominion over the property till the payments actu-
ally became due."5 To the above exposition of the doctrine of

1 See, per Lord Lyndhurst, C, Baggett v. Meux, 1 Phill. 627 ; s. c, 1 Coll.
138.

2 4 My. & Cr. 377, 390. See Wright v. Wright, 2 Johns. & Hem. G47, 652.

3 4 My. & Cr. 378. * Baggett v. Meux, supra.
8 Per Lord Cottenham, Rennie v. Ritchie, 12 CI. & Fin. 234. .

455 broom's legal maxims.

Courts of Equity we must add that, by various sections of the stat.
20 & 21 Vict. c. 85, for amending the law relating to divorce and
matrimonial causes, a feme covert will, for her protection, be con-
sidered as a feme sole with respect to her acquired property, and
for the purpose of suing and contracting.1

Conformable to the spirit of the elementary maxim now under
consideration is the stat. 20 & 21 Vict. c. 57, intituled " An Act
to enable married women to dispose of reversionary interests in
personal estate."

Having thus observed that our law favors the alienation of real
property, or to use the words of Lord Mansfield, that " the sense
of wise men, and the general bent of the people in this country,
have ever been against making land perpetually unalienable;" and
having seen that " the utility of the end was thought to justify any
means to attain it,"2 it remains to add, that the same policy obtains
with reference to personalty ; and, in support of this remark, may
be adduced the well-known rule of the law merchant, that, for the
encouragement of commerce, the right of survivorship, which is
ordinarily incident to a joint tenancy, shall not exist amongst
trading partners — jus accrescendi inter mercatores pro beneficio
commercii locum non habet,3 — a rule which applies to manufac-
r*4fifi1 turers *as well as to merchants4 — to trade fixtures also,
which, being removable, are part of the stock in trade —
and has been5 extended to real as well as personal property : so
that all property, whatever be its nature, purchased with partner-
ship capital for the purposes of the partnership trade, continues to
be partnership capital, and to have to every intent the quality of
personal estate,6 unless, indeed, a special stipulation be made

1 See ss. 21, 25, 26.

2 Per Lord Mansfield, C. J., 1 Burr. 115.

3 Co. Litt. 182 a ; Brownl. 99 j Noy Max., 9th ed., 79 ; 1 Beawes Lex Merc,
6th ed., 42.

4 Buckley v. Barber, 6 Exch. 164, by comparing which case with Crossfield
v. Such, 8 Exch. 825; and Morgan v. Marquis, 9 Exch. 145, the signification
and operation of the maxim, as to jus accrescendi, will be perceived.

6 Buckley v. Barber, supra.

6 Per Sir J. Leach, M. B., Phillips v. Phillips, 1 My. & K. 663 ; and in
Fereday v. Wightwick, 1 Russ. & My. 49 ; Townshend v. Devaynes, 1 Mont.,
Partnership, 2d ed., note, p. 96 (2 A.) ; per Lord Eldon, C, Selkrig v. Davis,
2 Dow 242; Houghton v. Houghton, 11 Sim. 491; Crawshay v. Maule, 1

THE TRANSFER OF PROPERTY. 456

between the partners to prevent the application of this equitable
doctrine.1 The rule which thus holds in cases of partnership
evidently favors alienation, by rendering capital invested in trade
applicable to partnership purposes, and directly available to the
creditors of the firm.

We have already had occasion to observe, that there cannot be
an estate tail in personalty ;2 so neither can a perpetuity be created
in property of this description. Indeed, where the subject-matter of
a grant is a personal chattel,, it is impossible so to tie up the use
and enjoyment of it as to create in the donee a life estate which
he may not alien. It is true, however, that this object may be
attained indirectly, in a manner consistent with the *known r*Azn-]
rules of law, by annexing to the gift a forfeiture or defeas-
ance on the happening of a particular event, or on a particular act
being done ; for in that case the donee takes by the limitation a
certain estate, of which the event or act is the measure, and upon
the happening of the event, or the doing of the act, a new and
distinct estate accrues to a different individual. If, for instance, a
testator be desirous to give an annuity without the power of anti-
cipation, he can only do so by declaring that the act of alienation
shall determine the interest of the legatee, and create a new interest
in another."3

Property may also be given to a party to be enjoyed by him
until he becomes bankrupt, and, if this event should happen,
the property may be given over to another party. A person can-
not, however, create an absolute interest in property, and, at the
same time, deprive the party to whom that interest was given of
those incidents and of that right of alienation which belonged,
according to the elementary principles of the common law, to the
ownership of the estate. Where, therefore, a testator directed his
trustees to pay an annuity to his brother, until he should attempt
to charge it, or some other person should claim it, and then to apply

Swanst. 521, cited Baxter v. Newman, 8 Scott N. R. 1035; Phillips v. Phil-
lips, supra, was overruled as to a different point therein decided by Taylor v.
Taylor, 3 De G., M. & G. 190.

1 Balmain v. Shore, 9 Ves. jun. 500.

2 As to heir-looms, see the maxim Accessorium sequitur principale, — post.
As to annexing personal to real estate, the latter being devised in strict set-
tlement, see 2 Jarm. Wills, 2d ed., 492.

3 Per Lord Brougham, 2 My. & K. 204.

457 broom's legal maxims.

it for his support and maintenance, it was held that, on the in-
solvency of the annuitant, his assignees became entitled to the
annuity.1

The distinction between a proviso or condition subsequent and a
limitation above exemplified, may be further explained in the words
of Lord Eldon, who says : " There is no doubt that property may
be given to a man until he shall become bankrupt. It is equally
r^rn-. clear, generally *speaking, that, if property is given to
a man for his life, the donor cannot take away the inci-
dents to a life estate, and * * * a disposition to a man until he
shall become bankrupt, and after his bankruptcy over, is quite dif-
ferent from an attempt to give to him for his life, with a proviso
that he shall not sell or alien it. If that condition is so expressed
as to amount to a limitation, reducing the interest short of a life
estate, neither the man nor his assignees can have it beyond the
period limited."2

The preceding remarks will suffice to establish the truth, and to
show the very wide application, of the proposition, that, in our
law, alienatio ret prcefertur juri aeerescendi ; for, as we have seen,
the power of alienation, whether by deed or by will, of which the
land-owners were deprived on the introduction of the feudal system,
has been in succeeding ages gradually restored to them. Both our
Courts of law and our Legislature have discountenanced attempts
to create perpetuties, either by an astute application of legal
machinery, for the purpose of defeating them, or by special enact-
ments calculated to effect the same salutary object. A perpetuity
has, indeed, been pronounced to be " a thing odious in law and de-
structive to the commonwealth,"3 inasmuch as its tendency is to put
a stop to commerce, and to prevent the free circulation of the
riches of the kingdom ; and we may accordingly ascribe to the
policy of our law in favoring alienation, not only those extensive
innovations on the feudal system to which we have above adverted,
but likewise the various measures which have from time to time
r*4.^Ql keen adopted, as weU f°r simplifying the forms of convey,
ance as for rendering the realty liable to *debts,4 and

1 Younghusband v. Gisborne, 1 Colly. 400.

2 Brandon v. Robinson, 18 Ves. 433, 434.

3 1 Vern. 164.

4 The feudal restraint of alienation necessarily prevented land from being

THE TRANSFER OF PROPERTY. 459

making property in general more easily available to creditors, and
therefore more directly applicable to the exigences of the trading
portion of the community. The alienatio rei has, moreover, been
effectually promoted by the negotiable character which has been
established as belonging to bills of exchange, and which has been
specifically annexed to promissory notes and some other mercantile
instruments. And the disposition of our Legislature still is to'
favor the assignment of choses in action, and thus to afford in-
creased facilities for the transfer and circulation of property, which
are essential to the true interests of a great commercial country.

CUJUS EST DARE EJUS EST DISPONERE.

(Wing. Max. 53.)

The bestower of a gift has a right to regulate its disposal}

It will be evident, from a perusal of the preceding pages, that
the above general rule must at the present day, be received with
very considerable qualification. It does, in fact, set forth the prin-
ciple on which the old feudal system of feoffment depended: tenor
est qui legem dat feudo2 — it is the tenor of the feudal grant which
regulates its effect and extent: and the maxim itself is, in another
form, still applicable to modern grants — modus legem dat donation?
— the bargainor of an estate may, since the land moves from him,
annex such conditions as *he pleases to the estate bargained, r-^ . „*-,
provided they are not illegal, repugnant, or impossible.4
Moreover, it is always necessary that the grantor should expressly
limit and declare the continuance and quantity of the estate which
he means to confer; for, by a bare grant of lands, the grantee will
take an estate for life only, a feoffment being still considered as a
gift, which is not to be extended beyond the express limitation or
manifest intention of the feoffor.5 As, moreover, the owner may,

subject to the debts of the tenant; but by Stat. Westm. 2, 13 Edw. 1, st. 1,
c. 18, one moiety of the land was made liable to execution. Wright Tenures
169, 170.

1 Bell Diet. & Dig. of Scotch Law 242.

2 Craig, Jus Feud., 3d ed., 06. 3 Co. Litt. 19 a.

2 Hep. 71. 6 Wright Tenures 151, 152.

460 broom's legal maxims.

subject to certain beneficial restrictions, impose conditions at his
pleasure upon the feoffee, so he may likewise, by insertion of special
covenants in a conveyance or demise, reserve to himself rights of
easement and other privileges in the land so conveyed or demised,
and thus surrender the enjoyment of it only partially, and not ab-
solutely, to the feoffee or tenant. "It is not," as remarked by
Lord Broughinan, C.,1 "at all inconsistent with the nature of prop-
erty, that certain things should be reserved to the reversioners all
the while the term continues. It is only something taken out of
the demise — some exception to the temporary surrender of the
enjoyment: it is only that they retain more or less partially the
use of what was wholly used by them before the demise, and what
will again be wholly used by them when that demise is at an end."

It must not, however, therefore, be inferred that "incidents of a
novel kind can be devised and attached to property at the fancy or
caprice of any owner."2 "No man," remarks Lord St. Leonards,
r*4fi11 *n -Egert°n v. Earl *Brownlow,3 "can attach any condition
to his property which is against the public good," nor can
he "alter the usual line of descent by a creation of his own. A
man cannot give an estate in fee-simple to a person and his heirs
on the part of his mother. Why? Because the law has already
said how a fee-simple estate shall descend."

In The Marquis of Salisbury v. Gladstone,4 the validity of a
custom came under consideration — that the copyholders of inher-
itance of a certain manor might, without license from the lord,
break the surface, and dig and get clay without limit, from and out
of their copyhold tenements, for the purpose of making the same
into bricks, to be sold off the manor. In giving his opinion in
favor of this custom, Lord Cranworth thus expressed himself,5
referring to the maxim under notice: — "It is true that a custom

1 2 My. & K. 536, 537.

2 Per Lord Brougham, C., 2 My. & K. 535 ; Ackroyd v. Smith, 10 C. B. 164
(70 E. C. L. R.) ; Bailey v. Stephens, 12 C. B. N. S. 91 (104 E. C. L. R.) ;
Ellis v. Mayor, &c, of Bridgnorth, 15 C. B. N. S. 58, 78 (109 E. C. L. R.);
Tulk v. Moxhay, 2 Phill. 774 ; Hill v. Tupper, 2 H. & C. 121, 128 ; per Cress-
well, J., and Watson, B., in Rowbotham v. Wilson, 8 E. & B. 123 (92 E. C.
L. R.) : s. c, 8 H. L. Cas. 348.

3 4 H. L. Cas. 241, 242. * 9 H. L. Cas. 692.
6 9 H. L. Cas. 701.

THE TRANSFER OF PROPERTY. 461

to be valid must be reasonable.1 It is not easy to define the mean-
ing of the word 'reasonable' when applied to a custom regulating
the relation between a lord and his copyholders. That relation
must have had its origin in remote times by agreement between the
lord, as absolute owner of the whole manor in fee-simple, and those
whom he was content to allow to occupy portions of it as his ten-
ants at will. The rights of these tenants must have depended in
their origin entirely on the will of the lord ; and it is hard to say
how any stipulations regulating such rights can, as between the
tenant and the lord, be deemed void as being unreasonable — cujus
est dare, ejus est disponere. Whatever restrictions, therefore, or
conditions *the lord may have imposed, or whatever rights
the tenants may have demanded, all were within the com- L J
petency of the lord to grant or of the tenants to stipulate for.
And if it were possible to show that before the time of legal memory
any lawful arrangement had .been actually come to between the
lord and his tenants as to the terms on which the latter should hold
theiu lands, and that arrangement had been afterwards constantly
acted on, I do not see how it could ever be treated as being void
because it was unreasonable. In truth, I believe that when it is
said that a custom is void because it is unreasonable, nothing more
is meant than that the unreasonable character of the alleged custom
conclusively proves that the usage, even though it may have ex-
isted immemorially, must have resulted from accident or indul-
gence, and not from any right conferred in ancient times on the
party setting up the custom."

Doubtless in feudal times the maxim under our notice had special
vitality and importance ; it may be further illustrated by the rela-
tion of landlord and tenant which descended to us from them.

"The general principle," says Mr. Justice Ashhurst,2 "is clear,
that the landlord having the jus disponendi may annex whatever
conditions he pleases to his grant, provided they be not illegal or
unreasonable." It is, for instance, reasonable that a landlord
should exercise his judgment with respect to the person to whom
he trusts the management of his estate; and, therefore, a covenant
not to assign is legal ; and ejectment will lie on breach of such a
covenant.3

1 See under the maxim Optimus interpres rerum usus,—post, Chap. X.

2 Roe d. Hunter v. Galliers, 2 T. R. 137.

3 Per Ashhurst, J., 2 T. R. 138.

462 broom's legal maxims.

1**4631 ^n accor^ance vrith the above maxim, it is also laid
*down that a college or charity is the founder's creature ;
that he may dispose and order it as he will, and may give it what-
ever shape he pleases, provided it be a legal one. And hence the
founder of any lay corporation, whether civil or eleemosynary, may
appoint himself, his heirs or assigns, or any other person specially
named as trustees, to be the visitors ; such trustees being, however,
subject to the superintending power of the Court of Chancery, as
possessing a general jurisdiction, in all cases of an abuse of trust,
to redress grievances and suppress frauds.1

On this principle, likewise, an agreement by defendant to allow
plaintiff, with whom he cohabited, an annuity for life, provided she
should continue single, was held to be valid, for this was only an
original gift, with a condition annexed ; and cujus est dare ejus est
disponere. Moreover, the grant of the annuity was not an induce-
ment to the plaintiff to continue the cohabitation, it was rather an
inducement to separate.2

Another remarkable illustration of the jus disponendi presents
itself in that strict compliance with the wishes of the grantor,
which was formerly3 regarded as essential to the due execution of a
power.4

As, moreover, the wishes and intention of a testator will, as far
[~*4f 4"| as possible, be complied with, and carried into *effect in a
court of justice,5 a person taking under a will may have a
right of alienating the property devised in his lifetime, and yet have
no power of disposing of it by any testamentary instrument. For
instance, A. devised his copyhold and real estates to B., his heirs

1 Bell, Diet, and Dig. of Scotch Law 242. See 1 Kyd on Corporations 50 ;
2 Id. 195; Skin. R. 481, 502.

2 Gibson v. Dickie, 3 M. & S. 463, cited arg. Parker v. Rolls, 14 C. B. 697
(78 E. C. L. R.).

3 By 1 Vict. c. 26, s. 10, every will executed as prescribed by that Act will
be a valid execution of a power of appointment by will, although other re-
quired solemnities may not have been observed. This Act, however, does
not extend to any will made before January 1st, 1838.

4 Rutland v. Doe d. Wythe, 12 M. & W. 357, 373, 378 ; s. c, 10 CI. & Fin.
419 ; Doe d. Earl of Egremont v. Burrough, 6 Q. B. 229 (51 E. C. L. R.) ;
Doe d. Blomfield v. Eyre, 3 C. B. 557 (54 E. C. L. R.).

6 As illustrating this well-known principle, see per Lord Brougham, Pren-
dergast v. Prendergast, 3 H. L. Cas. 218, 219 ; et vide post, Chap. VIII.

THE TRANSFER OF PROPERTY. 464

and assigns, with a restriction upon alienation in these words : " In
case B. shall depart this life without leaving any issue of his body
lawfully begotten then living or being no such issue, and he my said
son shall not have disposed and parted with his interest of, in, and
to the aforesaid copyhold estate and premises;" and then followed
a devise over to C. The Court held, that the intention of the tes-
tator evidently was to give to his son absolute dominion over the
estate, provided he chose to exercise that dominion in his lifetime ;
that the restriction imposed upon the power of alienation became
effectual by the son dying seised ; and that a devise of the estate
in question was not a disposing of it within the meaning of the
will.1

Without citing additional instances showing the application of
the maxim cujus est dare ejus est disponere, here mentioned as in-
troductory merely to that which concerns rights and liabilities
passing by an assignment of property, we may observe, that
although, in general, the law permits every man to part with his
own interest, and to qualify his own grant, as it pleases himself, it
nevertheless does not permit any allowance or recompense to be
made, if the thing granted be not taken as it is granted; or, in the
words of Lord Bacon's maxim — Quod sub certd *formd r*Af>n-\
concessum vel reservatum est non trahitur ad valorem vel
compensationem : — and, therefore, if I grant common for ten beasts
for three years, and the grantee neglect for two years to use the
right thus given, he shall not the third year have common for thirty
beasts, for the time is certain and precise.2

ASSIGNATUS UTITUR JURE AUCTORIS.

(Halk. Max., p. 14.)

An assignee is clothed with the rights of his principal.3

It is laid down as a general and leading rule with reference to
alienations and forfeitures, that quod meum est sine facto meo vel

1 Doe d. Stevenson v. Glover, 1 C. B. 448 (50 E. C. L. R.).

2 Bac. Max., reg. 4.

3 " Auctores" dicuntur a quibus jus in nos transiit. Brisson. ad verb.
" Auctor."

465 broom's legal maxims.

defectu meo amitti vel in alium transferri non potest,1 where factum
may be translated "alienation," and defectus "forfeiture;"2 and it-
seems desirable to preface our remarks as to the rights and liabili-
ties which pass by the transfer of property, by stating this element-
ary and obvious principle, that where property in land or chattels
has once been effectively and indefeasibly acquired, the right of
property can only be lost by some act amounting to alienation or
forfeiture on the part of the owner or his representatives.

r*4fifi1 ^n "assignee" 1S one wh°? by sucn act as aforesaid,
*or by the operation of law, as in the event of death, pos-
sesses a thing or enjoys a benefit; the main distinction between an
assignee3 and a deputy being, that the former occupies in his own
right, whereas the latter occupies in the right of another.4

A familiar instance of the first mode of transfer just mentioned
presents itself in the assignment of a lease by deed; and of the
second, in the case of the heir of an intestate who is an assignee in
law of his ancestor.5

Further, under the term "assigns"6 is included the assignee of
an assignee in perpetuum,7 provided the interest of the person origi-
nally entitled is transmitted on each successive devolution of the
estate or thing assigned ; for instance, the executor of A.'s execu-
tor is the assignee of A., but not so the executor of A.'s adminis-
trator, or the administrator of A.'s executor, who is in no sense the
representative of A., and to whom, therefore, the unadministered
residue of A.'s estate will not pass.

1 This maxim is well illustrated by Vyner v. Mersey Docks, &c, Board, 14
C. B. N. S. 753 (108 E. C. L. R.).

2 1 Prest. Abs. Tit. 147, 318. The kindred maxims are, Quod semel meum
est amplius meum esse non potest, Co. Litt. 49 b ; Duo non possunt in solido
unam rem possidere, Co. Litt. 368 a. See 1 Prest., Abs. Tit. 318 ; 2 Id. 86,
286 ; 2 Dods. Adm. R. 157 ; 2 Curt. 76.

3 See Bromage v. Lloyd, 1 Exch. 32; Bishop v. Curtis, 18 Q. B. 878 (83 E.
C. L. R.) ; Lysaght v. Bryant, 9 C. B. 46 (67 E. C. L. R.).

4 Perkins's Prof. Bk. s. 100; Dyer 6.
6 Spencer's Case, 5 Rep. 16.

6 As to the meaning of the word "assigns" in a covenant, see judgm.,
Bailey v. De Crespigny, L. R. 4 Q. B. 186.

See also Mitcalfe v. Westaway, 17 C. B. N. S. 658 (112 E. C. L. R.).
An underlease of the whole term amounts to an assignment, Beardman v.
Wilson, L. R. 4 C. P. 57.

T Co. Litt, 384 b.

THE TRANSFER OF PROPERTY. 466'

In order to place in a clear light the general bearing and appli-
cation of the maxim assignatus utitur jure auctoris, we propose to
inquire, first, as to the quantity ; and, secondly, as to the quality
or nature of the interest in property which can be assigned by the
owner to another party. And, 1st, it is a well-known rule, im-
ported *into our own from the civil law, that no man can r^A^-\
transfer a greater right or interest than he himself possesses
— Nemo plus juris ad alium transferre potest quam ipse haberet.1
The owner, for example, of a base or determinable fee can do no
more than transfer to another his own estate, or some interest of
inferior degree created out of it ; and if there be two joint tenants
of land, a grant or a lease by one of them will operate only on his
own moiety.2 In like manner, where the grantor originally pos-
sessed only a temporary or revocable right in the thing granted, and
this right becomes extinguished by efflux of time or by revocation,
the title of the assignee must, of course, cease to be valid, accord-
ing to the rule resoluto jure concedentis resolvitur jus concessum?
We find it, however, laid down that the maxim above mentioned,
which is one of the leading rules as %to titles, or the equivalent
maxim, non dat qui non habet, did not, prior to the stat. 8 & 9
Vict. c. 106, apply to wrongful conveyances or tortious acts ;4 for
instance, before the passing of that Act, if a tenant for years made
a feoffment, this feoffment vested in the feoffee a defeasible estate
of freehold ; for, according to the ancient doctrine, every person
having possession of land, however slender, or however tortious his
possession might be, was, nevertheless (unless, indeed, he were the
mere bailiff of the party having title), considered to be in the seisin
of the fee, so as to be able by livery to transfer it to another ; and,
consequently, if, in the case above supposed, the feoffee had, subse-
quently to the conveyance, levied a fine, such fine would, at the end
of five years after the expiration *of the term, have barred r*4^o-i
the lessor.5 But now, by sect. 4 of the statute just cited,6
a feoffment " shall not have any tortious operation."

1 D. 50. 17. 54 ; Wing. Max., p. 56. 2 3 Prest. Abs. Tit. 25, 222.

8 Mackeld. Civ. Law 179. « 3 Prest. Abs. Tit. 25 ; Id. 244.

6 The reader will find this subject elaborately considered in Mr. Butler's
note (1) Co. Litt. 330 b; Machell v. Clarke, 2 Lord Raym. 778; 1 Cruise
Dig., 4th ed., 80.

6 See Shelford Real Prop. Stats., 6th ed., 595.

468 broom's legal maxims.

In connection with copyhold law also, an exception presents itself
to the elementary rule above noticed, for the lord of a manor having
only a particular interest therein as tenant for life, may grant by
copy for an estate which may continue longer than his own estate
in the manor, or for an estate in reversion, which may not come
into possession during the existence of his own estate.1 The special
principle on which the grants of a lord pro tempore stand good
after his estate has ceased, being that the grantee's estate is not
derived out of the lord's only, but stands on the custom.2

Also, as between the assignor and assignee, an interest in realty
may, in the following cases, be granted to, or vested in, an as-
signee, although greater than that which the assignor himself pos-
sessed. . A jury found that the lessor had nothing in the land when
he made the lease to the plaintiff, and afterwards the lessor entered
and ejected him, and it was held that this lease was good as between
the parties.3 So, where a termor having previously assigned the
term by way of mortgage, makes a sub-demise, such lease will be
good by way of estoppel, as between the mortgagor and tenant ;
and if in this case the mortgagor should subsequently re-acquire
the legal estate, the lease by estoppel would become a lease in in-
r^dPQl Merest, and the relation of landlord and tenant would there-
upon exist, as perfectly as if the lessor had been actually
seised of the land at the time when the lease was made.4

In mercantile transactions, as well as in those unconnected wTith
real property, the general rule undoubtedly is, that a person can-
not transfer to another a right which he does not himself possess.
The law does not "enable any man by a written engagement to
give a floating right of action at the suit of any one into wdiose
hands the writing may come, and who may thus acquire a right of
action better than the right of him under whom he derives title."5

Of the rule above stated, a familiar instance is noticed by M.
Pothier, who observes that, where prescription has begun to run

1 Shelford Copyholds 20. 2 Id. ibid.

3 Rawlyns's Case, 4 Rep. 52 ; cited Pollexf. G2.

< Sturgeon v. Winfield, 15 M. & W. 224, 230; Pargeter v. Harris, 7 Q. B.
708 ; (53 E. C. L. R.) ; Blake v. Foster, 8 T. R. 487 ; Stokes v. Russell, 3 T.
R. 678; Webb v. Austin, 8 Scott N. R. 419. See arg., Weld v. Baxter, 11
Exch. 816.

6 Per Lord Cranworth, C, Dixon v. Bovill, 3 Macq. Sc. App. Cas. 16.

T1IE TRANSFER OF PROPERTY. 469

against a creditor, it will continue to do so as against his heir, exe-
cutors, or assigns, for the latter succeed only to the rights of their
principal, and cannot stand in a better position than, he did him-
self, nemo plus juris in alium transferre potest quam ipse habet.1
The assignee of a mortgagee cannot stand in any different char-
acter, or hold any different position from that of the mortgagee
himself, although the mortgagor may not have been a party to the
assignment.2 So the endorsee of an order for the delivery of goods
acquires by the endorsement no better title and no higher right
than the endorser had before ;3 nor could the assignee of such an
order *sue upon it.4 However, in considering hereafter
maxims applicable to the law of contracts,5 wTe shall have *- -»
occasion to notice several cases which are directly opposed in prin-
ciple to the rule now under review. Bearing upon this part of the
subject we find in a recent case6 the following remarks: — " The
general rule of law is undoubted, that no one can transfer a better
title than he himself possesses, Nemo dat quod non habet. To this
there are some exceptions, one of which arises out of the rule of
the law-merchant as to negotiable instruments. These being part
of the currency are subject to the same rule as money ; and if such
an instrument be transferred in good faith for value before it is
overdue, it becomes available in the hands of the holder notwith-
standing fraud, which would have rendered it unavailable in the
hands of a previous holder. This rule, however, is only intended
to favor transfers in the ordinary and usual manner, whereby a
title is acquired according to the law-merchant, and not to a trans-
fer which is valid in equity, according to the tloctrine respecting
the assignment of choses in action, now indeed recognised, and in
many instances enforced by courts of law: and it is therefore clear
that in order to acquire the benefit of this rule the holder of the
bill must, if it be payable to order, obtain an endorsement, and that
he is affected by notice of a fraud received before he does so. Until

1 2 Pothier Oblig. 263. The maxim supra is also applied per Parke, B.,
Awde v. Dixon, 6 Exch. 872.

2 Walker v. Jones, L. R. 1 P. C. 50, 61.

8 Griffiths v. Perry, 1 E. & E. 680, 689 (102 E. C. L. R.).
4 Dixon v. Bovill, 3 Macq. Sc. App. Cas. 1.
6 Chap. IX.

6 Whistler v. Forster, 14 C. B. N. S. 248, 257-8 (108 E. C. L. R.). See
Deuters v. Townsend, 5 B. & S. 613, 616 (117 E. C. L. R.).

470 broom's legal maxims.

he does so, he is merely in the position of the assignee of an ordi-
nary chose in action, and has no better right than his assignor.
When he does so, he is affected by fraud, which he knew of before
the endorsement."

r*471 1 *Further, by a sale in market overt, one wrongfully in
possession of a chattel may convey a good title to a bond
fide purchaser j1 and, in like manner, the holder of a negotiable
instrument, who could not himself recover upon it as against the
rightful owner, may sometimes, as above intimated, by transferring
it for value, vest a perfectly valid and unimpeachable title in the
assignee. And although, according to our law as it stood before
the passing of the Factor's Act (5 & 6 Vict. c. 39), a man could
only transfer that which he himself possessed, the legislature by
that statute intended to make an exception in the case of a person
being an agent, and being as such intrusted with the possession of
goods for sale.2

Another remarkable exception to the rule occurs in connection
with the important subject of stoppage in transitu ; for although,
as between the consignor and consignee of goods, the title to the
goods, and the question whether or not the property in them has
passed, will depend upon the real contract entered into by the
parties ; yet, if the consignor and original owner endorses and de-
livers the bill of lading to the consignee, he thereby puts it in the
power of the latter to transfer the property in the goods to a bond
fide purchaser for a valuable consideration, and thus to deprive
himself of any right of stoppage in transitu which he might have
had as against the consignee prior to such transfer.3 " The actual
r*479"| n°lder °f an endorsed bill of lading," said Tindal, C. J.,*
"may, undoubtedly, by endorsement, *transfer a greater

1 Post

2 Per Cockburn, C. J., Fuentes v. Montis, L. R. 4 C. P. 96.

3 Pease v. Gloahec, L. R. 1 P. C. 219 ; per Erie, C. J., L. R. 2 C. P. 45.

* Jenkyns v. Usborne, 8 Scott N. R. 523; s. c, 7 M. & Gr. 678 (49 E. C.
L. R.). See further, as to the effect of endorsing a bill of lading, 18 & 19
Vict. c. Ill, s. 1. Under this section the rights and liabilities of the endorsee
of the bill of lading pass from him by endorsement over to a third person,
Dracachi v. Anglo-Egyptian Nav. Co., L. R. 3 C. P. 190; Smurthwaite v.
Wilkins, 11 C. B. N. S. 842 (103 E. C. L. R.).

As to the effect of re-endorsing a bill of lading, see Short v. Simpson, L. R.
1 C. P. 248.

THE TRANSFER OF PROPERTY. 472

right than he himself has.1 It is at variance with the general princi-
ples of law, that a man should be allowed to transfer to another a
right which he himself has not ; but the exception is founded on
the nature of the instrument in question, which being, like a bill
of exchange, a negotiable instrument, for the general convenience
of commerce, has been allowed to have an effect at variance with
the ordinary principles of law. But this operation of a bill of
lading, being derived from its negotiable quality, appears to us to
be confined to the case where the person who transfers the right is
himself in possession of the bill of lading, so as to be in a situation
to transfer the instrument itself, which is the symbol of the pro-
perty itself."2

Having thus adverted to the amount or quantity of interest
assignable, with reference more especially to the grantor, we must,
in the next place, observe that, as a general rule, the assignee of
property takes it subject to all the obligations or liabilities,3 and
clothed with all the rights which attached to it in the hands of the
assignor,4 and this is in accordance with the maxim of *the r*47Q-|
civil law, qui in jus dominiumve alterius succedit jure ejus
uti debet.5 We have already given one instance illustrative of this
rule, viz. where an heir or executor becomes invested with the right
to property against which the Statute of Limitations has begun to
run. To this we shall here add only one other example, as the
same general principle will necessarily again present itself to our

1 See also judgm., L. R. 2 P. C. 405, where the above exception to the
general rule is said to be " founded on the negotiable quality of the docu-
ment. It is confined to the case where the person who transfers the right is
himself in actual and authorized possession of the document, and the trans-
feree gives value on the faith of it, without having notice of any circumstance
which would render the transaction neither fair nor honest."

2 See judgm., Gurney v. Behrend, 3 E. & B. 633, 634 (77 E. C. L. R.) ; 1
Smith L. C, 5th ed., 739.

8 See White v. Crisp, 10 Exch. 312.

4 As to this rule in equity, see Mangles v. Dixon, 3 H. L. Cas. 702, cited
Higgs v. Assam Tea Co., L. R. 4 Ex. 396 ; Rodger v. The Comptoir d'Es-
compte de Paris, L. R. 2 P. C. 393, 405 ; Dickson v. Swansea Vale R. C, L.
R. 4 Q. B. 44, 48. If a man gives a license and then parts with the property
over which the privilege is to be exercised, the license is gone : Colman v.
Foster, 1 H. & N. 37, 40.

6 D. 50. 17. 177. pr. For instance, fee-simple estates are subject, in the
hands of the heir or devisee, to debts of all kinds contracted by the deceased.

24

473 broom's legal maxims.

notice in connection with the law of contracts, which has been re-
served for especial consideration in a subsequent portion of this
work.

Where, then, a person pays a bill of exchange on account and for
the honor of a party to the bill, the person making such payment
becomes holder of the bill as upon a transfer from the party for
whom the payment was made ; that is to say, he is put in the situ-
ation of an endorsee under such party and is clothed with all the
rights and liabilities incident to that character. Thus, if A. pays
the bill for the honor of B., he thereupon has a right to consider
himself as an endorsee under B., and consequently, to give notice
of the dishonor to him ; and if B. thereupon gives a notice to the
drawer, which is within time, so far as he is concerned, A. will have
a right to adopt and take advantage of it as a notice given by him-
self;1— Qui alter ius jure utitur eodem jure uti debet.2

Without pursuing further our inquiry respecting the quantity of
r*/t741 interest in property which is capable of being ^transferred,
we shall, secondly, proceed to consider briefly the quality
or nature of that interest; and we must commence our remarks
upon this branch of the subject with observing, that there is an im-
portant distinction between the transfer of the right of property in
a chattel, and the transfer of the right of action for the same. It
is, indeed, a well-known rule of law, that a chose in action, ex. gr.
a debt,3 cannot in general be assigned so as to vest in the assignee
a right of action upon it in his own name,4 nor do causes of action
already accrued run with the property in goods or deeds.5 Where,

1 Goodall v. Polhill, 1 C. B. 233, 242 (50 E. C. L. R.). .

2 Pothier, Tr. de Change, pt. 1, ch. 4, art. 5, s. 114.

3 Per Martin, B., Liversidge v. Broadbent, 4 H. & N. 610. See Graham v.
Gracie, 13 Q. B. 548 (66 E. C. L. R.) ; Thompson v. Bell, 3 E. & B. 236 (77 E.
C. L. R.).

" Though a bond debt cannot be assigned, the parchment on which the
bond is written may be assigned," per Willes, J., Watson v. McLean, E., B.
& E. 81 (96 E. C. L. R.), citing 2 Roll. Abr. Graunts (G.) pt. 2.

4 Lampet's Case, 10 Rep. 48 ; Co. Litt. 232 b : per Maule, J., Howard v.
Shepherd, 9 C. B. 319 (67 E. C. L. R.), and in Tempest v. Kilner, 2 C. B.
308 (52 E. C. L. R.). See, as to this rule, the remarks of Buller, J., 4 T. R.
340 : and as to a plea of the equitable assignment of a debt, see Jeffs v. Day,
L. R. 1 Q. B. 372.

6 Per Blackburn, J., Goodman v. Boycott, 2 B. & S. 9, 10 (110 E. C. L. R.).

THE TRANSFER OF PROPERTY. 474

accordingly, the drawer of a ticket in a Derby lottery sold it to the
plaintiff before the race, and the horse named in it was ultimately de-
clared to be the winner, it was held that an action for money had and
received would not lie by the plaintiff against the stakeholder, there
being no privity of contract originally between those parties, and the
assignment of a chose in action not giving to the assignee a right of
action.1 So, although an interest in a partnership, or an equitable in-
terest in land, is a thing of value, and may be made the subject of a
valid contract, yet it is not assignable at law so as to enable the
assignee to sue in his own name — for example, as co-partner, or as
owner *of the beneficial interest,2 and, although it is perfectly r*47^i
legal,3 and in practice very common, to assign debts — for
the benefit of creditors or otherwise — yet the assignee must sue for
them in the name of the assignor.4 Even at law, however, the as-
signment of a debt will, in certain cases, give to the assignee a right
to sue in his own name for its recovery :5 and, in order to constitute
a good equitable assignment, it is in general sufficient if there be an
engagement by the debtor that a particular fund shall be charged
with or appropriated to the payment of the debt.6 Courts of equity
will, moreover, give effect to assignments, not only of choses in
action, but likewise of property, in many cases, where such assign-
ments would not be recognised at law as valid or effectual to pass
titles ; they will, for instance, support assignments of contingent

1 Jones v. Carter, 8 Q. B. 134 (55 E. C. L. R.). See, now, stat. 8 & 9 Vict,
c. 109, which renders wagers illegal.

2 Tempest w. Kilner, 2 C. B. 300, 308 (52 E. C. L. R.); per Buller, J.,
Master v. Miller, 4 T. R. 341. See Jones v. Robinson, 1 Exch. 454.

* See per Willes, J., Balfour v. Off. Man. of the Sea Fire and Life Ass. Co.,
27 L. J. C. P. 19.

* Per Bayley, J.. Price v. Seaman, 4 B. & C. 528 (10 E. C. L. R.).

6 Per Buller, J., Tatlock v. Harris, 3 T. R. 180; Fairlie v. Denton, 8 B. &
C. 395, 400 (15 E. C. L. R.) ; Wharton v. Walker, 4 B. & C. 166 (10 E. C. L.
R.) ; Walker v. Rostron, 9 M. & W. 411 ; Griffin v. Weatherby, L. R. 3 Q. B.
753 ; with which compare Liversidge v. Broadbent, 4 H. & N. 603 ; Com. Dig.,
Action upon the case upon assumpsit (B. L. 3). See also Ex parte Lane, De G.
Bankruptcy Cas. 300 ; Eastern Union R. C. v. Cochrane, 9 Exch. 197 ; London,
Brighton and South Coast R. C. v. Goodwin, 3 Exch. 320; judgm., 1 Exch.
643. The common law rule forbidding the assignment of a chose in action
does not bind the Crown : see Story Eq. Jurisp., 6th ed., 405.

6 See 2 Story, Eq. Jurisp., 6th ed., 427, 428 ; Rodick v. Gandell, 1 De. G.,
M. & G. 763.

475 broom's legal maxims.

interests, of expectancies, and of things resting in mere possibility,
and they look upon the assignments of a debt as in its nature
amounting to a declaration of trust, and to an agreement to per-
mit the assignee to make use of the name of the assignor for its
recovery.1

r*47f!1 * Without attempting to enumerate the various rights
which are assignable, either by the express act of the party,
or by the operation of the law, we may observe generally, that the
maxim, assignatus utitur jure auctoris, is subject to very many re-
strictions2 besides those to which we have just alluded; for instance,
although the assignee of the reversion in land is, by the common
law, entitled to sue upon covenants in law,3 and has, under the stat.
32 Hen. 8, c. 34 (which applies only to leases by deed),4 a right to
sue on express covenants contained in the lease, yet the operation
of this statute is confined to such covenants as are technically said
to run with the land, that is, such as require something to be done
which is in some manner annexed and appurtenant to the land
itself.5 Bills of exchange,6 promissory notes, and checks7 upon
bankers, are in general assignable. And where a bill is endorsed
in blank, the holder may hand it over to a third person to sue upon
it on his behalf.8 In like manner, the legal effect of marriage is to

1 2 Story, Eq. Jurisp., 6th ed., 406, 407.

ySee Sandrey v. Michell, 3 B. & S. 405 (113 E. C. L. R.) ; Young v. Hughes,
4 H. & N. 76 ; M'Kune v. Joynson, 5 C. B. N. S. 218 (94 E. C. L. R.).

3 See Williams v. Burrell, 1 C. B. 429 (50 E. C. L. R.) ; Coote L. & T. 314;
Vyvyan v. Arthur, 1 B. & C. 414 (8 E. C. L. R.) ; Harper v. Burgh, 2 Lev.
206.

4 Per Lush, J., Elliott v. Johnson, L. R. 2 Q. B. 122, citing Standen v.
Christmas, 10 Q. B. 135 (59 E. C. L. R.).

5 Spencer's Case, 5 Rep. 16, 1st resolution ; Martyn v. Clue, 18 Q. B. 661
(83 E. C. L. R.) ; Martyn v. Williams, 1 H. & N. 817 ; Hooper v.- Clark, L. R.
2 Q. B. 200 ; Stevens v. Copp, L. R. 4 Ex. 20 ; Thomas v. Hayward, Ibid.
311; Williams v. Hayward, 1 E. & E. 1040 (102 E. C. L. R.) ; Gorton v.
Gregory, 3 B. & S. 90 (113 E. C. L. R.) ; Bennett v. Herring, 3 C. B. N. S.
370 (91 E. C. L. R.) ; Sharp v. Waterhouse, 7 E. & B. 816 (90 E. C. L. R.).

6 See Harrop, app., Fisher, resp., 10 C. B. N. S. 196 (100 E. C. L. R.).
' Keene v. Beard, 8 C. B. N. S. 372 (98 E. C. L. R.).

8 Law v. Parnell, 7 C. B. N. S. 282 (97 E. C. L. R.). See judgm., Ingham
v. Primrose, 7 C. B. N. S. 85 (97 E. C. L. R.).

Policies of life and marine insurance are now assignable under stats. 30 &
31 Vict. c. 144, and 31 & 32 Vict. c. 86.

THE TRANSFER OF PROPERTY. 477

vest in the husband the right of reducing *into possession r*477-|
the chattels real and choses in action generally of the wife,
yet if he dies without having exercised this power, the above de-
scriptions of property will survive to the wife;1 and, as we shall
hereafter see, the rule, that a vested right of action is by death
transferred to the personal representatives of the deceased, is sub-
ject to some important exceptions, and must, therefore, be applied
with considerable caution.2

The case of a pawn or pledge of a chattel should perhaps also
be referred to in connection with the principle, assignatus utitur
jure auctoris, for here the pawnor retains a property in the chattel,
qualified by the right vested in the pawnee ; and a sale of the chat-
tel by its owner would, therefore, transfer to the vendee that quali-
fied right only which the vendor himself possessed.3 To constitute
a valid pledge there must, however, be a delivery of the chattel,
either actual or constructive, to the pawnee.4

Again, the well-known distinction between absolute and special
property may be adverted to generally, as showing in what manner
and under what circumstances the maxim, that an assignee succeeds
to the rights of his grantor, must, in a large class of cases, be un-
derstood. Absolute property, according to Mr. Justice Lawrence,
is, where one *having the possession of chattels, has also r*4.7fii
the exclusive right to enjoy them, which right can only be
defeated by some act of his own. Special property, on the other
hand, is, where he who has the possession holds them subject to the
claims of other persons.5 According, therefore, as the property in
the grantor was absolute or subject to a special lien, so will be that
transferred to his assignee — qui in jus dominiumve alterius sue-

1 Per Parke, B., Gaters v. Madeley, 6 M. & W. 426, 427 ; Fleet v. Perrins,
L. R. 4 Q. B.. 500, and cases there cited.

2 See the maxim, Actio personalis moritur cum persona — post, Chap. IX.

3 Franklin v. Neate, 13 M. & W. 481, cited Re Attenborough, 11 Exch. 463.
As to the true nature of a pledge, see per Parke, B., Cheesman v. Exall, 6
Exch. 344.

As to the right of the pledgee to sell the pledge, see Halliday v. Holgate,
L. R. 3 Ex. 299 ; approving Donald v. Suckling, L. R. 1 Q. B. 585.

<Per Erie, C. J., Martin v. Reid, 11 C. B. N. S. 734 (103 E. C. L. R.).

8 Webb v. Fox, 7 T. R. 398. See per Pollock, C. B., Lancashire Wagon
Co. v. Fitzbugh, 6 H. & N. 506.

478 broom's legal maxims.

cedit jure ejus uti debet ; and the same principle applies where a
subsequent transfer of the property is made by such assignee.1

It will be evident, that, with regard to a legal maxim so compre-
hensive and so general in its application as that before us, little
can be attempted beyond giving to the reader a brief and necessarily
an imperfect outline of such only of the various classes of cases
exemplifying its meaning and qualifications as may seem apposite
to the end which has here been kept in view, that, viz., of presenting a
compendious statement of the most practically useful and important
principles connected with the transfer of property.

We shall, therefore, without occupying additional space in re-
marking upon the rule above illustrated, proceed at once to an
enumeration of some few other kindred maxims, which are indeed
of minor importance, but, nevertheless, could not properly be
omitted in even the most cursory notice of the above-mentioned
branch of our legal system.

r*47Q1 *CuiCUNQUE ALIQUIS QUID CONCEDIT CONCEDERE VIDETUR

ET ID SINE QUO RES IPSA ESSE NON POTUIT.

(11 Rep. 52.)

Whoever grants a thing is supposed also tacithj to grant that without which
the grant itself would be of no effect.

" If you grant anything, you are presumed to grant to the ex-
tent of your power that also without which the thing granted
cannot be enjoyed."2 Thus, in The Caledonian Railway Company
v. Sprot,3 Lord Cranworth, C, in reference to the right to support,
observes, " If the owner of a house were to convey the upper story
to a purchaser, reserving all below the upper story, such purchaser
would, on general principles, have a right to prevent the owner of
the lower stories from interfering with the walls and beams upon

1 As to a sale or wrongful conversion by bailee for hire, see Cooper v.
Willomatt, 1 C. B. 672 (50 E. C. L. R.) ; Bryant v. Wardell, 2 Exch. 479 ;
Fenn v. Bittleston, 7 Exch. 152 ; Spackman v. Miller, 12 C. B. "N. S. 659,
676 (104E. C. L. R.).

2 Judgm., Lord v. Commissioners for City of Sydney, 12 Moo. P. C. C. 499-
500.

3 2 Macq. Sc. App. Cas. 449, 450, 451. See Great Western R. C. v. Fletcher,
5 H. & N. 689.

THE TRANSFER OF PROPERTY. 479

which the upper story rests, so as to prevent them from affording
proper support. The same principle applies to the case of adja-
cent support, so far, at all events, as to prevent a person who has
granted a part of his land from so dealing with that which he
retains, as to cause that which he has granted to sink or fall.
How far such adjacent support must extend is a question which, in
each particular case, will depend on- its own special circumstances.
* * * And it must further be observed, that all which a grantor
can reasonably be considered to grant or warrant, is such a
measure of support as is necessary for the land in its condition at
the time of the grant, or in the state for the purpose of putting it
into which the grant is made. Thus, if I grant a meadow to
another, retaining both the minerals under it, *and also the r*4QAi
adjoining lands, I am bound so to work my mines and to
dig my adjoining lands as not to cause the meadow to sink or fall
over. But if I do this, and the grantee thinks fit to build a house
on the edge of the land he has acquired, he cannot complain of my
workings or diggings if, by reason of the additional weight he has
put on the land, they cause his house to fall. If, indeed, the
grant is made expressly to enable the grantee to build his house on
the land granted, then there is an implied warranty of support,
subjacent and adjacent, as if the house had already existed."

The above reasoning is in conformity with the spirit of the
maxim supra, p. 479. So it is laid down, that when anything
is granted, all the means to attain it,1 and all the fruits and effects
of it, are granted also, and shall pass inclusive, together with the
thing by the grant of the thing itself, without the words eum perti-
nentiis,2 or any such-like words.3 And a right of way appurtenant
to land passes to the tenant by a parol demise of the land, although
nothing is said about it at the time of the demise.4

Therefore, by the grant of a piece of ground is granted a right

1 See Dalton's Justice 397 (ed. 1655); cited Evans v. Rees, 12 A. & E. 57,
58 (40 E. C. L. R.) ; arg. Mayor of London v. Reg., 13 Q. B. 37 (66 E. C. L;
R.) ; Free Fishers of Whitstable v. Gann, 11 C. B. N. S. 387 (103 E. C. L. R.) .
s. c, 13 Id. 853, 11 H. L. Cas. 192.

2 As to the effect of these words, see Cort v. Sagar, 3 H. & N. 370 ; Bac.
Abr. Grant (T. 4).

8 Shep. Touch. 89 ; Hobart 234 ; Vaugh. R. 109. See also, Jinks v. Edwards,
11 Exch. 775, in illustration of the above maxim.
* Skull v. Glenister, 16 C. B. N. S. 81 (111 E. C. L. R.).

480 broom's legal maxims.

of way to it over the grantor's land, as incident to the grant; and,
in like manner, by a reservation of the close is reserved also a
r*4.81"l ri'gnt °f way t° i^1 and by the * grant of trees is granted

powers to enter on the land to cut them down and take
them away.2 If a man leases his land and all mines, where there
are no open ones, the lessee may dig for the minerals ;3 and by the
grant of fish in a man's pond is granted power to come upon the
banks and fish for them.4 On the same principle, where trees are
excepted in a lease, the lessor has a power by law, as incident to
the exception, to enter upon the land demised at all reasonable
times in order to fell and carry away the trees; and the like law
holds with regard to a demise by parol.5 So a rector may enter
into a close to carry away the tithes over the usual way, as incident
[~*4.89l to n*s r*gnt to tne titnes-6 And a tenant at will, *after

notice to quit, or any other party who is entitled to emble-

1 1 Wms. Saunds. 323, n ; Pinnington v. Galland, 9 Exch. 1, 12 ; cited, per
Parke, B., Richards v. Rose, Id. 220 ; and distinguished in White v. Bass, 7
H. & N. 729, 732 ; Buckby v. Coles, 5 Taunt. 311 (1 E. C. L. R.) ; Robertson
v. Gantlett, 16 M. & W. 289.

The mode of creating and nature of a way of necessity were much con-
sidered in Pearson v. Spencer, 1 B. & S. 571 (101 E. C. L. R.).

A right of way of necessity can only arise by grant express or implied ;
Proctor v. Hodgson, 10 Exch. 824. See arg. Grove v. Withers, 4 Exch. 879.

The right to use a drain may pass impliedly by the grant of a house, Pyer
v. Carter, 1 H. & N. 916 (which " went to the utmost extent of the law," per
Martin, B., Dodd v. Burchell, 1 H. & C. 121) ; cited Chadwick v. Marsden, L.
R. 2 Ex. 289; Ewart v. Cochrane, 4 Macq. Sc. App. Cas. 117, 122; Hall v.
Lund, 1 H. & C. 676. See Polden v. Bastard, 32 L. J. Q. B. 372.

2 Howton v. Frearson, 8 T. R. 56 ; Noy Max., 9th ed., 54, 56 ; Plowd. Com.
16 a ; Finch Law 63 ; Clarke v. Cogge, Cro. Jac. 170 ; Beaudely v. Brook, Id.
190 ; per Best, C. J., 2 Bing. 83 (9 E. C. L. R.). See Robertson v. Gantlett,
16 M. & W. 289.

3 Where minerals are granted by deed, it must prima facie be presumed
that the minerals are to be enjoyed, and, therefore, that a power to get them
must also be granted or reserved as a necessary incident : per Lord Wensley-
dale, Rowbotham v. Wilson, 8 H. L. Cas. 360 ; per Martin, B., s. c, 8 E. &
B. 149 (92 E. C. L. R ).

4 1 Wms. Saund. 323, n. (6); Shep. Touch. 89; Co. Litt. 59 b; Liford's
Case, 11 Rep. 52; Foster v. Spooner, Cro. Eliz. 18; Saunders' Case, 5 Rep.
12 ; Noy Max., 9th ed., p. 56 ; Doe d. Rogers v. Price, 8 C. B. 894 (65 E. C.
L. R.).

5 Hewitt v. Isham, 7 Exch. 77, 79; Liford's Case, 11 Rep. 52; Ashmead v.
Ranger, 1 Ld. Raym. 552.

6 1 Wms. Saund. 323, note (6), adfinem.

THE TRANSFER OF PROPERTY. 482

ments, shall have free entry, egress, and regress, to cut and carry
them away.1 The right to emblements does not, however, give a
title to the exclusive occupation of the land. Therefore, it seems,
that, if the executors occupy till the corn or other produce be ripe,
the landlord may maintain an action for the use and occupation of
the land.2 On the same principle, where a tenant is entitled to an
away-going crop, he may likewise be entitled by custom to retain
possession of that portion of the land on which it grows ; and, in
this case, the custom operates as a prolongation of the term, or
rather of the legal right of possession as to such portion.3

So, it has been observed, that when the use of a thing is granted,
everything is granted by which the grantee may have and enjoy
such use ; as, if a man gives me a license to lay pipes of lead in
his land to convey water to my cistern, I may afterwards enter, and
dig the land, in order to mend the pipes, though the soil belongs to
another, and not to me.4

And where an Act of Parliament empowered a railway company
to cross the line of another company by means of a bridge, it was
held, that the first-mentioned company had, consequently, the right
of placing temporary scaffolding on the land belonging to the latter,
if the *so placing it were necessary for the purpose of con- r^oon
structing the bridge,5 for ubi aliquid conceditur, conceditur
et id sine quo res ipsa esse non potest. And a person lawfully ex-
posing goods for sale in a public market has a right to occupy the
soil with baskets necessary and proper for containing the goods.6

In a modern case, it was held, that a certain coal-shoot, water
and other pipes, all which were found, by special verdict, to be

1 Litt. s. 68 ; Co. Litt. 56 a, 153 a, cited 1 M. & S. 660 (28 E. C. L. R.).
» Woodf. L. & T., 9th ed., 586.

3 Per Bayley, J., Boraston v. Green, 16 East 81 ; Griffiths v. Puleston, 13
M. & W. 358 5 Ex parte Mandrell, 2 Madd. 315. See Strickland v. Maxwell,
2 Cr. & M. 539.

4 Per Twysden, J., Pomfret v. Ricroft, 1 Saund. R. 323 ; per Wigram, V.-
C, Blackesley v. Whieldon, 1 Hare 180 ; per Story, J., Charles River Bridge
v. Warren Bridge, 11 Peters (U. S.) R. 630, cited Richmond R. C. v. Louisa
R. C, 13 Howard (U. S.) R. 81 ; judgm., Hodgson v. Field, 7 East 622, 623.

6 Clarence R. C. v. Great North of England R. C, 13 M. & W. 706, 721 •
s. c, 4 Q. B. 46 (45 E. C. L. R.). See Doe v. Archb. of York, 14 Q. B. 81
(68 E. C. L. R.).

e Townend v. Woodruff, 5 Exch. 506.

483 broom's legal maxims.

necessary for the convenient and beneficial use and occupation of
a certain messuage, did under the particular circumstances pass to
the lessee as integral parts of such messuage ; and it was further
held, in strict accordance with the rule of law now under considera-
tion, that the right of passing and repassing over the soil of a cer-
tain passage for the purpose of using the said coal-shoot, and using,
cleaning, and repairing the said pipes, likewise passed to the lessee
as a necessary incident to the subject-matter actually demised,
although not specially named in the lease.1

In a deed of conveyance of certain land, the grantor excepted
and reserved out of the grant all coal-mines, together with sufficient
way-leave and stay-leave to and from the said mines, and the lib-
erty of sinking pits : the Court held, that, as the coals were ex-
cepted, and a right to dig pits for getting those coals reserved, all
things "depending on that right, and necessary for the obtaining
it," were, according to the above rule, reserved also, and conse-
quently that the owner had, as incident to the ^liberty to
L J sink pits, the right to fix such machinery as would be
necessary -to drain the mine3, and draw the coals from the pits ;
and, further, that a pond for the supply of the engine, and likewise
the engine-house, were necessary accessories to such an engine, and
were, therefore, lawfully made.2

Again, the power of making by-laws is, on the same principle,
incident to a corporation ; for, when the Crown creates a corpora-
tion, it grants to it, by implication, all powers that are necessary
for carrying into effect the objects for which it is created, and se-
curing a perpetuity of succession. Now, a discretionary power
somewhere to make minor regulations, usually called by-laws, in
order to effect the objects of the charter, is necessary; and the
reasonable exercise of this power is, therefore, impliedly granted
by the Crown, and is conferred by the very act of incorporation.3

1 Hinchcliffe v. Earl of Kinnoul, 5 Bing. N. C. 1 (35 E. C. L. R.); Hall v.
Lund, 1 II. & C. 676 ; see Pheysey v. Vicary, 16 M. & W. 484.

2 Dand v. Kingscote, 6 M. & W. 174, and cases there cited ; Rogers v.
Taylor, 1 H. & N. 706, 711 ; citing Dand v. Kingscote, supra, and Earl of
Cardigan v. Armitage, 2 B. & C. 197 (9 E. C. L. R.); Hodgson v. Field, 7
East 613.

8 R. v. Westwood, 7 Bing. 20 (20 E. C. L. R.). See Chilton v. London and
Croydon R. C, 16 M. & W. 212; Calder and Hebble Nav. Co. v. Pilling, 14
M. & W. 76. A by-law is " a rule made prospectively, and to be applied

THE TRANSFER OF PROPERTY. 484

So, a corporation incorporated for trading purposes has impliedly
power to contract by parol for purposes necessary for the carrying
on of their trade.1

The above maxim, however, must be understood as applying to
such things only as are incident to the grant, and directly necessary
for the enjoyment of the thing granted : therefore, if a man, as in
the instance above put, grants to another the fish in his ponds, the
grantee cannot cut the banks to lay the ponds dry, for he may

take the *fish with nets or other engines.2 So, if a man,

• r*4851

upon a lease for years, reserve a way for himself through L -1

the house of the lessee to a back-house, he cannot use it but at
reasonable times, and upon request.3 A way of necessity is also
limited by the necessity which created it, and, when such necessity
ceases, the right of way likewise ceases; therefore, if, at any subse-
quent period, the party formerly entitled to such way can, by
passing over his own land, approach the place to which it led by
as direct a course as he would have done by using the old wray, the
way ceases to exist as of necessity.4 A way of necessity once
created, must, however, remain the same way as long as it continues
at all.5

On a principle similar to that which has been thus briefly con-
sidered, it is a rule, that, when the law commands a thing to be
done, it authorizes the performance of whatever may be necessary for
executing its command: — Quando aliquid mandatur, mandatur et
omne per quod pervenitur ad Mud.6 Thus, when a statute gives a

whenever the circumstances arise for which it is intended to provide:"
judgm., Gosling v. Veley, 7 Q. B. 451 (53 E. C. L. R.) ; Bac. Abr., Corpora-
tions (D).

1 Broom's Com., 4th ed., 564.

2 1 Wms. Saund. 233, n (6), ad Jiaem; Lord Darcy v. Askwith, Hob. 234 ;
per Parke, B., 6 M. & W. 189.

3 Tomlin v. Fuller, 1 Ventr. 48. See also, Morris v. Edgington, 3 Taunt.
24. cited 6 M. & W. 189 ; Wilson v. Bagshaw, 5 Man. & By. 448 ; Osborn v.
Wise, 7 C. & P. 761 (32 E. C. L. R.).

* Holmes v. Goring, 2 Bing. 76 (9 E. C. L. B.). As to which case see, per
Parke, B., Proctor v. Hodgson, 10 Exch. 828 ; judgm., 1 B. & S. 584 (101 E.
C. L. R.). See Grove v. Withers,'4 Exch. 875.

The maxim considered in the text is also applied, per Alderson, B., Breese
v. Owens, 6 Exch. 417.

* Pearson v. Spencer, 1 B. & S. 571, 584 (101 E. C. L. R.).
6 5 Rep. 116.

In accordance with the same principle, an agent is sometimes held to be

486 broom's legal maxims.

P4861 *Justice °f tne peace jurisdiction over an offence, it im-
pliedly gives him power to apprehend any person charged
with such offence.1 So, constables, whose duty it is to see the peace
kept, may, when necessary, command the assistance of others.2 In
like manner, the sheriff is authorized to take the posse eomitatus, or
power of the county, to help him in executing a writ of execution,
and every one is bound to assist him when required so to do ;3 and,
by analogy, the persons named in a writ of rebellion, and charged
with the execution of it, have a right, at their discretion, to require
the assistance of any of the liege subjects of the Crown to aid in the
execution of the writ.4

The foregoing are simple illustrations of the last-mentioned
maxim, or of the synonymous expression, Quando lex aliquid alicui
concedit, conceditur et id sine quo res ipsa esse non potest,5 the full
import of which has been thus elaborately set forth :6 — " Whenever
anything is authorized, and especially if, as matter of duty, required
to be done by law, and it is found impossible to do that thing unless
something else not authorized in express terms be also done, then
that something else will be supplied by necessary intendment. But
if, when the maxim comes to be applied adversely to the liberties or
r*4871 interests of others, it be found that no such impossibility
exists, — that the power may be legally exercised without
the doing that something else, or, even going a step farther, that it is

impliedly clothed with power to act in cases of necessity. See Edwards v.
Havill, 14 C. B. 107 (78 E. C. L. R.) ; Beldon v. Campbell, 6 Exch. 886, 889 ;
cited per Sir R. Phillimore, The Karnak, L. R. 2 A. & E. 302 ; s. c, L. R. 2
P. C. 505; Frost v. Oliver, 2 E. & B. 301 (75 E. C. L. R.), with which cases
compare Organ v. Brodie, 10 Exch. 449 ; Story on Agency, 4th ed., 110, 179,
242, 299. The maxim cited supra has indeed a very wide applicability in
connection with the law of Principal and Agent, see ex. gr. Bayley v.
Wilkins, 7 C. B. 886 (62 E. C. L. R.). It was unsuccessfully relied on in
Brady v. Todd, 9 C. B. N. S. 592 (99 E. C. L. R.) ; with which compare Miller
v. Lawton, 15 C. B. N. S. 834 (109 E. C. L. R.).

1 Bane v. Methuen, 2 Bing. 63 (9 E. C. L. R.). See R. v. Benn, 6 T. R. 198.

2 Noy Max., 9th ed., p. 55.

3Foljamb's Case, 5 Rep. 116; cited 4 Bing. N. C. 583 (33 E. C. L. R.);
Noy Max., 9th ed., p. 55 ; 1 Chit. Archb. Pr. 11th ed., 615 ; judgm., Howden
v. Standish, 6 C. B. 521 (60 E. C. L. R.).

* Miller v. Knox, 4 Bing. N. C. 574 (33 E. C. L. R.),

6 12 Rep. 131.

«Fenton v. Hampton, 11 Moo. P. C. C. 360.

THE TRANSFER OP PROPERTY. 487

only in some particular instances, as opposed to its general opera-
tion, that the law fails in its intention unless the enforcing power
be supplied, — then in any such case the soundest rules of construc-
tion point to the exclusion of the maxim, and regard the absence
of the power which it would supply by implication as a casus
omissus."

The mode of applying the maxim just cited may be thus exem-
plified : —

The Lower House of Assembly of the island of Dominica is a
legislative assembly constituted under royal proclamation1, and em-
powered by various commissions given subsequently to the governor
for the time being, to make, with the advice and consent of the
Council, laws for the peace, welfare, and good government of the
inhabitants of the colony.2 The question not long since arose,3 has
this legislative assembly authority to commit and punish for con-
tempts committed, and for interruptions and obstructions to the
business of the said House by its members or others in its presence
and during its sittings ? In deciding this question adversely to the
asserted right, the Judicial Committee of the Privy Council observed
in substance as follows : — It must be conceded that as the common
law sanctions the exercise of the prerogative by which the Assembly
was created, the principle of the common law, embodied in the
maxim, quando lex aliquid concedit, concedere videtur et illud
*sine quo res ipsa esse non potest, applies to the body so ere- r*4.QQi
ated. The question therefore is reduced to this : Is the power
to punish and commit for contempts committed in its presence, one
necessary to the existence of such a body as the Assembly of Domi-
nica and the proper exercise of the functions which it is intended
to execute ? It is necessary to distinguish between a power to
punish for a contempt, which is a judicial power, and a power to
remove any obstruction offered to the deliberations or proper action
of a legislative body during its sitting, which last power is necessary
for self-preservation. If a member of a Colonial House of Assem-
bly is guilty of disorderly conduct in the House whilst sitting, he
may be removed, or excluded for a time, or even expelled ; but
there is a great difference between such powers and the judicial
power of inflicting a penal sentence for the offence. The right to

1 21st June, a. d. 1775. 2 Clark. Col. L., 134.

3 Doyle v. Falconer, 4 Moo. P. C. C. N. S. 203; s. c, L. R. 1 P. C. 328.

488 bkoom's legal maxims.

remove for self-security is one thing, the right to inflict punishment
is another. The former is all that is warranted by the maxim above
cited, but the latter is not its legitimate consequence. To establish
a right to the particular privilege claimed — it must be shown to be
essential to the existence of the Assembly — an incident sine quo res
ipsa esse non potest.1

To take another exemplification of the foregoing maxim — By
sect. 86 of the stat. 8 & 9 Vict. c. 20, power is given to a railway
company within its provisions to use and employ locomotive engines.
If then such locomotive engines cannot possibly be used without oc-
casioning vibration and consequent injury to neighboring houses,
r*48Q~l *uPon the principle of law that cuicunque aliquis quid eon-
cedit, concedere videtur et id sine quo res ipsa esse non
potuit, it must be taken that power is given to cause that vibration
without liability to an action. The right given to use the locomo-
tives would otherwise be nugatory, as each time a train passed upon
the line and shook the houses in the neighborhood, actions might
be brought by their owners which would soon put a stop to the use
of the railway.2

On the other hand, quando aliquid prohibetur, prohibetur et
omne per quod devenitur ad illud3 — whatever is prohibited by law
to be done directly cannot legally be effected by an indirect and
circuitous contrivance ;4 — a transaction will not be upheld which is
" a mere devise for carrying into eifect that which the legislature
has expressly said shall not be done;5 of which maxim the follow-
ing instances must suffice : — The donee of a power of appointment

1 Judgm., 4 Moo. P. C. C. N. S. 219, 221 ; Kielley v. Carson, 4 Moo. P. C.
C. 63, overruling Beaumont v. Barrett, 1 Id. 59.

* Per Lord Chelmsford, Hammersmith and City R. C. v. Brand, L. R. 4 H.
L. 202.

3 2 Inst. 48.

* Booth v. The Bank of England, 7 CI. & Fin. 509 ; judgm., 12 Peters (U.
S.) R. 605 ; Co. Litt. 223 b ; Wing. Max., p. 618 ; per Lord Kenyon, C. J., 8
T. R. 301, 415. See Hughes v. Statham, 4 B. & C. 187, 193 (10 E. C. L. R.) ;
Duke of Marlborough v. Lord Godolphin, cited 2 T. R. 251, 252. A court of
law will not use a power which it has for the purpose of indirectly exercising
a power which it has not: A.-G. v. Bovet, 15 M. & W. 71. " In actions for
the infringement of patent rights, it is of constant recurrence that the grava-
men is laid, not as a direct infringement, but as something amounting to a
colorable evasion of the right secured to the party : " per Tindal, C. J., 7 CI.
& Fin. 546.

6 Morris v. Blackman, 2 II. & C. 912, 918.

THE TRANSFER OF PROPERTY. 489~ V^T>

must exercise the power without any indirect object, and in doing
so must act with good faith and sincerity, and with an entire and
single view to the real purpose and object of the power, and for
the purpose of accomplishing any bye or sinister object which he
may *desire to effect.1 If a tenant, under covenant not r* iqn-|
to "let, set, assign, transfer or make over" the indenture
of lease, give a warrant of attorney to confess judgment to a cred-
itor, for the express purpose of enabling such creditor to take the
lease in execution under the judgment, this is in fraud of the cove-
nant, and the landlord, under a clause of re-entry in the lease for
breach of the condition, may recover the premises in ejectment
from a purchaser under the sheriff's sale. In this case, the tenant
could not, by any assignment, under-lease, or mortgage, have con-
veyed his interest to a creditor, and, consequently, he cannot con-
vey it by an attempt of this kind. If the lease had been taken by
the creditor under an adverse judgment, the tenant not consenting,
it would not have been a forfeiture ; but in the above case, the
tenant concurred throughout, and the whole transaction was per-
formed for the very purpose of enabling the tenant to convey his
term to the creditor.2

But, although the above is, no doubt, the general rule, and is
evidently consistent with sound sense and common honesty, yet
there are cases, as was recently observed with reference to the
modus operandi of a court of equity, in which that Court will effect,
by an indirect course, that which it could not do directly. For
instance, the court will not by any direct order, compel a person
who has improperly erected a wall which is a nuisance to another,
*to pull it down; but the Court can make an order re- r*4Q-n
quiring him not to continue the nuisance, and this order
will necessarily have the effect of compelling him to pull down the
wall.3

1 Duke of Portland v. Topham, 11 H. L. Cas, 32, 54.

2 Doe d. Mitchinson v. Carter, 8 T. R. 300; s. c, Id. 57 ; Croft v. Lumley,
6 H. L. Cas. 739-40; 5 E. & B. 648, 682, 688 (85 E. C. L. R.) ; per Martin,
B., Price v. Worwood, 4 II. & N. 513. In Hill v. Cowdery, 1 II. & N. 360,
365, Bramwell, B., citing Croft v. Lumley, observes, that the doctrine there
laid down is, that " when a person covenants that he will not do an act, he
does not break his covenant if he does an act which indirectly brings about
the result provided against."

3 Per Lord Lyndhurst, C, Hills v. Croll, 1 Cooper Pract. Cas. 86 ; Colman
v. Morris, 18 Ves. jun. 437 ; Kerr on Injunctions 230.

491 broom's legal maxims.

accessorium non ducit sed sequitur suum principale.

(Co. Litt. 152 a.)

The incident shall pass by the grant of the principal, but not the principal
by the grant of the incident.1

Upon the maxim Res aecessoria sequitur rem prineipalem,2 de-
pended the important doctrine of aceessio3 in the Roman law,
aceessio being that particular mode of acquisition of property
whereby the proprietor of the principal thing became, ipso jure,
proprietor also of all belonging to the principal as accessory to it.
Two extensive classes of cases were accordingly comprised within
the operation of the above-mentioned principle : 1st, that in which
l~*4921 ^e proprietor of a thing acquired a right of *property in
the organic products of the same, as in the young of ani-
mals, the fruit and produce of trees, the alluvion or deposit on
land, and in some other descriptions of property originating under
analogous circumstances. The second class of cases above alluded
to comprised those in which one thing becomes so closely connected
with and attached to another that their separation cannot be effected
at all, or at all events not without injury to one or other of them ;
and in such cases the owner of the principal thing was held to be-
come proprietor also of the accessory connected therewith.4

The above maxim, Accessorium non ducit sed sequitur suum prin-

1 Co. Litt. 152 a, 151 b ; per Vaughan, B., Harding v. Pollock, 6 Bing. 63
(19 E. C. L. 11.).

2 A principal thing (res principalis) is a thing which can subsist by itself,
and does not exist for the sake of any other thing. All that belongs to a
principal thing, or is in connexion with it, is called an accessory thing (res
aecessoria)." Mackeld. Civ. Law 155. See ex. gr. Ashworth app., Hey-
worth, resp., L. R. 4 Q. B. 316, 319.

3 "Accessio is the general name given" in the Roman Law "to every
accessory thing, whether corporeal or incorporeal, that has been added to a
principal thing from without, and has been connected with it, whether by the
powers of nature or by the will of man, so that in virtue of this connexion it
is regarded as part and parcel of the thing. The appurtenances to a thing
are to be noticed as a peculiar kind of accession ; they are things connected
with another thing, with the view of serving for its perpetual use." Mackeld.
Rom. Law 155, 156.

4 See Mackeld. Civ. Law 279, 281 ; I. 2. 1., Be Berum Divisione; Brisson.
ad verb. " Accessorium.'1''

THE TRANSFER OF PROPERTY. 492

cipale, is, then, derived from the Roman law, and signifies that the
accessory right follows the principal ;l it may be illustrated by the
remarks appended to the rule immediately preceding,2 as also by
the following examples : —

An easement to take water from a river to fill a canal ceases
when the canal no longer exists.3 The owner of land has, primd
facie, a right to the title-deeds, as something annexed to his estate
in the land, and it is accordingly laid down, that, if a man seised
in fee conveys land to another and his heirs, without warranty, all
the title-deeds belong to the purchaser, as incident to the land,4
though not granted by express words.5 In like manner, [-smqq-i
*heir-looms are such goods and chattels as go by special
custom to the heir along with the inheritance, and not to the ex-
ecutor or administrator of the last owner of the estate ; they are due
to the heir by custom, and not by the common law, and he shall
accordingly have an action for them. There are also some other
things in the nature of heir-looms which likewise descend with the
particular title or dignity to which they are appurtenant.6

Again, rent is incident to the reversion, and, therefore, by a gen-
eral grant of the reversion, the rent will pass ; though, by the grant
of the rent generally, the reversion will not pass, for Accessorium
non ducit sed sequitur suum principale : however, by the introduc-
tion of special words, the reversion may be granted away, and the
rent reserved.7 So, an avowson appendant to a manor is so entirely
and intimately connected with it, as to pass by the grant of the
manor cum pertinentiis, without being expressly mentioned or
referred to ; and, therefore, if a tenant in tail of a manor with an
advowson appendant suffered a recovery, it was not necessary for
him to make any express mention of his intention to include the
advowson in the recovery ; for any dealing with the manor, which is

1 Bell. Diet, and Dig. of Scotch Law, p. 7. See also Co. Litt. 389 a.

2 See also Chanel v. Robotham, Yelv. 68 ; Wood v. Bell, 5 E. & B. 772 (85
E. C.L. R.).

* National Guaranteed Manure Co. v. Donald, 4 H. & N. 8.

* See per Tindal, C. J., Tinniswood v. Pattison, 3 C. B. 248 (54 E. C. L. R.),
et vide Id. n. (6).

6 Lord Buckhurst's Case, 1 Rep. 1 ; Goode v. Burton, 1 Exch. 189, 193, et
seq.] Allwood v. Heywood, 32 L. J. Ex. 153.

8 See 1 Crabb Real Prop. 11, 12.

7 2 Com. by Broom & Hadley 339 ; Litt. s. 229 ; Co. Litt. 143 a.

25

493 broom's legal maxims.

the principal, operates on the advowson, which is the accessory,
whether expressly named or not. It is, however, to be observed, that,
although the conveyance of the manor prirnd facie draws after it the
advowson also, yet it is always competent for the owner to sever the
advowson from the manor, either by conveying the advowson away
from the manor, or by conveying the manor without the advowson;1
r*4Q41 anc^ nence tnere is a *marked distinction between the pre-
ceding cases and those in which the incident is held to be
inseparably connected with the principal, so that it cannot be sev-
ered therefrom. Thus, it is laid down that estovers, or wood
granted to be used as fuel in a particular house, shall go to him
that hath the house; and that, inasmuch as a court baron is inci-
dent to a manor, the manor cannot be granted and the court re-
served.2 In some cases, also, that which is parcel or of the essence
of a thing passes by the grant of the thing itself, although at the
time of the grant it were actually severed from it ; by the grant,
therefore, of a mill, the mill-stone will pass, although severed from
the mill.3

Again, common of pasture appendant is the privilege belonging
to the owners or occupiers of arable land holden of a manor, to put
upon the wastes of the manor their horses, cattle, or sheep ; it is
appendant to the particular farm, and passes with it, as incident to
the grant.4 But divers things which, though continually enjoyed
with other things, are only appendant thereto, do not pass by a
grant of those things ; as, if a man has a warren in his land, and
grants or demises the land, by this the warren does not pass, unless,
indeed, he grants or demises the land cum pertinentiis, or with all
the profits, privileges, &c, thereunto belonging, in which case the
warren might, perhaps, pass.5

1 Judgm., Moseley v. Motteux, ]0 M. & W. 544; Bac. Abr., "Grants"
(I. 4).

2 finch's Law 15.

3 Shep. Touch. 90. See Wyld v. Pickford, 8 M. & W. 443. As to what
shall be deemed to pass as appendant, appurtenant, or incident, see Bac. Abr.,
" Grants" (I. 4). Smith v. Ridgway, 4 H. & C. 37, 577 ; Langley v. Ham-
mond, L. R. 3 Ex. 161.

* Shep. Touch. 89, 240 ; Bac. Abr., " Grants " (I. 4) ; Co. Litt., by Thomas,
vol. i. p. 227.

6 Shep. Touch. 89 j 1 Crabb Real. Prop. 488. See Pannell v. Mill, 3 C. B.
625 (54 E. C. L. R.) ; Graham v. Ewart, 1 H. & N. 550; s. c, 11 Exch. 320;

THE TRANSFER OF PROPERTY. 495

* Another well-known application of the maxim under r+AQfn
consideration is to covenants running with the land, which L -*
pass therewith, and on which the assignee of the lessee, or the heir
or devisee of the covenantor, is in many cases liable, according to
the kindred maxim of law, transit terra cum onere;1 a maxim, the
principle of which holds not merely with reference to covenants,
but likewise with reference to such customs as are annexed to land
— for instance, it is laid down that the custom of gavelkind, being
a custom by reason of the land, runs therewith, and is not affected
by a fine or recovery had of the land ; but "otherwise it is of lands
in ancient demesne partible among the males, for there the custom
runneth not with the land simply, but by reason of the ancient
demesne ; and, therefore, because the nature of the land is changed,
by the fine or recovery, from ancient demesne to land at the com-
mon law, the custom of parting it among the males is also gone."2

With reference to titles, moreover, one of the leading rules is

cessante statu primitivo cessat derivativus3 — the derived estate ceases

on the determination of the original estate ; and the exceptions to

this rule have been said to create some of the many difficulties

which present themselves in the investigation of titles.4 The rule

itself may be illustrated by the ordinary case of a demise

P4961
*for years by a tenant for life, or by any person having a L J

particular or defeasible estate, which, unless confirmed by the re-
mainderman or reversioner, will determine on the death of the
lessor ; and the same principle applies whenever the original estate
determines according to the express terms or nature of its limita-
tion, or is defeated by a condition in consequence of the act of the
party, as by the marriage of a tenant durante viduitate, or by the
resignation of the parson who has leased the glebe lands or tithes
belonging to the living.5

cited in Jeffryes v. Evans, 19 C. B. N. S. 266 (115 E. C. L. R.) ; Earl of Lons-
dale v. Rigg, 1 1 Exch. 654 ; s. c, 1 H. & N. 923.

1 Co. Litt. 231 a. 2 Finch's Law 15, 16. 3 8 Rep. 34.

* 1 Prest. Abs. Tit. 245.

The maxim supra " applies only when the original estate determines by
limitation or is defeated by a condition. It does not apply when the owner
of the estate does any act which amounts to an alienation or transfer, though
such alienation or transfer produces an extinguishment of the original estate."
Shep. Touch., by Preston, 286. See London, &c, Loan Co. v. Drake, 6 C. B.
N. S. 798, 810 (95 E. C. L. R.).

6 1 Prest. Abs. Tit. 197, 317, 358, 359.

496 broom's legal maxims.

The law relative to contracts and mercantile transactions likewise
presents many examples of the rule that the accessory follows and
cannot exist without its principal ; thus, where framed pictures are
sent by a carrier, the frames, as well as the pictures, are within the
Carriers' Act (11 Geo. 4 & 1 Will. 4, c. 68, s. I).1 Again, the
obligation of the surety is accessory to that of the principal, and
is extinguished by the release or discharge of the latter, for quum
principalis causa non consistit ne ea quidem quce sequuntur locum
habent,2 and qua? accessionum locum obtinent extinguuntur cum
principales res peremptce fuerint? The converse, however, of the
case just instanced does not hold, and the reason is that accessorium
non trahit principale.4 As it would be tedious to enumerate cases
illustrative of maxims so evidently true and so widely applicable
as the above, we shall merely add that, as a general rule, and ex-
cept under special circumstances — as where the County Court Acts
T*4971 *°Perate to deprive of costs — costs follow the verdict. So,
likewise, interest of money is accessory to the principal,
and must, in legal language, "follow its nature;"5 and, therefore,
if the plaintiff in any action is barred from recovering the principal,
lie must be equally barred from recovering the interest.6 And, " If
by a will the whole of the personal estate, or the residue of the
personal estate, be the subject of an executory bequest, the income
of such personal estate follows the principal as an accessory, and
must, during the period which the law allows for accumulation, be
accumulated and added to the principal."7

Freight8 is also said to be "the mother of wages," so that where

1 Henderson v. London & North-Western R. C, L. R. 5 Ex. 90 -, distinguish-
ing Treadwin v. Great Eastern R. C, L. R. 3 C. P. 308.
* D. 50. 17. 129, § 1 ; 1 Pothier Oblig. 413.

3 2 Pothier Oblig. 202.

4 1 Pothier Oblig. 477 ; 2 Id. 147, 202.
6 3 Inst. 139 ; Finch's Law 23.

6 Judg., Clarke v. Alexander, 8 Scott N. R. 165. See per Lord Ellenbor-
ough, C. J., 3 M. & S. 10 ; 2 Pothier Oblig. 479. " The giving of interest is
not by way of a penalty, but is merely doing the plaintiff full justice, by
having his debt with all the advantages properly belonging to it. It is in
truth a compensation for delay." Judgm., 16 M. & W. 144.

See Hollis v. Palmer, 2 Bing. N. C. 713 (87 E. C. L. R.) ; Florence v. Dray-
son, 1 C. B. N. S. 584 (29 E. C. L. R.) ; Florence v. Jennings, 2 Id. 454.

7 Per Lord Westbury, C, Bective v. Hodgson, 10 H. L. Cas. 665.

8 Denned per Piatt, B., Gibson v. Sturge, 10 Exch. 637.

THE TRANSFER OF PROPERTY. 497

freight is not earned wages were not, as a general rule, recoverable
at common law.1

Lastly, in criminal law it is also true that accessorius sequitur
naturam sui principalis ;2 and, therefore, an accessory cannot be
guilty of a higher crime than his principal, being only punished as
a partaker of his guilt.3

*LlCET DlSPOSITIO DE INTERESSE FUTURO SIT INUTILIS r*4qo-i
TAMEN FIERI POTEST DECLARATIO PRJECEDENS QILE
SORTIATUR EFFECTUM INTERVENIENTE NOVO ACTU.

(Bac. Mac, reg. 14.)

Although the grant of a future interest is invalid, yet a declaration precedent
may be made which will take effect on the intervention of some new act.

"The law," says Lord Bacon, "doth not allow of grants except
there be a foundation of an interest in the grantor; for the law
that will not accept of grants of titles, or of things in action which
are imperfect interests, much less will it allow a man to grant or
encumber that which is no interest at all, but merely future. But
of declarations precedent, before any interest vested, the law doth
allow, but with this difference, so that there be some new act or con-
veyance to give life and vigor to the declaration precedent."4

With respect to the first part of the above rule, viz., that a dis-
position of after-acquired property is altogether inoperative, it was
observed in a recent case,5 that Lord Bacon assumes this as a
proposition of law which is to be considered as beyond dispute, and
accordingly we find the same general rule laid down by, all the
older writers of authority. "It is," says Perkins,6 "a common

1 Smith, M. L., 5th ed., 430 ; Hawkins v. Twizell, 5 E. & B. 883 (85 E. C.
L. K.).

" The effect of a mortgage of a ship, under a contract for earning freight, is
to transfer the freight to the mortgagee." Per Martin, B., Kusden v. Pope,
L. R. 3 Ex. 276.

2 3 Inst. 139.

3 4 Com. by Broom & Hadley 35. See Stat. 24 & 25 Vict. c. 94.

4 Bac. Max., reg. 14. * Judgm., 1 C. B 386.

6 Tit., " Grants," s. 65. See also Vin. Abr., " Grants" (H. 6) ; Noy Max.,
9th ed., 162; Com. Dig., " Grant" (D).

498 broom's legal maxims.

learning in the law, that a man cannot grant or charge that which
he hath not." And again, it is said, that if a man grants unto me
all the wool of his sheep, meaning thereby the wool of sheep which
r*4QQT *^e grantor at *that time has, the grant is good;1 but a
man cannot grant all the wool which shall grow upon his
sheep that he shall buy hereafter, for then he hath it neither
actually nor potentially.2 So, it has been held, that a man cannot
by deed of bargain and sale pass the property in goods which
are not in existence,3 or, at all events, which are not belonging t°
the grantor at the time of executing the deed ;4 " the law," indeed,
"has long been settled, that a person cannot by deed, however
solemn, assign that which is not in him ;"5 and, in accordance with
this principle, where a bill of sale purported to be an absolute
assignment of furniture and farming stock, " and other things,
which are now, or which at any time during the continuance of this
security shall be in, and about, and belonging to the dwelling-
house," the Court of Queen's Bench held, that such deed could not
operate as an assignment of the goods thereafter to be brought upon
the premises, and not specified therein.6

r*"00T *^* w*^ ^e 0Dserved> however, that, according to the dis-
tinction just stated, a grant of the future produce of pro-

1 Perkins, tit. " Grants;' s. 90.

2 Grantham v. Ilawley, Hob. 132. See Shep. Touch., by Preston, 241.

In Webster v. Power, L. R. 2 P. C. 69, a mortgage of a certain number of
branded sheep and herds of cattle, on a run in the colony of New South
Wales, with the issue, increase, and produce thereof, was held limited to the
issue and increase of the specific sheep, and not to include sheep afterwards
brought upon the run, though in substitution for those specified in the origi-
nal mortgage.

s " If a chattel is sold, and at the time of the sale the chattel does not exist,
the contract is not binding upon the purchaser;" per Martin, B^ Strickland
v. Turner, 7 Exch. 215 ; citing Barr v. Gibson, 3 M. & W. 390 ; Couturier v.
Hastie, 8 Exch. 40 ; s. c, 9 Exch. 102 ; 5 H. L. Cas. 673 ; Risbourg v. Bruck-
ner, 3 C. B. N. S. 812 (91 E. C. L. R.).

4 Lunn v. Thornton, 1 C. B. 379 (which was founded on the maxim Nemo
dat qui non habet, per Willes, J., Chidell v. Galsworthy, 6 C. B. N. S. 478 (95
E. C. L. R.). See Tapfield v. Hillman, 6 Scott N. R. 967; Price v. Groom, 2
Exch. 542, 547 ; and cases cited post.

5 Per Pollock, C. B., Belding v. Read, 3 H. & C. 961.

« Gale v. Burnell, 7 Q. B. 850 (53 E. C. L. R.) (affirming the principle laid
laid down in Lunn v. Thornton, 1 C. B. 379 (50 E. C. L. R.)); per Wil-
liams, J., Baker v. Gray, 17 C. B. 481 (84 E. C. L. R.) ;post.

THE TRANSFER OF PROPERTY. 500

perty actually in the possession of the grantor at the time of the
grant is valid. " He that hath it (land) may grant all fruits that
may arise upon it after, and the property shall pass as soon as the
fruits are extant;"1 and this proposition was fully recognised in a
recent case, where a tenant for years of a farm, being indebted to
his landlord, assigned to him, by deed, all his household goods, &c,
and also all his " tenant right and interest yet to come and unexpired"
in and to the farm and premises ; and it was held that, under this
assignment, the tenant's interest in crops grown in future years of
the term passed to the landlord.2

It remains, then, to consider the second part of Lord Bacon's
rule above stated, viz., that a declaration, if followed by some act or
conveyance, may be effectual in transferring property not actually
in possession of the party at the time of making such declaration.
For instance, a power contained in an indenture to seize future
crops, if unexecuted, would be of no avail against an execution
levied, as giving no legal or equitable title to any specific crops;
yet, if the power be subsequently executed by the grantee taking
possession of the then growing crops, the seizure will be good as
against an execution afterwards levied;3 for the act done by the
*grantor is sufficient to give effect to the antecedent r*-n-|-i
declaration, within the scope and meaning of Lord Bacon's
maxim.

Further, in commenting on the rule before us, Lord Bacon thus
exemplifies the qualification with which it is to be received : " If,"
he says,4 u there be a feoffment by a disseisee, and a letter of at-
torney to enter and make livery of seisin, and afterwards livery of

1 Grantham v. Hawley, Hobart 132.

2 Petch v. Tutin, 15 M. & W. 110; recognising and following Grantham v.
Hawley, Hobart 132.

8 Congreve v. Evetts, 10 Exch. 298. Ace. Hope v. Hayley, 5 E. & B. 830
(85 E. C. L. R.) ; Chidell v. Galsworthy, 6 C. B. N. S. 471 (95 E. C. L. R.) ;
Belding v. Read, 3 H. & C. 955, 963, 965, distinguishing Holroyd v. Marshall,
10 H. L. Cas. 191, cited post See Baker v. Gray, 17 C. B. 462 (84 E. C. L.
R.) ; Reeve v. Whitmore, 33 L. J. Chanc. 63 ; s. c, 32 Id. 497.

In connection with the subject above touched upon, the stat. 17 & 18 \ ict*
c. 36, intituled " An Act for preventing Frauds upon Creditors by secret Bills
of Sale of personal Chattels" (amended by 29 & 30 Vict. c. 96), should be
consulted.

4 Max., reg. 14.

501 broom's legal maxims.

seisin is made accordingly, this is a good feoffment, although the
feoffor had a right only at the time of making the feoffment ; the
reason assigned being that a deed of feoffment is but matter of de-
claration and evidence, and there is a new act, that is to say, the
livery subsequent, which gives effect and validity to the prior con-
veyance." In like manner, " if I grant unto J. S. authority by my
deed to demise for years the land whereof I am now seised, or here-
after shall be seised, and after I purchase lands, and J. S., my at-
torney, doth demise them, this is a good demise, because the demise
of my attorney is a new act, and all one with a demise by myself;"
and " Where by deed indented a man represents himself as the
owner of an estate, and affects to convey it for valuable considera-
tion, having at the time no possession or interest in the estate, and
where nothing therefore can pass, whatever be the nature of the con-
veyance, there if by any means he afterwards acquire an interest in
the estate, he is estopped, in respect of the solemnity of the in-
strument, from saying, as against the other party to the indenture,
contrary to his averment in that indenture, that he had not such
interest at the time of its execution."1

r**iOOl *^"n a mo(^ern case? a^so) we read that " At law an assign-
ment of a thing which has no existence actual or potential
at the time of the execution of the deed is altogether void.2 But
where future property is assigned, and after it comes into existence
possession is either delivered by the assignor or is allowed by him
to be taken by the assignee, in either case there would by the novus
actus interveniens of the maxim of Lord Bacon, and the property
would pass."3

The effect and operation of agreements relating to future property
is, indeed, different at law and in equity. At law property non-ex-
isting but to be acquired at a future time is not assignable ; in equity
it is so. At law, although a power is given in the deed of assign-
ment to take possession of after-acquired property, no interest is
transferred, even as between the parties themselves, unless posses-
sion is actually taken ; in equity the moment the property comes
into existence the agreement operates upon it.4

1 Per Sir John Leach, V.-C, Bensley v. Burdon, 2 Sim. & St. 526.

2 Citing Robinson v. Macdonnell, 5 M. & S. 228.

3 Per Lord Chelmsford, Holroyd v. Marshall, 10 H. L. Cas. 216.

* Per Lord Chelmsford, 10 H. L. Cas. 220 ; Brown v. Bateman, L. R. 2 C.
P. 272.

THE TRANSFER OF PROPERTY. 502

We may conclude accordingly that, although, subject to the re-
strictions above stated, a grant of goods which are not in existence,
or do not belong to the grantor at the time of executing the deed,
is void, yet the grantor may ratify his grant by some act done by
him with that view, after he has acquired the property in the goods,
or by some act indicating his intention that they should pass under
the deed already executed.1

From the instances above given, it sufficiently appears in what
manner "there must be some new act or conveyance *to r*cnq-i
give life and vigor to the declaration precedent,"2 as laid
down by Lord Bacon — there must be some new act, to be done by
the grantor in furtherance of the original disposition, and for the
avowed object and with the view of carrying it into effect.

But although a conveyance of future property is thus, in many
cases, inoperative and void, yet, by will, property to which the
testator has become entitled subsequently to its execution will, un-
doubtedly, pass;3 a will, however, is an instrument of a peculiar
nature, being ambulatory and revocable during the life of the
testator, and speaking only at his death, unless an intention to the
contrary is clearly manifested,4 according to the maxims, Ambula-
toria enim est voluntas defuncti usque ad vitce supremum exitum,5

1 Lunn v. Thornton, ante, p. 499 ; 1 Fonb. Eq. 216.

2 Bac. Max., reg. 14.

s 1 Vict. 26, s. 3. See per Lord Mansfield, C. J., 1 Cowp. 305, 306 ; Norris
v. Norris, 2 Coll. 719 ; Jepson v. Key, 2 H. & C. 873. In Doe d. Cross v.
Cross, 8 Q. B. 714 (55 E. C. L. R.) ; a point arose as to whether an instru-
ment operated as a gift inter vivos or by way of devise. In regard to gifts
inter vivos, see Bourne v. Fosbrooke, 18 C. B. N. S. 515 (114 E. C. L. R.) ;
Shower v. Pilck, 4 Exch. 478 ; Flory v. Denny, 7 Exch. 581 ; cited per Wil-
liams, J., Maugham v. Sharpe, 17 C. B. N. S. 464 (112 E. C. L. R.) ; per
Parke, B., Oulds v. Harrison, 10 Exch. 575 ; Milnes v. Dawson, 5 Exch. 950.

4 1 Vict. c. 26, s. 24 ; O'Toole v. Browne, 3 E. & B. 572 (77 E. C. L. R.) ;
per Sir J. Leach, M. R., Gittings v. M'Dermott, 2 My. & K. 73. See per Lord
Brougham, C, 1 My. & K. 485.

6 D. 34. 4, 4 ; 4 Rep. 61. " Delivery " of a will implies " something whereby
the party acknowledges that the instrument is a complete act containing his
final mind — that it is no longer ambulatory ;" per Parke, B., Curteis v. Ken-
rick, 3 M. & W. 471 ; et vide per Lord Abinger, C. B., Id. 472; Vincent v.
Bishop of Sodor and Man, 8 C. B. 905, 933 (65 E. C. L. R.).

As bearing on the finality of a testamentary instrument, see Doe d. Strick-
land v. Strickland, 8 C. B. 724 (65 E. C. L. R.) ; Plenty v. West, 6 C. B. 201
(60 E. C. L. R.) ; Andrew v. Motley, 12 C. B. N. S. 514 (104 E. C. L. R.).

503 broom's legal maxims.

and Omne test amentum morte consummatum est.1 It is, indeed, the
ambulatory and revocable quality of a will just adverted to, which
T*^041 ma^es *ne *Present effect of such an instrument different
from that of a disposition by deed postponing the posses-
sion or enjoyment, or even the vesting of an estate, until the death
of the disposing party, although in both these cases the effect upon
the usufructuary enjoyment is precisely the same ; for instance, if
a man by deed limit lands to the use of himself for life, with re-
mainder to the use of A. in fee; the effect, with reference to the
enjoyment is the same as if he should by his will make an im-
mediate devise of such lands to a A. in fee ; and yet in the former
case, A., immediately on the execution of the deed, becomes en-
titled to a remainder in fee, though it is not to take effect in pos-
session until the decease of the settlor ; whereas, in the latter, he
would take no interest whatever until the decease of the testator
should have called the instrument into operation.2

Upon the whole, then, the case of a devise by will of after-
acquired property does not seem to offer any exception to the
maxim laid down by Lord Bacon, which appears to be strictly
correct when explained and qualified in accordance with his own
suggestions, and with subsequent authorities and decisions, to some
of which we have adverted.

1 Co. Litt. 322 b. 2 1 Jarman on Wills, 3d ed., 12.

RULES RELATING TO MARRIAGE AND DESCENT. 505

[*505] ^CHAPTER VII.

RULES RELATING TO MARRIAGE AND DESCENT.

It has been thought convenient to insert a selection of rules rela-
ting to Marriage and Descent immediately after those which con-
cern the legal rights and liabilities attaching to property in general.
For additional information on the subjects treated of in this Chapter,
the authorities and references below given may with advantage be
consulted.1

Consensus, non Concubitus, facit Matrimonium.

(Co. Lit. 33 a.)

It is the consent of the parties, not their concubinage, which constitutes a valid

marriage.2

Marriage is constituted by the conjunctio animorum. *or r*cn£-|
present consent of the parties, expressed under such circum-
stances as by law required, so that, though they should, after con-
sent so given, by death or disagreement or any other cause, happen
not to consummate the marriage conjunctione corporum, they are,
nevertheless, entitled to all the legal rights consequent thereon.3

1 2 Com. by Broom & Hadley, Vol. 1, Chap. XV., which treats of Husband
and Wife ; the important judgments delivered in Reg. v. Millis, 10 CI. & Fin.
534; Beamish v. Beamish, 9 H. L. Cas. 274; Brook v. Brook, Id. 193 ; Dol-
phin v. Robins, 7 H. L. Cas. 390 ; Shaw v. Gould, L. R. 3 H. L. 55, 79 ; Fen-
ton v. Livingston, 3 Macq. Sc. App. Cas. 497 ; Yelverton v. Longworth, 4 Id.
743 ; Reg. v. Inhabs. of Brighton, 1 B. & S. 447 (101 E. C. L. R.) ; Hall v.
Wright, E., B. & E. 746 (96 E. C. L. R.), which contain learned researches
respecting the nature and requisites of the marriage contract; Cruise Dig.,
4th ed., vol. 3, tit. 29, chaps. 1, 2, 3, which treat of Descent and Consan-
guinity ; and the elaborate judgment of Kindersley, V.-C, respecting the
operation of the stat. 3 & 4 Will. 4, c. 106, in Re Don's Estate, 4 Drew. 194.

2 As to this maxim, see, per Lord Campbell, C, 9 H. L. Cas. 335; as to its
applicability in relation to the Scotch law of marriage, see Yelverton v. Long-
worth, 4 Macq. Sc. App. Cas. 743, 856, 861.

3 See Bell, Diet. & Dig. of Scotch Law, p. 217. See Field's Marriage
Annulling Bill, 2 H. L. Cas. 48.

506 broom's legal maxims.

The above maxim has been adopted from the civil law1 by the
common lawyers, who, indeed, have borrowed (especially in ancient
times) almost all their notions of the legitimacy of marriage from
the canon and civil laws;2 and by the latter, as well as by the
earlier ecclesiastical law, marriage was a mere consensual con-
tract, only differing from other contracts of this class in being in-
dissoluble even by the consent of the contracting parties. It was
always deemed to be " a contract executed without any part per-
formance;" so that the maxim was undisputed and peremptory,
Consensus, non concubitus, facit nuptias vel matrimonium?
r*r071 "^ *ne ^aw °^ England,4 also, marriage is considered *in
the light of a contract, and therefore the ordinary princi-
ples which attach to contracts in general are, writh some exceptions,
applied to it. The principle expressed in the above maxim, and
which alone we propose to consider, is, that, in order to render a
marriage valid, the parties must be willing to contract. The weight
of authority, indeed, seems to show that, even prior to the Marriage
Act (26 Geo. 2, c. 33), a present and perfect consent, that is, a
consent expressed per verba de prossenti, was sufficient to render a
contract of marriage indissoluble between the parties themselves,
and to afford to either of them, by application to the spiritual court,
the power of compelling the solemnization of an actual marriage;
but that such contract never constituted a full and complete mar-
riage in itself, unless made in the presence and with the interven-
tion of a minister in holy orders.5

1 Nuptias non concubitus sed consensus facit, D. 50. 17. 30.

2 1 Com. by Broom & Hadley 524 ; Co. Litt. 33 a. See 2 Yoet Com. Pan-
dect, lib. 23, tit. 2.

3 Per Lord Brougham, in Reg. v. Millis, 10 CI. & Fin. 719. See also Lord
Stowell's celebrated judgment in Dalrymple v. Dalrymple (by Dodson), p. 10
(a), where many authorities respecting this maxim are collected. See also
the remarks upon this case, 10 CI. & Fin. 679 ; and, per Cresswell, J., Brook
v. Brook, 27 L. J. Chanc. 401 ; s. c, 9 H. L. Cas. 193. Field's Marriage
Annulling Bill, supra, well illustrates the maxim cited in the text.

* The following authorities may be referred to, as explanatory of the law of
Scotland respecting marriages jser verba deprossenti ; Yelverton v. Longworth,
4 Macq. Sc. App. Cas. 743 ; Dalrymple v. Dalrymple, 2 Hagg. Cons. R. 54 ;
Hamilton v. Hamilton, 9 CI. & Fin. 327 : Stewart v. Menzies, 8 Id. 309 ; Bell
v. Graham, 13 Moo. P. P. C. 242 ; Shelf, on Marriage and Div. 91.

6 Per Tindal, C. J., delivering the opinion of the judges in Reg. v. Millis, 10

RULES RELATING TO MARRIAGE AND DESCENT. 507

In Reg. v. Millis,1 the facts were these: — A. and B. entered into
a present contract of marriage per verba de prcesenti in Ireland, in
the house and in the presence of a placed and regular Presbyterian
minister. A. was a member of the Established Church; B. was
either a *member of the Established Church, or a Protest- r*cQo-i
ant dissenter. A religious ceremony of marriage was
performed on the occasion by the said minister between the parties
according to the usual form of the Presbyterian Church in Ireland.

A. and B., after the contract and ceremony, cohabited and lived
together for two years as man and wife. A. afterwards, and whilst

B. was living, married C. in England. It was held, that A. was
not indictable for bigamy.

Where, prior to the stat. 7 & 8 Vict. c. 81, a clergyman of the
Church of England, being in holy orders, performed a ceremony of
marriage between himself and a certain woman, by reading the
form of solemization of matrimony as set forth in the Book of
Common Prayer, without witnesses, other than one who happened
to see what was passing from an adjoining yard: the marriage
having been consummated, was held, by the House of Lords,
conformably to the ratio decidendi in Reg. v. Millis, to have been
invalid.2

In Yelverton v. Longworth,3 a marriage celebrated in Ireland by
a Roman Catholic priest between a Roman Catholic lady and a
gentleman of a Protestant family who had been brought up a
Protestant, and who at the ceremony declared himself a "Protest-
ant Catholic," was held per Lords Wensleydale and Chelmsford, to
be void under the Irish Act, 19 Geo. 2, c. 13, s. 1.

CI. & Fin. 655 ; Catherwood v. Caslon, 13 M. & W. 261 ; Beamish v. Beamish,
9 H. L. Cas. 274.

There is a strong legal presumption in favor of marriage, Piers v. Piers, 2
H. L. Cas. 331 ; Reg. v. Manwaring, Dearsl. & B. 132. In Shelden v. Pat-
rick, L. R. 1 Sc. App. Cas. 470, the presumption of a marriage prior to the
birth of children arising from cohabitation and acknowledgment was held to
be completely rebutted by evidence of the strongest kind.

1 10 CI. & Fin. 534 (as to which case, see the observations of Lord Campbell,

C. 9 H. L. Cas. 338-9 ; of Dr. Lushington, Catterall v. Catterall, 1 Robertson
532 ; per Willes, J., Reg. v. Manwaring, Dearsl. & B. 139) ; Beamish v. Beam-
ish, 9 H. L. Cas. 274. See 7 & 8 Vict. c. 81, s. 83 ; 5 & 6 Vict. c. 113 ; 19 &
20 Vict. c. 119.

2 Beamish v. Beamish, 9 H. L. Cas. 274.

3 4 Macq. Sc. App. Cas. 743, 746, 862, 893.

508 broom's legal maxims.

In Reg. v. Millis above abstracted, are to be found the following
remarks apposite to the principal maxim under our notice, and
deserving of perusal: —

"It will appear, no doubt," says Tindal, C. J., delivering the
r*^091 °Pm^on °f the judges in the case just cited, "upon defer-
ring to the different authorities, that at various periods of
our history there have been decisions as to the nature and descrip-
tion of the religious ceremonies necessary for the completion of a
perfect marriage, which cannot be reconciled together ; but there
will be found no authority to contravene the general position, that,
at all times, by the common law of England, it was essential to the
constitution of a full and complete marriage, that there must be
some religious solemnity ; that both modes of obligation should
exist together, the civil and religious ; that, besides the civil con-
tract, that is, the contract per verba de prcesenti, which has always
remained the same, there has at all times been also a religious cere-
mony, which has not always remained the same, but has varied from
time to time, according to the variation of the laws of the Church ;
with respect to which ceremony, it is to be observed, that, whatever
at any time has been held by the law of the Church to be a suffi-
cient religious ceremony of marriage, the same has at all times
satisfied the common law of England in that respect." Where, for
instance, the Church has held, as it often has done, down to the
time of passing the Marriage Act, that a marriage celebrated by a
minister in holy orders, but not in a church, or by such minister in
a church, but without publication of banns, and without license, is
irregular, and renders the parties liable to ecclesiastical censures,
but is sufficient, nevertheless, to constitute the religious part of the
obligation, and that the marriage is valid notwithstanding such
irregularity ; the law of the land has followed the spiritual court
in that respect, and held such marriage to be valid. "But it will
not be found in any period of our history, either that the Church
of England has held the religious celebration sufficient to constitute
r*^10"l a va^ marriage, unless it *was performed in the presence
of an ordained minister, or that the common law has held
a marriage complete without such celebration."1

In support of the position thus laid down, the learned Chief
Justice, whose words we have above quoted, refers to the state
1 10 CI. & Fin. 655, 656.

RULES RELATING TO MARRIAGE AND DESCENT. 510

of the law relative to the validity of marriages of Quakers and
Jews, both prior and subsequent to the Marriage Act. Since
the passing of this Act, he observes, it has generally been supposed
that the exception contained therein, as to the marriages of Quakers
and Jews, amounted to a tacit acknowledgment by the legislature,
that a marriage solemnized with the religious ceremonies which they
were respectively known to adopt ought to be considered sufficient;
but before the passing of that Act, when the question was left per-
fectly open, we find no case in which it has been held that a mar-
riage between Quakers was a legal marriage, on the ground that it
was a marriage by a contract per verba de prcesenti, but, on the
contrary, the inference is strong that it was never considered legal.
As to the case of the Jews, he subsequently proceeds to remark :
it is well known, that, in early times, they stood in a very peculiar
and excepted condition, For many centuries they were treated
not as natural-born subjects, but as foreigners, and scarcely recog-
nised as participating in the civil rights of other subjects of the
Crown. The ceremony of marriage by their own peculiar forms
might, therefore, be regarded as constituting a legal marriage,
without affording any argument as to the nature of a contract of
marriage, per verba de prcesenti, between other subjects.1

The preceding remarks, with reference to the requisites r*e-i-|-i
*at common law of the marriage contract,2 must, of course,
be understood as subject to restriction by the various enactments
which have from time to time been passed by the Legislature with
reference to this subject. Without entering at length into their
provisions, we may observe that the stat. 6 & 7 Will. 4, c. 85, recog-
nises marriage as essentially a civil contract ; and by the 20th sec-
tion enacts, that marriages may be solemnized in places registered
for the purpose in the presence of a registrar and two witnesses,
and, subject to certain provisoes, according to such form and cere-
mony as the parties may see fit to adopt. By the 21st section it
is further provided, that persons who shall object to marry under
the provisions of the Act in any registered building may, after due
notice and certificate issued, contract and solemnize marriage at
the office of the superintendant registrar in the manner therein
pointed out.3

MO CI. & Fin. 671, 673.

2 See Shelf. Marriage, Index, " Statutes."

* See also 19 & 20 Vict. c. 119.

511 broom's legal maxims.

Having thus observed that marriage is a contract entered into
by consent of the parties, and with certain forms, either of a purely
civil or of a religious nature, prescribed and sanctioned by the law,
it is important further to remark the difference which exists between
a contract of marriage per verba de prcesenti and a contract per
verba de futuro; for the latter does not, under any circumstances,
constitute a marriage by our law ; it only gives a right of action
for damages in case of its violation, though mutual consent will
relieve the parties from their engagement;1 and this, like most
other contracts, is *voidable, unless the party making the
L J promise be of the full age required by law, viz., twenty-
one ; so that, if there are mutual promises to marry between two
persons, one of whom has attained the age of twent}'-one, and the
other of whom is within that age, the first is so far bound by the
contract as to be liable to an action, if it be broken ;2 but the latter
may avoid it, if he pleases ;3 and this distinction is founded on the
well-known principle, that, where a contract may be to the benefit
of an infant, or to his prejudice, the law so far protects him as to
give him an opportunity of reconsidering it when he comes of age,
and it is good or voidable at his election.4

Not only moreover is want of age sufficient to avoid a contract
of marriage to take place in futuro, but, in some cases, it renders
void, or rather voidable, the actual ceremony, by reason of the pre-
sumed imbecility of judgment in the parties contracting, and their
consequent inability to consent. Therefore, if a boy under four-
teen, or a girl under twelve years of age, marries, this marriage is
only inchoate and imperfect; and, when either of them comes to
full age, that party may disagree, and declare the marriage void,
without any divorce or sentence in the spiritual court ; and this is
founded on the civil law ; whereas the canon law pays greater re-
gard to the constitution than the age of the parties, and, if they
are habiles ad matrimonium, the marriage is good, whatever be

1 Per Lord Lyndhurst, C, 10 CI. & Fin. 837. As to a plea of exoneration
and the evidence necessary to support it, see particularly King v. Gillett, 7
M. & W. 55, 59. See also the cases cited ante, pp. 250, 284.

2 Per Lord Eilenborough, C. J., Warwick v. Bruce, 2 M. & S. 209 (28 E.
C. L. R.) ; s. c, affirmed in error, 6 Taunt. 118 (1 E. C. L. R.) ; Holt v. Ward,
2 Stra. 937.

8 Judgm., 2 Stra. 939. * Id.

RULES RELATING TO MARRIAGE AND DESCENT. 512

their respective ages ; and in our law the marriage -will be good to
this extent, that, if at the age of consent they agree to continue
together, they need not be married again. If, moreover, the hus-
band be of years of discretion, *and the wife under twelve,
when she comes to years of discretion he may disagree as L J
well as she, for in contracts the obligation must be mutual ; both
must be bound, or neither ; and so it is, vice versd, when the wife
is of years of discretion, and the husband under.1

Again, by the common law, if the parties themselves were of the
age of consent, the concurrence of no other party was necessary in
order to make the marriage valid, and this was agreeable to the
canon law. Where, however, one of the contracting parties is
under age, the law is now regulated by the stat. 4 Geo. 4, c. 76,
which enacts (sect. 8), that, from and after the 1st of November,
1823, no parson shall be punishable by ecclesiastical censures for
solemnizing a marriage without the consent of parents or guardians
between persons, both or one of whom shall be under twenty-one,
after banns published, unless such parson shall have notice of the
dissent of such parents or guardians. And if such parents or
guardians shall openly declare their dissent at the time of publica-
cation, such publication shall be void. And by sect. 14, where
either of the parties (not being a widower or widow) shall be under
the age of twenty-one, it is required2 that one of the parties shall
personally swear that the consent of those persons whose consent
is necessary has been obtained. By sect. 16, the father, if living,
of any party under twenty-one, not being a widow or widower, or,
if the father be dead, the guardian of the person of the party so
under age, and if no guardian, then the mother, if unmarried, and,
if married, the guardian appointed by the Court of Chancery, shall
have authority to give consent *to the marriage of such r*c-M-i
party ; and by sect. 17, if the father shall be non compos,
or the guardian or mother shall be non compos, or in parts beyond
seas, or shall unreasonably withhold consent, application may be
made to the Court of Chancery, by petition, in a summary way ;
and if the marriage shall appear to be proper, it shall be so de-
clared. It has, moreover, been held, that the language of the 17th

1 1 Com. by Broom & Hadley 526, 527.

2 See also 6 & 7 Will. 4, c. 85, s. 12 ; 19 & 20 Vict. c. 119, ss. 2, 17, 18.

26

514 broom's legal maxims.

section only goes to require consent, and the marriage is not abso-
lutely void if solemnized without it.1

Further, by 6 & 7 Will. 4, c. 85,2 (amended by 1 Vict. c. 22, 3
& 4 Vict. c. 72, and 19 & 20 Vict. c. 119,) the like consent is re-
quired to any marriage in England solemnized by license, as would
have been required by law in a case of marriage solemnized by
license immediately before the passing of the Act ; and every person
whose consent to a marriage by license is required by law, is thereby
authorized to forbid the issue of the superintendent registrar's cer-
tificate, whether the marriage is intended to be with license or
without.

Lastly, in connection with this branch of the subject, viz., as to
the consent of other than the contracting parties to the marriage,
we may observe that, by the Royal Marriage Act (12 Geo. 3, c. 11),
no descendant of the body of King George II. (other than the issue
of princesses married into foreign families) is capable of contract-
ing matrimony without the previous consent of the sovereign, sig-
nified under the great seal, and any marriage contracted without
such consent is void ; provided, that such of the said descendants
as are above the age of twenty-five, may, after a twelvemonth's
r*c-j c-i notice *given to the Privy Council, contract and solemnize
marriage without the consent of the Crown, unless both
Houses of Parliament shall, before the expiration of the said year,
expressly declare their disapprobation of such intended marriage.
In order to bring a marriage within the prohibition of this statute,
it is not necessary that it should have been contracted within the
realm of England ; but the statute extends to prohibit and to annul
marriages wherever the same be contracted or solemnized, either
within the realm of England or without.3

The rule that consensus facit matrimonium is also applicable to
cases in which either party, at the date of the marriage, is laboring
under mental incapacity ; for, without a competent share of reason,
neither this nor any other express contract can be valid, for consent

1 R. v. Birmingham, 8 B. & C. 35 (15 E. C. L. R.).

2 Sect. 10.

8 The Sussex Peerage, 11 CI. & Fin. 85 ; and see the opinion of Cresswell,
J., in Brook v. Brook, 27 L. J. Chanc. 401 ; s. c, 9 H. L. Cas. 193; in con-
nection with which case, see also Reg. v. Chadwick, 11 Q. B. 173 (63 E. C.
L. R.).

RULES RELATING TO MARRIAGE AND DESCENT. 515

is absolutely requisite to matrimony, and persons non compotes
mentis are incapable of consenting to anything.1

ELeres legitimus est quem Nuptle demonstrant.
(Co. Litt, 7 b.)
The common law takes him only to be a son whom the marriage proves to be so.12

The -word " heir "3 in legal understanding, signifies him to whom
lands, tenements, or hereditaments, by the act of God and right of
blood, descend, of some estate of inheritance, for Deus
solus hceredem facere potest non homo, and he only is heir *- J
who is ex justis nuptiis procreatus.* It is, then, a rule or maxim of
our law, with respect to the descent of land in England from father
to son, that the son must be "hceres legitimus" — thus in a recent
case the facts were these: —

An English marriage took place between two English persons
who never lived together, the husband committed adultery, and
some years afterwards consented to go to Scotland to found juris-
diction against himself. He did so, and the Scotch court pro-
nounced a decree of divorce a vinculo matrimonii. Held, that a
Scotch marriage duly celebrated between the divorced wife and an
Englishman (who was thenceforth domiciled in Scotland), did not
give to their children the character of " lawfully begotten," so as to
enable them to succeed to property in England — the Scotch divorce
not having dissolved the English marriage.5

Again, in order that land in England may descend from father to

1 1 Com. by Broom & Had ley 527 ; 15 Geo. 2, c. 30 ; judgm., 1 Hagg. Cons.
R. 417.

2 Mirror of Justices, p. 70 ; Fleta, lib. 6, c. 1.

3 As to the popular and technical meaning of the word "ancestor," see,
per Kindersley, V.-C, in Re Don's Estate, 27 L. J. Chanc. 104, 105 ; s. c, 4
Drew. 194. .

4 Co. Litt. 7 b 5 cited 5 B. & C. 440, 454. The rule respecting property in
the young of animals is in accordance with the Roman law, partus sequitur
ventrem: I. 2. 1. 19 ; D. 6. 1. 5, § 2 ; per Byles, J., 6 C. B. N. S. 852 (95 E. C.
L. R.).

6 Shaw v. Gould, L. R. 3 II. L. 55. See Birt v. Boutinez, L. R. 1 P. & D.
487.

516 BROOM'S LEGAL MAXIMS.

son, the son must have been born after actual marriage between his
father and mother ; and this is a rule juris positivi, as indeed are all
the laws which regulate succession to real property, this particular
rule having been framed for the direct purpose of excluding, in the
descent of land in England, the application of the rule of the civil
and canon law, pater est quern nuptioe demonstrant? by which the
subsequent marriage between the father and mother was held to
r*r17-i make the son *born before marriage legitimate; and this
rule of descent, being a rule of positive law, annexed to the
land itself, cannot be broken in upon or disturbed by the law of
the country where the claimant was born. Therefore, in the case
of Doe d. Birtwhistle v. Yardill,2 it was held, that a person born
in Scotland of parents domiciled there, but not married till after
his birth, though legitimate by the law of Scotland,3 could not take
real estate in England as heir, the father having died intestate.
And in Re Don's Estate, Kindersley, V.-C, held that the father
of an ante natus born in Scotland, and legitimated by the subse-
quent marriage of his parents, could not, under the statute -3 & 4
Will. 4, c. 106, succeed to real estate whereof the son had died
seised in England.4

The rule of descent just referred to is, then, one of a positive,
inflexible nature, applying to and inherent in the land itself, which
is the subject of descent, — of the same nature and character as that
rule which prohibited the descent of land to any but those who
were of the whole blood to the last taker, — or like the custom of
gavelkind or borough English, which causes the land to descend in
the one case to all the sons together, in the other to the younger
son alone.5

If, moreover, the parent be incapable of inheriting land himself,
he has no heritable blood in him which he can transmit to his
child, according to the maxim and old acknowledged rule of

1 D. 2. 4. 5.

2 2 CI. & Fin. 571 ; s. c, 1 Scott N. R. 828 ; 6 Bing. N. C. 385 (37 E. C. L.
R.) ; 5 B. & C. 438 (11 E. C. L. R.) ; explained per Lord Brougham, Fenton
v. Livingstone, 3 Macq. Sc. App. Cas. 432 5 per Lord Cranworth, Id. 544.
See also Shedden v. Patrick, L. R. 1 Sc. App. Cas. 470.

3 See Countess of Dalhousie v. M'Dowall, 7 CI. & Fin. 817 : Munro v.
Munro, Id. 842 ; Birtwhistle v. Vardill, Id. 895.

4 4 Drew. 194. 6 1 Scott N. R. 838.

RULES RELATING TO MARRIAGE AND DESCENT. 518

descent, qui doit inheriter al pere *doit inheriter al fttz, — r*r-io-j
he who would have been heir to the father shall be heir to
the son ; and therefore, if, in the case first above put, Doe d. Birt-
whistle v. Vardill, the son had died, leaving a child, before the
intestate, such child could not, according to the English law, have
inherited under the circumstances ;l and if in Re Don's Estate
there had been a son post natus, such son could not have inherited
to his ante natus brother.

Formerly also the rule was that attainder so entirely corrupted
the blood of the person attainted that not only could no person
inherit from him, but no person could inherit through him : so that
if there were grandfather, father, and son — three generations, and
the father was attainted and the grandfather died seised of lands
in fee, the attainted father being dead in the meantime, the grand-
son could not have inherited to the grandfather.2 Now, however,
it is enacted by stat. 3 & 4 Will. 4, c. 106, s. 10, that when the
person from whom the descent of any land is to be traced shall
have had any relation who, having been attainted, shall have died
before such descent shall have taken place, then such attainder
shall not prevent any person from inheriting such land who would
have been capable of inheriting the same by tracing his descent
through such relation if he had not been attainted, unless such land
shall have escheated in consequence of such attainder before the
first day of January, 1834. This Act, however, by sec. 11, shall
not extend to any descent which shall take place on the death of
any person dying before that day.

*There is likewise another rule of law immediately r*r-|q-i
connected with, and similar in principle to, the preceding,
which may be here properly mentioned, it is as follows: — Qui ex
damnato coitu nascuntur inter liberos non computentur3 — neither a
bastard4 nor any person not born in lawful wedlock can be, in the
legal sense of the term, an heir;6 for a bastard is reckoned by the law

1 1 Scott N. R. 842.

2 Per Kindersley, V.-C, 27 L. J. Chanc. 102, 103 ; s. c, 4 Drew. 194. See
further as to the former law upon the subject above adverted to, Kynnaird v.
Leslie, L. R. 1 C. P. 389.

3 Co. Litt. 8 a.

4 " The strictly technical sense of the term * bastard' is one who is not born
in lawful wedlock:" per Kindersley, V.-C, 27 L. J. Chanc. 102.

6Glanville, lib. 7, c. 13; Shaw v. Gould, ante, p. 516.

519 broom's legal maxims.

to be nullius filius, and, being thus the son of nobody, he has no
inheritable blood in him,1 and, consequently, cannot take land by
succession; and, if there be no other claimant than such illeoiti-
mate child (a circumstance, which, however, can rarely happen), the
land shall escheat to the lord. Moreover, as a bastard cannot be
heir himself, so neither can he have any heirs but those of his own
body ; for, as all collateral kindred consists in being derived from
the same common ancestor, and, as a bastard has no legal ances-
tors, he can have no collateral kindred, and, consequently, can have
no legal heirs, but such as claim by a lineal descent from himself;
and, therefore, if a bastard purchases land, and dies seised thereof
without issue and intestate, the land shall escheat to the lord of
the fee.2

Under the stat. 3 k 4 Will. 4, c. 106, s. 2, descent is pow to be
traced from the purchaser, and under this section a son claiming by
descent from an illegitimate father who was the purchaser, could
not have transmitted the estate by descent, upon failure of his own
r^ron-i issue, to his *heir ex parte maternd. But this has been
remedied by the stat. 22 & 23 Vict. c. 35, and in such a
case, instead of escheating the land will descend, the descent being
traced from the person last entitled to it as if he had purchased it.

In Clarke v. Wright,3 a question arose involving an inquiry
respecting the applicability of the maxim last cited, viz., whether
a limitation of real estate in an antenuptial settlement to an illegiti-
mate child of the woman, the settlor, was void by the stat. 27 Eliz.
c. 4, as against a person claiming under a mortgage executed by
the settlor and her husband subsequently to the marriage. The
Court of Exchequer Chamber, affirming the judgment of the Court
of Exchequer, held that the limitation was valid.

It may be proper to add one remark, although not strictly con-
nected with the maxim which has given rise to the preceding
observations, viz., that there is a manifest distinction between
the right of succession to real property in this country being
dependent on the law of England respecting legitimacy, and the
fact of a marriage contracted according to the lex loci being con-

1 See the argument, Stevenson's Heirs v. Sullivant, 5 Wheaton (U. S.) It.
226, 227 ; Id. 262 note.

2 2 Com. by Broom & Hadley 398 ; Co. Litt. 3 b ; Finch Law 117, 118.

RULES RELATING TO MARRIAGE AND DESCENT. 520

sidered as valid by our tribunals : for, after an examination of the
cases below referred to, there could be no doubt but that marriage,
which is a personal contract, when entered into according to the
rites of the country, the lex loci, where the parties are domiciled
and the marriage celebrated, would be considered and treated as a
perfect and complete marriage throughout the whole of Christen-
dom.1 It does not, however, therefore follow, that, with peon
the *adoption of the marriage contract, the foreign law
adopts also all the conclusions and consequences which hold good in
the country where the marriage was celebrated ;2 as, for instance,
its retrospective operation in legitimatizing the ante natus. Hence,
although the right of inheritance does not follow the law of the
domicile of the parties, but that of the country where the land lies,
yet, with respect to personal property, which has no locality, and
is of an ambulatory nature, it is part of the law of England that
this description of property should be distributed according to the
jus domicilii.3 " It is a clear proposition," observed Lord Lough-
borough, " not only of the law of England, but of every country
in the world where law has the semblance of science, that personal
property has no locality. The meaning of that is, not that per-
sonal property has no visible locality, but that it is subject to that
law which governs the person of the owner, both with respect to
the disposition of it, and with respect to the transmission of it,

1 Dalryinple «. Dalrymple, 2 Hagg. Cons. R. 54 5 Shaw v. Gould, L. R. 3 H.
L. 55; per Abbott, C. J., Lacon v. Higgins, 3 Stark. 183 (3 E. C. L. R.) ;
Kent v. Burgess, 11 Sim. 361 ; Catherwood v. Caslon, 13 M. & W. 261 ; Reg.
v. Millis, and Re Don's Estate, ante, pp. 505, 507 ; Connelly v. Connelly, 7
Moore P. C. C. 438.

By stat. 4 Geo. 4, c. 91, marriages performed by a minister of the Church
of England in the chapel of any British embassy or factory, or in the ambas-
sador's house, or by an authorized person within the British lines, are de-
clared to be valid. See Lloyd v. Petitjean, 2 Curt. 251.

The marriage of an officer celebrated by a chaplain of the British army
within the lines of the army when serving abroad, is valid under the 9 Geo.
4, c. 91, although such an army is not serving in a country in a state of actual
hostility, and though no authority for the marriage was previously obtained
from the officer's superior in command: The Waldegrave Peerage, 4 CI. &
Fin. 649.

2 1 Scott N. R. 839.

3 Per Abbott, C. J., 5 B. C. 451, 452 (11 E. C. L. R.) 5 per Holroyd and
Bayley, JJ., Id. 454.

521 broom's legal maxims.

either by succession, or by the act of the party ; it follows the law
of the person. The owner in any country may dispose of his per-
sonal property. If he dies, it is not the law of the country in
P599-1 which *the property is, but the law of the country of which
he was a subject, that will regulate the succession."1 Mo-
bilia sequunter personam,'2 is the maxim of our own as of the Roman
Law. The personal estate of a testator accompanies him wherever
he may reside and become domiciled, so that he acquires the right
of disposing of and dealing with it, according to the law of his
domicile.3

Nemo est H^res viventis.

(Co. Litt. 22 b.)
No one can be heir during the life of his ancestor.

Bylaw, no inheritance can vest, nor can any person be the actual
complete heir of another, till the ancestor is dead ; before the hap-
pening of this event he is called heir-apparent, or heir-presump-
tive,4 and his claim which can only be to an estate remaining in the
ancestor at the time of his death, and of which he has made no tes-
tamentary disposition, may be defeated by the superior title of an
alienee in the ancestor's lifetime, or of a devisee under his will.
Therefore, if an estate be made to A. for life, remainder to the
heirs of B. ; now, if A. dies before B., the remainder is at an end ;
for, during B.'s life, he has no heir; but, if B. dies first, the re-
I~*593~l main(^er tnen ^immediately vests in his heir, who will be
entitled to the land on the death of A.5

1 Sill v. Worswick, 1 H. Bla. 690 ; per Lord Wensleydale, Fenton v. Living-
stone, 3 Macq. Sc. App. Cas. 547 ; per Lord Brougham, Bane v. Whitehaven
and Furness Junction R. C, 3 H. L. Cas. 19; Doglioni v. Crispin, L. R. 1 H.
L. 301.

2 Story Conf. of Laws, 3d ed., 638, 639.

3 Doglioni v. Crispin, L. R. 1 H. L. 301 ; Bremer v. Freeman, 10 Moo. P.
C. C. 306 ; Hodgson v. De Beauchesne, 12 Id. 285; Crookenden v. Fuller, 29
L. J., P. M. & A. 1 ; s. c, 1 Swab. & Tr. 441 ; Anderson v. Lanerwille, 9 Id.
325.

4 2 Bla. Com., by Stewart 231 ; Co. Litt. 8 a.

6 Per Patteson, J., Doe d. Winter u. Perratt, 7 Scott N. R. 23, 24 ; s. c, 9
CI. & Fin. 606; per Littledale, J., 5 B. & C. 59; 2 Com. by Broom & Had-
ley 211.

RULES RELATING TO MARRIAGE AND DESCENT. 523

So it has been said that " a will takes effect only on the testator's
death; during his life it is subject to his control, and, until it was
consummated by his death, no one had, in a legal view, any interest
in it — Nemo est hceres viventis."1

The general rule being, that the law recognises no one as heir
until the death of his ancestor, it follows, that though a party may
be heir-apparent, or heir-presumptive, yet he is not very heir, living
the ancestor ; and therefore, where an estate is limited to one as a
purchaser under the denomination of heir, heir of the body, heir
male, or the like, the party cannot take, as a purchaser, unless, by
the death of the ancestor, he has, at the time when the estate is to
vest, become very heir. But this rule has been relaxed in many in-
stances, and an exception engrafted on it, that, if there be suffi-
cient on the will to show, that by the word " heir " the testator
meant heir-apparent, it shall be so construed ; and in such a case
the popular sense shall prevail against the technical.2 In other
words, the authorities appear to establish this proposition, that,
prim d facie, the word "heir" is to be taken in its strict legal
sense; but that, if there be a plain demonstration in the will, that
the testator used it in a different sense, such different sense may be
assigned to it. What will amount to such plain *demon- r*fv?4.-\
stration must in each case depend on the language used,
and the circumstances under which it was used, and is not a ques-
tion to be determined by reference to reported cases, but by a
careful consideration of that language, and those circumstances in
the particular case under discussion.3

Hence, if a devise be made to A. for life, remainder to the heirs
of the body of B., so long as B. shall live, an estate pur autre vie
being given, and the ancestor being cestui que vie, the rule of law
would plainly be excluded. So, a devise to A." for life, remainder
to the right heirs of B. now living, vests the remainder in B.'s heir-
apparent or presumptive; and a devise to A. for life, remainder to
the right heir of B., he paying to B. an annuity upon coming into

1 Per Spencer, J., Mann v. Pearson, 2 Johnson (U. S.) R. 36.

2 Doe d. Winter v. Perratt, 10 Bing. 207, 208, 229 (25 E. C. L. R.). See s.
c, 7 Scott N. R. 45, et seq. ; Egerton v. Earl Brownlow, 4 H. L. Cas. 103,
137 ; 1 Fearne Cont. Rem., 10 ed., 210, and see further, as to the rule, supra,
Id., Index, tit. Maxims.

524 broom's legal maxims.

possession, would clearly vest the remainder in B.'s heir-apparent.1
In like manner, the familiar expressions, "heir to the throne,"
"heir to a title or estate," "heir-apparent," "heir-presumptive,"
prove that the existence of a parent is quite consistent with the
popular idea of heirship in the child. In all such cases the legal
maxim has no place, nor can it have in any in which the person
speaking knows of the existence of the parent, and intends that the
devise to the child shall take effect during the life of the parent.
It would appear that the question proper to be asked in each such
case would be, "Did the testator use the word 'heir' in the strict
legal sense, or in any other sense?" and, if the answer should be,
that he used the term, not in the legal and technical, but in some
popular sense, the sense thus ascertained should be carried out.2
r *Respecting the subject here touched upon, detailed in-

L J formation must be sought for in treatises more technical
than this. .

Non Jus sed Seisina facit Stipitem.

(Fleta, lib. vi. c. 14.)

It is not the right but the seisin, which makes a person the stock from which
the inheritance must descend}

No person, according to the law as it existed prior to the stat.
3 & 4 Will. 4, c. 106, could be properly such an ancestor as that
an inheritance of lands or tenements could be derived from him,
unless he had had actual seisin of such lands, either by his own
entry, or by the possession of his own or his ancestor's lessee for
years, or by receiving rent from a lessee of the freehold, or unless
he had had what was equivalent to corporeal seisin in hereditaments
that were incorporeal, such as the receipt of rent, a presentation to
the church in case of an advowson, and the like. But he could not
be accounted an ancestor, who had had only a bare right or title to
enter or be otherwise seised ; for the law required this notoriety of
possession as evidence that the ancestor had that property in him-

1 Per Lord Brougham, 7 Scott N. R. 46, 50.

2 Per Lord Cottenhain, 7 Scott N. R. 60, 61 ; s. c, 5 B. & C. 48 (11 E. C.
L. R.).

3 Noy Max., 9th ed., p. 72, n. (b).

RULES RELATING TO MARRIAGE AND DESCENT. 525

self which was to be transmitted to his heir. The seisin, therefore,
of any person, thus understood, made him the root or stock from
which all future inheritance by right of blood was to be derived ;
and this was expressed by the maxim, Seisina facit stipitem.1

The rule of law, therefore, with respect to the descent
*of land, where such descent took place prior to the 1st of ^ J
January, 1834, was, and still is,2 that the heir had not plenum
dominium, or full and complete ownership, till he had made an
actual corporeal entry into the land ; for, if he died before entry
made, his heir would not have been entitled to take the possession,
but the heir of the person who was last actually seised. It was
not, therefore, a mere right to enter, but the actual entry, that
made a man complete owner, so as to transmit the inheritance to
his own heirs.3

It may, then, be stated briefly, as the clear result of all the
authorities, that, wherever a party succeeded to an inheritance by
descent, he must have obtained an actual seisin or possession, as
contradistinguished from a seisin in law, in order to make himself
the root or stock from which the future inheritance by right of
blood must have been derived ; that is, in other words, in order to
make the estate transmissible to his heirs.4

With respect, however, to descents taking place on deaths since
January 1st, 1834, the law has been entirely altered by the stat.
3 & 4 Will. 4, c. 106, of which sec. 1 enacts, that, in the construc-
tion of that Act, the expression, "person last entitled to land,"
shall extend to the last person who had a right thereto, whether he
did or did not obtain possession or receipt of the rents and profits
thereof; and sec. 2 enacts, that such person shall be deemed the
purchaser.

The effect of these statutory provisions may be thus illustrated. —
If A. died seised of land, and B., his heir, *died without r^,r971
making entry ; according to the former law, the heir of A., L ^ J
and not of B., would have succeeded to the land, — that is, would
have had the right of entry thereon ; but, by the operation of the

1 2 Com. by Broom & Hadley 374.

2 The stat. 3 & 4 Will. 4, c. 106, does not apply to any descent which took
place prior to January 1, 1834. (See Sect. 11.)

3 2 Com. by Broom & Hadley 374.

527 broom's legal maxims.

Act, B. must now be deemed the purchaser, and would accordingly
transmit the estate to his own heir.

The maxim, Non jus sed seisina facit stipitem, did not, however,
hold in the descent of estates tail, it being only necessary, in de-
riving a title to an estate of this kind by descent, to deduce the
pedigree from the first purchaser, and to show that the claimant is
heir to him ; for the issue in tail claim per formam doni, that is,
they are as much within the view and intention of the donor, and
as personally and precisely described in the gift, as any of their
ancestors.1 Likewise, if the estate which descended was of a kind
in which the owner cannot acquire actual seisin of the land (as is
the case with a reversion or remainder expectant upon freehold,
where the actual seisin belongs to the particular tenant), the rule
was, that the claimant must trace his descent from, or, as it was
usually expressed, make himself heir to, the purchaser.2

LLereditas nunquam ascendit.

(Glanville, lib. 7, c. 1.)
The rigid of inheritance never lineally ascends.

The above was an express rule of the feudal law, and remained
an invariable maxim3 until the recent stat. 3 & 4 Will. 4, c. 106,
f-Hc-QOT which effected so great a change in *the law of inheritance.
The rule is thus stated and illustrated by Littleton :4 If
there be father and son, and the father has a brother, who is, there-
fore, uncle to the son, and the son purchase land in fee-simple, and
die without issue, living his father, the uncle shall have the land as
heir to the son, and not the father, although the latter is nearer in
blood, because it is a maxim in law that the inheritance may line-
ally descend, but not ascend. Yet if the son in this case die with-

1 Cruise Dig., 3d ed., vol. 3, p. 439 (cited arg. 7 Scott N. R. 236); Id. 4th
ed., p. 386.

2 Ratcliff's Case, 3 Rep. 42 a. See judgm., Doe d. Andrew v. Hutton, 3 B.
& P. 648.

3 2 Com. by Broom & Hadley 378 ; 3 Cruise Dig., 4th ed., 331.
* Sect. 3.

RULES RELATING TO MARRIAGE AND DESCENT. 528

out issue, and his uncle enter into the land as heir to the son, and
afterwards the uncle die without issue, living the father, the father
shall have the land as heir to the uncle, and not as heir to the son,
for he should rather come to the land by collateral descent than by
lineal ascent.

It was, moreover, a necessary consequence of this rule, coupled
with the maxim, Seisina facit stipitem, that if, in the instance above
put, the uncle did not enter into the land, the father could not inherit
it, because a man claiming as heir in fee simple by descent must
make himself heir to him who was last seised of the actual free-
hold and inheritance; and if the uncle, therefore, did not enter,
he would have had but a freehold in law, and no actual free-
hold, and the last person seised of the actual freehold was the
son, to whom the father could not make himself heir.1

The maxim, Hcereditas nunquam ascendit, therefore, applied only
to exclude the ancestors in a direct line, for the inheritance might
ascend indirectly, as in the preceding example, from the son to the
uncle.2

The above rule has, however, been altered with respect
*to descents on deaths on or after the 1st of January, 1834, r*Koq-]
it being enacted by stat. 3 & 4 Will. 4, c. 106, s. 6, that L J
every lineal ancestor shall be capable of being heir to any of his
issue ; and in every case where there shall be no issue of the pur-
chaser, his nearest lineal ancestor shall be his heir in preference to
any person who would have been entitled to inherit either by
tracing his descent through such lineal ancestor, or in consequence
of there being no descendant of such lineal ancestor, so that the
father shall be preferred to a brother or sister, and a more remote
lineal ancestor to any of his issue other than a nearer lineal ances-
tor or his issue. But by sect. 7 it is provided, that none of the
maternal ancestors of the person from whom the descent is to be
traced, nor any of their descendants, shall be capable of inheriting
until all his paternal ancestors and their descendants shall have
failed ; and also that no female paternal ancestor of such person,
nor any of her descendants, shall be capable of inheriting until all
his male paternal ancestors and their descendants shall have failed,

1 Co. Litt. 11 b.

2 2 Bla. Com., 16th ed., 212 n. (5) ; Bracton, lib. 2, c. 29.

529 broom's legal maxims.

and that no female maternal ancestor of such person, nor any of
her descendants, shall be capable of inheriting until all his male
maternal ancestors and their descendants shall have failed.

And here we may conveniently advert to a well-known maxim of
our law, which is thus expressed : Linea recta semper prcefertur
transversal? — the right line shall always be preferred to the
collateral. It is a rule of descent that the lineal descendants in
infinitum of any person deceased shall represent their ancestor,
that is, shall stand in the same place as the person himself would
have done had he been living.2

r*KQA-i *Hence it is, that-the son or grandchild, whether son or
daughter, of the eldest son succeeds before the younger
son, and the son or grandchild of the eldest brother before the
younger brother ; and so, through all the degrees of succession, by
the right of representation the right of proximity is transferred
from the root to the branches, and gives them the same preference
as the next and worthiest of blood.3

Another rule, immediately connected with the preceding, was
that which related to the exclusion of the half blood, but which,
originally, it would seem, extended only to exclude a frater uteri-
nus from inheriting land descended a patre: frater fratri uterino
no?i succedet in hcereditate paternd} This rule, however, although
expressed with considerable limitation in the maxim just cited, had
this more extended signification — that the heir, in order to take by
descent, need not be the nearest kinsman of the whole blood ; but,
although a distant kinsman of the whole blood, he should neverthe-
less be admitted to the total exclusion of a much nearer kinsman of
the half blood; and, further, that the estate should escheat to the
lord, rather than the half blood should inherit.5

It has, however, been observed by Mr. Preston, that the mere
circumstance that a person was of the half blood to the person last
seised, would not have excluded him from taking as heir, if he
were of the whole blood to those ancestors through whom the
descent was to be derived by representation; thus, if two first
cousins, D. and E., had intermarried, and had issue a son, F., and

1 Co. Litt. 10 b ; Fleta, lib. 6, c. 1. 2 3 Cruise Dig., 4th ed., 333.

3 Hale Hist., 6th ed., 322, 323 ; 3 Cruise Dig., 4th ed., 333.

4 Fort, de Laud. Leg. Ang., by Amos, p. 15.
• Per Kindersley, V.-C, 27 L* J. Chanc. 102.

RULES RELATING TO MARRIAGE AND DESCENT. 580 ^A

D. had married again and had issue, (x., and F. died seised, r*ro-i-\
*G. could not have taken as half brother of F., but he
might as maternal cousin to him ;l Quando duo jura in und per-
8o?id concurrunt cequum est ac si essent in diversis.2

The law on this subject has been, however, entirely altered and
materially improved by the stat. 3 & 4 Will 4, c. 106, s. 9, which
enables the half blood to inherit next after any relation in the same
degree of the whole blood and his issue, where the common ancestor
is a male, and next after the common ancestor where a female, so
that the brother of the half blood on the part of the father shall
inherit next after the sisters of the whole blood on the part of the
father and their issue, and the brother of the half blood on the
part of the mother shall inherit next after the mother.

We may add that the rule excluding the half blood did not hold
on the descent of the Crown. 'Therefore, if a king had issue a son
and a daughter by one venter, and a son by another venter, and
died ; on the death of the eldest son without issue, the younger son
was entitled to the Crown, to the exclusion of the daughter. For
instance, the Crown actually did descend from King Edward VI.
to Queen Mary, and from her to Queen Elizabeth, who were re-
spectively of the half blood to each other. Nor did the rule apply
to estates tail.3

*Possessio Fratris de Feodo simplici facit Sororem r*cq<n

ESSE HiBREDEM.
(3 Rep. 41.)
The brother's possession of an estate in fee simple makes the sister to be heir.

One consequence of the rule, Seisina facit stipitem, should here
perhaps very briefly be noticed : — If a man, being seised of land,
had issue a son and a daughter by one venter, and a younger son

1 2 Prest. Abs. Tit. 447.

2 Id. 449. The maxim supra is exemplified by Jones v. Davies, 7 H. & N.
507 ; s. c, 5 Id. 766.

3 1 Com. by Broom & Hadley 228-, Chit. Pre. Crown 10; Litt. ss. 14, 15;
3 Cruise Dig., 4th ed., 386. See also Hume's Hist, of England, vol. 4, pp.
242, 265.

532 broom's legal maxims.

by another venter, and the father died, and then the elder son
entered and died, the daughter would have inherited the land as
heir to her brother, who was the person last actually seised.1 This
rule, however, did not apply to estates tail.2 And the doctrine of
possessio fratris has been held not to affect the descent of a dignity
by writ.3

We have already seen,4 that, by the recent Inheritance Act,
entry is no longer necessary in order to constitute a good ancestor;
and likewise, that a sister must now trace her descent through the
father, and not directly from her brother of the whole blood , and,
therefore, the rule of possessio fratris is, by the operation of that
Act, virtually abolished, and is inapplicable to any case which has
occurred since the 1st January, 1834.

[*533] *Persona conjuncta ^quiparatur interesse proprio.

(Bac. Max., reg. 18.)

The interest of a personal connection is sometimes regarded in law as that of
the individual himself.

In the words of the civil law, jura sanguinis nullo jure civili
dirirni possunt,5 the law according to Lord Bacon, hath so much
respect for nature and conjunction of blood, that in divers cases it
compares and matches nearness of blood with consideration of
profit and interest, and, in some cases, allows of it more strongly.
Therefore, if a man covenant, in consideration of blood, to stand
seised to the use of his brother or son, or near kinsman, an use is
well raised by his covenant without transmutation of possession.6

1 Noy Max., 9th ed., p. 72. See further as to this doctrine, per Abbott, C.
J., Bushby v. Dixon, 3 B. & C. 304 (10 E. C. L. R.).

• 2 Ratcliff's Case, 3 Rep. 41 ; Doe d. Gregory v. Whichelo, 8 T. R. 211 ; Noy
Max., 9th ed., p. 73. See also the argument in Tolson, dem., Kaye, deft., 7
Scott N. R. 236 et seq., where the authorities on the above point are cited
and reviewed.

There might, however, be a possessio fratris of an equitable as well as of
a legal estate : Buchanan v. Harrison, 1 Johns. & H. 662.

3 The Hastings Peerage Case, 8 CI. & Fin. 144.

4 Ante, p. 526.

6 D. 50. 17. 8 ; Bac. Max., reg. 11. 6 Bac. Max., reg. 18.

RULES RELATING TO MARRIAGE AND DESCENT. 533

"So, if a man menace me, that he will imprison or hurt in body
my father or my child, except I make unto him an obligation, I
shall avoid this duress as well as if the duress had been to mine
own person."1

The above maxim, as to persona conjuncta, is likewise, in some
cases, applicable in determining the liability of an infant on con-
tracts, for what cannot strictly be considered as "necessaries"
within the ordinary meaning of that term.2 Thus, as observed by
Lord Bacon, if a man under the years of twenty-one, contract for the
nursing of his lawful child, this contract is good, and shall not be
avoided by infancy, no more than if he had contracted for his own
aliments or erudition." The like legal principle was, in a modern case,
extended so as to render an infant widow liable upon her contract
*for the funeral of her husband, who had left no property r^co^-i
to be administered ; for, as observed by Alderson, B., in
delivering judgment in the case just referred to, the law permits an
infant to make a valid contract of marriage, and all necessaries
furnished to those with whom he becomes one person by or through
the contract of marriage are, in point of law, necessaries to the
infant himself. " Now, there are many authorities which lay it
down that decent Christian burial is a part of a man's own rights;
and we think it is no great extension of the rule to say, that it
may be classed as a personal advantage, and reasonably necessary
to him. His property, if he leaves any, is liable to be appropriated
by his administrator to the performance of this proper ceremonial.
If, then, this be so, the decent Christian burial of his wife and law-
ful children, who are the personoe conjunctce with him, is also a
personal advantage, and reasonably necessary to him; and then
the rule of law applies, that he may make a binding contract for it.
This seems to us to be a proper and legitimate consequence from
the proposition that the law allows an infant to make a valid con-
tract of marriage. If this be correct, then an infant husband or
parent may contract for the burial of his wife or lawful children ;
and then the question arises, whether an infant widow is in a similar
situation. It may be said, that she is not, because, during the
coverture, she is incapable of contracting, and, after the death of
the husband, the relation of marriage has ceased. But we think

1 Bac. Max., reg. 18.

2 As to which see Ryder v. Wombwell, L. R. 4 Ex. 32.

27

534 broom's legal maxims.

this is not so. In the case of the husband, the contract will be
made after the death of the wife or child, and so after the rela-
tion which gives validity to the contract is at an end, to some
purposes. But if the husband can contract for this, it is because
pron *a contract for the burial of those who are persona? con-

junctce with him by reason of the marriage is as a contract
for his own personal benefit; and, if that be so, we do not see Avhy
the contract for the burial of the husband should not be the same
as a contract by the widow for her own personal benefit. Her
coverture is at end, and so she may contract: and her infancy is,
for the above reasons, no defence, if the contract be for her
personal benefit. It may be observed, that, as the ground of our
decision arises out of the infant's previous contract of marriage, it
will not follow from it that an infant child or more distant relation
would be responsible upon a contract for the burial of his parent or
relative."1

The maxim under consideration does not, however, apply so as
to render a parent liable on the contract of the infant child, even
where such contract is for " necessaries," unless there be some evi-
dence that the parent has either sanctioned or ratified the contract.
If, says Lord Abinger, C. B.,2 a father does any specific act from
which it may reasonably be inferred that he has authorized his son
to contract a debt, he may be liable in respect of the debt so con-
tracted ; but the mere moral obligation on the father to maintain
his child affords no inference of a legal promise to pay his debts.
" In order to bind a father in point of law for a debt incurred by
his son, you must prove that he has contracted to be bound, just in
r*rqfj-| *tne same manner as you would prove such a contract

against any other person ; and it would bring the law into
great uncertainty if it were permitted to juries to impose a liability
in each particular case, according to .their own feelings or preju-
dices." u It is," observed Parke, B., in the same case, "a clear

1 Chappie v. Cooper, 13 M. & W. 259, 260.

2 Mortimore v. Wright, 6 M. & W. 487 ; Shelton v. Springett, 11 C. B. 452
(73 E. C. L. R.). See Ambrose v. Kerison, 10 C. B. 776 "(70 E. C. L. R.),
(followed in Bradshaw v. Beard, 12 C. B. N. 344 (104 E. C. L. R.) ; Read v.
Legard, 6 Exch. 636, and Rice o. Shepherd, 12 C. B. N. S. 332 (104 E. C. L.
R.) ; Richardson v. Dubois, L. R. 5 Q. B. 51 (as showing under peculiar cir-
cumstances the liability of the husband in respect of his wife) ; Bazeley v.
Forder, L. R. 3 Q. B. 559.

RULES RELATING TO MARRIAGE AND DESCENT. 536

principle of law, that a father is not under any legal obligation to
pay his son's debts, except, indeed, by proceedings under the 43
Eliz.,1 by which he may, under certain circumstances, be compelled
to support his children according to his ability ; but the mere moral
obligation to do so cannot impose upon him any legal liability."2

Again, we read, " It hath been resolved by the justices that a
wife cannot be produced either against or for her husband, quia
sunt duce animce in carna und, and it might be a cause of impla-
cable discord and dissension between the husband and the wife, and
a mean of great inconvenience."3 At common law, however, the
above rule did not apply where a personal injury had been com-
mitted by the husband against the wife, or vice versd.* And the
rule in question has recently been in great part abrogated by the
legislature, for by " The Evidence Amendment Act, 1853 " (16 &
17 Vict. c. 83), ss. 1-3, husband and wife may give evidence for or
against each other — subject to these exceptions : 1st, that the hus-
band shall not be competent or compellable to give evidence for or
against his wife, nor the wife for or against her husband, " in any
criminal proceeding;" and 2dly, that *"no husband shall r^ro'j-i
be compellable to disclose any communication made to him
by his wife during the marriage, and no wife shall be compellable
to disclose any communication made to her by her husband during
the marriage." Further, "the parties to any proceeding instituted
in consequence of adultery, and the husbands and wives of such par-
ties," are now, by the stat. 32 & 33 Vict. c. 68, s. 3, " competent
to give evidence in such proceeding."

In the sense then above explained, and with the restrictions above
suggested, must be understood the maxim illustrated by Lord Bacon,
and with which we conclude our list of rules relative to marriage
and descent — Persona conjuncta cequiparatur interesse proprio.

1 See Grinnell v. Wells, 7 M. & Gr. 1033 (49 E. C. L. R.) ; Ruttinger v.
Temple, 4 B. & S. 491 (116 E. C. R. R).

2 For Courts of Law " are to decide according to the legal obligations of
parties:" per Alderson, B., Turner v. Mason, 14 M. & W. 117.

8 Co. Litt. 6 b.

« Lord Audley's Case, 3 How. St. Tr. 402, 413.

538 broom's legal maxims.

[*538] *CHAPTER VIII.

THE INTERPRETATION OF DEEDS AND WRITTEN INSTRUMENTS.

In the pages immediately following, an attempt has been made to
give a general view of such maxims as are of most practical utility,
and are most frequently cited with reference to the mode of con-
struing deeds and written instruments ; and some remarks have been
occasionally added, showing how these rules apply to the interpre-
tation of wills and statutes. As the authorities and decided cases
on the above subject are extremely numerous, and as in a work like
the present it would be undesirable, and indeed impossible, to refer
to any considerable portion of them, those only have been cited
which exhibit and tend to elucidate most clearly the meaning, ex-
tent, and qualifications of the various maxims; and; as far as, was
consistent with this plan, the more modern judgments of the courts
of law have been especially consulted and selected for reference, be-
cause the principles of interpretation are better understood at the
present day, and, consequently, more clearly defined and more cor-
rectly applied than they formerly were. The importance of fixed
and determinate rules of interpretation is manifest, and not less
manifest is the importance of a knowledge of those rules. In con-
struing deeds and testamentary instruments, the language of which,
j-^rqq-1 owing *to the use of inaccurate terms and expressions, fre-
quently falls short of, or altogether misrepresents, the views
and intentions of the parties, such rules are necessary in order to
insure just and uniform decisions ; and they are equally so where
it becomes the duty of a court of law to unravel and explain those
intricacies and ambiguities which occur in legislative enactments,
and which result from ideas not sufficiently precise, from views too
little comprehensive, or from the unavoidable and acknowledged im-
perfections of language.1 In each case, where doubt or difficulty
arises, peculiar principles and methods of interpretation are ap-
plied, reference being always had to the general scope and intention
of the instrument, the nature of the transaction, and the legal
rights and situation of the parties interested.

1 See Lord Teignmouth's Life of Sir W. Jones 261.

INTERPRETATION OF DEEDS, ETC. 539

The principles developed in this chapter being applicable to the
solution of many questions connected with the Law of Contracts
and of Evidence, have been considered before proceeding to the
subjects specified, which are briefly treated of in the concluding
chapters of this work.

The rules of construction and interpretation separately consid-
ered in this chapter are the following : — 1st, that an instrument
shall be construed liberally and according to the intention of the
parties ; 2dly, that the whole context shall be considered ; 3dly,
that the meaning of a word may often be known from the context ;
4thly, that a deed shall be taken most strongly against the grantor;
5thly, that a latent ambiguity may, but a patent ambiguity cannot,
be explained by extrinsic evidence ; 6thly, that where there is no
ambiguity, the natural construction shall prevail ; 7thly, that an
instrument or expression *is sufficiently certain which can
be made so ; 8thly, that surplusage may be rejected ; 9thly, *- -•
that a false description is often immaterial; lOthly, that general
words may be restrained by reference to the subject-matter; llthly,
that the special mention of one thing must be understood as ex-
cluding another; 12thly, that the expression of what is implied is
inoperative ; 13thly, that a clause referred to must be understood
as incorporated with that referring to it; 14thly, that relative
words refer to the next antecedent ; 15thly, that that mode of ex-
position is best which is founded on a reference to contemporaneous
facts and circumstances ; 16thly, that he who too minutely regards
the form of expression, takes but a superficial, and, therefore, pro-
bably an erroneous view of the meaning of an instrument.

Benign^e faciend^e sunt Interpretationes propter Simpli-
citatExM Laicorum ut Res magis valeat quam pereat ;
et Verba Intentioni, non e contra, debent inservire.

(Co. Litt. 36 a.)

A liberal construction should be put upon written instruments, so as to uphold
them, if possible, and carry into effect the intention of the parties.

The two rules of most general application in construing a written
instrument are — 1st, that it shall, if possible, be so interpreted ut

540 broom's legal maxims.

res magis valeat quam pereat,1 and 2dly, that such a meaning shall
r. - ,-,-! De giyen to it as may *carry out and effectuate to the fullest
*- -" extent the intention of the parties. These maxims are, in-
deed, in some cases restricted by the operation of technical rules,
which, for the sake of uniformity, ascribe definite meanings to par-
ticular expressions ; and, in other cases, they receive certain quali-
fications when applied to particular instruments, such qualifications
being imposed for wise and beneficial purposes ; notwithstanding,
however, these exceptions and qualifications, the above maxims are
undoubtedly the most important and comprehensive which can be
used for determining the true construction of written instruments.
It is then laid down repeatedly by the old reporters and legal
writers, that, in construing a deed, every part of it must be made,
if possible, to take effect, and every word must be made to operate
in some shape or other.2 The construction, likewise, must be such
as will preserve rather than destroy;3 it must be reasonable, and
agreeable to common understanding;4 it must also be favorable,
and as near the minds and apparent intents of the parties as the

^_ rules of law will admit,5 and, as *observed by Lord Hale,
T 5421
L * J the judges ought to be curious and subtle to invent reasons

1 See per Erie, C. J., Cheney v. Courtois, 13 C. B. N. S. 640 (106 E. C. L.
R.) 5 Broom v. Batchelor, 1 H. & N. 255 ; cited in Heffer v. Meadows, L. R.
4 C. P. 600; Steele v. Hoe, 14 Q. B. 431, 445 (68 E. C. L. R.) ; Ford v. Beech,
11 Q. B. 852, 866, 868, 870 (63 E.*C. L. R.) ; Oldershaw v. King, 2 H. & N.
517 ; s. c, Id. 399 ; Stratton v. Pettit, 16 C. B. 420 (81 E. C. L. R.) ; Mare v.
Charles, 5 E. & B. 978 (85 E. C. L. R.) ; approved in Penrose v. Martyr, E.

B. & E. 503 (96 E. C. L. R,).

" All contracts should, if possible, be construed ut res magis valeat quam
pereat:'1'1 per Byles, J., Vestry of Shoreditch v. Hughes, 17 C. B. N. S. 162
(112 E. C. L. R.).

The maxim supra was applied in Reg. v. Inhabitants of Broadhempston, 1
E. & E. 154, 163 (102 E. C. L. R.) ; Pugh v. Stringfield, 4 C. B. N. S. 364,
370 (93 E. C. L. R.). See Bl&ckwell v. England, 8 E. & B. 541, 549 (92 E.

C. L. R.).

" If a plea admits of two constructions, one of which gives a sensible effect
to the whole, and the other makes a portion of it idle and insensible, the
Court is bound to adopt the former construction :" per Williams, J., Peter v.
Daniel, 5 C. B. 579 (57 E. C. L. R.).

2 Shep. Touch. 84 ; Plowd. 156.
Per Lord Brougham, C, Lan

arg., Baker v. Tucker, 3 H. L. Cas. 116.
4 1 Bulst. 175 ; Hob. 304.
6 1 Anderson 60 : Jenk. Cent. 260.

INTERPRETATION OF DEEDS, ETC. 542

and means to make acts effectual according to the just intent of the
parties;1 they will not, therefore, cavil about the propriety of words
when the intent of the parties appears, but will rather apply the
words to fulfil the intent, than destroy the intent by reason of the
insufficiency of the words.2

It may, indeed, chance that, on executing an agreement under
seal, the parties thereto failed to contemplate the happening of
some particular event, or the existence of some particular state of
facts at a period subsequent thereto ;3 and all the Court can do in
sucli a case, is to ascertain the meaning of the words actually used ;
and, in construing the deed, they will adopt the established rule of
construction, "to read the words in their ordinary and grammatical
sense, and to give them effect, unless such a construction would
lead to some absurdity or inconvenience, or would be plainly
repugnant to the intention of the parties to be collected from other
parts of the deed."4 For "the golden rule of construction," to
which we shall presently revert,5 "is that words are to be construed
according to their natural meaning, unless such a construction would
either render them senseless or would be opposed to the general
scope and intent of the instrument, or unless there be some very
cogent reason of convenience in favor of a different interpreta-
tion."6

Deeds, then, shall be so construed as to operate according to the
intention of the parties, if by law they may; *and if they
cannot in one form, they shall operate in that which by •- -*
law will effectuate the intention : Quando res non valet ut ago,
valedt quantum valere potest.7 For, in these later times, the judges
have gone further than formerly, and have had more consideration
for the substance, to wit, the passing of the estate according to the

1 Crossing v. Scudamore, 2 Lev. 9 ; per Lord Hobart, Hob. 11. 277, cited
Welles R. 682 ; Moseley v. Motteux, 10 M. & W. 533.

2 1 Plowd. 159, 160, 162.

3 See Judgm., Lloyd v. Guibert, L. R. 1 Q. B. 120.

4 Per Parke, B., Bland v. Crowley, 6 Exch. 529,
6 Post, p. 569.

6 Per Bramwell, B., Fowell v. Tranter, 3 H. & C. 461.

7 Per Lord Mansfield, C. J., Goodtitle v. Bailey, Cowp. 600 ; cited Roe d.
Earl of Berkeley v. Archbishop of York, 6 East 105 ; 1 Ventr. 216. See also
the instances of the above rule mentioned in Gibson i\ Minet, 1 II. Bla. 614,
620.

548 broom's legal maxims.

intent of the parties, than the shadow, to wit, the manner of
passing it.1 For instance, a deed intended for a release, if it cannot
operate as such, may amount to a grant of the reversion, an attorn-
ment, or a surrender, and e converso.2 And the Court, acting on
the principle inter pretatio chartarum benigne faeienda est ut res
magis valeat quam pereat, has held an instrument which was, in
fact, a release made by a joint tenant of a copyhold, but having
been executed before admittance, could not operate as such, to be
equivalent to a disclaimer.3

So, if a man makes a feoifment in fee, with a letter of attorney
to give livery, and no livery is given, but there is, in the same deed,
a covenant to stand seised to the uses of the feoffment, provided
there be a consideration sufficient to raise the uses of the covenant,
this will amount to a covenant to stand seised.4 And, where A.,
in consideration of natural love and of 100?., by deeds of lease and
rxzAA-i ^release, granted, released, and confirmed certain premises,
after his own death, to his brother B., in tail, remainder
to C, the son of another brother of A., in fee ; and he covenanted
and granted that the premises should, after his death, be held
by B. and the heirs of his body, or by C. and his heirs, ac-
cording to the true intent of the deed ; it was held, that, although
the deed could not operate as a release, because it attempted to
convey a freehold infuturo, yet it was good as a covenant to stand
seised.5 So, a deed of bargain and sale, void for want of enrol-
ment, will operate as a grant of the reversion.6 So, if the King's

1 Osman v. Sheaf, 3 Lev. 370 ; cited Doe d. Lewis v. Davies, 2 M. & W. 516 ;
per Willes, C. J., Smithy. Packhurst, 3 Atk. 136 ; cited Marquis of Cholmon-
deley v. Lord Clinton, 2 B. & Aid. 637 ; Tarleton v. Staniforth, 5 T. R. 695;
per Maule, J., Borradaile v. Hunter, 5 Scott N. R. 431, 432; 2 Wms. Saund.
96 a, n. (1) ; 3 Prest. Abstr. Tit. 21, 22 ; 1 Id. 313.

2 Shep. Touch. 82, 83 ; Co. Litt. 49 b; cited 5 B. & C. 106 (11 E. C. L. R.).

3 Lord Wellesley v. Withers, 4 E. & B. 750 ; cited and explained in Bence
v. Gilpin, L. R. 3 Ex. 82.

* Shep. Touch. 82, 83.

6 Roe v. Trammarr, Willes R. 682. See the cases collected 2 Wins. Saund.
96 a, n. (1) ; 1 Prest. Abstr. Tit. 313 ; 1 Rep. 76 ; Perry v. Watts, 4 Scott N.
R. 366 ; Doe d. Daniell v. Woodroffe, cited ante, p. 214.

"The general rule," also, "is that a covenant not to sue when it does not
affect other parties, and is so intended, may be pleaded as a release." Per
Byles, J., Ray v. Jones, 19 C. B. N. S. 423 (115 E. C. L. R.).

6 2 Smith L. C, 6th ed., 474; Haggerston v. Hanbury, 5 B. & C. 101 (11
E. C. L. R.) ; Adams v. Steer, Cro. Jac. 210.

INTERPRETATION OF DEEDS, ETC. 544

charter will bear a double construction, one of which will carry the
grant into effect, the other which will make it inoperative, the
former is to be adopted.1 And generally, " if words have a double
intendment, and the one standeth with law, and the other is against
law, they are to be taken in the sense which is agreeable to law."2

In accordance with the same principle of construction, where
divers persons join in a deed, and some are able to make such deed,
and some are not able, this shall be said to be his deed alone that
is able;3 and if a deed be made to one that is incapable and another
that is capable, *it shall enure only to the latter.4 So, if r+c^c-i
mortgagor and mortgagee join in a lease, this enures as
the lease of the mortgagee, and the confirmation of the mortgagor.5
And if there be a joint lease by tenant for life and remainderman,
such lease operates during the life of the tenant as his demise, con-
firmed by the remainderman, and afterwards as the demise of such
last-mentioned party.6

The preceding examples may suffice to show that where a deed
cannot operate in the precise manner or to the full extent intended
by the parties, it shall, nevertheless, be made as far as possible to
effectuate their intention. Acting, moreover, on a kindred princi-
ple, the Court will endeavor to affix such a meaning to words of
obscure and doubtful import occurring in a deed, as may best carry
out the plain and manifest intention of the parties, as collected
from the four corners of the instrument, — with these qualifications,
however, that the intent of the parties shall never be carried into
effect contrary to the rules of law, and that as a general rule, the
Court will not introduce into a deed words which are not to be found
there,7 nor strike out of a deed words which are there, in order to

1 Per Tindal, C. J., Rutter v. Chapman, 8 M. & W. 102.
J Shep. Touch. 80, adopted per Martin, B., Fussell v. Daniel, 10 Exch. 597 ;
Co. Litt. 42 a, 183 ; Noy Max., 9th ed., 211.

3 Shep. Touch. 81 ; Finch Law 60.

4 Shep. Touch. 82.

6 Doe d. Barney v. Adams, 2 Cr. & J. 232; per Lord Lyndhurst, C. B.,
Smith v. Pocklington, 1 Cr. & J. 446.

6 Treport's Case, 6 Rep. 15.

7 Vide, per Willes, C. J., Parkhurst v. Smith, Willes 332 ; cited and applied,
per Alexander, C. B., Colemore v. Tyndall, 2 Yo. & J. 618 ; per Lord
Brougham, C, Langston v. Langston, 2 CI. & Fin. 243 ; Pannell v. Mill, 3 C.
B. 625, 637 (54 E. C. L. R.).

545 broom's legal maxims.

make the sense different.1 The following important illustrations of
the above propositions may advantageously be noticed, and many
others of equal practical importance will, doubtless, suggest them-
selves to the reader.

I~*^46"l *^n cases Pri°r to and excluded from the operation of
J the recent stats. 7 & 8 Yict. c. 76, s. 4,2 and 8 & 9 Vict,
c. 106, s. 3,3 the question whether a particular instrument should
be construed as a lease or as an agreement for a lease must be
answered by considering the intention of the parties, as collected
from the instrument itself; and any words which suffice to explain
the intent of the parties, that the one should divest himself of the
possession, and the other come into it for such a determinate time,
whether they run in the form of a license, covenant, or agreement,
will of themselves be held., in construction of law, to amount to a
lease for years as effectually as if the most proper and pertinent
words had been made use of for that purpose.4 " The rule,"
observes Parke, B., "which is laid down in all the cases, is, that
you must look at the whole of the instrument to judge of the inten-
tion of the parties, as declared by the words of it, for the purpose
of seeing whether it is an agreement or a lease."5

The rules applicable and cases decided with reference to the

construction of covenants will also be found to furnish strong and

T*^471 aDun(^ant instances of the anxiety * which our Courts evince

to effectuate the real intention6 of the parties to a deed or

1 White v. Burnby, 16 L. J., Q. B. 156 ; secas as to mere surplusage, post.

2 See Burton v. Reevell, 16 M. & W. 307 ; Bond v. Rosling, 1 B. & S. 371
(101 E. C. L. R.).

3 See Rollason v. Leon, 7 II. & N. 73.

*Bac. Abr. "Leases" (K.) ; and 2 Shep. Touch., by Preston, 272; cited,
judgm., Doe d. Parsley v. Day, 2 Q. B. 152 et seq. (42 E. C. L. R.) ; Alderman
v. Neate, 4 M. & W. 704.

6 Gore v. Lloyd, 12 M. & W. 478 ; Doe d. Morgan v. Powell, 8 Scott N. R.
687 ; Doe d. Wood v. Clarke, 7 Q. B. 211 (53 E. C. L. R.) ; per Wightman, J.,
Jones v. Reynolds, 1 Q. B. 517 (41 E. L. C. R.) ; Chapman v. Towner, 6 M. &
W. 100; per Mansfield, C. J., Morgan v. Bissell, 3 Taunt. 72 (cited, per
Jervis, C. J., Stratton v. Pettit, 16 C. B. 436 (81 E. C. L. R.)), doubted and
distinguished in Rollason v. Leon, 7 H. & N. 73, 77, 78 ; Curling v. Mills, 7
Scott N. R. 709, 725 ; Tarte v. Darby, 15 M. & W. 601. See Drury v. Mac-
namara, 5 E. & B. 612 (85 E. C. L. R.).

6 Such intention may however be frustrated by the operation of a positive
and technical rule of law. "A technical rule is one which is established by
authority and precedent, which does not depend upon reasoning or argument,

INTERPRETATION OF DEEDS, ETC. 547

agreement ;l for it is not necessary, in order to charge a party with
a covenant, that there should be express words of covenant or
agreement, but it is enough if the intention of the parties to create
a covenent be apparent.2 Where, therefore, words of recital3 or
reference manifest a clear intention that the parties shall do certain
acts, the Courts will, from these words, infer a covenant to do such
acts, and will sustain actions of covenant for their non-performance
as effectually as if the instruments had contained express covenants
to perform them.4 In brief, " no particular form of words is ne-
cessary to form a covenant ; but wherever the Court can collect
from the instrument an engagement on the one side to do or not to
do something, it amounts to a covenant, whether it is in the recital
or in any other part of the instrument."5

*In like manner where the language of a covenant is r*fyiQ~|
such that the covenant may be construed either as joint or
as several, it shall be taken, at common law, to be joint or several,
according to the interest of the covenantees. Where, however, the
covenant is in its terms expressly and positively joint, it must be
construed as a joint covenant, in compliance with the declared in-
tention of the parties.6

but is a fixed established rule to be acted upon, and only discussed as regards
its application — in truth is the law." Such a rule is that where a deed is
made inter partes — no one who is not expressed to be a party can sue upon a
covenant contained in it; Chesterfield, &c, Colliery Co. v. Hawkins, 3 H. &
C. 677, 691, cited in Gurrin v. Kopera, Id. 699.

1 See Doe d. Rogers v. Price, S (J. B. 894 (65 E. C. L. R.).

2 Per Tindal, C. J., Courtney v. Taylor, 7 Scott N. R. 765 ; Wood v. The
Coppermine^' Co., 7 C. B. 906 (62 E. C. L. R.) ; per Parke, B., Rigby v.
Great Western R. C, 14 M. & W. 8.15; and in James v. Cochrane, 7 Exch.
177 ; s. c, 8 Id. 556 ; Farrall v. HiMitch, 5 C. B. N. S. 840 (94 E. C. L. R,).
See Bealey v. Stuart, 7 II. & N. 753, 759.

3 See Lay v. Mottram, 19 C. B. N. S. 479 (115 E. C. L. R.).

4 Judgm., Aspdin v. Austin, 5 Q. B. 683 (48 E. C. L. R. ) ; cited Dunn v.
Sayles, Id. 692; and in Churchward v. Reg., L. R. 1 Q. B. 191, 208, and
Rust v. Nottidge, 1 E. & B. 104 (72 E. C. L. R.) ; Williams v. Burrell, 1 C. B.
429 (50 E. C. L. R.), where the distinction between express covenants and
covenants in law is pointed out. Per Crompton, Jv 2 B. & S. 516 (110 E. C.
L. R.).

6 Per Parke, B., Great Northern R. C. v. Harrison, 12 C. B. 609 (74 E. C.
L. R.) ; judgm., Rashleigh v. South Eastern R. C, 10 C. B. 632 (70 E. C. L.
11.), as to which case see Knight v. Gravesend and Milton Waterworks Co., 2
II. & N. 10, 11.

Judgm., Bradburne v. Botfield, 14 M. &.W. 564, 572; Haddon v. Ayres

548 broom's legal maxims.

In like manner, the rule has been established by a long series of
decisions in modern times, that the question, whether covenants are
to be held dependent or independent of each other, is to be de-
termined by the intention or meaning of the parties as it appears
on the instrument, and by the application of common sense to each
particular case; to the intention, when once discovered, all technical
forms of expression must give way.1 Where, therefore, a question
T*^4Q1 arose whether certain covenants *in marriage articles were
dependent or not, Lord Cottenham, C, observed, " If the
provisions are clearly expressed, and there is nothing to enable the
Court to put upon them a construction different from that which
the words import, no doubt the words must prevail : but if the pro-
visions and expressions be contradictory, and if there be grounds
appearing upon the face of the instrument, affording proof of the
real intention of the parties, then that intention will prevail against
the obvious and ordinary meaning of the words. If the parties
have themselves furnished a key to the meaning of the words used,
it is not material by what expression they convey their intention."2

1 E. & E. 118 (102 E. C. L. R.); p«Sh v- Stringfield, 3 C. B. N. S. 2 (91 E.
C. L. R.); per Maule, J., Beer v. Beer, 12 0. B. 78 (74 E. C. L. R.), citing
Wetherell v. Langston, 1 Exch. 634 ; Hopkinson v. Lee, 6 Q. B. 964 (51 E. C.
L. R.); Foley v. Addenbrooke, 4 Q. B. 207 (45 E. C. L. R.); followed in
Thompson v. Hakewill, 19 C. B. N. S. 713, 728 (115 E. C. L. R.) ; Sorsbie v.
Park, 12 M. & W. 146; Mills v. Ladbroke, 7 Scott N. R. 1005, 1023; per
Parke, B., Wootton v. Steffenoni, 12 M. &. W. 134; Harrold v. Whitaker, 11
Q. B. 147, 163 (63 E. C. L. R.) ; Wakefield v. Brown, 9 Q. B. 209 (58 E. C. L.
R.), followed in Magnay v. Edwards, 13 C. B. 479 (76 E. C. L. R.).

1 Judgm., Stavers v. Curling, 3 Bing. N. C. 368 (32 E. C. L. R.) ; Baylis v.
Le Gros, 4 C. B. N. S. 537 (93 E. C. L. R.) ; London Gas Light Co. v. Vestry
of Chelsea, 8 C. B. N. S. 215 (98 E. C. L. R.) ; Sibthorp v. Brunei, 3 Exch.
826, 828 ; Hemans v. Picciotto, 1 C. B. N. S. 646 (87 E. C. L. R.). See Mack-
intosh v. Midland Counties R. C, 14 M. & W. 548.

The answer to the question, what is or what is not a condition precedent,
depends not on merely technical words but on the plain intention of the
parties to be deduced from the whole instrument: Roberts v. Brett, 11 H. L.
Cas. 337, 354.

2 Per Lord Cottenham, C, Lloyd v. Lloyd, 2 My. & Cr. 202. In the notes
to Pordage v. Cole, 1 Wms. Saund. 319, are specified various cases in which
the Court has done great violence to the strict letter of covenants, for the
purpose of carrying into effect what was considered to be the real intention
of the parties.

See Marsden v. Moore, 4 H. & N. 504, where Pordage v. Cole is cited and
distinguished.

INTERPRETATION OF DEEDS, ETC. 549

The construction of covenants, it has also been truly said, is the
same in equity as at law. " But, though the construction is the
same, it is most certain the performance may differ in the one
court from what it is in the other. At law a covenant must be
strictly and literally performed according to the true intent and
meaning of the parties, so far as circumstances will admit ; but if,
by unavoidable accident, — if by fraud, by surprise or ignorance,
not wilful, parties may have been prevented from executing it
literally, a court of equity will interfere, and, upon compensation
being made, the party having done everything in his power and
being prevented by the means I have alluded to, will give relief."1

The same sense, we may in the next place observe, *is r*^oi
to be put upon the words of a contract in an instrument
under seal as would be put upon the same words in any instrument
not under seal: that is to say, the same intention must be collected
from the same words, whether the particular contract in which they
occur be special or not.2

In the case, then, of a contract or agreement, whether by deed
or parol, the Courts are bound so to construe it, ut res magis valeat
quam pereat — that it may be made to operate rather than be in-
efficient ; and, in order to effect this, the words used shall have a
reasonable intendment and construction.3 Words of art, for in-
stance, which, in the understanding of conveyancers, have a pe-
culiar technical meaning, shall not be scanned and construed with a
conveyancer's acuteness, if, by so doing, one part of the instrument
is made inconsistent with another, and the whole is incongruous
and unintelligible ; but the Court will understand the words used
in their popular sense, and will interpret the language of the parties
secundum subjeetam materiem, referring particular expressions to
the particular subject-matter of the agreement, so that full and
complete force may be given to the whole.4

1 Per Sir R. P. Arden, M. R., 3 Ves. jun. 692.

2 Per Lord Ellenborough C. J., 13 East 74.

3 Com. Dig., " Pleader," (C. 25) ; Bac. Works, vol. 4, p. 25 ; Noy Max., 9th
ed., p. 50.

4 Hallewell v. Morrell, 1 Scott N. R. 309 ; per cur., Hill v. Grange, Plowd.
164, 170 ; cited arg. 2 Q. B. 509 (42 E. C. L. R.) ; per Willes, C. J., Willes
R. 332 ; Heseltine v. Siggers, 1 Exch. 856.

As to construing an award, see Law v. Blackburrow, 14 C. B. 77 (78 E. C.
L. R.) ; Mays v. Cannell, 15 C. B. 107 (80 E. C. L. R.), and cases there cited.

550 broom's legal maxims.

Whether, for example, a particular clause in a charter-party
shall be held to be a condition, upon the non-performance of which
r*^i-] Dy tne one Party> the other is at *liberty to abandon the
contract, and consider it at an end, — or whether it amounts
to an agreement only, the breach whereof is to be recompensed by
an action for damages, — must depend, in each particular case, upon
the intention of the parties, to be collected from the terms of the
agreement itself, and from the subject-matter to which it relates;
it cannot depend on any formal arrangement of the words, but on
the reason and sense of the thing, as it is to be collected from the
whole contract.1 In such a case, therefore, the rule applies, In
conventionibus contrahentium voluntas potius quam verba spectari
placuit2 — in contracts and agreements the intention of the parties,
rather than the words actually used by them, should be considered.3

Subject, however, to the preceding remarks, courts both of law
and of equity will apply the ordinary rules of construction in inter-
preting instruments, and will construe words according to their strict
and primary acceptation, unless from the immediate context or
from the intention of the parties apparent on the face of the instru-
ment, the words appear to have been used in a different sense, or
unless, in their strict sense, they are incapable of being carried into
effect. It must, moreover, be observed that the meaning of a par-
ticular word may be shown by parol evidence to be different in some
r*^9l sPec'fip(i place, trade or *business from its proper and ordi-
nary acceptation ;4 various cases illustrating this remark
will be hereafter cited.

With respect to patents, it was long since observed by Lord

1 Judgm., Glaholm v. Hays, 2 Scott N. R. 482 ; recognised in Ollive v.
Booker, 1 Exch. 416, 423 ; Behn v. Burness, 32 L. J., Q. B. 204 ; s. c, 1 B. &
S. 877 (101 E. C. L. R.) ; Seeger v. Duthie, 8 C. B. N. S. 45 (98 E. C. L. R.) ;
Oliver v. Fielden, 4 Exch. 135, 138 ; and Crookewit v. Fletcher, 1 H. & N.
911 ; Gattorno v. Adams, 12 C. B. N. S. 560 (104 E. C. L. R.); per Lord
Ellenborough, C. J., Ritchie v. Atkinson, 10 East 306 ; judgm., Furze v.
Sharwood, 2 Q. B. 415 (42 E. C. L. R.). See White v. Beeton, 7 II. & N. 42.

2 17 Johns. (U. S.) R. 150, and cases there cited.

3 Dimech v. Corlett, 12 Moo. P. C. C. 199, 228, citing Glaholm v. Hays,
supra.

4 See, Per Pollock, C. B., Mallan v. May, 13 M. & W. 511; Lewis v.
Marshall, 8 Scott N. R. 477, 494 ; per Parke, B., Clift v. Schwabe, 3 C. B.
469, 470 (54 E. C. L. R.) ; per Lord Cranworth, C, 6 H. L. Cas. 78 ; post,
Chap. X.

INTERPRETATION OF DEEDS, ETC. 552

Eldon, that they are to be considered as bargains between the in-
ventor and the public, to be judged of on the principles of good
faith, by making a fair disclosure of the invention, and to be con-
strued as other bargains.1 Moreover, although formerly there
seems to have been very much a practice, with both judges and
juries, to destroy the patent right even of beneficial patents, by
exercising great astuteness in taking objections as to the title of the
patent, and more particularly as to the specification, in consequence
of which many valuable patent rights have been destroyed; yet,
more recently, the* Courts have not been so strict in taking objec-
tions to the specification, but have rather endeavored to deal fairly
both with the patentee and the public, willing to give to the
patentee, on his part, the reward of a valuable patent, but taking
care to secure to the public, on the other hand, the benefit of that
proviso (i. e., the proviso requiring a specification) which is intro-
duced into the patent for their advantage, so that the right to the
patent may be fairly and properly expressed in the specification.2
In construing *a specification accordingly, the whole instru- r*ncon
ment must be taken together, and a fair and reasonable in-
terpretation is to be given to the words used in it ;3 the words of
the specification being construed according to their ordinary and
proper meaning, unless there be something in the context to give
them a different meaning, or unless the facts properly in evidence,
and with reference to which the patent must be construed, should
show that a different interpretation ought to be made.4

The following remarks of Lord Ellenborough, C. J., with refer-

1 Per Alderson, B., Neilson v. Harford, Webs. Pat. Cas. 341 ; Norman on
Patents 78, 79.

The mode of construing a patent as between the patentee and the Crown,
is stated post.

2 Per Parke, B., Neilson's Patent, Webs. Pat. Cas. 310; per Alderson, B.,
Morgan v. Seaward, Id. 173, who observes: "It is the duty of a party who
takes out a patent to specify what his invention really is : and although it is
the bounden duty of a jury to protect him in the fair exercise of his patent
right, it is of great importance to the public, and by law it is absolutely
necessary, that the patentee should state in his specification, not only the
nature of his invention, but how that invention may be carried into effect."

3 Beard v. Egerton, 8 C. B. 165 (65 E. C. L. R.).

4 Judgm., Elliott v. Turner (in error), 2 C. B. 446, 461 (52 E. C. L. R.).
As to construing a specification which contains terms of art, see Betts v. Men-
zies, 10 H. L. Cas. 117.

553 broom's legal maxims.

ence to a policy of insurance, here also occur to mind as generally
applicable. "The same rule of construction," says that learned
Judge, "which applies to all other instruments, applies equally to
this instrument of a policy of insurance, viz., that it is to be con-
strued according to its sense and meaning, as collected, in the first
place, from the terms used in it, which terms are themselves to be
understood in their plain, ordinary, and popular sense, unless they
have generally, in respect to the subject-matter, — as by the known
usage of trade, or the like, — acquired a peculiar sense distinct from
the popular sense of the same words, or unless th$ context evidently
points out that they must, in the particular instance, and in order
to effectuate the immediate intention of the parties to that contract,
be understood in some other special and peculiar sense."1 And
again, "the ^contract of insurance," it has been said,
L -1 "though a mercantile instrument, is to be construed ac-
cording to the same rules as all other written contracts, namely,
the intention of the parties, which is to be gathered from the
words of the instrument, interpreted together with the surrounding
circumstances. If the words of the instrument are clear in them-
selves, the instrument must be construed accordingly, but if they
are susceptible of more meanings than one, then the judge must
inform himself by the aid of the jury and the surrounding circum-
stances which bear on the contract."2

In construing a will, it has been said, that the intention of the
testator is the polar star by which the Court should be guided,
provided no rule of law is thereby infringed.3 "It is the duty of
those who have to expound a will, if they can, ex fumo dare
lucem."* In other words, the first thing for consideration always

1 Robertson ,w. French, 4 East 135, 136; cited, per Lord Tenterden, C. J.,
Hunter v. Leathley, 10 B. & C. 871 (21 E. C. L. R.).

2 Per Erie, C. J., Carr v. Montefiore, 5 B. & S. 428 (117 E. C. L. R.) ; citing
Robertson v. French, supra.

3 Per Lord Kenyon, C. J., Watson v. Foxon, 2 East 42; per Willes, C. J.,
Doe v. Underdown, Willes R. 296 ; per Buller, J., Smith v. Coffin, 2 H. Bla.
450 ; cases cited, arg. Ley v. Ley, 3 Scott N. R. 168 ; Doe d. Amlot v. Davies,
4 M. & W. 599, 607 ; Doe d. Tremewen v. Permewen, 11 A. & E. 131 (39 E.
C. L. R.) ; per Parke, B.,Grover v. Burningham, 5 Exch. 191 ; Martin v. Lee,
14 Moo. P. C. C. 142.

4 Per V.-C. E., De Beauvoir v. De Beauvoir, 15 L. J. Chanc. 308; s. c,

INTERPRETATION OF DEEDS, ETC. 554

is, what was the testator's intention at the time he made the will;
and then the law carries that intention into effect as nearly as it
can, according to certain settled technical rules.1

*" Touching the general rules to be observed for the true r*cccT
construction of wills," says Dodderidge, J., — uin testa-
mentis plentus testatoris intentionem scrutamur. But yet this is to
be observed with these two limitations : 1st, his intent ought to be
agreeable to the rules of law ; 2dly, his intent ought to be col-
lected out of the words of the will. As to this it may be demanded,
how shall this be known ? To this it may thus be answered : first, to
search out what was the scope of his will ; secondly, to make such
a construction, so that all the words of the will may stand; for to
add anything to the words of the will, or in the construction made
to relinquish and leave out any of the words is maledicta glossa.
But every string ought to give its sound."2

In a modern case, involving important interests,3 the following
were laid down as the leading and fundamental rules for construing
a will. In the first place, the intention of the testator ought to be
the only guide of the Court to the interpretation of his will ; yet it
must be his intention as collected from the words employed by him-
self in his will.4 No surmise or conjecture of any object, which

1 Judgm., Doe d. Scott v. Roach, 5 M. & S. 490 ; Hodgson v. Ambrose,
Dougl. 341; Festingv. Allen, 12 M. & W. 279; Alexander v. Alexander, 16
C. B. 59 (81 E. C. L. R.) ; Doe d. Bills v. Hopkinson, 5 Q. B. 223 (48 E. C.
L. R.) ; Doe d. Stevenson v. Glover, 1 C. B. 459 (50 E. C. L. R.).

" The general rule in interpreting a will and codicil is that the whole of
the will takes effect, except in so far as it is inconsistent with the codicil."
Judgm., Robertson v. Powell, 2 H. & C. 766-7 ; citing Doe d. Hearle v. Hicks,
1 CI. & F. 20; judgm., Richardson v. Power, 19 C. B. N. S. 799 (115 E. C.
L. R.).

2 Per Dodderidge, J., Blamford v. Blamford, 3 Buls. 103. See Parker v.
Tootal, 11 H. L. Cas. 143.

3 Earl of Scarborough v. Doe d. Savile, 3 A. & E. 897 (30 E. C. L. R.).

4 In Doe d. Sams v. Garlick, 14 M. & W. 701, Parke, B., observes, that dif-
ficulties have arisen from confounding the testator's intention with his mean-
ing. " Intention may mean what the testator intended to have done, whereas
the only question in the construction of wills is on the meaning of the words."
In Grover v. Burningham, 5 Exch. 194, Rolfe, B., also observes, " We are to
ascertain by construing the will non quod voluit sed quod dixit, or rather we
are to ascertain quod voluit by interpreting quod dixit.1,1 And see, per Lord
Wensleydale, Grey v. Pearson, 6 II. L. Cas. 106 ; and in Slingsby v. Grainger,
7 H. L. Cas. 284.

28.

555 broom's legal maxims.

the testator may be supposed to have had in view, can be allowed to
|-*rr£-i have any weight in the construction of *his will, unless
such object can be collected from the plain language of
the will itself. If, for instance, there be a question as to the mean-
ing of a proviso in a will, and its application to a given state of
facts, the Court will consider whether the testator has, by the pro-
viso, declared an intention with sufficient clearness to reach the par-
ticular case which has actually happened, and whether he has
employed such machinery in his will as is capable of carrying such
declared intention into effect.1

In the second place, it is a necessary rule in the investigation of
the intention of a testator, not only that regard should be paid to
the words of the will, in order to determine the operation and effect
of the devise, but that the legal consequences which may follow
from the nature and qualities of the estate, when once collected
from the words of the will itself, should be altogether disregarded ;a
for example, in de'termining whether the intention of the testator
was, in any particular case, to give the devisee an estate-tail, or for
life only, it is not a sound or legitimate mode of reasoning to im-
port into the consideration of the question, that, if the estate is
held to be an estate-tail, the devisee will have the power of defeat-
ing the intention of the testator altogether ; for the Court will not
assume that the testator was ignorant of the legal consequence and
effect of the disposition which he has himself made ;3 and a person
ought to direct his meaning according to the law, and not seek to
P^ __,_-. mould *the law according to his meaning; for, if a man
were assured, that, whatever words he made use of, his
meaning only would be considered, he would be very careless about
the choice of his words, and the attempt to explain his meaning in
each particular case would give rise to infinite confusion and uncer-
tainty.4

1 Judgm., Earl of Scarborough v. Doe d. Savile, 3 A. & E. 962, 963 (30 E.
C. L. II.) ; cited 8 M. & W. 200.

2 At the same time the circumstance, that the language if strictly construed
will lead to a consequence inconsistent with the presumble intention, is not to
be left out of view, especially if other considerations lead to the same result:
judgm., Quicke v. Leach, 13 M. & W. 228.

3 3 A. & E. 963, 964 (30 E. C. L. R.) ; per Parke, B., Morrice v. Langham^
8 M. & W. 207.

« Plowd. 162.

INTERPRETATION OF DEEDS, ETC. 557

Hence, although it is the duty of the Court to ascertain and
carry into effect the intention of the party, yet there are, in many
cases, fixed and settled rules by which that intention is determined;
and to such rules the wisest judges have thought proper to adhere,
in opposition to their own private opinions as to the probable inten-
tion of the party in any particular case.1

The object, indeed, of all such technical rules is to create cer-
tainty, and to prevent litigation, by enabling those who are con-
versant with these subjects to give correct advice, which would
evidently be impossible, if the law were uncertain and liable to
fluctuation in each particular case.2

In accordance with the remarks above, offered, Parke, B., in an
important case respecting the application of the rule against per-
petuities, thus expressed himself: — "We must first ascertain the
intention of the testator, or more properly the meaning of his words,
in the clause under consideration, and then endeavor to give effect
to them so far as the rules of law will permit. Our first duty is
to construe the will, and this we must do exactly in the same way
as if the rule against perpetuity had never been established, or
were repealed when the will was made, not varying the construction
in order to avoid the effect of *that rule, but interpreting
the words of the testator wholly without reference to it."3 L J

The rule in Shelley's Case4 — by which, where an estate of free-
hold is limited to a person, and the same instrument contains a
limitation, either mediate or immediate, to his heirs or the heirs of
his body, the word "heirs" is construed as a word of limitation5 —
will occur to the reader as a familiar instance of an arbitrary and
technical rule of construction, the authority of which is acknowl-
edged by the Courts, even where its application may tend to defeat
the intention of the testator.

In like manner, it is a rule which has through a long series of
cases been uniformly acted upon, although now by a recent statute

1 See, per Alexander, C. B., 6 Bing. 478 ; judgm., 2 Phill. 68.

2 Per Pollock, C. B., Doe d. Sams v. Garlick, 14 M. & W. 707.

* Per Parke, B., Lord Dungannon v. Smith, 12 CI. & Fin. 599 ; distinguished
in Christie v. Gosling, L. R. 1 H. L. 279.

4 As to which see 2 Com. by Broom & Hadley 330.

s 2 Jarm. Wills, 2d ed., 273. See Harrison v. Harrison, 8 Scott N. R. 862,
873 ; Cole v. Goble, 13 C. B. 445 (76 E. C. L. R.) ; Jordan v. Adams, 6 C. B.
N. S. 748 (95 E. C. L. R.).

558 broom's legal maxims.

rendered inapplicable in the case of wills,1 that a power of appoint-
ment over realty shall not be considered as executed, unless the
instrument which is relied upon as an execution of the power con-
tain a reference thereto, or to the property which was the subject
of the power, or unless the provision made by the person entrusted
with the power would have been ineffectual, and would have had
nothing to operate upon unless it were considered as an execution
of such power.2

r*cccn *So, in construing a power to lease contained in a will,
the Court have said, it " becomes necessary to look to the
language of the testator in the creation of the power itself, and to
ascertain his intention by considering the true meaning of the
language which he has used, giving to it its natural signification
according to the ordinary rules of interpretation ; giving effect, if
possible, to every part of the clause ; and if any part of it be ambi-
guous, interpreting it by reference to the context, to the general
intent of the will, and, if necessary, to the surrounding circum-
stances."3

So, in the cases of personalty, the rule under the law as it form-
erly existed was, that a general bequest does not exercise a power,
unless, indeed, an intention so to do can be collected from the
entire instrument; and in a case before Sir W. Grant, M. R., to
which this rule was applied,4 and which, notwithstanding the recent
statutory alteration of the law, may be mentioned as apposite to
our present subject, it appeared that a person had power to ap-
point 100Z. by her will, and possessed nothing but a few articles of
furniture of her own to answer the bequest ; and the learned Judge

1 The rule does not apply to any will made or republished since the stat. 1
Vict. c. 26, came into operation. See sect. 27, which provides that real and
personal property over which the testator has a power of appointment shall
pass by a general devise or bequest, unless a contrary intention shall appear.

2 Denn d. Nowell v. Roake, 6 Bing. 475; s. c, 4 Bligh. N. S. 1; Doe d.
Caldecott v. Johnson, 8 Scott N. R. 761 ; Logan v. Bell, Id. 872 ; Hughes v.
Turner, 3 My. & K. 666.

3 Judg., Jegon v. Vivian, L. R. 2 C. P. 427 ; s. c, affirmed L. R. 3 H. L.
285.

" Facts extrinsic to the will must be ascertained for the Court in the usual
manner, either by admission of the parties or by a jury. When they have
been ascertained the operation of construction is to be performed by the
Court." Judgm., Webber v. Stanley, 16 C. B. N. S. 752 (111 E. C. L. R.).

INTERPRETATION OF DEEDS, ETC. 559

observed, " In my own private opinion I think the intention was to
give the 100?., which the testatrix had a power to dispose of, but

I do not conceive that I can judicially declare it to have been
executed."

"If," says Lord Cottenham, in a more recent case, "there be
any ambiguity, then it is the duty of the *Court to put that r*rfin-i
construction upon the words which seems best to carry the
intention into effect; but if there be no ambiguity, however un-
fortunate it may be that the intention of the testator should fail,
there is no right in any court of justice to say those words shall
not have their plain and unambiguous meaning.1

Not only are there fixed and established rules by which the
Courts will, in certain cases, be guided in determining the legal
effect and operation of a testamentary instrument, but there are
likewise certain technical expressions, of which the established
legal interpretation is different from the meaning which in ordinary
language would be attributed to them ; and, consequently, a will in
which such expressions occur may, in some cases, be made to
operate in a manner different from that intended by the testator :2
the duty of the Court being to give effect to all the words of the
will, if that can be done without violating any part of it, and also
to construe technical words in their proper sense, where they can
be so understood consistently with the context.3

1 Earl of Hardwicke v. Douglas, 7 CI. & Fin. 815 ; per Lord Kenyon, C. J.,
Denn v. Bagshawe, 6 T. R. 512; per Lord Alvanley, Poole v. Poole, 3 B. &
P. 627-629.

2 See 2 Powell on Devises, by Jarman, 3d ed., 564, et seq.; Doe d. Blesard
v. Simpson, 3 Scott N. R. 774 ; cited, per Byles, J., Richards v. Davies, 13 C.

B. N. S. 87 (106 E. C. L. R.), and distinguished inHardcastle v. Dennison, 10

C. B. N. S. 606 (100 E. C. L. R.).

3 Judgra., Doe d. Cape v. Walker, 2 Scott N. R. 334 ; Towns v. Wentworth,

II Moo. P. C. C. 526, 543; per Martin, B., Biddulph v. Lees, E., B. & E.
317 (96 E. C. L. R.) ; per Alderson, B., Lees v. Mosley, 1 Yo. & Coll. 589;
cited arg. Greenwood v. Roth well, 6 Scott N. R. 672. See also arg. Festing
v. Allen, 12 M. & W. 286 ; Jack v. M'Intyre, 12 CI. & Fin. 158 ; Jenkins v.
Hughes, 8 H. L. Cas. 571.

Where the testator appears to have been very illiterate, " the rules of gram-
mar and the usual meaning of technical language may be disregarded in con-
struing his will ;" per Lord Campbell, C, Hall v. Warren, 9 H. L. Cas. 427.

Generally as to the duty of the court in construing a will containing tech-
nical words, see, further, per Lord Westbury, C, Young v. Robertson, 4

561 BROOM'S LEGAL MAXIMS.

refill *The following observations of V.-C. Knight Bruce,
although having reference to the particular circumstances
of the case immediately under his consideration, show clearly the
general principles which guide the Court in assigning a meaning to
technical expressions, and it may be almost unnecessary to remark
that such principles are recognised and acted upon by courts of
common law as well as of equity.

"Both reason and authority, I apprehend," says the learned
Judge, " support the proposition that the defendants are entitled to
ask the Court to read and consider the whole of the instrument in
which the clause stands; and in reading and considering it, to bear
in mind the state of the testator's family, as at the time when he
made the codicil he knew it to be ; and if the result of so reading
and considering the whole document with that recollection is to con-
vince the Court, from its contents, that the testator intended to use
the words in their ordinary and popular sense, and not in their legal
and technical sense, as distinguishable from their ordinary and pop-
ular sense, to give effect to that conviction by deciding accord-

ingly-"1

The following instances may serve to illustrate the above re-
marks :2 — If a testator leaves his property to be divided amongst
his "children," which is a word bearing a strict technical meaning
r*^fi91 *n ^aw' ^e ^ourt would at *once construe "children" as
meaning children born in wedlock ; and if there were any
such children to whom that term could be applied, the bequest would
be limited to them, although it might also appear that the testator
had other children born out of wedlock : and no evidence would be
admissible to show that he intended that his property should be
equally distributed amongst all his children, whether legitimate or
illegitimate. But if, upon the evidence, it should appear that the
testator never was married, so that it was impossible to apply the
language of his will in its strict and primary sense, and if it

JNIacq. Sc. App. Cas. 325 ; distinguished in Richardson v. Power, 19 C. B. N.
S. 798 (115 E. C. L. R.) ; Ralston v. Hamilton, 4 Macq. Sc. App. Cas. 397;
Jenkins v. Hughes, 8 H. L. Cas. 571 .

1 Per Knight Bruce, V.-C, Early v. Benbow, 2 Coll. 353.

2 As to the meaning of the word " unmarried," see Clarke v. Colls, 9 H. L.
Cas. 601, — of the words "eldest male lineal descendant," Thellusson v. Lord
Rendlesham, 7 H. L. Cas. 429.

INTERPRETATION OF DEEDS, ETC. 562

further appeared that he had illegitimate children whom he had
always treated as his children, such evidence, and any other that
would tend to prove that these were the intended objects of his
bounty, might be used for the purpose of construing the bequest
according to the less strict and technical meaning of the term
"children," so as to give effect to the bequest of the testator, which
would otherwise be wholly inoperative.1

In like manner, where a bequest is made to the "children " or
" issue " of A. B., the whole context of the will must be considered,
in endeavoring to ascertain the proper effect to be attributed to the
word "children" or "issue." It may be, that the word "child-
ren " must be enlarged and construed to mean " issue " generally,
or the word "issue " restricted so as to mean " children," and each
case must depend on the peculiar expressions used, and the struc-
ture of the sentences.2 When, however, *the context is r*c£o-j
doubtful, the Court, so far as it can, will prefer that con-
struction which will most benefit the testator's family generally, on
the supposition that such a construction must most nearly corres-
pond with his intention.3

Again, the general rule of construction which had prior to the
recent Wills Act been established by a long course of decided
cases, was, that the words "dying without leaving issue,"4 unless
they were qualified and controlled by other words in the context,
must, when applied to realty, be taken to refer to an indefinite
failure of issue; and that any executory devise over, which was
made to depend on the general failure of issue, was void, on the

1 Per Erskine, J., Shore v. Wilson, 5 Scott N. K. 990. See Sir James Wi-
gram's Treatise on Extr. Evid., 3d ed., 43, 58.

2 Also, where in a devise there is a gift over on general failure of " issue,"
the word "issue" must, prima facie, be understood to mean "heirs of the
body," unless from the context it clearly appear that the testator intended to
give it a different meaning : Roddy v. Fitzgerald, 6 H. L. Cas. 823. See
Bradley v. Cartwright, L. R. 2 C. P. 511 ; Eastwood v. Avison, L. R. 4 Ex.
141 ; per Lord Chelmsford, C, Williams v. Lewis, 6 H. L. Cas. 1021.

3 Per Lord Langdale, M. R., Farrant v. Nichols, 9 Beav. 329, 330 ; Slater
v. Dangerfield, 15 M. & W. 263 ; Richards v. Davies, 13 C. B. N. S. 69 (106
E. C. L. R.).

* But now, by stat. 7 Will. 4 & 1 Vict. c. 26, s. 29, the words " die without
issue," or " die without leaving issue," shall be construed to mean a want or
failure of issue in the lifetime, or at the time of the death of the testator,
unless a contrary intention shall appear by the will.

563 broom's legal maxims.

ground of its being too remote. The point to be considered, there-
fore, in determining whether or not the above words must bear their
proper and technical meaning, whenever the point arises with refer-
ence to a will unaffected by the recent statute, is, whether the
testator has or has not shown, upon the face of the will, an inten-
tion that those words should receive a more limited and qualified
construction.1

T*5641 Further, it has been placed beyond doubt by a great
♦variety of decisions, that the word "estate"2 in a will is
in itself sufficient to pass the fee-simple; but the Court will never-
theless examine the context and other parts of the will to ascertain
if anything be there introduced to qualify its import; and the
material question, if the late act does not apply, is, whether the
word is to be understood as describing the quantity of interest of
the testator in the property devised, or the local situation of the
property only, or whether the meaning is left in too great uncer-
tainty to defeat the claim of the heir-at-law, which cannot be done
without express words or necessary implication.3

Lastly, in determining whether an estate tail or a life estate only
passes under the words of a given testamentary instrument made
before the 1st January, 1838,4 the same general rule of interpreta-

1 Judgm., Walker v. Petchell, 1 C. B. 661 (50 E. C. L. R.) ; Bamford v.
Lord, 14 C. B. 708 (78 E. C. L. R.) ; Biss v. Smith, 2 H. & N. 105, 113. See
Eden v. Wilson, 4 H. L. Cas. 257 ; Darley v. Martin, 13 C. B. 683 (76 E. C.
L. R.).

2 " Estate," in Latin, status, " indicates the condition of the owner with
regai'd to his property:" 2 Com. by Broom & Hadley 206.

3 Doe d. Lean v. Lean, 1 Q. B. 229, 239, 240 (41 E. C. L. R.), and cases
cited ; arg. Iloare v. Byng, 10 CI. & Fin. 528 ; Lloyd v. Jackson, L. R.
2 Q. B. 269 ; Manning v. Taylor, 4 II. & C. 382 ; Doe d. Toiield v. Tofield, 11
East 246 ; Smith v. Smith, 11 C. B. N. S. 121 (103 E. C. L. R.) ; Doe d. Bur-
ton v. White, 2 Exch. 797 ; s. c, 1 Id. 526 ; Burton v. White, 7 Exch. 720 ; Doe
d. Atkinson v. Fawcett, 3 C. B. 274 (54 E. C. L. R.) ; Butt v. Thomas, 11
Exch. 235 5 Key v. Key, 4 De G., M. & G. 73 ; Vaugh. R. 262. In Doe d.
Haw v. Earles, 1 5 M. & W. 450, the maxim above considered was applied in
determining the construction of a will, per Piatt, B., diss. The reader is
also referred to 2 Jarm. on Wills, 3d ed., 255, et seq. ; Sanderson v. Dobson,
1 Exch. 141 ; s. c, 7 C. B., 81 (62 E. C. L. R.) ; Doe d. Roberts v. Williams,
1 Exch. 414 ; and note 2, infra.

As to the doctrine of " implication" and examples of it, see per Lord West-
bury, C, Parker v. Tootal, 11 H. L. Cas. 161.

* By stat. 7 Will. 4 & 1 Vict. c. 26, a devise of real estate without words of

INTERPRETATION OF DEEDS, ETC. 564

tion above considered is applicable, and has thus been forcibly
stated and illustrated by Lord Brougham, who observes — "I take
the *principle of construction as consonant to reason and • „„._
established by authority to be this — that, where by plain L J
words, in themselves liable to no doubt, an estate-tail is given, you
are not to allow such estate to be altered and cut down to a life
estate, unless there are other words which plainly show the testator
to have used the former as words of purchase, contrary to their
natural or ordinary sense, or unless in the rest of the provisions
there be some plain indication of a general intent inconsistent with
an estate-tail being given by the words in question, and which
general intent can only be fulfilled by sacrificing the particular
provisions, and regarding the expressions as words of purchase.
Thus, if there is a gift first to A. and the heirs of his body, and
then, in continuation, the testator, referring to what he had said,
plainly tells us, that he used the words, 'heirs of the body' to de-
note A.'s first and other sons, then, clearly, the first taker would
only take a life estate. So, again, if a limitation is made after-
wards, and is clearly the main object of the will, which never can
take effect unless an estate for life be given instead of an estate-
tail : here, again, the first words become qualified, and bend to the
general intent of the testator, and are no longer regarded as words of
limitation, which, if standing by themselves, they would have been."1
To the general maxims of construction applicable to wills, viz.,
Benigne faciendce sunt interpretationes et verba intentioni debent
inservire, the doctrine of cy-pres is referable.2 According to this
doctrine, which proceeds upon the principle of carrying into effect
as far and as *nearly as possible the intention of the tes-
tator, if there be a general and also a particular intention *- -•
apparent on the will, and the particular intention cannot take effect,
the words shall be so construed as to give effect to the general in-
tention.3 The doctrine of cy-pres though fully recognised at law,

limitation shall, in the absence of a contrary intention, be construed to pass
the whole estate or interest of which the testator had power to dispose by
will.

1 Fetherston v. Fetherston, 3 CI. & Fin. 75, 76 ; per Lord Brougham, C,
Thornhill v. Hall, 2 CI. & Fin. 36.

2 See per Lord St. Leonards, East v. Twyford, 4 H. L. Cas. 556.

3 Per Buller, J., Robinson v. Hardcastle, 2 T. R. 254; Shep. Touch. 87.
The rule as to cy-pres is stated, per Lord St. Leonards, C, Monypenny v.

566 broom's legal maxims.

is, however, carried into more efficient practical operation by courts
of equity, as in the case of a condition precedent annexed to a
legacy, with which a literal compliance becomes impossible from
unavoidable circumstances, and without any default of the legatee;
or where a bequest is made for charitable purposes, with which a
literal compliance becomes inexpedient or impracticable: in such
cases a court of equity will apply the doctrine of cy-pres, and will
endeavor substantially, and as nearly as possible, to carry into
effect the intention of the testator.1

The remarks above made, and authorities referred to, will serve
to give a general view of the mode of applying to the interpretation
of wills, those very comprehensive maxims which we have been
endeavoring to illustrate and explain, and which are, indeed, com-
prised in the well-known saying, — Ultima voluntas testatoris est
perimplenda secundum veram intentionem suam.2
r*^871 ^e SDa^> therefore, sum up this part of our subject
*with observing, that the only safe course to pursue in
construing a will is to look carefully for the intention of the testa-
tor, as it is to be derived from the words employed by him within
the whole of the will, regardless alike of any general surmise or
conjecture from without the will, as of any legal consequences
annexed to the estate itself, when such estate is discovered within
the will ;3 bearing in mind, however, that where technical rules
have become established, such rules must be followed, although
opposed to the. testator's presumable and probable intention — that
where technical expressions occur they must receive their legal
meaning, unless from a perusal of the entire instrument, it be evi-
dent that the testator employed them in their popular signification
— that words which have no technical meaning shall be understood
in their usual and ordinary sense, if the context do not manifestly

Dering, 2 De G., M. & G. 173. See per Lord Kenyon, C. J., Brudenell v.
Elwes, 1 East 451.

1 1 Story Eq. Jurisp., 6th ed., 319 ; 2 Id. 596, where this doctrine is con-
sidered ; 1 Jarin. Wills., 3d ed., 233 ; Ironmongers Co; v. A.-G., 10 CI. & Fin.
908 ; Miles v. Farmer, 19 Ves. 483. The entire doctrine of equity with regard
to trusts, and especially such as are raised in a will by precatory words, will
at once occur to the reader as fraught with illustrations of the maxims com-
mented on in the text.

2 Co. Litt. 322 b.

3 Judgm., 3 A. & E. 964 (30 E. C. L. R.).

INTERPRETATION OF DEEDS, ETC. 567

point to any other1 — and, lastly, that where the particular intention
of the testator cannot literally be performed, effect will, in many
cases, be given to the general intention, in order that his wishes
, may be carried out as nearly as possible, and ut res magis valeat
quctm pereat.

It may not be uninteresting further to remark, that the rules laid
down in the Roman law upon the subject under consideration, are
almost identical with those above stated, as recognised by our own
jurists at the present day. Where, for instance, ambiguous expres-
sions occurred, the rule was. that the intention of him who used them
should especially be regarded, — In ambiguis orationibus maxime
sententia spectanda est ejus *qui eas protulisset,2 a rule r*r£Q-|
which we learn was confined to the interpretation of wills
wherein one person only speaks, and was not applicable to agree-
ments generally, in which the intention of both the contracting par-
ties was necessarily to be considered ;3 and, accordingly, in another
passage in the Digest, we find the same rule so expressly qualified
and restricted — Cum in testamento ambigue aut etiam perperam
scriptum est benigne interpretari et secundum id quod credibile est
cogitatum credendum est4 — where an ambiguous, or even an erro-
neous expression occurs in a will, it should be construed liberally,
and in accordance with the testator's probable meaning. In like
manner we find it stated, that a departure from the literal meaning
of the words used is not justifiable, unless it be clear that the testa-
tor himself intended something different therefrom : — Non aliter a
signification verborum recedi oportet qudm cum manifestum est aliud
sensisse testator em f and, lastly, we find the general principle of in-
terpretation to which we have already adverted thus concisely
worded — In testamentis plenius voluntates testantium interpre-
tantur,6 that is to say, a will shall receive a more liberal con-
struction than its strict meaning, if alone considered, would permit.7

1 The question as to what will pass under the word "portrait" in a will is
elaborately discussed, Duke of Leeds v. Earl Amherst, 9 Jur. 359 ; s. c, 13
Sim. 459.

2 D. 50. 17. 96. 3 Wood Ingt 107#

4 D. 34. 5. 24; vide Brisson. ad verb. "Perperam ;" Pothier ad Pand. (ed.
1819), vol. 3, p. 46, where examples of this rule are collected.
6 D. 32. 69. pr. applied per Knight Bruce, L. J., 2 De G., M. & G. 313.
6D. 50. 17. 12. /

*Cujac. ad. loc, cited 3 Pothier ad Pand. 46.

568 broom's legal maxims.

The construction of a statute, like the operation of a devise, de-
pends upon the apparent intention of the maker, to be collected
r-*5691 either from the particular provision *or the general context,
though not from any general inferences drawn merely
from the nature of the objects dealt with by the statute.1 Acts of
Parliament and wills ought to be alike construed according to the
intention of the parties who made them ;2 and the preceding re-
marks as to the construction of deeds and testamentary instruments
will, therefore, in general, hold good with reference to the con-
struction of statutes, the great object being to discover the true
intention of the legislature ; and where that intention can be in-
dubitably ascertained, the Courts are bound to give it effect, what-
ever may be their opinion of its wisdom or policy ;3 " acting upon
the rule as to giving effect to all the words of the statute, a rule
universally applicable to all writings, and which ought not to be
departed from, except upon very clear and strong grounds."4

" The general rule," as observed by Byles, J.,5 " for the con-
struction of Acts of Parliament is, that the words are to be read in
l~*^701 ^eir P°Pu^ar' natural, and ordinary *sense, giving them
a meaning to their full extent and capacity, unless there is
reason upon their face to believe that they were not intended to
bear that construction, because of some inconvenience which could
not have been absent from the mind of the framers of the Act,
which must arise from the giving them such large sense."

1 Fordyce v. Bridges, 1 II. L. Cas. 1. . Where a casus omissus occurred in
a statute, the doctrine of cy-pres was applied, Smith v. Wedderburne, 16 M.
& W. 104. See Salkeld v. Johnson, 2 C. B..757 (52 E. C. L. R.).

2 It is said that a will is to be favorably construed, because the testator is
inops consilii: "This," observed Lord Tenterden, "we cannot say of the
legislature, but we may say that it is magnas inter opes inops " 9 B. & C.
752, 753 (17 E. C. L. R.).

See the remarks of Wood, V.-C, as to the determining whether a manda-
tory enactment is to be considered directory only, or obligatory with an
implied nullification for disobedience : Liverpool Borough Bank v. Turner, 29
L. J. Chanc. 827 ; s. c, 30 Id. 379, approved in Ward v. Beck, 13 C. B. N. S.
675-6 (106 E. C. L. R.).

3 See the analogous remarks of Lord Brougham, with reference more
particularly to the common law, in Reg. v. Millis, 10 CI. & Fin. 749 ; also,
per Vaughan, J., 9 A. & E. 980 (36 E. C. L. R.) ; judgm., Fellowes v. Clay, 4
Q. B. 349 (45 E. C. L. R.) ; per Alexander, C. B., 2 Yo. & J. 215.

* Judgm., 8 Exch. 860.

« Birks, app., Allison, resp., 13 C. B. N. S. 23 (106 E. C. L. R.).

INTERPRETATION OF DEEDS, ETC. 570

And again — " In construing an Act of Parliament, when the
intention of the legislature is not clear, we must adhere to the
natural import of the words ; but when it is clear what the legis-
lature intended, we are bound to give effect to it notwithstanding
some apparent deficiency in the language used."1

Hence, although the general proposition be undisputed that " an
affirmative statute giving a new right, does not of itself and of
necessity destroy a previously existing right," it will nevertheless
have such effect, " if the apparent intention of the legislature is
that the two rights should not exist together."2

A remedial statute, therefore, shall be liberally construed, so as
to include cases which are within the mischief which the statute
was intended to remedy ;3 whilst, on the other hand, where the in-
tention of the legislature is doubtful, the inclination of the Court
will always be against that construction which imposes a burthen,4
*tax,5 or duty6 on the subject. It has been designated as
a " great rule " in the construction of fiscal laws, " that they *- ■*

1 Per Pollock, C. B., Huxhara v. Wheeler, 3 H. & C. 80.

2 Per Lord Cranworth, C, O'Flaherty v. M'Dowell, 6 H. L. Cas. 157. See
Ex parte Warrington, 3 De G., M. & G. 159.

3 See Twyne's Case, 3 Rep. 80.

4 Per Lord Brougham, Stockton and Darlington R. C. v. Barrett, 11 CI. &
Fin. 607 ; per Parke, B., Ryder v. Mills, 3 Exch. 869, and in Wroughton v.
Turtle, 11 M. & W. 567. "All Acts which restrain the common law ought
themselves to be restrained by exposition :" Ash v. Abdy, 3 Swanst. 664.
Mere permissive words shall not abridge a common law right, ante, p. 34.
Ex parte Clayton, 1 Russ. & My. 372 ; per Erie, C. J., Caswell app., Cook
resp., 11 C. B. N. S. 652 (103 E. C. L. R.).

5 Per Parke, B., Re Micklethwait, 11 Exch. 456 (cited arg. 2 H. & N. 373),
and in A.-G. v. Bradbury, 7 Exch. 116, citing Denn v. Diamond, 4 B. & C.
243 (10 E. C. L. R.) ; Mayor of London v. Parkinson, 10 C. B. 228 (70 E. C.
L. R.) ; judgm., Vauxhall Bridge Co. v. Sawyer, 6 Exch. 509.

6 Judgm., Marquis of Chandos v. Commissioners of Inland Revenue, 6
Exch. 479 ; per Wilde, C. J., 5 C. B. 135 (57 E. C. L. R.). See, per Bramwell,
B , Foley v. Fletcher, 3 H. & N. 781-2.

"Acts of Parliament," however, "imposing stamp duties ought to be con-
strued according to the plain and ordinary meaning of the words used :"
judgm., Lord Foley v. Commissioners of Inland Revenue, L. R. 3 Ex. 268.

If a statute imposing a toll contain also exemptions from it in favor of the
crown and of the public, any clause so exempting from toll is " to have a
fair, reasonable, and not strict construction :" per Byles, J., Toomer v.
Reeves, L. R. 3 C. P. 66.

571 broom's legal maxims.

are not to be extended by any labored construction, but that you must
adhere to the strict rule of interpretation ; and if a person who is
subjected to a duty in a particular character or by virtue of a
particular description no longer fills that character, or answers that
description, the duty no longer attaches upon him, and cannot be
levied."1 A penalty, moreover, must be imposed by clear words.2
The words of a, penal statute3 shall be restrained for the benefit of
him against whom the penalty is inflicted.

p^ryo-i *"The principle," remarked Lord Abinger, C. B.,
"adopted by Lord Tenterden,4 that a penal law ought to
be construed strictly, is not only a sound one, but the only one
consistent with our free institutions. The interpretation of statutes
has always in modern times been highly favorable to the personal
liberty of the subject, and I hope will always remain so."5

This rule, however, which is founded on the tenderness of the
law for the rights of individuals, and on the plain principle that
the power of punishment is vested in the legislative and not in the
judicial department, must not be so applied as to narrow the words
of the statute to the exclusion of cases which those words in their
ordinary acceptation, or in that sense in which the legislature has
obviously used them, would comprehend.6

1 Per Lord Westbury, C, Dickson v. Reg., 11 H. L. Cas. 184.

2 Per Alderson, B., Woolley v. Kay, 1 H. & N. 309; judgm., Ryder v.
Mills, 3 Exch. 869, et seq. ; Coe v. Lawrance, 1 E. & B. 516, 520 (72 E. C. L.
R.) ; Archer v. Jaines, 2 B. & S. 61, 103 (110 E. C. L. R.).

3 In A.-G. v. Sillein, 2 H. & C. 431, the method of construing a penal
statute was much considered, and there (Id. 530) Bramwell, B., says, "The
law that governs this case is a written law, an Act of Parliament, which we
must apply according to the true meaning of the words used in it. We must
not extend it to anything not within the natural meaning of those words,
but within the mischief or supposed mischief intended to be prevented, nor
must we refuse to apply it to what is within that natural meaning, because
not, or supposed not to be within the mischief:" see also, per Pollock, C. B.,
Id. 509.

"I suppose 'within the equity' means the same thing as 'within the
mischief of the statute :" per Byles, J., Shuttleworth v. Le Fleming, 19 C.
B.N. S. 703 (115 E. C. L. R.).

4 See Proctor v. Mainwaring, 3 B. & Aid. 145 (5 E. C. L. R.).

6 Per Lord Abinger, C. B., Henderson v. Sherborn, 2 M. & W. 236 .; judgm.,
Fletcher v. Calthrop, 6 Q. B. 887 (51 E. C. L. R.) ; cited and adopted Murray
v. Reg., 7 Q. B. 707 (53 E. C. L. R.).

6 See judgm., United States v. Wiltberger, 5 Wheaton (U. S.) R. 95; per
Pollock, C. B., 3 H. & N. 812.

INTERPRETATION OF DEEDS, ETC. 572

We may add, in connection with this part of the subject, that
although the enacting words of a statute are not necessarily to be
limited or controlled by the words of the preamble, but in many
instances go beyond it, yet, on a sound construction of every Act
of Parliament, the words in the enacting part must be confined to
that which is the plain object and general intention of the legisla-
ture in passing the Act ; and the preamble affords a good clue to
discover what that object was.1 "The only rule," it *has rjHr7qn
been said, "for the construction of Acts of Parliament is, L *
that they should be construed according to the intent of the Parlia-
ment which passed the Act. If the words of the statute are in
themselves precise and unambiguous, then no more can be necessary
than to expound the words in their natural and ordinary sense.
The words themselves alone do, in such case, best declare the in-
tention of the lawgiver. But if any doubt arises from the terms
employed by the legislature, it has always been held a safe means
of collecting the intention to call in aid the ground and cause of
making the statute, and to have recourse to the preamble, which,
according to Chief Justice Dyer,2 is a ' key to open the minds of
the makers of the Act, and the mischiefs which they intended to
redress.' "3

1 Per Lord Tenterdea, C. J., Halton v. Cave, 1 B. & Ad. 538 (20 E. C. L.
R.) ; judgm., Salkeld v. Johnson, 2 Exch. 283, and cases there cited; per
Kelly, C. B., Winn v. Mossraan, L. R. 4 Ex. 300; Carr v. Royal Exchange
Ass. Co., 1 B. & S. 956 (101 E. C. L. R.) ; per Maule, J., Edwards v. Hodges,
15 C. B. 484 (80 E. C. L. R.j, citing, per Lord Cowper, C, Copeman v.
Gallant, 1 P. Wms. 314 ; per Coleridge, J., Pocock v. Pickering, 18 Q. B. 797,
798 (83 E. C. L. R.); Co. Litt. 79 a; per Buller, J., Crespigny v. Wittenoom,
4 T. R. 793 ; arg., Skinner v. Lambert, 5 Scott N. R. 206 ; and cases cited in
Whitmore v. Robertson, 8 M. & W. 472 ; Stockton and Darlington R. C. v.
Barrett, 11 CI. & Fin. 590; arg., Sterry v. Clifton, 9 C. B. 110 (67 E. C.
L. R.).

2 Plowd. 369.

3 Per Tindal, C. J., delivering the opinion of the judges in the Sussex
Peerage, 11 CI. & Fin. 143.

See further as to the office of the preamble, per Buller, J., R. v. Robinson,
2 East P. C. 1113, cited R. v. Johnson, 29 St. Tr. 303.

The title of a statute "is certainly no part of the law, and in strictness
ought not to be taken into consideration at all :" judgm., Salkeld v. Johnson,
2 Exch. 283, and cases there cited. See 8 H. L. Cas. 6.03 (A) ; per Willes, J.,
Claydon v. Green, L. R. 3 C. P. 522.

The heading of a portion of a statute may be referred to to determine the

573 broom's legal maxims.

The " golden rule " by which judges are to be guided in the con-
r*nnA.-\ struction of Acts of Parliament has been ^frequently thus
stated,1 that they ought " to look at the precise words of
the statute and construe them in their ordinary sense only, if such
construction would not lead to any absurdity or manifest injustice ;
but if it would, then they ought so to vary and modify the words
used as to avoid that which it certainly could not have been the
intention of the legislature should be done." The "golden rule,"
however, thus worded, must certainly be applied with much caution.
"If," remarked the late Chief Justice Jervis,2 "the precise words
used are plain and unambiguous in our judgment, we are bound to
construe them in their ordinary sense, even though it do lead, in
our view of the case, to an absurdity or manifest injustice. Words
may be modified or varied, where their import is doubtful or
obscure. But we assume the functions of legislators when we
depart from the ordinary meaning of the precise words used,
merely because we see, or fancy we see, an absurdity or manifest
injustice from an adherence to their literal meaning."

The "golden rule" may, however, safely be understood as re-
quiring that " the words of an Act of Parliament, or other written
instrument,3 be read in their natural and ordinary sense, giving

sense of any doubtful expression in a section ranged under it : Hammersmith
and City R. C. v. Brand, L. R. 4 II. L. 171, 203 (but see per Lord Cairns,
Id. 217) ; Eastern Counties R. C. v. Marriage, 9 II. L. Cas. 32.

The marginal note to a section of a statute in the copy printed by the
queen's printer, forms no part of the statute itself, and does not bind as
explaining or construing the section. Claydon v. Green, L. R. 3 C. P. 511,
522.

xPer Jervis, C. J., Abley v. Dale, 11 C. B. 390 (73 E. C. L. R.)-, in
Castrique v. Page, 13 C. B. 463, 464 (76 E. C. L. R.) ; and in Mattison v.
Hart, 14 C. B. 385 (78 E. C. L. R.) : judgm., Macdougal v. Paterson, 11 C. B.
769 (73 E. C. L. R.) ; per Maule, J.,' Gether v. Capper, 15 C. B. 706 (80 E. C.
L. R.) ; s. c, 18 Id. 866 ; per Parke. B., Perry v. Skinner, 2 M. & W. 476 ;
Eastern Union R. C. v. Cochrane, 9 Exch. 204 ; and in Hollingworth v.
Palmer, 4 Exch. 281, 282 ; and Heslop v. Baker, 6 Exch. 75 ; per Burton, J.,
Warburton v. Loveland d. Ivie, 1 Huds. & Brooke 648 ; per Pollock, C. B.,
A.-G. v. Hallett, 2 II. & N. 375 ; and in Re Hammersmith Rent-Charge, 4
Exch. 100, and see, per Parke, B., Id. 107 ; per Byles, J., 4 C. B. N. S. 410
(93 E. C. L. R.).

2 11 C. B. 391 (73 E. C. L. R.); per Pollock, C. B., 9 Exch. 465. See
Woodward v. Watts, 2 E. & B. 457 (75 E. C. L. R.).

3 Ante, p. 542.

INTERPRETATION OF DEEDS, ETC. "575

them a meaning to their full extent *and capacity; unless r*r7r-i
there is strong reason upon the face of it to show that the
words were not intended to bear that construction, because of some
inconvenience which could not have been absent from the mind of
the framers of the Act or the instrument, which must arise from
the giving them such large sense. Where that argument applies,
the rule of construction may be restricted."1

"Words," remarks Parke, B, in Miller v. Salomons,2 "which
are plain enough in their ordinary sense, may, when they would in-
volve any absurdity or inconsistency, or repugnance to the clear
intention of the legislature, to be collected from the whole of the
Act or Acts in pari materid to be construed with it, or other
legitimate grounds of interpretation, be modified or altered, so as
to avoid that absurdity, inconvenience, or repugnance, but no
further; for then we may predicate that the words never could
have been used by the framers of the law in such a sense."

It may then safely be stated as an established rule of construc-
tion, that an Act of Parliament should be read according to the
ordinary and grammatical sense of the words,3 unless, being so
read, it would be absurd or inconsistent with the declared intention
of the legislature, *to be collected from the rest of the Act,4 r*^7fn
or unless a uniform series of decisions has already estab-
lished a particular construction,5 or unless terms of art are used,

1 Per Maule, J., Arnold v. Ridge, 13 C. B. 763 (76 E. C. L. R.) ; ace. per
Byles, J., cited ante, p. 509.

2 7 Exch. 546 ; s. c, (in error), 8 Id. 778, where the rules of construction
applicable to statutes were much considered. See also, per Pollock, C. B.,
Waugh v. Middleton, 8 Exch. 356, 357.

3 " It is a good rule, in the construction of Acts of Parliament, that the
Judges are not to make the law what they may think reasonable, but to
expound it according to the common sense of its words:" per Cresswell, J.,
Biffin v. Yorke, 6 Scott N. R. 235. See also, judgm., R. v. Hall, 1 B. & C.
123 (8 E. C. L. R.) ; cited 2 C. B. 66 (52 E. C. L. R.), and in The Lion, L. R.
2 P. C. 530; Stracey v. Nelson, 12 M. & W. 541 ; United States v. Fisher, 2
Cranch (U. S.) R. 286 ; cited 7 Wheaton (U. S.) R. 169.

4 Judgm., Smith v. Bell, 10 M. & W. 389 ; Turner v. Sheffield R. C, Id. 434:
judgm., Steward v. Greaves, 10 M. & W. 719 ; per Alderson, B., A.-G. v.
Lockwood, 9 M. & W. 398; judgm., Hyde v. Johnson, 2 Bing. N. C. 780 (29
E. C. L. R.).

6 Per Parke, B., Doe d. Ellis v. Owens, 10 M. & W. 521 ; per Lord Brougham,
0., The Earl of Waterford's Peerage, 6 CI. & Fin. 172.

29

576 broom's legal maxims.

which have a fixed technical signification : as, for instance, the ex-
pression " heirs of the body," which conveys to lawyers a precise
idea, as comprising in a legal sense, only certain lineal descendants;
and this expression shall, therefore, be construed according to its
known meaning.1

It is also a rule of the civil law adopted by Lord Bacon, which
was evidently dictated by common sense, and is in accordance with
the spirit of the maxim which we have been considering, that,
where obscurities, ambiguities, or faults of expression render the
meaning of an enactment doubtful, that interpretation shall be
preferred which is most consonant to equity, especially where it is
in conformity with the general design of the legislature. In am-
bigud voce legis ea potius accipienda est signijicatio quce vitio caret,
prcesertim cum etiam voluntas legis ex hoc colligi

*EX ANTECEDENTIBUS ET CONSEQUENTIBUS FIT OPTIMA

L J Interpretatio.

(2 Inst. 173.)

A passage will be best interpreted by reference to that which precedes and

follows it.

It is a true and important rule of construction, that the sense
and meaning of the parties to any particular instrument should be
collected ex antecedentibus et consequentibus ; that is to say, every
part of it should be brought into action, in order to collect from the
whole one uniform and consistent sense, if that may be done;3 or in
other words, the construction must be made upon the entire instru-
ment, and not merely upon disjointed parts of it;4 the whole context
must be considered, in endeavoring to collect the intention of the

1 2 Dwarr. Stats. 702; Poole v. Poole, 3 B. & P. 620.

2 D. 1. 3. 19; Bac. Max. reg. 3.

3 Per Lord Ellenborough, C. J., Barton v. Fitzgerald, 15 East 541 ; Shep.
Touch. 87 ; per Hobart, C. J., Winch. 93. See Micklethwait v. Micklethwait,
4 C. B. N. S. 790, 862 (93 E. C. L. R.).

4 Lord North v. Bishop of Ely, cited, 1 Bulst. 101 ; and judgm., Doe d. Mey-
rick v. Meyrick, 2 Cr. & J. 230 ; Maitland v. Mackinnon, 1 H. & C. 607.

etc. 577

parties, although the immediate object of inquiry be the meaning of
an isolated clause.1 In short, the law will judge of a deed, or
other instrument, consisting of divers parts or clauses, by look-
ing at the whole; and will give to each part its proper office, so as
to ascertain and carry out the intention of the parties.2

Thus, in the case of a bond, without a condition, the latter may be
read and taken into consideration, in order to correct and explain
the obligatory part of the instrument.3 So, in construing an
agreement in the form of *a bond in which a surety becomes r^r^o-i
liable for the due fulfilment of an agent's duties therein
particularly enumerated, a general clause in the obligatory part of
the bond must be interpreted strictly, and controlled by reference
to the prior clauses specifying the extent of the agency.4 On the
same principle, the recital in a deed or agreement may be looked
at in order to ascertain the meaning of the parties, and is often
highly important for that purpose:5 and the general words of a
subsequent distinct clause or stipulation may often be explained or
qualified by the matter recited.6 Where, indeed, "the words in
the operative part of a deed of conveyance are clear and unambig-
uous, they cannot be controlled by the recitals or other parts of the
deed." But where, on the other hand, "those words are of
doubtful meaning, the recitals and other parts of the deed may be
used as a test to discover the intention of the parties, and to fix the
true meaning of those words."7 So, covenants are to be construed
according to the obvious intention of the parties, as collected from

1 Coles v. Hulme, 8 B. & C. 568 (15 E. C. L. R.) ; Hobart 275 ; cited Gale v.
Reed, 8 East 79.

2 See Hobart 275 ; Doe d. Marquis of Bute v. Guest, 15 M. & W. 160.

9 Coles v. Hulme, 8 B. & C. 568 (15 E. C. L. R.) ; and cases cited, Id. 574,
n. (a).

* Napier v. Bruce, 8 CI. & Fin. 470.

6 Shep. Touch. 76 •, The Marquis Cholmondeley v. Lord Clinton, 2 B. &
Aid. 625 ; s. c, 4 Bligh 1.

6 Payler v. Homersham, 4 M. & S. 423; cited in Harrison v. Blackburn,
17 C. B. N. S. 691 (112 E. C. L. R.) ; Simons v. Johnson, 3 B. & Ad. 180 (23
E. C. L. R.) 5 Boyes v. Bluck, 13 C. B. 652 (76 E. C. L. R.) 5 Solly v. Forbes,
2 B. & B. 38 (6 B. C. L. R.) ; Charleton v. Spencer, 3 Q. B. 693 (43 E. C. L.
R.) ; Sampson v. Easterby, 9 B. & C. 505 (17 E. C. L. R.) ; s. c. (affirmed in
error), 1 Cr. & J. 105; Price v. Barker, 4 E. & B. 760, 777 (82 E. C. L. R.) ;
Henderson v. Stobart, 5 Exch. 99.

7 Judgm., Walsh v. Trevanion, 15 Q. B. 751.

578 broom's legal maxims.

the whole context of the instrument containing them, and according
to the reasonable sense of the words; and, in conformity with the
rule above laid down, a covenant in large and general terms has
p^r^qn frequently been narrowed and restrained,1 where *there has
appeared something to connect it with a restrictive cov-
enant, or where there have been words in the covenant itself amount-
ing to a qualification:2 and it has, indeed, been said, in accordance
with the above rule, that, "however general the words of a
covenant may be, if standing alone, yet, if from other covenants in
the same deed, it is plainly and irresistibly to be inferred that the
party could not have intended to use the words in the general sense
which they import, the Court will limit the operation of the general
words."3 ,

We have also already observed, that covenants are to be construed
as independent or restrictive of each other, according to the appa-
rent intention of the parties, upon an attentive consideration of
the whole deed : every particular case, therefore, must depend upon
the precise words used in the instrument before the Court, and the
distinctions will be found to be nice and difficult.4

It is, moreover, as a general proposition, immaterial in what part
of a deed any particular covenant is inserted ;5 for the construction
of a deed does not depend on the order of the covenants, or upon
the precise terms of them; but regard must be had to the object,
and the whole scope of the instrument.6 For instance, in the
indenture of lease- of a colliery, two lessees covenanted "jointly
and severally in manner following;" and then *followed a

r*58on

*- -" number of covenants as to working the colliery; after
which was a covenant, that the moneys appearing to be due should
be accounted for, and paid by the lessees, their executors, &c, not

1 Per Lord Ellenborough, C. J., Iggulden v. May, 7 East 241 ; Plowd. 329 ;
Cage v. Paxton, 1 Leon. 116 ; Broughton v. Conway, Moor 58 ; Gale v. Reed,
8 East 89 ; Sicklemore v. Thisleton, 6 M. & S. 9, cited, Jowett v. Spencer, 15
M. & W. 662 ; Hesse v. Stevenson, 3 B. & P. 365. See Doe v. Godwin, 4 M.
& S. 265.

2 Judgm., Smith v. Compton, 3 B. & Ad. 200 (23 E. C. L. R.).

3 Judgm., Hesse v. Stevenson, 3 B. & P. 574. See the maxim as to verba
generalia—post.

4 1 Wins. Saund.. 6th ed., 60, n. (Z) ; ante, p. 548.

5 Per Buller, J., 5 T. R. 526 ; 1 Wins. Saund. 60, n. (Z).

6 Per Wilde, C. J., Richards v. Bluck, 6 C. B. 441 (60 E. C. L. R.).

INTERPRETATION OF DEEDS, ETC. 580

saying, "and each of them;" it was held, that the general words
at the beginning of the covenants by the lessees extended to all the
subsequent covenants, throughout the deed on the part of the
lessees, there not being anything in the nature of the subject to
restrain the operation of those words to the former part only of
the lease.1

Again, words may be transposed, if it be necessary to do so in
order to give effect to the evident intent of the parties;2 as, if a
lease for years be made in February, rendering a yearly rent
payable at Michaelmas-day and Lady-day during the term, the law
will make a transposition of the feasts, and read it thus, "at Lady-
day and Michaelmas-day," in order that the rent may be paid
yearly during the term. And so it is in the case of an annuity.3
And, although courts of law have no power to alter the words, or
to insert words which are not in the deed, yet they may and ought
to construe the words in a manner most agreeable to the meaning
of the grantor, and may reject any words that are merely insensi-
ble.4 Likewise, if there be two clauses or parts of a deed5 repug-
nant the one to the other, the former shall be received, and the
latter rejected, unless there be some special reason to the contrary;6
for instance, in a grant, if words of Restriction are added
which are repugnant to 'the grant, the restrictive words L J
must be rejected.7

It seems, however, to be a true rule, that this rejection of repug-
nant matter can be made in those cases only where there is a full
and intelligible contract left to operate after the repugnant matter
is excluded ; otherwise, the whole contract, or such parts of it as
are defective, will- be pronounced void for uncertainty.8 And as

1 Duke of Northumberland v. Errington, 5 T. R. 522; Copland v. Laporte,
3A.&E. 517 (30 E. C. L. R.).

2 Parkhurst v. Smith, Willes R. 332 ; s. c, 3 Atk. 135.
5 Co. Litt. 217 b.

4 Per Willes, C. J., 3 Atk. 136 ; s. c, Willes R. 232 ; Savile 71.

5 Secus of a will, see p. 554, n. 3.

6 Shep. Touch. 88 5 Hardr. 94 ; Walker v. Giles, 6 C. B. 662 (60 E. C. L. R.),
cited In re Royal Liver Friendly Society, L. R. 5 Ex. 80.

7 Hobart 172 ; Mills v. Wright, 1 Freem. 247.

8 2 Anderson R. 103. In Doe d. Wyndham v. Carew, 2 Q. B. 317 (42 E.
C. L. R.), a proviso in a lease was held to be insensible. In Youde v. Jones,
13 M. & W. 534, an exception introduced into a deed of appointment under a
power was held to be repugnant and void. See also Furnivall v. Coombes, 6

581 broom's legal maxims.

already observed, " if a deed can operate two ways, one consistent
with the intent, and the other repugnant to it, the Courts will be
ever astute so to construe it, as to give effect to the intent," and
the construction must be made on the entire deed.1

A marriage settlement recited that it was the intention of the
parties to settle a rent-charge or annuity of 1000/. per annum on
the intended wife, in case she should survive her husband. In the
body of the deed the words used were, " 1000Z. sterling lawful
money of Ireland." It was held that the words "of Ireland"
must be excluded, for the expression could have no meaning, unless
some of the words were rejected, and it is a rule of law, that, if the
first words used would give a meaning, the latter words must be ex-
cluded.2 So, we read that, if one makes a lease for ten years " at
r^rnn-. the will of the lessor," this is a *good lease for ten years
certain, and the last words are void for the repugnancy.3
And without multiplying examples to a like effect,, the result of the
authorities seems to be that " when a court of law can clearly col-
lect from the language within the four corners of a deed or instru-
ment in writing the real intentions of the parties, they are bound
to give effect to it by supplying anything necessarily to be inferred
from the terms used, and by rejecting as superfluous whatever is
repugnant to the intention so discerned."4

The principle above stated applies to wills as well as to other in-
struments, for all the parts of a will are to be construed in relation
to each other, and so as, if possible, to form one consistent whole.5
Speaking with reference to the mode of construing a will, Lord

Scott N. R. 522 ; cited in Kelner u. Baxter. L. R. 2 C. P. 186 ; White v. Han-
cock, 2 C. B. 830 (52 E. C. L. R.). In Scott v. Avery, 8 Exch. 487 ; s. c, 5
H. L. Cas. 811, various authorities having reference to repugnant stipulations
in contracts are cited.

1 Per Turner, V.-C, Squire v. Ford, 8 Hare 57.

2 Cope v. Cope, 15 Sim. 118.

3 Bac. Ab., tit. Leases and Terms for Years, L. 3, cited and distinguished
in Morton v. Woods, L. R. 4 Q. B. 305.

* Per Kelly, C. B., Gwyn v. Neath Canal Co., L. R. 3 Ex. 215, where the
functions of a court of equity in reforming an instrument are also consid-
ered.

6 Per Lord Eldon, C, Gittins v. Steele, 1 Swanst. 28 ; per Lord Brougham,
C, Foley v. Parry, 2 My. & K. 138.

INTERPRETATION OF DEEDS, ETC. 582

Wensleydale thus expressed himself:1 "Our duty is to ascertain
not what the testator may be supposed to have intended, but the
meaning of the words he has used, and these we must construe ac-
cording to their ordinary and grammatical sense, unless some obvi-
ous absurdity, or some repugnance or inconsistency with the declared
intentions of the writer, to be collected from the whole instrument,
followed from it, or, it may be added, some inconsistency with the
subject on which the will is meant to operate, and then the sense
might be modified so as to avoid those consequences, but no farther."

*Where, however, two clauses or gifts in a will are irre- _ „M

. T 5831

concilable, so that they cannot possibly stand together, the L J

clause or gift which is posterior in position shall prevail, the subse-
quent words being considered to denote a subsequent intention :
pum duo inter se pugnantia reperiuntur in testamento ultimum
ratum est.2 It is well settled that where there are two repugnant
clauses in a will, the last shall prevail, as being most indicative of
the intent,3 and this results from the general rule of construction ;
for, unless the principle were recognised of adopting one and re-
jecting the other of two repugnant clauses, both would be neces-
sarily void, each having the effect of neutralizing and frustrating
the other.4 Therefore, if a testator, in one part of his will, gives
to a person an estate of inheritance in land, or an absolute interest
in personalty, and in subsequent passages unequivocally shows that
he means the devisee or legatee to take a life-interest only, the
prior gift is restricted accordingly.5

The maxim last mentioned must, however, in its application, be
restricted by, and made subservient to, that general principle,
which requires that the testator's intention shall, if possible, be
ascertained and carried into effect.

"I think it may be taken as clearly established," observed Cole-
ridge, J.,6 "that this rule must not be acted on so as to clash with

1 Slingsby v. Grainger, 7 H. L. Cas. 284; Abbott v. Middleton, Id. 114;
Grey v. Pearson, 6 H. L. Cas. 106 ; Baker v. Baker, Id. 630 ; Bullock v.
Downes, 9 H. L. Cas. 24.

2 Co. Litt. 112 b. 3 16 Johns. (U. S.) R. 546.

4 1 Jarm. Wills, 3d ed., 442. Also, words and passages in a will, which
cannot be reconciled with the general context, may be rejected. Id. 449.
6 Id. 442. See also Doe d. Murch v. Marchant, 7 Scott N. R. 644.
6Morrall v. Sutton, 1 Phill. 545, 546. See Greenwood v. Sutcliffe, 14 C. B.

583 -t' broom's legal maxims.

another paramount rule, which is, that, before all things, we must
look for the *intention of the testator as we find it ex-
L J pressed or clearly implied in the general tenor of the will ;
and when we have found that on evidence satisfactory in kind and
degree, to that we must sacrifice the inconsistent clause or words,
whether standing first or last, indifferently: and this rests upon
good reason ; for although, when there are repugnant dispositions,
and nothing leads clearly to a preference of one, or rejection of the
other, convenience is strongly in favor of some rule, however arbi-
trary ; yet the foundation of this rule, as of every other established
for the interpretation of wills, obviously is, that it was supposed to
be the safest guide, under the circumstances, to the last intention
of the testator."

And, in the same case, Parke, B., stated the principal rules ap.-
plicable to the interpretation of wills, to be, "that technical words
are prima facie to be understood in their strict technical sense ;
that the clause is, if possible, to receive a construction which will
give to every expression in it some effect, so that none may be re-
jected ; that all the parts of the will are to be construed so as to
form a consistent whole ; that of two modes of construction, that is
to be preferred which would prevent an intestacy ; and that where
two provisions of a will are totally irreconcilable, so that they can-
not possibly stand together, and there is nothing in the context or
general scope of the will which leads to a different conclusion, the
last shall be considered as indicating a subsequent intention, and
prevail."1

"There are," said Sir J. Leach, "two principles of construction,
upon which it appears to me that a Court *may come to a
L -I conclusion without the necessity, which, if possible, is al-
ways to be avoided, of declaring the will void for uncertainty.
First, if the general intention of the testator can be collected upon
the whole will, particular terms used which are inconsistent with
that intention may be rejected as introduced by mistake or igno-
rance on the part of the testator as to the force of the words used.

226, 235 (a) (78 E. C. L. R.) ; Plenty v. West, 6 C. B. 201, 219 (60 E. C. L.
R.).

1 The two learned judges, whose remarks are cited in the text, differed in
the case referred to, but merely as to the application of the rule in question.

INTERPRETATION OF DEEDS, ETC. 585

Secondly, where the latter part of the will is inconsistent with a
prior part, the latter part of the will must prevail."1

Lastly, it is an established rule, in construing a statute, that the
intention of the lawgiver and the meaning of the law are to be
ascertained by viewing the whole and every part of the Act. One
part of a statute must be so construed by another that the whole
may, if possible, stand ;2 and that, if it can be prevented, no clause,
sentence, or word shall be superfluous, void, or insignificant; and it
is a sound general principle, in the exposition of statutes, that less
regard is to be paid to the words used than to the policy which dic-
tated the Act ; as, if land be vested in the King and his heirs by
Act of Parliament, saving the right of A., and A. has at that time
a lease of it for three years, in this case A. shall hold it for his
term of three years, and afterwards it shall *go to the r*ro^-i
King ; for this interpretation furnishes matter for every
clause to work and operate upon.3

Also, if any section be intricate, obscure or doubtful, the proper
mode of discovering its true meaning is by comparing it with the
other sections, and finding out the sense of one clause by the words
or obvious intent of another.4 This, as Sir E. Coke observes, is the
most natural and genuine method of expounding a statute ;5 and it is,
therefore, a true principle, that verba posteriora propter certitudinem
addita ad priora qua? certitudine indigent sunt referenda^ — refer-

1 Sherratt v. Bentley, 2 My. & K. 157. And see, also, per Lord Brougham,
C, Id. 165.

As to construing a will and codicil, ante, p. 554, n. 3.

2 Thus, in Fitzgerald's Case, L. R. 5 Ex. 33, Pigott, B., referring to stat.
15 & 16 Vict. c. 57, says, " We must deal with the Act in the ordinary way,
that is, put on it a reasonable construction ; and if the words are ambiguous,
we must interpret it ut res magis valeat quam pereat ;" ante, p. 540.

Where the proviso of an Act of Parliament is directly repugnant to the
purview, the proviso shall stand and be a repeal of the purview, as it speaks
the last intention of the makers: A.-G. v. Chelsea Waterworks Co., Fitzgib.
195.

3 1 Com. by Broom & Hadley 96, 97 ; Bac, Abr., " Statute," (I. 2) ; arg.,
Hine v. Reynolds, 2 Scott N. R. 419.

4 Stowell v. Lord Zouch, Plowd. 365 ; Doe d. Bywater v. Brandling, 7 B.
& C. 643 (14 E. C. L. R.).

5 Co. Litt. 381 a.

• Wing. Max., p. 167 ; 8 Rep. 236. See 4 Leon R. 248.

586 broom's legal maxims.

ence should be made to a subsequent section in order to explain a
previous clause of which the meaning is doubtful.

We may add, too, that, " Where an Act of Parliament has
received a judicial construction, putting a certain meaning on its
words, and the legislature in a subsequent Act in pari materid
uses the same words, there is a presumption that the legislature
used those words intending to express the meaning which it knew
had been put upon the same words before ; and unless there is
something to rebut that presumption, the Act should be so con-
strued, even if the words were such that they might originally have
been construed otherwise."1

" It is, in my opinion," observed Mr. Justice Coleridge, in a
modern case,2 " so important for the Court, in construing modern
r*^871 statutes> to act uPon tne principle of *giving full effect to
their language, and of declining to mould that language,
in order to meet either an alleged inconvenience or an alleged
equity, upon doubtful evidence of intention, that nothing will in-
duce me to withdraw a case from the operation of a section which
is within its words, but clear and unambiguous evidence that so to
do is to fulfil the general intent of the statute, and also, that to
adhere to the literal interpretation, is to decide inconsistently with
other and overruling provisions of the same statute. When the
evidence amounts to this, the Court may properly act upon it ; for
the object of all rules of construction being to ascertain the mean-
ing of the language used, and it being unreasonable to impute to
the legislature inconsistent intents upon the same general subject-
matter, what it has clearly said in one part must be the best evi-
dence of what it has intended to say in the other ; and if the clear
language be in accordance with the plain policy and purview of the
whole statute, there is the strongest reason for believing that the
interpretation of a particular part inconsistently with that is a
wrong interpretation. The Court must apply, in such a case, the
same rules which it would use in construing the limitations of a
deed ; it must look to the whole context, and endeavor to give effect
to all the provisions, enlarging or restraining if need be, for that
purpose, the literal interpretation of any particular part."

1 11 H. L. Cas. 480-1.

2 R. v. The Poor Law Commissioners (St. Paneras), 6 A. &. E. 7 (33 E. C.
L. R.). See also per Parke, B., Perry v. Skinner, 2 M. & W. 476.

INTERPRETATION OF DEEDS, ETC. 588

*Noscitur a Socus. [*588]

(3 T. R. 87.)

The meaning of a word may be ascertained by reference to the meaning of
words associated with it.1

It is a rule laid down by Lord Bacon, that copulatio verhorum
indicat acceptationem in eodem sensu2 — the coupling of words to-
gether shows that they are to be understood in the same sense.
And, where the meaning of any particular word is doubtful or
obscure, or where the particular expression when taken singly is
inoperative, the intention of the party who has made use of it may
frequently be ascertained and carried into effect by looking at the
adjoining words, or at expressions occurring in other parts of the
same instrument, for quce non valeant singula juyicta juvant3 —
words which are ineffective when taken singly operate when taken
conjointly: one provision of a deed, or other instrument, must be
construed by the bearing it will have upon another.4

It is not proposed to give many examples of the application of
the maxim Noscitur a sociis, nor to enter at length into a consider-
ation of the very numerous cases which might be cited to illustrate
it: it may, in truth, be said to be comprised in those principles
which universally obtain, that courts of law and equity will, in
construing a ^written instrument, endeavor to discover and r^ron-i
give effect to the intention of the party, and with a view to
so doing, will examine carefully every portion of the instrument.
The maxim is, moreover, applicable, like other rules of grammar,
whenever a construction has to be put upon a will, statute or agree-
ment ; and although difficulty very frequently arises in applying it,

1 This, it has been observed, in reference to King v. Melling, 1 Vent. 225,
was a rule adopted by Lord Hale, and was no pedantic or inconsiderate ex-
pression when falling from him, but was intended to convey, in short terms,
the grounds upon which he formed his judgments. See 3 T. R. 87 ; 1 B. &
C. 644 (8 E. C. L. R.) ; arg., 13 East 531. See also Bishop v. Elliott, 11 Exch.
113 ; s. c, 10 Id. 496, 519, which offers an apt illustration of the maxim
supra; Burt v. Haslett, 18 C. B. 162 (86 E. C. L. R.) ; s. c, Id. 893.

2 Bac. Works, vol. 4, p. 26.

3 2 Bulstr. 132.

4 Arg., Galley v. Barrington, 2 Bing. 391 (9 E. C. L. R.) ; per Lord Kenyon,
C. J., 4 T. R. 227.

589 broom's legal maxims.

yet this results from the particular words used, and from the par-
ticular facts existing in each individual case ; so that one decision,
as to the inference of a person's meaning or intention, can be con-
sidered as an express authority to guide a subsequent decision only
where the circumstances are similar, and the words are identical or
nearly so.

The following instance of the application of the maxim, Noseitur
a sociis, to a mercantile instrument may be mentioned on account
of its importance, and will suffice to show in what manner the prin-
ciple which it expresses has been made available for the benefit of
commerce. The general words inserted in a maritime policy of in-
surance after the enumeration of particular perils are as follow : —
"and of all perils, losses, and misfortunes, that have or shall come
to the hurt, detriment, or damage of the said goods and merchan-
dises, and ship, &c, or any part thereof." These words, it has been
observed, must be considered as introduced' into the policy in fur-
therance of the objects of marine insurance, and may have the
effect of extending a reasonable indemnity to many cases not dis-
tinctly covered by the special words : they are entitled to be consid-
ered as material and operative words, and to have the due effect
assigned to them in the construction of this instrument ; and this
will be done by allowing them to comprehend and cover other
cases of marine damage of the like kind with those which are
r^-QOI *sPecialty enumerated, and occasioned by similar causes;
that is to say, the meaning of the general words may be
ascertained by referring to the preceding special words.1

That the exposition of every will must be founded on the whole
instrument, and be made ex antecedentibus et consequentibus, is, ob-
serves Lord Ellenborough, one of the most prominent canons of
testamentary construction ; and therefore, in this department of
legal investigation, the maxim Noseitur a sociis is necessarily of

1 See judgm., Cullen v. Butler, 5 M. & S. 465 ; cited in Davidson v. Bur-
nand, L. R. 4 C. P. 117, 120 (19 E. C. L. R.) ; Lozano v. Janson, 2 E. & E.
160 (105 E. C. L. R.) ; Phillips v. Barber, 5 B. & Aid. 161 (7 E. C. L. R.) ;
Devaux v. J' Anson, 5 B. & C. 519 (11 E. C. L. R.). In Borradaile v. Hunter,
5 M. & Gr. 639, 667, this maxim is applied by Tindal, C. J. (diss, from the
rest of the Court), to explain a proviso in a policy of life insurance. In Clift
v. Schwabe, 3 C. B. 437 (54 E. C. L. R.), the same maxim was likewise ap-
plied in similar circumstances ; see Dormay v. Borradaile, 5 C. B. 380 (57 E.
C.L.R.).

INTERPRETATION OF DEEDS, ETC. 590

very frequent practical application : yet where between the parts
there is no connection by grammatical construction, or by some
reference, express or implied, and where there is nothing in the will
declarative of some common purpose, from which it may be inferred
that the testator meant a similar disposition by such different parts,
though he may have varied his phrase or expressed himself imper-
fectly, the Court cannot go into one part of a will to determine the
meaning of another, perfect in itself, and without ambiguity, and
not militating with any other provision respecting the same subject-
matter, notwithstanding that a more probable disposition for the
testator to have made may be collected from such assisted construc-
tion. For instance, if a man should devise generally his lands,
after payment of his debts and legacies, his trust1 estates
* would not pass; for, in such case, Noscitur a soeiis what r*eq-|-i
the land is which the testator intended to pass by such de-
vise : it is clear he could only mean lands which he could subject to
the payment of his debts and legacies. But, from a testator having
given to persons standing in a certain degree of relationship to him
a fee-simple in certain land, no conclusion which can be relied on
can be drawn, that his intention was to give to other persons stand-
ing in the same rank of proximity the same interest in another part
of the same land ; and where, moreover, the words of the two de-
vises are different, the more natural conclusion is, that, as the testa-
tor's expressions are varied, they were altered because his intention
in both cases was not the same.2

In addition to the preceding remarks, a few instances may here
conveniently be referred to, illustrating the distinction between the
conjunctive and the disjunctive, which it is so essential to observe
in construing a testamentary instrument.

A leasehold estate for a long term was devised after the death of
A., to B. for life, remainder to his child or children by any woman

1 Roe d. Reade v. Reade, 8 T. R. 118 ; 1 Jarinan on Wills, 2d ed., 596.

2 Judgm., Right v, Compton, 9 .East 272, 273 ; 11 East 223 ; Hay v. Earl of
Coventry, 3 T. R. 83 ; per Coltman, J., Knight v. Selby, 3 Scott N. R. 409,
417; arg. 1 M. & S. 333 (28 E. C. L. R.). See Sanderson v. Dobson, cited
ante, p. 564 ; and per Byles, J., Jegon v. Vivian, L. R. 1 C. P. 24 ; s. c, 2 Id.
422, L. R. 3 II. L. 289 ; Doe d. Haw v. Earles, 15 M. & W. 450. See, also,
Vandeleur v. Vandeleur, 3 CI. & Fin. 98, where the maxim is differently ap-
plied.

591 broom's legal maxims.

whom he should marry, and his or their executors, &c, for ever,
upon condition, that, in case the said B. should die, "an infant,
unmarried, and without issue," the premises should go over to
his father and his three other children, share and share alike,
and their heirs, executors, &c. : — Held, that the devise over
p^rqo-i "'depended upon one contingency, viz., B.'s dying an infant

attended with two qualifications, viz., his dying without
leaving a wife surviving him, or dying childless; and that the devise
over could only take effect in case B. died in his minority, leaving
neither wife nor child; and it was observed by Lord Ellenborough,
in delivering judgment, that, if the condition had been, "if he dies
an infant, or unmarried, or without issue," that is to say, in the
disjunctive throughout, the rule would have applied, in disjunctivis
sufficit alteram partem esse veram;1 and, consequently, that if B.
had died in his infancy, leaving children, the estate would have
gone over to B.'s father and his children, to the prejudice of B.'s
own issue.2 According to the same rule of grammar, also, where a
condition inserted in a deed consists of two parts in the conjunctive,
both must be performed, but otherwise where the condition is in
the disjunctive; and where a condition or limitation is both in the
conjunctive and disjunctive, the latter shall be taken to refer to the
whole; as, if a lease be made to husband and wife for the term of
twenty-one years, "if the husband and wife, or any child between
them shall so long live," and the wife dies without issue, the lease
shall, nevertheless, continue during the life of the husband, because
the above condition shall be construed throughout in the disjunc-
tive.3

In the construction of statutes, likewise, the rule Noscitur d
P^rqo-i soeiis is very frequently applied, the meaning *of a word,

and, consequently, the intention of the legislature, being
ascertained by reference to the context, and by considering whether
the word in question and the surrounding words are, in fact, ejus-

1 Co. Litt. 225 a; 10 Rep. 58 ; Wing. Max. p. 13; D. 50. 17. 110. \ 3.

2 Doe d. Everett v. Cooke, 7 East 272 ; Johnson v. Simcock, 7 H. & N. 344 ;
s. c, 6 Id. 6. As to changing the copulative into the disjunctive, see ] Jar-
man on Wills, 3d ed. 471, et seq. ; Mortimer v. Hartley, 6 Exch. 47 ; s. c, 6 C.
B. 819 (60 E. C. L. R.) ; 3 De G. & S. 316.

3 Co. Litt. 225 a ; Shep. Touch. 138, 139. See, also, Burgess v. Bracher, 2
Lord Raym. 1366.

INTERPRETATION OF DEEDS, ETC. 593

dem generis, and referable to the same subject-matter.1 Especially
must it be remembered that "the sages of the law have been used
to collect the sense and meaning of the law by comparing one part
with another and by viewing all the parts together as one whole,
and not of one part only by itself — nemo enim aliquam partem
recte intelligere possit antequam totum iterum atque iterum. perle-
gerit."2

As it is, however, needless to cite additional cases for the pur-
pose of illustration, or with a view to explaining the significance of
the rule in question, we shall conclude these remarks with observ-
ing, that the three rules or canons of construction with which we
have commenced this chapter are intimately connected together, —
that they should, perhaps, in strictness, rather have been considered
under one head than treated separately, — and that they must always
be kept in view collectively when the practitioner applies himself to
the interpretation of a doubtful instrument.

[*594]

*VERBA CHARTARUM FORTIUS ACCIPIUNTUR CON-
TRA PROFERENTUM.

(Co. Litt. 36 a.)

The words of an instrument shall be taken most strongly against the party em-
ploying them.

" The prevailing rule is, that the words of a contract must be
construed most strongly against the contractor,"3 a rule " which,
however, ought to be applied only where other rules of construction
fail."4

1 Per Coleridge, J., Cooper v. Harding, 7 Q. B. 941 (53 E. C. L. R.) ; judgm.,
Stephens v. Taprell, 2 Curt. 465; per Channell, B., Pearson v. Hull, Local
Board of Health, 3 II. & C. 944.

The maxim supra was applied to construe a statute in Hardy v. Tingey, 5
Exch. 294, 298 — to ascertain the meaning of libellous words in Wakeley v.
Cooke, 4Exch. 511,519.

2 Arg., 7 Howard (U. S.) R. 637, citing Lincoln College Case, 3 Rep. 596.

3 Per Channell, B., Bastifell v. Lloyd, 1 H. & C. 395.

4 Judgm., Lindus v. Melrose, 3 H. & N. 182 5 approved in Alexander v.
Sizer, L. R. 4 Ex. 102, 106.

594 broom's legal maxims.

Accordingly, the words in a deed are to be construed most strongly
contra proferentem — regard being had, however, to the apparent
intention of the parties, as collected from the whole context of the
instrument ;l for, as observed by Sir W. Blackstone, the principle
of self-preservation will make men sufficiently careful not to preju-
dice their own interest by the too extensive meaning of their words,
and hereby all manner of deceit in any grant is avoided ; for men
would always affect ambiguous and intricate expressions, provided
they were afterwards at liberty to put their own construction upon
them.2 Moreover, the adoption of this rule puts an end to many
questions and doubts which would otherwise arise as to the meaning
and intention of the parties, which, in the absence of it, might be
r^rqr-. differently construed by different *judges ; and it tends to
quiet possession, by taking acts and conveyances executed
beneficially for the grantees and possessors.3

We may remark, also, that the general rule above stated has
been held to apply still more strongly to a deed-poll4 than to an
indenture, because in the former case the words are those of the
grantor only.5 But though a deed-poll is to be construed against
the grantor, the Court will not add words to it, nor give it a
meaning contradictory to its language.6

If, then, a tenant in fee simple grants to any one an estate for
life generally, this shall be construed to mean an estate for the life
of the grantee, because an estate for a man's own life is higher
than for the life of another ;7 and a grant is, in the absence of any
clear indication of the intention of the parties, to be construed

1 Per Lord Kenyon, C. J., Barrett v. Duke of Bedford, 8 T. R. 605; per
Lord Eldon, C. J., 2 B. & P. 22 ; per Bayley, J., 15 East 546 ; per Park, J., 1

B. & B. 335 (5 E. C. L. R.) ; Miller v. Mainwaring, Cro. Car. 400 ; 3 Ves. jun.
48; Co. Litt. 183 a; Noy Max., 9th ed. p. 48.

2 2 Bla. Com., 21st ed., 380. See Saunderson v. Piper, 5 Bing. N. C. 425
(35 E. C. L. R.) ; Reynolds v, Barford, 8 Scott N. R., 238, 239 ; per Pollock,

C. B., and Parke, B., Ashworth v. Mounsey, 9 Exch. 186, 187 ; Rodger v. The
Comptoir d'Escompte de Paris, L. R. 2 P. C. 393.

3 Bac. Max., reg. 3, which treats of the general rule.

* See stats. 8 & 9 Vict. c. 106, s. 5 ; 7 & 8 Vict. c. 76, s. 11.
6 Plowd. 134; Shep. Touch., by Preston, 88, n. (81).

8 Per Williams, J., Doe d. Myatt v. St. Helens R. C, 2 Q. B. 373 (42 E. C.
L. R.).

'Co. Litt. 42 a; Plowd. 156 ; Finch's Law 63 ; Shep. Touch. 88.

INTERPRETATION OF DEEDS, ETC. 595

most strongly against the grantor,1 and "as favorably as possible
for the grantee."2

But if tenant for life leases to another for life, without specifying
for whose life, this shall be taken to be a lease for the lessor's own
life ; for this is the greatest estate which it is in his power to grant.3
And, as a general rule, it appears clear, that, if a doubt arise as to
the construction of a lease between the lessor and lessee, the lease
must be construed most beneficially for the latter.4

*In like manner, if two tenants in common grant a rent r*£q«-i
of 10s., this is several, and the grantee shall have 10s.
from each; but if they make a lease, and reserve 10s., they shall
have only 10s. between them.5 So, it is a true canon of construc-
tion, that where there is any reasonable degree of doubt as to the
meaning of an exception in a lease, the words of the exception,
being the words of the lessor, are to be taken most favorably for
the lessee, and against the lessor;6 and where a deed may enure to
divers purposes, he to whom the deed is made shall have election
which way to take it, and he shall take it in that way which shall
be most to his advantage.7 But it seems that the instrument should,
in such a case, if pleaded, be stated according to its legal effect, in
that way in which it is intended to have it operate.8 The general
rule, however, being that "in pleading (except in deducing title) a
deed may be set out either in its terms, leaving the Court to con-
strue it according to the legal effect of those terms, or the party may
take the responsibility of stating it according to the legal effect
which it is contended to have."9

According to the principle above laid down, it was held, that
leasehold lands passed by the conveyance of the freehold, "and all

1 Per Willes, J., Williams v. James, L. R. 2 C. P. 581 ; secus as to a grant
from the Crown, post, p. 607.

2 Per Wilde, C. J., Re Stroud, 8 C. B. 529 (65 E. C. L. R.).

3 Finch's Law 55, 56. See also, Id. 60.

4 Dunn v. Spurrier, 3 B. & P. 399, 403, where various authorities are cited.
See also judgm., 1 Cr. & M. 657.

6 5 Rep. 7 ; Plowd. 140 ; Co. Litt. 197 a, 267 b.

• Per Bayley, J., Bullen v. Denning, 5 B. & C. 847 (11 E. C. L. R.).

' Shep. Touch. 83 ; cited, 8 Bing. 106 (21 E. C. L. R.).

8 2 Smith L. C, 6th ed., 479, and cases there cited.

9 Judgm., Lord Newborough v. Schroder, 7 C. B. 397 (62 E. C. L. R.) ;
Price v. Williams, 1 M. & W. 6, 14.

30

596 ^room's legal maxims.

lands or meadows to the said messuage or mill belonging, or used,
occupied, and enjoyed, or deemed, taken or accepted as part thereof."
This, said Lord Loughborough, C. J., being a case arising on a deed,
r*^Q71 **s *° I30 distinguished from cases of a like nature which
have arisen on wills. In general, where there is a question
on the construction of a will, neither party has done anything to
preclude himself from the favor of the Court. But, in the present
instance, the legal maxim applies, that a deed shall be construed
most strongly against the grantor.1

The rule of law, moreover, that a man's own acts shall be taken
most strongly against himself, not only obtains in grants, but ex-
tends, in principle, to other engagements and undertakings.2

Thus, the return to a writ of fi. fa. shall, if the meaning be
doubtful, be construed against the sheriff; nor, if sued for a false
return, shall he be allowed to defend himself by putting a construc-
tion on his own return which would make it bad, when it admits of
another construction which will make it good.3

In like manner, with respect to contracts not under seal, the gen-
erally received doctrine of law undoubtedly is, that the party who
makes any- instrument should take care so to express the amount of
his own liability, as that he may not be bound further than it was
his intention that he should be bound ; and, on the other hand, that
the party who receives the instrument, and parts with his goods on
r;),rqo-j the faith of it, should rather have a construction *put upon
it in his favor, because the words of the instrument are not
his, but those of the other party.4 This principle applies to a con-
dition in a policy of insurance which " being the language of the

1 Doe d. Davies v. Williams, 1 H. Bla. 25, 27.

2 1 H. Bla. 586.

A release in deed, being the act of the party, shall be taken most strongly
against himself; Co. Litt. 264 b ; cited judgm., Lord v. Beech, 11 Q. B. 869
(63 E. C. L. 11.).

" Although the words of a covenant are to be construed according to the
intent of the parties, yet they are to be taken most strongly against the party
who stipulates:" per Holroyd, J., Webb v. Plummer, 2 B. & Aid. 752. See
West London R. C. v. London and North Western R. C, 11 C. B. 254, 309,
339 (73 E. C. L. R.).

3 See Reynolds v. Barford, 7 M. & Gr. 449, 456 (49 E. C. L. R.).

4 Per Alderson, B., Mayer v. Isaac, 6 M. & W. 612; commenting on the
observations of Bayley, B., in Nicholson v. Paget, 1 Cr. & M. 48. See Alder
v. Boyle, 4 C. B. 635 (56 E. C. L. R.).

INTERPRETATION OF DEEDS, ETC. 598

company must, if there be any ambiguity in it, be taken most
strongly against them."1

If the party giving a guarantee leaves anything ambiguous in his
expressions, it has been said that such ambiguity must be taken
most strongly against himself;2 though it would rather seem that
the document in question is to be construed according to the inten-
tion of the parties to it as expressed by the language which they
have employed, understood fairly in the sense in which it is used,
the intention being, if needful, ascertained by looking to the rela-
tive position of the parties at the time when the instrument was
written.3

If a carrier give two different notices, limiting his responsibility
in case of loss, he will be bound by that which is least beneficial to
himself.4 In like manner, where a party made a contract of sale as
agent for A., and, on the face of such agreement, stated, that he
made the purchase, paid the deposit, and agreed to comply with the
conditions *of sale, for A., and in the mere character of r*nqq-|
agent, it was held that this act of the contracting party
must be taken fortissime contra prof erentem ; and that he could not,
therefore, sue as principal on the agreement, without notice to the
defendant before action brought, that he was the party really in-
terested.5 So, if an instrument be couched in terms so ambiguous
as to make it doubtful whether it be a bill of exchange or promis-
sory note, the holder may, as against the party who made the in-
strument, treat it as either.6

1 Per Cockburn, C. J., Notman v. Anchor Ass. Co., 4 C. B. N. S. 481 (93
E. C. L. R.) ; Fitton v. Accidental Death Insur. Co., 17 C. B. N. S. 134, 135
(112 E. C. L. R.) : Fowkes v. Manchester and London Life Ass. Co., 32 L. J.
Q. B. 153, 157, 159; per Lord St. Leonards, Anderson v. Fitzgerald, 4 II. L.
Cas. 484 ; per Blackburn, J., Braunstein v. Accidental Death Insur. Co., 1 B.
&S. 799(101 E.C. L. R.)).

2 Hargreave v. Smee, 6 Bing. 244, 248 ; Stephens v. Pell, 2 Cr. & M. 710.
See Cumpston v. Haigh, 2 Bing. N. C. 449, 454 (29 E. C. L. R.).

3 Per Bovill, C. J., Coles v. Pack, L. R. 5 C. P. 70 ; Wood v. Priestner, L.
R. 2 Ex. 66, 282.

* Munn v. Baker, 2 Stark. N. P. C. 255 (2 E. C. L. R.). See Phillips v.
Edwards, 3 H. & N. 813, 820.

6 Bickerton v. Burrell, 5 M. & S. 383, 386, as to which case, see Rayner v.
Grote, 15 M. & W. 359. See also Boulton v. Jones, 2 II. & N. 564, and cases
there cited ; Carr v. Jackson, 7 Exch. 382.

8 Edis v. Bury, 6 B. & C. 433 (13 E. C. L. R.) ; Black v. Bell, 1 M. & Rob.

599 bkoom's legal maxims.

In the Roman law, the rule under consideration for the construc-
tion of contracts may be said, in substance, to have existed, al-
though its meaning differed considerably from that which attaches
to it in our own : the rule there was, Fere secundum promissorem
inter pretamur,1 where promissor, in fact, signified the person who
contracted the obligation,2 that is, who replied to the stipulatio pro-
posed by the other contracting party. In case of doubt, then, the
clause in the contract thus offered and accepted, was interpreted
against the stipulator, and in favor of the promissor ; in stipula-
tionibus cum quceritur quid actum sit verba contra stipulatorem
inten pretanda sunt;3 and the reason given for this mode of con-
struction is, quia stipulatori liberum fuit verba late concipere :4 the
l~*f Offl Person stipulating should *take care fully to express that
which he proposes shall be done for his own benefit. But,
as remarked by Mr. Chancellor Kent, the true principle appears to
be "to give the contract the sense in which the person making the
promise believed the other party to have accepted it, if he in fact
did so understand and accept it;"5 though this remark must neces-
sarily be understood as applicable only where an ambiguity exists
after applying those various and stringent rules of interpretation
by which the meaning of a passage must, in very many cases, be
determined. When dealing with a mercantile instrument, moreover,
"the Courts are not restrained to such nicety of construction as is
the case with regard to conveyances, pleadings, and the like," and
in reference to a charter-party, it has been observed,6 that "gener-
ally speaking, where there are several ways in which the contract
might be performed, that mode is adopted which is the least pro-
fitable to the plaintiff and the least burthensome to the defendant."
Further, in reference to the same instrument, it has been remarked

149; Lloyd v. Oliver, 18 Q. B. 471 (83 E. C. L. R.) ; Forbes v. Marshall, 11
Exch. 166.

In M'Call v. Taylor, 19 C. B. N. S. 301 (115 E. C. L. R.), the instrument in
question was held to be neither a bill of exchange nor a promissory note.

1 D. 45. 1. 99. pr.

2 Brisson. ad verb. " Promissor" " Stipulatio ;" 1 Pothier, by Evans, 58.

3 D. 45. 1. 38, | 18. 4 D. 45. 1. 99. pr. ; D. 2. 14. 39.

6 2 Kent Com., 7th ed., 721 ; 20 Conn. (U. S.) R. 281 ; Paley Moral Phil.,
4th ed., 125, 127 ; 1 Duer Insur. 159, 160.

6 Per Maule, J., Cockburn v. Alexander, 6 C. B. 814 (60 E. C. L. R.), and
in Gether v. Capper, 15 C. B. 707 (80 E. C. L. R.) ; s. c, 18 Id. 866.

INTERPRETATION OF DEEDS, ETC. 600

that the merchant "is in most cases the party best acquainted with
the trade for which the ship is taken up, and with the difficulties
which may impede the performance by him of his contract ; words,
therefore, in a charter-party relaxing in his favor a clause by which
an allowance to him of time for a specified object is in the interest
of the ship precisely limited, must be read as inserted on his re-
quirement, and construed at the least with this degree of strictness
against him that they shall not have put upon them an addition to

their *obvious meaning;" though where that meaning is

. r*6011
ambiguous it must be gathered from the surrounding cir- L J

cumstances to which the charter-party was intended to apply.1

Further, where in pleading two different meanings present them-
selves, that construction shall be adopted which is most unfavorable
to the party pleading:2 ambiguum placitum inter pretari debet contra
proferentem ;3 for every man is presumed to make the best of his
own case,4 and it is incumbent on him to make his meaning clear.5
Though it is also a general rule that " every pleading, if it be
fairly susceptible of such a construction, must, as against the party
pleading, be taken to have been pleaded agreeably to the rules of
pleading; and it is not open to him to contend that he has ill
pleaded. It would be opening a wide door to fraud and trickery, if
this were otherwise."6 Nor does the maxim just cited apply to the
pleading of matters which are peculiarly within the knowledge, of
the opposite party.7

It has indeed frequently been laid down that ambiguity is cured
by pleading over ; and that at subsequent stages of the cause, that

1 Judgm., Hudson v. Ede, L. R. 2 Q. B. 578.

2 Steph. Plead., 6th ed., 310 ; Bac. Max., reg. 3. " It is a maxim in the con-
struction of pleadings that everything shall be taken most strongly against
the pleader;" per Coleridge, J., Howard v. Gosset, 10 Q. B. 383 (59 E. C. L.
R.) ; per Buller, J., Doveston v. Payne, 2 H. Bla. 531 ; per Parke, B., Dendy
v. Powell, 3 M. & W. 444.

3 If a plaintiff feels embarrassed by the mode in which a plea is framed, he
may apply to a judge at chambers to rectify it. See, for instance, Brooks v.
Jennings, L. R. 1 C. P. 476, 480.

4 Co. Litt. 303 b ; Hobart 242 ; Finch's Law 64.

6 Per Pollock, C. B., Goldham v. Edwards, 18 C. B. 399 (86 E. C. L. R.).
• Per Wilde, C. J., Moore v. Forster, 5 C. B. 224.

7 Judgm., Murphy v Glass, L. R. 2 P. C. 419, citing Hobson v. Middleton,
6 B. & C. 302 (13 E. C. L. R.).

601-V^ broom's legal maxims.

r*fi021 cons^ruc^on °f the ambiguous expressiou *must be adopted
which is most favorable to the party by whom it was used.1
"If," said Maule, J., "the language of the declaration is ambigu-
ous, and the defendant pleads over, it must, if capable of such a
construction, be taken in a sense that will require an answer."2
And, as remarked by Lord Truro,3 " it is a clear rule of law that if
a declaration contains allegations capable of being understood in
two senses, and if understood in one sense it will sustain the action,
and in another it will not ; after verdict, it must be construed in
the sense which will sustain the action." It has, however, been ob-
served that "there is no distinction in the mode of construing a
plea, whether it comes before the Court upon a motion for judg-
ment non obstante veredicto, or upon a demurrer."4 In either case
the plea is to receive a fair and reasonable construction ; and we
may add, that, in construing a plea it ought to be read like any
other composition, and that no violent or forced construction ought
to be made beyond the ordinary and fair meaning of the words em-
ployed, either to support or to invalidate it.5

It has also been laid down as a rule in equity pleading, that
" The presumption is always against the pleader, because the plain-
tiff' is presumed to state his case in the most favorable way for him-
r*fi031 se^> anc^ therefore, if he has *left anything material to
his case in doubt, it is assumed to be in favor of the other
party;"6 though the rule that an ambiguous pleading is to be con-
strued contra proferentem, is subject to an exception already

1 Fletcher v. Pogson, 3 B. & C. 192, 194 (10 E. C. L. R.) ; Lord Hunting-
tower v. Gardner, 1 B. & C. 297 [8 E. C. L. R.) ; 10 C. B. 182 (70 E. C. L. R.)
(a) ; per Parke, B., Norman v. Thompson, 4 Exch. 750 ; Smith v. Keating, 6
C. B. 152 (60 E. C. L. R.) ; per Williams, J., 5 C. B. 271 (57 E. C. L.R.) ;per
Jervis, C. J., 13 Id. 551.

2 Boydell v. Harkness, 3 C. B. 171, 172 (54 E. C. L. R.) ; citing Hobson v.
Middleton, 6 B. & C. 302 (13 E. C. L. R.) ; judgm., Bevins v. Hulme, 15 M.
& W. 97.

3 Emmens v. Elderton, 13 C. B. 542 (76 E. C. L. R.).

4 Per Pollock, C. B., Goldham v. Edwards, 18 C. B. 399 (86 E. C. L. R.) ;
arg., Goldham v. Edwards, 17 C. B. 143 (84 E. C. L. R.).

6 Judgm., Hughes v. Done, 1 Q. B. 299 (41 E. C. L. R.) ; and cases cited
supra.

6 Per Lord Cottenham, C, Columbine v. Chichester, 2 Phill. 28 ; and in
A.-G. v. Mayor of Norwich, 2 My. & Cr. 422, 423 ; Vernon v. Vernon, Id. 145 5
Bowes v. Fernie, 2 My. & Cr. 632.

INTERPRETATION OF DEEDS, ETC. 603

noticed, and does not apply to the pleading of matters which are
peculiarly within the knowledge of the other party.1

It must further be observed, that the general rule in question,
being one of some strictness and rigor, is the last to be resorted to,
and is never to be relied upon but when all other rules of exposi-
tion fail.2 In some cases, indeed, it is possible that any construction
which the Court may adopt will be contrary to the real meaning of
the parties ; and, if parties make use of such uncertain terms in
their contracts, the safest way is to go by the grammatical construc-
tion, and if the sense of the words be in equilibria, then the strict
rule of law must be applied.3

Moreover, the principle of taking words fortius contra 'profe-
rentem does not seem to hold when a harsh construction would
work a wrong to a third person, it being a maxim that Constructio
legis non faeit injuriam} Therefore, if tenant in tail make a lease
for life generally, this shall be taken to mean a lease for the life of
the lessor,5 for this stands well with the law ; and not for r^njn
*the life of the lessee, which it is beyond the power of a
tenant in tail to grant.6

Acts of Parliament are not, in general, within the reason of the
rule under consideration, because they are not the words of parties,
but of the legislature ; neither does this rule apply to wills.7
Where, however, an Act of Parliament is passed for the benefit of
a canal, railway, or other company, it has been observed, that this,
like many other cases, is a bargain between a company of ad-
venturers and the public, the terms of which are expressed and set
forth in the Act, and the rule of construction8 in all such cases is

1 Judgm., Murphy v. Glass, L. R. 2 P. C. 419.

2 Bac. Max., reg. 3 ; 1 Duer Insur. 210.

8 Per Bayley, J., Love v. Pares, 13 East 86.

* Co. Litt. 183 a ; Shepp. Touch. 88 ; judgm., Rodger v. The Comptoir d'Es-
compte de Paris, L. R. 2 P. C. 406.

6 Per Bayley, J., Smith v. Doe d. Earl of Jersey, 2 B. & B. 551 (6 E. C. L.
R.) ; Finch Law 60.

6 2 Com. by Broom & Hadley 507.

7 2 Dwarr. Stats. 688 ; Bac. Max., reg. 3.

8 The rule that a private Act of Parliament " is to be construed as a con-
tract or a conveyance, is a mere rule of construction ;" per Byles, J., 6 C. B.
N. S. 218-9 (95 E. C. L. R.). As to the recitals in a private Act, see The
Shrewsbury Peerage, 7 H. L. Cas. 1.

604 broom's legal maxims.

now fully established to be, that any ambiguity in the terms of the
contract must operate against the adventurers, and in favor of the
public, the former being entitled to claim nothing which is not
clearly given to them by the Act.1 Where, therefore, by such an
Act of Parliament, rates are imposed upon the public and for the
r*fif)r1 benefit °f tne company, *such rates must be considered as
a tax upon the subject; and it is a sound general rule,
that a tax shall not be considered to be imposed (or at least not for
the benefit of a subject) without a plain declaration of the intent of
the legislature to impose it.2

In a well-known case, which is usually cited as an authority with
reference to the construction of Acts for the formation of companies
with a view to carrying works of a public nature into execution, the
law was thus laid down by Lord Eldon : — " When I look upon
these Acts of Parliament, I regard them all in the light of con-
tracts made by the legislature on behalf of every person interested
in anything to be done under them ; and I have no hesitation in
asserting, that, unless that principle is applied in construing
statutes of this description, they become instruments of greater
oppression than anything in the whole system of administration
under our constitution. Such Acts of Parliament have now become
extremely numerous, and from their number and operation they so
much affect individuals, that I apprehend those who come for them
to Parliament do in eifect undertake that they shall do and submit
to whatever the legislature empowers and compels them to do, and

1 Per Lord Tenterden, C. J., Stourbridge Canal Co. v. Wheeley, 2 B. &
Ad. 793 (22 E. C. L. R.) ; recognised, Priestley v. Foulds, 2 Scott N. R. 228 ;
per Coltman, J., Id. 226 ; cited arg., Id. 738 ; judgm., Gildart v. Gladstone, 11
East 685; recognised, Barrett v. Stockton and Darlington R. C, 2 Scott N.
R. 370; s. c, affirmed in error, 3 Scott N. R. 803; and in the House of Lords,
8 Scott N. R. 641 ; cited Ribble Navigation Co. v. Hargreaves, 17 C. B. 385,
402 (84 E. C. L. R.) ; per Maule, J., Portsmouth Floating Bridge Co. v. Nance,
6 Scott N. R. 831 ; Blakemore v. Glamorganshire Canal Nav., 1 My. & K. 165
(as to the remarks of Lord Eldon in which case, see per Alderson, B , Lee v.
Milner, 2 Yo. & C. 618 ; per Lord Chelmsford, C, Ware v. Regent's Canal
Co., 28 L. J. Chanc. 157 ; per Erie, C. J., Baxendale v. Great Western R. C,
16 C. B. N. S. 137 (111 E. C. L. R.)) ; arg., Thicknesse v. Lancaster Canal
Co., 4 M. & W. 482 ; ante, p. 5, et seq.

2 Judgm., Kingston-upon-Hull Dock Co. v. Browne, 2 B. & Ad. 58, 59 (22
E. C. L. R.) ; Grantham Canal Nav. Co. v. Hall (in error), 14 M. & W. 880;
ante, pp. 570, 571.

INTERPRETATION OF DEEDS, ETC. 605 - U C

that they shall do nothing else ; that they shall do and shall forbear
all that they are thereby required to do and to forbear, as well with
reference to the interests of the public as with reference to the in-
terests of individuals."1 Acts of Parliament, such as here referred
to,2 have been *called "Parliamentary bargains made with r*pnf»-i
each of the landowners. Perhaps more correctly they
ought to be treated as conditional powers given by Parliament to
take the land of the different proprietors, through whose estates the
works are to proceed. Each landowner, therefore, has a right to
have the powers strictly and literally carried into effect as regards
his own land, and has a right also to require that no variation shall
be made to his prejudice in the carrying into effect the bargain
between the undertakers and any one else."3

So, with respect to Railway Acts, it has been repeatedly laid
down, that the language of these Acts of Parliament is to be treated
as the language of the promoters of them ; they ask the legislature
to confer great privileges upon them, and profess to give the public
certain advantages in return. Acts passed under such circum-
stances should be construed strictly against the parties obtaining
them, but liberally in favor of the public.4 " The statute," says
Alderson, B.,5 speaking of a railway company's Act, " gives this
company power to take a man's land without any conveyance at
all; for if they cannot find out who can make a conveyance to
them, or if he refuses to convey, or if he fail to make out a title,
they may pay their money into Chancery, and the land is at once
vested in them by a parliamentary title. But in order to enable
them to exercise this power, they must follow the words of the Act
strictly." And it is clear that the words of a *statute will r*fi071
not be strained beyond their reasonable import to impose
a burthen upon, or to restrict the operation of, a public company.6

1 Blakemore v. Glamorganshire Canal Nav., 1 My. & K. 162 ; cited judgm.,
1 E. & B. 868, 859 (72 E. C. L. R.).

2 See also supra 603, n. 8 ; 604, n. 1.

3 Per Alderson, B., Lee v. Milner, 2 Yo. & C. 611, 618; adopted, judgm.,
York and North Midland R. C. v. Reg., 1 E. & B. 869 (72 E. C. L. R.).

4 Judgm., Parker v. Great Western R. C, 7 Seott N. R. 870.

6 Doe d. Hutchinson v. Manchester, Bury and Rosendale R. C. 14 M. & W.
694 ; Webb v. Manchester and Leeds R. C, 1 Railw. Cas. 576, 599 ; per Lord
Langdale, M. R., Gray v. Liverpool and Bury R. C, 4 Id. 240.

6 Smith v. Bell, 2 Railw. Cas. 877 ; Parrett Nav. Co. v. Robins, 3 Id. 383 ;
with which ace. Cracknell v. Mayor &c, of Thetford, L. R. 4 C. P. 634, 637.

607 broom's legal maxims.

It will, of course, be borne in mind that the general principle of
construing an Act of Parliament of the kind above alluded to contra
proferentem, can only be applied where a doubt presents itself as to
the meaning of the legislature ; for such an Act, and every part of
it, must be read according to the ordinary and grammatical sense
of the words used, and with reference to those established rules of
construction which we have already stated.

Lastly with reference to the maxim fortius contra proferentem,
— where a question arises on the construction of a grant from the
Crown, the rule under consideration is reversed; for such grant is
construed most strictly against the grantee, and most beneficially
for the Crown, so that nothing will pass to the grantee but by clear
and express words;1 the method of construction just stated seeming
as judicially remarked,2 "to exclude the application of either of
these two phrases,3 expressum facit cessare taciturn, or expressio
unius est exclusio alterius. That which the Crown has not granted
by express, clear and unambigous terms, the subject has no right
to claim under a grant or charter."4

1 Arg., R. v. Mayor, &c, of London, 1 Cr., M. & R. 12, 15, and cases there
cited ; Chit. Pre. of the Crown 391 ; Finch's Law 101.

2 Per Pollock, C. B., Eastern Archipelago Co. v. Reg., 2 E. & B. 906, 907
(75 E. C. L. R.Jjs.c, Id. 310.

3 Post, p. 651.

4 " It is established on the best authority, that in construing grants from
the Crown, a different rule of construction prevails from that by which grants
from one subject to another are to be construed. In a grant from one sub-
ject to another, every intendment is to be made against the grantor, and in
favor of the grantee, in order to give full effect to the grant; but in grants
from the Crown an opposite rule of construction prevails. Nothing passes
except that which is expressed, or which is matter of necessary and unavoid-
able intendment, in order to give effect to the plain and undoubted intention
of the grant. And in no species of grant does this rule of construction more
especially obtain than in grants which emanate from, and operate in deroga-
tion of, the prerogative of the Crown:" ex. gr. where a monopoly is granted.
Judgm., Feather v. Reg., 6 B. & S. 283-4 (118 E. C. L. R.) ; citing per Lord
Stowell, The Rebeckah,

INTERPRETATION OF DEEDS, ETC. 608

*Ambiguitas Verborum LATENS Verificatione SUPPLE- r*6Qgi
tur; nam quod ex Facto oritur ambiguum Veri-
ficatione Facti tollitur.

(Bac. Max., reg. 23.)

Latent ambiguity may be supplied by evidence; for an ambiguity which arises

by proof of an extrinsic fact, may, in the same manner, be removed.

Two kinds of ambiguity occur in written instruments: the one
is called ambiguitas latens,1 i.e., where the writing appears on the
face of it certain and free from ambiguity; but the ambiguity is
introduced by evidence of something extrinsic, or by some collateral
matter out of the instrument : the other species is called ambiguitas
patens, i.e., an ambiguity apparent on the face of the instrument
itself.2

Ambiguitas patens, says Lord Bacon, cannot be holpen by
averment, and the reason is, because the law will not couple and
mingle matter of specialty, which is of the *higher account, r^non
with matter of averment, which is of the lower account
in law, for that were to make all deeds hollow, and subject to
averment; and so, in effect, to make that pass without deed which
the law appoints shall not pass but by deed;3 and this rule, as above
stated and explained, applies not only to deeds, but to written con-
tracts in general;4 and especially, as will be seen by the examples
immediately following, to wills.

1 Of which see an example, Raffles v. Wichelhaus, 2 H. & C. 906.

2 Bac. Max., reg. 23. The remarks respecting ambiguity here offered,
should be taken in connection with those appended to the five maxims which
successively follow. The subject of latent and patent ambiguities, and like-
wise of misdescription, has been very briefly treated in the text, since ample
information thereupon may be obtained by reference to the masterly treatise
of Sir James Wigram, upon the " Admission of Extrinsic Evidence in Aid of
the Interpretation of Wills."

3 Bac. Max., reg. 23 ; Doe d. Tyrrell v. Lyford, 4 M. & S. 550 ; Lord Chol-
mondeley v. Lord Clinton, 2 Mer. 343 ; judgm., Doe d. Gord v Needs, 2 M. &
W. 139 ; s. p., Stead v Berrier, Sir T. Raym. 411.

4 See Hollier v. Eyre, 9 CI. & Fin. 1.
A contract, observes Pollock, C. B., in Nichol v. Godts, 10 Exch. 194,

" must be read according to what is written by the parties, for it is a well-
known principle of law, that a written contract cannot be altered by parol.
If A. and B. make a contract in writing, evidence is not admissible to show
that A. meant something different from what is stated in the contract itself,

609 broom's legal maxims.

On this principle, a devise to "one of the sons of J. S." (who
has several sons), cannot be explained by parol proof;1 and if there
be a blank in the will for the devisee's name, parol evidence cannot
be admitted to show what person's name the testator intended to
insert ;2 it being an important rule, that, in expounding a will, the
Court is to ascertain, not what the testator actually intended as
contradistinguished from what his words express, but what is the
meaning of the words he has used.3

I~*f 101 *^' as 0Dserved °y Sir James Wigram, the Statute of Frauds
m erely had required that a nuncupative will should not be set
up in opposition to a written will, parol evidence might, in many cases,
be admissible to explain the intention of the testator, where the
person or thing intended by him is not adequately described in the
will ; but if the true meaning of that statute be, that the writing
which it requires shall itself express the intention of the testator,
it is difficult to understand how the statute can be satisfied by a
writing merely, if the description it contains have nothing in com-
mon with that of the person intended to take under it, or not
enough to determine his identity. To define that which is indefinite
is to make a material addition to the will.4 In accordance with
these observations, where a testator devised his real estates "first
to K., then to , then to L., then to M.. &c," and the will re-
ferred to a card as showing the parties designated by the letters in
the will, which card, however, was not shown to have been in ex-
istence at the time of the execution of the will, it was held clearly
inadmissible in evidence ; the Court observing, that this was a case
of a patent ambiguity ; and that, according to all the authorities on

and that B. at the time assented to it. If that sort of evidence were admitted,
every written document would be at the mercy of witnesses who might be
called to swear any thing." See Besant v. Cross, 10 C. B. 895 (70 E. C. L.
R.) ; Martin v. Pycroft, 2 De G., M. & G. 785 ; post, Chap. X.

1 Strode v. Russell, 2 Vern. 624; Cheyney's Case, 5 Rep. 68. See Castle-
don v. Turner, 3 Atk. 257; Harris v. Bishop of Lincoln, 2 P. Wins. 136, 137 ;
per Tindal, C. J., Doe d. Winter v. Perratt, 7 Scott N. R. 36. See also, per
Littledale, J., and Parke, J., in Shortrede v. Cheek, 1 A. & E. 57 (28 E. C.
L. R.).

2 Baylis v. A.-G., 2 Atk. '/39 ; Huntr. Hort, 3 Bro. C. C. 311 ; cited, 8 Bing.
254 (21 E. C. L. R.).

3 Per Parke, J., Doe d. Gwillim v. Gwillim, 5 B. & Ad. 129 (27 E. C. L. R.).

4 See Wigram, Extrin. Evid., 3d ed., 120, 121.

INTERPRETATION OF DEEDS, ETC. 610

the subject, parol evidence to explain the meaning of the will could
not legally be admitted.1

If, then, as further observed in the treatise already cited, a tes-
tator's words, aided by the light derived from the circumstances
with reference to which they were used, do not express the inten-
tion ascribed to him, evidence to prove the sense in which he in-
tended to use them is, *as a general proposition, inadmissi- r*^-i -j-i
ble ; in other words, the judgment of a Court in expound-
ing a will must be simply declaratory of what is in the will ;2 and
to make a construction of a will where the intent of the testator
cannot be known, has been designated as intentio cceca et sicca.3

The devise, therefore, in cases falling within the scope of the
above observation, will, since the will is insensible and not really
expressive of any intention, be void for uncertainty.4

The rule as to patent ambiguities which we have just been con-
sidering is by no means confined in its operation to the interpreta-
tion of wills ; for instance, where a bill of exchange was expressed
in figures to be drawn for 245/., and in words for two hundred
pounds, value received, with a stamp applicable to the higher
amount, evidence to show that the words "and forty-five" had been
omitted by mistake, was held inadmissible ;5 for, the doubt being on
the face of the instrument, extrinsic evidence could not be received
to explain it. The instrument, however, was held to be a good bill
for the smaller amount, it being a rule laid down by commercial
writers, that, where a difference appears between the figures and
the words of a bill, it is safer to attend to the words.6 But, al-
though a patent ambiguity cannot be explained by extrinsic evi-
dence, it may, in some cases, be helped by ""construction, fJ|efl101
•or a careful comparison of other portions of the instrument L J
with that particular part in which the ambiguity arises ; and in
others, it may be helped by a right of election vested in the grantee

1 Clayton v. Lord Nugent, 13 M. & W. 200.

a Wigram, Extrin. Evid., 3d ed., 87th and following pages, in which many
instances of the application of this rule are given. And refer to Goblet v.
Beechey, Id. p. 185 ; s. c, 3 Sim. 24.

3 Per Rolle, C. J., Taylor v. Web, Styles 319.

4 In the Mayor, &c, of Gloucester u. Osborn, 1 H. L. Cas. 272, legacies were
held to have failed for uncertainty of purpose.

6 Saunderson v. Piper. 5 Bing. N. C. 425 (15 E. C. L. R.).
• Id. 431, 434.

612 broom's legal maxims.

or devisee,1 the power being given to him of rendering certain that
which was before altogether uncertain and undetermined. For
instance, where a general grant is made of ten acres of ground
adjoining or surrounding a particular house, part of a larger quan-
tity of ground, the choice of such ten acres is in the grantee, and
a devise to the like eifect is to be considered as a grant ;2 and if I
grant ten acres of wood where I have one hundred, the grantee
may elect which ten he will take ; for, in such a case, the law pre-
sumes the grantor to have been indifferent on the subject.3 So, if
a testator leaves a number of articles of the same kind to a legatee,
and dies possessed of a greater number, the legatee and not the
executor has the right of selection.4

On the whole, then, we may observe, in the language of Lord
Bacon, that all ambiguity of words within the deed, and not out
of the deed, may be helped by construction, or, in some cases, by
election, but never by averment, but rather shall make the deed
void for uncertainty.5

The general rule, however, as to patent ambiguity must be re-
ceived with this qualification, viz., that extrinsic evidence is unques-
tionably admissible for the purpose of showing that the uncertainty
I~*fi1 m wnicn aPPears °n tfte face °f *tne instrument does not, in
point of fact, exist4; and that the intent of the party, though
uncertainly and ambiguously expressed, may yet be ascertained,
by proof of facts, to such a degree of certainty as to allow of the
intent being carried into effect ;6 in cases falling within the scope
of this remark, the evidence is received, not for the purpose of
proving the testator's intention, but of explaining the words which
he has used. Suppose, for instance, a legacy "to one of the chil-
dren of A.," by her late husband B. ; suppose, further, that A. had
only one son by B., and that this fact was known to the testator ;
the necessary consequences, in such a case, of bringing the words
of the will into contact with the circumstances to which they refer,

1 See Duckmanton v. Duckmanton, 5 H. & N. 219.

2 Hobson v. Blackburn, 1 My. & K. 571, 575.

3 Bac. Max., reg. 23. See also, per Cur., in Richardson v. "Watson, 4 B. &
Ad. 787 (24 E. C. L. R.) ; Yin. Abr., " Grants'1 (H. 5).

4 Jacques v. Chambers, 2 Colly. 435.

6 Bac. Max., reg. 23 ; per Tindal, C. J., 7 Scott N. R. 36 ; Wigram. Extrin.
Evid., 3d ed., 83, 101.

6 2 Phill. Evid., 10th ed., 389.

INTERPRETATION OF DEEDS, ETC. 613

must be to determine the identity of the person intended, it being
the form of expression only, and not the intention, which is am-
biguous ; and evidence of facts requisite to reduce the testator's
meaning to certainty would not, it should seem, in the instance
above put, be excluded ; though it would be quite another question
if A. had more sons than one, or if her husband were living.1

"In the case of a patent ambiguity," remarks Sir T. Plumer,
"that is, one appearing on the face of the instrument, as a general
rule, a reference to matter dehors the instrument is forbidden. It
must, if possible, be removed by construction and not by averment.
But in many cases this is impracticable ; where the terms used are
wholly indefinite and equivocal and carry on the face of them no
certain or explicit meaning, and the instrument furnishes no mate-
rials by which the ambiguity thus arising can be removed ; if in
such cases the Court were *to reject the only mode by
which the meaning could be ascertained, viz., the resort to ^ J
extrinsic circumstances, the instrument must become inoperative
and void. As a minor evil, therefore, common sense and the law
of England (which are seldom at variance) warrant the departure
from the general rule, and call in the light of extrinsic evidence."2

With respect to ambiguitas latens, the rule is, that, inasmuch as
the ambiguity is raised by extrinsic evidence, so it may be removed
in the same manner.3 Therefore, if a person grant his manor of
S. to A. and his heirs, and the truth is, he hath the manors both
of North S. and South S., this ambiguity shall be helped by aver-
ment as to the grantor's intention.* So, if A. levies a fine to
William, his son, and A. has two sons named William, the aver-

1 Wigram, Ex. Evid., 3d ed., 66.

2 Per Sir Thos. Plumer, M. R., Colpoys v. Colpoys, 1 Jac. R. 463, 464, where
several instances are given ; Collision v. Curling, 9 CI. & Fin. 88.

3 2 Phill. Evid., 10th ed., 392; Wigram, Extrin. Evid., 3d ed., 101 ; per
Williams, J., Way v. Hearn, 13 C. B. N. S. 305; judgm., Bradley v. Washing-
ton Steam Packet Co., 13 Peters (U. S.) R. 97. " A latent ambiguity is raised-
by evidence :" per Coleridge, J., Simpson v. Margitson, 11 Q. B. 25 (63 E. C.
L. R.).

Where parol evidence has been improperly received to explain a supposed
latent ambiguity, the Court in banco will decide upon the construction of the
instrument without regard to the finding of the jury upon such evidence:
BrufFt?. Conybeare, 13 C. B. N. S. 263 (106 E. C.L. R.).

* Bac. Max., reg. 23 ; Plowd. 85 b ; Miller v. Travers, 8 Bing. 248 (21 E.
C. L. R.l.

614 broom's legal maxims.

ment that it was his intention to levy the fine to the younger is
good, and stands well with the words of the fine.1 So, if one de-
vise to his son John, when he has two sons of that name,2 or to the
p^-jr-i eldest son of J. S., *and two persons, as in the case of a
second marriage, meet that designation,3 evidence is admis-
sible to explain which of the two was intended. Wherever, in
short, the words of the will in themselves are plain and unam-
biguous, but they become ambiguous by the circumstance that there
are two persons, to each of whom the description applies, then parol
evidence may be admitted to remove the ambiguity so created.4

A like rule applies also where the subject-matter of a devise or
bequest is called by divers names, "as if I give lands to Christ-
church in Oxford, and the name of the corporation is JEcclesia
Christi in Universitate, Oxford, this shall be holpen by averment,
because there appears no ambiguity in the words."5

In all cases, indeed, in which a difficulty arises in applying the
words of a will to the thing which is the subject-matter of the de-
vise, or to the person of the devisee, the difficulty or ambiguity
which is introduced by the admission of extrinsic evidence may be
rebutted and removed by the production of further evidence upon
the same subject, calculated to explain what was the estate or
subject-matter really intended to be devised, or who was the person
really intended to take under the will ; and this appears to be the
extent of the maxim as to ambiguitas latens.6 The characteristic
of these cases is, that the words of the will do describe the object
r*fi1fi1 or suDJect ^intended, and the evidence of the declarations
of the testator has not the effect of varying the instrument

1 Altham's Case, 8 Rep, 155 : cited, 8 Bing. 251 (21 E. C. L. R.).

2 Counden v. Clerke, Hob. 32 ; Fleming v. Fleming, 1 H. & C. 242 ; Jones v.
Newman, 1 W. Bla. 60 ; Cheyney's Case, 5 Rep. 68 ; per Tindal, C. J., Doe d.
Winter v. Perratt, 7 Scott N. R. 36.

3 Per Erskine, J., 5 Bing. N. C. 433 (35 E. C. L. R.) ; Doe d. Gore v. Needs,
2 M. & W. 129 5 Richardson v. Watson, 4 B. & Ad. 792 (24 E. C. L. R.). And
see the cases on this subject, cited, 2 Phill. Evid., 10th ed., 393, et seq.

* Per Alderson, B., 13 M. & W. 206, and in Smith v. Jeffryes, 15 M. & W.
561 ; The Duke of Dorset v. Lord Hawarden, 3 Curt. 80.

5 Bac. Max., reg. 23.

6 Judg., Miller v. Travers, 8 Bing. 247, 248 ; per Abbott, C. J., Doe d.
Westlake v. Westlake, 4 B. & Aid. 58 (24 E. C. L. R) ; distinguished in Flem-
ing v. Fleming, 1 H. & C. 242, 247.

INTERPRETATION OF DEEDS, ETC. 616

in any- way whatever; it only enables the Court to reject one
of the subjects or objects to which the description in the will applies,
and to determine which of the two the devisor understood to be
signified by the description which he used in the will.1

A devise was made of land to M. B., for life, remainder to "her
three daughters, Mary, Elizabeth and Ann," in fee, as tenants in
common. At the date of the will, M. B. had two legitimate
daughters, Mary and Ann, living, and one illegitimate, named
Elizabeth. Extrinsic evidence was held admissible to rebut the
claim of the last-mentioned, by showing that M. B. formerly had a
legitimate daughter named Elizabeth, who died some years before
the date of the will, and that the testator did not know of her death,
or of the birth of the illegitimate daughter.2

" The rule as to the reception of parol evidence to explain a
will," remarked Sir J. Romilly, M. B., in Stringer v. Gardiner,3
uis perfectly clear. In every case of ambiguity, whether latent or
patent, parol evidence is admissible to show the state of the testator's
family or property; but the cases in which parol evidence is admissi-
ble to show the person intended to be designated by the testator, are
those cases of latent ambiguity, mentioned by Sir J. Wigram, where
there are two or more persons who answer other descriptions in the
will, each of whom, standing alone, would be entitled to take."

*It is true, moreover, that parol evidence must be admis- r*fn7~l
sible to some extent to determine the application of every
written instrument. It must, for instance, be received to show
what it is that corresponds with the description;4 and the admissi-
bility of such evidence for this purpose being conceded, it is only
going one step further to give parol evidence, as in the above in-
stances, of other extrinsic facts, which determine the application of
the instrument to one subject, rather than to others^ to which, on
the face of it, it might appear equally applicable.5

"Speaking philosophically," says Rolfe, B., "you must always

1 Judgm., Doe d. Gord v. Needs, 2 M. & W. 140 ; Lord Walpole v. Earl of
Cholmondeley, 7 T. R. 138.

2 Doe d. Thomas v. Benyon, 12 A. & E. 431 (40 E. C. L. R.) ; Doe d. Allen
v. Allen, Id. 451.

3 28 L. J. Chanc. 758.

4 Macdonald v. Longbottom, 1 E. & E. 977 (102 E. C. L. R.).
6 2 Phill. Ev., 9th ed., 297, 329.

31

617 broom's legal maxims.

look beyond the instrument itself to some extent, in order to ascer-
tain who is meant ; for instance, you must look to names and
places;"1 and, "in every specific devise or bequest it is clearly
competent and necessary to inquire as to the thing specifically
devised or bequeathed."2 Thus, "parol evidence is always neces-
sary to show that the party sued is the person making the contract
and bound by it."3 So, if the word Blackacre be used in a will,
there must be evidence to show that the field in question is Black-
acre.4 Where there is a devise of an estate purchased of A., or of
a farm in the occupation of B., it must be shown, by extrinsic evi-
dence, what estate it was that A. purchased, or what farm was in
r*fi181 ^e 0CCUPati°n °f B., before it can be *known what is de-
vised.5 So, whether parcel or not of the thing demised is
always matter of evidence.6 In these and similar cases, the instru-
ment appears on the face of it to be perfectly intelligible, and free
from ambiguity, yet extrinsic evidence must, nevertheless, be
received, for the purpose of showing what the instrument refers to.7
The rule as to ambiguitas latens, above briefly stated, may like-
wise be applied to mercantile instruments, with a view to ascertain
the intention, though not to vary the contract of the parties.8 And
although, generally speaking, the construction of a written contract
is for the Court, when it is showrn by extrinsic evidence that the
terms of the contract are ambiguous, evidence is admissible to

1 13 M. & W. 207.

2 Per Lord Cottenham, C, Shuttleworth v. Greaves, 4 My. & Cr. 38.

3 Judgm., Trueman v. Loder, 11 A. & E. 594 (39 E. C. L. R.). See Steb-
bing v. Spicer, 8 C. B. 827.

« Doe d. Preedy v. Holtom, 4 A. & E. 82 (31 E. C. L. R.) ; recognised Doe
d. Norton v. Webster, 12 A. & E. 450 (40 E. C. L. R.) ; cited, per Williams,
J., Doe d. Hemming v. Willetts, 7 C. B. 715 (62 E. C. L. R.) ; per Bovill, C.
J., Horsey v. Graham, L. R. 5 C. P. 14.

6 Per Sir Wm. Grant, M. R., 1 Mer. 653.

« Per Buller, J., Doe d. Freeland v. Burt, 1 T. R. 701, 704 ; Paddock v.
Fradley, 1 Cr. & J. 90 ; Doe d. Beach v. Earl of Jersey, 3 B. & C. 870 (10 E.
C. L. R.) ; Lyle v. Richards, L. R. 1 H. L. 222.

7 Per Patteson, J., and Coleridge, J., 4 A. & E. 81, 82 (31 E. C. L. R.).
See Doe d. Norton v. Webster, 12 A. & E. 442 (40 E. C. L. R.). Evidence of
co-existing circumstances admitted to explain the condition of a bond : Monte-
fiore v. Lloyd, 15 C. B. N. S. 203 (109 E. C. L. R.). Evidence admitted to
identify pauper with person described in indenture of apprenticeship: Reg. v.
Wooldale, 6 Q. B. 549 (51 E. C. L. R.).

8 Smith v. Jeffryes, 15 M. & W. 561.

INTERPRETATION OF DEEDS, ETC. 618

explain the ambiguity, and to show what the parties really meant.
a Where there is an election between two meanings, it is, properly,
a question for the jury/'1

Where, as we shall hereafter see, a contract is entered into with
reference to a known and recognised use of particular terms em-
ployed by the contracting parties, or with reference to a known and
established usage, evidence may be given to show the meaning of
those terms, or the *nature of that usage, amongst persons r*fi-icn
conversant with the particular branch of commerce or busi-
ness to which they relate. But cases of this latter class more pro-
perly fall within a branch of the law of evidence which we shall
separately consider, viz., the applicability of usage and custom to
the explanation of written instruments.2

Quoties in Verbis nulla est Ambiguitas, ibi nulla Expo-
sitio contra Verba fienda est.

(Wing. Max. p. 24.)

In the absence of ambiguity, no exposition shall be made which is opposed to
the express words of the instrument.

It seems desirable before proceeding with the consideration of
some additional maxims relative to the subject of ambiguity in
written instruments, to take this opportunity of observing that,
according to the rule which stands at the head of these remarks, it
is not allowable to interpret what has no need of interpretation,
and that the law will not make an exposition against the express
words and intent of the parties.3 Hence, if I grant to you that
you and your heirs, or the heirs of your body, shall distrain for a
rent of forty shillings within my manor of S., this, by construction
of law, ut res magis valeat, shall amount to a grant of rent out of

1 Per Maule, J., Smith v. Thompson, 8 C. B. 59 (65 E. C. L. R.). As to
ambiguous contracts, see also Boden v. French, 10 C. B. 886, 889 (70 E. C.
L. R.).

2 See the remarks on the maxim, Optimus interpres rerum unus—post,
Chap. X.

3 Co. Litt. 147 a; 7 Rep. 103; per Kelynge, C. J., Lanyon v. Carne, 2
Saunds. R. 167. See Jesse v. Roy, 1 Cr., M. & R. 316.

619 broom's legal maxims.

my manor of S., in fee-simple or fee-tail; for the grant would be of
little force or eifect if the grantee had but a bare distress and no
rent. But if a rent of forty shillings be *granted out of
J the manor D., with a right to distrain if such rent be in
arrear in the manor of S., this will not amount to a grant of rent
out of the manor of S., for the rent is granted to be issuing out of
the manor of D., and the parties have expressly limited out of
what land the rent shall issue, and upon what land the distress
shall be taken.1

It may, moreover, be laid down as a general rule, applicable as
well to cases in which a written instrument is required by law, as
to those in which it is not, that where such instrument appears on'
the face of it to be complete, parol evidence is inadmissible to vary
or contradict the agreement, ex. gr., to show that the word "and"
was inserted in it by mistake :2 in such cases the Court will look to
the written contract, in order to ascertain the meaning of the
parties, and will not admit the introduction of parol evidence, to
show that the agreement was in reality different from that which it
purports to be.3 Although, moreover, it has been said that a
somewhat strained interpretation of an instrument may be admis-
sible where an absurdity would otherwise ensue, yet if the intention
of the parties is not clear and plain, but in equilibrio, the words
shall receive their more natural and proper construction.4

The general rule, observes a learned judge, I take to be, that
where the words of any written instrument are free from ambiguity
in themselves, and where external circumstances do not create any
doubt or difficulty as to the proper application of those words to
r*P91~l c^a^mants under the ^instrument, or the subject-matter to
which the instrument relates, such instrument is always to
be construed according to the strict plain common meaning of the
words themselves ; and that, in such cases, evidence dehors the in-
strument, for the purpose of explaining it according to the surmised
or alleged intention of the parties to the instrument, is utterly in-

1 Co. Litt. 147 a.

2 Hitchin v. Groom, 5 C. B. 515 (57 E. C. L. R.).

3 Per Bayley and Holroyd, JJ., Williams v. Jones, 5 B. & C. 108 (11 E. C.
L. R.) ; Spartali v. Benecke, 10 C. B. 212 (70 E. C. L. R.).

4 Earl of Bath's Case, Cart. R. 108, 109, adopted 1 Fonbl. Eq., 5th ed.,
445 n.

INTERPRETATION OF DEEDS, ETC. 021

admissible.1 The true interpretation, however, of every instrument
being manifestly that which will make the instrument speak the
intention of the party at the time it was made, it has always been
considered as an exception from — or, perhaps, to speak more pre-
cisely, not so much an exception from, as a corollary to — the
general rule above stated, that, where any doubt arises upon the
true sense and meaning of the words themselves, or any difficulty
as to their application under the surrounding circumstances, the
sense and meaning of the language may be investigated and ascer-
tained by evidence dehors the instrument itself; for both reason
and common sense agree that by no other means can the language
of the instrument be made to speak the real mind of the party.2
"You may," observes Coleridge, J.,3 with reference to a guarantee
under the old law,4 "explain the meaning of the words used by any
legal means. Of such legal means, one is to look at the situation
of the parties. Till you have done that, it is a fallacy to say that
the language *is ambiguous : that which ends in certainty r*£09-|
is not ambiguous."

The following cases may be mentioned as falling within the scope
of the preceding remarks : 1st, where the instrument is in a foreign
language, in which case the jury must ascertain the meaning of the
terms upon the evidence of persons skilled in the particular lan-
guage;5 2dly, ancient words may be explained by contemporaneous
usage; 3dly, if the instrument be a mercantile contract, the mean-
ing of the terms must be ascertained by the jury according to their
acceptation amongst merchants ; 4thly, if the terms are technical
terms of art, their meaning must, in like manner, be ascertained by
the evidence of persons skilled in the art to which they refer. In
such cases, the Court may at once determine, upon the inspection of
the instrument, that it belongs to the province of the jury to ascer-

1 Per Tindal, C. J., Shore v. Wilson, 5 Scott N. R. 1037. For an instance
of the application of this rule to a will, see Doe d. Oxenden v. Chichester, 3
Taunt. 147 ; s. c. (affirmed in error), 4 Dow 65 ; cited and explained, Wigram
Extrin. Evid., 3d ed., 77.

2 Per Tindal, C. J., 5 Scott N. R. 1037, 1038 ; Montefiore v Lloyd, 15 C. B.
N. S. 203 ( 109 E. C. L. R.).

3 Bainbridge v. Wade, 16 Q. B. 100 (71 E. C. L. R.).

4 See, now, stat. 19 & 20 Vict. c. 97, s. 3.
6 As to this proposition, ante, p. 107.

622 broom's legal maxims.

tain the meaning of the words, and, therefore, that, in the inquiry,
extrinsic evidence to some extent must be admissible.1

It may be scarcely necessary to observe, that the maxim under
consideration applies equally to the interpretation of an Act of
Parliament ; the general rule being, that a verbis legis non est rece-
dendum.2 A court of law will not make any interpretation con-
trary to the express letter of the statute ; for nothing can so well
explain the meaning of the makers of the Act' as their own direct
words, since index animi sermo, and maledicta expositio quce cor-
r*fi931 rumptt textum ;3 it would be dangerous to give scope for
*making a construction in any case against the express
words, where the meaning of the makers is not opposed to them,
and when no inconvenience will follow from a literal interpretation.4
"Nothing," observed Lord Denman, C. J., in a recent case,5 "is
more unfortunate than a disturbance of the plain language of the
legislature, by the attempt to use equivalent terms."

Certum est quod certum reddi potest.

(Noy Max., 9th ed., 265.)
That is sufficiently certain which can be made certain.

The above maxim, which sets forth a rule of logic as well as of
law, is peculiarly applicable in construing a written instrument.
For instance, although every estate for years must have a certain
beginning and a certain end, "albeit there appear no certainty of
years in the lease, yet, if by reference to a certainty it may be
made certain, it sufficeth;"6 and, therefore, if a man make a lease
to another for so many years as J. S. shall name, this is a good
lease for years; for though it is at present uncertain, yet when

1 Per Erskine, J., 5 Scott N. 11. 988 ; per Parke, B., Clift v. Schwabe, 3 C.
B. 469, 470 (54 E. C. L. R.). As to the construction of a settlement in
equity, see per Lord Campbell, Evans v. Scott, 1 II. L. Cas. 66.

2 5 Rep. 119 ; cited, Wing. Max., p. 25.

5 4 Rep. 35 ; 2 Rep. 24 ; 11 Rep. 34 ; Wing. Max., p. 26.

* Eldrich's Case, 5 Rep. 119 ; cited, arg. Gaunt v. Taylor, 3 Scott N. R. 709.

5 Everard v. Poppleton, 5 Q. B. 184 (48 E. C. L. R.) ; per Coltman, J.,
Gadsby v. Barrow, 8 Scott N. R. 804.

6 Co. Litt. 45 b.

INTERPRETATION OF DEEDS, ETC. 623 - ^

J. S. hath named the years, it is then reduced to a certainty. So,
if a parson makes a lease for more than twenty or more years, if
he shall so long live, or if he shall so long continue parson, it is
good, for there is a certain %period fixed, beyond which it cannot last,
though it may determine sooner on the death of the lessor, or his
ceasing to be parson.1

*It is true, said Lord Kenyon, C. J., that there must be r#R()11
a certainty in the lease as to the commencement and ■- J
duration of the term, but that certainty need not be ascertained at
the time; for if, in the fluxion of time, a day will arrive which will
make it certain, that is sufficient. As, if a lease be granted for
twenty-one years, after three lives in being, though it is uncertain
at first when that term will commence, because those lives are in
being, yet when they die it is reduced to a certainty, and Idcertum
est quod cerium reddi potest, and such terms are frequently created
for raising portions for younger children.2

Again, it is a rule of law, that, "no distress can be taken
for any services that are not put into certainty nor can be reduced
to any certainty, for Id certum est quod certum reddi potest ; "3 and,
accordingly, where land is demised at a rent which is capable of
being reduced to a certainty, the lessor will be entitled to distrain
for the same.4

In like manner, in the case of a feoffment, the office of the
premises of the deed is twofold: first, rightly to name the feoffor
and the feoffee; and secondly, to comprehend the certainty of the
lands or tenements to be conveyed by the feoffment; and this may
be done either by express words, or by words which may by reference
be reduced to a certainty, according to the principle, Certum est
quod certum reddi potest.5 So, a grant shall be void if it r*«ofn
*be totally uncertain ; but if the King's grant refers to

1 2 Com. by Broom & Hadley 279, 280 ; 6 Rep. 35; Co. Litt. 45 b.

2 Goodright d. Hall v. Richardson, 3 T. R. 463.

3 Co. Litt. 96 a, 142 a ; Parke v. Harris, 1 Salk. 262.

4 Daniel v. Gracie, 6 Q. B. 145 (51 E. C. L. R.). See Pollitt v. Forrest, 11
Q. B. 949 (63 E. C. L. R.).

6 Co. Litt. 6 a ; 4 Cruise Dig., 4th ed., 269. See also, Maugham v. Sharpe,
17 C. B. N. S. 443, 463 (112 E. C. L. R.).

The office of the habendum is to limit, explain, or qualify the words in the
premises : but if the words of the habendum are manifestly contradictory and
repugnant to those in the premises, they must be disregarded : Doe d. Timmis
v. Steele, 4 Q. B. 663 (45 E. C. L. R.).

625 broom's legal maxims.

another thing which is certain, it is sufficient; as, if he grant to a
city all liberties which London has, without saying what liberties
London has.1

An agreement in writing for the sale of a hou'se, did not by
description ascertain the particular house, but it referred to the
deeds as being in the possession of A. B., named in the agreement.
The Court held the agreement sufficiently certain, inasmuch as it
appeared upon the face of the agreement that the house referred to
was the house of which the deeds were in the possession of A. B.,
and, consequently, the house might easily be ascertained before the
Master, and Id certum est quod certum reddi potest.2,

A testator, having devised his estates in a particular way, directed
that a different disposition of them should take place uin case
certain contingent property and effects in expectancy shall fall in
and become vested interests to my children." The children, it
appeared, were entitled to no vested interest at the date of the
will; and the Court, in accordance with a rule which we have
already stated, refused to admit evidence offered for the purpose of
showing that the testator referred to expectations from particular
individuals, which had in fact subsequently been realized. The
Master of the Rolls, however, observed that if at the making of
the testator's will his children had been entitled to any contingent
interests, evidence would have been plainly admissible to ascertain
those interests; because the expression of contingency *had
L - J a definite legal meaning, and Id certum est quod certum
reddi potest; so that the evidence would not in that case have
added to the will, but would have explained it.3

Again, the word "certain" must, in a variety of cases, where a
contract is entered into for the sale of goods, refer to an indefinite
quantity at the time of the contract made, and must mean a quan-
tity which is to be ascertained according to the above maxim.4

And where the law requires a particular thing to be done, but
does not limit any period within which it must be done, the act
required must be done within a reasonable time; and a reason-
able time is capable of being ascertained by evidence, and, when

1 Com. Dig. " Grant" (E. 14), (G. 5) ; Finch Law 49.

2 Owen v. Thomas, 3 My. & K. 353.

3 King v. Badeley, 3 My. & K. 417, 425.

4 Per Lord Ellenborough, C. J., Wildmann v. Glossop, 1 B. & Aid. 12.

INTERPRETATION OF DEEDS, ETC. 626

ascertained, is as fixed and certain as if specified by Act of Parlia-
ment.1

Where it was awarded that the costs of certain actions should be
paid by the plaintiff and defendant in specified proportions, the
award was held to be sufficiently certain, since it would become so
upon taxation of costs by the proper officer.2

* Utile per inutile non vitiatur. [*627]

(3 Rep. 10.)
Surplusage does not vitiate that which in other respects is good and valid.

It is rule of extensive application with reference to the construc-
tion of written instruments, and in the science of pleading, that
matter which is mere surplusage may be rejected, and does not
vitiate the instrument or pleading in which it is found — Surplus-
agium non nocet3 is the maxim of our law.

Accordingly, where words of known signification are so placed
in the context of a deed that they make it repugnant and senseless,
they are to be rejected equally with words of no known significa-

1 Per Lcrd Ellenborough, C. J., Palmer v. Moxon, 2 M. & S. 50 (28 E. C.
L. R.).

2 Cargey v. Aitcheson, 2 B. & C. 170 (9 E. C. L. R.). See Pedley v. God-
dard, 7 T. R. 73 ; Wood v. Wilson, 2 Cr., M. & R. 241 ; Waddle v. Downman,
12 M. & W. 562; Smith v. Hartley, 10 C. B. 800, 805 (70 E. C. L. R.) ;
Graham v. Darcey, 6 C. B. 539 (60 E. C. L. R.) ; Holdsworth v. Barsham, 2

B. &S. 480 (110 E. C. L. R.).

The maxim supra was applied to a valuation in Gordon v. Whitehouse, 18

C. B. 747, 753 (86 E. C. L. R.), to an indenture of apprenticeship in Reg. v.
Wooldale, 6 Q. B. 549, 566 (51 E. C. L. R.). It may also be applicable in
determining whether an action of debt will lie under given circumstances ;
see Barber v. Butcher, 8 Q. B. 863, 870 (55 E. C. L. R.).

3 Branch Max., 5th ed., 216 ; Non solent quoz abundant vitiare scripturas,

D. 50. 17. 94.

'• Surplusage (in pleading) is something that is altogether foreign and inap-
plicable :" per Maule, J., Aldis v. Mason, 11 C. B. 139. See also as to sur-
plusage, Shep. Touch. 236 ; cited, per Williams, J., Janes v. Whitbread, 11
C. B. 412 (73 E. C. L. R.) ; Maclae v. Sutherland, 3 E. & B. 1, 33 (72 E. C.
L. R.), illustrates the maxim supra.

627 broom's legal maxims.

tion.1 It is also a rule in conveyancing, that, if an estate be
granted in any premises, and that grant is express and certain, the
habenduyn, although repugnant to the deed, shall not vitiate it. If,
however, the estate granted in the premises be not express, but
arise by implication of law, then a void habendum, or one differing
materially from the grant, may defeat it.2

r*fi*281 *^ cause and a^ matters of difference were referred to
the arbitration of three persons, the award of the three, or
of any two of them, to be final. The award purported on the face
of it to be made by all three, but was executed by two only of the
arbitrators, the third having refused to sign it when requested so to
do. This award was held to be good as the award of the two, for
the statement that the third party had concurred, might, it was
observed, be treated as mere surplusage, the substance of the aver-
ment being that two of the arbitrators had made the award.3

As a further instance of the application of the above rule, we
may observe, that, if a valid contract should be made between A.
and B., that A. should perform a journey on B.'s lawful business,
and another and distinct contract should subsequently be entered
into on the same day, that on the journey A. should commit a
crime, the latter contract would of course be void, but it would not
dissolve the prior agreement, nor exonerate the parties from their
liabilities under it. To such a case, then, it has been said that the
maxim would apply, Utile per inutile non vitiatur.*

The above maxim, however, applies peculiarly to pleading ; in
which it is a rule, that matter immaterial cannot operate to make a
pleading double, and that mere surplusage does not vitiate a plea,

1 Vaugh. R. 176. See Whittome v. Lamb, 12 M. & W. 813.

2 Arg., Goodtitle v. Gibbs, 5 B. & C. 712, 713 (11 E. C. L. R.), and cases
there cited; Shep. Touch. 112, 113; Hobart 171. See also instances of the
application of this rule to an order of removal, Reg. v. Rotherham, 3 Q. B.
776, 782 (43 E. C. L. R.) ; Reg. v. Silkstone, 2 Q. B. 522 (42 E. C. L. R.) ; to
an order under 2 & 3 Vict. c. 85, s. 1, Reg. v. Goodall, 2 Dowl. P. C. N. S.
382 ; Reg. v. Oxley, 6 Q. B. 256 (51 E. C. L. R.) ; to a conviction, Chaney v.
Payne, 1 Q. B. 722 (41 E. C. L. R.) ; to a notice of objection under 6 & 7
Vict. c. 18, Allen, app., House, resp., 8 Scott N. R. 987 ; cited, arg., 2 C. B.
9 (52 E. C. L. R.) ; to an information, A.-G. v. Clerc, 12 M. & W. 640.

3 White v. Sharp, 12 M. & W. 712. See also per Alderson, B., Wynne v.
Edwards, 12 M. & W. 712 ; Harlow v. Read, 1 C. B. 733 (50 E. C. L. R.).

« See 18 Johns. (U. S.) R. 93, 94.

INTERPRETATION OF DEEDS, ETC. 629

and may be rejected.1 *And, if an affidavit of debt allege r*goQl
several distinct and separate causes of action for separate and
distinct sums, some of which are well and others ill stated, the affi-
davit is not therefore bad altogether.2 And although the issue to
be tried by the jury ought to be material, single and specific, yet a
party does not make an issue upon the substantial matter bad,
merely because he includes in it " something of total surplusage
and immateriality."3

Lastly, with respect to an indictment, it is laid down, that,
although an averment, which is altogether superfluous, may here be
rejected as surplusage ;4 yet, if an averment be part of the descrip-
tion of the offence, or be embodied by reference in such description,
it cannot be so rejected, and its introduction may, unless an amend-
ment be permitted, be fatal.5

Falsa Demonstrate non nocet.

(6 T. R. 676.)

Mere false description does not make an instrument inoperative.

Falsa demonstratio may be defined to be an erroneous description
of a person or thing in a written instrument ;6 and the above rule

1 Co. Litt. 303 b; Steph. PI., 6th ed., 310, 341.

Ring v. Roxburgh, 2 Cr. & J. 418 (cited per Rolfe, B., Duke v. Forbes, 1
Exch. 356), is an instance of the rejection of surplusage in a declaration.

A videlicet cannot make that immaterial which is in its nature material,
though the omission of it may render that material which would otherwise
not be so. For instance, a videlicet could not make the sum in a bill of
exchange immaterial, so as to cure what would otherwise be a variance : per
Patteson, J., Cooper v. Blick, 2 Q. B. 918 (42 E. C. L. R.) ; Harris v. Phillips,
10 C. B. 650, 656 (70 E. C. L. R.) ; per Coltman, J., 6 Scott N. R. 892; per
Tindal, C. J., 1 C. B. 164 (50 E. C. L. R.) ; Drew v. Avery, 13 M. & W. 402 ;
Nash v. Brown, 6 C. B. 584 (60 E. C. L. R.) ; Whitaker v. Harrold, 11 Q. B.
163 (63 E. C. L R.) ; cited per Parke, B., Graham v. Gibson, 4 Exch. 771;
Ryalls v. Reg., 11 Q. B. 781 (63 E. C. L. R.).

2 Cunliffe v. Maltass, 7 C. B. 695 (62 E. C. L. R.). See Hargreaves v.
Hayes, 5 E. & B. 272 (85 E. C. L. R.).

3 Per Tindal, C. J., Palmer v. Gooden, 8 M. & W. 894.
* See Reg. v. Parker, L. R. 1 C. C. 225.

6 Dickins. Quart. Sess., 5th ed., by Mr. Serjt. Talfourd, 175.

6 See Bell, Diet, and Dig. of Scotch Law 420 ; Spooner v. Payne, 4 C. B.

630 broom's legal maxims.

r*f)3ffl resPect^ng ft maJ De tnus *stated and qualified : as soon as
there is an adequate and sufficient definition, with conve-
nient certainty, of what is intended to pass by the particular in-
strument, a subsequent erroneous addition will not vitiate it i1 quie-
quid demonstrates rei additur satis demonstrate frustra est.2 The
characteristic of cases within the principal maxim being that " the
description so far as it is false applies to no subject at all,3 and so
far as it is true applies to one only." " I have always understood,"
observes Lord Kenyon, speaking with reference to a will,4 " that
such falsa demonstratio should be superadded to that which was suf-
ficiently certain before, there must constat de persond ; and if to
that an inapt description be added, though false, it will not avoid
the devise." "I agree," observes Patteson, J.,5 " to the doctrine
that Falsa demonstratio non nocet : but that is only wher'e the words
of the devise, exclusive of that falsa demonstratio, are sufficient of
themselves to describe the property intended to be devised ; refer-
ence being had, if necessary, to the situation of the premises, to the
names by which they have been known, or to other circumstances
r*fi3n Pr0Perty ^pointing to the meaning of the description in the
will." And again, the maxim as to falsa demonstratio,
says Lord Westbury,6 "is applicable to a case where some subject
matter is devised as a whole under a denomination, which is appli-
cable to the entire land, and then the words of description that
include and denote the entire subject matter are followed by words

328, 330 (56 E. C. L. R.) ; Robinson v. Marq. of Bristol, 11 C. B. 208 (73 E.
C. L. R.) ; s. c. (in error), Id. 241.

1 Per Parke, B., Llewellyn v. Earl of Jersey, 11 M. & W. 189 ; recognised
in Barton v. Dawes, 10 C. B. 261, 266 (70 E. C. L. R.) ; judgm., Morrell v.
Fisher, 4 Exch. 604; recognised in Wood v. Rowcliffe, 6 Exch. 407, 410 ; Har-
rison v. Hyde, 4 H. & N. 805 ; Josh v. Josh, 5 C. B. N. S. 454 (94 E. C. L.
R.); Com. Dig., "Fait" (E. 4).

2D. 33.4. 1, I 8.

3 Judgm., Webber o. Stanley, 16 C. B. N. S. 755 (111 E. C. L. R.).

4 Thomas v. Thomas, 6 T. R. 676. See also Mosley v. Massey, 8 East 149 ;
per Parke, J., Doe d. Smith v. Galloway, 5 B. & Ad. 51 (27 E. C. L. R.) : fol-
lowed in Dyne v. Nutley, 14 C. B. 122 (78 E. C. L. R) ; per Littledale, J., Doe
d. Ashforth v. Bower, 3 B. & Ad. 459 (23 E. C. L. R) ; Gynes v. Kemsley, 1
Freem. 293 ; Hobart 32, 171 ; Greene v. Armstead, Id. 65 ; Vin. Abr., " Devise"
(T. b), pi. 4.

■ Doe d. Hubbard v. Hubbard, 15 Q. B. 241 (69 E. C. L. R.).
6 West v. Lawday, 11 H. L. Cas. 384.

INTERPRETATION OP DEEDS, ETC. 631

which are added on the principle of enumeration, but do not com-
pletely enumerate and exhaust all the particulars which are com-
prehended and included within the antecedent universal or generic
denomination. Then the ordinary principle and rule of law which
is perfectly consistent with common sense and reason is this : that
the entirety which has been expressly and definitely given, shall
not be prejudiced by an imperfect and inaccurate enumeration of
the particulars of the specific gift."1

The foregoing observations are, in the main, applicable not only
to wills, but to other instruments ;2 so that the characteristic of
cases strictly within the above rule is this, that the description, so
far as it is false, applies to no subject, and, so far as it is true, it
applies to one subject only ; and the Court, in these cases, rejects
no words but those which are shown to have no application to any
subject.3

Where accordingly a question involving the legal doc-
trine *now before us arises upon a will, we must inquire, *- J
is there a devise of a thing certain ? If there be, the addition of
an untrue circumstance will not vitiate the devise. ''Another cer-
tainty put to another thing, which was of certainty enough before,
is of no manner of effect, and there is a diversity where a certainty
is added to a thing that is uncertain, and where to a thing certain ;
as if I release all my lands in Dale, which I have by descent on
the part of my father, and I have lands in Dale on the part of my
mother, but no lands by descent on the part of my father, the re-
lease is void, and so the words of certainty added to the general
words, have effect ; but, if the release had been of Whiteacre in
Dale, which I have by descent on the part of my father, and it was
not so, the release would be valid, for this thing was certainly
enough expressed by the first words, and the last words were
superfluous and of no effect."4 That is to say, if the thing released

1 See also per Lefroy, C. J., Roe v. Lidwell, 11 Ir. C. L. R. 326, cited arg.,
Skull v. Glenister, 16 C. B. N. S 89 (111 E. C. L. R.).

2 London Grand Junction R. C. v. Freeman, 2 Scott N. R. 705, 748. See
Reg. v. Wilcock, 7 Q. B. 317 (53 E. C. L. R.) ; Jack v. M'Intyre, 12 CI. &
Fin. 151 ; Omerod v. Chadwick, 16 M. & W. 367 ; followed, per Wightnian, J.,
Reg. v. Stretfield, 32 L. J. M. C. 236.

3 See Wigram, Ex. Ev., 3d ed., 142, 165 ; judgra., Morrell v. Fisher, 4 Exch.
604; Mann v. Mann, 14 Johns. (U. S.) R. 1.

4 Plowd. 191 ; cited and adopted judgm., Nightingall u. Smith, 1 Exch. 886 ;

632 broom's legal maxims.

or devised has substance and certainty enough, the untrue descrip-
tion is of no avail.1

In the case of Selwood v. Mildmay,2 the testator devised to his
wife part of his stock in the 41. per Cent. Annuities of the Bank
of England, and it was shown by parol evidence, that, at the time
he made his will, he had no stock in the 41. per Cent. Annuities,
but that he had had some, which he had sold out, and of which he
had invested the produce in Long Annuities : it was held in this
l~*fi3Tl case ^at ^e De(luest was> *n substance, a bequest of *stock,
using the words as a denomination, not as the identical
corpus of the stock ; and as none could be found to answer the de-
scription but the Long Annuities, it was decided that such stock
should pass, rather than the will be altogether inoperative.

A testatrix, by her will, bequeathed several legacies to different
individuals, of SI. per Cent. Consols standing in her name in the
Bank of England; but, at the date of her will, as well as at her
death, she possessed no such stock, nor stock of any kind whatever.
It was held that the ambiguity in this case being latent, evidence
was admissible to show how the mistake of the testatrix arose, and
to discover her intention.3

But where a testatrix died possessed of property in Consols, Re-
duced Annuities, and Bank Stock, and by her will bequeathed
u the whole of my fortune now standing in the Funds to E. S. :"
Held, that the Bank Stock did not pass.4

On the same principle, in the case of a lease of a portion of a
park, described as being in the occupation of S., and lying within
certain specified abuttals, with all houses, &c, belonging thereto,
and "which are now in the occupation of S.," it was held, that a
house, situated within the abuttals, but not in the occupation of S.,
would pass.5 So, where an estate is devised, called A., and de-

and, per Parke, B., Morrell v. Fisher, 4 Exch. 599. And, as illustrating the
passage above cited, compare Doe d. Hubbard v. Hubbard, 15 Q. B. 227 (69
E. C. L. R.) ; with Doe d. Compton v. Carpenter, 16 Id. 181 (71 E. C. L. R.).

* Judgm., 1 Exch. 887. 2 3 Ves. jun. 306.

3 Lindgren v. Lindgren, 9 Beav. 358 ; citing Selwood v. Mildmay, 3 Ves.
306; Miller v. Travers, 8 Bing. 244; and Doe d. Hiscocks v. Hiscocks, 5 M.
& W. 363.

i Slingsby v. Grainger, 7 H. L. Cas. 273.

6 Doe d. Smith v. Galloway, 5 B. & Ad. 43 (27 E. C. L. R.) ; Beaumont v.
Field, 1 B. & Aid. 247 ; 3 Preston Abstr. Tit. 206 ; Doe d. Roberts v. Parry,
13 M. & W. 356.

INTERPRETATION OF DEEDS, ETC. 633

scribed as in the occupation of B., and it was found that, though
there is an estate called A., yet the whole is not *in B.'s r*fiQj.-i
occupation ;l or, where an estate is devised to a person
whose surname or Christian name is mistaken, or whose description
is imperfect or inaccurate: in these cases parol evidence is admis-
sible to show what estate was intended to pass, and who was the de-
visee intended to take, provided there is sufficient indication of
intention appearing on the face of the will to justify the application
of the evidence.2 Thus, a devise of all the testator's freehold
houses in Aldersgate Street, where, in fact, he had no freehold, but
had leasehold houses, was held to pass the latter, the word " free-
hold " being rejected;3 the rule being, that, where any property
described in a will is sufficiently ascertained by the description, it
passes under the devise, although all the particulars stated in the
will with reference to it may not be true.4 In other words, nil
faeit error nominis cum de corpore vel persond constat.5 " It is fit,
and therefore required," observes Mr. Preston,6 "that things
should be described by their proper names ; but, though this be the
general rule, it admits of many exceptions, for things may pass
under any denomination by which they have been usually distin-
guished."

In a modern case,7 where property was devised to the second son
of Edward W., of L., this devise was held, *upon the con- p^oe-i
text of the will, and upon extrinsic evidence as to the state
of the W. family, and the degree of the testator's acquaintance
with the different members of it, to mean a devise to the second son
of Joseph W., of L., although it appeared that there was in
fact a person named Edward Joseph W., the eldest son of Joseph

1 Good title v. Southern, 1 M. & S. 299 (28 E. C. L. R.).

2 Judgm., Miller v. Travers, 8 Bing. 248 (21 E. C. L. R.) ; Doe d. Hiscocks
v. Hiscocks, 5 M. & W. 363 ; Rishton v. Cobb, 5 My. & Cr. 145.

* Day v. Trig, 1 P. Wms. 286; Doe d. Dunning v. Cranstoun, 7 M. & W. 1.
See Parker v. Marchant, 6 Scott N. R. 485 ; Goodman v. Edwards, 2 My. &
K. 759 ; Hobson v. Blackburn. 1 My. & K. 571.

4 Per Parke, B., Doe d. Dunning v. Cranstoun, 7 M. & W. 10 ; Newton v.
Lucas, 1 My. & Cr. 391.

6 See Janes v. Whitbread, 11 C. B. 406 (73 E. C. L. R.).

• 3 Prest. Abst. Tit. 206 ; 6 Rep. 66.

7 Blundell v. Gladstone, 1 Phil. 279 j s. c, nom. Lord Camoys v. Blundell,
1 H. L. Cas. 778.

635 broom's legal maxims.

W., who resided at L., and who usually went by the name of
Edward only; and it was remarked, that, according to the general
rule of law and of construction, if there had been two persons each
fully and accurately answering the whole description, evidence
might be received, or arguments from the language of the will, and
from circumstances, might be adduced to show to which of those
persons the will applied; but that where one person, and one only,
fully and accurately answers the whole description, the Court
is bound to apply the will to that person. It was, however, further
observed, that an exception would occur in applying the above rule,
where it would lead to a construction of a devise manifestly con-
trary to what was the intention of the testator, as expressed by
his will, and that the rule must be rejected as inapplicable to a
case in which it would defeat instead of promoting the object for
which all rules of construction have been framed.1

In accordance with the spirit of the maxim under consideration,
where a judge's order for the admission of documents in evidence
referred to a ;' document mentioned in a certain notice served by
the defendant's attorney or agent, dated the 4th day of March,
1845," and the notice produced at the trial was dated the 1st of
March, but the plaintiff's attorney stated that it was the only notice
r*fi3fTI *served m tne cause, the judge at the trial allowed the
document to be read; and the Court held that it was
admissible, on the ground that, as only one notice had been served,
the misdescription was merely Falsa demonstratio qua? non nocet.2

But, although an averment to take away surplusage is good, yet
it is not so to increase that which is defective in the will of the testa-
tor;3 and, as already observed,4 tfyere "is a diversity where a
certainty is added to a thing which is uncertain, and where to a
thing certain."

In a leading case on this subject,5 testator devised all his freehold

1 1 Phil. R. 285. 286.

2 Brittleston v. Cooper, 14 M. & W. 399.

8 Per Anderson, C. J., Godbolt, R. 131, recognised 8 Bing. 253 (21 E. C. L.
R.) 5 per Lord Eldon, C, 6 Ves. Jun. 397.

4 Ante, p. 632. And see per Lord Ellenborough, C. J., Doe d. Harris v.
Greathed, 8 East 103 ; Hob. R. 172; Doe d. Renow v. Ashley, 10 Q. B. 663
(59 E. C. L. R.).

6 Miller v. Travers, 8 Bing. 244 (21 E. C. L. R.), and the observations on

INTERPRETATION OF. DEEDS, ETC. 636

and real estates in the county of L. and city of L. It appeared
that he had no estates in the county of L., — a small estate in the
city of L., inadequate to meet the charges in the will, — and estates
in the county of C, not mentioned in the will. It was held, that
parol evidence was inadmissible to show the testator's intention that
his real estates in the county of C. should pass by his will. For
it was observed, that this would be not merely calling in the aid of
extrinsic evidence to apply the intention of the testator, as it was
to be collected from the will itself, to the existing state of his
property: it would be calling in aid extrinsic evidence to introduce
into the will an intention not apparent upon the face of it. It
would be not simply removing a difficulty arising from a defective
or mistaken description, it would be *making the will speak r^aon-i
' upon a subject on which it was altogether silent, and would
be the same thing in effect as the filling up a blank which the testa-
tor might have left in his will : it would amount, in short, by the
admission of parol evidence, to the making of a new devise for the
testator, which he was supposed to have omitted.1 If, then, with
all the light which can be thrown upon the instrument by evidence
as to the meaning of the description, there appears to be no person
or thing answering in any respect thereto, it seems, that, to admit
evidence of a different description being intended to be used by the
writer, would be to admit evidence for the substitution of one person
or thing for another, in violation of the rule, that an averment is
not good to increase that which is defective in a written instru-
ment;2 and consequently the instrument, not admitting of explana-
tion, would be void.3

Included in the maxim as to falsa demonstration is the rule laid
down by Lord Bacon in these words : Proesentia corporis tollit erro-
rem nominis, et Veritas nominis tollit errorem demonstrations ;4 and

this decision by Sir James Wigram, in the treatise already referred to, and,
per Lord Brougham, Mostyn v. Mostyn, 5 H. L. Cas. 168.

1 8 Bing. 249, 250.

2 2 Phil. Evid., 8th ed., 715 et seq.

s Richardson v. Watson, 4 B. & Ad. 787, 796 (24 E. C. L. R.) ; Drake v.
Drake, 8 H. L. Cas. 172. See Doe d. Spencer v. Pedley, 1 M. & W. 662.

4 Bac. Max., reg. 24 ; 6 Rep. 66 ; 1 Lord Raym. 303 ; 6 T. R. 675; Doe v.
Huthwaite, 3 B. & Aid. 640 (5 E. C. L. R.) ; per Gibbs, C. J., s. c, 8 Taunt.
313 (4 E. C. L. R.); Nicoll v. Chambers, 11 C. B. 996 (73 E. C. L. R.), and
Hopkins v. Hitchcock, 14 C. B. N. S. 65, 73 (108 E. C. L. JR.), where there

32

638 broom's legal maxims.

ppooi which is thus illustrated *by him : — " If I give a horse to
J. D., when present, and say to him, 'J. S. take this,' it is
a good gift notwithstanding I call him by a wrong name. So, if I
say to a man, ' Here, I give you my ring with the ruby,' and deliver
it, and the ring is set with a diamond, and not a ruby, yet this is a
good gift. In like manner, if I grant my close, called ' Dale,' in
the parish of Hurst, in the county of Southampton, and the parish
extends also into the county of Berks, and the whole close of Dale
lies, in fact, in the last-mentioned county, yet this false addition
will not invalidate the grant.1 Moreover, where things are partic-
ularly described, as, ' My box of ivory lying in my study, sealed up
with my seal of arms,' ' My suit of arras, with the story of the Na-
tivity and Passion ;' inasmuch as of such things there can only be
a detailed and circumstantial description, so the precise truth of all
the recited circumstances is not required; but, in these cases, the
rule is, ex multitudine signorum colligitur identitas vera ; therefore,
though my box were not sealed, and though the arms had the story
of the Nativity, and not of the Passion embroidered upon it, yet, if
I had no other box and no other suit, the gifts would be valid, for
there is certainty sufficient, and the law does not expect a precise
description of such things as have no certain denomination. Where,
however, the description applies accurately to some portion only of
the subject-matter of the grant, but is false as to the residue, the
former part only will pass ; as, if I grant all my land to D., held
r*fiSQ1 ky *J* S., which I purchased of J. N., specified in a de-
mise to J. D., and I have land in D., to a part of which

was a misdescription of property in a contract of sale. As to the maxim
supra, see the remarks of Lord Brougham in Lord Camoys v. Blundell, 1 H.
L. Cas. 792, 793 ; Mostyn v. Mostyn, 5 II. L. Cas. 155 ; s. c, 3 De G., M. &
G. 140.

In Drake v. Drake, 8 II. L. Cas. 179, Lord Campbell, C, observes, "There
is a maxim that the name shall prevail against an error of demonstration .
but then you must first show that there is an error of demonstration, and
until you have shown that, the rule Veritas nominis tollit errorem demonstra.
tionis does not apply. I think that there is no presumption in favor of the
name more than of the demonstration."

The maxim supra was applied per Byles, J., Way v. Hearn, 13 C. B. N. S.
307 (106 E. C. L. R.).

1 See Anstee v. Nelms, 1 H. & N. 225 ; per Byles, J., Rand v. Green 9 C. B.
N. S. 477 (99 E. C. L. R.).

INTERPRETATION OF DEEDS, ETC. 639

the above description applies, and have also other lands in D., to
which it is in some respects inapplicable, this grant will not pass all
my land in D., but the former portion only."1 So, if a man grant
all his estate in his own occupation in the town of W., no estate can
pass except what is in his own occupation and is also situate in
that town.2

In a recent important case3 connected with criminal procedure
the maxim Prcesentia corporis tollit errorem nominis was judicially
applied, the facts being as under: — Preparatory to a trial for mur-
der, the name of A., a juror on the panel, was called, and B.,
another juror on the same panel, appeared, and by mistake an-
swered to the name of A., and was sworn as a juror. A conviction
ensued, which a majority of the Court for the Consideration of
Crown Cases Reserved held ought not to be set aside, one of the
learned Judges thus founding his opinion upon the maxim cited : —
" The mistake is not a mistake of the man, but only of his name.
The very man who, having been duly summoned, and being duly
qualified, looked upon the prisoner, and was corporeally presented
and shown to the prisoner for challenge, was sworn and acted as a
juryman. At the bottom the objection is but this, that the officer
of the Court, the juryman being present, called and addressed him
by a wrong name. Now, it is an old and rational maxim of law,
that where the party to a transaction, or the subject of a transac-
tion, are either of *them actually and corporeally present,
the calling of either by a wrong name is immaterial. Prce- *- -*
sentia corporis tollit errorem nominis. Lord Bacon, in his maxims,4
fully explains and copiously illustrates this rule of law and good
sense, and shows how it applies, not only to persons, but to things.
In this case, as soon as the prisoner omitted the challenge, and
thereby in effect said, * I do not object to the juryman there stand-
ing,' there arose a compact between the Crown and the prisoner
that the individual juryman there standing corporeally present
should try the case. It matters not, therefore, that some of the
accidents of that individual, such as his name, his address, his occu-
pation, should have been mistaken. Constat de corpore."

1 Bac. Works, vol. 4, pp. 73, 75, 77, 78 : Bac. Abr. " Grants" (II. 1) ; Toml.
Law Diet. " Gift;" .Noy Max., 9th ed., p. 50.

2 7 Johns. (U. S.) R. 224.

3 Reg. v. Mellor, 27 L. J. M. C. 121.

4 TJbi supra.

640 broom's legal maxims.

The rules, it has been remarked.1 which govern the construction
of grants have been settled with the greatest wisdom and accuracy.
Such effect is to be given to the instrument as will effectuate the
intention of the parties, if the words which they employ will admit
of it, ut res magis valeat quam pereat. Again, if there are certain
particulars once sufficiently ascertained which designate the thing
intended to be granted, the addition of a circumstance, false or
mistaken, will not frustrate the grant.2 But when the description
of the estate intended to be conveyed includes several particulars,
all of which are necessary to ascertain the estate to be conveyed,
no estate will pass except such as will agree with the description
in every particular.3

In Doe d. Gains v. Rouse,4 Lord Bacon's maxim *above
L J cited was felicitously applied. There the testator — having
a wife Mary, to whom he was married in 1834, and who survived
him — in 1840 went through the ceremony of marriage with a
woman whose Christian name was Caroline, and who continued to
reside with him as his wife to the time of his death, which took
place in 1845. Shortly before his decease the testator by his will de-
vised certain property to "my dear wife Caroline, her heirs, &c, abso-
lutely." It was held that Caroline took under this devise the property
in question. "The testator," observed Maule, J., "devises the pre-
mises in question to his dear wife Caroline. That is a devise to a
person by name, and one which appears to be that of the lessor of
the plaintiff. There is no competition with any one else of the
same name, to whom it can be suggested that the will intended to
refer. The only question is, whether the lessor of the plaintiff,
not being the lawful wife of the testator, properly fills the descrip-
tion of his 'dear wife Caroline.' Formerly the name was held to
be the important thing. This is shown by the 25th maxim of
Lord Bacon, to wbich I have before adverted : — ' Veritas nominis
tollit err or em demonstrationis. So, if I grant land, Episcopo nunc
Londinensi, qui me erudivit in pueritid ; this is a good grant,
although he never instructed me.' That rule has no doubt been
relaxed in modern times, and has given place to another, that the

1 Jackson v. Clark, 7 Johns. (U. S.) R. 223, 224 ; recognised 18 Id. 84.

2 Blayne v. Gold, Cro. Car. 447, 473, where the rule was applied to a
devise.

* 3 Atk. 9 j Dyer 50. * 5 C. B. 422 (57 E. C. L. R.).

INTERPRETATION OF DEEDS, ETC. 641 - k

construction of the devise is to be governed by the evident inten-
tion of the testator. There are cases in which the Courts have
gone some length in opposition to the actual words of the will ;
but always with a view to favoring the apparent or presumed in-
tention of the testator. Here, however, the struggle against the
old rule is not that the intention of the testator may be best
effectuated by a *departure from it, but to get rid of a de- r*pAo-i
vise to the person who was really intended to take. Here is
a person fitly named, and there can be no reasonable doubt that
she was the person intended. It being conceded that it was the
testator's intention that Caroline should have the property, and he
having mentioned her by an apt description, I see no ground for
holding that because the words ' my dear wife ' are not strictly
applicable to her, the intention of the testator should fail and the
property go to some one to whom he did not mean to give it.
Caroline was de facto the testator's wife ; and she lived with him
as such down to the time of his death. It is possible that the first
marriage may not have been a valid one. At all events, if Mary
was his lawful wife, all that can be. said is that the testator had
been guilty of bigamy. It is not the case of a description that is
altogether inapplicable to the party, but of a description that is in
a popular sense applicable. The competition is between one whom
the testator clearly did mean, and another whom it is equally clear
that he did not mean. Interpreting the language he has used in
its properand legitimate manner, and regard being had to the cir-
cumstances existing at the time of the execution of the will, there
can be no doubt that the intention of the testator is best effectuated
by holding that the lessor of the plaintiff is the person designated,
and that apt words have been used to convey the property in ques-
tion to her."

It is, lastly, a rule, which may be here noticed, that, Non accipi
debent verba in demonstrationem falsarn quo? competmit in limita-
tionem veram,1 — if it be doubtful upon the words, whether they
import a false Reference or description, or whether they r*«io-i
be words of restraint, limiting the generality of the former
name, the law will not intend error or falsehood2 — " where words
can be applied so as to operate on a subject-matter and limit the

1 Bac. Max., reg. 13.

2 Bac. Max. reg. 13, cited 8 East 104.

643 broom's legal maxims.

other terms employed in its description," or "where there is a
subject-matter to which they all apply, it is not possible to reject
any of those terms as a falsa demonstration1 If, therefore, "I
have some land wherein all these demonstrations are true, and
some wherein part of them are true and part false, then shall they
be intended words of true limitation, to pass only those lands
wherein all those circumstances are true;"2 and, if a man pass
lands, describing them by particular references, all of which refer-
ences are true, the Court cannot reject any one of them.3

Before concluding these remarks, it may be well to state shortly
the rules respecting ambiguity and falsa demonstration in connec-
tion with the exposition of wills, which seem to be applicable to
four classes of cases : —

1. Where the description of the thing devised, or«of the devisee,
is clear upon the face of the will, but, upon the death of the
testator, it is found that there is more than one estate or subject-
matter of devise, or more than one person whose description
follows out and fills the words used in the will; in this case parol

evidence is ^admissible to show what thing was intended
L J to pass, or who was intended to take.4

2. Where the description contained in the will of the thing
intended to be devised, or of the person who is intended to take, is
true in part, but not true in every particular: in which class of
cases parol evidence is admissible to show what estate was intended
to pass, and who was the devisee intended to take, provided there
is a sufficient indication of intention appearing on the face of the
will to justify the application of the evidence.5

3. A third class of cases may arise, in which a judge, knowing
aliunde for whom or for what an imperfect description was intended,
would discover a sufficient certainty to act upon; although, if
ignorant of the intention, he would be far from finding judicial

1 Per Willes, J., Smith v. Ridgway, L. R. 1 Ex. 332-3 ; s. c, Id. 46; Judgm.,
Webber v. Stanley, 16 C. B. N. S. 698, 752, et seq. (Ill E. C. L. R.).

2 Bac. Max., reg. 13, ad fnem; cited per Parke, J., Doe d. Ashforth v.
Bower, 3 B. & Ad. 459, 460 (23 E. C. L. R.) ; Doe d. Chichester v. Oxenden,
3 Taunt. 147; judgm., Morrell v. Fisher, 4 Exch. 604; per Willes, J., Josh v.
Josh, 5 C. B. N. S. 463 (94 E. C. L. R.).

3 Per Le Blanc, J., Doe v. Lyford, 4 M. & S. 555 (30 E. C. L. R.).
«8Bing. 248 (21 E. C. L. R.).

*Id.

INTERPRETATION OF DEEDS, ETC. 644

certainty in the words of the devise; and here it would seem that
evidence of intention would not be admissible, the description
being, as it stands, so imperfect as to be useless, unless aided
thereby.1

4. It may be laid down as a true proposition, which is indeed
included within that secondly above given, that, if the description
of the person or thing be wholly inapplicable to the subject
intended or said to be intended by it, evidence is inadmissible to
prove whom or what the testator really intended to describe.2

Lastly, we may observe that the maxim, Falsa demonstratio non

nocet, which we have been considering, obtained in the Roman

law;3 for we find it laid down *in the Institutes, that an -..•„.

I 6451
error in the proper name or in the surname of the legatee L J

should not make the legacy void, provided it could be understood
from the will what person was intended to be benefited thereby.
Si quidern in nomine, cognomine, prainomine legatarii testator erra-
verit, cum de persond constat, nihilominus valet legatum,* So, it
was a rule akin to the preceding, that falsd demonstration legatum
non perimi,5 as if the testator bequeathed his bondman, Stichus,
whom he bought of Titius, whereas Stichus had been given to him
or purchased by him of some other person ;6 in such a case the mis-
description would not avoid the bequest.7

It is evident that the maxims above cited, and others to a simi-
lar purport which occur both.in the civil law and in our own re-
ports, are, in fact, deducible from those very general principles
with the consideration of which we commenced this chapter —
Benigne faciendoe sunt interpretations, et verba intentioni non e
contra debent inservire.8

1 See this subject considered, Wigram Extrin. Ev., 3d ed., 166, 167.

2 Wigram Extrin. Ev., 3d ed., 163.

3 See Phillimore Roman Law 35.

* I. 2. 20. 29 ; compare D. 30. 1. 4 ; also 2 Domat, Bk. 2, tit. 1, s. 6, \ 10,
19; Id. s. 8, I 11.

6 I. 2. 20. 30. See Whitfield v. Clemment, 1 Mer. 402.

6 I. 2. 20. 30. 7 Id. ; Wood Inst., 3d ed., 165.

8 It may probably be unnecessary to remind the reader that the cases
decided with reference to the rule of construction considered in the preceding
pages are exceedingly numerous, and that such only have been noticed as
seemed peculiarly adapted to the purposes of illustration. A similar remark
is equally applicable 'to the other maxims commented on this chapter.

646 broom's legal maxims.

* Verba generalia restringuntur ad Habilitatem
■- -* Rei vel Personam.

(Bac. Mac, reg. 10.)

General words may be aptly restrained according to the subject-matter or per-
sons to which they relate.1

"It is a rule," observes Lord Bacon,2 "that the king's grant
shall not be taken or construed to a special intent. It is not so
with the grants of a common person, for they shall be extended as
well to a foreign intent as to a common intent, but yet with this
exception, that they shall never be taken to an impertinent or re-
pugnant intent; for all words, whether they be in deeds or statutes,
or otherwise, if they be general, and not express and precise, shall
be restrained unto the fitness of the matter and the person."3

Thus, if I grant common "in all my lands" in D., if I have in
D. both open grounds and several, it shall not be stretched to com-
mon in my several grounds, much less in my garden or orchard.
So, if I grant to J. S. an annuity of 10?. a year, "pro concilio,
I~*fi47~] imPenso et *iinpendeitdo" (for past and future council), if
J. S. be a physician, this shall be understood of his advice
in physic, and, if he be a lawyer, of his counsel in legal matters.
And in accordance with the same principle a right of common of

1 Per Willes, J., Moore v. Rawlins, 6 C. B. N. S. 320 (95 E. C. L. R.) ;
citing Payler v. Homersham, 4 M. & S. 423* (30 E. C. L. R.) ; and in Chorlton
v. Lings, L. R. 4 C. P. 387.

General words may be controlled by the recital in an instrument. See
Bank of British North America v. Cuvillier, 14 Moo. P. C. C. 187, and cases
there cited.

2 Bac. Max., reg. 10 ; 6 Rep. 62.

* The maxim supra was accordingly applied to restrain the words of a gen-
eral covenant by a Railway Company to "efficiently work" a line demised
to them — the covenant being construed "with a reference to the subject-
matter and the character of the defendants." West London R. C. v. London
and North-Western 11. C, 11 C. B. 254, 356 (73 E. C. L. R.).

The maxim was applied to a policy of insurance, arg., Baines v. Holland,
10 Exch. 805.

Though a release be general in its terms, its operation will, at law, in con-
formity with the doctrine recognised in courts of equity, be limited to matters
contemplated by the parties at the time of its execution. Lyall v. Edwards,
6 H. & N. 337.

* Bac. Works, vol. 4, p. 46. See Com. Dig., " Condition" (K. 4).

INTERPRETATION OF DEEDS, ETC. 647

turbary claimed by prescription and user has been held to be re-
strained to those parts of the locus in quo in which it could be used.1

In accordance, likewise, with the above maxim — the subject-
matter of an agreement is to be considered in construing the terms
of it, and they are to be understood in the sense most agreeable to
the nature of the agreement.2 If a deed relates to a particular
subject only, general words in it shall be confined to that subject,
otherwise they must be taken in their general sense.3 The words
of the condition of a bond " cannot be taken at large, but must be
tied up to the particular matters of the recital,"4 unless, indeed,
the condition itself is manifestly designed to be extended beyond
the recital;5 and, further, it is a rule, that what is generally spoken
shall be generally understood, generalia verba sunt generaliter
intelligendaf unless it be qualified by some special subsequent words,
as it may be ;7 ex. gr., the ^operative words of a bill of r*p4cri
sale may be restricted by what follows.8

In construing the words of any instrument, then, it is proper to

1 Peardon v. Underhill, 16 Q. B. 120 (71 E. C. L. R.).

2 1 T. R. 703.

3 Thorpe v. Thorpe, 1 Lord Raym. 235 ; s. c, Id.' 662.

* Per Eyre, J., Gilb. Cas. 240. See Seller v. Jones, 16 M. & W. 112, 118 ;
Stoughton v. Day, Aleyn 10 ; Lord Arlington v. Merrick, 2 Saund. 414 ; as
to which, see Mayor of Berwick v. Oswald, 3 E. & B. 653 (77 E. C. L. R.) ; s.
c, 5 II. L. Cas. 856 ; Kitson v. Julian, 4 E. & B. 854, 858 (82 E. C. L. R.) ;
Napier v. Bruce, 8 CI. & Fin 470 ; North-Western R. C. v. Whinray, 10 Exch.
77.

6Sansom v. Bell, 2 Camp. 39; Com. Dig., " Parols" (A. 19); Evans v.
Earle, 10 Exch. 1.

6 3 Inst. 76.

7 Shep. Touch. 88; Co. Litt. 42 a; Com. Dig. uParols" (A. 7).

8 Wood v. Rowcliffe, 6 Exch. 407.

See also with reference to a release, the authorities cited, ante, p. 544, n.
5, p. 646, n. 3.

Where the words in the operative part of a deed of conveyance are of
doubtful meaning, the recitals and other parts of the deed may be used as a
test to discover the intention of the parties, and to fix the true meaning of
those words : judgm., Welsh v. Trevanion, 15 Q. B. 751 (69 E. C. L. R.).
See, also, Young v. Raincock, 7 C. B. 310 (62 E. C. L. R.); post, p. 652,
n. 3.

As to the mode of construing a deed containing restrictive covenants, see,
per Dallas, C. J., Nind v. Marshall, 1 B. & B. 348, 349 (5 E. C. L. R.) ; cited
arg., Crossfield v. Morrison, 7 C. B. 302 (62 E. C. L. R.).

648 broom's legal maxims.

consider, 1st, what is their meaning in the largest sense which,
according to the common use of language, belongs to them j1 and,
if it should appear that that sense is larger than the sense in which
they must be understood in the instrument in question, then, 2dly,
what is the object for which they are used. They ought not to be
extended beyond their ordinary sense in order to comprehend a
case within their object, for that would be to give effect to an inten-
tion not expressed ; nor can they be so restricted as to exclude a case
both within their object and within their ordinary sense, without
violating the fundamental rule, which requires that effect should be
given to such intention of the parties as they have used fit words
to express.2 Thus, in a settlement, the preamble usually recites
what it is which the grantor intends to do, and this, like the pre-
amble to an Act of Parliament, is the key to what comes afterwards.
It is very common, moreover, to put in a sweeping clause, the use
r*fUQ1 anc^ °bject °f which are to guard against any accidental
omission ; but in such cases it is meant to refer to estates
or things of the same nature and description with those which have
been already mentioned, and such general words are not allowed to
extend further than was clearly intended by the parties.3

So, in construing a will, a court of justice is not by conjecture
to take out of the effect of general words property which those
words are always considered as comprehending; the best rule of
construction being that which takes the words to comprehend a
subject which falls within their usual sense, unless there is some-
thing like declaration plain to the contrary.4 Thus, it is a certain
rule, that reversions are held to be included in the general words of
a devise, unless a manifest intention to the contrary appears on the
face of the will.5

Again, it is a well-known rule that a devise of an indefinite
estate by will prior to the first of January, 1838, without words of

1 3 Inst. 76.

2 Per Maule, J., Borradaile v. Hunter, 5 Scott N. R. 431, 432. See in illus-
tration of these remarks, Moseley v. Motteux, 10 M. & W. 533.

3 Per Lord Mansfield, C. J., Moore v. Magrath, 1 Cowp. 12 ; Shep. Touch.,
by Atherley, 79, n.

4 Per Lord Eldon, C, Church v. Mundy, 15 Ves. 396 : adopted per Tindal,
C. J., Doe d. Howell v. Thomas, 1 Scott N. R. 371.

* 1 Scott N. R. 371.

INTERPRETATION OF DEEDS, ETC. 649

limitation, is primd facie a devise for life only; but this rule will
give way to a different intention, if such can be collected from the
instrument, and the estate may be accordingly enlarged.1 So,
words which would primd facie give an estate tail may be cut down
to a life estate, if it plainly appear that they were used as words of
purchase only, or if the other provisions *of the will show
a general intent inconsistent with the particular gift.2 *- J

The doctrine, however, that the general intent must overrule the
particular intent, observes Lord Denman, C. J., has, when applied
to the construction of wills, been much and justly objected to of
late, as being, as a general proposition, incorrect and vague, and
likely to lead in its application to erroneous results. In its origin
it was merely descriptive of the operation of the rule in Shelley's
Case;3 and it has since been laid down in other cases where techni-
cal words of limitation have been used, and other words, showing
the intention of the testator that the objects of his bounty should
take in a different way from that which the law allows, have been
rejected; but in the latter cases the more correct mode of stating
the rule of construction is, that technical words, or words of known
legal import, must- have their legal effect, even though the testator
uses inconsistent words, unless those inconsistent words are of such
a nature as to make it perfectly clear that the testator did not
mean to use the technical words in their proper sense.4 The
doctrine ^bf general and particular intent, thus explained, should
be applied to all wills,5 in conjunction with the rule' already con-
sidered, viz., that every part of that which the testator meant by
the words he has used should be carried into effect as far as the law

1 Doe d. Sams v. Garlick, 14 M. & W. 698 ; Doe d. Atkinson v. Fawcett, 3
C. B. 274 (54 E. C. L. R.) ; Lewis v. Puxley, 16 M. & W. 733. See stat. 1
Vict. c. 26, s. 28.

In Hogan v. Jackson, 1 Cowp. 299; s. c, affirmed 3 Bro. P. C, 2d ed., 388,
the effect of general words in a will was much considered.

2 Fetherston v. Fetherston, 3 CI. & Fin. 75, 76 5 ante, pp. 555 et seq.

8 Ante, p. 558. See d. Cannon v. Rucastle, 8 C. B. 876 (65 E. C. L. R.).

4 See judgm., Toller v. Wright, 15 Q. B. 954 (69 E. C. L. R.). and cases
there cited.

5 Judgm., Doe d. Gallini v. Gallini, 5 B. & Ad. 621, 640 (27 E. C. L. R.) ;
Jesson v. Wright, 2 Bligh 57 ; Roddy v. Fitzgerald, 6 H. L. Cas. 823 ; Jordan
v. Adams, 9 C. B. N. S. 483 (99 E. C. L. R.) ; Jenkins v. Hughes, 8 H. L.
Cas. 571.

650 broom's legal maxims.

["*fir1"l w^ Permit, but no further; and that no part should be Re-
jected, except what the law makes it necessary to reject.1
Lastly, it is said to be a good rule of construction, that, "where
an Act of Parliament begins with words which describe things or
persons of an inferior degree and concludes with general words,
the general words shall not be extended to any thing or person of
a higher degree,"2 that is to say, " where a particular class [of per-
sons or things] is spoken of, and general words follow, the class
first mentioned is to be taken as the most comprehensive, and the
general words treated as referring to matters ejusdem generis with
such class,"3 the effect of general words when they follow particular
words being thus restricted.4

EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS.

(Co. Lit. 210 a.)

The express mention of one thing implies the exclusion of another.

The above rule, or, as it is otherwise worded, expressum facit
cessare taciturn,5 enunciates one of the first principles applicable to
r*fi^91 ^ne construction of written instruments;6 *for instance, it
seems plainly to exclude any increase of an estate by impli-
cation, where there is an estate expressly limited by will." So an

1 Judgm., 5B.& Ad. 641 (27 E. C. L. R.).

2 Archb. of Canterbury's Case, 2 Rep. 46 a, cited, arg., Casher v. Holmes, 2
B. & Ad. 594 (22 E. C. L. R ) ; and in Governors of Bedford Infirmary v. Com-
missioners of Bedford, 7 Exch. 772.

3 Per Pollock, C. B., Lyndon v. Stanbridge, 2 H. & N. 51 ; per Lord Camp-
bell, C. J., Reg. v. Edmundson, 2 E. & E. 83 (102 E. C. L. R.) ; Gibbs v. Law-
rence, 30 L. J. Chanc. 170.

"Where a general enactment is followed by a special enactment on the
same subject, the latter enactment overrides and controls the earlier one :"
per Erie, C. J., 14 C. B. N. S. 433 (108 E. C. L. R.).

The rule stated in the text applies also to deeds and agreements. See, for
instance, Agar v. Athenaeum Life Ass. Soc, 3 C. B. N. S. 725 (91 E. C. L.
R.).

* See Reg. v. Cleworth, 4 B. & S. 927, 934 (116 E. C. L. R.).

5 Co. Litt. 210 a, 183 b.

6 See per Lord Denman, C. J., 5 Bing. N. C. 185 (35 E. C. L. R.).
'Per Crqmpton, J., Roddy v. Fitzgerald, 6 H. L. Cas. 856.

INTERPRETATION OF DEEDS, ETC. 652

implied covenant is to be controlled within the limits of an express
covenant.1 Where a lease contains an express covenant on the part
of the tenant to repair, there can be no implied contract to repair
arising from the relation of landlord and tenant.2 So, although the
word " demise" in a lease implies a covenant for title and a cove-
nant for quiet enjoyment, yet both branches of such implied cove-
nant are restrained by an express covenant for quiet enjoyment.3
And, where parties have entered into * written engage- r*«c;q-i
ments with express stipulations, it is manifestly not desira-
ble to extend them by implications ; the presumption is, that having
expressed some, they have expressed all the conditions by which
they intend to be bound under that instrument.4 And it is an or-
dinary rule that " if authority is given expressly, though by affirm-

1 Nokes' Case, 4 Rep. 80 ; s. c, Cro. Eliz. 674 ; Merrill v. Frame, 4 Taunt.
329 ; Gainsford v. Griffith, 1 Saund. R. 58 ; Vaugh. R. 126 ; Deering v. Far-
rington, 1 Ld. Raym. 14, 19; Matthew v. Blackmore, 1 H. & N. 762. See
Bower v. Hodges, 13 C. B. 765 (76 E. C. L. R.) ; Rashleigh v. South Eastern
R. C, 10 C. B. 612 (70 E. C. L. R.).

2 Standen v. Chrismas, 10 Q. B. 135, 141 (59 E. C. L. R.) ; as to which see,
per Bramwell, B., Churchward v. Ford, 2 H. & K. 450 ; et vide Gott v. Gandy,
2E. &B. 847 (75 E. C. L. R.).

" The authorities cited in the text-books establish these rules, that where
there is a general covenant to repair and keep and leave in repair, the infer-
ence is that the lessee undertakes to repair newly erected buildings. On the
other hand, where the covenant is to repair, and keep and leave in repair the
demised buildings, no such liability arises:" per Channell, B., Cornish v.
Cleiff, 3 II. & C. 452-3.

8 Line v. Stephenson, 5 Bing. N. C. 183 (35 E. C. L. R.) ; Merrills Frame,
4 Taunt. 329 ; per Lord St. Leonards, Monypenny v. Monypenny, 9 H. L.
Cas. 139. See Messent v. Reynolds, 3 C. B. i94 (54 E. C. L. R.). By stat. 8
& 9 Vict. c. 106, s. 4, it is enacted, that the word " give " or " grant " in a
deed executed after the 1st of October, 1845, shall not imply any covenant in
law in respect of any hereditament, except by force of some Act of Parlia-
ment. A covenant for quiet enjoyment, however, is also implied by the word
" demise" in a lease for years; and this implication is not taken away by
either of the recent stats. (7 & 8 Vict. c. 76, and 8 & 9 Vict. c. 106).

By agreeing to let a lessor impliedly promises that he has a good title to
let. Stranks v. St. John, L. R. 2 C. P. 376.

Judgm., Aspdin v. Austin, 5 Q. B. 683, 684 (48 E. C. L. R.) ; Dunn v.
Sayks, Id. 685; Emmens v. Elderton, 4 H. L. Cas. 624; M'Guire v. Scully,
Beatt. 370.

As to Aspdin v. Austin, supra, see per Crompton, J., Worthington v. Lud-
low, 2 B. & S. 516 (110 E. C. L. R.).

653 broom's legal maxims.

ative words, upon a defined condition, the expression of that
condition excludes the doing of the act authorized, under other cir-
cumstances than those so defined : expressio unius est exclusio alte-
rius."1

It will, however, be proper to observe, before proceeding to give
instances in illustration of the maxim expressio unius est exclusio
alterius, that great caution2 is requisite in dealing with it, for, as
Lord Campbell, C, observed, in Saunders v. Evans,3 it is not of
universal application, but depends upon the intention of the party
as discoverable upon the face of the instrument or of the transac-
tion ; thus, where general words are used in a written instrument,
it is necessary, in the first instance, to determine whether those
general words are intended to include other matters besides such as
are specifically mentioned, or to be referable exclusively to them, in
which latter case only can the above maxim be properly applied.4
r*6541 Where, moreover, an expression, which is *primd facie a
word of qualification, is introduced, the true sense and
meaning of the word can only be ascertained by an examination of
the entire instrument, reference being had to those ordinary rules
of construction to which we have heretofore adverted.5

In illustration of the maxim above proposed for consideration,
the following cases may be mentioned : — In an action of covenant
on a charter party, whereby the defendant covenanted to pay so
much freight for "goods delivered at A.," it was held, that freight
could not be recovered pro rata itineris, the ship having been
wrecked at B. before her arrival at A., although the defendant
accepted his goods at B. ; for, the action being on the original
agreement, the defendant had a right to say in answer to it, non
hoec in foedera veni.6 In order to recover freight pro rata itineris,

1 Per Willes, J., North Stafford Steel, &c., Co., v. Ward, L. R. 3 Ex. 177.

? To show the caution necessary in applying the above rule may be cited
Price v. The Great Western R. C, 16 M. & W. 244; Attwood v. Small, 6 CI.
& Fin. 482, and see the remarks, post, p. 667.

3 8 II. L. Cas. 729 ; et vide, per Dr. Lushington, The Amalia, 32 L. J., P.,
M. & A. 194.

4 See Petch v. Tutin, 15 M. & W. 110.

6 In Doe d. Lloyd v. Ingleby, 15 M. & W. 465, 472, the maxim was applied
by Parke, B., diss,, to a proviso for re-entry in a lease, and this case will
serve to illustrate the above remark.

6 Cook v. Jennings, 7 T. R. 381 . See Vlierboom v. Chapman, 13 M. & W. 230.

In Fowkes v. Manchester and London Life Ass. Co., 3 B. &. S. 917, 930

INTERPRETATION OF DEEDS, ETC. 654

the owner must, in such a case, proceed on the new agreement im-
plied by law from the merchant's behavior.1

Again, on a mortgage of dwelling-houses, foundries, and other
premises, "together with all grates, boilers, bells, and other fix-
tures in and about the said two dwelling-houses and the brewhouses
thereunto belonging;" it was held, that, although, without these
words, the fixtures in the foundries would have passed, yet, by
them, the fixtures intended to pass were confined to those in the
*dwelling-houses and brewhouses.2 So, where in an in- r*ficn-i
strument there are general words first, and an express ex-
ception afterwards, the ordinary principle of law has been said to
apply — expressio unius exclusio alterius.3

The case of Doe d. Spilsbury v. Burdett,4 furnishes a good illus-
tration of the above maxim. In that case, lands were limited to
such uses as S. should appoint by her last will and testament in
writing, to be by her signed, sealed, and published, in the presence
of and attested by three or more credible witnesses. S. (prior to
the stat. 7 Will. 4 & 1 Vict. c. 26)5 signed and sealed an instru-

(113 E. C. L. R.), the principal maxim, supra, was applied to a policy of in-
surance. See 8 E. & B. 301 (92 E. C. L. R.).

1 Per Lawrence, J., 7 T. R. 385 ; Mitchell v. Darthez, 2 Bing. N. C. 555,
571 (29 E. C. L. R.).

2 Hare v. Horton, 5 B. & Ad. 715 (27 E. C. L. R.) ; cited Mather v. Frazer,
2 K. & J. 536. See Ringer v. Cann, 3 M. & W. 343 ; Cooper v. Walker, 4 B.
& C. 36, 49 (10 E. C. L. R.).

3 Spry v. Flood, 2 Curt. 365.

« 7 Scott N. R. 66, 79, 101, 104 ; s. c, 9 A. & E. 936 (36 E. C. L. R.) ; 4 A.
& E. 1 (31 E. C. L. R.). The decision of the House of Lords in the above
case went upon the principle, expressio unius exclusio alterius (per Sir H.
Jenner Fust, Barnes v. Vincent, 9 Jur. 261 ; s. c. (reversed in error), 5 Moore
P. C. C. 201), and the opinions delivered in it by the judges will also be
found to illustrate the importance of adhering to precedents, ante, p. 149 ;
the argument ab inconvenient!, p. 184, and the general principle of construing
an instrument ut res magis valeat quam pereat, p. 540 ; Doe d. Spilsbury v.
Burdett, is commented on per Wigram, V.-C, Vincent v. Bishop of Sodor and
Man, 8 C. B. 929 (65 E. C. L. R.) ; and was followed and affirmed in Newton
v. Ricketts, 9 H. L. Cas. 262, 269. See, also, Johns v. Dickinson, 8 C. B.
934 (65 E. C. L. R.) ; Roberts v. Phillips, 4 E. & B. 450, 453 (82 E. C.
L. R.).

6 Sect. 9 enacts, that every will shall be in writing, and signed by the tes-
tator in the presence of two witnesses at one time; and sect. : 0, that appoint-
ments by will shall be executed like other wills, and shall be valid, although
other required solemnities are not observed. Ante, p. 558.

655 broom's legal maxims.

ment, containing an appointment, commencing thus: " I, S., do
publish and declare this to be my last will and testament;" and
concluding, "I declare this only to be my last will and testament;
in witness whereof I have to this my last will and testament set my
hand and seal, this 12th of December, 1789." And then followed
r*65f)T *^e attestation, thus: "Witness C. B., E. B-, A. B." It
was decided by the House of Lords that the power was
well executed; and this case was distinguished from several,1 in
which the attestation clause, in terms, stated the performance of
one or more of the required formalities, but was silent as to the
others, and in which, consequently, the power was held to have
been badly exercised, on the ground, that legal reasoning would
necessarily infer the non-performance of such others in, the presence
of the witnesses, but that a general attestation clause imported an
attesting of all the requisites.

The operation of the principle under consideration is, moreover,
the same, whether the contract be under seal or by parol. For in-
stance, in order to prevent a debt being barred by the Statute of
Limitations, a conditional promise to pay "as soon as 1 can," or
"as soon as convenient," is not sufficient, unless proof be given of
the defendant's ability to perform the condition ; and the reason is,
that upon a general acknowledgment, where nothing is said to pre-
vent it, a general promise to pay may and ought to be implied ; but
where the party guards his acknowledgment, and accompanies it
with an express declaration to prevent any such implication, then
the rule, expression facit cessare taciturn, applies.2 In like manner,
when the drawer of a bill, when applied to for payment, does not
state that he has received no notice of dishonor, but instead of
l~*fWl doing so> sets UP some other *matter in excuse of non-
payment, from this conduct the jury may infer an admis-
sion that the valid ground of defence does not in fact exist.3

1 See particularly Wright v. Wakeford, 17 Ves. Jun. 454 ; s. c, 4 Taunt.
213; commented on per Wigram, V.-C, 8 C. B. 929 et seq. (65 E. C. L. R.) ;
Doe d. Mansfield v. Peach, 2 M. &. S. 576 ; Doe d. Hotchkins v. Pearse, 2
Marsh. 102; s. c, 6 Taunt. 402 (1 E. C. L. It.). See per Patteson, J.? 7
Scott N. It. 120, 121 ; per Tindal, C. J., Id. 126.

2 Judgm., Tanner v. Smart, 6 B. & C. 609 (13 E. C. L. R.) ; Edmunds v.
Downes, 2 Cr. & M. 459. See Irving v. Veitch, 3 M. & W. 90, 112; Broom's
Com., 4th ed., 185.

3 Campbell v. Webster, 2 C. B. 258, 266 (52 E. C. L. R.).

INTERPRETATION OF DEEDS, ETC. 657

The above cases will sufficiently show the practical application
and utility of the maxim or principle of construction, expressum
facit cessare taciturn ; and several of them will likewise serve to
illustrate the general rule, which will be considered more in detail
hereafter,1 viz., that parol evidence is, except in certain cases,
wholly inadmissible to show terms upon which a written instrument
is silent ; or, in other words, that, where there is an express con-
tract between parties, none can be implied.2 The Court will not,
"by inference, insert in a contract implied provisions with respect
to a subject which the contract has expressly provided for.
If a man sell a horse and warrant it to be sound, the vendor
knowing at the time that the purchaser wants it 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 the warranty.
So, with respect to any other kind of warranty : the maxim ex-
pressum facit cessare taciturn applies to such cases. If this were
not so, it would be *necessary for the parties to every agree- rH^on
ment to provide in terms that they are to be understood not
to be bound by anything which is not expressly set down, — which
would be manifestly inconvenient."3

The following cases may here properly be noticed in further illus-
tration of the maxim before us : — where the rent of a house was
specified in a written agreement, to be 26L a year, and the landlord
in an action for use and occupation, proposed to show, by parol evi-
dence, that the tenant had also agreed to pay the ground-rent, the
Court refused to admit the evidence.4

1 See the maxim, Nihil tarn conveniens est naturali cequitati quam unum-
quodque dissolvi eodem ligamine quo ligatum est — post, Chap. IX., and the
maxim, Optimus interpret rerum usus — post, Chap. X.

2 Per Bay ley, J., Grimman v. Legge, 8 B. & C. 326 (15 E. C. L. R.) ; Moor-
som v. Kymer, 2 M. & S. 316, 320 (28 E. C. L. R.) ; Cook v. Jennings, 7 T.
R. 383, 385; per Lord Kenyon, C. J., Id.^137; Cowley v. Dunlop, Id. 568;
Cutter v. Powell, 6 T. R. 320; s. c, 2 Smith L. C, 6th ed., 1 (with which
compare Taylor v. Laird, 1 II. & N. 266 ; Button v. Thompson, L. R. 4 C. P.
330) ; per Buller, J., Toussaint v. Martinnant, 2 T. R. 105 ; per Parke, B.,
Bradbury v. Anderton, I Cr., M. & R., 190; Mitchell v. Darthez, 2 Bing. N.
C. 555 (29 E. C. L. R.) ; Lawrence v. Sydebotham, 6 East 45, 52 ; per Black-
burn, J., Fowkes v. Manchester and London Life Ass. Co., 3 B. & S. 930 (113
E. C. L. R.).

8 Per Maule, J., Dickson v. Zizinia, 10 C. B. 610, 611 (70 E. C. L. R.).
* Preston v. Merceau, 2 W. Bla. 1249; Rich v. Jackson, 4 Bro. C. C. 515.

33

658 broom's legal maxims.

By an agreement between plaintiff and defendant for the pur-
chase by the former of the manor of S., it was agreed that, on the
completion of the purchase, the purchaser should be entitled to the
" rents and profits of such parts of the estate as were let " from
the 24th day of June, 1843 : it was held, that the plaintiff was not,
by virtue of this agreement, entitled to recover from the defendant
the amount of a fine received by the latter on the admittance of a
tenant of certain copyhold premises, part of the said manor, this
admittance, after being postponed from time to time, having taken
place on the 1st of July, 1843, and the fine having been paid in
the December following; for the condition above mentioned was
held applicable to such parts of the estate only as might be "let"
in the ordinary sense of that word, and expressio unius est exclusio
p^rjrq-j alterius ; the lands in question *not having been let, it
could not be said that the plaintiff was entitled to the sum
of money sought to be recovered, the agreement binding the vendor
to pay over the rents only, and not extending to the casual profits.1

On the same principle, where the conditions of sale of growing
timber did not state anything as to quantity, parol evidence, that
the auctioneer at the time of sale warranted a certain quantity, was
held inadmissible.2 And here we may observe that, as a general
rule, whatever particular quality a party warrants, he shall be
bound to make good to the letter of the warranty, whether such
quality be otherwise material or not ; and it is only necessary for
the buyer to show that the article sold is not according to the war-
ranty. Where, however, an article is sold by description merely,
and the buyer afterwards discovers a latent defect, in this case
expresssum facit cessare taciturn ; he must, therefore, go further,
and show that the description was false within the knowledge of
the seller. Thus, where a warranty of a horse was in these
terms — " Received of B. \0l. for a gray four-year-old colt, war-
ranted sound," — it was held, that the warranty was confined to
soundness ; and that, without proving fraud, it was no ground of

See Sweetland v. Smith, 1 Cr. & M. 585, 596 ; Doe d. Rogers v. Pullen, 2 Bing.
N. C. 749, 753 (29 E. C. L. R.), where the maxim considered in the text is
applied by Tindal, C. J., to the case of a tenancy between mortgagor and
mortgagee.

1 Earl of Hardwicke v. Lord Sandys, 12 M. & W. 761.

etc. 659

action, that the colt was only three years old.1 So, upon a sale of
hops by sample, with a warranty that the bulk of the commodity
answered the sample, although a fair merchantable price was given,
it was held, that the seller was not responsible for a latent defect
(which existed both in the sample and the bulk) unknown to him,
but arising from the fraud of the *grower from whom he r*fif»n-i
purchased.2 In this case, the general warranty, implied
by law, that the goods were merchantable, was excluded by the ex-
press warranty of the vendor.

. This distinction must, however, be taken, that, where the war-
ranty is one which the law implies,3 it is clearly admissible in evi-
dence, notwithstanding there is a written contract, if such contract
be entirely silent on the subject. For instance, the defendant sold
to the plaintiff a barge, and there was a contract in writing between
the parties ; but it was held, that a warranty was implied by law
that the barge was reasonably fit for use, and that evidence was ad-
missible to show that, in consequence of the defective construction
of the barge, certain cement, which the plaintiff was conveying
therein, was damaged, and that the plaintiff incurred expense, in
rendering her fit for the purpose of his trade — a purpose to which
the defendant knew, at the time of the contract, that she was in-
tended to be applied.4 And where defendant undertook to supply
the plaintiffs with troop stores, "guaranteed to pass survey of the
East India Company's officers," this express guarantee was held
not to exclude the warranty implied by law, that the stores should
be reasonably fit for the purpose for which they were intended.5
And where goods are to be supplied according to sample, the sell-

1 Budd v. Fairmaner, 8 Bing. 48, 52 (21 E. C. L. R.). See per Parke, B.,
Mondel v. Steel, 8 M. & W. 865 ; and the cases cited under the maxim caveat
emptor — post, Chap. IX.

* Parkinson v. Lee, 2 East 314, recognised, 8 Bing. 52 (21 E. C. L. R.).
See, also, Laing v. Fidgeon, 6 Taunt. 108 (1 E. C. L. R.) ; Chanters. Hop-
kins, 4 M. & W. 399; recognised, Pacific Steam Nav. Co. v. Lewis, 16 M. &
W. 783; and in Prideaux v. Bunnett, 1 C. B. N. S. 613, 617 (87 E. C.
L. R.).

3 As to implied warranties and undertakings, see, under the maxim Caveat
emptor — post, p. 768.

4 Shepherd v. Pybus, 4 Scott N. R. 434 ; Gardiner v. Gray, 4 Camp. 144.
6 Bigge v. Parkinson, 7 H. & N. 955.

660 broom's legal maxims.

r*fim *nS ky sample excludes the implied warranty that *the
goods shall be of merchantable quality only with respect to
such matters as could be judged of by the sample.1

A marked distinction will at once be noticed between cases falling
within the class just noticed and those in which it has been held,
that, where a warranty or contract of sale has reference to a certain
specified chattel, the purchaser will be liable for the price agreed
upon, on proof that the particular chattel specified has been duly
sent according to the order, and will not be permitted to engraft
any additional terms upon the contract. If, for instance, a "two-
color printing-machine," being a known and ascertained article, has
been ordered by the defendant, he cannot excuse himself from
liability to pay for it, by showing that the article in question does not
answer his purpose, because the sole undertaking in this case on
the part of the vendor was to supply the particular article ordered,
and that undertaking has been performed by him. If, on the other
hand, the article ordered by the defendant were not a known
ascertained article; as if he had merely ordered, and plaintiff had
agreed to supply, a machine for printing two colors, the defendant
would not be liable unless the instrument were reasonably fit for the
purpose for which it was ordered.2 As we shall, in the ensuing
chapter, have occasion to revert to the subject of implied warranty,
we may for the present content ourselves with the single instance
just given as sufficiently showing the distinction to which allusion
has above been made.

*But although the maxim, Expressio unius est exclusio

alterius ordinarily operates to exclude evidence offered

with the view of annexing incidents to written contracts3 in matters

1 Mody v. Gregson, L. R. 4 Ex. 49.

2 Ollivant v. Bayley, 5 Q. B. 288 (48 E. C. L. R.) ; Prideaux v. Bunnett, 1
C. B. N. S. 613 (87 E. C. L. R.) : Parsons v. Sexton, 4 C. B. 899 (56 E. C. L.
R.) ; Mallan v. Radloff, 17 C. B. N. S. 588 (112 E. C. L. R.) ; and cases cited,
post, Chap. IX., under the maxim Caveat emptor.

3 See Cutter v. Powell, 6 T. R. 320 ; Pettitt v. Mitchell, 5 Scott N. R. 721 ;
Moon v. Witney Union, 3 Bing. N. C. 814, 818 (32 E. C. L. R.) ; cited and
distinguished in Moffatt v. Laurie, 15 C. B. 583, 592 (80 E. C. L. R.) ; and in
Scrivener v. Pask, 18 C. B. N. S. 785, 797 (114 E. C. L. R.) ; Reg. v. Stoke-
upon-Trent, 5 Q. B. 303 (48 E. C. L. R.). It is a general rule that, upon a
mercantile instrument, evidence of usage may be given in explanation of an
ambiguous expression : Bowman v. Horsey, 2 M. & Ry. 85. Generally as to

INTERPRETATION OF DEEDS, ETC. 662

with respect to which they are silent, yet it has long heen settled, that,
in commercial transactions, extrinsic evidence of custom and usage is
admissible for this purpose.1 The same rule has, moreover, been
applied to contracts in other transactions of life, especially to those
between landlord and tenant,2 in which known usages have been
established and prevailed; and this has been done upon the princi-
ple of presuming that in such transactions the parties did not mean
to express in writing the whole of the contract by which they
intended to be bound, but a contract with reference to those known
usages.3 Whether such a relaxation of the strictness of the
common law was wisely applied where formal instruments have
been entered into, and particularly leases under seal, may, it has
been observed, well be doubted; but this relaxation has been
established by such authority, and the relations of landlord and
tenant have been so long regulated upon the supposition that all
customary obligations, not altered by the contract, are to r^^^o-j
*remain in force, that it is too late to pursue a contrary
course, since it would be productive of much inconvenience if the
practice were now to be disturbed.4 As an instance of the admissi-
bility of evidence respecting any special custom, may be mentioned
the ordinary case in which an agreement to farm according to the
custom of the country is held to apply to a tenancy where the con-
tract to hold as a tenant is in writing, but is altogether silent as to
the terms or mode of farming.5

Every demise, indeed, between landlord and tenant in respect of
matters as to which the parties are silent, may be fairly open to ex-
planation by the general usage and custom of the country, or of the
district where the land lies ; for all persons, under such circum-
stances, are supposed to be cognisant of the custom, and to con-
tract with a tacit reference to it.6

the admissibility of evidence of usage to explain mercantile instruments, see
Broom's Com., 4th ed., Book II., Chap. IV.

1 Syers v. Jonas, 2 Exch. Ill, 117 ; cited per Willes, J.f Azemar v. Casella,
L. R. 2 C. P. 439 ; and cases collected under the maxim optimus interpret
rerum usus — post, Chap. X.

2 Ante, pp. 412 et seq.

8 Per Parke, B., Smith v. Wilson, 3 B. & Ad. 728 (23 E. C. L. R.).
4 Judgm., Hutton v. Warren, 1 M. & W. 475, 478 ; Wigglesworth v. Dalli-
son, cited ante, p. 413, is the leading case upon the subject above noticed.
6 Judgm., 4 Scott N. R. 446.
8 Per Story, J., 2 Peters (U. S.) R. 148.

663 broom's legal maxims.

It is, however, a settled rule, that, although in certain cases evi-
dence of custom or usage is admissible to annex incidents to a
written contract, it can in no case be given in contravention thereof;1
and the principle of varying written contracts by the custom of
trade has been in many cases, of which some few are cited infra,
distinctly repudiated.2

r*fifU1 *^ s^u^e? ^ nas been said,3 is to be so construed, if
possible, as to give sense and meaning to every part ; and
the maxim was never more applicable than when applied to the in-
terpretation of a statute, that expressio unius est exclusio alterius.*
The sages of the law, according to Plowden, have ever been guided

1 Yeats v. Pym, 6 Taunt. 446 ; Clarke v. Roystone, 13 M. & W. 752 ; Suse
v. Pompe, 8 C. B. N. S. 538 (98 E. C. L. R.). See Palmer v. Blackburn, 1
Bing. 61 (8 E. C. L. R.).

2 Spartali v. Benecke, 10 C. B. 212, 223 (70 E. C. L. R.) ; Dickenson v. Jar-
dine, L. R. 3 C. P. 639 ; Johnstone v. Usborne, 11 A. & E. 549, 557 (39 E. C.
L. R.) ; Trueman v. Loder, Id. 589 (as to which case see Dale v. Humfrey, E.,
B. & E. 1004 (96 E. C. L. R.) ; s. c, 7 E. & B. 266, 277 (90 E. C. L. R.) ;
Browne v. Byrne, 3 E. & B 703 (77 E. C. L. R.)) ; Jones v. Littledale, 6 A.
& E. 486 (33 E.CL.R.); Magee v. Atkinson, 2 M. & W. 440. See Graves
v. Legg, 2 H. & N. 210 ; s. c, 11 Exch. 642, 9 Id. 709 ; Pym v. Campbell, 6 E.
& B. 370 (88 E. C. L. R.) ; cited in Rogers v. Hadley, 2 H. & C. 249 ; Stewart
v. Aberdein, 4 M. & W. 211. The law applicable to this subject will be
stated more at length when we have to consider the mode of dissolving con-
tracts, and the application of evidence to their interpretation.

3 Per Cur., 9 Johns. (U. S.) R, 349.

4 See Gregory v. Des Anges, 3 Bing. N. C. 85, 87 (32 E. C. L. R.) ; Atkin-
son v. Fell, 5 M. & S. 240 ; Cates v. Knight, 3 T. R. 442, 444 ; cited arg., Albon
v. Pyke, 5 Scott N. R. 245 ; R. v. North Nibley, 5 T. R. 21 ; per Tindal, C. J.,
Newton v. Holford (in error), 6 Q. B. 926 (51 E. C. L. R.) ; A.-G. v. Sillem,
10 II. L. Cas. 704. The maxim, supra, is applied to a statute in Reg. v.
Caledonian R. C, 16 C. B. 31 (81 E. C. L. R.), and in Edinburgh and Glas-
gow R. C. v. Magistrates of Linlithgow, 3 Macq. Sc. App. Cas. 717, 730.
Watkins v. Great Northern R. C, 16 Q. B. 961 (71 E. C. L. R.), also proceeded
on the above maxim ; per Lord Campbell, C, Caledonian R. C. v. Colt, 3
Macq. Sc. App. Cas. 839. See Lawrence v. Great Northern R. C, 16 Q. B.
643, 653 (71 E. C. L. R.).

In Bostock v. North Staffordshire R. C, 4 E. & B. 832 (82 E. C. L. R.),
Lord Campbell says, with reference to certain statutes granting powers to a
Navigation and a Railway Company, " In construing instruments so loosely
drawn as these local Acts, we can hardly apply such maxims as that, ' the
expression of one thing is the exclusion of another,' or that the 'exception
proves the rule.'1 "

etc. 664

in the construction of statutes by the intention of the legislature,
, which they have always taken according to the necessity of the
matter, and according to that which is consonant to reason and
sound discretion.1

Thus, it sometimes happens that in a statute, the language of
which may fairly comprehend many different cases, some only are
expressly mentioned by way of example merely, and not as exclud-
ing others of a similar nature. So, where the words used by the
legislature are general, and the statute is only declaratory of the
common *law, it shall extend to other persons and things r*«fic-i
besides those actually named, and, consequently, in such
cases, the ordinary rule of construction cannot properly apply.
Sometimes, on the contrary, the expressions used are restrictive,
and intended to exclude all things which are not enumerated.
Where, for example, certain specific things are taxed, or subjected
to any charge, it seems probable that it was intended to exclude
everything else even of a similar nature, and a fortiori, all things
different in genus and description from those which are enumerated.
So, it is agreed that mines in general are not rateable to the poor
within the stat. 43 Eliz. c. 2, and that the mention in that statute of
coal-mines is not by way of example, but in exclusion of all other
mines.2

By stat. 2 Will. 4, c. 45, s. 27,3 the right of voting in boroughs
is given to every person who occupies, either as owner or tenant,
" any house, warehouse, counting-house, shop, or other building,
being, either separately, or jointly with any land" within such city
or borough, occupied therewith by him under the same landlord, of
the clear yearly value of not less than 10Z. ; it was held, that,
under this section, two distinct buildings cannot be joined together
in order to constitute a borough qualification. " The rule, expressio
unius est exclusio alterius," observed Tindal, C. J., "is, I think,
applicable here. I cannot see why the legislature should have pro-
vided for the joint occupation of a building and land, and not for

1 Plowd. 205 b.

2 See arg., R. v. Woodland, 2 East 166 ; and in R. v. Bell, 7 T. R. 600 ; R. v.
Cunningham, 5 East 478 ; per Lord Mansfield, C. J., Governor of Company
for Smelting Lead v. Richardson, 3 Burr. 1344; Steer Par. L., 3d ed., 486,
487.

3 In connection with which see, now, stat. 30 & 31 Vict. c. 102, 8. 3.

666 broom's legal maxims.

r*fifin ^at °^ *wo *c^fferent buildings, if it had been intended
that the latter should confer the franchise."1

Lastly, where a general Act of Parliament confers immunities
which expressly exempt certain persons from the effect and opera-
tion of its provisions, it excludes all exemptions to which the sub-
ject might have been before entitled at common law ; for the intro-
duction of the exemption is necessarily exclusive of all other inde-
pendent extrinsic exceptions.2

The following remarks of an eminent legal authority, showing
the importance of the maxim considered in these preceding pages,
when regarded as a rule of evidence rather than of construction, are
submitted as well deserving attention : —

"It is a sound rule of evidence, that you cannot alter or sub-
stantially vary the effect of a written contract by parol proof.
This excellent rule is intended to guard against fraud and perjuries;
and it cannot be too steadily supported by courts of justice. Ex-
pressum facit cessare taciturn — vox emissa volat — litera scripta
manet, are law axioms in support of the rule ; and law axioms are
nothing more than the conclusions of common sense, which have
been formed and approved by the wisdom of ages. This rule pre-
vails equally in a court of equity and a court of law ; for, generally
speaking, the rules of evidence are the same in both courts. If the
words of a contract be intelligible, says Lord Chancellor Thurlow,3
there is no instance where parol proof has been admitted to give
them a different sense. 'Where there is a deed in writing,'
[~*fifi71 *^e observes in another place,4 'it will admit of no contract
which is not part of the deed.' You can introduce no-
thing on parol proof that adds to or deducts from, the writing.
If, however, an agreement is by fraud or mistake made to speak a
different language from what was intended, then, in those cases,
parol proof is admissible to show the fraud or mistake. These are
cases excepted from the general rule."5

We do not propose to dwell at length upon the maxim, Ex-
pressum facit cessare taciturn ; a cursory glance even at the con-

1 Dewhurst app., Fielden reap., 8 Scott N. K. 1013, 1017.

3 Dwarr. Stats., 2d ed., 605 ; R. v. Cunningham, 5 East 478 ; 3 T. R. 442.

3 Shelburne v. Inchiquin, 1 Bro. C. C. 341.

4 Lord Irnham v. Child, 1 Bro. C. C. 93.

6 Per Kent, C. J., 1 Johns. (U. S.) It. 571, 572.

667

tents of the preceding pages will show it to be of important and
extensive practical application, both in the construction of written
instruments and verbal contracts, as also in determining the in-
ferences which may fairly be drawn from expressions used or decla-
rations made with regard to particular circumstances. It is, indeed,
a principle of logic and of common sense, and not merely a techni-
cal rule of construction, and might, therefore, be illustrated by
decided cases, having reference probably to every branch of the
legal science. It, moreover, has an important bearing upon the
doctrine of our law as to implied undertakings and obligations. If

A. covenants or engages by contract to buy an estate of B. at a
given price, although that contract may be silent as to any obliga-
tion on the part of B. to sell; yet, as A. cannot buy without B.
selling, the law will imply a corresponding obligation on the part of

B. to sell.1 So, if a man engages to work and render services
which necessitate great outlay of money, time, and trouble, and he
is only to be paid by the measure of the work he has performed,
the contract ^necessarily presupposes and implies on the r^fion
part of the person who engages him, an obligation to supply

the work. So where- there is an engagement to manufacture some
article, a corresponding obligation on the other party is implied to
take it, for otherwise it would be impossible that the party bestow-
ing his services could claim any remuneration.2

Many instances similar to the foregoing might be put,3 where the
act to be done by the party binding himself can only be done upon
something of a corresponding character being done by the opposite
party, and where a corresponding obligation to do the things neces-
sary for the completion of the contract would be implied. In any
case, where a contract is thus silent, the court or jury who are
called upon to imply an obligation on the other side, which does
not appear in the terms of the contract, must take care that they
do not make the contract speak where it was intentionally silent ;

1 Pordage v. Cole, 1 Wms. Saund. 319 1.

2 Per Cockburn, C. J., Churchward v. Reg., L. R. 1 Q. B. 195.

3 There is an implied covenant by a grantor that he shall not derogate from
his grant, ante, p. 282, Gerard v. Lewis, L. R. 2 C. P. 305.

The doctrine as to implied undertakings was much considered in Francis v.
Cockrell, L. R. 5 Q. B. 184 ; Readhead v. Midland R. C, L. R. 4 Q. B. 379 ;
Ford v. Cotesworth, L. R. 4 Q. B. 127 ; Stirling v. Maitland, 5 B. & S. 840
(117 E. C. L. R.) ; Harmer v. Cornelius, 5 C. B. N. S. 236 (94 E. C. L. R.).

668 broom's legal maxims.

and, above all, that they do not make it speak entirely contrary to
what, as may be gathered from the whole terms and tenor of the
contract, was the intention of the parties.1

The maxim above commented on, is, however, as recently re-
marked,2 "by no means of universal conclusive application. For
example : it is a familiar doctrine that though where a statute
P6691 ma^es unlawful that which was *lawful before, and ap-
points a specific remedy, that remedy must be pursued, and
no other; yet where an offence was antecedently punishable by a
common law proceeding, as by indictment, and a statute prescribes
a particular remedy in case of disobedience, that such particular
remedy is cumulative, and proceedings may be had either at com-
mon law or under the statute." And where a charter incorpo-
rating a trading company declared in case "the defendants should
fail to enter into and execute a deed of settlement, and deposit it
as directed, or in case they should not comply with any other of
the directions and conditions contained in the letters patent, that
it should be lawful for the Crown, by any writing under the great
seal or under the sign manual, to revoke and make void the charter,
either absolutely or under such terms and conditions as the Queen
thought fit," it was held that the intention of the proviso was to
give a remedy in addition to that by way of scire facias, and that
the maxim Uxpressum facit cassare taciturn was consequently in-
applicable.3

EXPRESSIO EORUM QUJ3 TACITE INSUNT NIHIL OPERATUR.

(2 Inst. 365.)

The expression of what is tacitly implied is inoperative.

" The expression of a clause which the law implies works

r*fi701 nothing."4 For instance, if land be let to two *persons

for the term of their lives, this creates a joint tenancy ;

1 Per Cockburn, C. J., L. R. 1 Q. B. 195-6.

2 Per Williams, J., 2 E. & B. 879 (75 E. C. L. R.).

3 Eastern Archipelago Co. v. Reg., 2 E. & B. 856 (75 E. C. L. R.) ; s. c, 1
E. & B. 310 (72 E. C. L. R.).

* 4 Rep. 73 ; 5 Rep. 11 ; Wing. Max., p. 235 ; Finch's Law 24 ; D. 50. 17.
81. In Hobart R. 170, it is said that this rule " is to be understood having
respect to itself only, and not having relation to other clauses." The rule

INTERPRETATION OF DEEDS, ETC. 670

and if the words "and the survivor of them" are added, they will
be mere surplusage, because, by law, the term would go to the sur-
vivor.1 So, upon a lease reserving rent payable quarterly, with a
proviso that, if the rent were in arrear twenty-one days next after
the day of payment being lawfully demanded, the lessor might re-
enter, it was held, that, five years' rent being in arrear, and no
sufficient distress on the premises, the lessor might re-enter without
a demand, and the above maxim was held to apply; for, previous
to the stat. 4 Geo. 2, c. 28, a demand was necessary as a conse-
quence of law, whether the lease contained the words "lawfully
demanded" or not. Then the statute says, that "in all cases
where half a year's rent shall be in arrear, and the landlord has a
right of entry," the remedy shall apply, provided there be no suffi-
cient distress ; that is, the statute has dispensed with the demand
which was required at the common law, whether expressly provided
for by the stipulation of the parties or not.2 In like manner, if
there be a devise of "all and singular my effects," followed by the
words "of what nature or kind soever," the latter words are com-
prehended in the word "all," and only show that the testator
meant to use "effects," in its largest natural sense: this devise,
therefore, will not pass real property, unless it can *be
collected from the will itself that such was the testator's *- ■"
intention.3

Again, every interest which is limited to commence and is capa-
ble of commencing on the regular determination of the prior par-
ticular estate, at whatever time the particular estate may determine,
is, in point of law, a vested estate ; and the universal criterion for
distinguishing a contingent interest from a vested estate is, that a
contingent interest cannot take effect immediately, even though the

supra is applied in Wroughton v. Turtle, 11 M. & W. 569, 570 ; and in Law-
rance v. Boston, 7 Exch. 28, 35, in reference to the operation of the Stamp
Acts. See also Ogden v. Graham, 1 B. & S. 773 (101 E. C. L. R.).

1 Co. Litt. 191 a, cited, arg., 4 B. & Aid. 306 (6 E. C. L. R.) ; 2 Prest. Abst.
Tit. 63. See also per Lord Langdale, M. R., Seiflferth v. Badham, 9 Beav.
374. The maxim supra is applied, per Martin, B., in Scott v. Avery, 5 II. L.
Cas. 829.

2 Doe d. Scholefield v. Alexander, 2 M. & S. 525 ; Doe d. Earl of Shrews-
bury v. Wilson, 5 B. & Aid. 364, 384 (7 E. C. L. R.).

* See Doe v. Dring, 2 M. & S. 448, 459 ; Doe d. Scruton v. Snaith, 8 Bing.
146, 154 (21 E. C. L. R.).

671 broom's legal maxims.

former estate were determined, while a vested estate may take effect
immediately, whenever the particular estate shall determine. Hence
it often happens, that a limitation expressed in words of contingency
is in law treated as a vested estate, according to the rule Expressio
eorum quae tacite insunt nihil operatur. If, for instance, a limita-
tion be made to the use of A. for life, and if A. shall die in the
lifetime of B., to the use of B. for life, this limitation gives to B.
a vested estate, because the words expressive of a contingency are
necessarily implied by the law as being in a limitation to A. for life
and then to B. ; and without those words a vested interest would
clearly be given.1

In accordance with the same principle, where a person makes a
tender, he always means that the amount tendered, though less than
the plaintiff's demand, is all that he is entitled to in respect of it.
Where, therefore, the person making the tender said to plaintiff,
"I am come with the amount of your bill," upon which plaintiff
refused the money, saying, "I shall not take that, it is not my
bill," and nothing more passed, the tender was held suffi-
L *^ cient; and in answer to the argument, that a tender made
in such terms would give to its acceptance the effect of an admission,
and was consequently bad, it was observed, that the plaintiff could
not preclude himself from recovering more by accepting an offer of
part, accompanied by expressions which are implied in every tender.2

The above instances, taken in connection with the remarks
appended to the maxim, Expressio unius est exclusio alterius, will
serve to show that an expression, which merely embodies that which
would in its absence have been by law implied, is altogether inopera-
tive ; such an expression, when occurring in a written instrument,
is denominated by Lord Bacon, clausula inutilis ; and, according
to him, clausula veldispositio inutilis per praisumptionem vel causam
remotam ex post facto non fulcitur ; a rule which he thus explains,
— clausula vel dispositio inutilis is " when the act or the words do
work or express no more than the law by intendment would have
supplied;" and such a clause or disposition is not supported by any
subsequent matter " which may induce an operation of those idle
words or acts."3

1 See per Willes, C. J., 3 Atk. 138 ; 1 Prest. Abst. Tit. 108, 109.

2 Kenwood v. Oliver, 1 Q. B. 409, 411 (41 E. C. L. R.) ; recognised in Bowen
v. Owen, 1 1 Q. B. 130, 135 (63 E. C. L. R.).

3 Bac. Max., reg. 21.

INTERPRETATION OF DEEDS, ETC. 673

*Verba relata hoc maxime operantur per Refer- r*p7q-|

ENTIAM UT IN EIS INESSE VIDENTUR.

(Co Litt 159 a.)

Words to which reference is made in an instrument have the same effect and
operation as if they were inserted in the clause referring to them.1

It is important to bear in mind, when reading any particular por-
tion of a deed or written instrument, that regard must be paid not
only to the language of the clause in question, but to that also of
any other clause or covenant which may by reference be incorpo-
rated with it ; and, since the application of this rule, so simple in
its terms, is occasionally attended* with difficulty,2 it has been
thought desirable in this place briefly to examine it.3

Where, by articles under seal, the defendant bound himself
under a penalty to deliver to the plaintiff by a certain day " the
whole of his mechanical pieces as per schedule annexed;" the
schedule was held to form part of the deed, for the deed with-
out it would be insensible and inoperative.4 And if a r^^Ai
contract of sale refer to *an inventory, the entire contents
thereof will become incorporated with the contract.5

In like manner, if a contract, or an Act of Parliament, refer to a
plan, such plan will form a part of the contract or Act, for the pur-
pose for which the reference is made.6 And a deed of conveyance,

1 The rule is that, " by referring in a document signed by the party to
another document, the person so signing in effect signs a document contain-
ing the terms of the one referred to :" per Crompton, J., Fitzmaurice v. Bay-
ley, 9 H. L. Cas. 99, where the question arose on the 4th section of the Stat-
ute of Frauds.

2 See Reg. v. Registrar of Middlesex, 15 Q. B. 976 (69 E. C. L. R.) ; Fish-
mongers' Co. v. Dimsdale, 12 C. B. 557 (74 E. C. L. R.) ; Betts v. Walker, 14
Q. B.363 (68 E. C. L. R.) ; Stewart v. Anglo-Californian Gold-Mining Co.,
18 Q. B. 736 (83 E. C. L. R.).

3 Boydell v. Drummond, 11 East 141, 153, 156, 157 (distinguished in Crane
v. Powell, L. R. 4 C. P. 123, 129), and Wilkinson v. Evans, L. R. 1 C. P. 407,
may be consulted in connection with the above maxim. See also Ridgway
v. Wharton, 6 II. L. Cas. 238 ; cited judgm., Barker v. Allen, 5 H. & N. 72.
Sillem v, Thornton, 3 E. & B. 868, 880 (77 E. C. L. R.).

4 Weeks v. Maillardet, 14 East 568, 574 ; cited and distinguished, Dyer v.
Green, 1 Exch. 71 5 and in Daines v. Heath, 3 C. B. 938, 945 (54 E. C. L. R.).

6 Taylor v. Bullen, 5 Exch. 779. See Wood v. Rowcliffe, 6 Exch. 407.
6 North British R. C. v. Tod, 12 CI. & Fin. 722, 731 ; Reg. v. Regent's Canal
Co., 28 L. J. Chanc. 153. See Galway v. Baker, 5 CI. & Fin. 157} Brain v.

674 broom's legal maxims.

made under the authority of an Act of Parliament, and in the form
prescribed thereby, must be read as if the sections of the Act appli-
cable to the subject-matter of the grant and its incidents were in-
serted in it.1

In a modern case, a deed recited a contract for the sale of certain
lands, by a description corresponding with that subsequently con-
tained in the deed, and then proceeded to convey them, with a
reference for that description to three schedules. The portion of
the particular schedule relating to the piece of land in question
stated, in one column, the number which this piece was marked on
a certain plan, and, in another column, under the heading " descrip-
tion of premises," it was stated to be "a small piece, marked on
the plan ;" and by applying the maxim, Verba illata inesse viden-
tur, the Court of Exchequer considered on the above state of facts,
that it was the same thing as if the map or plan referred to in the
schedule had been actually inserted in the deed, since it was, by
operation of the above principle, incorporated with it.2
1**67 VI * Where a question arose respecting the sufficiency of an
affidavit, Heath, J., observed, " The Court generally re-
quires, and it is a proper rule, that the affidavit shall be intituled in
the cause, that it may be sufficiently certain in what cause it is to
admit of an indictment for perjury ; but this affidavit refers to the
annexed plea, and the annexed plea, is in the cause, and Verba
■relata inesse videntur ; therefore it amounts to the same thing as
if the affidavit were intituled ; and the plaintiff could prosecute for
perjury on this affidavit."3

So, with reference to an indictment, it has been observed, that
" there are many authorities to show that one count thereof may
refer to another, and that under such circumstances the maxim ap-
plies, Verba relata inesse videntur."4

Harris, 10 Exch. 908 ; Reg. v. Caledonian R. C, 16 Q. B. 197 (71 E. C. L.
R.).

1 Elliot v. North Eastern R. C, 10 H. L. Cas. 333, 353.

2 Llewellyn v. Earl of Jersey, 11 M. & W. 183, 188 ; Lyle v. Richards, L. R.
1 H. Li 222 ; Barton v. Dawes, 10 C. B. 261, 263, 266 (70 E. C. L. R.). See
also as to the admissibility of parol evidence to identify a plan referred to in
an agreement for a lease, Hodges v. Horsfall, 1 Russ. & My. 116.

3 Per Heath, J., Prince v. Nicholson, 5 Taunt. 337 (1 E. C. L. R.). See in
connection with the maxim above noticed : Duke of Brunswick v. Slowman,
8 C. B. 617.

4 Judgm., Reg. t>. Waverton, 17 Q. B. 570.

INTERPRETATION OF DEEDS, ETC. 675

The above rule is also applied to the interpretation of wills,1 al-
though the Courts will not construe a will with the same critical
precision which would be prescribed to a grammarian ; for instance,
where the words "the said estates," occurring in a will, seemed in
strictness to refer to certain freehold land, messuages, and tene-
ments, before devised, on which construction the devisee would only
have taken an estate for life, according to the strict rule which ex-
isted prior to the stat. 1 Vict. c. 26 ; yet it was observed by Lord
Ellenborough, that, in cases of this *sort, unless the testa- r*c7«-i
tor uses expressions of absolute restriction, it may in gen-
eral be taken for granted that he intends to dispose of the whole
interest; and, in furtherance of this intention, Courts of justice
have laid hold of the word " estate " as passing a fee, wherever it
is not so connected with mere local description as to be cut down to
a more restrained signification.2

Another important application of the maxim before us occurs
where reference is made in a will to an extrinsic document, in order
to elucidate or explain the testator's intention, in which case such
document will be received as part of the will, from the fact of its
adoption thereby, provided it be clearly identified as the instrument
to which the will points.3 But parol evidence is inadmissible to
show an intention to connect two instruments together, where there
is no reference to a foreign instrument, or where the description of
it is insufficient.4 A further illustration, moreover, of the general
principle presents itself, where a question arises as to whether the
execution of a will is intended to apply to the several papers in

1 See Doe d. Earl of Cholrnondeley v. Maxey, 12 East 589 ; Wheatley v.
Thomas, Sir T. Raym. 54.

The maxim may apply where a power of appointment by will is exercised.
See, for instance, Re Barker, 7 II. & N. 109.

2 Roe d. Allport *>. Bacon, 4 M. & S. 366, 368. See stat. 1 Vict. c. 26, ss.
26, 28. In Doe d. Woodall v. Woodall, 3 C. B. 349 (54 E. C. L. R.), the
question was as to the meaning of the words " in manner aforesaid " occur-
ring in a will. And see the cases on this subject, cited 1 Jarman on Wills,
3d ed., 710(g).

3 Molineux v. Molineux, Cro. Jac. 144 ; Dickinson v. Stidolph, 11 C. B. N.
S. 341 (103 E. C. L. R.) ; 1 Jarman on Wills, 3d ed., 83. As to incorporating
in the probate of wills of personalty papers referred to thereby, but not per
se testamentary : see Sheldon v. Sheldon, 1 Robert. 81 ; Allen v. Maddock, 11
Moo. P. C. C. 427.

4 See Clayton v. Lord Nugent, 13 M. & W. 200.

676 broom's legal maxims.

which the will is contained, or is confined to that with which it is
more immediately associated, and whether an attested codicil com-
municates the efficacy of its attestation to an unattested will or
prior codicil, so as to render effectual any devise or bequest
I~*fi771 *which may be contained in such prior unattested instru-
L -' ment.1

Without adducing further instances of the application of the
maxim, Verba illata inesse videntur — it will be proper to notice a
difficulty which sometimes arises where an exception2 or proviso*
either occurs in, or is by reference imported into a general clause
in a written instrument; the difficulty4 being in determining
whether the party who relies upon the general clause should aver
that the particular case does not fall within the exceptive provision,
or whether it should be left to the party who relies upon that pro-
vision to avail himself of it.

Now the rule usually laid down upon this subject is, that where
matter is introduced by way of exception into a general clause, the
plaintiff must show that the particular case does not fall within
such exception, whereas a proviso need not be noticed by the
plaintiff, but must be pleaded by the opposite party.5 ki The differ-
r*fi7R1 ence *s' *wnere an exception is incorporated in the body
of the clause, he who pleads the clause ought also to plead
the exception ; but when there is a clause for the benefit of the

1 1 Jarman on Wills, 3d ed., 107 et seq. ; Allen v. Maddock, 11 Moo. P. C.
C. 427 ; In the goods of Gill, L. R. 2 P. & D. 6.

2 Logically speaking, an exception ought to be of that which would other-
wise be included in the category from which it is excepted, but there are a
great many examples to the contrary : per Lord Campbell, Gurley v. Gurley,
8 CI. & Fin. 764.

3 The office of a proviso in an Act of Parliament is either to except some-
thing from the enacting clause, or to qualify or restrain its generality, or to
exclude some possible ground of misinterpretation of it as extending to cases
not intended by the legislature to be brought within its purview : per Story,
J., delivering judgment, 15 Peters (U. S.) R. 445.

4 An analogous difficulty may also arise with reference to the repeal or
modification of a prior by a subsequent statute (see Bowyer v. Cook, 4 C. B.
236 (56 E. C. L. R.) ; and, with reference to the restriction of general by
special words, see Howell v. Richards-, 11 East 633 ; ante, p. 646.

6 Spieres v. Parker, 1 T. R. 141 ; R. v. Jukes, 8 T. R. 542 ; per Lord Mans-
field, C. J., R. v. Jarvis, cited 1 East 646, note ; Stevens v. Stevens, 5 Exch.
306.

INTERPRETATION OF DEEDS, ETC. 678

pleader, and afterwards follows a proviso which is against him, he
shall plead the clause, and leave it to the adversary to show the
proviso."1

Hence, if an Act of Parliament or a private instrument contain
in it, first, a general clause, and afterwards a separate and distinct
clause, which has the effect of taking out of the general clause
something which would otherwise be included in it, a party relying
upon the general clause in pleading may set out that clause only,
without noticing the separate and distinct clause which operates as
an exception. If, on the other hand, the exception itself be in-
corporated in the general clause, then the party relying upon the
general clause must in pleading, state it with the exception, and if
he state it as containing an absolute unconditional stipulation, with-
out noticing the exception, it will be a variance.2

In accordance with the first of the above rules, where one section
of a penal statute creates an offence, and a subsequent section
specifies certain exceptions thereto, the exceptions need not be
negatived by the party prosecuting.3 So, where the exception is
created by a distinct subsequent Act of Parliament, as well as where
*it occurs in a subsequent section of the same Act, the r*p7cn
above remark applies ;4 and this rule has likewise been held
applicable where an exception was introduced by way of proviso in
a subsequent part of a section of a statute which imposed a penalty,
and on a former part of which section the plaintiff suing for the
penalty relied.5 " There is," remarked Alderson, B., in the case
referred to, "a manifest distinction between a proviso and an ex-
ception. If an exception occurs in the description of the offence

1 Per Treby, C. J., 1 Lord Raym. 120 ; cited 7 T. R. 31 ; Russell v.
Ledsam, 14 M. & W. 574. See Crow v. Falk, 8 Q. B. 467 (55 E. C. L. R.).

2 Vavasour v. Ormrod, 6 B. & C. 430 (13 E. C. L. R.) ; cited arg., Tucker v.
Webster, 10 M. & W. 373 ; per Lord Abinger, C. B., Grand Junction R. C.
u.White, 8 M. & W. 221; Thibault v. Gibson, 12 M. & W. 94; cited per
Lord Denman, C. J., Palk v. Force, 12 Q. B. 672 (64 E. C. L. R.). See Roe
v. Bacon, 4 M. & S. 366, 368; Paddock v. Forrester, 3 Scott N. R. 715; 1
Wms. Saunds. 262 b. (1) ; R. v. Jukes, 8 T. R. 542.

3 Van Boven's Case, 9 Q. B. 669 (58 E. C. L. R.). See 15 M. & W. 318.
* See, per Lord Abinger, C. B., Thibault v. Gibson, 12 M. & W. 94.

6 Simpson v. Ready, 12 M. & W. 736 (as to which case see, per Alderson,
B., Mayor of Salford v. Ackers, 16 M. & W. 92) ; per Parke, B., Thibault v.
Gibson, 12 M. & W. 96.

34

679 broom's legal maxims.

in the statute, the exception must be negatived, or the party will
not be brought within the description. But, if the exception comes
by way of proviso, and does not alter the offence, but merely states
what persons are to take advantage of it, then the defence must be
specially pleaded, or may be given in evidence under the general
issue, according to circumstances."1

The latter of the two rules above mentioned may be thus illus-
trated : — Where an exception was introduced into the reservation
of rent in a demise, not in express terms, but by reference only to
some subsequent matter in the instrument, viz., by the words, "ex-
cept as hereinafter mentioned," and the plaintiff in his declaration
stated the reservation without the exception, referring to a subse-
quent proviso, this was held, according to the above rule, to be a

j[*680] *Ad proximum Antecedens fiat Relatio, nisi

IMPEDIATUR SENTENTIA.

(Noy Max., 9th ed., p. 4.)

Relative words refer to the next antecedent, unless by such a construction the

meaning of the sentence would be impaired.

Relative words must ordinarily be referred to the next antece-
dent, where the intent upon the whole deed or instrument does not
appear to the contrary,3 and where the matter itself doth not hinder
it.4 The " last antecedent " being the last word which can be made
an antecedent so as to have a meaning.5

1 Per Alderson, B., Simpson v. Ready, 12 M. & W. 740; s. c, 11 Id. 344;
per Lord Mansfield, C. J., Spieres v. Parker, 1 T. R. 144, and in R. v. Jarvis,
1 East 644 (d) ; Bousfield v. Wilson, 16 M. & W. 185. See Tennant app.,
Cumberland, resp., 1 E. & E. 401 (102 E. C. L. R,).

2 Vavasour v. Ormrod, 6 B. & C. 430 (13 E. C. L. R.), and cases cited supra,
p. 678, n. 2.

3 Com. Dig. "Parols" (A. 14, 15); Jenk. Cent. 180; Dyer 46 b; Wing.
Max. p. 19. See Bryant v. Wardell, 2 Exch. 479; Piatt v. Ashley, 1 Exch.
257; Electric Telegraph Co. v. Brett, 10 C. B. 838 (70 E. C. L. R.) ; Reg. v.
Brown, 17 Q. B. 833 (79 E. C. L. R.), with which compare In re Jones, 7
Exch. 586; Eastern Counties R. C. v. Marriage, 9 H. L. Cas. 32; s. c, 2 H.
N. 625 ; cited per Channel], B., Tetley v. Wanless, L. R. 2 Ex. 29, s. c, Id.
275 ; and in Latham v. Lafone, Id. 123 ; Bristol and Exeter R. C. v. Garton,
8 II. L. Cas. 477.

4 Finch Law 8.

6 Per Tindal, C. J., 1A.&E. 445 (28 E. C. L. R.). See Esdaile v. Mac-

INTERPRETATION OF DEEDS, ETC. 680

But, although the above general proposition is true in strict
grammatical construction, yet there are numerous examples in the
best writers to show that the context may often require a deviation
from this rule, and that the relative may be connected with nouns
which go before the last antecedent, and either take from it or give
to it some qualification.1

*For instance, an order of magistrates was directed to r*pQ-|-i
the parish of W., in the county of R., and also to the
parish of M., in the county of L., and the words " county of R."
were then written in the margin, and the magistrates were, in a
subsequent part of the order, described as justices of the peace for
the county aforesaid ; it was held, that it thereby sufficiently ap-
peared that they were justices for the county of R.2

The above rule of grammar, is, of course, applicable to wills as
well as to other written instruments ; for instance : — A testator
devised the whole of his property situated in P., and also his farm
called S., to his adopted child M. He left to his nephew, W., all
his other lands, situated in H. and M. ; and the will contained this
subsequent clause: "And should M. have lawful issue, the said
property to be equally divided between her lawful issue." It was
held, that these words, " the said property," did not comprise the
lands in H. and M. devised to the nephew, although it was argued
that they must, according to the true grammatical construction of
the will, either comprise all the property before spoken of, or must
refer to the next antecedent.3

lean, 15 M. & W. 277; Williams i. Newton, 14 M. & W. 747; Peake v.
Screech, 7 Q. B. 603 (53 E. C. L. R.) Reg. v. Inhabs. of St. Margaret, West-
minster, Id. 569 ; Ledsam v. Russell (in error), 16 M. & W. 633; s. c, 1 H.
L. Cas. 687.

1 Judgm., Staniland v. Hopkins, 9 M. & W. 192; in which case a difficulty
arose as to the proper mode of construing a statute. See also, A.-G. v. Shilli-
beer, 3 Exch. 71 ; Beer app., Santer resp., 10 C. B. N. S. 435 (100 E. C. L.
R.) ; Beckh v. Page, 7 Id. 861; Earl of Kintore v. Lord Inverury, 4 Macq.
Sc. App. Cas. 520.

2 R. v. St. Mary's Leicester, 1 B. & Aid. 327 ; Reg. v. Inhabs. of Casterton,
6 Q. B. 507 (51 E. C. L. R.) ; Baring v. Christie, 5 East 398 ; R. v. Chilver-
scoton, 8 T. R. 178.

3 Peppercorn v. Peacock, 3 Scott N. R. 651 ; Hall v. Warren, 9 II. L. Cas.
420. See also Doe d. Gore v. Langton, 2 B. & Ad. 680, 691 (22 E. C. L. R.) ;
Cheyney's Case, 5 Rep. 68 ; and the cases collected in R. v. Richards, ] M. &
Rob. 177; Owen v. Smith, 2 H. Bla. 594; Galley v. Barrington, 2 Bing. 387

682 broom's legal maxims.

*contemporanea expositio est optima et fortissima
L ^ in Lege.

(2 Inst. 11.)

The best and surest mode of expounding an instrument is by referring to the
time when, and circumstances under which, it was made.1

There is no better way of interpreting ancient words, or of con-
struing ancient grants, deeds, and charters, than by usage;2 and
the uniform course of modern authorities fully establishes the rule,
that, however general the words of an ancient grant may be, it is
to be construed by evidence of the manner in which the thing
granted has always been possessed and used ; for so the parties
thereto must be supposed to have intended.3 Thus, if it be doubt-
ful on the face of an instrument whether a present demise or future
letting was meant, the intention of the parties may be elucidated
by the conduct they have pursued;4 and where the words of the
instrument are ambiguous, the Court will call in aid acts done
under it as a clue to the intention.5 "Contemporaneous usage,"
observed Lord Cottenham, C, in Drummond v. The Attorney-
f~*fiR31 General>6 "is a strong ground for the ^interpretation of
doubtful words or expressions, but time affords no sanction
to established breaches of trust."

Upon the same principle, also, depends the great authority
which, in construing a statute, is attributed to the construction put

(9 E. C. L. P..) ; Doe d. Beech v. Nail, 6 Exch. 102; Peacock v. Stockford, 3
De G., M. & G. 73, 79.

1 The Courts, however, have frequently repudiated the idea of being influ-
enced in their interpretation of a statute by knowledge of what occurred in
Parliament during the passing of the bill: see, for instance, per Pollock, C.
B., 7 Exch. 617 ; per Alderson, B., 5 Exch. 667.

2 Per Lord Hardwicke, C, A.-G. v. Parker, 3 Atk. 576; and 2 Inst. 282;
cited 4 T. R. 819; per Parke, B., Clift v. Schwabe, 3 C. B. 469 (54 E. C. L.
II.) ; and in Jewison v. Dyson, 9 M. & W. 556 : R. v. Mashiter, 6 A. & E. 153
(33 E. C. L. R.) ; R. v. Davie, Id. 374; Senhouse v. Earle, Amb. 288; Co.
Litt. 8 b ; Lockwood v. Wood, 6 Q. B. 31 (51 E. C. L. R.) ; per Lord Eldon,
C, A.-G. v. Forster, 10 Ves. jun. 338 ; Reg. v. Dulwich College, 17 Q. B. 600
(79 E. C. L. R.).

3 Weld v. Hornby, 7 East 199 ; R. v. Osbourne, 4 East 327.

4 Chapman v. Bluck, 4 Bing. N. C. 187, 195 (33 E. C. L. R.).

6 Per Tindal, C. J., Doe d. Pearson v. Ries, 8 Bing. 181 (21 E. C. L. R.).
6 2 H. L. Cas. 861 ; et vide, per Lord Campbell, Id. 863.

etc. 683

upon it by judges who lived at the time when the statute was made, or
soon after, as being best able to determine the intention of the legis-
lature, not only by the ordinary rules of construction, but especially
from knowing the circumstances to which it had relation j1 and
where the words of an Act are obscure or doubtful, and where the
sense of the legislature cannot, with certainty, be collected by inter-
preting the language of the statute according to the reason and
grammatical correctness, considerable stress is laid upon the light
in which it was received and held by the contemporary members of
the Profession. "Great regard," says Sir E. Coke, "ought, in
construing a statute, to be paid to the construction which the sages
of the law, who lived about the time or soon after it was made, put
upon it ; because they were best able to judge of the intention of
the makers at the time when the law was made."2 And, " it is by
no means an inconvenient mode of construing statutes to presume
that the legislature was aware of the state of the law at the time
they passed.3

* Conformably to what has been above said, stress was r*pQ4.-i
laid by several of the judges delivering their opinions in

the Fermoy Peerage Case,4 upon the usage observed in the creation
of Irish Peerages, since the passing of the Act of Union. And in
Salkeld v. Johnson,5 the Court of Exchequer, referring to the stat.

2 & 3 Will. 4, c. 100, intituled " An Act for shortening the time
required in claims of modus deczmandi, or exemption from or dis-
charge of tithes," observe, that they propose to construe it " accord-
ing to the legal rules for the interpretation of statutes, principally
by the words of the statute itself, which we are to read in their

1 2 Phill. Evid., 9th ed., 347; Bank of England v. Anderson, 3 Bing. N. C.
666 (11 E. C. L. R.). See the resolutions in Heydon's Case, 3 Rep. 7, cited
ante, p. 83; as to which vide per Pollock, C. B., A.-G. v. Sillem, ante, p. 571 ;
Lord Camden's judgment in Entick v. Carrington, 19 How. St. Trials 1043,
et seq. ; per Coleridge, J., Reg. v. Archb. of Canterbury, 11 Q. B. 595, 596
(63 E. C. L. R.); per Crompton, J., Sharpley v. Overseers of Mablethorpe,

3 E. & B. 917 (77 E. C. L. R.) ; per Byles, J., 6 C. B. N. S. 213 (95 E. C.
L. R.).

2 Cited Dwarr. Stats., 2d ed., 562, 703 ; 2 Inst. 11, 136, 181 ; per Holt, C. J.,
Comb. R. 210; Corporation of Newcastle v. A.-G., 12 CI. & Fin. 419.

3 Per Pollock, C. B., Jones v. Brown, 2 Exch. 332.

* 5 H. L. Cas. 747, 785.
6 2 Exch. 273.

684 broom's legal maxims.

ordinary sense, and only modify or alter so far as it may be neces-
sary to avoid some manifest absurdity or incongruity, but no
further.1 It is proper also to consider the state of the law which it
proposes or purports to alter, the mischiefs which existed and which
it was intended to remedy, and the nature of the remedy provided,
and to look at the statutes in pari materia,2 as a means of explain-
ing this statute." These are the proper modes of ascertaining the
intention of the legislature.

Usage, however, it has been observed,3 can be binding and opera-
tive upon parties only as it is the interpreter of a doubtful law ; for,
as against a plain statutory law, no usage is of any avail.4 Where,
r*P8Vl ip^eed, tne statute, *speaking on some points, is silent as
to others, usage may well supply the defect, especially if it
is not inconsistent with the statutory directions, where any are
given ; and, in like manner, where the statute uses a language of
doubtful import, the acting under it for a long course of years may
well give an interpretation to that obscure meaning, and reduce
that uncertainty to a fixed rule ; in such a case the maxim here-
after illustrated is applicable, — Optimus legis interpres eomuetudo.5

1 Ante, pp. 573 et seq.

2 See Ex parte Copeland, 2 De G., M. & G. 914.

3 Per Lord Brougham, Magistrates of Dunbar v. Duchess of Roxburghe, 3
CI. & Fin. 354 ; cited arg., 13 M. & W. 411.

4 Hence, speaking with reference to the above maxim, Pollock, C. B., in
Pochin v. Duncombe, 1 II. & N. 856, 857, observes, "The rule amounts to no
more than this, that if the Act be susceptible of the interpretation which has
been put upon it by long usage, the Courts will not disturb that construction :''
citing The Fermoy Peerage Case, 5 H. L. Cas. 716 ; and see the remarks of
the same learned judge in Gwyn v. Hardwicke, 1 II. & N. 53 ; per Lord Camp-
bell, C. J., Gorham v. Bishop of Exeter, 15 Q. B. 73, 74 (69 E. C. L. R.).

5 Post, Chap. X., where the admissibility of usage to explain an instrument
is considered, and additional authorities are cited.

INTERPRETATION OF DEEDS, ETC. 685

Qui ileret in Litera hjeret in Cortice.

(Co. Litt. 283 b.)

lie who considers merely the letter of an instrument goes but skin-deep into its

meaning.

The law of England respects the effect and substance of the mat-
ter, and not every nicety of form or circumstance.1 The reason
and spirit of cases make law, and not the letter of particular prece-
dents.2 Hence it is, as we have already seen, a general and com-
prehensive rule connected with the interpretation of deeds and
written instruments, that, where the intention is clear, too minute
a stress should not be laid on the strict and precise signification of
words.3 For instance, by the grant of a remainder, a reversion
may pass, and e converso ;4 and if a lessee covenants to leave all
the timber which was ^growing on the land when he took r*fiefi-i
it, the covenant will be broken, if, at the end of the term,
he cuts it down, but leaves it there ; for this would be defeating the
intent of the covenant, although a literal performance of it.5

In accordance with this principle, it is a further rule, that mala
grammatica non vitiat chartam6 — the grammatical construction is
not always in judgment of law, to be followed; and neither false
English nor bad Latin will make void a deed when the meaning of
the party is apparent.7 Thus, the word "and " has, as already in-
timated, in many cases, been read "or,5* and vice versa, when this
change was rendered necessary by the context.8 Where, however,
a proviso in a lease was altogether ungrammatical and insensible,

1 Co. Litt. 283; Wing. Max., p. 19. See per Coltman, J., 2 Scott N. R.
300.

2 Per Lord Mansfield, C. J., 3 Burr. 1364.

3 Ante, p. 542, 548. « Hobart 27.
6 Woodf., L. & T., 9th ed., 513..

6 9 Rep. 48 ; 6 Rep. 40 ; Wing. Max., p. 18 ; Vin. Abr., " Grammar " (A.)
Lofft 441.

" It may as properly be said in Scotch as in English law that falsa gram
matica non vitiat chartam:'1 per Lord Chelmsford, Gollan v. Gollan, 4 Macq
Sc. App. Cas/591.

7 Co. Litt. 223 b ; Osborn's Case, 10 Rep. 133 ; 2 Show. 334. See Reg. v
Inhabs. of Wooldale, 6 Q. B. 565 (51 E. C. L. R.).

8 Ante, p. 592 ; Chapman v. Dalton, Plowd. 289 ; Harris v. Davis, 1 Coll
416.

4X1

686- broom's legal maxims.

the Court declared that they did not consider themselves bound to
find out a meaning for it.1

In interpreting an Act of Parliament, likewise, it is not, in gen-
eral, a true line of construction to decide according to the strict
letter of the Act; hut the Courts will rather (subject to the remarks
already made upon this matter2) consider what is its fair meaning,3
I~*fi871 an(^ w^ expound it *dincerently from the letter, in order
to preserve the intent.4 The meaning of particular words,
indeed, in statutes, as well as in other instruments, is to be found,
not so much in a strictly etymological propriety of language, nor even
in popular use, as is in the subject or occasion on which they are
used, and the object that is intended to be attained.5 " Such is the
imperfection of human language," remarked Sir W. Jones, "that
few written laws are free from ambiguity, and it rarely happens
that many minds are united in the same interpretation of them ;"
and hence it is that fixed rules of interpretation, which the wisdom
of ages has sanctioned and established, become necessary for our
guidance whensoever the sense of the words used is in any way am-
biguous or doubtful. In the preceding pages we have endeavored
to place before the reader such of those rules and maxims as
seemed most valuable for the purpose-here indicated ; such, indeed,
as seemed best adapted, in the language of the eminent jurist
already quoted, to "serve as stars whereby the practitioner may
steer his course in the construction of all public and private
writings."6

1 Doe d. Wyndham v. Carew, 2 Q. B. 317 (42 E. C. L. R.) ; Berdoe v. Spit-
tle, 1 Exch. 175. See Moverly v. Lee, 2 Ld. Raym. 1223, 1224.

2 Ante, p. 573 et seq.

3 Per Lord Kenyon, C. J., 7 T. R. 196 ; Fowler v. Padget, Id. 509; 11 Rep.
73 ; Litt., s. 67, with Sir E. Coke's Commentary thereon, cited, 3 Bing. N. C.
525 (32 E. C. L. R.) ; Co. Litt. 381 b. See Vincent v. Slaymaker, 12 East
372 ; arg., Bignold v. Springfield, 7 CI. & Fin. 109, and cases there cited.

4 3 Rep. 27. According to the Roman law, semper in obscuris quod mini-
mum est sequimar, D. 50. 17. 9, which is a safe maxim for guidance in our
own ; see per Maule, J., Williams v. Crosling, 3 0. B. 962 (54 E. C. L. R.).

6 Judgm., R. v. Hall. 1 B. & C. 123 (8 E. C. L. R) ; cited 2 C. B. 66.
6 Life of Sir Wm. Jones, by Lord Teignmouth (ed. 1804), p. 262.

THE LAW OF CONTRACTS. 688

*CHAPTER IX. p6881

THE LAW. OF CONTRACTS.

A very cursory glance at the contents of the preceding pages
will show that we have not unfrequently had occasion to refer to
the Law of Contracts, in illustration of maxims heretofore sub-
mitted to the reader. Many, indeed, of our leading principles of
law have necessarily a direct .and important bearing upon the law
merchant, and must, therefore, be constantly borne in mind when
the attention is directed to that subject. The following pages have
been devoted to a review of such maxims as are peculiarly, though
by no means exclusively, applicable to contracts ; and an attempt
has been made, by the arrangement adopted, to show, as far as
practicable, the connection which exists between them, and the rela-
tion in which they stand to each other. The first of these maxims
sets forth the general principle, that parties may, by express agree-
ment inter se, and subject to certain restrictions, acquire rights or
incur liabilities which the law would not otherwise have conceded
to, or imposed upon them. The maxims subsequently considered
show that a man may renounce a privilege or right which the law
has conferred upon him ; that one who enjoys the benefit, must
likewise bear the inconvenience or loss resulting from his con-
tract ; that, where the right or where the delinquency on each
side is equal *in degree, the title of the party in actual r+aoq-x
possession shall prevail. Having thus stated the prelimi-
nary rules applicable to the conduct and position of the contract-
ing parties, we have proceeded to examine the nature of the con-
sideration essential to a valid contract — the liabilities attaching
respectively to vendor and purchaser — the various modes of pay-
ment and receipt of money — and the effect of contracting, or, in
general, of doing any act through the intervention of a third party
as agent, together with the legal consequences which flow from the
subsequent ratification of a prior act. Lastly, we have stated in
what manner a contract may be revoked or dissolved, and how a
vested right of action may be affected by the Statute of Limita-
tions, or by the negligence or death of the party possessing it. It

689 broom's legal maxims.

•will be evident, from the above brief outline of the principles set
forth in this Chapter, that some of them apply to actions of tort,
as well as to those founded in contract ; and when such has been
the case, the remarks and illustrations appended have not been in
any way confined to actions of the latter description. The general
object, however, has been to exhibit the most important elementary
rules relative to contracts, and to show in what manner the law
may, through their medium, be applied to regulate and adjust the
infinitely varied and complicated transactions of a mercantile com-
munity.

Modus et Conventio vincunt Legem.

(2 Rep. 73.)
The form of agreement and the convention of parties overrule the law.

P6901 ~^e aDove may De regarded as the most elementary
^principle of law relative to contracts,1 and may be thus
stated in a somewhat more comprehensive form : The conditions
annexed to a grant or devise, the covenants inserted in a convey-
ance or lease, and the agreements, whether written or verbal,
entered into between parties, have, when duly executed and per-
fected, and subjected to certain restrictions, the force of law over
those who are parties to such instruments or agreements.2 " Parties
to contracts," remarks Erie, J., in a recent case,3 "are to be allowed
to regulate their rights and liabilities themselves/' and "the Court
will only give effect to the intention of the parties as it is expressed
by the contract."4

1 In illustration of it, see Walsh v. Secretary of State for India, 10 H. L.
Cas. 367 ; Savin v. Iloylake R. C, L. R. 1 Ex. 9.

2 A " contract" is defined to be " Une convention par laquelle les deux par-
ties, ou seulement Vune des deux, promettent et s'engagent envers V autre a lui
donner quelque chose ou a fair e ou d ne pas fair e quelque chose:'1'1 Pothier
Oblig., pt. 1, chap. 1, art. ],s.l. Omnejus aut consensus fecit, aut necessitas
constituit, aut firmavit consuetudo ; D. 1. 3. 40. " It is the essence of a contract
that there should be a concurrence of intention between the parties as to the
terms. It is an agreement because they agree upon the terms, upon the sub-
ject-matter, the consideration, and the promise," L. R. 4 Ex. 381.

3 Gott v. Gandy, 23 L. J. Q. B. 1, 3 ; s. c, 2 E. & B. 847 (75 E. C. L. R.) ;
per Erie, J., 4 H. & N. 343.

4 Judgni., Stadhard v. Lee, 3 B. & S. 372 (113 E. C. L. R.) ; per Bramwell,

x THE LAW OF CONTRACTS. 690^

Where, for instance, a man seised of a reversion expectant on
an estate for life grants an interesse termini to A. for ninety-nine
years, if he shall so long live, to commence after the death of the
tenant for life, reserving a heriot on the death of A., and A. dies
in the lifetime of the tenant for life, the lessor is entitled to the
heriot reserved on the death of A., although he never enjoyed the
estate, by reason of the express contract between the *par- r*Aqin
ties.1 In like manner, where the tenant of a house
covenanted in his lease to pay a reasonable share and proportion of
the expenses of supporting, repairing, and amending all party-walls,
&c, and to pay all taxes; duties, assessments, and impositions, par-
liamentary and parochial, — " it being the intention of the parties
that the landlord should receive the clear yearly rent of 607. in net
money, without any deduction whatever," — and during the lease the
proprietor of the adjoining house built a party-wall between his own
house and the house demised, under the provisions of the stat. 14
Geo. 3, c. 78 : it was held, that the tenant, and not the landlord,
was bound to pay the moiety of the expense of the party-wall ;
"for," observed Lord Kenyon, "the covenants in the lease render
it unnecessary to consider which of the parties would have been
liable under the Act of Parliament ; Modus et conventio vincunt
legem.*'2 So, a tenancy at will is a kind of holding not favored
nor readily implied by the law. If, however, an agreement be
made to let premises so long as both parties like, and a compensa-
tion accruing de die in diem, and not referable to a year or any
aliquot part of a year, be thereby reserved, such an agreement does
not create a holding from year to year, but a tenancy at will strictly
so called ; for two persons may agree to make a tenancy at will,
according to the maxim, Modus et conventio vincunt legem?

So in Rowbotham v. Wilson,4 Martin, B., observes, " I think the
owner of land may grant the surface, subject *to the r*pqo-'
quality or incident that he shall be at liberty to work the

B., Rogers v. Hadley, 2 H. & C. 249 ; per Erie, C. J., Martin v. Reid, 11 C.
B. N. S. 735 (103 E. C. L. R.).

1 Per Kelynge, C. J., Lanyon v. Carne, 2 Saund. R. 167. See Doe d. Doug-
las v. Lock, 2 A. & E. 705 (29 E. C. L. R.) ; Winch. R. 48.

2 Barrett v. Duke of Bedford, 8 T. R. 602, 605.

3 Richardson v. Langridge, 4 Taunt. 128 ; recognised Doe d. Hull v. Wood,
14 M. & W. 687. See Doe d. Dixie v. Davies, 7 Exch. 89.

4 8 E. & B. 150 (92 E. C. R. R) ; s. c, 8 H. L. Cas. 348.

692 broom's legal maxims. »

mines underneath, and not be responsible for any subsidence of the
surface. If the law of itself, under certain circumstances, protects
from the consequences of an act, I think a man may contract for
such protection in a case where the law of itself would not apply,
Modus et conventio vincunt legem."

In an action on the case for not carrying away tithe corn, the
plaintiff alleged, that it was " lawfully and in due manner " set out :
it was held, that this allegation was satisfied by proof that the tithe
was set out according to an agreement between the parties, although
the mode thereby agreed to varied from that prescribed by the
common law, the tithe having been set out in shocks, and not in
sheaves, as the law directs.1

The same comprehensive principle applies, also, to agreements
having immediate reference to mercantile transactions : thus, the
stipulations contained in articles of partnership may be enforced,
and must be acted on as far as they go, their terms being explained,
and their deficiences supplied, by reference to the general princi-
ples of law. Although, therefore, a new partner cannot at law be
introduced without the consent of every individual member of the
firm, yet the executors of a deceased partner will be allowed to oc-
cupy his place, if there be an express stipulation to that effect in
the agreement of partnership. Again, the lien which a factor has
upon the goods of his principal2 arises from a tacit agreement be-
l~*fiQm tween tne Parties> which the law implies ; but, where there
is an express stipulation to the contrary, it puts an *end
to the general rule of law.3 The general lien of a banker, also, is
part of the law merchant, and will be upheld by Courts of justice,
unless there be some agreement between the banker and the deposi-
tor, either express or implied, inconsistent with such right.4 So, it
has been remarked that, in the ordinary case of a sale of chattels,
time is not of the essence of the contract, unless it be made so by

1 Facey v. Hurdom, 3 B. & C. 213 (10 E. C. L. R.). See Halliwell v.
Trappes, 1 Taunt. 55.

2 See Dixon v. Stansfeld, 10 C. B. 398 (70 E. C. L. R.).

3 Per Lord Kenyon, C. J., Walker v. Birch, 6 T. R. 262.

As to the general lien of a wharfinger at common law, see Dresser v. Bosan-
quet, 4 B. & S. 460, 486 (116 E. C. L. R.).

* Brandao v. Barnett, 12 CI. & Fin. 787 : s. c, 3 C. B 519 (54 E. C. L. R.).

As to the lien of a shipowner on the cargo for freight, see How v. Kirch-
ner, 11 Moo. P. C. C. 21 ; Kirchner v. Venus, 12 Id. 361.

THE LAW OF CONTRACTS. 693

express agreement, and this may be effected with facility by intro-
ducing conditional words into the bargain ; the sale of a specific
chattel on credit, therefore, although 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.1

The doctrine relative to specific performance may here simply be
mentioned, as showing that Courts of equity fully acknowledge the
efficacy of contracts, where bond fide entered into in accordance
with those formalities, if any, required by the statute law. Equity,
indeed, from its peculiar jurisdiction, has power for enforcing the
fulfilment of contracts which a Court of law does not possess ;2 and
in exercising this power, it obviously acts upon the *princi- r*^q4i
pie that express stipulations prescribe the law quoad the
contracting parties. For instance, money was devised to be laid
out in land to the use of B. in tail, remainder to the use of C. in
fee. B. having no issue, agreed with C. to divide the money; but
before the agreement was executed B. died, whereupon C. becoming,
as he supposed, entitled to the whole fund, refused to complete the
agreement. The Court, however, upon bill filed by B.'s personal
representatives, decreed a specific performance;3 acting thereby in
strict accordance with the above maxim, Modus et conventio vincunt
legem.4"

Without venturing further into the wide field which is here
opening upon us, we may add, that it does sometimes happen,
notwithstanding an«express agreement between parties, that peculiar
circumstances present themselves which afford grounds for the
interference of a Court of equity, in order that the contract
entered into may be so modified as to meet the justice of the case.
For instance, where an attorney, whilst he lay ill, received the sum
of 120 guineas by way of premium or apprentice fee with a clerk

1 Martindale v. Smith, 1 Q. B. 395 (41 E. C. L. R.); cited in Page v. Edul-
jee, L. R. 1 P. C. 145. In Spartali v. Benecke, 10 C. B. 216 (70 E. C. L. R.),
Wilde, C. J., observes, " If a vendor agrees to sell for a deferred payment,
the property passes, and the vendee is entitled to call for a present delivery
without payment." See also per Blackburn, J., Calcutta and Burmah Steam
Nav. Co. v. De Mattos, 32 L. J. Q. B. 328.

2 See Benson v. Paull, 6 E. & B. 273 (88 E. C. L. R.).

3 Carter v. Carter, Cas. temp. Talb. 271.

4 See also Frank v. Frank, 1 Chanc. Cas. 84.

694 broom's legal maxims.

who was placed with him, and died three weeks afterwards, the
Court decreed a return of 100 guineas, although the articles
provided that, if the attorney should die within the year 601. only
should be returned.1 With respect to this case, Lord Kenyon,
indeed, observed,2 that in it the jurisdiction of a Court of equity
had been carried "as far as could be;" but the decision seems, from
r^^qr-i the facts stated in the pleadings,3 *to be supportable upon
a plain ground of equity, viz. that of mutual mistake,
misrepresentation, or unconscientious advantage,4 and, consequently,
not really opposed to the spirit of the maxim, Modus et conventio
vincunt legem.

The rule under consideration, however, is subject to restriction
and limitation, and does not apply where the express provisions of
any law are violated by the contract, nor, in general, where the in-
terests of the public, or of third parties, would be injuriously
affected by its fulfilment : — Pacta, quce contra leges constitutionesque
vel contra bonos mores fiunt, nullam vim haberre, indubitati juris
est;5 and privatorum conventio juri publico non derogat.6 "If the
thing stipulated for is in itself contrary to law, the paction by
which the execution of the illegal act is stipulated must be held as
intrinsically null, pactis privatorum juri publico non derogatur. It
is impossible to compel one who is unwilling to disobey the law to
contravene it. He is entitled to plead freedom from a contract
into which he should never have entered, and to be protected in
maintaining: an obedience to the law which the law would of itself
have interposed to enforce, had the act come otherwise within its
cognisance."7

Not only is the consent or private agreement of individuals

ineffectual in rendering valid any direct contravention of the law,

but it will fail altogether to make just, sufficient, or effectual that

l~*fiQPl wn'cn *s urijust or deficient *in respect to any matter which

the law declares to be indispensable and not circumstantial

1 Newton v. Rowse, 1 Vern., 3d eti\, 460. See Re Thompson, 1 Exch. 864.

2 Hale v. Webb, 2 Bro. Chan. Rep. 80.

3 See 1 Vern., 3d ed., 460 (2).

4 1 Story, Eq. Jurisp., 6th ed., 537, etvideld., 9th ed., 452-3.
6C. 2. 3. 6.

« D. 50. 17. 45, § 1 ; D. 2. 14. 38 ; 9 Rep. 141.

7 Per Dr. Lushington, arguendo, Phillips v. Innes, 4 CI. & Fin. 241 ; arg.,
Swan v. Blair, 3 CI. & Fin. 621.

THE LAW OF CONTRACTS. 696

merely.1 Therefore an agreement by a married woman, that she
will not avail herself of her coverture as a ground of defence to an
action on a personal obligation which she has incurred, would not
be valid or effective in support of the plaintiff's claim and by way
of answer to a plea of coverture ; for a married woman is under a
total disability, and her contract is absolutely void, unless where it
can be viewed as a contract on behalf of the husband through her
agency.2

So, with reference to a provision in a foreign policy of insurance
against all perils of the sea, "nullis exceptis" it was observed,
that, although there was an express exclusion of any exception by
the terms of the policy, yet the' reason of the thing engrafts an
implied exception even upon words so general as the above; as, for
example, in the case of damage occasioned by the fault of the as-
sured; it being a general rule that the insurers shall not be liable
when the loss or damage happens by the fault or fraudulent conduct
of the assured, from which rule it is not allowed to derogate by any
pact to the contrary; for nulld pactione effici potest ut dolus prces-
tetur — I cannot effectually contract with any one that he shall
charge himself with the faults which I shall commit;3 a man cannot
validly contract that he shall be irresponsible for fraud. Neither
will the law permit a person who enters into a binding contract, to
*say, by a subsequent clause, that he will not be liable to r*pq7-|
be sued for a breach of it.4

It is equally clear that an agreement entered into between two
persons cannot, in general, affect the rights of a third party, who
is altogether a stranger to it ; thus, if it be agreed between A. and
B. that B. shall discharge a particular debt due from A. to C,
such an agreement can in no way prejudice C.'s right to sue A. for its
recovery ; debitorum pactionibus creditorum petitio nee tolli nee
minui potest;5 and, according to the rule of the Roman law —
privatis pactionibus non dubiurn est non Icedi jus cceterorum.6

1 Bell, Diet, and Dig. of Scotch Law 694.

2 See Liverpool Adelphi Loan Ass. v. Fairhurst, 9 Exch. 422 ; Wright v. Leon-
ard, 11 C. B. N. S. 258 (103 E. C. L. R.) ; Cannam v. Farmer, 3 Exch. 698 ;
Bartlett v. Wetls, 1 B. & S. 836 (101 E. C. L. R.).

3 Judgm., 5 M. & S. 466 ; D. 2. 14. 27. 3.

* Per Martin, B., Kelsall v. Tyler, 11 Exch. 534.

« 1 Pothier Oblig. 108, 109. . 6 D. 2. 15. 3, pr.

697 broom's legal maxims.

In the above and similar cases, then, as well as in some others
relative to the disposition of property, which have been noticed in
the preceding Chapter,1 another maxim emphatically applies : Fortior
et potentior est dispositio legis qudm Jiominis2 — the law in some cases
overrides the will of the individual, and renders ineffective and
futile his expressed intention or contract.3

For instance, "surrender" is the term applied in law to "an act
ppq^-, done by or to the owner of a particular estate, *the valid-
ity of which he is estopped from disputing, and which
could not have been done if the particular estate continued to ex-
ist;" as in the case of a lessee taking a second lease from the
lessor, or a tenant for life accepting a feoffment from the party in
remainder, or a lessee accepting a rent charge from his lessor. In
such case the surrender is not the result of intention; for, if there
was no intention to surrender the particular estate, or even if there
was an express intention to keep it unsurrendered, the surrender
would be the act of the law, and would prevail in spite of the inten-
tion of the parties :4 Fortior et potentior est dispositio legis qudm
hominis.5

1 See also per Lord Kenyon, C. J., Doe d. Mitchinson v. Carter, 8 T. R. 61 ;
s. c, Id. 300 ; arg., 15 East 178.

2 Co. Litt. 234 a, cited 15 East 178. The maxim supra is illustrated, per
Williams, J., Hybart v. Parker, 4 C. B. N. S. 213-14 (93 E. C. L. R.).

3 For instance, a man cannot, by his own acts or words, render that irre-
vocable, which, in its own nature, and according to established rules of law,
is revocable, as in the case of a will. So, " the rule which prohibits the
assignment of a right to sue on a covenant, is not one which can be dispensed
with by the agreement of the parties, and it applies to covenants expressed
to be with assignees, as well as to others :" judgm., 1 Exch. 645. And see
judgm., Hibblewhite v. M'Morine, 6 M. & W. 216; Broom's Com., 4th ed.,
439.

4 Lyon v. Reed, 13 M. & W. 285, 306; commented on, Nickells v. Ather-
stone, 10 Q. B. 944 (59 E. C. L. R.). As to a surrender by operation of law,
see also Davison v. Gent, 1 H. & N. 744 ; Doe d. Hull v. Wood, 14 M. & W.
682 ; Morrison v. Chadwick, 7 C. B. 266 (62 E. C. L. R.) ; Tanner v. Hartley,
9 C. B. 634 (67 E. C. L. R.) ; judgm., Doe d. Biddulph v. Poole, 11 Q. B. 716
(63 B. C. L. R.) ; Phene v. Popplewell, 12 C. B. N. S. 334 (104 E. C. L. R.).

• Similarly applied in 8 Johns. (U. S.) R. 401 ; Co. Litt. 338 a. It may
possibly happen, too, that the direction of a particular legal tribunal will
have to be disregarded by a judge, as opposed to the common law; see
per Coleridge, J., 15 Q. B. 192 (69 E. C. L. R.). And see other instances, in
connection with illegal contracts, post. Et vide per Lord Truro, C, Ellcock

THE LAW OF CONTRACT. 698

Subject to the above, however, and similar exceptions, the gene-
ral rule of the civil law holds equally in our own : Pacta eonventa
quce neque contra leges neque dolo rnalo inita sunt omnimodo obser-
vanda sunt1 — compacts which are not illegal, and do not originate
in fraud, must in all respects be observed.

*QUILIBET POTEST RENUNCIARE JURI PRO SE INTRODUCTO. [*699]
(Wing. Max, 483.)

Any one may, at his pleasure, renounce the benefit of a stipulation or other
right introduced entirely in his own favor.2

According to the well-known principle expressed in the above
maxim, any person may deeline to avail himself of a defence which
would be at law a valid and sufficient answer to the plaintiff's de-
mand, as of infancy, or the Statute of Limitations;3 and not only
may he, in either of the two latter cases, waive his right to insist
upon the specific defence, but he may even ratify and renew his lia-
bility, and by his own act or acknowledgment render himself clearly
responsible, if this be done in such a manner as by law required.4
So, a man may not merely relinquish a particular line of defence,
but he may also renounce a claim which might have been substan-
tiated, or release a debt which might have been recovered by ordi-
nary legal process ; or he may, by his express contract or stipula-
te. Mapp, 3 H. L. Cas. 507 ; per Parke, B., Hallett v. Dowdall, 18 Q. B. 87 (83
E. L. C. R.).

1 C. 2. 3. 29.

2 Bell Diet, and Dig. of Scotch Law 545 j 1 Inst. 99 a ; 2 Inst. 183 ; 10
Rep. 101.

The words pro se " have been introduced into the above maxim to show that
no man can renounce a right which his duty to the public, which thf claims
of society forbid the renunciation of-," per Lord Westbury, C, Hunt v. Hunt,
31 L. J. Chanc. 175.

3 See Tanner v. Smart, 6 B. & C. 603 (13 E. C. L. R.) | per Parke, B., Hart
v. Prendergast, 14 M. & W. 743.

4 See per Bayley, J., 2 M. & S. 25 (28 E. C. L. R.) j per Abbott, C. J., 5 B.
& Aid. 686 (7 E. C. L. R.). Graham v. Ingleby, 1 Exch. 651, 656, shows that
a plaintiff may waive the benefit of the stat. 4 Ann. c. 16, s. 11, which re-
quires that a plea in abatement should be verified by affidavit.

35

699 broom's legal maxims.

tion, exclude some more extensive right, which the law would
otherwise have impliedly conferred. In all these cases, the rule
holds, Omnes licentiam habere his, quce pro se indulta sunt, renun-
f~*7001 c^arel — every man may ^renounce a benefit or waive a priv-
ilege which the law has conferred upon him.2 For instance,
whoever contracts for the purchase of an estate in fee-simple, with-
out any exception or stipulation to vary the general right, is
entitled to call for a conveyance of the fee, and to have a good title
to the legal estate, made out. But, upon the principle under con-
sideration, a man may, by express stipulation, or by contract, or
even by consent testified by acquiescence or otherwise, bind himself
to accept a title merely equitable, or a title subject to some encum-
brance ; and whatever defect there may be, which is covered by
this stipulation, must be disregarded by the conveyancer to whom
the abstract of title is submitted, as not affording a valid ground of
objection.3

According to the same principle, if a man, being tenant for life,
has a power to lease for twenty-one years for his own benefit, he
may renounce a part of the right so given, and grant a lease for
any number of years short of the twenty-one, i. e., he may either
exercise his right to the utmost extent of the power, or he may stop
short of that; and then every part of which he abridged himself
would be for the benefit of the next in remainder ; he would throw
back into the inheritance that portion which he did not choose to
absorb for his own use.4

Again, the right to estovers is incident to the estate of every

r*70n tenant f°r l^e or years (though not to the estate of *a

strict tenant at will), unless he be restrained by special

covenant to the contrary, which is usually the case ; so that here

1 C. 1. 3. 51 ; C. 2. 3. 29 ; Invito beneficium non dalur, D. 50. 17. 69.

See, as illustrating the maxim cited in the text, Markham v. Stanford, 14
C. B. ^. S. 376, 383 (108 E. C. L. R.) ; distinguished in Morten v. Marshall,
2 H. & C. 305.

2 Per Erie, C. J., Rumsey v. North Eastern R. C, 14 C. B. N. S. 649 (108
E. C. L. R.) ; Caledonian R. C. v. Lockhart, 3 Macq. Sc. App. Cas. 808, 822;
per Martin, B., 8 E. & B. 151 (92 E. C. L. R.) ; per Pollock, C. B., and Brain-
well, B., 2 H. & C. 308, 309. See Enohin v. Wylie, 10 H. L. Cas. 1, 15.

3 3 Prest. Abs. Tit. 221.

4 Per Lord Ellenborough, C. J., Isherwood v. Oldknow, 3 M. & S. 392. See
also, Co. Litt. 223 b.

THE LAW OF CONTRACTS. 701

the above maxim, or that relating to modus et convention may be
applied.1

Another familiar instance of the application of the same princi-
ple occurs in connection with the law of bills of exchange. The
general rule is, that, in order to charge the drawer or endorser of
a bill, payment must be demanded of the acceptor in the first in-
stance on the day when the bill becomes due ; and, in case of refusal
or default, due notice of such demand and refusal or default must
be given to the drawer within a reasonable time afterwards ; the
reason being, that the acceptor of a bill is presumed to have in his
hands eifects of the drawer for the purpose of discharging the bill ;
and, therefore, notice to the drawer is requisite, in order that he
may withdraw his eifects as speedily as possible from the hands of
the acceptor. Until these previous steps have been taken, the
drawer cannot be resorted to on non-payment of the bill ; and the
want of notice to a drawer, who has effects in the hands of the ac-
ceptor, after dishonor of the bill, is considered as tantamount to
payment by him. So, where a bill has been endorsed, and the
holder intends to sue any of the endorsers, it is incumbent on him
first to demand payment from the acceptor on the day when the bill
becomes due, and, in case of refusal, to give due notice thereof
within a reasonable time to the endorser ; the reason being, that the
endorser is in the nature of a surety only, and his undertaking to
pay the bill is not an absolute, but a conditional undertaking, that
is, in the event of a demand made on the acceptor (who is r^no-i
primarily liable) at *the time when the bill becomes due,
and refusal on his part, or neglect to pay.2 As, however, the rule
requiring notice was introduced for the benefit of the party to
whom such notice must be given, it may, in 'accordance with the
above maxim, be waived by that party.3 But though a party may
thus waive the consequences of laches in respect to himself, he can-
not do so in respect of antecedent parties ; for that would be in

1 Co. Litt. 41 b.

2 Where the drawer has in the drawee's hands no effects, or effects insuffi-
cient for payment of the draft (Oarew v. Duckworth, L. R. 4 Ex. 313), he is
not in general entitled to notice : Bickerdike v. Bollman, 1 T. R. 405 : Carter
v. Flower, 16 M. & W. 743 ; Bailey v. Porter, 14 M. & W. 44 ; Thomas v. Fen-
ton, 16 L. J. Q. B. 362.

3 See Steele v. Harmer, 14 M. & W. 831 ; Mills v. Gibson, 16 L. J. C. P
249 5 Burgh v. Legge, 5 M. & W. 418 ; Allen v. Edmundson, 2 Exch. 719.

702 broom's legal maxims.

violation of another legal principle presently to be mentioned, which
limits the application of the maxim now under consideration to
those cases in which no injury is inflicted, by the renunciation of a
legal right, upon a third party.

Again, persons sharing in the profits of an adventure may, by
express agreement, exclude the relation of partnership from arising
as between themselves, though they cannot thereby affect the rights
of third persons ; and a private regulation between the members of
a trading company to limit the personal liability of individuals, or
to regulate the contracts which each partner may enter into on be-
half of the firm, although valid as between themselves, will be
wholly nugatory quoad strangers.1 The rights of partners inter se
have, indeed, been created and upheld by the law for their own con-
venience, and may, therefore, by express stipulation, be renounced.
Thus, it is a rule, that all property bought with the cash
r*70°l *anc^ f°r tne purposes of a trading partnership concern,
must, in equity, be looked upon as personal ; and that a
partner's share and interest therein will, on his death, pass to his
personal representatives ; but partners may stipulate between them-
selves, that freehold lands purchased by them shall not be subject
to the application of this equitable doctrine, but shall follow the
ordinary rules respecting property of that description ; and, in such
a case, the rule of equity yields to the ordinary course of law,
coupled with the express intention of the parties.2

It will be seen from some of the preceding instances, that the
rule which enables a man to renounce a right which he might other-
wise have enforced, must be applied with this qualification, that, in
general, a private compact or agreement cannot be permitted to
derogate from the rights of third parties,3 or, in other words,
although a party may renounce a right or benefit pro se introduc-
tum, he cannot renounce that which has been introduced for the
benefit of another party ; thus, the rule that a child within the age
of nurture cannot be separated from the mother by order of removal,

1 See further, as to partnership liability, post, under the maxim qui facit
per alium facit per se.

8 Ante, p. 692.

» 7 Rep. 23. See Brinsdon v. Allard, 2 E. & E. 19 (102 E. C. L. R) ; Slater
v. Mayor, &c, of Sunderland, 33 L. J. Q. B. 37.

THE LAW OF CONTRACTS. 703

has been established for the benefit and protection of the child, and
therefore cannot be dispensed with by the mother's consent.1

One case may, however, be mentioned to which the rule applies,
without the qualification — that, viz., of a release by one of several
joint creditors, which, in the absence of fraud and collusion, will
operate as a release of the claims of the other creditors, and may
be pleaded accordingly. On the other hand, the debtee's discharge
*of one joint or joint and several debtor is a discharge of r*704i
all;2 and a release of the principal debtor will discharge
the sureties, unless, indeed, there be an express reservation of
remedies as against them.3

It is also a well-known principle of law, that, where a creditor
gives time to the principal debtor,4 there being a surety to secure
payment of the debt, and does so without consent of or communi-
cation with the surety, he discharges the surety from liability, as he
thereby places himself in a new situation,5 and exposes him to a risk
and contingency to which he would not otherwise be liable ;6 r*^o<Vl
*and this seems to afford a further illustration of the

1 Reg. v. Birmingham, 5 Q. B. 210 (48 E. C. L. R.). See Reg. v. Combs, 5
E. & B. 892 (85 E. C. L. R.).

. 2 Nicholson v. Revill, 4 A. & E. 675, 683 (31 E. C. L. R.), recognising Cheet-
ham v. "Ward, 1 B. & P. 630, and cited in Kearsley v. Cole, infra, and Thomp-
son v. Lack, 3 C. B. 540j (54 E. C. L. R.) ; Co. Litt. 232 a ; judgm., Price v.
v. Barker, 4 E. & B. 777 (82 E. C. L. R.) ; Clayton v. Kynaston, 2 Salk. 573 ;
2 Roll. Abr. 410, D. 1 • 412, G., pi. 4.

3 Kearsley v. Cole, 16 M. & W. 128 ; Thompson v. Lack, 3 C. B. 540 (54 E.
C. L. R.) ; judgm., Price v. Barker, 4 E. & B. 779 (82 E. C. L. R.) ; Owen v.
Homan, 4 H. L. Cas. 997, 1037.

* " The general rule of law where a person is surety for the debt of another
is this — that though the creditor may be entitled, after a certain period, to
make a demand and enforce payment of the debt, he is not bound to do so ;
and provided he does not preclude himself from proceeding against the prin_
cipal, he may abstain from enforcing any right which he possesses. If the
creditor has voluntarily placed himself in such a position that he cannot sue
the principal, he thereby discharges the surety. But mere delay on the par,
of the creditor, unaccompanied by any valid contract with the principal, will
not discharge the surety : per Pollock, C. B., Price v. Kirkham, 3 II. & C.
441.

6 See Harrison v. Seymour, L. R. 1 C. P. 518 ; Union Bank of Manchester
v. Beech, 3 H. & C. 672; Skillett v. Fletcher, L. R. 2 C. P. 469, and cases
there cited.

• Per Lord Lyndhurst, Oakeley v. Pasheller, 4 CI. & Fin. 233. See further

705 broom's legal maxims.

remark already offered, that a renunciation of a right cannot in
general1 be made to the injury of a third party.

Where, however, a husband, whose wife was entitled to a fund
in court, signed a memorandum after marriage, agreeing to secure
half her property on herself, it was held, that it was competent for
the wife to waive this agreement, and that any benefit which her
children might have taken under it was defeated by her waiver.2

Lastly, it is clear that the maxim, Quilibet potest renunciare juri
pro se introducto, is inapplicable where an express statutory direc-
tion enjoins compliance with the forms which it prescribes ; for
instance, a testator cannot dispense with the observance of those
formalities which are essential to the validity of a testamentary in-
strument ; for the provisions of the Statute of Frauds, or of the
modern Wills Act, were introduced with a view to the public bene-
fit, not that of the individual, and, therefore, must be regarded as
positive ordinances of the legislature, binding upon all.3 Nor can
an individual waive a matter in which the public have an interest.4

[*706] *QUI SENTIT COMMODUM SENTIRE DEBET ET ONUS.

(2 Inst. 489.)
He icho derives the advantage ought to sustain the burthen.

The above rule5 applies as well in the case where an implied
covenant runs with the land, as where the present owner or occu-

as to the rule above stated, per Lord Brougham, Mactaggart v. Watson, 3 CI.
& Fin. 541 : per Lord Eldon, C, Samuell v. Howorth, 3 Mer. 278, adopted per
Lord Cottenham, C, Creighton v. Rankin, 7 CI. & Fin. 346 ; Manley v. Boy-
cott, 2 E. & B. 46 (75 E. C. L. R.) ; Pooley v. Harradine, 7 E. & B. 431 (90
E. C. L. R.) ; Lawrence v. Walmsley, 12 C. B. N. S. 799, 808 (104 E. C. L.
R.) ; see Bonar v. Macdonald, 3 Ii. L. Cas. 226 5 General Steam Nav. Co. v.
Rolt, 6 C. B. N. S. 550 (95 E. C. L. R.) ; Way v. Hearn, 11 C. B. N. S. 774
(103 E. C. L. R.) ; 13 Id. 292 ; Frazer v. Jordan, 8 F/. & B. 303 (92 E. C. L.
R.) ; Taylor v. Burgess, 5 II. & N. 1 ; Bailey v. Edwards, 4 B. & S. 761 (116
E. C. L.R.).

1 See Langley v. Headland, 19 C. B. N. S. 42 (105 E. C. L. R.).

2 Fenncr v. Taylor, 2 Russ. & My. 190 ; Macq. H. & W. 85.

3 See, per Wilson, J., Habergham v. Vincent, 2 Ves., jun., 227 ; cited
Countess of Zichy Ferraris v. Marquis of Hertford, 3 Curt. 493, 498 : s. c,
affirmed 4 Moore P. C. C. 339.

* Per Alderson, B., Graham v. Inglehy, 1 Exch. 657 ; ante, p. 699, n. 2.
8 In exemplification whereof see Hayward c. Duflf, 12 C. B. N. S. 364 (104
E. C. L. R.).

THE LAW OF CONTRACTS. 706

pier of land is bound by the express covenant of a prior occu-
pant ; whenever, indeed, the ancient maxim, Transit terra cum
onere, holds true.1 The burthen of repairs has, we may observe,
always been thrown as much as possible, by the spirit of the com-
mon law, upon the occupier or tenant, not only in accordance with
the principle contained in the above maxim, but also because it
would be contrary to all justice, that the expense of accumulated
dilapidation should, at the end of the period of tenancy, fall upon
the landlord, when a small outlay of money on the part of the
tenant in the first instance would have prevented any such expense
becoming necessary ; to which we may add, that, generally, the
tenant alone has the opportunity of observing, from time to time,
when repairs become necessary. In one of the leading cases on
this subject, the facts were, that a man demised a house by indent-
ure for years, and the lessee, for him and his executors, covenanted
with the lessor to repair the house at all times necessary; the lessee
afterwards assigned it over to another party, who suffered it to de-
cay ; it was adjudged that covenant lay at suit of the lessor against
the assignee, although the lessee had not covenanted for him and
his assigns ; for the covenant to repair, which extends to the sup-
port of the thing demised, *is quodammodo appurtenant to p^--,
it, and goes with it ; and, inasmuch as the lessee had taken
upon himself to bear the charges of the reparations, the yearly rent
was the less, which was to the benefit of the assignee, and Qui sentit
commodum sentire debet et onus.2

The following case may also serve to illustrate the same principle :
— A company was empowered under a local Act to make the river
Medway navigable, to take tolls, and " to amend or alter such
bridges or highways as might hinder the passage or navigation,
leaving them or others as convenient, in their room." The com-
pany, in prosecuting the work, destroyed a ford across the river, in
the common highway, by deepening its bed, and built a bridge over
the river at the same place. It was held, on an indictment brought
against the company forty years afterwards, that they were bound

1 Co. Litt. 231 a. See Moule v. Garrett, L. R. 5 Ex. 13, and cases there
cited.

2 Dean and Chapter of Windsor's Case, 5 Rep. 25 ; cited per Tindal, C. J.,
Tremeere v. Morison, 1 Bing. N. C. 98 (27 E. C. L. R.) ; which case is fol-
lowed in Sleap v. Newman, 12 C. B. N. S. 116, 124 (104 E. C. L. R.).

707 BROOM'S LEGAL MAXIMS.

to keep the bridge in repair, as under a continuing condition to
preserve a new passage in lieu of the old one which they had de-
stroyed for their own benefit.1 So, the undertakers of the Aire
and Calder Navigation, who were empowered by Act of Parliament
to make certain drains in lieu of those previously existing, were
held bound to cleanse the drains snbstituted by them in pursuance
of the Act, the power to make such substitution having been con-
ferred on them for their own benefit.2 In the two preceding cases,
as well as in others of a like character, the maxim under consider-
ation is directly applicable.3

r*70R~l *^0' ** ^as Deen designated a principle of "universal
application" that "where a contract has been entered into
by one man as agent for another, the person on whose behalf it has
been made, cannot take the benefit of it without bearing its burthen.
The contract must be performed in its integrity."4

A further important illustration of the rule occurs, where a
party adopts a contract which was entered into without his authority,
in which case he must adopt it altogether. He cannot ratify that
part which is beneficial to himself, and reject the remainder; he
must take the benefit to be derived from the transaction cum onere.5
Where, therefore, the owner of goods who was undisclosed at the
time of the contract for their sale, subsequently interferes and sues
upon the contract, justice requires that, if the defendant has
credited and acquired a set-off against the agent before the princi-
pal interposed, the latter should be bound by the set-off, in the
same way that the agent would have been had he been the plaintiff
on the record; and that the defendant should be placed in the same
situation at the time of the disclosure of the real principal, as if
the agent had been in truth the principal.6

An innkeeper was requested by his guest to allow him the use of

1 R. v. Inhabs. of Kent, 13 East 220.

2 Priestley v. Foulds, 2 Scott N. R. 205.

3 Per Tindal, C. J., 2 Scott N. R. 225 ; Nicholl v. Allen, 1 B. & S. 916, 934
(101 E. C. L. R.).

4 Per Lord Cranworth and Lord Kingsdown, Bristow v. Whitmore, 9 H. L.
Cas. 391, 404, 418 (where there was a difference of opinion as to the applica-
tion of the principal maxim, see per Lord Wensleydale, Id. 406) ; cited in The
Feronia, L. R. 2 A. & E. 75, 77, 85 (29 E. C. L. R.).

6 Per Lord Ellenborough, C. J., 7 East 166.
6 See the cases cited Broom's Com.

THE LAW OF CONTRACTS. 708

a private room for the purpose of showing his goods in ; and to this
request the innkeeper acceded, at the same time telling the guest
that there was a key, and that he might lock the door, which, how-
ever, the guest *neglected to do : it was held, that the jury r*70Q1
were justified in concluding that plaintiff received the favor
cum onere, that is, that he accepted the chamber to show his goods
in upon condition of taking the goods under his own care, and that
by so taking them under his own care the innkeeper was exonerated
from responsibility.1 The liability of an innkeeper, under ordinary
circumstances, in respect of goods brought to his inn, has been
materially restricted by the recent stat. 26 & 27 Vict. c. 41.

Again, it is a very general and comprehensive rule, to which we
have already adverted, and which likewise falls within the scope of
the maxim now under consideration, that the assignee of a chose in
action takes it subject to all the equities to which it was liable in
the hands of the assignor; and the reason and justice of this rule,
it has been observed, are obvious, since the holder of property can
only alienate or transfer to another that beneficial interest in it
which he himself possesses.2 If, moreover, a person accepts any-
thing which he knows to be subject to a duty or charge, it is rational
to conclude that he means to take such duty or charge upon him-
self, and the law may very well imply a promise to perform what he
has so taken upon himself.3

The above maxim may also be applied in support and explana-
tion of that principle of the law of estoppel, in *accord- r*i--./yi
ance with which the record of a verdict, followed by a
judgment in a suit of inter partes, will estop, not only the original
parties, but likewise those claiming under them. A man will be
bound by that which would have bound those under whom he claims
quoad the subject-matter of the claim ; for, Qui sentit commodum
sentire debet et onus: and no' man can, except in certain cases,

1 Burgess v. Clements, 4 M. & S. 306, 313 ; Richmond v. Smith, 8 B. & C.
9 (30 E. C. L. R.) ; Dawson v. Chamney, 5 Q. B. 164, 169 (48 E. C. L.R.) ;
Calye's Case, 8 Rep. 32, is the leading case as to the liability of innkeepers.
See also in connection therewith, Armistead v. Wilde, 17 Q. B. 261 (79 E. C.
L. R.) ; Cashill v. Wright, 6 E. & B. 891 (88 E. C. L. R.) ; Dansey v. Richard-
son, 3 E. & B. 144 (77 E. C. L R.) ; Day v. Bather, 2 H. & C. 14.

2 1 Johns. (U. S.) R. 552, 553 j 11 Id. 80; Brandon v. Brandon, 25 L. J.
Chanc. 896 ; ante, p. 467.

3 Abbott Shipp., 5th ed., 286 ; cited Lucas v. Nockells, 1 CI. & Fin. 457.

710 broom's legal maxims.

which are regulated by the statute law and the law merchant, trans-
fer to another a better right than he himself possesses,1 the grantee
shall not be in a better condition than he who made the grant ;2
and, therefore, privies in blood, law, and estate shall be bound by,
and take advantage of, estoppels.3

In administering equity the maxim Qui sentit commodum sentire
debet et onus, may properly be said to merge in the yet more com-
prehensive rule — equality is equity — upon the consideration of
which it is not within the scope of our present plan to enter. The
following instances of the application in equity of the maxim more
immediately under our notice must suffice. The legatee of a house,
held by the testator on lease at a reserved rent, higher than it
could be let for after his death, cannot reject the gift of the lease
and retain an annuity under the will, but must take the benefit cum
onere.* A testator gives a specific bequest to A., and directs that
in consideration of the bequest, A. shall pay his debts, and makes
A. his residuary legatee and executor, the payment of the debts is,
r*7-i-|-i m tnis case? a condition annexed to the specific bequest,
and if A. accept the bequest, he is *bound to pay the debts,
though they should far exceed the amount of the property bequeathed
to him.5

We may observe also, that the Scotch doctrine of "approbate
and reprobate," is strictly analogous to that of election in our own
law, and may, consequently, be properly referred to the maxim now
under consideration. The principle on which this doctrine depends
is, that a person shall not be allowed at once to benefit by and to
repudiate an instrument, but that, if he chooses to take the benefit
which it confers, he shall likewise discharge the obligation or bear
the onus which it imposes. " It is," as was remarked in an important
case upon this subject, "equally settled in the law of Scotland as
of England, that no person can accept and reject the same instru-
ment. If a testator give his estate to A., and give A.'s estate to
B., courts of equity hold it to be against conscience that A. should
take the estate bequeathed to him, and at the same time refuse to
give effect to the implied condition contained "in the will of the

1 Ante, pp. 467, 470. 2 Mallory's Case, 5 Rep. 113.

3 Co. Litt. 352 a; Outram v. Morewood, 3 East 346.

4 Talbot v. Earl of Radnor, 3 My. & K. 252.
6 Messenger v. Andrews, 4 Russ. 478.

THE LAW OF CONTRACTS. 711

testator. The court will not permit him to take that which cannot
be his but by virtue of the disposition of the will, and at the same time
to keep what, by the same will, is given or intended to be given to
another person. It is contrary to the established principles of
equity that he should enjoy the benefit, while he rejects the condi-
tion of the gift."1 Where, therefore, an express condition is
annexed to a bequest, the legatee cannot accept and reject, appro-
bate and reprobate the will containing it. If, for example, the
testator possessing a landed estate of small value, and a large per-
sonal estate, bequeaths by his will the personal estate to the heir,
who was not otherwise *entitled to it, upon condition that r*7io-|
he shall give the land to another, the heir must either
comply with the condition, or forego the benefit intended for him.2
We may add, that the above rule as expressed by the maxim —
Quod approbo non reprobo — likewise holds where the condition is
implied merely, provided there be clear evidence of an intention to
make the bequest conditional; and in this case, likewise, the heir
will be required to perform the condition, or to renounce the benefit3
— Qui sentit commodum sentire debet et onus.

The converse of the above maxim also holds, and is occasionally
cited and applied ; for instance, inasmuch as the principal is bound
by the acts of his authorized agent, so he may take advantage of
them,4 Qui sentit onus sentire debet et commodum.5

In like manner, it has been observed,6 that wherever a grant is
made for a valuable consideration, which involves public duties and
charges, the grant shall be construed so as to make the indemnity
co-extensive with the burthen — Qui sentit onus sentire debet et
commodum. In the case, for instance, of a ferry, there is a public
charge and duty. The owner must keep the ferry in good repair,
upon the peril of an indictment. He must keep sufficient accom-
modation for all travellers, at all reasonable times. He must
content himself with a reasonable toll — such is the jus publicum.1

1 Kerr v. Wauchope, 1 Bligh. 21. 2 Shaw on Obligations, s. 184.

3 Id., s. 187.

4 Seignior v. Wolmer, Godb. 360; judgm., Higgins v. Senior, 8 M. & W.
844.

6 1 Rep. 99.

6 Per Story, J., 11 Peters (U. S.) R. 630, 631.

7 Paine v. Patrick, 3 Mod. 289, 294.

712 broom's legal maxims.

In return, the law will exclude all injurious competition, and deem
P7131 evei7 new ferI7 a nuisance, which subtracts from him *the
ordinary custom and toll.1 The franchise is, therefore,
construed to extend beyond the local limits, and to be exclusive within
a reasonable distance, this being indispensable to the fair enjoyment
of the right of toll; and the same principle applies equally to the
grant of a bridge, for the duties attaching to the grantee are, in
this case also, publici juris, and pontage and passage are but differ-
ent names for exclusive toll for transport.2

Although, moreover, the maxim Qui sentit commodum sentirc
debet et onus, to which we have above mainly adverted, applies to
throw the burthen of partnership debts upon the partnership estate,3
which is alone liable to them in the first instance, yet the converse
of this- maxim holds with regard to the partnership creditor.4 -

In .equali Jure meiior est Conditio possidentis.

(Plowd. 296.)

Where the right is equal, the claim of the party in actual possession shall

prevail.

The general rule is, that possession constitutes a sufficient title
against every person not having a better title. "He that hath
possession of lands, though it be by disseisin, hath a right against
all men but against him that hath right;"5 for, "till some act be

1 Com. Dig. Pischary (B).

2 Charles River Bridge v. Warren Bridge, 11 Peters (U. S.) R. 630, 631.

3 " Perhaps the maxim that ' he who partakes the advantage ought to bear
the loss' * * is only the consequence, not the cause, why a man is made
liable as a partner:" per Blackburn, J., Bullen v. Sharp, L. R. 1 C. P. 111.

4 The maxim Qui sentit onus s entire debet et commodum is applied also in
equity. See, for example, Pitt v. Pitt, 1 T. & R. 180; Coote Mortg., 3d ed.,
517 [d) ; Francis Max. 5.

6 Doct. & Stud. 9. "I take it to be a sound and uncontroverted maxim of
law, that every plaintiff or demandant in a court of justice must recover upon
the strength of his own title, and not because of the weakness of that of his
adversary ; that is, he shall not recover without showing a right, although
the adverse party may be unable to show any. It is enough for the latter
that he is in possession of the thing demanded until the right owner calls for
it. This is a maxim of common justice as well as of law :" per Parker, C. J.,
Goodwin v. Hubbard, 15 Mass. (U. S.) R. 204.

THE LAW OF CONTRACTS. 714

done by the *rightful owner to divest this possession and r*n-\Ai
assert his title, such actual possession is primd facie evi-
dence of a legal title in the possessor, so that, speaking generally,
the burthen of proof of title is thrown upon any one who claims to
oust him : this possessory title, moreover, may, by length of time
and negligence of him who had the right, by degrees ripen into a
perfect and indefeasible title."1

Hence it is a familiar rule, that, in ejectment, the party contro-
verting my title must recover by his own strength, and not by my
weakness ;2 and that, "when you will recover anything from me, it
is not enough for you to destroy my title, but you must prove your
own better than mine : for without a better right, Melior est con-
ditio possidentis. ' ' 3

So mere possession will support a trespass qu, cl. fr., against
any one who cannot show a better title.4 And to the like effect are
the rules of the civil law — Non possessori incumbit necessitas pro-
bandi possessiones ad se pertinere,5 and in pari causa possessor
potior haberi debet.6

*In like manner it is a rule laid down in the Digest, r-^^. ~-,
that the condition of the defendant shall be favored rather
than that of the plaintiff, favorabiliores rei potius quam adores ha-
bentur,7 a maxim which admits of very simple illustration in the
ordinary practice of our own courts : for, if, on moving in arrest
of judgment, it shall appear from the whole record that the plain-
tiff had no cause of action, the Court will never give judgment for
him, for Melior est conditio defenedentis.8

So, if a loss must fall upon one of two innocent persons, both

1 2 Com. by Broom & Hadley 368.

2 Hobart 103, 104 ; Jenk. Cent. 118 ; per Lee, C. J., Martin v. Strachan, 5
T. R. 110 n. See Feret v. Hill, 15 C. B. 207 (80 E. C. L. R.) (cited and ex-
plained per Maule, J., Canham v. Barry, Id. 611) ; Davison v. Gent, 1 II. &
N. 744.

3 Vaughan R., 58, 60; Hobart 103. See Asher v. Whilloek, L. R. 1 Q.
B. 1.

4 Every v. Smith, 26 L. J. Ex. 344; Jones v. Chapman, 2 Exch. 803, and
cases there cited.

6 C. 4. 19. 2.

8 D. 50. 17. 128, I 1.

7 D. 50. 17. 125. As to which maxim, vide arg., 8 Wheaton (U. S.) R.
195, 196.

8 See Hobart 199. X

715 broom's legal maxims.

parties being free from blame, and justice being thus in equilibria,
the application of the same principle will turn the scale.1

" We may lay it down," says Ashhurst, J.,2 " as a broad, gen-
eral principle, that wherever one of two innocent persons must
suffer by the acts of a third, he who has enabled such third person
to occasion the loss must sustain it."

The application of the principle above stated must, however, be
made with great caution ; for instance, it frequently happens, that
where money has been paid and received, without fault on either
side, it may, notwithstanding the above maxim, be recovered back,
either as paid under a mistake of fact,3 or on the ground of a failure
r*71fTl °^ consideration,4 or m consequence of the ^express or im-
plied terms of the contract. Thus, in Cox v. Prentice,
the defendant received from his principal abroad a bar of silver,
and took it to the plaintiffs, who melted it, and sent a piece to an
assayer to be assayed at defendant's expense. They subsequently
purchased the bar, paying for a certain number of ounces of silver,
which by the assay it was calculated to contain, and which was af-
terwards discovered to exceed the true number : it was held, that
the plaintiffs, having offered to return the bar of silver, were entitled
to recover the difference in value between the supposed weight and true
weight as money had and received to their use, for this was a case
of mutual innocence and equal error, — the mistake having been
occasioned by the assay-master, who was properly to be considered
as the agent for both parties.5

It is seldom the case, however, that the scale of justice is exactly
in equilibria ; it usually happens, that some degree of laches,6 neg-
ligence, or want of caution, causes it to preponderate in favor

1 Per Bayley, J., East India Co. v. Tritton, 3 B. & C. 289 (10 E. C. L. II.) ;
arg., 3 Bing. 408 (11 E. C. L. R.). See Simmons v. Taylor, C. B. N. S. 528
(89 E. C. L. R.) ; Holland v. Russell, 32 L. J. Q. B. 297, which illustrates the
maxim supra with reference to the law of marine insurance.

2 2 T. R. 70.

3 Ante, p. 258; Shand v. Grant, 15 C. B. N. S. 324 (109 E. C. L. R.).

4 See Jones v. Ryde, 5 Taunt. 488, 495 (1 E. C. L. R.) ; Devaux v. Connolly,
8 C. B. 640 (65 E. C. L. R.).

6 Cox v. Prentice, 3 M. & S. 344 ; cited 8 C. B. 658-9 (65 E. C. L. R.). See
Freeman v. Jeffries, L. R. 4 Ex. 189.

6 This test was applied per Tindal, C. J., Keele v. Wheeler, 8 Scott N. R.
333. And see the maxim Caveat emptor — post.

THE LAW OF CONTRACTS

716-7n

either of the plaintiff or defendant. In illustration of which re-
mark, we may refer to the doctrine which formerly existed with
reference to bills of exchange and promissory notes, when received,
not fraudulently, but under circumstances indicating negligence in
the holder. For instance, the defendants, who were bankers in a
small town, gave notes of their own to a stranger, of whom they
asked no questions, in exchange for a 5001. Bank of England
note : — and it was held, that the plaintiffs, from whom the 500Z.
note had been stolen, and who had duly advertised their
*loss, might recover the note from the defendants; and it r*7i7-i
was observed, that, if, even if the loss of the note had not
been duly advertised, yet, if it had been received under circum-
stances inducing a belief that the receiver knew that the holder had
become possessed of it dishonestly, the true owner would be entitled
to recover its value from the receiver, the negligence of the owner
being no excuse for the dishonesty of the receiver ; but it was further
remarked, that cases might occur in which the negligence of the one
party would be an excuse for the negligence of the other, and
might authorize the receiver to defend himself according to the
above maxim.1

The rule, however, upon this subject, as above intimated, has, by
several more recent decisions, been materially altered, and now is,
that where a party has given consideration for a bill or note, gross
negligence alone will not be sufficient to disentitle him to recover
upon it; "gross negligence," it has been observed, " may be evi-
dence of mala fides, but is not the same thing."2

And in a recent case,3 the law bearing on the subject before us, is
thus stated — that " a person who takes a negotiable instrument bond
fide for value has undoubtedly a good title, and is not affected by
the want of title of the party from whom he takes it. His having
the means of knowing that the security has been lost or stolen, and
neglecting to avail himself thereof, may amount to negligence ; and
Lord Tenterden at one time thought negligence was an r*7-io-i
answer to the action. But *the doctrine of Gill v. Cubitt4

1 Snow v. Peacock, 3 Bing. 406 (11 E. C. L. R.) y commented on, Foster v.
Pearson, 1 C. M. & R. 855.

2 Goodman v. Harvey, 4 A. & E. 876 (31 E. C. L. R.) ; Uther v. Rich, 10 A.
&E. 790 (37 E. C. L. R.).

3 Raphael v. Bank of England, 17 C. B. 161, 171 (84 E. C. L. R.).
43B. &C.466 (10E. C. LR.).

718 broom's legal maxims.

1 is not now approved of." A stolen note could not be said to be taken
bond fide by one who bad notice or knowledge of the theft, or who,
having a suspicion thereof in his mind, and the means of knowledge
in his power, wilfully disregarded them.1

"The object of the law merchant," it has been judicially ob-
served,2 " as to bills and notes made or become payable to bearer,
is to secure their circulation as money ; therefore, honest acquisi-
tion confers title. To this despotic but necessary principle, the or-
dinary rules of the common law are made to bend. The misappli-
cation of a genuine signature written across a slip of stamped paper
(which transaction being a forgery would, in ordinary cases, convey
no title), may give a good title to any sum fraudulently inscribed
within the limits of the stamp. * * * Negligence in the maker of
an instrument payable to bearer makes no difference in his liability
to an honest holder for value ; the instrument may be lost by the
maker without his negligence, or stolen from him ; still he must
pay. The negligence of the holder, on the other hand, makes no
difference in his title. However gross the holder's negligence, if it
stop short of fraud, he has a title." Thus, in the case of a bill of
exchange or promissory note, " the law respects the nature and
uses of the instrument more than its own ordinary rules."
r*71 Ql likewise, *n tne Court of Chancery, where two persons
*having an equal equity, have been equally innocent and
equally diligent, the rule generally applicable is, Melior est conditio
possidentis or defendentis. Thus, equity constantly refuses to in-
terfere, either for relief or discovery against a bond fide purchaser
of the legal estate for a valuable consideration, and without notice
of the adverse title, provided he chooses to avail himself of the
defence at the proper time and in the proper mode.3

Not only in cequali jure, but likewise in pari delicto, is it true
that Potior est conditio possidentis ; where each party is equally in
fault, the law favors him who is actually in possession,4 — a well-

1 Per Willes, J., 17 C. B. 174 (84 E. C. L. R.), citing May v. Chapman, 16
M. & W. 355. See, also, in connection with the above subject, Berry vm
Alderman, 13 C. B. 674 (76 E. C. L. R.) ; Mather v. Lord Maidstone, 18 C.
B. 273 (86 E. C. L. R.), cited Hall v. Featherstone, 3 H. & N. 288.

2 Per Byles, J., 2 H. & C. 184-5, and in Foster v. Mackinnon, L. R. 4 C.
P. 712.

3 See Sugden V. & P., 14th ed., 741, 742.

4 The rule as to par delictum was much considered in Atkinson v. Denby,
cited ante, p. 273, n. 2.

THE LAW OF CONTRACTS. 719

known rule, which is, in fact, included in that more comprehensive
maxim to which the present remarks are appended.

" If," said Buller, J., "a party come into a court of justice to
enforce an illegal contract, two answers may be given to his de-
mand: the one, that he must draw justice from a pure fountain,
and the other, that Potior est conditio possidentis."1 Agreeably to
this rule, where money is paid by one of two parties to such a con-
tract to the other, in a case where both may be considered as particeps
criminis, an action will not lie after the contract is executed to re-
cover the money. If A. agree to give B. money for doing an ille-
gal act, B. cannot, although he do the act, recover the money by
an action ; yet, if the money be paid, A. cannot recover r*79m
*it back.2 So the premium paid on an illegal insurance,
to cover a trading with an enemy, cannot be recovered back, though
the underwriter cannot be compelled to make good the loss.3 In
the above and similar cases, the party actually in possession has
the advantage — Cum par delictum est duorum semper oneratur
petit or et melior habetur possessor is causa.41

Prior to the recent stat. 8 & 9 Vict. c. 109, the maxim as to par
delictum was frequently applied in determining the right to recover
back money deposited with a stakeholder to abide the result of a
wager between two parties ; and although, by the 18th section of
that Act, all wagers are now rendered absolutely void, and the money
deposited under the circumstances stated cannot after the event has
been decided be recovered back,5 yet some of the decisions alluded

1 Munt v. Stokes, 4 T. R. 564; 2 Inst. 391. See Fitzroy v. Gwillim, 1 T.
R. 153 ; observed upon by Tindal, C. J., 7 Bing. 98 (20 E. C. L. R.) ; arg., 10
B. & C. 684 (21 £. C. L. R.) ; 2 A. & E. 13 (29 E. C. L. R.) ; per Lord Mans-
field, C. J., 2 Burr 926. See, also, Gordon v. Howden, 12 CI. & Fin. 241, note,
and cases there cited.

2 Webb v. Bishop, cited 1 Selw. N. P., 10th ed.? 92 n. (42) ; Browning v.
Morris, Cowp. 792 ; per Park, J., Richardson v. Mellish, 2 Bing. 250 (9 E. C.
L. R.).

3 Vandyck v. Hewitt, 1 East % ; Lowry v. Beurdieu, Dougl. 468 ; Andree v.
Fletcher, 3 R. R. 266 ; Lubbock v. Potts, 7 East 449 ; Palyart v. Leckie, 6 M.
& S. 290 ; Cowie v. Barber, 4 M. & S. 16. See Edgar v. Fowler, 3 East 222 ;
Thistlewood v. Cracraft, 1 M. & S. 500.

4 D. 50. 17. 154.

6 The statute " prohibits the recovery of money which has been won in
such a transaction, or has been deposited to abide the event of a wager, but
it does not apply to the case where a party seeks to recover his stake upon a

36

72(K|/

BROOM S LEGAL MAXIMS.

to as well as others not affected by the statute, may properly be
cited in support of the proposition, that if an illegal contract be
executory, and if the plaintiff dissent from or disavow the contract
before its completion, he may, on disaffirmance thereof, recover
r^^i back money whilst in transitu to the *other contracting
party, there being in this case a locus poenitentice, and the
delictum being incomplete.1

Where, however, money has been actually paid over in pursu-
ance of an illegal contract, it cannot, subject to the remarks here-
after made, be recovered back, for the Court will not assist such a
transaction in any way.2 So, where property has been placed by
one party in the hands of another for illegal purposes, as for smug-
gling, if the latter refuses to account for the proceeds, and fraudu-
lently or unjustly withholds them, the party aggrieved must abide
by his loss, for In pari delicto melior est conditio possidentis ; which,
it has been said, is a maxim of public policy, equally respected in
courts of law and courts of equity.3

In a case recently decided,4 the facts were as under: — The plain-
tiff deposited with the defendant the half of a 50Z. bank note, by
way of pledge to secure the payment of money due from the plain-
tiff to the defendant, such debt having been contracted for wine
and suppers supplied to the plaintiff by the defendant, in a brothel
kept by her, to be there consumed in a debauch. An action
brought to recover the half note so deposited failed on application
of the principal maxim, which, observed the Court, " is as thoroughly
settled as any proposition of law can be. It is a maxim of law,
established, not for the benefit of plaintiffs or defendants, but is
repudiation of the wagering contract:" per Parke, B., 10 Exch. 738 ; Batty
v. Marriott, 5 C. B. 818 (57 E. C. L. R.) ; cited in Coombes v. Dibble, L. R.
1 Ex. 248, 251, or where the event has not in fact been decided, Sadler v.
Smith, L. R. 5 Q. B. 40.

See stat. 16 & 17 Vict. c. 119, s. 5.

1 Martin v. Hewson, 10 Exch. 737 ; Varney v. Hickman, 5 C. B. 271 (57 E.
C. L. R.).

2 Per Lord Ellenborough, C. J., Edgar v. Fowler, 3 East 225; Ex parte
Bell, 1 M. & S. 751, cited, judgm., M'Callan v. Mortimer, 9 M. & W. 642;
Goodall v. Lowndes, 6 Q. B. 464 (51 E. C. L. R.). See Keir v. Leman (in
error), 6 Q. B. 308 (51 E. C. L. R.) ; per Gibbs, C. J., 8 Taunt. 497 (4 E. C.
L. R.).

3 1 Story Eq. Jurisp., 6th"ed., p. 69.

4 Taylor v. Chester, L. R. 4 Q. B. 309.

THE LAW OF CONTRACTS. 722

founded on *the principles of public policy, which will not ^799-1
assist a plaintiff who has paid over money or handed over
property in pursuance of an illegal or immoral contract, to recover
it back."1

As well from the case just abstracted,2 as from prior authorities,
it seems that the true test for determining whether or not the ob-
jection that plaintiff and defendant were in pari delicto can be
sustained, is by considering whether the plaintiff can make out his
case otherwise than through the medium and by the aid of the illegal
transaction to which he was himself a party. For instance, A. laid
an illegal wager with B., in which C. agreed with A. to take a
share ; B. lost the wager, and A., in expectation that B. would pay
the amount on a certain day, advanced to C. his share of the win-
nings. B. died insolvent before the day, and the bet Was never
paid ; it was held, that A. could not recover from C. the sum thus
advanced. "The plaintiff," observed Gibbs, C. J., "says the pay-
ment was on a condition which has failed, but that condition was
that B., who was concerned with the plaintiff and defendant in this
illegal transaction, should make good his part by paying the whole
bet to the plaintiff, and it is impossible to prove the failure' of this
condition without going into the illegal contract, in which all the
parties were equally concerned. We think, therefore, that the
plaintiff's claim is so mixed with the illegal transaction, in which
he and the defendant, and B., were jointly engaged, that it cannot
be established without going into proof of that transaction, and,
therefore, cannot be enforced in a court of law.3 So, in a r*-9q-i
modern case, *it was held, that one of two parties to an
•agreement to suppress a prosecution for felony, cannot maintain an
action against the other for an injury arising out of the transaction
in which the}7" had thus been illegally engaged; and this case was
decided on the short ground, that the plaintiff could not establish
his claim, as stated upon the record, without relying upon the ille-
gal agreement originally entered into between himself and the de-
fendant.4

1 Citing per Lord Ellenborough, C. J., Edgar v. Fowler, 3 East 225.

2 See judgm., L. R. 4 Q. B. 314.

8 Simpson v. Bloss, 7 Taunt. 246, 250 (2 E. C. L. R.), (recognised and fol-
lowed in Fivaz v. Nicholls, 2 C. B. 501, 513 (52 E. C. L. R.)) ; with which com-
pare Johnson v. Lansley, 12 C. B. 46^.

* Fivaz v. Nicholls, supra. See also Williams v. Bayley, L. R. 1 II. L. 200.

723 broom's legal maxims.

Thus far we have considered the effect of par delictum as between
the immediate parties to the illegal transaction ; we must add that
the maxim respecting it does not seem to apply where an action is
brought by one of such parties for the recovery of money received
by a third party in respect of the illegal contract. Where, for in-
stance, A. received money to the use of B. on an illegal contract
between B. and C, it was held, that A. could not set up the ille-
gality of the contract as a defence in an action brought by B. for
money had and received.1 It seems, however, clear that if A. enter
into an illegal agreement with B., and money is received by the
latter party in pursuance thereof, inasmuch as A. could not sue for
its recovery, so, neither could those who may subsequently have
succeeded to A.'s rights maintain an action for the same.2

It is, in the next place, material to observe, that the maxim which
r*7941 we are considering does not apply unless *both the litigating
parties are in delicto — it cannot be insisted upon as a de-
fence, either by or against an innocent party.3 Where, for instance,
there were two plaintiffs in an action for money had and received,
and the defendant set up a receipt, which had been fraudulently ob-
tained by him, with the privity of one of the plaintiffs, the Court
observed, that the maxim now under consideration was inapplicable ;
for, one of the plaintiffs not being in delicto, the defendant ought
not, as against him, to be allowed to set up his own fraud.4 Where,
also, money was paid by an underwriter to a broker for the use of
the assured on an illegal contract of insurance, it was held, that the
assured might recover the money from the broker, on the ground
that the broker could not insist on the illegality of the contract as

1 Tenant v. Elliott, 1 B. & P. 3 ; Farmer v. Russell, Id. 296 ; Bousfield v.
Wilson, 15 M. & W. 185; and see particularly Nicholson v. Gooch, 5 E.
&B. 999 (85 E. C. L. R.).

2 See Belcher v. Sambourne, 6 Q. B. 414 (51 E. C. L. R.) ; cited, Ellis v.
Russell, 10 Q. B. 952, 956 (59 E. C. L. R.).

3 "Williams v. Hedley, 8 East 378. An express statutory provision may
enable one party to an illegal contract to sue the other, although both par-
ties to it had knowledge of the facts constituting the illegality. See Lewis v.
Bright, 4 E. & B. 917 (82 E. C. L. R.).

4 Skaife v. Jackson, 3 B. & C. 421 (10 E. C. L. R.) ; Farrar v. Hutchinson,
9 A. & E. 641 (36 E. C. L. R.) ; which cases are cited and explained per
Parke, B., Wallace v. Kelsall, 7 M. & W. 273. See Tregoning v. Attenbor-
ough, 7 Bing. 97 (20 E. C. L. R.).

THE LAW OF CONTRACTS. 724

a defence, the obligation on him arising out of the fact that the
money was received by him to the use of the plaintiff, which cre-
ated a promise in law to pay.1

Again, where defendant entered into a composition-deed, together
with the other creditors of plaintiff, under an agreement that plain-
tiff should give defendant his promissory notes for the remainder of
the debt, which were accordingly given, and the amount thereof
ultimately paid by plaintiff, it was held, that he might *re- r*79vi
cover such amount from defendant in an action for money
paid and money had and received ; for, as observed by Lord Ellen-
borough, this was not a case of par delictum ; it was oppression on
one side and submission on the other ; it can never can be predi-
cated as par delictum, when one holds the rod and the other bows
to it.2

The decision of the Court of Error in Fisher v. Bridges3 is
important with reference to the subject above adverted to. There,
to a declaration in covenant for the payment of a certain sum of
money, the defendant pleaded that, before the making of the deed
declared upon, it was unlawfully agreed between the plaintiff and
defendant that the former should sell and the latter purchase of
him a conveyance of land for a term of years, in consideration of a
sum of money to be paid by the defendant to the plaintiff, "to the
intent and in order and for the purpose, as the plaintiff at the
time of the making the said agreement well knew," that the land
should be sold by lottery, contrary to the form of the statutes in
such case made and provided: that afterwards, "in pursuance of
the said illegal agreement," the land was assigned for the term, and
a part of the purchase-money remaining unpaid, the defendant, to
secure the payment thereof, made the deed and covenant in the
declaration mentioned. Upon these pleadings, the Court of Queen's
Bench held, that the contract in question appeared to have been

1 Tenant v. Elliott, 1 B. & P. 3 ; Rosewarne v. Billing, 33 L. J. C. P. 55;
Smith v. Linds, 5 C. B. N. S. 587 (94 E. C. L. R). See M'Gregor v. Lowe,
Ry. & M. 57 (21 E. C. L. R.), and cases cited in note 1, supra.

2 Smith v. Cuff, 6 M. & S. 160, and Smith v. Bromley, 2 Dougl. G96, n. ;
whfch are recognised in Atkinson v. Denby, 7 H. & N. 934, 936 ; Higgins v.
Pitt, 4 Exch. 312 ; Mallalieu v. Hodgson, 16 Q. B. 689 (71 E. C. L. R.).

3 3 E. & B. 642 (77 E. C. L. R.), (reversing judgment in s. c, 2 E. & B.
118 (75 E. C. L. R.)), followed in Geere v. Mare, 2 H. & C. 339. See A.-G.
v. Ilollingworth, 2 H. & N. 416 ; O'Connor v. Bradshaw, 5 Exch. 882.

M

726 BROOM S LEGAL MAXIMS.

made *after the illegal transaction between the plaintiff and
defendant had terminated ; that it formed no part of such
transaction, and was consequently unaffected by it. The judgment
thus given was, however, reversed in error upon reasoning of the
following kind, which seems conclusive; — the original agreement
was clearly tainted with illegality, inasmuch as all lotteries are
prohibited by the stat. 10 & 11 Will. 3, c. 17, s. 1; and by the 12
Geo. 2, c. 28, s. 4, all sales of houses, lands, &c, by lottery are
declared to be void to all intents and purposes. The agreement
being illegal, then, no action could have been brought to recover
the purchase-money of the land which was the subject-matter
thereof; and the covenant accordingly, being connected with an
illegal agreement, could not be enforced.1 And, further, even if
the plea above abstracted were not to be understood as alleging
that the covenant declared upon was given in pursuance of an
illegal agreement, it would, remarked the Court of Exchequer
Chamber, still show a good defence to the action, for " the covenant
was given for the payment of the purchase-money. It springs from
and is the creature of that illegal agreement; and if the law would
not enforce the illegal contract, so neither will it allow parties to
enforce a security for purchase-money which, by the original
bargain, was tainted with illegality."

The decisions come to in Fisher v. Bridges,2 and Simpson v. Bloss,
already cited,3 establish conclusively this rule, that when a demand
connected with an illegal transaction can be sued on without the
r^-9„-, necessity of having recourse to the illegal transaction, the
plaintiff *may maintain an action ; but, wherever it is
necessary to resort to the illegal transaction to make out a case, the
plaintiff will fail to enforce his claim in a court of law.4

But although, in the cases latterly considered, the maxim, In
'pari delicto 'potior est conditio possidentis, forcibly applies, the doc-
trine expressed thereby must needs be accepted with qualification.
For instance, where an instrument between two parties has been en-
tered into for a purpose which may be considered fraudulent as

1 Paxton v. Popham, 9 East 408 ; The Gas Light Co. v. Turner, 6 Bing? N.
C. 324 (37 E. C. L. R.) ; 5 Id. GG6 (35 E. C. L. R.).

2 Followed in Geere v. Mare, 2 II. & C. 339.

3 Ante, p. 722.

4 See per Watson, B., A.-G. v. Hollingsworth, 2 H. & N. 423.

THE LAW OF CONTRACTS. 727

against some third person, it may yet be binding, according to the
true construction of its language as between themselves.1 Likewise,
by statute an instrument may be avoided for certain purposes, and
yet remain valid and effectual quoad alia; a conveyance fraudu-
lently and collusively made for the mere purpose of conferring a
vote, and with an understanding that it should not operate benefi-
cially to the grantee, although it fail by virtue of the stats. 7 & 8
Will. 3, c. 25, s. 7, and 10 Ann. c. 23, s. 1, to give the right of
voting, will, nevertheless, as between the parties to it, pass the in-
terest.2 In any such case the intention of the legislature, and the
mischief to be repressed, must carefully be ascertained ; and we
should remember, that " the policy of the law always is not to make
contracts void to a greater extent than the mischief to be remedied
renders necessary."3

*To the above maxim respecting par delictum may pro- r*79Qi
perly be referred the general rule, that an action for con-
tribution cannot be maintained by one of several joint wrong-doers
against another, although the one who claims contribution may .have
been compelled to pay the entire damages recovered as compensa-
tion for the tortious act.4 It has, however, been laid down, that
this rule does not extend to cases of indemnity, where one man em-
ploys another to do acts, not unlawful in themselves, for the pur-
pose of asserting a right.5 Moreover, the rule as to non-contribu-
tion between wrong-doers must be further qualified in this manner,

1 Shawu. Jeffery, 13 Moo. P. C. C. 432, 454-5.

2 Phillpotts v. Phillpotts, 10 C. B. 85 (70 E. C. L. R.) ; Doe d. Roberts v.
Roberts, 2 B. & Aid. 367 ; Bessey v. Windham, 6 Q. B. 166 (51 E. C. L. R.).
See Marshal], app., Brown, resp., 7 M. & Gr. 188 (49 E. C. L. R.) ; Doe d.
Williams v. Lloyd, 5 Bing. N. C. 741 (35 E. C. L. R.), in connection with
wrhich see Philpott v. St. George's Hospital, 6 H. L. Cas. 338) ; Callaghan v.
Callaghan, 8 CI. & Fin. 374 ; Bowes v. Foster, 2 H. & N. 779 ; Doe d. Rich-
ards v. Lewis, 11 C. B. 1035 (73 E. C. L. R.) ; White v. Morris, Id. 1015.

3 Per Maule, J., 10 C. B. 99, 100 (70 E. C. L. R.). And see per Lord Cran.
worth, C, Ex parte Neilson, 3 De G., M.&G. 566 ; Young v. Billiter, 8 H. L.
Cas. 682.

* Merryweather v. Nixan, 8 T. R. 186. See per Lord Lyndhurst, C. B.,
Colburn v. Patmore, 1 C, M. & R. 83; Farebrother v. Ansley, 1 Camp. 342 ;
cited Shackell v. Rosier, 2 Bing. N. C. 647 (29 E. C. L. R.). See also Camp-
bell v. Campbell, 7 CI. & Fin. 166 ; Blackett v. Weir, 5 B. & C. 387 (11 E. C.
L. R.).

6 Per Lord Kenyon, C. J., 8 T. R. 186 ; cited, 8 Bing. 72 (21 E. C. L. R.).

728 broom's legal maxims.

that where one party induces another to do an act which is not
legally supportable, and yet is not clearly in itself a breach of law,
the party so inducing shall be answerable to the other for the con-
sequences,1

In equity, as at law, the general rule undoubtedly is, that relief
will not be granted where both parties are in pari delicto, unless in
cases where public policy requires the interference of the Court.2
Before proceeding, however, to apply the maxim, it is very neces-
sary to ascertain whether, under the given circumstances, the delin-
quency attaching to each of the principal parties is really equal in
degree. Equity, for instance, has refused to treat as in pari delicto
r*79Q1 ^ie Par^es *° a private ^agreement entered into between
father and son, which was illegal, as being a fraud upon
the. Post-office; and in this case Sir W. Grant, after observing that
the question was, whether the general rule, In pari delicto melior
est conditio possidentis, should prevail, and the Court should refuse
relief, — both parties to the agreement, which was impeached by the
bill, having been guilty of a violation of the law, — remarked that
" Courts both of law and equity have held, that two parties may
concur in an illegal act without being deemed to be in all respects
in pari delicto ;" and his Honor thought, under the circumstances
before him, that the par delictum between the parties had not been
in fact established, the agreement being substantially the mere act
of the father.3

Ex DOLO MALO NON ORITUR ACTIO.

(Cowp. 343.)

A rigid of action cannot arise out of fraud.

It has been thought convenient to place the above maxim in im-
mediate proximity to that which precedes it, because these two
important rules of law are intimately related to each other, and the

1 Per Lord Denraan, C. J., Betts v. Gibbins, 2 A. & E. 75 (29 E. C. L. R.).

2 Reynell v. Sprye, 1 De G., M. & G. 660 ; 1 Story, Eq. Jurisp., 9th ed.,
284.

3 Osborne v. Williams, 18 Yes. 379; see arg., Clough v. Ratcliffe, 16 L. J.
Chanc. 477 ; s. c, 1 De G. & S. 164 ; 1 Story Eq. Jurisp., 9th ed., 286.

THE LAW OF CONTRACTS. 729

cases which have already been cited in illustration of the rule as to
par delictum maybe referred to generally as establishing and justi-
fying the position, that an action cannot be maintained which is
founded in fraud, or which springs ex turpi causd. The connec-
tion which exists between these maxims may, indeed, be satisfac-
torily shown by ^reference to a case already cited. In r*yon-|
Fivaz v. Nicholls,1 an action was brought for an alleged
conspiracy between B., the defendant, and a third party, C, to
obtain payment of a bill of exchange accepted by the plaintiff in
consideration that B. would abstain from prosecuting C. for em-
bezzlement ;2 and it was held that the action would not lie, inas-
much as it sprung out of an illegal transaction, in which both
plaintiff and defendant had been engaged, and of which proof was
essential in order to establish the plaintiff's claim as stated upon
the record. In this case, therefore, the maxim, Ex dolo malo non
oritur actio, was evidently applicable ; and not less so with regard
either to the original corrupt agreement, or to the subsequent
alleged conspiracy, was the general principle of law, In pari de-
licto potior est conditio defendentis? To the class of cases also
which establish that contribution cannot be enforced amongst
wrong-doers, and that a person who has committed an act declared
by the law to be criminal, will not be permitted to recover compen-
sation from one who has knowingly participated with him in the
commission of the crime,4 a similar remark seems equally to apply.
Bearing in mind, then, this connection between the two kindred
maxims aforesaid, we shall in the ensuing pages proceed to consider
briefly the important and very comprehensive principle, Ex dolo
malo, or, more generally, Ex turpi causd, non oritur actio.5

*In the first place, then, we may observe, that the word
dolus, when used in its more comprehensive sense, was un-

[*731]

1 2 C. B. 501, 512, 515 (52 E. C. L. R.).

2 See the cases cited post, p. 733.

3 See, also, Stevens v. Gourley, 7 C. B. N. S. 99, 108.

4 Per Lord Lyndhurst, Colburn v. Patmore, 1 Cr., M. & R. 83 ; per Maule,
J., 2 C. B. 509 (52 E. C. R. R.).

6 The principle embodied in the above maxim is widely applicable; ex. gr.,
an order under the stat. 20 & 21 Vict. c. 85, s. 21, protecting the after-acquired
property of a married woman deserted by her husband is confined to property
of which she may be possessed, or " which she may acquire by her own law-
ful industry." See Mason v. Mitchell, 3 H. & C. 528.

731 broom's legal maxims.

derstood by the Roman jurists to include " every intentional mis-
representation of the truth made to induce another to perform an
act which he would not else have undertaken;"1 and a marked dis-
tinction accordingly existed in the civil law between dolus boyius and
dolus malus : the former signifying that degree of artifice or dex-
terity which a person might lawfully employ to advance his own
interest, in self-defence against an enemy, or for some other justifi-
able purpose ;2 and the latter including every kind of craft, guile,
or machination, intentionally employed for the purpose of decep-
tion, cheating, or circumvention.3 As to the latter species of dolus
(with which alone we are now concerned), it was a general and
fundamental rule, that dolo malo pactum se non servaturum ;4 and,
in our own law, it is a familiar principle, that no valid contract can
arise out of a fraud ; and that any action brought upon a supposed
contract, which is shown to have arisen from fraud, may be success-
fully resisted.5

[~*7391 *■"■* *s' moreover5 a general proposition, that an agree-
ment to do an unlawful act cannot be supported at law —
that no right of action can spring out of an illegal contract ;6 and

1 Mackeld. Civ. Law 165.

2 Ibid.; Bell Diet, and Dig. of Scotch Law 319; D. 4. 3. 3 ; Brisson. ad
verb. "Dolus;" Tayl. Civ. Law, 4th ed., 118.

3 D. 4. 3. 1, g 2 ; Id 50. 17. 79 ; Id. 2. 14. 7, \ 9.
« D. 2 14. 7, \ 9.

5 Per Patteson, J., 1 A. & E. 42 (28 E. C. L. R.) ; per Ilolroyd. J., 4 B. &
Aid. 34 (6 E. C. L. R.) ; per Lord Mansfield, C. J., 4 Burr. 2300; Evans v.
Edmonds, 13 C. B. 777 (76 E. C. L. R.) ; Canham v. Barry, 15 C. B. 597 (80
E. C. L. R.) ; with which compare Feret v. Hill, Id. 207 ; Reynell v. Sprye, 1
De G., M. & G. 660 ; Curson v. Belworthy, 3 H. L. .Cas. 742. The effect of
fraud in nullifying a contract, the right to rescind a contract of sale on the
ground of fraud, and the distinction between legal and moral fraud, are dis-
cussed under the maxim, Caveat emptor, post, p. 768, et seq. See Earl of
Bristol v. Wilsmore, 1 B. & C. 514 (8 E. C. L. II.) ; Green v. Beaverstock, 14
C. B. N. S. 204 (108 E. C. L. R.) ; Clarke v. Dickson, E., B. & E. 148 ; (96 E.
C. L. R.) ; Horsfall v. Thomas, 1 H. & C. 90.

As to the meaning of the word " fraud," compare per Lord Romilly, diss.,
Spackman v. Evans, L. R. 3 H. L. 239 ; per Lord Cairns, Reese River Silver
Mining Company Co. v. Smith, L. R. 4 H. L. 79-80 : Kennedy v. Panama, &c,
Mail Co., L. R. 2 Q. B. 588 ; Lee v. Jones, 17 C. B. N. S. 482 (1.12 E. C. L.
R.).

6 Per Lord Abinger, C. B., 4 M. & W. 657 ; per Ashhurst, J., 8 T. R. 93.
See Jones v. Waite, 5 Scott N. R. 951 ; s. c, 5 Bing. N. C. 341 (35 E. C. L.

THE LAW OF CONTRACTS. 732

this rule, which applies not only where the contract is expressly ille-
gal, but whenever it is opposed to public policy, or founded on an
immoral consideration,1 is expressed by the well-known maxim, Ex
turpi causd non oritur actio? and is in accordance with the doctrine
of the civil law, Pacta quce turpem causam continent non sunt ob-
servanda* " wherever the consideration which is the ground of the
promise, or the promise which is the consequence or effect of the
consideration, is unlawful, the whole contract is void."4 A court
of law will not, then, lend its aid to enforce the performance of a
contract which appears to have been entered into by both the con-
tracting parties for the express purpose of carrying into effect that
which is prohibited by the law of the land; and this objection to
the validity of a contract must, from authority and reason, be al-
lowed in all cases to prevail. No legal distinction can be supported
between the application of this objection *to parol contracts r*7qq-i
and to contracts under seal ; it would be inconsistent with
reason and principle to hold, that, by the mere ceremony of put-
ting a seal to an instrument, that is, by the voluntary act of the
parties themselves, a contract, which was void in itself, as being in
violation of the law of the land, should be deemed valid, and an.
action maintainable thereon in a court of justice.5

In Collins v. Blantern,6 which is a leading case to show that ille-
gality may well be pleaded as a defence to an action on a bond, the
bond was alleged to have been given to the obligee as an indemnity

R.), and 1 Bing. N. C. 656 (27 E. C. L. R.) ; Ritchie v. Smith, 6 C. B. 462 (60
E. C. L. R.) ; Cunclell v. Dawson, 4 C. B. 376 (56 E. C. L. R.) ; Sargent v.
Wedlake, 11 C. B. 732 (73 E. C. L. R.).

1 Allen v. Rescous, 2 Lev. 174 ; Walker v. Perkins, 3 Burr. 1568 ; Wetherell
v. Jones, 3 B. & Ad. 225, 226 (23 E. C. L. R.) ; Edgerton v. Earl Brownlow,
4 H. L. Cas. 1.

2 Judgm., Bank of United States v. Owens, 2 Peters (U. S.) R. 539.

3 D. 2. 14. 27, I 4.

4 1 Bulstr. 38 ; Hobart 72 ; Dyer 356.

6 Judgm., 5 Bing. N. C. 675 (35 E. C. L. R.).

6 2 Wils. 341 ; Williams v. Bayley, L. R. 1 II. L. 200. See Ward v. Lloyd,
7 Scott N. R. 499 ; Ex parte Critchley, 15 L. J. Q. B. 124 ; Keir v. Leeman, 6
Q. B. .308 (51 E. C. L. R.) ; s. c. (in error), 9 Q. B. 371 (58 E. C. L. R.)
(where the compromise of a misdemeanor was held to be illegal) ; Masters v.
Ibberson, 8 C. B. 100 (65 E. C. L. R.) ; Reg. v. Hardey, 14 Q. B. 529 (68 E.
C. L. R.) ; Reg. v. Blakemore, Id. 544 ; Reg. v. Alleyne, 4 E. & B. 186 (82 E.
C. L. R.).

733 broom's legal maxims.

for a note entered into by him for the purpose of inducing the
prosecutor of an indictment for perjury to withhold his evidence ;
for the plaintiff, it was contended that the bond was good and law-
ful, the condition being singly for the payment of a sum of money,
and that no averment should be admitted that the bond was given
upon an unlawful consideration not appearing upon the face of it ;
but it was held, that the bond was void ab initio, and that the facts
might be specially pleaded ; and it was observed by Wilmot, C. J.,
delivering the judgment of the Court, that " the manner of the
transaction was to gild over and conceal the truth ; and whenever
courts of law see such attempts made to conceal such wicked deeds,
they will brush away the cobweb varnish and show the transactions
in their true light." And again, "this is a contract to tempt a
r*7341 man *to transgress tne law> t0 do that which is injurious
to the community : it is void by the common law ; and the
reason why the common law says such contracts are void is for the
public good : you shall not stipulate for iniquity. All writers upon
our law agree in this — no polluted hand shall touch the pure foun-
tains of justice."1

It is, obviously, to the interest of the public that " the suppres-
sion of a prosecution should not be made matter of private bar-
gain ;" and it was accordingly held in a recent case,2 that a
promissory note given in consideration of the payee's forbearing to
prosecute against the maker a charge of obtaining money by false
pretences was illegal, and could not be enforced.

As a general rule, then, a contract or an agreement cannot be
made the subject of an action if it be impeachable on the ground of
dishonesty, or as being opposed to public policy, — if it be either
contra bonos mores, or forbidden by the law.3 In answer to an ac-

1 See, also, Prole v. Wiggins, 3 Bing. N. C. 230 (32 E. C. L. R.) ; Paxton
v. Popham, 9 Bast 408 ; Pole v. Harrobin, Id. 417 n. ; Gas Light and Coke Co.
v. Turner, 5 Bing. N. C. 6G6 (35 E. C. L. 11.); s. c, 6 Id. 324 ; Cuthbert v.
Haley, 8 T. R. 390.

2 Clubb v. Hutson, 18 C. B. N. S. 414, 417 (114 E. C. L. R.), following
Keir v. Leeman, 9 Q. B. 371 (58 E. C. L. R.).

3 Per Lord Kenyon, C. J., 6 T. R. 16 ; Stevens v. Gourley, 7 C. B. N. S. 99
(97 E. C. L. R.) ; Cunard v. Hyde, 2 E. & E. 1 (105 E. C. L. R.). See per
Holroyd, J., 2 B. & Aid. 103 ; per Martin, B., Horton v. Westminster Im-
provement Commissioners, 7 Exch. 791.

As to contracts void on the ground of maintenance or champerty, see Earle

THE LAW OF CONTRACTS. 734,

tion founded on such an agreement, the maxim may be urged, Ex
maleficio non oritur contractu^ — a contract cannot arise out of
*an act radically vicious and illegal: those who come into r*7qr-i
a court of justice to seek redress must come with clean
hands, and must disclose a transaction warranted by law ;2 and,
"it is quite clear, that a court of justice can give no assistance to
the enforcement of contracts which the law of the land has inter-
dicted.3

It does not fall within the plan of this work to enumerate, much
less to consider at length, the different grounds on which a contract
may be invalidated for illegality.4 We shall merely cite some few
cases in illustration of the above remarks. In strict accordance
with them, it has been held, that no action could be maintained on
a bond given to a person in consideration of his doing, and in-
ducing others to do, something contrary to the terms of letters
patent ; and that the obligee was equally incapable of recovering,
whether he knew or did not know the terms of the letters patent —
the ignorance, if in fact it existed, resulting from his own fault.5
" The question," said Lord Tenterden, in the case here alluded to,
"comes to this: can a man have the benefit of a bond *by r*Hoa-\
the condition of which he undertakes to violate the law ?

v. Ilopwood, 9 C. B. N. S. 566 (99 E. C. L. R.) ; Simpson v. Lamb, 7 C. B. N.
S. 84 (97 E. C. L. R.) ; Sprye v. Porter, Id. 58 ; Anderson v. Radcliffe, E., B.
& E. 806 (96 E. C. L. R.) ; Grell v. Levy, 16 C. B. N. S. 73.

1 Judgm., 1 T. R. 734 ; Parsons v. Thompson, 1 H. Bla. 322 ; 8 Wheaton
(U. S.) R. 152. See Nicholson v. Gooch, 5 E. & B. 999, 1015 (85 E. C. L. R.),
which forcibly illustrates the above maxim.

2 Per Lord Kenyon, C. J., Petrie v. Hannay, 3 T. R. 422.
8 Per Lord Eldon, C, 2 Rose 351.

* The following cases may, however, be mentioned with reference to this
subject, in addition to those already cited : Simpson v. Lord Howden, 9 CI. &
Fin. 61 ; cited per Lord Campbell, C. J., Hall v. Dyson, 17 Q. B. 791 (79 E.
C. L. R.) (as to which see Hills v. Mitson, 8 Exch. 751) ; and per Lord St.
Leonards, C, Hawkes v. Eastern Counties R. C, 1 De G., M. & G. 753 ; s. c,
affirmed 5 H. L. Cas. 331 ; Preston v. Liverpool, Manchester, &c, R. C, 5 H.
L. Cas. 605 ; Jones v. Waite, 9 CI. & Fin. 101 ; Mittelholzer v. Fullarton, 6 Q.
B. 989, 1022 (51 E. C. L. R.) ; Santos v. Illidge, 8 C. B. N. S. 861 (95 E. C.
L. R.) j s. c, 6 Id. 841 (98 E. C. L. R.) ; Bousfield v. Wilson, 16 M. & W. 185.
In the great case of Atwood v. Small, 6 CI. & Fin. 232, the effect of fraud on
a contract of sale was much considered ; but this case properly falls under
the maxim Caveat emptor, to which, therefore, the reader is referred.

6 Duvergier v. Fellowes, 1 CI. & Fin. 39.

-1

/

736 broom's legal maxims.

It seems to me that it would not be according to the principles of
the law of England, which is the law of reason and justice, to
allow a man to maintain an action under such circumstances; it
would be to hold out an encouragement to any man to induce others
to become dupes, and to pay their money for that from which they
could derive no advantage."

In scire facias against the defendant as member of a certain
steam-packet company, the plea stated that the original action was
for a demand in respect of which neither the defendant in the sci.
fa., the packet company, nor the defendant in the original action
(the public officer of the company), was by law liable, as plaintiff
at the commencement of the action well knew; and that, such
registered officer and the plaintiff well knowing the premises, the
said officer fraudulently and deceitfully, and by connivance with
plaintiff, suffered the judgment in order to charge the defendant in
sci. fa. The Court held the plea to be good, and further observed, that
fraud no doubt vitiates everything ;*• and that, upon being satisfied
of such fraud, they possessed power to vacate, and would vacate,
their own judgment.2

To take another illustration of the maxim before us, wholly dif-
ferent from the preceding: — "There is no *doubt," it has
been observed,3 "that where a right of action has accrued,
parties cannot by contract say that there shall not be jurisdiction
to enforce damages in respect of that right of action." But the
general policy of the law does not prevent parties " from entering
into such a contract, as that no breach shall occur until after a ref-

1 See, for instance, Foster v. Mackinnon, L. R. 4 C. P. 704, 711.

A copyright may be defeated on the ground of fraud; Wright v. Tallis, 1
C. B. 893 (50 E. C. L. R.).

In the Carron Co. v. Hunter, L. R. 1 Sc. App. Cas. 362, a bequest of shares
was held not to be nullified by a fraudulent concealment of their real value.

2 Phillipson v. Earl of Egremont, 6 Q. B. 587, 605 (51 E. C. L. R.) ; Dodg-
son v. Scott, 2 Exch. 457, and cases cited ante, p. 731. Et vide per Pollock,
C. B., Rogers v. Hadley, 32 L. J. Ex. 248.

3 Per Lord Cranworth, C, Scott v. Avery, 5 IT. L. Cas. 847, affirming s. c,
8 Exch. 487 ; Tredwen v. Holman, 1 II. & C. 72 ; Scott v. Corporation of
Liverpool, 28 L. J. Chanc. 230, 235, 236 ; s. c, 27 Id. 641 ; Giles v. Spencer, 3
C. B. N S. 244, 249 (91 E. C. L. R.). See Lowndes v. Earl of Stamford, 18
Q. B. 425 (83 E. C. L. R.) ; Hemans v. Picciotto, 1 C. B. N. S. 646 (87 E. C.
L. R.) ; Wallis v. Hirsch, Id. 316 ; Clarke v. Westrope, 18 C. B. 765 (86 E. C.
L. R.).

/

[*737]

THE LAW OF CONTRACTS. 737

erence has been made to arbitration." And again, " If I covenant
with A. to do particular acts, and it is also covenanted between us
that any question that may arise as to the breach of the covenants
shall be referred to arbitration, that latter covenant does not pre-
vent the covenantee from bringing an action. A right of action
has accrued, and it would be against the policy of the law to give
effect to an agreement that such a right should not be enforced
through the medium of the ordinary tribunals.1 But if I covenant
with A. that if I do or omit to do a certain act, then I will pay to
him such a sum as B. shall award as the amount of damage sus-
tained by him, then, until B. has made his award, and I have
omitted to pay the sum awarded, my covenant has not been broken,
and no right of action has arisen. The policy of the law does not
prevent parties from so contracting."2

The distinction above set forth may be thus exemplified: p* 700-1
*if the contract in question be a policy of insurance against
fire, and is in such terms that a reference to a third person or to a
board of directors is a condition precedent to the right of the
assured, in case of loss, to maintain an action, then he is not en-
titled to maintain it until that condition is complied with : but if,
on the other hand, the contract is to pay for the loss, with a subse-
quent contract to refer the question to arbitration, contained in a
distinct clause collateral to the other, then that contract for refer-
ence shall not oust the jurisdiction of the courts, or deprive the
party of his action.3

Further, it is an indisputable proposition, that as against an in-
nocent party, " no man shall set up his own iniquity as a defence
any more than as a cause of action."4 Where, however, a contract
or deed is made for an illegal purpose, a defendant against whom it
is sought to be enforced may show the turpitude of both himself
and the plaintiff, and a court of justice will decline its aid to en-

1 See Horton v. Sayers, 4 II. & N. 643, 649, 651.

2 Per Lord Cranworth, C, 5 H. L. Cas. 848; judgm., 8 Exch. 502; per
Williams, J., Northampton Gas-Light Co. v. Parnell, 15 C. B. 651 (80 E. C.
L. R.) ; Roper v. Lendon, 1 E. & E. 825, 831 (102 E. C. L. R.) ; Braunstein v.
Accidental Death* Insur. Co., 1 B. & S. 782 (101 E. C. L. R.).

3 Elliott v. Royal Exch. Ass. Co., L. R. 2 Ex. 237, 243.

4 Per Lord Mansfield, C. J., Montefiori v. Montefiori, 1 W. Bla. 364;
cited, per Abbott, C. J., 2 B. & Aid. 368. It is a maxim, that Jus ex injuria
non oritur; see arg., 4 Bing. 639 (13 E. C. L. R.).

738 broom's legal maxims.

force a contract thus wrongfully entered into. For instance,
money cannot be recovered which has been paid ex turpi causd
quum dantist ceque et accipientis turpitudo versatur.1 An unlawful
agreement, it has been said, can convey no rights in any court to
either party ; and will not be enforced at law or in equity in favor
of one against the other of two persons equally culpable.2 A per-
son who contributes to the performance of an illegal act by supply-
T*7RQ1 m& a thing w*tn *tne knowledge that it is to be used for
that purpose is precluded from recovering the price of the
thing so supplied. uNor can any distinction be made between an
illegal and an immoral purpose; the rule which is applicable to the
matter is, ex turpi causd non oritur actio, and whether it is an im-
moral or an illegal purpose in which the plaintiff has participated
it comes equally within the terms of that maxim, and the effect is
the same; no cause of action can arise out of either the one or the
oth

er.

'3

The principle on which the rule above laid down depends is, as
stated by Chief Justice Wilmot, the public good. " The objection,"
says Lord Mansfield,4 "that a contract is immoral or illegal as
between plaintiff and defendant, sounds at all times very ill in the
mouth of the defendant. It is not for his sake, however, that the
objection is ever allowed, but it is founded in general principles of
policy, which the defendant has the advantage of, contrary to the
real justice as between him and the plaintiff — by accident, if I may
so say. The principle of public policy is this : ex dolo malo non
oritur actio. No court will lend its aid to a man who founds his
cause of action upon an immoral or an illegal act. If, from the
plaintiff's own stating or otherwise, the cause of action appear to
arise ex turpi causd or the transgression of a positive law of this
country, there the Court says he has no right to be assisted. It is

1 1 Pothier, Traite de Vente, 186.

2 Per Lord Brougham, C, Armstrong v. Armstrong, 3 My. & K. 64.

3 Pearce v. Brooks, L. R. 1 Ex. 213, 218 ; Cowan v. Milbourn, L. R. 2 Ex.
230.

4 Holman v. Johnson, Cowp. 343 ; and Lightfoot v. Tenant, 1 B. & P. 554 ;
which cases are cited in Hobbs v. Henning, 17 C. B. N. S.«819 (112 E. C. L.
R.), as showing "the distinction between a mere mental purpose that an
unlawful act should be done, and a participation in the unlawful transaction
itself." Jackson v. Duchaire, 3 T. R. 551, 553 ; cited Spencer v. Handley, 5
Scott N. R. 558.

THE LAW OF CONTRACTS. 739

upon that ground the Court goes, not for the sake of the defendant,
but because they *vvill not lend their aid to such a plaintiff. r*Y4Q-i
So, if the plaintiff and defendant were to change sides, and
the defendant were to bring his action against the plaintiff, the
latter would then have the advantage of it, for where both are
equally in fault, Potior est conditio defendentis."1

It may here be proper to observe, that, although a Court will
not assist in giving effect to a contract which is " expressly or by
implication forbidden by the statute or common law," or which is
"contrary to justice, morality, and sound policy;" yet where the
consideration and the matter to be performed are both legal, a
plaintiff will not be precluded from recovering by an infringement
of the law in the performance of something to be done on his part ;
such infringement not having been contemplated by the contracting
parties.2

In determining, moreover, the effect of a penal statute3 upon the
validity of a contract entered into by one who has failed in some
respects to comply with its provisions, it is necessary to consider
whether the object of the statute was merely to inflict a penalty on the
offending party for the benefit of the revenue, or whether the legis-
lature intended to prohibit the contract itself for the protection of
the public. In the former case, an action may lie upon the con-
tract ; but in the latter case the *maxim under consideration r*nA-t-]
will apply, and even if the contract be prohibited for
revenue purposes only, it will be altogether illegal and void, and no
action will be maintainable upon it.4

1 See also arg., 15 Peters (U. S.) R. 471 ; per Tindal, C. J., 2 C. B. 512 (52
E. C. L. R.).

2 Wetherell v. Jones, 3 B. & Ad. 225, 226 (23 E. C. L. R.). See Redmond
v. Smith, 8 Scott N. R. 250.

3 With reference to a breach of the Revenue Laws Lord Stowell observes,
"It is sufficient if there is a contravention of the law — if there is a fraus in
legem. Whether that may have arisen from mistaken apprehension, from
carelessness, or from any other cause, it is not material to inquire. In these
cases it is not necessary to prove actual and personal fraud." The Reward,
2 Dods. Adm. R. 271.

4 D'Allex v. Jones (Exch.), 2 Jur. N. S. 979; Taylor v. Crowland Gas &
Coke Co., 10 Exch. 293, 296 ; Bailey v. Harris, 12 Q. B. 905 (64 E. C. L. R.) ;
Smith v. Mawhood, 14 M. & W. 452; Cope v. Rowlands, 2 M. & W. 149;
Cundell v. Dawson, 4 C. B. 376 (56 E. C. L. R.) ; Pidgeon v. Burslem, 3 Exch.
465 ; Oulds v. Harrison, 10 Exch. 572 ; Jessopp v. Lutwyche, Id. 614 ; Rose-

37

741 broom's legal maxims.

It must be observed, however, that a contract, although illegal
and void as to part, will not necessarily be void in toto. Thus, if
there be a bond, with condition to do several things, some of which
are agreeable to law and some against the common law, the bond
shall be good as to the former, and void as to the latter only j1 and
this rule is generally true with respect to a contract void and ille-
gal in part as against public policy, and yet good as to the residue.
Where, for instance, the defendant covenanted that he would not,
during his life, carry on the trade of a perfumer "within the cities
of London and Westminster, or within the distance of 600 miles
from the same respectively," the Court held that the covenant was
divisible, and was good so far as it related to the cities of London
and Westminster, though void as to the residue."2
r*74.9T *^ seems5 then, upon the whole, a true proposition, that,
if any part of a contract is valid, it will avail pro tanto,
although another part of it may be prohibited by statute, provided
the statute does not expressly or by necessary implication render
the whole void, and provided also that the sound part can be sepa-
rated from the unsound. Where, however, a particular proceeding,
though not in itself illegal, is inseparably connected with another
which is so, in such a manner that both form parcels of one transac-
tion— ex. gr., of one trading adventure — such transaction becomes
altogether illegal, because bottomed in and originating out of that
which was in itself illegal; and in this wide and comprehensive
sense must therefore be understood the rule, Ex pacto illicito non
oritur actio.3

warner. Billing, 33 L. J. 0. P. 55, 56; Johnson v. Hudson, 11 East 180.
See per Holt, C. J., Bartlett v. Viner, Carth. 252 ; cited judgm., De Begnis v.
Armistead, 10 Bing. 110 (25 E. C. L. R.); and in Fergusson v. Norman, 5
Bing. N. C. 85 (35 E. C. L. R.). See another instance illustrating the text,
per Parke, B., Bodger v. Arch, 10 Exch. 337 ; cited Amos v. Smith, 1 H. &
C. 241. And see Jones v. Giles, 10 Exch. 119, 144; s. c, affirmed in error,
11 Exch. 393 ; Ritchie v. Smith, 6 C. B. 462 (60 E. C. L. R.).

1 Chesman v. Nainby, 2 Ld. Raym. 1456, 1459 ; Pigot's Case, 11 Rep. 27.

2 Price v. Green (in error), 16 M. & W. 346; s. c, 13 Id. 695; following
Mallan v. May, 11 M. & W. 653, and Chesman v. Nainby, supra. See,
further, as to contracts in restraint of trade, Broom's Com., 4th ed., 365
et seq.; Farrer v. Close, L. R. 4 Q. B. 602; Reg. v. Stainer, L. R. 1 C. C. 230.

3 See Stewart v. Gibson, 7 CI. & Fin. 729.

" The general rule is that where you cannot sever the illegal from the legal

THE LAW OF CONTRACTS. 742

An agreement between the plaintiff and defendant recited that
the plaintiff had for a long time carried on business as a law-sta-
tioner, and also had been a sub-distributor of stamps and collector
of assessed taxes, and it then stated, "that, in consideration of
300?., payable by instalments, the plaintiff agreed to sell, and the
defendant agreed to purchase, the business of a law-stationer, there-
tofore carried on by the plaintiff; and it was thereby further agreed
between them that the plaintiff should not after the 1st of March
then next carry on the business of a law-stationer, or collect any of
the assessed *taxes, &c, but that he, the plaintiff, would use [-#740-1
his utmost endeavors to introduce the defendant to the said
business and offices, &c. : the Court held, that this agreement was
for the sale of an office within the 5 & 6 Edw. 6, c. 16, that it
formed one entire contract, though embracing several distinct acts,
and that the declaration was consequently bad.1

We may add, that where a party to a contract, which might be
impugned on the ground of fraud, knowing of the fraud, neverthe-
less elects to treat the transaction as a binding contract, he thereby
loses his right of rescinding it ; for fraud only gives a right to
avoid or rescind a contract.2 Thus if a party be induced to pur-
chase an article by fraudulent misrepresentations of the seller
respecting it, and, after discovering the fraud, continue to deal
with the article as his own, he cannot recover back the money paid
from the seller; nor does there seem anyauthority for saying that
a party must, in such a case, know all the incidents of a fraud be-
fore he deprives himself of the right of rescinding ; the proper
and safe course is to repudiate the whole transaction at the time of
discovering the fraud.3 "Where an agreement has been procured

part of a covenant, the contract is altogether void ; but where you can sever
them, whether the illegality be created by statute or by the common law,
you may reject the bad part and retain the good." Per Willes, J., Pickering
v. Ilfracombe R. C, L. R. 3 C. P. 250.

1 Hopkins v. Prescott, 4 C. B. 578 (56 E. C. L. R.), and cases there cited.
See Sterry v. Clifton, 9 C. B. 110 (67 E. C. L. R.).

2 Judgm., Stevenson v. Newnham, 13 C. B. 302, 303 (76 E. C. L. R.); per
Parke, B., 2 Exch. 541 ; Reese River Silver Mining Co. v. Smith, L. R. 4 H.
L. 64 ; Oakes v. Turquand, L. R. 2 H. L. 325.

3 Campbell v. Fleming, 1 A. & E. 40 (28 E. C. L. R.); Clarke v. Dickson,
E.,B. & E. 148 (96 E. C. L. R.) ; Horsfall v. Thomas, 1 H. & C. 90 ; White v.
Garden, 10 C. B. 919 (70 E. C. L. R.) ; cited Billiter v. Young, 6 E. &. B. 25

743"

BROOM S LEGAL MAXIMS,

r*744.1 ky fraud," observes Maule, J.1 "the party *defrauded
may at his election treat it as void, but he must make his
election within a reasonable time. The party guilty of the fraud
has no such election."

Lastly, when the act which is the subject of the contract may,
according to the circumstances, be lawful or unlawful, it will not be
presumed that the contract was to do the unlawful act ; the con-
trary is the proper inference.2 Thus, where an act is required to
be done by a person, the omission of which would make him guilty
of a criminal neglect of duty, the law presumes that he has duly
performed it, and throws the burden of proving the negative on the
party who may be interested in doing so.3 And the presumption
of law is clearly against fraud.4

Having in the preceding pages directed attention to some leading
points connected with the illegality of the consideration for a pro-
mise or agreement, and having selected from very many cases some
only which seemed peculiarly adapted to throw light upon the
maxim, Ex dolo malo non oritur actio, we may further pray in aid
of the above very cursory remarks respecting it, the observations
l~* 74.^1 alrea(ty made upon the yet more general principle, that a
man shall not be permitted to take advantage of *his own

(88 E. C. L. R.); Harnor v. Groves, 15 C. B. 667 (80 E. C. L. R.). See
Kingsford v. Merry, 1 H. & N. 503 ; s. c, 11 Exch. 577 ; Higgons v. Burton,
26 L. J. Ex. 342.

1 East Anglian R. C. v. Eastern Counties R. C, 11 C. B. 803 (73 E. C. L.
R.) ; citing Campbell v. Fleming, supra. Judgm., Bwlch-y-Plwm Lead
Mining Co. v. Baynes, L. R. 2 Ex. 326 ; Oakes v. Turquand, L. R. 2 H. L.
325. In Pilbrow v. Pilbrow's Atmospheric R. C. 5 C. B. 453 (57 E. C. L.
R.), Maule, J., observes, "It is not true that a deed that is obtained by fraud
is therefore void. The rule is that the party defrauded may, at his election,
treat it as void."

2 Lewis v. Davison, 4 M. & W. 654; 1 B. & Aid. 463 ; judgm., Garrard v.
Hardey, 6 Scott N. R. 477. See, per Parke, B., Jackson v. Cobbin, 8 M. &
W. 797 ; Harrison v. Heathorn, 6 Scott N. R. 735 ; 10 Rep. 56 ; C. 2. 21. 6.

3 Williams v. East India Co., 3 East 192 ; cited, per Lord Ellenborough, C.
J., 2 M. & S. 561.

4 See, per Parke, B., 8 Exch. 400 ; per Lord Kenyon, C. J., R. v. Fillongley,
2 T. R. 711 ; adopted per Patteson, J., Reg. v. St. Marylebone, 16 Q. B. 305
(71 E. C. L. R.). Duke v. Forbes, 1 Exch. 356, 368, shows that illegality
will not be presumed. And see the maxim Omnia prcesumuntur rite esse
acta— post, Chap. X.

THE LAW OF CONTRACTS. 745

wrong,1 and shall at once proceed to offer some remarks as to the
rule that a consideration is needed to support a promise, and as to
the sufficiency and essential requisites thereof.

Ex nudo Pacto non oritur Actio.

(Noy Max., 24.)
No cause of action arises from a bare promise.

Nudum pactum may be defined, in the words of Ulpian, to be
where nulla subest causa propter conventionem,2 i. e., where there
is no consideration for the promise or undertaking of one of the
contracting parties ; and it is a fundamental principle in our system
of law, that from such a promise or undertaking no cause of action
can arise. " A consideration of some sort or other is so necessary
to the forming of a contract, that a nudum pactum, or agreement
to do or pay something on one side, without any compensation on
the other, will not at law support an action ; and a man cannot be
compelled to perform it."3 A valid and sufficient consideration or
recompense for making, or motive or inducement to make, the pro-
mise upon which a party is sought to be charged, is of the very
essence of a simple contract. There must be, in the language of
Pothier, une cause dlou naisse V obligation* and without this no ac-
tion can be maintained upon it. Accordingly, if one man r^nAC\
promises to *give another 100Z., there is no consideration
moving from the promisee, and therefore there is nothing binding
on the promisor.5 A gratuitous promise or undertaking may in-
deed form the subject of a moral obligation, and may be binding in
honor, but it does not create a legal responsibility.6 Nor will a

1 Ante, p. 279.

2 D. 2. 14. 7, H ; Plowd. 309, n. ; Viu. Abr., " Nudum Pactum " (A). See
1 Powell Contr. 330 et seq. As to the doctrine of nudum pactum in the civil
law, see Pillans v. Van Mierop, 3 Burr. 1670 et seq.; 1 Fonbl. Eq., 5th ed.,
335 (a).

3 3 Com. by Broom & Hadley, 159 ; Noy Max., 9th ed., p. 348.
See McManus v. Bark, L. R. 5 Ex. 65.

4 1 Pothier Oblig. 5.

6 3 Com. by Broom & Hadley 159 5 Vin. Abr., " Contract" (K).
« Judgm., 1 H. Bla. 327. See Balfe v. West, 13 C. B. 466 (76 E. C. L. R.) ;
Elsee v. Gatward, 5 T. R. 143, 149.

746 broom's legal maxims.

mere voluntary courtesy or service uphold an assumpsit, unless
moved by a previous request.1 In these and similar cases the rule
is, nuda pactio obligationem non parit.2

Where indeed a promise is made under seal, the solemnity of that
mode of delivery is held to import, at law, that there was a suffi-
cient consideration for the promise, so that the plaintiff is not in
this case required to prove such consideration ; nor can the deed
be impeached by merely showing that it was made without consid-
l~*7471 era^onJ un^ess proof be given that it originated in fraud.3
Neither is a consideration necessary for the ^validity of a
conveyance operating at common law ; but unless a case is ex-
pressly limited thereby, or it appears to be the intention of the
grantor to part with the estate without a consideration, the use will
result in his favor. If, however, such should not appear to be the
intention of the grantor, and yet an express limitation of the use
should prevent the estate from resulting at law, there would still be
in equity a resulting trust in his favor. Even in the case of a deed,
moreover, it is necessary to observe the distinction between a good
and a valuable consideration ; the former is such as that of blood,
or of natural love and affection, as when a man grants an estate to
a near relative, being influenced by motives of generosity, prudence,
and natural duty. Deeds made upon this consideration are looked
upon by the law as merely voluntary, and although good as between
the parties, are frequently set aside in favor of creditors and bond
fide purchasers.4 On the other hand, a valuable consideration is

* Lampleigh v. Brathwait, Hob. 105; per Park, J., Reason v. Wirdnain, 1
C. & P. 434 ; Bartholomew v. Jackson, 20 Johns. (U. S.) R. 28. Physicians
at common law have no title to remuneration, unless an express agreement
or actual contract be shown : Veitch v. Russell, 3 Q. B. 928 (43 E. C. L. R.).

But secus, where a physician, registered under stat. 21 & 22 Vict. c. 90,
attends a patient professionally, and is not by any by-law of the College of
Physicians prohibited from suing: Gibbon v. Budd, 2 H. & C. 92. See De la
Rosa v. Prieto, 16 C. B. N. S. 578 (111 E. C. L. R.).

" The relation of counsel and client renders the parties mutually incapable
of making any contract of hiring and service concerning the advocacy in liti-
gation." Judgm., Kennedy v. Broun, 13 C. B. N. S. 727 (106 E. C. L. R.) ;
where the cases are collected. See Broun v. Kennedy, 33 L. J. Chanc. 71.

2 D. 2. 14. 7, H ; C. 4. 65. 27 ; Brisson. ad verb. " Niidus."

3 2 Bla. Com., 16th ed., 446, n. (4). Par Parke, B., Wallis v. Day, 2 M. &
W. 277.

* 2 Com. by Broom & Hadley 479, 480, 3 Id. 158 ; per Lord Tenterden, C. J.,

THE LAW OF CONTRACTS. 747

such as money, marriage, or the like ; and this is esteemed by the
law as an equivalent given for the grant.1

When, therefore, a question arises between one who has paid a
valuable consideration for an estate, and one who has given nothing,
it is a just presumption of law, that such voluntary conveyance,
founded only on considerations of affection and regard, if coupled
with a subsequent sale, was meant to defraud those who should
afterwards become purchasers for a valuable consideration, it
being, upon the whole, more fit that a voluntary grantee r*74Q-|
*should be disappointed, than that a fair purchaser should
be defrauded.2

A consideration for a simple contract has been defined thus : —
" any act of the plaintiff from which the defendant derives a benefit
or advantage, or any labor, detriment, or inconvenience sustained
by the plaintiff, however small the benefit or inconvenience may be,
is a sufficient consideration, if such act is performed, or such incon-
venience suffered, by the plaintiff with the consent, either express
or implied, of the defendant."3 And again, " consideration means
something which is of some value in the eye of the law moving
from the plaintiff. It may be some benefit to the defendant or
some detriment to the plaintiff, but at all events, it must be moving
from the plaintiff.4 For instance, the compromise of a claim may

Gully v. Bishop of Exeter, 10 B. & C. 606 .(21 E. C. L R.). See Bac. Max.,
reg. 18.

1 2 Com. by Broom & Hadley 480, 3 Id. 158; 10 B. & C. 606 (21 E. C. L.
R.).

2 Judgm., Doe d. Otley v. Manning, 9 East 66. See 2Q.B. 860 (42 E. C.
L. R.).

3 1 Selw. N. B., 10th ed., 41 ; judgm., 2 E. & B. 487-8 (75 E. C. L. R.) ; per
Parke, B., Moss v. Hall, 5 Exch. 49 ; Bracewell v. Williams, L. R. 2 C. P.
196 ; Crowther v. Farrer, 15 Q. B. 677, 680 (69 E. C. L. R.) ; Hulse v. Hulse,
17 C. B. 711 (84 E. C. L. R.). See also Nash v. Armstrong, 10 C. B. N. S.
259 (100 E. C. L. R.) ; Shadwell v. Shadwell, 9 C. B. N. S. 159 (99 E. C. L.
R.) ; Davis v. Nisbett, 10 C. B. N. S. 752 (100 E. C. L. R.) ; Surtees v. Lister,
7 H. & N. 1 ; Scotson v. Pegg, 6 H. & N. 295 ; Westlake v. Adams, 5 C. B. N.
S. 248 (94 E. C. L. R.) ; Hartley v. Ponsonby, 7 E. & B. 872 (90 E. C. L. R.).

4 Per Patteson, J., Thomas v. Thomas, 2 Q. B. 859 (42 E. C. L. R.) ; Price
v. Easton, 4 B. & Ad. 433 (24 E. C. L. R.) ; Tweddle v'. Atkinson, 1 B. & S.
393 (101 E. C. L. R.); Edwards v. Baugh, 11 M. & W. 641; Bridgman v.
Dean, 7 Exch. 199 ; Wade v. Simeon, 2 C. B. 548 (52 E. C. L. R.) ; Llewellyn
v. Llewellyn, 15 L. J. Q. B. 4 ; Crow v. Rogers, 1 Stra. 592 ; Lilly v. Hays, 5

i ; •

748 broom's legal maxims.

be a good consideration for a promise, although litigation may not
r^dQl nave actually commenced.1 So *where plaintiff stipulated
to discharge A. from a portion of a debt to himself, and to
permit B. to stand in his place as to that portion, defendant stipu-
lating, in return, that B. should give plaintiff a promissory note ;
the consideration moving from plaintiff, and being an undertaking
detrimental to him, was held sufficient to sustain the promise by de-
fendant.2 Where, however, A. being indebted to plaintiff in a cer-
tain amount, and B. being indebted to A. in another amount, the
defandant, in consideration of being permitted by A. to sue B. in
his name, promised to pay A.'s debt to the plaintiff, and A. gave
such permission, whereupon defendant recovered from B., judgment
was arrested, on the ground that plaintiff was a mere stranger to
the consideration for the promise made by defendant, having done
nothing of trouble to himself or of benefit to the defendant.3

So, where in an action of assumpsit the consideration for the
defendant's promise was stated to be the release and conveyance by
the plaintiff of his interest in certain premises, at the defendant's
request, but the declaration did not show that the plaintiff had any
interest in the premises except a lien upon them, which was
expressly reserved by him, the declaration was held bad, as diclos-
ing no legal consideration for the alleged promise.4
r*7^01 *"^n ^e^fc for money had and received, &c, the defendant
pleaded the execution and delivery to the plaintiff of a deed

A. & E. 548 (31 E. C. L. R.) ; approved in Noble v. National Discount Co., 5
H. & N. 225, 228 ; Galloway v. Jackson, 3 Scott N. R. 753, 763 ; Thornton v.
Jenyns, 1 Scott N. R. 52 ; Jackson v . Cobbin, 8 M. & W. 790 ; Cowper v.
Green, 7 M. & W. 633 ; 1 Roll. Abr. 23, pi. 29 ; Fisher v. Waltham, 4 Q. B.
889 (45 E. C. L. R) ; Wilson v. Wilson, 1 H. L. Gas. 538.

1 Cook v. Wright, 1 B. & S. 559 (101 E. C. L. R.). See also as to the suf-
ficiency of a consideration, Hart v. Miles, 4 C. B. N. S. 371 (93 E. C. L. R.),
and cases infra.

2 Peate v. Dicken, 1 Cr., M. & R. 422 ; Tipper v. Bicknell, 3 Bing. N.- C.
710 (32 E. C. L. R.) ; Harper v. Williams, 4 Q. B. 219 (45 E. C. L. R.).

3 Bourne v. Mason, 1 Ventr. 6; Liversidge v. Broadbent, 4 H. & N. 603,
610, and Tweddle v. Atkinson, 1 B. & S. 393 (101 E. C. L. R), also illustrate
the maxim supra.

« Kaye v. Button, 7 M. & Gr. 807 (49 E. C. L. R.) ; recognising Edwards v.
Baugh, 11 M. & W. 641 ; Lyth v. Ault, 7 Exch. 669 ; Strickland v. Turner, Id.
208 ; Fremlin v. Hamilton, 8 Exch. 308 ; see Cooper v. Parker, 14 C. B. 118
(78 E. C. L. R.) ; Millward v. Littlewood, 5 Exch. 775 ; Wild v. Harris, 7 C. B.
999 (62 E. C. L. R) ; Holmes v. Penney, 9 Exch. 584, 589.

THE LAW OF CONTRACTS. 750

securing to the plaintiff a certain annuity, and acceptance of the
same by the plaintiff in full satisfaction and discharge of the debt ;
replication, that no memorial of the annuity deed had been enrolled
pursuant to the statute; that, the annuity being in arrear, the
plaintiff brought an action to recover the amount of the arrears ;
that defendant pleaded in bar the non-enrolment of the memorial ;
and that plaintiff thereupon elected and agreed that the indenture
should be null and void, and discontinued the action. The replica-
tion was held to be a good answer to the plea, since it showed that
the accord and satisfaction thereby set up had been rendered nuga-
tory and unavailing by the defendant's own act.1

It will be evident from the cases just cited, and from the addi-
tional authorities presently referred to, that, in defining nudum
pactum to be, ubi nulla subest causa propter conventionem, the word
causa must be taken to mean a consideration which confers that
which the law regards as a benefit on the party ; it must not be con-
founded with the motive which induces or disposes a person to enter
into a contract;2 nor will it suffice, if colorable merely and illusory.3

An agreement was entered into between plaintiff, who was the
widow, and defendant and S. T., who were the executors of J. T.,
by which, after reciting that J. T. had * verbally expressed r^r,-,
his desire that plaintiff should have a certain house, &c,
during her life, and reciting also, that defendant and S. T. were de-
sirous that such intention should be carried into effect: it was
witnessed that, " in consideration of such desire, and of the pre-
mises," the executors would convey the house, &c, to the plaintiff for
her life ; " provided nevertheless, and it is hereby further agreed
and declared," that the plaintiff should, during her possession, pay
to the executors 1/. yearly towards the ground-rent, payable in re-
spect of the said house and adjoining premises, and should keep the
said house, &c, in repair : it was held, that the agreement so to pay,
and to keep the premises in repair, was a consideration for the
agreement by the defendant and S. T., and that respect for the
wishes of the testator formed no part of the legal consideration for

1 Turner v. Browne, 3 C. B. 157 (54 E. C. L. R.).

2 Per Lord Denman, C. J., and Patteson, J., 2 Q. B. 859 (42 E. C. L. R.) ;
Id. 861 {a).

3 White v. Bluett, 23 L. J. Exch. 36. See Gough v. Findon, 7 Exch. 48 ;
Frazer v. Hatton, 2 C. B. N. S. 512 (89 E. C. L. R.) ; Gorgier v. Morris, 7 C.
B. N. S. 588 (97 E. C. L. R.).

751 broom's legal maxims.

their agreement, and need not be stated in the declaration.1 This
case, therefore, is illustrative of the position, that the motive which
actuates a man is quite distinct from, and forms no part of, the
legal consideration for his promise, and serves likewise to illustrate
the remark of Pothier, who says, La cause de V engagement que con-
trade Tune des parties est ce que V autre des parties lui donne ou
s' engage de lui donner ou le risque dont elle se charge.2
I~*7521 After some conflict in the decisions and dicta3 *respect-
ing the sufficiency of a mere moral obligation, it is now es-
tablished that such a consideration will not, subject to the remarks
hereafter made, support a subsequent express promise. "Mere
moral feeling," says Lord Denman, C. J., in a modern case, " is not
enough to affect the legal rights of parties ;4 nor can a subsequent
express promise convert into a debt that which of itself was not a
legal debt ;5 and although the mere fact of giving a promise cre-
ates a moral obligation to perform it, yet the enforcement of such
promises by law, however plausibly justified by the desire to effect
all conscientious engagements, might be attended with mischievous
consequences to society ; one of which would be the frequent pre-
ference of voluntary undertakings to claims for just debts. Suits
would thereby be multiplied, and voluntary undertakings would also
be multiplied, to the prejudice of real creditors.6

1 Thomas v. Thomas, 2 Q. B. 851 (42 E. C. L. R.) ; possibly such an agree-
ment as the above would be held to be a mere voluntary conveyance as
against a subsequent purchaser for value: per Patteson, J.. Id. 860. See
also, per Coleridge, J., Id. 861.

2 1 Pothier Oblig. 52.

3 See judgm., Littlefield v. Shee, 2 B. & Ad. 813; judgm., Monkman v.
Shepherdson, 11 A. & E. 415, 416 (39 E. C. L. R.); and in Eastwood v.
Kenyon, Id. 450; Meyer v. Haworth, 8 A. & E. 467 (35 E. C. L. R.) See
also Lee v. Muggeridge, 5 Taunt. 36 (1 E. C. L. R.) ; the doctrine laid down
in which case is qualified, 2 B. & Ad. 812; 11 A. & E. 450 (39 E. C. L. R.);
per Pollock, C. B., 1 H. & C. 716; 2 Wms. Saund., 5th ed., 137 c. note (6).

4 Beaumont v. Reeve, 8 Q. B. 483 (55 E. C. L. R.) ; cited and recognised
Fisher v. Bridges, 3 E. & B. 642 (77 E. C. L. R.) ; s. c, 2 Id. 118 (75 E. C. L.
R.); Eastwood v. Kenyon, 11 A. & E. 438 (39 E. C. L. R.); Wennall v.
Adney, 3 B. & P. 247, 249 (a). In Jennings v. Brown, 9 M. & W. 501,
Parke, B., observes, in reference to Binnington v. "Wallis, (4 B. & Aid. 650
(6 E. C. L. R.)), that the giving up the annuity was "a mere moral con-
sideration, which is nothing."

6 Per Tindal, C. J., Kaye v. Dutton, 7M.& Gr. 811-12 (49 E. C. L. R ).
6 Judgm., 11 A. & E. 450, 451 (39 E. C. L. R.). See Roberts v. Smith, 4
H. & N. 315.

THE LAW OF CONTRACTS. 752

A good and sufficient consideration is, then, essential to the
validity of a simple contract, whether such contract be written or
verbal. The law of England, indeed, does not recognise any other
distinction than that between agreements by specialty and those by
parol. If agreements are merely written, and not specialties, they
are parol agreements, and a consideration must be proved. The
law, it has been observed,1 " supplies no means *nor affords r-*7-co-|
any remedy to compel the performance of an agreement
made without sufficient consideration. Such agreement i3 nudum
'pactum ex quo non oritur actio ; and whatsoever may be the sense of
this maxim in the civil law, it is in the last-mentioned sense only
that it is to be understood in our law."

A promise, therefore, by A. (the father) to pay for goods pre-
viously supplied to B. (his illegitimate child) without his (A.'s)
sanction or request would not be binding;2 though where the father
of an illegitimate child promised the mother that if she would
abstain from affiliating the child, he would pay a weekly sum for
its maintenance, an action was held to lie for a breach of this un-
dertaking.3 And\ husband has been held liable for the necessary
expense of the interment of his wife to a mere volunteer.4

As regards bills of exchange and promissory notes the rule is,
that either of these instruments is presumed to be made upon, and
prirnd facie imports, consideration.5 And the words " value re-
ceived " express only what the law will imply from the nature of
the instrument, and the relation of the parties apparent upon
it,6 and then the maxim Expressio eorum quae tacite insunt
nihil operatur, is applicable.7 In an action upon a bill or note

1 Per Skynner, C. B., Rann v. Hughes, 7 T. R. 350, n. (a). See, per Lord
Kenyon, C. J., 3 T. R. 421 ; judgm., Bank of Ireland v. Archer, 11 M. & W.
389.

2 Shelton v. Springett, 1 1 C. B. 452 (73 E. C. L. R.) ; Mortimore v. Wright,
6 M. & W. 482. See Ruttinger v. Temple, 4 B. & S. 491 (116 E. C. L. R.).

3 Linnegar v. Hodd, 5 C. B. 437 (57 E. C. L. R.) ; Smith v. Roche, 6 C. B.
N. S. 223 (95 E. C. L. R.), and cases there cited.

4 Ambrose v. Kerrison, 10 C. B. 776 (70 E. C. L. R.), recognising Jenkins
v. Tucker, 1 II. Bla. 91 ; ante, p. 535 n. 2.

6 Per Martin, B., 1 II. & C. 710 ; Watson v. Russell, 3 B. & S. 34 (113 E.
C. L. R.).

6 Hatch v. Trayes, 11 A. & E. 702 (39 E. C. L. R.) ; per Lord Ellenborough,
C. J., Grant v. Da Costa, 3 M. & S. 352 (30 E. C. L. R.).

7 Ante, p. 669.

~l(b

754 broom's legal maxims.

P7541 *Detween tne immediate parties thereto, the consideration
may be inquired into; and if it be proved that the plaintiff
gave, and the defendant received no value, the action will fail.1
Where, observes Cresswell, J.,2 there is a promise to pay a certain
sum, all being supposed to be due, " each part of the money
expressed to be due is the consideration for each part of the
promise ; and the consideration as to any part failing, the promise
is pro tanto nudum pactum."

In actions not between immediate parties to a bill or note, the
established rule is, that some suspicion inust be cast upon the
plaintiff's title before he can be compelled to prove what considera-
tion he has given for it. If, for instance, a promissory note were
proved to have been obtained by fraud, or affected by illegality,
such proof affords a presumption that the person guilty of the
illegality would dispose of it, and would place it in the hands of
another person to sue upon it, and consequently casts upon the
plaintiff the burden of showing that he was a bond fide endorsee
for value.3

As it appears needless to cite additional cases in support or illus-
tration of a maxim so comprehensive and so well established as
r*755*i tnat now un(ler review, we may *proceed to observe, that,
not only must the consideration for a promise be sufficient
in the contemplation of law, but it must, as already intimated,
move from the plaintiff, that is to say there must be a legal privity
between the parties to the contract alleged.4 Where, therefore, B.,

1 Southall v. Rigg, and Fornian v. Wright, 11 C. B. 481, 492 (73 E. C. L.
R.) ; Crofts v. Beale, 11 C. B. 172; Kearns v. Durell, 6 Id. 596 (60 E. C. L.
R.) ; and cases cited infra.

2 11 C. B. 494; see Warwick v. Nairn, 10 Exch. 762.

8 Per Parke, B., Bailey v. Bidwell, 13 M. & W. 73 ; Boden v. Wright, 12 C.
B. 445 (74 E. C. L. R.) ; Smith v. Braine, 16 Q. B. 244, 250-1 (71 E. C. L.
R.] ; Harvey v. Towers, 6 Exch. 656 ; Mather v. Lord Maidstone, 1 C. B. N.
S. 273 (87 E. C. L. R.) ; s. c, 18 C. B. 273 (86 E. C. L. R.) ; Hall v. Feather-
stone, 3 II. & N. 284 ; Berry v. Alderman, 14 C. B. 95 (78 E. C. L. R.) ; Dobie
v. Larkan, 10 Exch. 776. The proposition stated in the text is more fully set
forth per Lord Campbell, C. J., Fitch v. Jones, 5 E. & B. 238 (85 E. C. L. R.).
See also Munroe v. Bordier, 8 C. B. 862 (65 E. C. L. R.) ; judgm., May v.
Seyler, 2 Exch. 566 ; Robinson v. Reynolds (in error), 2 Q. B. 196 (42 E. C.
L. R.).

4 See Playford v. United Kingdom Telegraph Co., L. R. 4 Q. B. 706 ;
Becher v. Great Eastern R. C, L. R. 5 Q. B. 241 ; Jennings v. Great Northern

THE LAW OF CONTRACTS. 755

the country attorney of A., sent a sum of money to the defendants,
who were his London agents, to be paid to C. on account of A.,
and the defendants promised B. to pay the money according to his
directions, but afterwards, being applied to by C, refused to pay
it, claiming a balance due to themselves from B. on a general
account between them, it was held that an action for money had
and received would not lie against the defendants at the suit of A.1
"The general rule," observed Lord Denman, C. J., "undoubtedly
is, that there is no privity between the agent in town and the client
in the country; and the former cannot maintain an action against
the latter for his fees, nor the latter against the former for negli-
gence."

A. employs B., an attorney, to do an act for the benefit of C,

A. having to pay B., and there being no intercourse of any sort

between B. and C. If, through the gross negligence or ignorance

of B. in transacting the business, *C. loses the benefit in- _ m ■

. . • T 7561

tended for him by A., C. cannot maintain an action against L J

B. to recover damages for the loss sustained. If the law were
otherwise, a disappointed legatee might sue the solicitor employed
by a testator to make a will in favor of a stranger, whom the
solicitor never saw or before heard of, if the will were void for not
being properly signed and attested.2

Having thus briefly shown the nature of the consideration and of
the privity which are necessary to a valid contract, we may proceed
to specify the important distinctions which exist between considera-
tions executed, concurrent, continuing, and executory; and, in the

R. C, L. R.1Q.B.7; Alton v. Midland R. C, 19 C. B. N. S. 213 (115 E. C.
L. R.) ; Watson v. Russell, 5 B. & S. 968 (117 E. C. L. R.) ; s. c, 3 Id. 34
(113 E. C. L. R.).

1 Cobb v. Becke, 6 Q. B. 930 (51 E. C. L. R.) ; Robbins v. Fennell, 11 Q. B.
248 (63 E. C. L. R.); Bluck v. Siddaway, 15 L. J. Q. B. 359; Hooper v.
Treffry, 1 Exch. 17. See Litt v. Martindale, 18 C. B. 314 (86 E. C. L. R.),
where there seems to have been very slight (if any) evidence of privity ;
Johnson v. Royal Mail Steam Packet Co., L. R. 3 C. P. 38 ; Moore v. Bushell,
27 L. J. Exch. 3 ; Gerhard v. Bates, 2 E. & B. 476 (75 E. C. L. R.) ; Brewer
v. Jones, 10 Exch. 655 ; Barkworth v. Ellerman, 6 H. & N. 605 ; Painter v.
Abel, 2 H. & C. 113 ; Collins v. Brook, 5 H. & N. 700 ; s. c, 4 Id. 270.

2 Per Lord Campbell, C, Robertson v. Fleming, 4 Macq. Sc. App. Cas. 177.
As to privity in connection with the relation of attorney and client, see

Fish v. Kelly, 17 C. B. N. S. 194 (112 E. C. L. R.) ; Helps v. Clayton, Id. 553.

756 broom's legal maxims.

first place, we may observe that a bygone, or completely executed,
consideration, unless supported by an antecedent request, either
express or implied, will not suffice in law to sustain a subsequent
promise. If, for example, a man disburse money about the affairs
of another, without request, and then the latter promise that, in
consideration that the former had disbursed the money for him, he
will pay him 20?., this is not a good consideration, because it is
executed;1 but, if, in such a case, there were a previous request to
pay the money, then the subsequent promise would not be a bare
or naked one, but would couple itself with the precedent request,
and with the merits of the party which were procured by that
request, and would, therefore, be founded upon a good considera-
tion.2

r^rrrrr-, *A declaration in assumpsit stated that in consideration
of the plaintiff's agreeing to stay proceedings in an action
against B., the defendant promised to pay the amount upon a cer-
tain event; at the trial, the following agreement was proved: "In
consideration of the plaintiff's having agreed to stay proceedings
against B., &c. ;" it was held that the contract was an executory
contract, and a continuing agreement to stay proceedings, and that
there was therefore no variance.3

But although in general a past consideration will not support a
promise at law, there are, nevertheless, cases in which a past or
executed consideration will be supported by an implied antecedent
request. Where, for instance, the party sought to be charged has
derived benefit from that which is alleged to be the consideration
for his promise, the acceptance and enjoyment of this benefit will,
in legal contemplation, be deemed sufficient to support the aver-
ment of defendant's promise and request, because from such
subsequent enjoyment the law will imply a previous request; thus,
if a man pays money, or buys goods for me, without my knowledge
or request, and afterwards I agree to the payment, or receive the
goods; my conduct, as showing a ratification of the contract, will

1 Per Tindal, C. J., Thornton, v. Jenyns, 1 Scott N. R. 74, citing Hunt v.
Bate, Dyer 272, and 1 Roll. Abr. 11. See particularly Roscorla v. Thomas,
3 Q. B. 234 (43 E. C. L. R.).

2 Lampleigh v. Brathwait, Hob. R. 106 ; per Parke, J., Reason v. Wirdnian,
1 C. & P. 434 ; 1 Wins. Saund. 264 (1).

3 Tanner v. Moore, 9 Q. B. 9 (58 E. C. L. R.).

THE LAW OF CONTRACTS. 757 ~7£^

have a retrospective operation, and will be held tantamount to a
previous request, according to a maxim which will be hereafter con-
sidered, Omnis ratihabitio retrotrahitur et mandato priori cequi-
paratnr}

In Paynter v. Williams,2 the facts were these: — A r*7CQ-i
*pauper, whose settlement was in the parish of A., resided
in the parish of B., and, whilst there, received relief from the parish
of A., which relief was afterwards discontinued, the overseers
objecting to pay any more, unless the pauper removed into his own
parish. The pauper was subsequently taken ill, and attended by
the plaintiff, an apothecary, who, after continuing to attend him
for nine weeks, sent a letter to the overseers of A., upon the
receipt of which they directed the allowance to be renewed, and it
was accordingly continued to the time of the pauper's decease: it
was held, that the overseers of A. were liable to pay so much of the
apothecary's bill as was incurred after the letter was received, for
they knew of the plaintiff's attendance, which knowledge amounted,
under the circumstances of the case, to an acceptance, retainer, or
adoption of the plaintiff's services, and created a legal liability.3

The law will also imply an antecedent request where the con-
sideration consists in this — that the plaintiff has been compelled to
do that to which the defendant was legally compellable — on which
principle depends the right of a surety, who has been damnified, to
recover an indemnity from his principal,4 or contribution from a
co-surety or joint contractor.5

Where, moreover, the consideration is past, it appears r*7cq-i
*to be unnecessary to allege a request, if the act stated as
the consideration cannot, from its nature, have been a gratuitous

1 See also 1 Wins. Saund. 264 (1); Simpson v. Eggington, 10 Exch. 845;
Streeter v. Horlock, 1 Bing. 34 (8 E. C. L. R.).

2 1 Cr. & M. 810.

3 1 Cr. &. M. 819, 820; Wing v. Mill, 1 B. & Aid. 104 ; Atkins v. Banwell,
2 East 505.

4 Toussaint v. Martinnant, 2 T. R. 100; Done v. Walley, 2 Exch. 198.

6 Per Lord Kenyon, C. J., 8 T. R. 186 ; Batard v. II awes, 3 E. & B. 287,
296 (77 E. C. L. R.) ; Earl of Mountcashell v. Barber, 14 C. B. 53 (78 E. C.
L. R.) ; Holmes v. Williamson, 6 M. & S. 158 ; Kemp v. Finden, 13 M. & W.
421 ; Edger v. Knapp, 6 Scott N. R. 707 ; Davies v. Humphreys, 6 M. & W.
153, 168 ; Browne v. Lee, 6 B. & C. 689 (13 E. C. L. R.) ; Cowell v. Edwards,
2 B. & P. 268. See Reynolds v. Wheeler, 10 C. B. N. S. 561 (100 E. C. L. R.).

759 broom's legal maxims.

kindness, but imports a consideration per se.1 Thus, in a recent
case, which was an action of assumpsit for money lent, it was held
unnecessary to allege that the money was lent at the defendant's
request ; for there cannot be a claim for money lent unless there be
a loan, and a loan implies an obligation to pay.2 In the case of
money paid, however, the above doctrine will not apply, because a
gratuitous payment would not create a legal obligation ; and " no man
can be a debtor for money paid unless it was paid at his request."3

In assumpsit for work and labor done by the plaintiff for the de-
fendant, in consideration whereof the latter promised to pay, after
judgment by default and error brought, it was objected, that this
was a past consideration, and, not being laid to be done at the de-
fendant's request, it could be no consideration to raise an assump-
sit; and the Court said, they took the rule of law to be, that a past
consideration is not sufficient to support a subsequent promise, un-
less there was a request of the party, either express or implied, at
the time of performing the consideration, and the judgment was ac-
cordingly reversed.4

r*7fi01 *^ distinction will be noted between cases like the above,
and those in which it has been held that an express pro-
mise may effectually revive a precedent good consideration, which
might have been enforced at law, through the medium of an implied
promise, had it not been suspended by some positive rule of law, as
in the case of infancy, or of a debt barred by the Statute of Limi-
tations, " which is still a good consideration for a promise in writing
to pay."5

"The cases," says Lord Denman, C. J.,6 "in which it has been

1 See 1 M. & Gr. 265 note (39 E. C. L. R.) ; cited per Parke, B., 12 M. &
W. 759.

2 Victors v. Davies, 12 M. & W. 758; per Pollock, C. B., 1 II. & 0. 716;
M'Gregor v. Graves, 3 Exch. 34.

3 Per Parke, B., 12 M. & W. 760 ; Brittain v. Lloyd, 14 M. & W. 762 : cited
in Lewis v. Campbell, 8 C. B. 541. 547 (65 E. C. L. R.) ; and per Parke, B.,
Hutchinson v. Sydney, 10 Exch. 439. See the Forms 15 & 16 Vict. c. 76,
Sched. (B.) Nos. 3, 4.

* Hayes v. Warren, 2 Stra. 933, cited 1 Wms. Saund. 264 (1). See, in fur-
ther illustration of the subject above touched upon, Dietrichsen v. Giubelei,
14 M. & W. 845 ; per Parke, B., King v. Sears, 2 Cr. M. & R. 53 ; Emmens v.
Elderton, 4 H. L. Cas. 624.

8 La Touche v. La Touche, 3 II. & C. 576, 588.

6 Roscorla v. Thomas, 3 Q. B. 237 (43 E. C. L. R.) ; judgm., 1 C. B. 870
(41 E. C. L. R.).

THE LAW OF CONTRACTS. 760

held, that, under certain circumstances, a consideration insufficient
to raise an implied promise will nevertheless support an express one,
will be found collected and reviewed in the note to Wennall v. Ad-
ney,1 and in the case of Eastwood v. Kenyon.2 They are cases of
voidable contracts subsequently ratified, of debts barred by opera-
tion of law subsequently revived, and of equitable and moral obliga-
tions, which, but for some rule of law, would of themselves have
been sufficient to raise an implied promise."

The principle of the rule stated as above by Lord Denman, and
previously laid down by Lord Mansfield,3 has been thus more re-
cently explained,4 " that where the consideration was originally
beneficial to the party promising, yet if he be protected from liabil-
ity by some provision of the statute or common law meant for his
advantage, he may renounce the benefit of that law ; and *if r*7£-i-i
he promises to pay the debt, which is only what an honest
man ought to do, he is then bound by the law to perform it."
Debts, for instance, barred by the Statute of Limitations, " are un-
questionably a sufficient consideration for every promise absolute
or unqualified, qualified or conditional to pay them.5 Promises to
pay a debt simply, or by instalments, or when the party is able, are
all equally supported by the past consideration, and, when the debts
have become payable instanter, may be given in evidence " in sup-
port of the ordinary indebitatus counts. " So when the debt is not
already barred by the statute, a promise to pay the creditor will
revive it and make it a new debt, and a promise to an executor to
pay a debt due to a testator creates a new debt to him. But it
does not follow that though a promise revives the debt in such
cases, any of those debts will be a sufficient consideration to sup-
port a promise to do a collateral thing, as to supply goods or per-
form work and labor.6 In such case it is but an accord unexecuted,
and no action will lie for not executing it."7

1 3 B. & P. 249.

2 11 A. &E. 438 (39 E. C. L. R.).

3 Hawkes v. Sanders, Cowp. 290 ; Atkins v. Hill, Id. 288.

4 Judgm., Earle v. Oliver, 2 Exch. 90.

6 See Lee v. Wilmot, L. R. 1 Ex. 364; Bush v. Martin, 2 H. & C. 311.

6 Citing Reeves v. Ilearne, 1 M. & W. 323.

7 Judgm., 2 Exch. 90; per Parke, B., Smith v. Thome, 18 Q. B. 139 (83 E
C.L.R.).

38

761 broom's legal maxims.

With reference to the above class of cases, we must remark that
the distinction is very material between a void and a voidable con-
tract. For instance, in the case of infancy, the original contract is
in many cases voidable only, not absolutely void, so that the lia-
bility of the contracting party may be ratified or renewed without
any fresh consideration ;l whereas the contract of a married
r*7fi91 *wonian *s absolutely void;2 and, therefore, if the record
states that goods were supplied to a married woman, who,
after her husband's death, promised to pay, this is not sufficient,
because the debt was never owing from her.3

Recent cases may be adverted to as showing that a contract,
which could not originally have been made the ground of an action,
may be converted, by a subsequent express promise, into a cause of
action which the law will recognise as valid. A verbal agreement
was entered into between the plaintiff and defendants respecting the
transfer of an interest in land. The transfer was effected, and
nothing remained to be done but to pay the consideration ; it was
held, that the agreement not being in writing, as required by the
Statute of Frauds, could hot be enforced by action, but that, the
transferee, after the transfer, having admitted to the transferor that
he owed him the stipulated price, the amount might be recovered
upon the count upon an account stated in the declaration.4 Also
bills of exchange given after the repeal of the usury law, by 17 &
18 Vict. c. 90, in renewal of bills given while that law was in force
to secure payment of money lent at usurious interest, having been
held valid, the receipt of the money being a sufficient consideration
to support a new promise to pay it. In the case referred to, this qual-
r*7fiTl ^ec^ P^P013^011 was sanctioned by the majority *of the
court: " That a man by express promise may render him-

1 Per Patteson, J., 8 A. & E. 470 (35 E. C. L. R.). See the note (a) to
Wennall v. Adney, 3 B. & P. 249.

2 See Neve v. Hollands, 18 Q. B. 262 (83 E. C. L. R.).

3 Meyer v. Haworth, 8 A. & E. 467, 469 (35 E. C. L. R.). In Traver v.

, 1 Sid. 57, a woman, after her husband's death, promised the plaintiff, a

creditor, that, if he would prove that her husband had owed him 20?., she
would pay the money. This was held a good consideration, " because it was
a trouble and charge to the creditor to prove his debt." See Cope v. Albin-
son, 8 Exch. 1S5.

4 Cocking v. Ward, 1 C. B. 858, 870 (50 E. C. L. R.). See Lemere v.
Elliott, 6 H. & N. 656 ; Smart v. Harding, 15 C. B. 652, 659 (80 E. C. L. R.) ;
Green v. Saddington, 7 E. & B. 503 (90 E. C. L. R.).

THE LAW OF CONTRACTS. 7G3

self liable to pay back money which he has received as a loan,
though some positive rule of law or statute intervened at the time
to prevent the transaction from constituting a legal debt."1

We must, in the next place, observe that the subsequent promise,
like the antecedent request, may, in many cases, be implied. For
instance, the very name of a loan imports that it was the under-
standing and intention of both parties that the money should be
repaid ;2 a promise to pay interest will be implied by law from the
forbearance of money at the defendant's request ;3 and from money
being found due on accounts stated, the law implies a promise to
pay it ;4 but wbere the consideration has been executed, and a pro-
mise would, under the circumstances, be implied by law, it is clearly
established that no express promise made in respect of that prior
consideration, differing from that which by law would be implied,
can be enforced;5 for, were it otherwise, there would be two co-
existing promises on one consideration.6 It has, however, been said
that the cases establishing this proposition may have proceeded on
another principle, viz., that the consideration was exhausted by
the promise implied by law from the very execution of it, and that,
consequently, any promise made afterwards must be nudum pactum,
there remaining no consideration to support it.7 " But the case
may perhaps be *different where there is a consideration r**jrA-\
from which no promise would be implied by law, that is,
where the party suing has sustained a detriment to himself or con-
ferred a benefit on the defendant, at his request, under circum-
stances which would not raise any implied promise. In such cases
it appears to have been held, in some instances, that the act done
at the request of the party charged, is a sufficient consideration to
render binding a promise afterwards made by him in respect of the
act so done."8

But however this may be, it is, as previously stated, quite clear,

1 Flight v. Reed, 1 H. & C. 703, 716.

2 Per Pollock, C. B., 1 II. & C. 716.

3 Nordenstrom v. Pitt, 13 M. & W. 723.

4 Per Crompton, J., Fagg v. Nudd, 3 E. & B. 652 (77 E. C. L. R.).

6 Judgm., Kaye v. Dutton, 7 M. & Gr 815 (49 E. C. L. R.), and cases there
cited.

6 Per Maule, B., Hopkins v. Logan, 5 M. & W. 249.

7 See Deacon v. Gridley, 15 C. B. 295 (80 E. C. L. R.).

8 Judgm., 7 M. & Gr. 816 (49 E. C. L. R.). '

764 broom's legal maxims.

that, where the consideration is past, the promise alleged, even if
express, must be identical with that which would have been implied
by law from the particular transaction ; in other words, " a past
and executed consideration will support no other promise than such
as may be implied by law;"1 thus, in assumpsit, the declaration
stated, that, in consideration that plaintiff, at the request of defend-
ant, had bought a horse of defendant at a certain price, defendant
promised that the horse was free from vice, but deceived the plain-
tiff in this, to wit, that the said horse was vicious. On motion in
arrest of judgment, this declaration was held bad; for the executed
consideration, though laid with a request, neither raised by impli-
cation of law the promise charged in the declaration, nor would sup-
port such promise if express ; the Court in this case observing,
that the only promise which would result from the consideration, as
stated, and be co-extensive with it, would be to deliver the horse
upon request.2

r*7firl *^n an ac^on agamst the public officer of an insurance
and loan company, the second count of the declaration
stated, that it was agreed between the company and the plaintiff,
that, from the 1st of January then next, the plaintiff, as the attor-
ney of the said company, should receive a salary of 1001. per
annum, in lieu of rendering an annual bill of costs for general
business ; and in consideration that the plaintiff had promised to
fulfil the agreement on his part, the company promised to fulfil the
same on their part, and to retain and employ the plaintiff as such
attorney ;3 the verdict being in favor of the plaintiff, the judgment
was afterwards arrested by the Court of Common Pleas, upon this
ground, that there was no sufficient consideration to sustain that
part of the count above referred to, which alleged a promise to
retain and employ the plaintiff, the Court holding that the language
of the agreement, as stated, imported an obligation to furnish
actual employment to the plaintiff in his profession of an attorney,
and that inasmuch as the consideration set forth was in the past,

1 Per Parke, B., Atkinson v. Stevens, 7 Exch. 572 ; judgm., Earle v. Oliver
2 Exch. 89 ; Lattimore v. Garrard, 1 Exch. 809, 811.

2 Roscorla v. Thomas, 3 Q. B. 234, 237 (43 E. C. L. R.). •

3 Emmens v. Elderton, 4 H. L. Cas. 624 ; s. c, 13 C. B. 495 ( 76 E. C. L. R.) ;
6 Id. 160 (60 E. C. L. R.) ; 4 Id. 479 (56 E. C. L. R.) ; cited Payne v. New
South Wales, &c, Steam Nav. "Co., 10 Exch. 283, 290.

THE LAW OF CONTRACTS. 765

that the plaintiff had promised to perform his part of the agree-
ment, such consideration being a past or executed promise was
exhausted by the like promise of the company to perform the agree-
ment, and did not enure as a consideration for the additional part
of the promise alleged to retain and employ the plaintiff in the
sense before mentioned, as also to perform the agreement. The
view thus taken, however, was pronounced erroneous by the Court
of Exchequer Chamber, and afterwards by the House of Lords,
who held that the averment as to retaining and *employ- r*7pfn
ing the plaintiff was not to be understood as importing a
contract beyond the strict legal effect of the agreement, whence it
followed that the mutual promises to perform such agreement laid
in the count of the declaration objected to, were a sufficient legal
consideration to sustain the defendant's promise.1

A concurrent consideration is where the act of the plaintiff and
the promise of the defendant take place at the same time; and
here the law does not, as in the case of a bygone transaction, re-
quire that, in order to make the promise binding, the plaintiff
should have acted at the request of the defendant;2 as, where it
appeared from the whole declaration taken together, that, at the
same moment, by a simultaneous act, a promise was made, that, on
the plaintiff's accepting bills drawn by one of the parties then
present, the defendants should deliver certain deeds to the plain-
tiff when the bills were paid, it was held, that a good consideration
was disclosed for the defendant's promise.3 So, where the promise
of the plaintiff and that of the defendant are simultaneous, the one
may be a good and sufficient consideration for the other ;4 as where
two parties, upon the same occasion, and at the same time, mutually
promise to perform a certain agreement not then actually entered
into, the consideration moving from the one party is sufficient to
support the promise by the other.5

1 Emmens v. Elderton, supra.

2 Per Tindal, C. J., 3 Bing. N. C. 715 (32 E. C. L. R.).

3 Tipper v. Bicknell, Id. 710; West v. Jackson, 16 Q. B. 280 (71 E. C. L. R.).

4 As to mutuality in contracts, see Broom's Com., 4th ed.', 305 et seq. ;
Bealey v. Stuart, 31 L. J. Ex. 281 ; Westhead v Sproson, 6 II. & N. 728 ;
Whittle, app., Frankland, resp., 2 B. & S. 49 (110 E. C. L. R.).

6 Thornton v. Jenyns, 1 M. & Gr. 166 (39 E. C. L. R.). See King v. Gil-
lett, 7 M. & W. 55; Harrison v. Cage, 1 Ld. Raym. 386 ; cited Smith v. Wood-
fine, 1 C. B. N. S. 667 (87 E. C. L. R.).

qiC

767 broom's legal maxims.

I~*7fi71 *Again, where by one and the same instrument, a sum
of money is agreed to be paid by one of the contracting
parties, and a conveyance of an estate to be at the same time ex-
ecuted by the other, the payment of the money and the execution
of the conveyance may very properly be considered concurrent
acts; and, in this case, no action can be maintained by the vendor
to recover the money until he executes, or oifers to execute a con-
veyance.1 It may, indeed, be stated, generally, that neither party
can sue on such an entire contract without showing a performance
of, or an offer, or, at least, a readiness and willingness to perform,
his part of the agreement, or a wrongful discharge or prevention
of such performance by the other party; in which latter case the
party guilty of the wrongful act shall not, in accordance with a
maxim already considered, be allowed to take advantage of it, and
thereby to relieve himself from liability for breach of contract.2

In addition to cases in which the consideration is concurrent, or
is altogether past and executed, others occur wherein the considera-
tion is continuing at the time of making the promise; thus, it has
been held, that the mere relation of landlord and tenant is a suffi-
cient consideration for the tenant's promise to manage a farm in a
husbandlike manner.3

r*7tf8i *Lastly, "whenever the consideration of a promise is ex-
ecutory, there must," it is been said,4 " ex necessitate rei, have
been a request on the part of the person promising ; for if A. promise
to remunerate B., in consideration that B. will perform something
specified, that amounts to a request to B. to perform the act for which
he is to be remunerated." Here the consideration constitutes a con-
dition precedent to be performed by B. before his right of action
accrues; but whether or not, in any given case, one promise be the
consideration of another, or whether the performance, and not the

1 Per Lord Tenterden, C. J., Spiller v. Westlake, 2 B. & Ad. 157 (22 E. C.
L. R.) ; Bankart v. Bowers, L. R. 1 C. P. 484.

2 Ante, p. 279 et seq. '' If a party does all he can to perform the act which
he has stipulated to do, but is prevented by the wrongful act of the other
party, he is in the same situation as if the performance had been perfected:"
per Holroyd, J., Studdy v. Saunders, 5 B. & C. 637 (11 E. C. L. R.) ; see also
Caines v. Smith, 15 M. & W. 189.

3 Powley v. Walker, 5 T. R. 373 ; recognised Beale v. Sanders, 3 Bing. N.
C. 850 (32 E. C. L. R.) ; Massey v. Goodall, 17 Q. B. 310 (79 E. C. L. R.).

4 Smith L. C, 6th ed., 142.

THE LAW OF CONTRACTS. 768

mere promise, be the consideration, must be gathered from, and
depends entirely upon, the words and nature of the agreement, and
the intention of the contracting parties.1

Caveat Emptor.

. (Hob. 99.)
Let a purchaser beware.

9 It seems clear, that, according to the civil law, a warranty of
title was, as a general rule, implied on the part of the vendor of
land, so that in case of eviction an action for damages lay against
him at the suit of the vendee, sive tota res evincatur, sive pars,
habet regressum emptor in venditor em ;2 and again, non dubitatur,
etsi specialiter venditor evictionem non promiserit, re evictd, ex empto
competere actionem.'6 With us, however, the above proposition does
not hold, and it is laid down, that, " if a man buy lands whereunto
another hath title, which the buyer knoweth not, yet ignorance
shall not excuse *him."4 By the civil law, as observed by r*7fiq~|
Sir E. Coke, every man is bound to warrant the thing that
he sells or conveys, albeit there be no express warranty ; but the
common law binds him not, unless there be a warranty, either in
deed5 or in law; for Caveat emptor,6 qui ignorare non debuit quod
jus alienum emit7 — let a purchaser, who ought not to be ignorant of
the amount and nature of the interest which he is about to buy,
exercise proper caution.

The following examples may suffice to show generally the mode
in which the maxim Caveat emptor has been applied in practice to
the sale of realty; and, since it would be incompatible with the
plan of this volume to enter at any length into an examination of
the very numerous cases which have been decided at law and in

1 Thorpe v. Thorpe, 1 Ld. Raym. 662; s. c, 1 Salk. Ill, is a leading case
upon this subject.

2D. 21.2. 1. »C. 8.45.6.

4 Doct. and Stud, bk. 2, ch. 47.

6 See Worthington v. Warrington. 5 C. B. 635 (57 E. C. L. R.).

c Co. Litt. 102 a. " I have always understood that in purchases of land the
rule is Caveat emptor:" per Lawrence, J., Gwithin v. Stone, 3 Taunt. 439.

7 Hobart 99.

769 BROOM'S LEGAL MAXIMS.

equity with respect to the operation of the above rule, we must
content ourselves with referring below to works of high authority
in which this important subject will be found minutely treated.1

Where, on the sale of an estate, certain woods were falsely rep-
resented as actually producing 250/. per annum, on an average of
the fifteen preceding years, but it appeared that the. manner of
making the calculation was explained at the sale, that a paper was
exhibited, showing that the woods had not been equally cut, and
that the purchaser likewise sent down his own surveyors, who
r*7701 thought that the woods had been cut in an improper *man-
ner, Lord Thurlow refused to give the purchaser relief by
ordering an allowance to be. made, and held that the maxim, Caveat
emptor, applied; but he observed, that if the representation were
made generally, and it were distinctly proved that the fact stated,
though literally true, yet was made out by racking the woods be-
yond the course of husbandry, that would be a fraud in the repre-
sentation, which might be relieved against ; and he further remarked,
that the maxim Caveat emptor does not apply "where there is a
positive representation essentially material to the subject in ques-
tion, and which, at the same time, is false in fact," provided proper
diligence be used by the purchaser in the course of the transaction.2

By agreement for the purchase of a piece of land, entered into
between the defendants, Avho were the assignees of B., and the
plaintiff, it was stipulated on behalf of the defendants that they
should not be obliged to make any warranty of title, the plaintiff
having agreed to accept a conveyance of such right or title as might-
be the defendants', with all faults and defects, if any. Before any
conveyance was executed, the plaintiff asked the defendants whether
any rent had ever been paid for the land, and they replied that none
had been paid by the bankrupt, nor by any person under whom he
claimed, whereas, in fact, rent had been paid by the person who had
sold the land to the bankrupt. The plaintiff having been evicted,
sued the defendants for recovery of his purchase-money, and the
judge having left to the jury the question whether the non-commu-
nication of the fact of payment of rent was fraudulent or not, a
verdict was found for the defendants. This verdict the Court in

1 Sugd., V. & P., 14th ed., 328, et seq. ; 1 Story Eq. Jurisp., 9th ed., Chap.
VI.

2 Lowndes v. Lane, 2 Cox 363.

THE LAW OF CONTRACTS. 771

banc *refused to set aside, and Bayley, J., observed, "I r*77-iT
make no distinction between an active and a passive com-
munication ; if a seller fraudulently conceal that which he ought to
communicate, it will render the contract null and void. But the
authorities establish that the concealment must be fraudulent."1
The case just cited is a direct authority in support of the rule of
law laid down by Lord St. Leonards that — " If, at the time of the
contract, the vendor himself was not aware of any defect in the
estate, it seems, that the purchaser must take the estate with all its
faults, and cannot claim any compensation for them."2

Where, however, a particular description of the estate is given,
which turns out to be false, and the purchaser cannot be proved to
have had a distinct knowledge of its actual state and condition, he
will be entitled to compensation, although a court of equity will
compel him to perform his contract. The rule of Caveat emptor,
indeed, has no application where the defect is a latent one, and of
such a nature that the purchaser cannot by the greatest attention
discover it, and if, moreover, the vendor be cognisant of it, and do
not acquaint the purchaser with the fact of its existence; for in
this case the contract would not be considered binding at law, and
equity would not enforce a specific performance.3 It appears, how-
ever, to be settled, that if the subject-matter of the contract of sale
be agreed to be taken "with all faults," the insertion of this condi-
tion will *excuse the vendor from stating those within his r*779-i
knowledge, although he will not be justified in using any
artifice to conceal them from the purchaser. And even if the pur-
chaser might, by the exercise of proper precaution, have discovered
the defect, equity will not assist the vendor in case he has industri-
ously concealed it.4 So, from Atwood v. Small, the principle is
clearly deducible, that if a purchaser, choosing to judge for himself,
does not effectually avail himself of the knowledge or means of
knowledge accessible to him or his agents, he cannot afterwards
be permitted to say that he was deceived and misled by the vendor's

1 Early v. Garrett, 9 B. & 0. 928, 932 (17 E. C. L. R.) ; Duke of Norfolk v.
Worthy, 1 Camp. 337 ; White v. Cuddon, 8 CI. & Fin. 766 ; Turner v. Harvey,
1 Jac. 169, 178 ; Phillips v. Duke of Bucks, 1 Vern. 227.

2 Sugd. V. & P., 14th ed., 1.

8 Ibid. 333. See also 1 Story, Eq. Jurisp., 6th ed., 247.
4 Sugd. V. & P., 14th ed., 335.

772 broom's legal maxims.

misrepresentations ; for the rule in such a case is Caveat emptor,
and the knowledge of his agents is as binding on him as his own
knowledge. It is his own folly and laches not to use the means of
knowledge within his reach, and he may properly impute any loss
or injury in such a case to his own negligence and indiscretion.1

Where the defects are patent, and such as might have been dis-
covered by a vigilant man, or where the contract was entered into
with full knowledge of them, equity, will not afford relief; for, in
the former case, the rule is, Vigilantibus non dormientibus jura
subveniunt, and in the latter, Scientia utrinque par pares contra-
hentes facit — the law will not assist an improvident purchaser, nor

[*773]

it interpose where both the contracting parties were

'equally well informed as to the actual condition of the
subject-matter of the contract.2

It will appear from the foregoing brief observations that the
maxim Caveat emptor applies, with certain specific restrictions and
qualifications, both to .the title and quality of the land sold. We
may further remark, that, as to the title, it applies equally, whether
the vendor is in or out of possession, for he cannot hold the lands
without some title; and the buyer is bound to see it, and to inspect
the title-deeds at his peril. He does not use common prudence, if
he relies on any other security.3 The ordinary course, indeed,
which is adopted on the sale of real estates is this : the seller sub-
mits his title to the inspection of the purchaser, who exercises his
own or such other judgment as he confides in, on the goodness of
the title ; and if it should turn out to be defective, the purchaser
has no remedy, unless he take special covenant or warranty, pro-
vided there be no fraud practised on him to induce him to purchase.4

1 Attwood v. Small, 6 CI. & Fin. 232, 233; see Wilde v. Gibson, 1 H. L.
Cas. 605 ; commented on, Sugd. V. & P., 14th ed., 328-330. Equity will not
''interpose in favor of a man who wilfully was ignorant of that which he
ought to have known, — a man who, without exercising that diligence which
the law would expect of a reasonable and careful person, committed a mis-
take, in consequence of which alone the proceedings in court have arisen :"
per Lord Campbell, Duke of Beaufort v. Neeld, 12 CI. & Fin. 248, 286.

2 See Sugd. V. & P., 14th ed., 1.

3 3 T. R. 56, 65 ; Roswell v. Vaughan, Cro. Jac. 196 ; per Holt, C. J., 1 Salk.
211.

4 Per Lawrence, J., 2 East 323 ; judgm., Stephens v. De Medina, 4 Q, B.
428 (45 E. C. L. R.) ; per Erie, C. J., Thackeray v. Wood, 6 B. & S. 773 (118
E. C. L. R.) ; per Martin, B., Id. 775.

THE LAW OF CONTRACTS. 773

Thus, if a regular conveyance is made, containing the usual cove-
nants for securing the buyer against the acts of the seller and his
ancestors only, and his title is actually conveyed to the buyer, the
rule of Caveat emptor applies against the latter, so that he must,
at his peril, perfect all that is requisite to his assurance ; and, as
he might protect his purchase by proper covenants, none can be
added.1 An administrator found, among the *papers of r^^-,-,
his intestate, a mortgage deed, purporting to convey pre-
mises to him, and without arrears of interest. Not knowing it to
be a forgery, he assigned it, covenanting, not for good title in the
mortgagor, but only that nothing had been done by himself or the
deceased mortgagee to encumber the property ; and, as this pre-
cluded all presumption of any further security, the assignee was
held bound to look to the goodness of the title, and failed to re-
cover the purchase-money.2 The case of an ordinary mortgage,
however, differs from that of a conveyance, because the mortgagor
covenants that, at all events, he has a good title.3

In cases respecting the demise of land, any question as to the
conditions of the demise must, in the absence of fraud, be deter-
mined by considering both the express contract, and likewise the
warranty, which may, according to circumstances, either arise by
implication of law, or be inferred from the conduct of the parties.
Bearing upon this part of our subject, the following cases may be
mentioned: In Sutton v. Temple,4 A. agreed, in wTriting, to7 take
eatage (that is, the use of the herbage to be eaten by cattle) of
twenty-four acres of land from B. for seven months, at a rent of
40/., and stocked the land with beasts, several of which died a few
days afterwards from the effects of a poisonous substance, wThich
had accidentally been spread over the field without B.'s knowledge.
It was held by the Court of Exchequer, that A., nevertheless, con-
tinued liable for the whole rent, and was not entitled to throw up
the land. In this case *it was not suggested that the r*77r-i
plaintiff B. had the least knowledge of that which caused

1 See note (h); judgm., Johnson v. Johnson, 3 B. & P. 170; arg., 3 East
446 ; 4 Rep. 25 ; 5 Rep. 84.

2 Bree v. Holbech, Dougl. 655 ; cited 6 T. R. 606 ; per Gibbs, C. J., 1 Marsh.
R. 163 (4 E. C. L. R.) ; Thackeray v. Wood, 6 B. & S. 766 (118 E. C. L. R.).

3 Per Lord Kenyon, C. J., Cripps v. Reade, 6 T. R. 607.

4 12 M. & W. 52.

775 broom's legal maxims.

the injury when the land was let ; but it was contended, that under
the above circumstances, there was an implied warranty on the
part of the plaintiff that the eatage was wholesome food for cattle ;
the rule of law was, however, stated to be, that, if a person con-
tract for the use and occupation of land for a specific time, and at
a specific rent, he will be bound by his bargain, even though he
take it for a particular purpose, and that purpose be not attained.
The word "demise," it was observed, certainly does not carry with
it any such implied undertaking as that above mentioned ; the law
merely annexes to it a condition that the party demising has a good
title to a premises, and that the lessee shall not be evicted during
the term.1

In the subsequent case of Hart v. Windsor,2 the Court also held
it to be clear, upon the old authorities, that there is no implied war-
ranty on a lease of a house or of land that it is, or shall be, rea-
sonably fit for habitation or cultivation ; and still less is there a
condition implied by law on the demise of real property only, that
it is fit for the purpose for which it is let. "The principles of the
common law do not warrant such a position ; and though, in the
case of a dwelling-house taken for habitation, there is no apparent
injustice in inferring a contract of this nature, the same rule must
l~*7761 *aPPty to ^an(^ taken for other purposes, — for building
upon, or for cultivation, — and there would be no limit to
the inconvenience which would ensue. It is much better to leave
the parties in every case to protect their interests themselves by
proper stipulations ; and, if they really mean a lease to be void by
reason of any unfitness in the subject for the purpose intended, they
should express that meaning.3 A distinction is, moreover, to be

1 12 M. & W. 62, 64. In Kintrea v. Perston, 1 II. & N. 357, it was held
that upon a contract for the sale of an agreement for a lease, it is not an im-
plied condition that the lessor has power to grant the lease. See Jinks v.
Edwards, 11 Exch. 775. A covenant for quiet enjoyment during the term,
is implied by law from a demise by parol, but not a covenant for gocd title.
Bandy v. Cartwright, 8 Exch. 913 ; followed in Hall v. London Brewery Co.,
2B. & S. 742 (110 E. C. L. R.).

2 12 M. & W. 68.

8 Judgm., 12 M. & W. 86, 87, 88. This was an action of debt for rent due
under an agreement to let a house and garden-ground with certain fixtures :
and the plea alleged that the house was infested with bugs, and was conse-
quently unfit for habitation, and that the defendant accordingly quitted
before any part of the rent became due.

THE LAW OF CONTRACTS. 776

drawn between the preceding cases and Smith v. Marrable,1 where
it was held, that in letting a ready-furnished house, there is an im-
plied condition or obligation that the house is in a fit state to be
inhabited, so that a tenant may quit without notice if the premises
are unfit for habitation.

We may add, that the principle laid down in Hart v. Windsor,
above cited, viz., that there is no implied warranty on the demise of
a house, that it is, or shall be, reasonably fit for habitation, was
fully confirmed and acted upon in Surplice 'v. Farnsworth,2 where it
was held, that assumpsit for use and occupation would lie against a
tenant who held under a parol agreement, by which the landlord
wras to do the necessary repairs, and who quitted, because the pre-
mises, owing to the landlord's default, were in an untenantable state,
although there had not been and could not be any actual beneficial
*occupation during the period for which the rent was ^^777-1
claimed.

We shall, in the next place, consider how far the maxim Caveat
emptor applies in the case of a sale of goods and chattels, first, in
regard to the quality of the goods, and, secondly, in regard to the
title to them. Now, with respect to the quality, the following
general rule was laid down by Tindal, C. J.: "If a man purchase
goods of a tradesman, without, in any way, relying upon the skill
and judgment of the vendor, the latter is not responsible for their
turning out contrary to his expectations ; but, if the tradesman be
informed at the time the order is given of the purpose for which
the article is wanted, the buyer relying upon the seller's judgment,
the latter impliedly warrants that the thing furnished shall be
reasonably fit and proper for the purpose for which it is required."3
Accordingly, where an agreement is for a specific chattel in its
then state, there is no implied warranty of its fitness or merchant-
able quality ;4 but if a person is employed to make a specific chattel,

1 11 M. & W. 5. As to this case, see 12 M. & W. 60, 87 ; and per Coltman,
J., 7 M. & Gr. 585 (49 E. C. L. R.).

2 7 M. & Gr. 576 (49 E. C. L. R.) ; recognising Izon v. Gorton, 5 Bing. N.
C. 501 (35 E. C. L. R.). See Keates v. Earl of Cadogan, 10 C. B. 591 (70 E.
C. L. 11.), cited, post.

3 Brown v. Edgington, 2 Scott N. R. 504 ; recognised per Parke, B., 12 M.
<fc W. 64-, Jones v. Bright, 5 Bing. 533 (15 E. C. L. R.) ; recognised 4 M. &
W. 406 ; per Abbott, C. J., Gray v. Cox, 4 B. & C. 108, 115 (10 E. C. L. R.) ;
Wright v. Crooks, 1 Scott N. R. 685.

* Parkinson v. Lee, 2 East 314; recognised 8 Bing. 52 (21 E. C. L. R.), and

777 broom's legal maxims.

there the law implies a contract on his part that it shall be fit for
the purpose for which it is ordinarily used.1 And upon a sale not
by sample, and without warranty, of merchandise, which the buyer
[~*77K1 nas no °PPortunity °f inspecting, a condition that the
*article shall fairly and reasonably answer the description
in the contract is implied.2

Where the defendant, a broker, bought for the plaintiff certain
scrip certificates in a projected railway company, which turned out
to be spurious, but which were, in fact, the only certificates which
passed current in the market, in an action brought to recover the
price paid for them from the defendant, the proper question for the
jury was held to be, whether the plaintiff had or had not obtained
for his money that particular thing which he desired to purchase.3
It has been held, however, that the vendor of the bill of exchange
impliedly warrants that it is of the kind and description which on
the face of it it purports to be.4

and 12 M. & W. 64 : Chanter v. Hopkins, 4 M. & W. 399 ; Laing v. Fidgeon,
6 Taunt. 108 (1 E. C. L. R.) ; Power v. Barham, 4 A. & E. 473 (31 E. C. L.
R.) ; and cases cited ante, p. 659, et seq.

1 Shepherd w. Pybus, 3 M. & Gr. 868 (42 E. C. L. R.) ; Caniac v. Warriner,
1 C. B. 356 (50 E. C. L. R.); Street v. Blay, 2 B. & Ad. 456 ; Kennedy v.
Panama, &c, Mail Co., L. R. 2 Q. B. 587, 588 (42 E. C. L. R.) ; Keele v.
Wheeler, 7 M. & Gr. 663 (42 E. C. L. R.).

2 Miles v. Schilizzi, 17 C. B. 619 (84 E. C. L. R.). See Bull v. Robinson,
10 Exch. 342, 345.

The law relating to the subject discussed supra, may therefore be summed
up thus : — Where a buyer buys a specific chattel, the maxim Caveat emptor
applies ; but where the buyer orders goods to be supplied, and trusts to the
judgment of the seller to select goods which shall be applicable to the pur-
pose for which they are ordered, there is an implied warranty that they shall
be reasonably fit for that purpose. Judgm., Bigge v. Parkinson, 7 H. & N.
961 ; judgm., Emmerton v. Mathews, Id. 593.

3 Lamert v. Heath, 15 M. & W. 486 (in connection with which case see
Westropp v. Solomon, 8 C. B. 345 (65 E. C. L. R)) : Hall v. Conder, 2 C. B.
N. S. 22, 40, 42 (89 E. C. L. R) ; Smith v. Neale, Id. 67, 89 ; Smith v. Scott,
6 C. B. N. S. 771, 780, 782 (95 E. C. L. R.) ; Hopkins v. Hitchcock, 14 C. B.
N. S. 65 (1 18 E. C. L. R.) ; Josling v. Kingsford, 13 C. B. N. S. 447 (106 E.
C. L. R.) ; Lawes v. Purser, 6 E. & B. 930 (88 E. C. L. R.). See Mitchell v.
Newhall, 15 M. & W. 308 ; Chanter v. Dewhurst, 12 M. & W. 823 ; Taylor v.
Stray, 2 C. B. N. S. 175 (89 E. C. L. R.), cited in Cropper v. Cook, L. R. 3
C. P. 198, and Whitehead v. Izod, L. R. 2 C. P. V38.

4 Gompertz v. Bartlett, 2 E. & B. 849 (75 E. C. L. R.) (recognising Jones
v. Ryde, 5 Taunt. 488 (1 E. C. L. R.), and Young v. Cole, 3 Bing. N. C. 724

THE LAW OF CONTRACTS. 778

The circumstances under which the maxim Caveat emptor does
or does not apply in regard to the quality of goods sold, were
recently much considered in Jones v. *Just,1 and the cases r^77cn
bearing upon the subject were there classified as under : — L ^

1st. — Where goods are in esse and may be inspected by the
buyer, and there is no fraud on the part of the seller, the maxim
Caveat emptor applies, even though the defect which exists in them
is latent and not discoverable on examination, at least where the
seller is neither the grower nor the manufacturer.2 The buyer in
such a case has the opportunity of exercising his judgment upon the
matter ; and if the result of the inspection be unsatisfactory, or if
he distrusts his own judgment, he may if he chooses require a war-
ranty. In such a case it is not an implied term of the contract
of sale that the goods are of any particular quality or are mer-
chantable.

2dly. — Where there is a sale of a definite existing chattel specifi-
cally described, the actual condition of which is capable of being
ascertained by either party, there it no implied warranty.3

3dly. — Where a known described and definite article is ordered
of a manufacturer, although it is stated to be required by the pur-
chaser for a particular purpose, still if the known, described, and
defined thing be actually supplied, there is no warranty that it shall
answer the particular purpose intended by the buyer.4

*4thly. — Where a manufacturer or a dealer contracts to r*7on-i
supply an article which he manufactures or produces, or in
which he deals, to be applied to a particular purpose, so that the

(32 E. C. L. R.)) ; Pooley v. Brown, 11 C. B. N. S. 566 (103 E. C. L. R.) ;
Gurney v. Womersley, 4 E. & B. 133 (82 E. C. L. R.).

1 L. R. 3 Q. B. 197.

2 Parkinson v. Lee, 2 East 314, cited judgm., Mody v. Gregson, L. R. 4
Ex. 54f

8 Barr v. Gibson, 3 M. & W. 390.

4 Chanter v. Hopkins, 4 M. & W. 399 ; Ollivant v. Bayley, 5 Q. B. 288 (48
E. C. L. R.). See Mallan v. Radloff, 17 C. B. N. S. 588 (112 E. C. L. R.).

The distinction must be noticed between a contract to supply goods answer-
ing a particular description, and a contract to sell specific goods with a war-
ranty that they are similar to sample; in the former case the buyer may
reject the goods if they do not answer the description, in the latter case he
cannot do so. Azemar v. Casella, L. R. 2 C. P. 677 ; Heyworth v. Hutchin-
son, L. R. 2Q. B. 447,451-2.

780 broom's legal maxims.

buyer necessarily trusts to the judgment or skill of the manufac-
turer or dealer, there is in that case an implied term or warranty
that it shall be reasonably fit for the purpose to which it is to be
applied.1 In such a case the buyer trusts to the manufacturer or
dealer, and relies upon his judgment.

5thly. — Where a manufacturer undertakes to supply goods man-
ufactured by himself, or in which he deals, but which the vendee
has not had the opportunity of inspecting, it is an implied term in
the contract that he shall supply a merchantable article.2

6thly. — If, therefore, it must be taken as established that on the
sale of goods by a manufacturer or dealer to be applied to a partic-
ular purpose, it is a term in the contract that they shall reasonably
answer that purpose, and on the sale of an article by a manufac-
turer to a vendee who has not had the opportunity of inspecting it dur-
ing the manufacture that it shall be reasonably fit for use, or shall
be merchantable, as the case may be, it seems to follow that a
similar term is to be implied on a sale by a merchant to a merchant
or dealer who has had no opportunity of inspection;3 and in the
judgment from which the foregoing remarks have been extracted the
proposition is thus stated that " in every contract to supply goods
r*rT81"l °^ a *sPecified description which the buyer has had no
opportunity to inspect, the goods must not only in fact
answer the specific description, but must also be saleable or merchant-
able under that description;"4 and the maxim Caveat emptor
consequently does not apply.

It will be collected, from what has been before said, that the
vendor of a chattel may in all cases expressly limit his responsibility
in respect of the quality of the thing sold, or, in other words, he
may, by express stipulation, exclude that contract which the law
would otherwise have implied ; and, referring the reader to the

1 Brown v. Edgington, 2 M. & Gr. 279 (40 E. C. L. R.) ; and Jones v.
Bright, 5 Bing. 533 (15 E. C. L. R.) ; as to which cases see per Lush, J.,
Readhead v. Midland R. C, L. R. 2 Q. B. 418, 419, 428 (42 E. C. L. R.) ; s.
c, 4 Id. 379 (distinguished in Francis v. Cockrell, L. R. 5Q. B. 184) ; Mac-
farlane v. Taylor, L. R. 1 Sc. App. Cas. 245.

2 Laing v. Fidgeon, 4 Camp. 169 ; 6 Taunt. 108 (1 E. C. L. R.) ; Shepherd
v. Pybus, 3 M. & Gr. 868 (42 E. C. L. R.).

3 Bigge v. Parkinson, 7 H. & N. 955.

4 Judgm., Jones v. Just, L. R. 3 Q. B. 205 ; approved in judgm., Mody v.
Gregson, L. R. 4 Ex. 52.

THE LAW OF CONTRACTS. 781

remarks heretofore made and authorities cited as to this point,1 we
may observe, that a warranty will not necessarily be implied by
law from a simple commendation of the quality of goods by the
vendor ; for in this case the rule of the civil law — Simplex commen-
datio non obligat2 — has been adopted by our own, and such simplex
eommendatio will, in most cases, be regarded merely as an invita-
tion to custom, since every vendor will naturally affirm that his
own wares are good,3 unless it appear on the evidence, or from the
words used, that the affirmation at the time of sale was intended to
be a warranty, or that such must be its necessary meaning:4 it is,
therefore, laid down, that in a *purchase without warranty,
a man's eyes, taste, and senses must be his protection ;5 L J
and that where the subject of the affirmation is mere matter of
opinion,6 and the vendee may himself institute inquiries into the
truth of the assertion, the affirmation must be considered a " nude
assertion," and it is the vendee's fault from his own laches that he
is deceived.7 Either party may, therefore, be innocently silent as
to grounds open to both to exercise their judgment upon ; and

1 Ante, p. 659 ; Sharp v. The Great Western R. C, 9 M. & W. 7.

2 D. 4. 3. 37 ; per Byles, J., 17 C. B. N. S. 597 (112 E. C. L. R.).
8 See per Sir Jas. Mansfield, C. J., Vernon v. Keys, 4 Taunt. 488, 493 ; arg.,

West v. Jackson, 16 Q. B. 282, 283 (71 E. C. L. R.) ; Chandelor v. Lopus,
Cro. Jac. 4. A. bought a wagon at sight of B., which B. affirmed to be
worth much more than its real value : Held that no action would lie against
B. for the false affirmation, there being no express warranty nor any evidence
of fraud: Davis v. Meeker, 5 Johns. (U. S.) R. 354.

4 Per Buller, J., 3 T. R. 57 ; Allen v. Lake, 18 Q. B. 560 (83 E. C. L. R.) ;
Jones v. Clark, 27 L. J. Ex. 165 ; Vernede v. Weber, 1 H. & N. 311 ; Simond
v. Braddon, 2 C. B. N. S. 321 (89 E. C. L. R.) ; Shepherd v. Kain, 5 B. &
Aid. 240 (7 E. C. L. R.) ; Freeman v. Baker, 5 B. & Ad. 797 (27 E. C. L. R.) ;
Budd v. Fairmaner, 8 Bing. 52 (21 E. C. L. R.) ; Coverley v. Burrell, 5 B. &
Aid. 257 (7 E. C. L. R.).

6 Fitz. Nat. Brev. 94 ; 1 Roll. Abr. 96.

6 See Power v. Barham, 4 A. & E. 473 (31 E. C. L. R.) ; Jendwine v. Slade,
2 Esp. N. P. C. 572.

'Per Grose, J., 3 T. R. 54, 55; Bayley v. Merrel, Cro. Jac. 386; s. c. 3
Bulstr. 94 ; cited and distinguished in Brass v. Maitland, 6 E. & B. 470 (88
E. C. L. R.) ; Risney v. Selby, 1 Salk. 211 ; s. c, 2 Ld. Raym. 1118 ; recog-
nised Dobell v. Stevens, 3 B. & C. 625 (10 E. C. L. R.) ; per Tindal, C. J.,
Shrewsbury v. Blount, 2 Scott N. R. 594. See Price v. Macaulay, 2 De G.,
M. & G. 339.

39

782 broom's legal maxims.

in this case, Aliud est celare, aliud tacere — silence is by no means
equivalent to concealment.1

Where, moreover, goods have been sold to a party who subse-
quently repudiates them, on the ground that he was laboring under
some misconception as to their quality, two questions will have
substantially to be submitted to the jury: first, what was the bar-
gain actually made between the parties? and, secondly, did the
vendor, by his fraud, or by any preponderance of laches on his
part, mislead the purchaser as to the subject-matter of the
L -I *sale? If fraud be negatived, but it is found that the
contract declared upon was not that in fact made according to the
real understanding between the parties, the defendant will not,
primd facie, be fixed with the character of emptor, and the maxim,
Caveat emptor, will not therefore apply ; and in this case, both
parties being innocent, the question will simply be, whose conduct
has exhibited the greater laches, since on him should fall the loss.2

Where the vendor affirms that the thing sold has not a defect,
which is a visible one, and obvious to the senses, the rule, Caveat
emptor, is without doubt applicable — Ea qua? commendandi causa
in venditionibus dicuntur, si palam appareant, venditor em non
obligant? It is, indeed, laid down by the older authorities, that
defects, apparent at the time of a bargain, are not included in a
warranty,4 however general, because they can form no subject of
deceit or fraud; and, originally, the mode of proceeding for breach

1 Per Lord Mansfield, C. J., 3 Burr. 1910 ; cited per Best, C. J., 3 Bing. 77
(11 E. C. L. R.) ; arg., Jones v. Bowden, 4 Taunt. 851. See Laidlaw v. Or-
gan, 2 Wheaton (U. S.) R. 178 ; arg., 9 Id. 631, 632; per Abbott, C. J., Bow-
ring v. Stevens, 2 C. & P. 341 (12 E. C. L. R.).

As to what will constitute fraudulent concealment in the view of a court of
equity, see Central R. C. of Venezuela v. Kisch, L. R. 2 II. L. 99. By such
court the maxim, Qui vult decipi decipiatur, is recognised ; see Rynell v.
Sprye, 1 De G., M. & G. 687, 710.

2 Keele v. Wheeler, 7 M. & Gr. 665 (49 E. C. L. R.). See Gregson v. Ruck,
4 Q. B. 437 (45 E. C. L. R.) ; where specified work is contracted for but not
completed, that party whose default occasioned the non-completion will fail
in an action by the contractor for not being permitted to proceed with the
work : Pontifex v. Wilkinson, 2 C. B. 349 (52 E. C. L. R.) ; s. c, 1 C. B. 75
(50 E. C. L. R.).

3 D. 1 ;;. 1. 43. pr.

4 See as to warranty, Bartholomew v. Bushnell, 20 Conn. (U. S.) R. 271 ;
post.

THE LAW OF CONTRACTS. 783 -~) £f

of warranty was by an action of deceit, grounded on a supposed
fraud ; and it may be presumed, that there can be no deceit where
a defect is so manifest that both parties discuss it at the time of the
bargain. A party, therefore, who should buy a horse, knowing it
to be blind in both eyes, could not sue on a general warranty of
soundness.1 However, if, without *such knowledge on the r*7Q4-|
part of the purchaser, a horse is warranted sound, which,
in reality, wants the sight of an eye, though this seems to be the
object of one's senses, yet, as the discernment of such defects is
frequently matter of skill, it has been held, that an action lies to
recover damages for this imposition.2

We have already, in noticing the maxim as to dolus mains,3 had
occasion to observe generally the effect of fraud in vitiating every
kind of contract, and, certainly, the remarks then made apply with
peculiar force to the contract of sale; for not only may such con-
tract, before its completion, be repudiated on the ground of fraud,
but, if the price of the goods sold has been actually paid, an action
on the case will lie at suit of the purchaser to recover damages from
the vendor. "If," it has been said in a case already cited,4 "two
parties enter into a contract, and if one of them, for the purpose
of inducing the other to contract with him, shall state that which
is not true in point of fact, which he knew at the time he stated it
not to be true, and if, upon that statement of what- is not true, and
what is known by the party making it to be false, this contract is
entered into by the other party, then, generally speaking, and
unless there is more than that in the case, there will be at law an
action open to the party entering into such contract, an action of
damages grounded upon the deceit ; and there will be a relief in
equity to the same party to escape from the contract which he has
so been inveigled into making by the false representation of the
other contracting party."

1 Per Tindal, C. J., Margetson v. Wright, 7 Bing. 605 (20 E. C. h. R.).
See Liddard v. Kain, 2 Bing. 183 (9 E. C. L. R.) ; Holliday y. Morgan, 1 E.
&E. 1 (102 E. C. L. R.).

2 Butterfeilds v. Burroughs, 1 Salk. 21 1 ; Holliday v. Morgan, 1 E. & E. 1
(102 E. C. L. R.).

2 Ante, p. 729.

* Attwood v. Small, 6 CI. & Fin. 444 ; per Lord Chelmsford, C, Central
R. C. of Venezuela v. Kisch, L. R. 2 H. L. 121.

785 broom's legal maxims.

*" Fraud gives a cause of action if it leads to any sort
L -• of damage; it avoids contracts only where it is the ground
of the contract, and where, unless it had been employed, the con-
tract never would have been made."1

In the common law reports, accordingly, many cases are to be
found, of which Pasley v. Freeman2 is usually cited as the leading
decision, which sufficiently establish that a false affirmation made
by the defendant, with intent to defraud the plaintiff, whereby the
plaintiff receives damage, will lay the ground of an action upon the
case in the nature of deceit ; and this proposition may, in fact, be
considered as included in one yet more general, viz., that where
there is fraud, or breach of duty, and damage, the result of such
fraud or breach of duty, is not from an act remote and consequential,
but one contemplated by the defendant at the time as one of its
results, the party guilty of that fraud or negligence is responsible
to the party injured.3 Therefore, where A. sold a gun, with a
fraudulent warranty to B. for the use of C, to whom such warranty
was either directly or indirectly communicated, and who was injured
by the bursting of the gun ; it was held, that A. was liable to B.
on the warranty, by reason of the privity of contract, and to C. for
the injury resulting from the false representation.4 And a chemist
^compounding an article sold for a particular purpose, and
L J knowing of the purpose for which it is bought, will be

1 Per Lord Wensleydale, Smith v. Kay, 7 H. L. Cas. 775-6 ; citing Small v.
Attwood, 6 CI. & F. 232.

" Contemporaneous fraudulent statements avoid the contract :" per Byles,
J.. Hotson v. Browne, 9 C. B. N. S. 445 (99 E. C. L. R.).

2 3 T. R. 51; Com. Big., "Action upon the Case for a Deceit" (A. 1);
Moens v. Heyworth, 10 M. & W. 147 ; Murray v. Mann, 2 Exch. 538. See
Pontifex v. Bignold, 3 Scott N. R. 390.

3 Judgin., Langridge v. Levy, 2 M. & W. 532-, s. c. (affirmed in error), 4
M. & W. 337 ; George v. Skivington, L. R. 5 Ex. 1 ; Pilmore v. Hood, 5 Bing.
N. C. 97 (35 E. C. L. R.) ; Taylor v. Ashton, 11 M. & W. 401. See Mum-
mery v. Paul, 1 C. B. 316 (50 E. C. L. R.).

4 Langridge v. Levy, 2 M. & W. 519, 529, 532; s. c, 4 Id. 337 (explained
per Maule, J., Howard v. Shepherd, 9 C. B. 312 (67 E. C. L. R.) ; and per
Willes, J., Collis v. Selden, L. R. 3 C. P. 498, and approved in Alton v. Mid-
land R. C, 19 C. B. N. S. 239, 245 (115 E. C. L. R.)) ; Eastwood v. Bain, 3
H. & N. 738 ; Farrant v. Barnes, 11 C. B. N. S. 553 (103 E. C. L. R.) ; Win-
terbottom v. Wright, 10 M. & W. 109 ; Priestley v. Fowler, 3 M. & W. 1 ;
Blakemore v. Bristol and Exeter R. C, 8 E. & B. 1035 (92 E. C. L. R.), and
cases cited post.

THE LAW OP CONTRACTS. 786

liable to an action on the case for unskilfulness and negligence in
the manufacture of it, causing damage to the person using it, and
for whose use the chemist knew that it was meant.1

In order, however, to entitle a person to recover for damage
sustained in consequence of misrepresentation, it must appear that
the communication, or false affirmation, which occasioned the
damage, was made wilfully. Where a party, who is applied to
for his opinion, gives an honest, although mistaken, one, it is all
that can be expected: it is not enough to show that the representa-
tion is false, and that it turned out to be altogether unfounded, if
the party making it acted upon a fair and reasonably well-grounded
belief that it was true.2

It must, however, be observed, that there may be a fraudulent
representation sufficient to avoid a contract, or to form the ground
of an action, without actual active declaration from the party con-
tracting: there may be a sort of tacit acquiescence in a representa-
tion fraudulent within the party's knowledge, or in the communica-
tion of a falsehood by a third person, originally flowing from

himself.3 *In cases belonging to this class, a maxim ap-

r*787"l
plies, which is well known and admitted to be correct in L -•

many of the ordinary occurrences of life — Quitacet consentire vide-

tur* — silence implies consent ;5 and such consent may be inferred

from the party's subsequent conduct.6 For instance, defendant,

being about to sell a public-house, falsely represented to B., who

1 George v. Skivington, L. R. 5 Ex. 1.

2 Hay craft v. Creasy, 2 East 92 ; cited, Adamson v. Jarvis, 4 Bing. 73, 74
(13 E. C. L. R.) ; Shrewsbury v. Blount, 2 Scott N. R. 588 ; per Parke, B., 11
M. & W. 413. In connection with this subject, see also Longmeid v. Holli-
day, 6 Exch. 761, 766 ; cited in Francis v. Cockrell, L. R. 5 Q. B. 194 ; Ger-
hard v. Bates, 2 E. & B. 476 (75 E. C. L. R.).

* See per Coltman, J., 5 Bing. N. C. 109 (35 E. C. L. R.) ; Wright v.
Crookes, 1 Scott N. R. 685.

4 Jenk. Cent. 32. See, in illustration of this maxim, Morrish v. Murrey, 13
M. & W. 52; Lucy v. Mouflet, 5 H. & N. 229 ; Cooper v. Law, 6 C. B. N. S.
502, 508 (95 E. C. L. R.) ; Morgan v. Evans, 3 CI. & Fin. 205; Marq. of Salis-
bury v. Great Northern R. C, 5 C. B. N. S. 174 (94 E. C. L. R.).

6 For instance, " where there is a duty to speak, and the party does not, an
assent may be inferred from his silence :" per Bramwell, B., 4 H. & N. 798.

6 Jenk. Cent. 32, 68, 226 ; Hunsden v. Cheney, 2 Vern. 150, offers an illus-
tration of this maxim. See also 2 Inst. 305 ; Richardson v. Dunn, 2 Q. B.
218 (42 E. C. L. R.) ; Wright v. Crookes, 1 Scott N. R. 685.

787 broom's legal maxims.

had agreed to purchase, that the receipts were 180?. per month, arid
B., to the knowledge of defendant, communicated this representa-
tion to plaintiff, who became the purchaser instead of B. ; it was
held, that an action lay against defendant at suit of the plaintiff,
who had sustained damage in consequence of having acted on the
representation.1

There is, however, no implied duty cast on the owner of a house
being in a ruinous and unsafe condition to inform a proposed tenant
that it is unfit for habitation, nor will an action of deceit lie against
him for omitting to disclose the fact.2

Before proceding further, it may be proper to distinguish be-
tween a warranty and a representation. A warranty forms a part
l"*7881 °^ ^e contract> Dut a representation *may be altogether
collateral to the contract, and not incorporated with it.3
If, indeed, the representation be of a fact, without which the other
party would not have entered into the contract at all,4 or at least on
the same terms, it may, if untrue, avoid the contract, or give a
right to sue for damages on the ground of fraud. For instance, in
the case of an action by the purchaser of a public-house, who has
been induced to buy or to give a greater price for the good-will of
the house, by a representation of the extent of its business, if that
representation turns out to be false, it has never been doubted that
the contract may be avoided, and that the buyer may recover back

1 Pilmore v. Hood, 5 Bing. N. C. 97 (35 E. C. L. R.). See Dobell v. Ste-
vens, 3 B. & C. 623 (10 E. C. L. R.).

2 Keates v. Earl of Cadogan, 10 C. B. 591 (70 E. C. L. R.) ; distinguishing
Hill v. Gray, 1 Stark. N. P. C. 434 (2 E. C. L. R.), as containing the element
of " aggressive deceit."

3 Hence the main question in the cause may be — what was the real con-
tract between the parties? See, for instance, Foster v. Smith, 1 H. & N. 156.
And if verbal stipulations are afterwards embodied in a written contract, the
parties will of course be bound by that alone, subject to be interpreted by the
usages of trade : Harnor v. Groves, 15 C. B. 667, 674 (80 E. C. L. R.). As illus-
trating the difference between a warranty and a description, collateral repre-
sentation or mere expression of an opinion or intention, see Cranston v. Mar-
shall, 5 Exch. 395; Taylors. Bullen, Id. 779 ; Hopkins v. Tanqueray, 15 C. B.
130.(80 E. C. L. R.) ; with which compare Percival v. Oldacre, 18 C. B. N. S. 398
(114 E. C. L. R.) ; Stucley.u. Baily, 1 H. & C. 405; Benham v. United Guaran-
tee, &c, Co., 7 Exch. 744 ; Barker v. Windle, 6 E. & B. 675 (88 E. C. L. R.) ;
Gorrissen v. Perrin, 2 C. B. N. S. 681 (89 E. C. L. R.), and cased there cited.

* Bannerman v. White, 10 C. B. N. S. 844 (100 E. C. L. R.).

THE LAW OF CONTRACTS. 788

his money as had and received to his use.1 It must be borne in
mind, however, that "the intention of the parties governs in the
making and in the construction of all contracts. If the parties so
intend, the sale may be absolute, with a warranty superadded; or
the sale may be conditional, to be null if the warranty is broken."2

*It is further material to observe, with reference to the r*>7Qq-|
distinction between an action upon the case for a false
representation and one purely ex contractu upon a warranty, that,
to support the former, three circumstances must combine: 1st, it
must appear that the representation was contrary to the fact ; 2dly,
that the party making it knew it to be contrary to the fact ; and,
3dly, that it was the false representation which gave rise to the
contracting of the other party.3

In the latter case above specified, viz., that of an action ex con-
tractu for breach of warranty, it is not necessary that all those
three circumstances 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 undertakes that the article
sold shall, in point of fact, be such as it is described, no question
can be raised upon the scienter, upon the fraud or wilful misrepre-
sentation.4

Conformably to what has been above said, it was observed, in
reference to a life policy, by Lord Cranworth, C.,5 that " there is a
great distinction between that which amounts to what is called a
warranty, and that which is merely a representation inducing a
party to enter into a contract. Thus, if a person effecting a policy
of insurance says : ' I warrant such and such things which are here
stated,' and that is part of the contract, then, whether they are

1 See, per Lord Abinger, C. B., 6 M. & W. 378 ; per Parke, B., Id. 373 ;
Pickering v. Dowson, 4 Taunt. 779, 786 ; cited, Kain v. Old, 2 B. & C. 634 (9
E. C. L. R.) ; Mummery v. Paul, 1 C. B. 316 (50 E. C. L. R.) ; Pilmore v.
Hood, 5 Bing. N. C. 97 (35 E. C. L. R.).

2 Judgm., 10 C. B. N. S. 860 (100 E. C. L. R.) ; judgm., Behn v. Burness,
32 L. J. Q. B. 206 5 Russell v. Nicolopulo, 8 C. B. N. S. 362 (98 E. C. L. R.).

3 Per Lord Brougham, Attwood v. Small, 6 CI. & Fin. 444, 445 ; Milne v.
Marwood, 15 C. B. 778 (80 E. C. L. R.) ; Behn v. Kemble, 7 C. B. N. S. 260
(97 E. C. L. R.).

4 6 CI. & Fin. 444, 445.

6 Anderson v. Fitzgerald, 4 H. L. Cas. 503-4 ; Wheelton v. Hardisty, 8 E.
& B. 185, 232; Jones v. Provincial Insur. Co., 3 C. B. N. S. 65 (91 E. C. L.
R.).

789 BROOM'S LEGAL MAXIMS.

material or not is quite unimportant, — the party must adhere to
r*7901 kis warranty whether material *or immaterial. But if the

party makes no warranty at all, but simply makes a certain
statement, if that statement has been made bond fide, unless it is
material, it does not signify whether it is false or not false.. In-
deed, whether made bond fide or not, if it is not material, the
untruth is quite unimportant. ... If there is no fraud in a
representation of that sort, it is perfectly clear that it cannot
affect the contract ; and even if material, but there is no fraud in
it, and it forms no part of the contract, it cannot vitiate the right of
the party to recover." In applying the principle thus set forth,
reference must of course be made to the wording of the policy, and
declaration of the assured, upon which it may be founded.1

With respect to an action upon the case for false representation,
although fraud and an intent to deceive the plaintiff are imputed
in the declaration to the defendant, and although it is expressly
laid down, that "fraud and falsehood must concur to sustain this
action,"2 yet the law will infer an improper motive, if what the de-
fendant says is false within Ms own knowledge and is the occasion
of damage to the plaintiff.3 In Polhill v. Walter,4 a bill was pre-
r*nqi -i sented for acceptance at the *office of the drawee, who was

absent. A., who lived in the same house with the drawee,
being assured by one of the payees that the bill was perfectly regu-
lar, was induced to write on the bill an acceptance, as by the pro-
curation of the drawee, believing that the acceptance would be sanc-
tioned, and the bill paid by the latter. The bill was dishonored when
due, and the endorsee having, on proof of the above facts, been non-

1 Fowkes v. Manchester and London Life, &c., Assur. Co., 32 L. J. Q. B.
153; judgm., 3 C. B. N. S. 85 (91 E. C. L. R.).

2 Per Gibbs, C. J., Ashlin v. White, Holt N. P. C. 387 (3 E. C. L. R.).

8 Per Tindal, C. J., Foster v. Charles, 6 Bing. 483 (19 E. C. L. R.) ; s. c,
7 Bing. 105 (20 E. C. L. R.) ; Murray v. Mann, 2 Exch. 538 ; Gerhard v.
Bates, 2 E. & B. 476, 491 (75 E. C. L. R.) ; Tation v. Wade, 18 C. B. 371
(114 E. C. L. R.) ; Thorn v. Bigland, 8 Exch. 725 ; Randell v. Trimen, 18 C.
B. 786 (86 E. C. L. R.) ; per Lord Campbell, C. J., Wilde v. Gibson, 1 H. L.
Cas. 633 ; see Crawshay v. Thompson, 5 Scott N. R. 562 ; Rodgers v. Nowill,
5 C. B. 109 (57 E. C. L. R.) ; and cases cited ante, p. 786.

* 3 B. & Ad. 114 (23 E. C. L. R) ; cited Smout v. Ilbery, 10 M. & W. 10;
and 5 Scott N. R. 596, 599 ; and per Parke, B., 2 Exch. 541 ; Eastwood v.
Bain, 3 H. & N. 738.

THE LAW OF CONTRACTS. 791

suited in an action against the drawee, sued A. for falsely, fraudu-
lently, and deceitfully representing that he was authorized to accept
by procuration ; the jury, on the trial, negatived all fraud in fact,
yet the defendant was held to be liable, because he had made a rep-
resentation untrue to his own knowledge; and the plaintiff, acting
upon the faith of that representation, and giving credit to the accept-
ance, which, in the ordinary course of business, was its natural and
necessary result, had in consequence thereof sustained damage. It
was observed in this case, that the defendant must be taken to have
intended that all persons should give credit to the acceptance to
whom the bill might be offered in the course of circulation, and that
the plaintiff was one of those persons.

The case just cited will suffice to show that there may be legal
fraud, without proof of any morally fraudulent motive for the par-
ticular act, from which it is inferred ; and we may observe, gener-
ally, that it is fraud in law if a party makes representations which
he knows to be false, and from which injury ensues, although the
motive from which the representations proceeded may not have been
bad ; and that the person making them will nevertheless be responsi-
ble for the consequences.1 Fraud *may, moreover, consist as r*nq<r\
well in the suppressio veri — the suppression of what is true,
as in the suggestio falsi — the representation or suggestion of what
is false,2 of which one familiar instance presents itself in the case of
a sea policy of insurance, which is made upon an implied contract
between the parties, that everything material known to the assured
shall be disclosed by him, and which instrument will be invalidated
if any material fact be withheld. " When a policy of insurance,"
as observed by Lord Abinger,3 " is said to be a contract uberrima*

1 Per Tindal, C. J., 7 Bing. 107 (20 E. C. L. R.) ; cited judgin., Rawlings v.
Bell, 1 C. B. 959, 960 (50 E. C. L. R.).

2 Per Chambre, J., Tapp v. Lee, 3 B. & P. 351 5 cited 6 Bing. 403 (19 E. C.
L. R.).

3 6 M. & W. 379 ; Carter v. Boehm, 3 Burr. 1905 ; Harrower v. Hutchinson,
L. R. 4 Q. B. 523, 536, and cases there cited. Lindenau v. Desborough, 8 B.
& C. 586 (15 E. C. L. R.) ; Car™. Montefiore, 5 B. & S. 408 (117 E. C. L. R.).
A fact known to the underwriter need not be mentioned by the assured, for
Scientia utrinque par pares contrahentes facit : 3 Burr. 1910 ; Bates v. Hewitt,
L. R. 2 Q. B. 609. See Mackintosh v. Marshall, 11 M. & W. 116 ; Stokes v.
Cox, 1 H. & N. 533 ; s. c, Id. 320, and cases there cited.

Wheelton v. Hardisty, 8 E. & B. 285, 232 (92 E. C. L. R.), is important as
regards the effect of fraud upon a life policy ; et vide ante, p. 789.

792 broom's legal maxims.

Jidei, this only means that the good faith which is the basis of all
contracts, is more especially required in that species of contract, in
■which one of the parties is necessarily less acquainted with the
details of the subject of the contract than the other. Now, nothing
is more certain, than that the concealment or misrepresentation,
whether by principal or agent, by design or by mistake, of a mate-
rial fact, however innocently made, avoids the contract on the ground
of a legal fraud."1 The rule, however, here stated, does not extend
to guarantees — the concealment which will vitiate such an instru-
ment must be fraudulent.2

I~*7cm *The necessity of showing " moral fraud" and of prov-
ing the scienter in an action on the case for misrepresenta-
tion, has been much discussed.

In Cornfoot v. Fowke,3 the plaintiff declared in assumpsit for the
non-performance of an agreement to take a ready-furnished house.
The defendant pleaded that he had been induced to enter into the
contract by the fraud and covin of the plaintiff; and on this plea
issue was joined. It appeared on the trial, that the plaintiff, being
the owner of the house in question, employed an agent to let it, and
the defendant, being in treaty with such agent for hiring, asked
him, if there was " anything objectionable about the house ?"
upon which the agent replied, "nothing whatever." On the day
after signino; the agreement, the defendant discovered that the ad-
joining house was a brothel, and on that ground declined to fulfil
the contract. It further appeared that the plaintiff was fully aware
of the existence of the brothel, but that the agent was not. It was
held by the majority of the Court of Exchequer (dissentiente Lord
Abinger, C. B.), that it was not sufficient to support the plea that
the representation turned out to be untrue, but that, for that pur-
pose, it ought to have been proved to have been fraudulently made ;
whereas, the principal, though he knew the fact, was not cognisant
of the representation being made, and never directed the agent to

1 Ace, Anderson v. Thornton, 8 Exch. 425 ; Russell v. Thornton, 6 II. &
N. 140 ; s. c, 4 Id. 788 ; Holland v. Russell, 4 B. & S. 14 (116 E. C. L. R.).

2 North British Insur. Co. v. Lloyd, 10 Exch. 523.

3 6 M. & W. 358. Compare with Cornfoot v. Fowke, supra, the judgment
in Smout v. Ilbery, 10 M. & W. 1 ; and Collen v. Wright, 7 E. & B. 301 (90
E. C. L. R.) ; s. c, 8 Id. 647 (92 E. C. L. R.) ; Spedding v. Nevell, L. R. 4 C.
P. 212. See also Wilde v. Gibson, 1 II. L. Cas. 605.

THE LAW OF CONTRACTS.

793 -7/#

make it. The agent, though he made a misrepresentation, yet did
not know it to be one at the time he made it, but gave his answer
*bond fide. It is obvious that the decision in this case, r*7q4.-|
which has been much canvassed,1 in no degree conflicts
with the proposition which seems consistent with reason and
authority,2 that " if an agent is guilty of fraud in transacting his
principal's business, the principal is responsible "3 — that " the fraud
of the agent who makes the contract is the fraud of the principal."4
And " with respect to the question whether a principal is answer-
able for the act of his agent in the course of his master's business,
and for his master's benefit, no sensible distinction," it has been
observed,5 " can be drawn between the case of fraud and the case of
any other wrong. The general rule is, that the master is answer-
able for every such wrong of the servant or agent as is committed
in the course of the service, and for the master's benefit, though no
express command or privity of the master can be proved."

In Fuller v. Wilson, which was an action on the case for a fraud-
ulent misrepresentation of the value of a house, the facts were as
follows : — The defendant, being the owner of a house in the city,
employed her attorney to put it in a course of being sold by auction ;
he described it to the auctioneer as being free from rates and taxes,
and it was bought by the plaintiff on that representation, r^r.qr-i
*for 600?. It was, in fact, subject to rates and taxes,
amounting to about 16?. on a rent of 100?., and would have been
sold for no more than 470?., if that representation had not been
made. The plaintiff brought his action for this difference of price.
It appeared that the defendant had, in fact, made no representation
at all, and that her attorney, who made the representation, did not
know it to be false. The action was, nevertheless, held to be main-

1 In Wheelton v. Hardisty,- 8 E. & B. 270 (92 E. C. L. R.), Lord Campbell,
C. J., intimates that " the voice of Westminster Hall was rather in favor of
the dissentient Chief Baron."

2 In Udell v. Atherton, 7 H. & N. 172 (where the authorities are collected),
the Judges of the Court of Exchequer were equally divided in opinion as to
the mode of applying the proposition supra, to the facts before them. See
judgm., Barwick v. English Joint Stock Bank, L. R. 2 Ex. 265.

3 Per Parke, B., Murray v. Mann, 2 Exch. 540, and in Cornfoot v. Fowke,
6 M. & W. 373.

* Judgm., Wheelton v. Hardisty, 8 E. & B. 260 (92 E. C. L. R.).
6 Judgm., Barwick v. English Joint Stock Bank, L R. 2 Ex. 265.

795 broom's legal maxims.

tamable, on this express ground, that, whether there was moral
fraud or not, if the purchaser was actually deceived in his bargain,
the law would relieve him from it; that the principal and his agent
were, for this purpose, completely identified: and that the question
to be considered was, not what was passing in the mind of either,
but whether the purchaser was, in fact, deceived by them, or either
of them.1

It seems, however, clear that the principle on which the judg-
ment given by the Court of Queen's Bench in the above case was
founded, is at variance with that which must now be considered as
f"*79fn estaDnsned : for, in the subsequent *case of Collins v.
Evans,2 it is expressly laid down that "a mere representa-
tion, untrue in fact, but honestly made," will not suffice to form the
groundwork of an action on the case for misrepresentation ; and
in Ormrod v. Huth,3 where the question as to "moral fraud" was
much discussed, case for a false and fraudulent representation re-
specting the quality of goods sold by sample, was held not main-
tainable without showing that such representation was false to the
knowledge of the seller, or that he acted fraudulently or against
good faith in making it. " The rule," said Tindal, C. J., deliver-
ing judgment, "which is to be derived from all the cases, appears

1 Fuller v. Wilson, 3 Q. B. 58 (43 E. C. L. R.). The facts of this case were
afterwards turned into a special verdict; and on the facts so stated the judg-
ment of the Court of Queen's Bench was reversed in the Exchequer Chamber ;
s. c, 3 Q. B. 68 and 1009 (43 E. C. L. R.). The court of error did not, how-
ever, enter into the principle on which the decision below was founded, nor
into the question discussed in Cornfoot v. Fowke, supra. See also Hum-
phrys v. Pratt, 5 Bligh N. S. 154, which may be supported on another
ground, as pointed out by Tindal, C. J., 5 Q. B. 829 (48 E. C. L. R.) ; Railton
v. Matthews, 10 CI. & Fin. 934 ; cited North British Insur. Co. v. Lloyd, 10
Exch. 529, 533. As to statements by an agent under a misconception of
facts, see, particularly, Smout v. Ilbery, 10 M. & W. 1 ; Collen v. Wright, 7
E. & B. 301 (90 E. C. L. R.) ; s. c, 8 Id. 647 (92 E. C. L. R.) ; Spedding v.
Nevell, L. R. 4 C. P. 212.

Adverting to Cornfoot v. Fowke, and Fuller v. Wilson, supra, Wilde, B.,
observes : "The artificial identification of the agent and principal by bringing
the words of the one side by side with the knowledge of the other, induced
the apparent logical consequence of fraud. On the other hand, the real
innocence of both agent and principal repelled the notion of a constructive
fraud in either:" Udell v. Atherton, 7 H. & N. 184.

2 In error, 5 Q. B. 820 (48 E. C. L. R.), reversing judgm. in s. c, Id. 804.

3 14 M. & W. 651.

THE LAW OF CONTRACTS. 796

to us to be, that where, upon the sale of goods, the purchaser is
satisfied, without requiring a warranty (which is a matter for his
own consideration), he cannot recover upon a mere representation
of the quality by the seller, unless he can show that the represen-
tation was bottomed in fraud. If, indeed, the representation was
false to the knowledge of the party making it, this would in general
be conclusive evidence of fraud ; but if the representation was
honestly made, and believed at the- time to be true by the party
making it, though not true in point of fact, we think this does not
amount to fraud in law, but that the rule of Caveat emptor applies
and the representation itself does not furnish a ground of action."

Further, the correctness of the principle laid down in Collins v.
Evans, above cited, was recognised by the Court of Queen's Bench
in Barley v. Walford,1 which shows, that, if A. knowingly utter a
falsehood to B., with *intent to defraud B., and with a r*7q7-i
view to his own profit, and B., giving credit to the false-
hood, is injured thereby, he may maintain an action against A. for
the false representation ; though, as there observed by Lord Den-
man, C. J., " if every untrue statement which produces damage
to another would found an action at law, a man might sue his
neighbor for any mode of communicating erroneous information,
such (for example) as having a conspicuous clock too slow, since
plaintiff might be thereby prevented from attending to some duty
or acquiring some benefit."

So, in another case, bearing on the law of principal and agent,
Parke, B., observed, that, to make out fraud, some wilful misrepre-
sentation must be shown, and that a mere untruth innocently told
is not sufficient.2

Nor does it seem at variance with the proposition just stated to
affirm — in accordance with some high authorities — that if a man
having the means of knowledge in regard to a certain fact, but
neglecting to avail himself of them, undertakes to publish as true,

1 9 Q. B. 197, 207, 208 (58 E. C. L. R.).

2 Atkinson v. Pocock, 12 Jur. 60 ; s. c, 1 Exch. 796 ; referring to Chandelor
v. Lopus, Cro. Jac. 4, and Cornfoot v. Fowke, 6 M. & W. 358. "It seems to
us that a statement false in fact, but not false to the knowledge of the party
making it, as in Polhill v. Walter, nor made with any intention to deceive,
will not support an action, unless from the nature of the dealing between the
parties a contract to indemnify can be implied :" judgm., Rawlings v. Bell, I
C. B. 959, 960 (50 E. C. L. R.).

797~ "(V broom's legal maxims.

that which he does not know to be true, he will be responsible if it
should turn out to be false.1 "If," says Maule, J.,2 ua man,
having no knowledge whatever on the subject, takes upon himself
to represent a certain state of facts to exist, he does so at his peril;
r^nn-i and if it be done either with a view *to secure some benefit
to himself, or to deceive a third person, he is in law guilty
of a fraud ; for he takes upon himself to warrant his own belief of
the truth of that which he so asserts. Although the person making
the representation may have no knowledge of its falsehood, the
representation may still have been fraudulently made." And again
— "I apprehend it to be the rule of law," says Lord Cairns,3 "that
if persons take upon themselves to make assertions as to which they
are ignorant, whether they are true or untrue, they must, in a civil
point of view, be held as responsible as if they had asserted that
which they knew to be untrue." In the case here put, an element
or admixture of moral fraud is quite apparent.

It seems established law that victuallers, brewers, and other com-
mon dealers in victuals, who, in the ordinary course of their trade,
sell provisions unfit to be the food of man, are civilly liable to the
vendee, without proof of fraud on their part, and in the absence of
any express warranty of the soundness of the thing sold ; though
such liability would not attach to a private person, not following
any of the above trades, who sells an unwholesome article for food.4
And a salesman offering for sale a carcase with a defect of which
he is not only ignorant but has not any means of knowledge (the
defect being latent), does not as a matter of law impliedly warrant
that the carcase is fit for human food, and is not bound to refund
the price should it turn out not to be so.5 It has been held, also,
that a person affirming himself to have authority to act as agent,
r*7991 w^° ^aS ** not' *may ^e liable, ex contractu, in respect of
damage thereby caused to another.6 But the case last cited
in no degree affects the discussion as to moral fraud.

1 See, per Cresswell, J., Jarrett v. Kennedy, 6 C. B. 322 (60 E. C. L. R.) j
per Lord Mansfield, C. J., Pawson v. Watson, Cowp. 785.

2 Evans v. Edmunds, 13 C. B. 786 (76 E. C. L. R.).

s Reese River Silver Mining Co. v. Smith, L. R. 4 H. L. 79-80.
4 Burnby v. Bollett, 16 M. & W. 644, and authorities there cited.
6 Emmerton v. Mathews, 7 H. & N. 586 ; cited, judgm., Jones v. Just, L. R.
3 Q. B. 202. See 23 & 24 Vict. c. 84.
6 Collen v. Wright, 7 E. & B. 301 (90 E. C. L. R.) ; s. c, 8 E. & B. 647 (92

TIIE LAW OF CONTRACTS. 799

The remarks immediately preceding may suffice to indicate some
of the more important qualifications of the rule Caveat emptor, as
applied to the quality and description of goods sold. It is now pro-
posed to consider briefly how far this maxim holds with reference
to the title of the vendor to goods which form the subject-matter of
a sale or contract. According to the civil law, it is clear that a
warranty of title was implied on every sale of a chattel;1 and this
doctrine of the civil law seems to have been partially adopted by
the American courts of judicature.2 It is, however, now estab-
lished that there is " by the law of England, no warranty of title
in the actual contract of sale, any more than there is of quality.
The rule of Caveat emptor applies to both ; but if the vendor knew
that he had no title, and concealed that fact, he was always held
responsible to the purchaser as for a fraud, in the same way that he
is if he knew of the defective quality."3 But although such is the
general rule of *our law, the circumstances attending the r*eo01
sale of a chattel may necessarily import a warranty of
title. Thus, if articles are bought in a shop professedly carried on
for the sale of goods, the shop-keeper would, doubtless, be consid-
ered as warranting " that those who purchase will have a good title
to keep the goods purchased. In such a case the vendor sells ' as
his own,' and that is what is equivalent as a warranty of title."4

As between vendor and purchaser, indeed, the result of the older
authorities seems to be, that, where a person sells goods to which
in fact he has no title, he will not be responsible to the purchaser
if the latter be subsequently disturbed in his possession by the true

E. C. L. R.) ; Spedding v. Nevell, L. R. 4 C. P. 212 ; Simons v. Patchett, 7 E.
& B. 568 (90 E. C. L. II.) ; Randell v. Trimen, 18 C. B. 786 (86 E. C. L. R.).
See Wilson v. Miers, 10 C. B. N. S. 348 (100 E. C. L. R.).

1 D. 21. 2. 1. Voet ad Pand., 6th ed., vol. i. p. 922. "By the civil law
vendors were bound to warrant both the title and estate against all defects,
whether they were or were not cognisant of them." 1 Sugd. V. & P., 11th
ed., p. 2 ; this doctrine was however qualified as there stated.

2 Kent Com., 7th ed., vol. 2, pp. 608-9. See Defreeze v. Trumper, 1 Johns.
(U. S.) 11. 274; Rew v. Barber, 3 Cowen (U. S.) R. 272.

3 Judgm., Morley v. Attenborough, 3 Exch. 510; cited per Pollock, C. B.,
Bandy v. Cartwright, 8 Exch. 916 ; and commented on per Lord Campbell, C.
J., Sims v. Marryatt, 17 Q. B. 290-1 (79 E. C. L. R.); per Bovill. C. J.,
Bagueley v. Hawley, L. R. 2 C. P. 625, 628 ; Chapman v. Speller, 14 Q. B.
621 (68 E. C. L. R.) ; per Martin, B., Aiken r. Short, 1 II. & N. 213.

4 Judgm., 3 Exch. 513; Eichholz v. Bannister, 17 C. B. N. S. 708 (112 E.
C. L. R.).

800 broom's legal maxims.

owner, unless there be either a warranty or a fraudulent misrepre-
sentation as to the property in the goods by the vendor.1 This doc-
trine has, however, been much restricted in its practical operation
by holding that a simple assertion of title is equivalent to a war-
ranty,2 and generally that any representation may be tantamount
thereto, if the party making it appear from the circumstances
r*8011 un(^er wnicn ^ was made *to have had an intention to
warrant, or to have meant that the representation should
be understood as a warranty.3

Upon the whole, then, Ave may safely conclude, that with regard
to the sale of ascertained chattels, ''there is not any implied war-
ranty of either title or quality,4 unless there are some circumstances
beyond the mere fact of a sale, from which it may be implied."5

1 See Peto v. Blades, 5 Taunt. 657 (1 E. C. L. R.); Jones v. Bowden, 4
Taunt. 847 ; Sprigwell v. Allen, Aleyn R. 91 ; and Paget v. Wilkinson, cited
2 East 448, n. (a). In Early v. Garrett, 9 B. & C. .932, Littledale, J.,
observes, " It has been held, that where a man sells a horse as his own
(Sprigwell v. Allen, supra), when in truth it is the horse of another, the
purchaser cannot maintain an action against the seller, unless he can show
that the seller knew it to be the horse of the other at the time of the sale ;
the scienter or fraud, being the gist of the action, where there is no warranty ;
for there the party takes upon himself the knowledge of the title to the horse,
and of his qualities." See Robinson v. Anderton, Peake N. P. C. 94 ; Street
v. Blay, 2 B. & Ad. 456 ; cited Dawson v. Collis, 10 0. B. 527, 532 (70 E. C.
L. R.) ; and in Kennedy v. Panama, &c, Mail Co., L. R. 2 Q. B. 587.

2 See Collen v. Wright, 7 E. & B. 301 (90 E. C. L. R.) ; s. c, 8 Id. 647 (92
E. C. L. R.), and cases cited ante, p. 799 n. 6, which proceeded on a similar
principle.

3 Crosse v. Gardner, Carth. 90 ; Medina v. Stoughton, 1 Salk. 210 ; cited,
per Patteson, J., 17 Q. B. 293 (79 E. C. L. R.). See Bartholomew v. Bush-
nell, 20 Conn. (U. S.) R. 271 ; Furnis v. Leicester, Cro. Jac. 474; judgm.,
Adamson v. Jarvis, 4 Bing. 73 (13 E. C. L. R.). See, per Buller, J., 3 T. R.
57, 58 ; Sanders v. Powell, 1 Lev. 129. As to an express warranty, see per
Lord Ellenborough, C. J., Williamson v. Allison, 2 East 451, which was an
action on the case for breach of warranty of goods ; Gresham, v. Postan, 2 C.
P. 540 (12 E. C. L. R.) ; Denison v. Ralphson, 1 Ventr. 365.

4 In support of this proposition as regards quality, see the cases ante, pp.
779 et seq. In Hill v. Balls, 2 H. & N. 304, Martin, B., remarks, " In my
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."

5 Judgm., Hall v. Conder, 2 C. B. N. S. 40 (89 E. C. L. R ) ; recognising
Morley v. Attenborough, 3 Exch. 500.

THE LAW OF CONTRACTS. 801

With respect, also, "to executory contracts of purchase and sale,
where the subject is unascertained, and is afterwards to be conveyed,
it would probably be implied that both parties meant that a good
title to that subject should be transferred, in the same manner as it
would be implied, under similar circumstances, that a merchantable
article was to be supplied. Unless goods, which the party could
enjoy as his own, and make full use of, were delivered, the contract
would not be performed. The purchaser could not be bound to
accept if he discovered the defect of title before delivery; and if he
did, and the goods were recovered from him, he would not be bound
to pay, or, *having paid, he would be entitled to recover r*Qooi
back the price as on a consideration which had failed."1

We may add to the above brief resume* of the law in regard to
the application of the maxim Caveat emptor on a sale of goods,
that it has been laid down as a general proposition, that, " if goods
be sold by a person who is not the owner, and the owner be found
out and be paid for those goods, the person who sold them under
pretended authority has no right to call upon the defendant to
pay him also."2 In an action, however, by an auctioneer for the
price of a horse, sold by him in that capacity and delivered to the
purchaser, it was held to be no answer to plead that the horse was
sold by the plaintiff, as an auctioneer, agent, and trustee for A.
and that after the sale, and before suit brought, defendant paid to

A. the purchase money.3

We have already had to observe, that, as a general rule, no man
can acquire a title to chattels from a person who has himself no
title to them except only by a bond fide sale in market overt.4

1 Judgm., 3 Exch. 509-10 ; per Lord Campbell, C. J., Sims v. Marryatt, 17
Q. B. 291 (79E.C. L. R.).

As to implied warranty of title to a thing pledged, see Cheeseman v. Exall,
6 Exch. 341.

On a contract for the sale of goods in the possession of a third person, the
vendor impliedly undertakes that they shall be delivered, on application,
within a reasonable time : Buddell v. Green, 27 L. J. Ex. 33.

2 Judgm., Allen v. Hopkins. 13 M. & W. 102; citing Dickinson v. Naul, 4

B. & Ad. 638 (24 E. C. L. R.). See Walker v. Mellor, 11 Q. B. 478 (63 E. C.
L. R.).

3 Robinson v. Rutter, 4 E. & B. 954 (82 E. C. L. R.).

* Peer v. Humphrey, 2 A. & E. 495 (29 E. C. L. R.) ; per Abbott, C. J.,
Dyer v. Pearson, 3 B. & C. 42 (10 E. C. L. R.);post p. 804.

40

802 broom's legal maxims.

The second vendee of a chattel cannot, in general, stand in a
better situation than his vendor.1 For instance, if a master intrusts
his servant with the care of plate or other valuables, and the servant
r*8031 *sells them, still, unless they are sold in market overt, the

master may recover them from the purchaser.2 And we
find it laid down that "the owner of property wrongfully taken
has a right to follow it, and, subject to a change by sale in market
overt, treat it as his own, and adopt any act done to it."3 It has
been said, indeed, that if the real cftvner of goods suffer another to
have possession of his property, or of those documents which are
the indicia of property, and thus enable him to hold himself out to
the world as having not the possession only but the property, then,
perhaps, a sale by such a person would bind the true owner.4
Though it seems that the proposition here stated ought to be
limited to cases where the person who had possession of the goods
was one who, from the nature of his employment, might be taken
primd facie to have the right to sell.5 And where a transfer of
goods was obtained under a delivery order without authority and
by false pretences, it was held that mere possession of the goods,
with no further indicia of title than the delivery order, would not
suffice to entitle a bond fide pawnee of the person fraudulently
obtaining possession of the goods from the true owner, to resist the
claim of the latter in an action of trover.6
r*804"l Moreover, where parties contract with a known agent *or

factor intrusted with goods for their purchase, even with
notice of being such agent, and pay for the same in pursuance of

1 Per Littledale, J., Dixon v. Yates, 5 B. & Ad. 339 (27 E. C. L. R.) ; ante
p. 470 et sea.

2 Per Abbott, C. J., Baring v. Corrie, 2 B. & Aid. 143 ; per Holroyd, J., Id.
149; Cro. Jac. 197.

3 Per Pollock, C. B., Neate v. Harding, 5 Exch. 350 ; citing Taylor v,
Plumer, 3 M. & S. 562 (30 E. C. L. R.).

* Per Abbott, C. J., 3 B. & C. 42 (10 E. C. L. R.) ; per Bayley, J., 6 M. &
S. 23, 24 ; per Best, C. J., 3 Bing. 145 (11 E. C. L. R.). See also Gordon v.
Ellis, 8 Scott N. R. 290.

6 Per Martin, B., Higgins v. Burton, 26 L. J. Ex. 343, 344 ; citing Chitt.
Contr. 6th ed., 344.

6 Kingsford v. Merry, 1 H. & N. 503 ; s. c, 11 Exch. 577, as to which case
see per Bramwell, B., Higgons v. Burton, 26 L. J. Ex. 334; per Willes, J.?
Fuentes v. Montis, L. R. 3 C. P. 282, 283.

THE LAW OF CONTRACTS. 804

the contract, it is enacted that such contract and payment shall he
binding upon and good against the real owner, if made in the
ordinary course of business, and without notice that the agent is
not authorized to sell;1 and the like protection has been extended
to bond fide advances upon goods and merchandise in the hands of
an agent when made under similar circumstances.2 It has been
held, that, in order to bring a case within the protection of the
second section of the stat. 6 Geo. 4, c. 94, there must be not only
a possession by the factor of the document upon which the advance
is made, but an actual intrusting of him with such document by
the owner of the goods, or a possession under such circumstances
as that an actual intrusting may be inferred therefrom.3

A sale of goods, even by a party who has himself only the
possession, and not the property, as a thief or a finder, will be
valid against the rightful owner, provided it be made in market
overt during the usual market hours, unless such goods were the
property of the king,4 or unless the buyer knew that the property
was not in the seller, or there was any other fraud in the transac-
tion.5

*Market overt, we may observe, is defined to be a fair r*onc-i
or market held at stated intervals in particular places, by
virtue of a charter or prescription ;6 it has been characterized as
"an open, public, and legally constituted market."7 In the city of
London, however, the custom is, that every shop is, except on
Sunday, market overt in regard to the goods usually and publicly
sold therein;8 and a sale within the city of London, in an open

1 6 Geo. 4, c. 94, ss. 2, 4.

2 5 & 6 Vict. c. 39, ss. 1, 3. See Baines v. Swainson, 4 B. & S. 270 (11G
E. C. L. R.) •, Fuentes v. Montis, L. R. 4 C. P. 93.

3 Hatfield v. Phillips, 14 M. & W. 665 ; s. c, 12 CI. & Fin. 343.
* Chitt. Pre. Cr. 195, 285. The doctrine of our law as to the effect of a

sale in market overt, is stated per Cockburn, C. J., Crane v. London Dock
Co., 5 B. & S. 313, 318 (117 E. C. L. R.), where a sale by sample was held
not entitled to the privileges of a sale in market overt.

6 2 Com. by Broom & Hadley 172 ; 2 Inst. 713 ; Hilton v. Swan, 5 Bing. N.
C. 413 [35 E. C. L. R.).

6 Jacob, Law Diet., tit. "Market;" 2 Inst. 713. Case of Market Overt, 5
Rep. 84.

' Per Jervis, C. J., 18 C, B. 601 (86 E. C. L. R.).

8 Jacob, Law Diet., tit. " Market;" Harris v. Shaw, Cas. temp. Hardw. 349;
and authorities cited supra.

805 broom's legal maxims.

shop, of goods usually dealt in there, is a sale in market overt,
though 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.1 By stat. 1 Jac. 1, c. 21, it is enacted,
that the sale of any goods wrongfully taken to any pawnbroker in
London, or within two miles thereof, shall not alter the property;
for this, being usually a clandestine trade, is therefore made an ex-
ception to the general rule.2

With respect to stolen goods, the stat. 24 & 25 Vict. c. 96, s.
r*80fil 100>3 enacts, that, if any person, guilty of any such *felony
or misdemeanor as therein mentioned, in stealing, taking,
obtaining, extorting, embezzling, or converting or disposing of, or
in knowingly receiving any chattel, money, valuable security, or
other property whatsoever, shall be indicted by or on behalf of the
owner, his executor, or administrator, and convicted, in such case,
the property shall be restored to the owner or his. representative,
and the Court shall have power to award writs of restitution, or to
order restitution in a summary manner.4 But this statute would
not extend to charge a person who purchased the goods in market
overt after the felony, and had disposed of them again before the
conviction.5 Where, however, a purchase of stolen property was

1 Lyons v. De Pass, 11 A. & E. 326 (39 E. C. L. R.). But a sale by public
auction at a horse repository out of the city of London is not a sale in market
overt : Lee v. Bayes, 18 C. B. 599 (86 E. C. L. R.).

2 See also stat. 39 & 40 Geo. 3, c. 99, ss. 12, 13. A metropolitan police
magistrate may order goods unlawfully pawned to be delivered up to their
owner ; 2 & 3 Vict. c. 71, s. 28.

3 This section likewise contains a proviso that restitution shall not be
awarded in the case of any valuable security which shall have been bond fide
paid or discharged by the party liable to the payment thereof, or in that of
a negotiable instrument taken by transfer or delivery for a just and valuable
consideration, without notice or cause to suspect that the same had been
stolen.

The above section does not apply to the case where a trustee banker, or
agent intrusted with the possession of goods, or documents of title to goods,
is prosecuted for any misdemeanor under the Act.

* The order of restitution under the corresponding enactment previously in
force (7 & 8 Geo. 4, c. 29, s. 57) was held to be " cumulative to the ordinary
remedy by action," and " not a condition precedent to such remedy:" Scat-
tergood v. Sylvester, 15 Q. B. 506, 511 (69 E. C. L. R.). See also 30 & 31
Vict. c. 35, s. 9.

6 Horwood v. Smith, 2 T. R. 750.

THE LAW OF CONTRACTS. 806

made bond fide, but not in market overt, and the plaintiff gave
notice to the defendant, who subsequently sold the goods in market
overt, after which the plaintiff prosecuted the felon to conviction,
the plaintiff was held entitled to recover from the defendant the
value of the property in trover.1 It is, however, now well estab-
lished that the obligation which the law imposes on a plaintiff to
prosecute the party who has stolen his goods before proceeding for
their recovery, does not apply where the action is against a third
party, innocent of the felony.2

*One rather peculiar case may here properly be men-
tioned, which is not only illustrative of the general legal »- J
doctrines regulating the rights of purchasers, but likewise of another
principle,3 which we have already considered in connection with
criminal law ; viz., where a man buys a chattel which, unknown to
himself and to the vendor, contains valuable property. In a modern
case4 on this subject, a person purchased, at a public auction, a
bureau, in a secret drawer of which he afterwards discovered a
purse containing money, which he appropriated to his own use. It
appeared that, at the time of the sale, no person knew that the
bureau contained anything whatever. The Court held, that, al-
though there was a delivery of the bureau, and a lawful property
in it thereby vested in the purchaser, yet that there was no delivery
so as to give him a lawful possession of tho purse and money, for
the vendor had no intention to deliver it, nor the vendee to receive
it ; both were ignorant of its existence ; and when the purchaser
discovered that there was a secret drawer containing the purse and
money, it was a simple case of finding,5 and then the law applicable
to all cases of finding would apply to this. It was further observed,

1 Peer v. Humphrey, 2 A. & E. 495 (29 E. C. L. R.). See also Parker v.
Patrick, 5 T. R. 175, which was decided under stat. 21 Hen. 8, c. 11, repealed
by 7 & 8 Geo. 4, c. 27, s. 1. As to the statutes respecting stolen horses (2 P.
& M. c. 7, and 31 Eliz. c. 12), see 2 Bla. Com., 21st ed., 450; Oliphant's Law
of Horses, 2d ed., p. 45.

2 Lee v. Bayes, 18 C. B. 599, 602 (86 E. C. L. R.) ; following White v. Spet-
tigue, 13 M. & W. 603, and overruling a dictum of Littledale, J., in Peer v.
Humphrey, supra.

3 Actus nonfacit reum nisi mens sit rea — ante, p. 306.

4 Merry v. Green, 7 M. & W. 623.

6 See Armory v. Delamirie, 1 Stra. 504 ; Bridges v. Hawkesworth, 21 L. J.
Q. B. 75 (which is important with reference to the above subject) ; Buckley
v. Gross, 32 L. J. Q. B. 129.

807" broom's legal maxims.

that the old rule,1 that "if one lose his goods, and another find
them, though he convert them, animo furandi, to his own use, it is
no larceny," has undergone, in more recent times, some limitations.2

[~*8081 ^ne *s' ^at' *^ ^e ^n(^er knows'who the owner of the lost
chattel is, or if, from any mark upon it, or the circum-
stances under which it is found, the owner could be reasonably as-
certained, then the taking of the chattel, with a guilty intent, and
the subsequent fraudulent conversion to the taker's own use, may
constitute a larceny. To this class of decisions the case under con-
sideration was held to belong, unless the plaintiff had reason to
believe that he bought the contents of the. bureau, if any, and con-
sequently had a colorable right to the property in question.

Lastly, we may observe, that negotiable instruments form the
most important exception to the rule, that a valid sale cannot be
made except in market overt of property to which the vendor has
no right. In the leading case on this subject, it was decided, that
property in a bank-note passes, like that in cash, by delivery, and
that a party taking it bond fide,3 and for value, is entitled to retain
it as against a former owner from whom it has been stolen.4 It is,
however, a general rule, that no title can be obtained through a
forgery, and hence a party from whom a promissory note was
stolen, and whose endorsement on it was subsequently forged, was
held entitled to recover the amount of the note from an innocent
r*80Q1 holder for value.5 And if a person obtains in good faith
^change for a check which turns out to be worthless, the
loss must fall on him.6 It should further be observed, that every

1 3 Inst. 108.

2 See this rule with its qualifications considered at length : Broom's Com.,
4th ed., 955 et seq.

3 See Hilton v. Swan, 5 Bing. N. C. 413 (35 E. C. L. R.), and the next note.

4 Miller v. Race, 1 Burr. 452. The reader is referred for full information
on this subject, and also on that of bona fides in the holder, to the Note
appended to the above case, Smith L. C, 6th ed., vol. 1, p. 477; judgm.,
Guardians of Lichfield Union v. Greene, 1 H. & N. 884, 889; ante, p. 470.

6 Johnson v. Windle, 3 Bing. N. C. 225, 229 (32 E. C. L. R.) ; Gurney v.
Womersley, 4 E. & B. 133 (82 E. C. L. R.) ; Robarts v. Tucker, 16 Q. B. 560
(71 E. C. L. R.), (distinguished in Woods v. Thiedemann, 1 H. & C. 478, 491,
495)) ; Simmons v. Taylor, 2 C. B. N. S. 528 (89 E. C. L. R.).

6 Per Lord Campbell, C. J., Timmins v. Gibbins, 18 Q. B. 726 (83 E. C. L.
R.) ; Woodland v. Fear, 7 E. & B. 519, 521 (90 E. C. L. R.).

Where a banker pays a forged check or letter of credit, the banker must,

THE LAW OF CONTRACTS. 809

negotiable instrument, being in its nature precisely analogous to a
bank-note payable to bearer, is subject to the same rule of law ; —
whoever is the holder of such an instrument has power to give title
to any person honestly acquiring it.1

In the preceding remarks upon the maxim Caveat emptor, we
have confined our attention to those classes of cases to which alone
it appears to be strictly applicable, and in connection with which
reference to it is, in practice, most frequently made. This maxim
may, indeed, be said to have some application under circumstances
altogether dissimilar from those presenting themselves in the vari-
ous decisions above alluded to ; where, for instance, a question arises
as to what amounts to an acceptance of goods ; or as to the per-
formance of conditions precedent to the vesting of the property, or
to the right of action ; or, where some specified act has to be done
by the vendor, in order to perfect the transfer of the things 3old ;
or wherever the right and title to property are disputed as between
the original owner and the assignee or bailee of some subsequent
holder ; the principle set forth by the maxim Caveat emptor may,
perhaps, be thought in some measure applicable. A consideration
of the topics, just specified, however, although necessary in a trea-
tise upon contracts generally, would evidently have been out of
place in the present volume, and irrelevant to its immediate
*design. We have not, therefore, extended our inquiries r*o-in-i
beyond the subject of warranty on the sale or demise of
property, and have examined those decisions only which seemed
calculated to throw light upon the question, whether or not the
vendee has a remedy against the vendor for a defect either in the
title to or quality of the subject-matter of the sale.

in general, bear the loss : British Linen Co. v. Caledonian Insur. Co., 4 Macq.
Sc. App. Cas. 107 ; Young v. Grote, 4 Bing. 253 (13 E. C. L. R.).
1 Per Abbott, C. J., Gorgier v. Mieville, 3 B. & C. 47 (10 E. C. L. R.).

810 broom's legal maxims.

quicquid solvitur, solvitur secundum modum solventis —
quicquid recipitur, recipitur secundum modum recipi-

ENTIS.

(Halk. M., p. 149.)

Money paid is to be applied according to the intention of the party paying it;
and money received, according to that of the recipient.1

" According to the law of England, the debtor may, in the first
instance, appropriate the payment — solvitur in modum solventis ;
if he omit to do so, the creditor may make the appropriation2 —
recipitur in modum recipientis ; but if neither make any appropri-
ation, the law appropriates the payment to the earlier debt;"3
"where a creditor receives without objection, what is offered by
PHUT *^*s debtor, solvitur in modum solventis, and it must be im-
plied that the debtor paid it in satisfaction ;"4 where " the
party to whom the money is offered does not agree to apply it ac-
cording to the expressed will of the party offering it, he must
refuse and stand upon the rights which the law gives him.5 And
again — " Wherever there is an intention expressed by the payer
that the money is paid upon a particular account, and the payee
receives it under a different intention, it is the duty of the latter to
give the former an opportunity to retract." Such "was the rule

1 For more detailed information than can here be offered in regard to this
maxim, the reader is referred to a learned article by Mr. N. Lindley, in the
Law Mag. for Aug. 1855, p. 21.

2 "Where a claim consists of several items, the party making the tender
has a right of appropriation ; but if he omits to make any appropriation, the
right to appropriate is transferred to the other party ;" per Wilde, C. J., Har-
dingham v. Allen, 5 C. B. 797 (57 E. C. L. R.) ; and in Wood v. The Copper
Miners' Co., 7 Id. 935 (62 E. C. L. R.).

3 Per Tindal, C. J., Mills v. Fowkes, 5 Bing. N. C. 461 (35 E. C. L. R.) ;
per Bayley, J., 2 B. & C. 72 (9 E. C. L. R.) ; per Sir L. Shadwell, V.-C. E.,
Greenwood v. Taylor, 14 Sim. 522; Toulmin v. Copland, 2 CI. & Fin. 681.
See James v. Child, 2 Cr. & J. 678 ; Newmarch v. Clay, 14 East 239 ; Id.
243 (c).

4 Per Tindal, C. J., Webb v. Weatherby, 1 Bing. N. C. 505 (27 E. C. L. R.) ;
Croft v. Lumley, 6 II. L. Cas. .672, 694, 697, 714, 722, where the mode of
applying the maxim supra was much discussed.

6 Judgm., Croft v. Lumley, 5 E. & B. 680 (85 E. C. L. R.) ; s. c, 6 II. L.
Cas. 672, 706. As to evidence of assent to an appropriation, see Beale v.
Caddick, 2 II. & N. 326.

THE LAW OF CONTRACTS. 811

of the civil law — Bum in re agendd hoe fiat : ut vel creditori libe-
rum sit non accipere vel debitori non dare, si alio nomine exsolutum
quis eorum velit ; eosterum postea non permittitur. What is intended
must be said at the time."1

Thus succinctly, in the above proposition, has the law relative to
the principal maxim been explained, and, in accordance with this
explanation, it has been held, that, where the defendant, being in-
debted to the plaintiff for goods supplied to his wife dum sola, and
to himself after the marriage, made a payment without any specific
appropriation, the plaintiff might apply the money in discharge of
the debt contracted by the wife dum sola;2 that where part of a
debt was barred by the Statute of Limitations, a payment of money
made generally might be applied in liquidation of that part;3
*and that a creditor receiving money without any specific r*Q-io-i
appropriation by the debtor, shall be permitted in a court
of law to apply it to the discharge of a prior and purely equitable
debt.4 Moreover, it has been held that the creditor is not bound to
state at the time when a payment is made, to what debt he will
apply it, but that he may make such application at any period
before the matter comes under the consideration of a jury.5

A case further illustrating the practical operation of the doctrine
respecting the appropriation of payments may here be presented
from a modern judgment;6 — Suppose a contract, under seal,
whereby a builder contracts to build a house, and the owner of the
land covenants to pay 1000Z. as the price of the work, and also to

1 Per Byles, J., Kitchin v. Hawkins, L. R. 2 C. P. 31.
1 Goddard v. Cox, 2 Stra. 1194.

3 Mills v. Fowkes, 5 Bing. N. C. 455 (35 E. C. L. R.) ; Williams v. Griffit

5 M. & W. 300. See Baildon v. Walton, 1 Exch. 617. In Walker v. Butler,

6 E. & B. 510 (88 E. C. L. R.), Erie, J., observes, "I do not by any means
assent to the doctrine that where there are two debts existing, and a payment
is made not specifically appropriated to either, there is necessarily no suffi-
cient evidence of a payment on account of either of those debts to take it out
of the Statute of Limitations. It must depend on the special circumstances
of each case. In general there would be evidence to go to the jury of a pay-
ment on account of both debts."

4 Bosanquet v. Wray, 6 Taunt. 597 (1 E. Q. L. R.). In Goddard v. Hodges,
1 Cr. & M. 33, it was held that a general payment must be applied to a prior
legal, and not to a subsequent equitable, demand.

6 Philpott v. Jones, 2 A. & E. 41 (29 E. C. L. R.).
6 Judgm., 3 Exch. 306, 307.

812 broom's legal maxims.

pay for any extra work authorized in writing by the architect.
During the progress of the works the architect authorizes extra
work to the amount of 500?., which the builder completes in a pro-
per manner and to the satisfaction of the owner of the land, but
without any authority in writing. Suppose, further, that the owner
of the land pays the builder from time to time 1200Z. on account
generally, and that more than six years after the whole had been
I~*8131 completed> tne builder brings an action of ""covenant against
the owner for non-payment of the balance, and the owner
pleads payment. Under such circumstances, the owner of the land
might be taken to have entered into a new parol contract to pay for
the extras, independently of his liability under the deed. There
would, in the case here put, be two debts due from the owner of
the land, one a debt arising by deed, the other a debt on simple
contract, and the doctrine as to the application of indefinite pay-
ments would apply. The creditor being entitled to say to his
debtor, " I have applied 500?., part of the 1200?. ; in discharge of
the simple contract debt, which would otherwise be barred by the
Statute of Limitations ; what I seek to recover is the balance of the
original contract sum of 1000?." This doctrine, however, never
has been held "to authorize a creditor receiving money on account,
to apply it towards the satisfaction of what does not, nor ever did,
constitute any legal or equitable demand against the party making
payments."

But although it is true that, where there are distinct accounts and
a general payment, and no appropriation made at the time of such
payment by the debtor, the creditor may apply it to which account
he pleases ; yet, where the accounts are treated by the parties as
one entire account, this rule does not apply.1 For instance, in the
case of a banking account, where all the sums paid in form one
blended fund, the parts of which have no longer any distinct ex-
istence, there is no room for any other appropriation than that
which arises from the order in which the receipts' and payments
r*814/l *a^e P^ace' *and are carried into the account. Presuma-
bly, it is the sum first paid in that is first drawn out. It
is the first item on the debit side of the account that is discharged
or reduced by the first item on the credit side. The appropriation

1 Per Bayley, J., Bodenham v. Purchas, 2 B. & Aid. 45. See Labouchere
v. Tupper, 11 Moo. P. C. C. 198.

THE LAW OF CONTRACT. 814

is made by the very act of setting the two items against each other.
Upon that principle all accounts current are settled, and particu-
larly cash accounts.1 In like manner, where one of several part-
ners dies, and the partnership is in debt, and the surviving partners
continue their dealings with a particular creditor, and the latter
joins the transactions of the old and the new firm in one entire ac-
count, then the payments made from time to time by the surviving
partners must be applied to the old debt. In that case it is to be
presumed that all the parties have consented that it should be con-
sidered as one entire account, and that the death of one of the
partners has produced no alteration whatever.2 It must be borne
in mind, notwithstanding the preceding remarks, that, although the
payment of money on account generally, without making a specific
appropriation of it, would, in many cases, go to discharge the first
part of an account, yet that rule *cannot be taken to be r*o-i r-i
conclusive — it is evidence of an appropriation only ; and
other evidence may be adduced, as of a particular mode of dealing,
or of an express stipulation between the parties, which may vary
the application of the rule.3

Where a person has two demands, one recognised by law, the
other arising on a matter forbidden by law, and an unappropriated
payment is made to him, the law will afterwards appropriate it to
the demand which it acknowledges, and not to the demand which it
prohibits.4

1 Per Sir Wm. Grant, M. R., Clayton's Case, 1 Mer. 608 ; cited per Erie,
C. J., 8 C. B. N. S. 786 (98 E. C. L. R.) ; Pennell v. Deffell, 4 De G., M. & G.
372; per Lord Lyndhurst, C, Pemberton v. Oakes, 4 Russ. 109; Bodenham
v. Purchas, 2 B. & Aid. 39; arg., Labouchere v. Tupper, 11 Moo. P. C. C.
212 ; judgm., Henniker v. Wigg, 4 Q. B. 794 (45 E. C. L. R.). As to Clay-
ton's Case, supra, see also the remarks in the Law Mag. (Aug. 1855) p. 36.

Ordinarily, " where two parties settle an account of moneys due to each
side, cross items allowed in such account may be treated as payments ;"
judgm., Roberts v. Shaw, 4 B. & S. 56 (116 E. C. L. R.).

2 Per Bayley, J.', Simpson v. Ingham, 2 B. & C. 72 (9 E. C. L. R.) ; Smith
v. Wigley, 3 Mo. & Sc. 174 (30 E. C. L. R.).

As to evidence of adoption of the liabilities of an old firm by the new
copartnership, see Rolfe v. Flower, L. R. 1 P. C. 27.

3 Judgm., Wilson v. Hirst, 4 B. & Ad. 767 (24 E. C. L. R.) ; Henniker v.
Wigg, 4 Q. B. 792 (45 E. C. L. R.). See Ex parte Johnson, 3 De G., M. &
G. 218.

4 Judgm., Wright v. Laing, 3 B & C. 171 (10 E. C. L. R.). Payment into

815 broom's legal maxims.

Again, where a person bought* two parcels of goods of a broker,
the property of different persons, and paid generally to the broker
a sum larger than the amount of either demand, but less than the
two together, and afterwards the broker stopped payment ; it was
held that such payment ought to be equitably apportioned as be-
tween the several owners of the goods sold, who were only respect-
ively entitled to recover the difference from the buyer.1

The following remarks made in a modern case, will serve to show
some additional important limitations of the maxim under consider-
ation : — " If, in the course of dealing between A. and B., various
debts are from time to time incurred, and payments made by B.
to A., and no acknowledgment is made by A., nor inquiry by B.
r «i *how the payments are appropriated, the law will presume
L -• that the priority of debt will draw after it priority of pay-
ment and satisfaction, on the ground that the oldest debt is entitled
to be first satisfied. That doctrine is recognised in Devaynes v.
Noble,2 but the principle was never applied to cases where the obli-
gations were alio jure, nor to other cases, as, for instance, where
in dealings between B. and C, the latter directs B. to receive
moneys due to him, the law will not presume an appropriation of
these moneys to the payment of a debt due to A. and B. in the
absence of any specific directions."3

Where a bill of exchange or promissory note has been given by
a debtor to his creditor, it is not unfrequently a matter of some
difficulty to determine whether the giving of such instrument should
be considered as payment, and as operating to extinguish the origi-
nal debt ; or whether it should be regarded merely as security for
its payment, and as postponing the period of payment until the bill
or note becomes due. Upon this subject, which is one of great
practical importance, the correct rule is thus laid down by Lord
Langdale, M. R. : — "The debt," says his Lordship, "may be con-
court is an admission of, and will be applied to, a legal demand only ; Rib-
bans v. Crickett, 1 B. & P. 264. See Philpott v. Jones, 2 A. & E. 41 (29 E.
C. L. R.). Where there has been a running cash and bill account between
a bankrupt and a banking company, " the court will appropriate tke early
payments to the early items of the account, and to the legal and not the
illegal part of the demand :" Ex parte Randleson, 2 D. & C. 534, 540.

1 Favenc v. Bennett, 11 East 36.

2 1 Meriv. 608.

3 Per Lord Brougham, C, Nottidge v. Prichard, 2 CI. & Fin. 393.

THE LAW OF CONTRACTS. 816.

sidered as actually paid if the creditor, at the time of receiving the
note, has agreed to take it in payment of the debt, and to take upon
himself the risk of the note being paid ; or if, from the conduct of
the creditor, or the special circumstances of the case, such a pay-
ment is legally to be implied. But in the absence of any special
circumstances, throwing the risk of the note upon the creditor, his
receiving the note in lieu of present payment of the debt, is no
more *than giving extended credit, postponing the demand
for immediate payment, or giving time for payment on a L J
future day, in consideration of receiving this species of security.
Whilst the time runs, payment cannot legally be enforced, but the
debt continues till payment is actually made ; and if payment be
not made when the time has run out, payment of the debt may be
enforced as if the note had not been given. If payment be made
at or before the expiration of the extended time allowed, it is then
for the first time that the debt is paid."1

Qui per alium facit per seipsum facere videtur.

(Co. Litf. 258 a.)

He who does an act through the medium of another party is in law considered
as doing it himself.

The above maxim enunciates the general doctrine on which the
law relative to the rights and liabilities of principal and agent de-
pends. It can, however, in this volume be but briefly and cursorily
considered.

Where a contract is entered into with A., as agent for B., it is
deemed, in contemplation of law, to have been entered into with B.,
and the principal is, in most cases, the proper party to sue2 or be

1 Sayer v. "Wagstaff, 5 Beav. 415 ; recognised, In re Harries, 13 M. & W. 3 ;
per Lord Kenyon, C. J., Stedman v. Gooch, 1 Esp. 5; cited 6 Scott N. R.
945. See also as to what may amount to or constitute payment, Turney v.
Dodwell, 3 E. &, B. 136 (77 E. C. L. R.) ; Thomas v. Cross, 7 Exch. 728, 732;
Underwood v. Nicholls, 17 C. B. 239 (84 E. C. L. R.) ; Pollard v. Ogden, 2 E.
& B. 459 (75 E. C. L. R.) ; per Erie, C. J., Martin v. Reid, 11 C. B. N. S. 735
(103 E. C. L. R.) ; Wright v. Hickling, L. R. 2 C. P. 199.

2 To entitle a person to sue upon a contract, it must be shown that he him-
self made it, or that the contract was made on his behalf by an agent au-

818 broom's legal maxims.

[~*8181 suec^ f°r a breach of *such contract, — the agent being
viewed simply as the medium through which it was
effected :l Qui facit per alium facit per se.^ For instance, the
defendant was employed by its owner to sell a certain farm, and
entered into a written agreement to sell the farm to the plaintiff
for 2700/., without naming the seller. 100?. deposit in part of the
purchase-money was paid by the plaintiff to the defendant ; two
days afterwards the former signed a contract for sale by S. (the
owner), to himself, whereby he agreed to pay on its execution 100/.
as a deposit, for which S. undertook to pay interest till the com-
pletion of the purchase. For want of a title in S. the contract
was subsequently rescinded ; but the defendant, before he had
notice of the rescission, paid S. 50/., retaining the other 50/.,
though without the consent of S., under an agreement with S. to
give him (the defendant) one half of any sum he might get for the
farm over 2600/. The Court held, that the plaintiff could not re-
cover in an action against the defendant any part of the 100/. paid
as above stated.2

The following instances, which are of ordinary occurrence and
practical importance, may be mentioned as illustrative of the rule,
which, for certain purposes, identifies the agent with the principal: —
Payment to an authorized agent,3 as an auctioneer, in the regular
r*81Q1 *course of his employment,4 is payment to his principal.5
Thus : — M. employed R. & Co., bankers in Edinburgh, to

thorized to act for him at the time, or whose act has been subsequently rati-
fied and adopted' by him : Watson v. Swann, 11 C. B. N. S. 756 (103 E. C.
L. R.).

1 Thus, in Depperman v. Hubersty, 17 Q. B. 766 (79 E. C. L. II.), Coleridge,
J., observes : " Here an avowed agent of a principal sues another avowed
agent of the same principal ; and the action must fail for want of privity of
contract between the two parties to the suit." See Lee v. Everest, 2 H. & N.
285, 291 ; Cooms v. Bristol and Exeter R. C, 3 II. & N. 1.

J Hurley v. Baker, 16 M. & W. 26.

3 Bostock v. Hume, 8 Scott N. R. 590.

4 See Mews v. Carr, 1 II. & N. 484.

5 Sykes v. Giles, 5 M. & W. 645 ; approved in Williams v. Evans, L. R. 1
Q. B. 352 (which shows that an auctioneer has no authority to receive pay-
ment by a bill of exchange).

" The general rule of law is, that where a creditor's agent is bound to pay
the whole amount over to the principal, he must receive it in cash from the
debtor; and that a person who pays such agent, and who wishes to be safe,

THE LAW OF CONTRACTS. 819

obtain for him payment of a bill drawn on a person resident at Cal-
cutta. R. & Co. accepted the employment, and wrote, promising
to credit M. with the money when received. R. & Co. transmitted
the bill, in the usual course of business, to C. & Co., of London,
and by them it was forwarded to India, where it was duly paid.
R. & Co. wrote to M., announcing the fact of its payment, but
never actually credited him in their books with the amount; the
house in India having failed, it was held that R. & Co. were the
agents of M., to obtain payment of the bill ; that payment having
been actually made, they became ipso facto liable to him for the
amount received, and that he could not be called on to suffer any
loss occasioned by the conduct of the sub-agents, as between whom
and himself no privity existed. " To solve the question in this
case," said Lord Cottenham, "it is not necessary to go deeper than
to refer to the maxim, Qui facit per alium faeit per se. R. & Co.
agreed for consideration to apply for payment of the bill, they
necessarily employed agents for that purpose who received the
amount, their receipt was in *law a receipt by them, and r*oi)(\-\
subjected them to all the consequences. The appellant
with whom they so agreed cannot have anything to do with the
conduct of those whom they so employed, or with the state of the
account between different parties engaged in this agency."1

The above case shows that the receipt of money by an authorized
agent will charge the principal,2 and, in like manner, a tender
made to an authorized agent will in law be regarded as made to the
principal ; — thus, where the evidence showed that the plaintiff di-
rected his clerk not to receive certain money from his debtor if it
should be offered to him, that the money was offered to the clerk,
and that he, in pursuance of his master's orders, refused to receive
it ; upon the principle Qui facit per alium facit per se, the tender
to the servant was held to be a good tender to the master.3 Pay-
ment also by an agent as such is equivalent to payment by the

must see that the mode of payment does enable the agent to perform this his
duty." Per Bovill, C. J., Bridges v. Garrett, L. R. 4 C. P. 587-8, and cases
there cited.

See Catterall 0. Hindle, L. R. 2 C. P. 368 ; Stephens v. Badcock, 3 B. & Ad.
354 (23 E. C. L. R.) ; cited arg., Whyte v. Rose, 3 Q. B. 498 (43 E. C. L. R.) ;
Parrott v. Anderson, 7 Exch. 93.

1 Mackersy v. Ramsays, 9 CI. & Fin. 818, 850.

2 See also Thompson v. Bell, 10 Exch. 10.

* Moffat v. Parsons, 5 Taunt. 307 (1 E. C. L. R.).

820 broom's legal maxims.

principal. Where, for example, a covenant was "to pay or cause
to be paid," it was held, that the breach was sufficiently assigned
by stating that the defendant had not paid, without saying, " or
caused to be paid;" for, had the defendant caused to be paid, he
had paid, and, in such a case, the payment might be pleaded in dis-
charge.1 So payment to an agent, if made in the ordinary course
of business, will operate as payment to the principal.2 On the
same principle, the delivery of goods to a carrier's servant is a de-
r*8^11 ^veiT °f them to the carrier ;3 and the ^delivery of a check
to the agent of A. is a delivery to A.4 Railway com-
panies, moreover, are not to be placed in a different condition from
all other carriers. They will be bound in the course of their busi-
ness as carriers by the contract of the agent whom they put forward
as having the management of that branch of their business. So
that, where it appeared from the evidence, that certain goods were
undoubtedly received by a railway company, for transmission on
some contract or other, and that the only person spoken to respect-
ing such transmission was the party stationed to receive and weigh
the goods; it was held, that this party must have an implied
authority to contract for sending the goods, and that the company
were consequently bound by that contract.5 It has been held, that
the station-master of a railway company has not, though the general
manager of the company has,6 implied authority to bind the company
by a contract for surgical attendance on an injured passenger.7

1 Gyse v. Ellis, 1 Stra. 228.

2 See Williams v. Deacon, 4 Exch. 397 ; Kaye v. Brett, 5 Exch. 269; Par-
rott v. Anderson, 7 Exch. 93 ; Underwood v. Nicholls, 17 C. B. 239 (84 E. C.
L. R.).

3 Dawes v. Peck, 8 T. R. 330 ; Brown v. Hodgson, 2 Camp. 36 ; per Lord
Ellenborough, C. J., Griffin v. Langfield, 3 Camp. 254 ; Fragano v. Long, 4 B.
& C. 219 (10 E. C. L. R.) ; Great Western R. C. v. Goodman, 12 C. B. 313 (74
E. C. L. R.). Moreover, a delivery to the carrier is in law (except under
special circumstances) a delivery to the consignee : see the above cases ; Dun-
lop v. Lambert, 6 CI. & Fin. 600, and cases cited in 3 Com. by Broom & Had-
ley 161-3. But an acceptance by the carrier is not an acceptance by the
consignee : per Parke, B., Johnson v. Dodgson, 2 M. & W. 656.

* Samuel v. Green, 10 Q. B. 262 (59 E. C. L. R.)

6 Pickford v. Grand Junction R. C, 12 M. & W. 766; Heald v. Carey, 11
C. B. 977 (73 E. C. L. R.).

6 Walker v. Great Western R. C, L. R. 2 Ex. 228.

7 Cox v. Midland Counties R. C, 3 Exch. 268. See Poulton v. London and
South Western R. C, L. R. 2 Q. B. 534.

THE LAW OF CONTRACTS. 821

Where an agent for the sale of goods contracts in his own name,
and as a principal, the general rule is, that an action may be sup-
ported, either in the name of the party by whom the contract was
made, and privy to it, or *of the party on whose behalf and r*Qooi
for whose benefit it was made.1 Even where the agent is *"
a factor, receiving a del credere commission, the principal may, at
any period after the contract of sale has been concluded, demand
payment of the sum agreed on to himself, unless such payment
had previously been made to the factor, in due course, and
according to the terms of the contract.2 The following rules,
respecting the liability of parties on a contract for the purchase of
goods, are likewise illustrative of the doctrine under consideration,
and are here briefly stated on account of their general importance
and applicability: — 1st, an agent, contracting as principal, is
liable in that character; and, if the real principal be known to
the vendor at the time of the contract being entered into by the
agent, dealing in his own name, and credit be given to such agent,
the latter only can be sued on the contract.3 2dly, if the princi-
pal be unknown at the time of contracting, whether the agent
represent himself as such or not, the vendor may, within a reason-
able time after discovering the principal, debit either at his elec-
tion.4 *But, 3dly, if a person act as agent without authority, r* 090-1
he is personally and solely liable; and if he exceed his

1 Per Bayley, J., Sargent v. Morris, 3 B. & Aid. 280 (5 E. C. L. R.) ; Sims
v. Bond, 5 B. & Ad. 393 (27 E. C. L. R.) : Duke of Norfolk v. Worthy, 1 Camp.
337 ; Cothay v. Fennell, 10 B. & C. 672 (21 E. C. L. R.) ; Bastable v. Poole, 1
Cr., M. & R. 413 ; per Lord Abinger, C. B., 5 M. & W. 650; Garrett v. Hand-
ley, 4 B. & C. 656 (56 E. C. L. R.) ; distinguished in Agacio v. Forbes, 14
Moo. P. C. C. 160, 170, 171 ; see Ramazotti v. Bowring, 7 C. B. N. S. 851 (97
E. C. L. R.) ; Ferrand v. Bischoffsheim, 4 Id. 710 ; Higgins u Senior, 8 M. &
W. 844.

2 Hornby v. Lacy, 6 M. & S. 172; Morris v. Cleasby, 4 M. & S. 566, 574;
Sadler v. Leigh, 4 Camp. 195; Grove v. Dubois, 1 T. R. 112; Scrimshire v.
Alderton, 2 Stra. 1182.

3 Paterson v. Gandasequi, 15 East 62; Addison v. Gandasequi, 4 Taunt.
574 ; Franklin v. Lamond, 4 C. B. 637 (56 E. C. L. R.). See Smith v. Sleap,
12 M. & W. 585, 588.

* Thomson v. Davenport, 9 B. & C. 78 (17 E. C. L. R.) ; cited, per Martin,
B., Barber v. Pott, 4 H. & N. 767 ; Smethurst v. Mitchell, 1 E. & E. 622, 631
(102 E. C. L. R.) ; Heald v. Kenworthy, 10 Exch. 734 ; Risbourg v. Bruckner,
3 C. B. N. S. 812 (91 E. C. L. R.) ; per Park, J., Robinson v. Gleadow, 2

41

823 broom's legal maxims.

authority, the principal is not bound by acts done beyond the scope
of his legitimate authority.1 If A. employs B. to work for C,
without warrant from C, A. is liable to pay for the work done ;2
nor would it in this case make any difference, if B. believed A. to
be in truth the agent of C. ; for, in order to charge the last-men-
tioned party, the plaintiff must prove a contract with him, either
express or implied, and with him in the character of a principal,
directly, or through the intervention of an agent.3

The question, how far an agent is personally liable, who, having
in fact no authority, professes to bind his principal, has on various
occasions, been discussed. There is no doubt, it was observed in a
recent judgment,4 that, in the case of a fraudulent misrepresenta-
r*8941 tlon *°f n*s authority, with an intention to deceive, the
agent would be personally responsible;5 but, independently
of this, which is perfectly free from doubt, there seem to be still
two other classes of cases, in which an agent, who, without actual

Bing. N. C. 161, 162 (29 E. C. L. 11.) ; Paterson v. Gandasequi, 15 East 62;
Wilson v. Hart, 7 Taunt. 295 (2 E. C. L. R.) ; Higgins v. Senior, 8 M. & W.
384; Humfrey v. Dale, 7 E. & B. 266 (90 E. C. L. R.) ; s. c, E., B. & E. 1004
(96 E. C. L. R.).

1 Woodin v. Burford, 2 Cr. & M. 391 ; Wilson v. Barthrop, 2 M. & W. 863 ;
Fenn v. Harrison, 3 T. R. 757 ; Polhill v. Walter, 3 B. & Ad. 114 (23 E. C.
L. R.) ; per Lord Abinger, C. B., Acey v. Fernie, 7 M. & W. 154; Davidson
v. Stanley, 3 Scott N. R. 49; Harper v. Williams, 4 Q. B. 219 (45 E. C. L. R.).
See Downman v. Williams, 7 Q. B. 103 (53 E. C. L. R.), (where the question
was as to the construction of a written undertaking) ; Cooke v. Wilson, 1 C.
B. N. S. 153 (87 E. C. L. R.) ; Gillett v. Offor, 18 C. B. 905 (86 E. C. L. R) ;
Green v. Kopke, Id. 549 ; Parker v. Winlow, 7 E. & B. 942, 949 (90 E. C. L.
R.) ; Wake v. Harrop, 1 H. & C. 202 ; s. c, 6 II. & N. 768 ; Oglesby v. Ygle-
sias, E., B. & E. 930 (96 E. C. L. R.) ; Williamson v. Barton, 7 II. & N. 899.

2 Per Lord Holt, C. J., Ash ton v. Sherman, Holt R. 309 (3 E. C. L. R.) ;
cited 2 M. & W. 218.

3 Thomas v. Edwards, 2 M. & W. 215.

4 Smout v. Ilbery, 10 M. & W. 1, 9. In this case, which was an action of
debt, a man, who had been in the habit of dealing with the plaintiff for meat
supplied to his house, went abroad, leaving his wife and family resident in
this country, and died abroad : — Held, that the wife was not liable for goods
supplied to her after his death, but before information of his death had been
received.

6 ''x\ll persons directly concerned in the commission of a fraud are to be
treated as principals. No party can be permitted to excuse himself on the
ground that he acted as the agent or as the servant of another:" per Lord
Westbury, C, Cullen v. Thomson's Trustees, 4 Macq. Sc. App. Cas. 432-3.

THE LAW OF CONTRACTS. 824

authority, makes a contract in the name of his principal, is person-
ally liable, even where no proof of such fraudulent intention can
be given. First, where he has no authority, and knows it, but
nevertheless, makes the contract, as having such authority; in
which case, on the plainest principles of justice, he is liable ; for
he induces the other party to enter into the contract on what
amounts to a misrepresentation of a fact peculiarly within his-
own knowledge ; and it is but just, that he who does so should be
considered as holding himself out as one having competent author-
ity to contract, and as guaranteeing the consequences arising from
any want of such authority. There is also a second class in which
the Courts have held, that, where a party making the contract as
agent, bond fide believes that such authority is vested in him, but
has, in fact, no such authority, he is still personally liable. In
these cases the agent is not indeed actuated by any fraudulent
motives, nor has he made any statement which he knows to be un-
true ; but still, his liability depends on the same principles as
before. It is a wrong, differing only in degree, but not in its
essence, from the former case, to state as true, what the individual
making such statement does not know to be true, even though he
does not know it to be false, but believes, without *suffi- r*G>9fn
cient grounds, that the statement will ultimately turn out
to be correct,1 and, if that wrong produces injury to a third per-
son, who is wholly ignorant of the grounds on which such belief of
the supposed agent is founded, and who has relied on the correct-
ness of his assertion, it is equally just that he who makes such
assertion shall be personally liable for its consequences. The true
principle derivable from the cases is, that there must be some wrong
or omission of right on the part of the agent, in order to make him
personally liable on a contract made in the name of his principal ;
in all of them, it will be founo! that the agent has either been guilty
of some fraud, has made some statement which he knew to be false,
or has stated as true what he did not know to be true, omitting at
the same time to give such information to the other contracting
party as would enable him, equally with himself, to judge as to the
authority under which he proposed to act. Polhill v. Walter,2
which has been noticed in another page of this work, is an instance

1 As to this proposition, ante, p. 797.

825 broom's legal maxims.

of the first of the two classes of decisions just alluded to; and
cases, in which the agent never had any authority to contract at all,
hut believed that he had, as where he acted on a forged warrant of
attorney, which he thought to be genuine, and the like, are instances
of the second class.1 To the various states of facts just put, we
may add that if a person contracts as agent with another, he will
in law be held to impliedly undertake and promise that he is what
he represents himself to be, so that for any direct damage arising
to the other party from a breach of such promise, he will,
*without proof of any fraudulent representation, be re-
sponsible.2

In further illustration of the rule before us, reference may be
made to the contract of insurance, which has been said3 to be a
contract uberrima? fidei* the principles which govern it being those
of an enlightened and moral policy. The underwriter must be pre-
sumed to act upon the belief that the party procuring insurance is
not, at the time, in possession of any facts material to the risk
which he does not disclose, and that no known loss has occurred
which, by reasonable diligence, might have been communicated to
him. If a party, having secret information of a loss, procures
insurance without disclosing it, this is a manifest fraud which avoids
the policy. If, knowing that his agent is about to procure insu-
rance, he withholds the same information for the purpose of
misleading the underwriter, it is no less a fraud, for, under such
circumstances, the maxim applies, Qui facit per alium faeit per se.
His own knowledge in such a case infects the act of his agent in
the same manner and to the same extent that the knowledge of the
agent himself would do. And even if there be no intentional fraud,
still the underwriter has a right to a disclosure of all material facts
which it was in the power of the party to communicate by ordinary
means, and the omission is fatal to the insurance. The true principle

1 Judgm., 10 M. & W. 10.

2 Collen v. Wright (65 E. C. L. R.), 7 E. & B. 301 (90 E. C. L. R.) ; s. c, 8
Id. 647 (with which compare Randell v. Trimen, 18 C. B. 786 (86 E. C. L.
R.). Spedding v. Nevell, L. R. 4 C. P. 212; Simons v. Patchett, 7 E. & B.
568 (90 E. C. L. R.).

3 Per Story, J., delivering judgment in M'Lanahan v. The Universal Insu-
rance Co., 1 Peters (U. S.) R. 185 ; per Yates, J., Hodgson v. Richardson, 1
W. Bla. 465.

4 Ante, p. 792.

THE LAW OF CONTRACTS. 826

deducible from the authorities on this subject is, that where a party
orders insurance, and afterwards *receives intelligence ma- r*e.?7-i
terial to the risk, or has knowledge of a loss, he ought to
communicate it to the agent as soon as with due and reasonable
diligence it can be communicated, for the purpose of countermand-
ing the order, or laying the circumstances before the underwriter.
If he omits so to do, and by due and reasonable diligence the infor-
mation might have been communicated, so as to have countermanded
the insurance, the policy is void.

On the maxim, Qui facit per alium facit per se, depends also the
liability of a co-partnership on a contract entered into by an indi-
vidual member of the firm ; for he is considered as the accredited
agent of the rest, and will consequently bind the firm by his act or
assurance made with reference to business transacted by it,1 within
the scope of his authority ;2 and in the absence of collusion between
himself and the other contracting party.3

The decision in Marsh v. Keating,4 is important with reference
to the question of the responsibility incurred by one partner for
the act of his co-partner, by reason of the implied agency between
parties thus situated, and affords a direct and forcible illustration
of the maxim, Qui facit per alium facit 'per se: in the case referred
to the facts were, that F., a partner in a banking *firm,
caused stock belonging to a customer to be sold out under *- -•
a forged power of attorney ; the proceeds were paid to the account
of the bank at the house of the bank's agents, and were appro-
priated by F. to his own purposes. F. was afterwards executed for
other forgeries. It appeared from the special verdict, that F.'s
partners were ignorant of the fraud, but might, with common dili-
gence, have known it ; and it was held by the House of Lords, in

1 Per Abbott, C. J., Sandilands v. Marsh, 2 B. & Aid. 678 ; per Lord Wens-
leydale, Ernest v. Nicholas, 6 H. L. Cas. 417, 418 ; and in Cox v. Hickman, 8
H. L. Cas. 268, 304, 312 ; Waugh v. Carver, 2 II. Bla. 235 ; judgm., 1 My. &
K. 76 ; Bullen v. Sharp, L. R. 1 C. P. 86.

The stat. 28 & 29 Vict. c. 86, has materially limited partnership liability at
common law.

2 Forster v. Mackreth, L. R. 2 Ex. 163 ; Ellston v. Deacon, L. R. 2 C. P. 20.

3 Per Bayley, J., Vere v. Ashby, 10 B. & C. 296 (21 E. C. L. R.) ; Wintle
v. Crowther, 1 Cr. & J. 316 ; Bond v. Gibson, 1 Camp. 185 ; Lewis v. Reilly,
1 Q. B. 349 (41 E. C. L. R.).

* 2 CI. & F. 250.

828 broom's legal maxims.

conformity with the unanimous opinion of the Judges, that the cus-
tomer could maintain an action against the partners for money had
and received. The general proposition, it was observed, was not
disputed, that if the goods of A. are wrongfully taken and sold, the
owner may bring trover against the wrong-doer, or may elect to
consider him as his agent — may adopt the sale and maintain an
action for the price; and this general rule was held applicable to
fix the innocent partners with liability under the circumstances dis-
closed upon the special verdict. In another more recent case,1 the
plaintiifs in equity, who were the executors and trustees of a tes-
tator, in the year 1829 employed A. and B., a firm of solicitors, to
procure investments for the assets of their testator. A. wrote to
the plaintiffs, naming one S. as a proposed mortgagor for a sum of
4500/., on the security of freehold property, whereupon the plain-
tiffs forwarded to A. a check for 4500Z., to be so invested, and
this check was paid into the bank to the partnership account.
The necessary mortgage deeds were prepared, but S. afterwards
declined to complete the transaction. In April, 1830, A., how-
ever, wrote to the plaintiffs, giving a list of the securities upon
which he alleged that the ^testator's assets were invested,
and amongst others stated, " S.'s mortgage 4500Z., 3d
October, 1829." In 1834, A. and B. dissolved partnership, and
the plaintiffs continued to employ A. as their solicitor, who regu-
larly paid interest on the 4500Z., down to 1841. A. became bank-
rupt in 1844, and the plaintiffs then first discovered that the mort-
gage to S. had never been effected ; on bill by the plaintiffs against
B. to recover the sum paid over as above stated, it was held that
the fraudulent representation of A. must be taken to be the act of
the firm — that the relief was properly in equity, and that the de-
fendant was civilly liable for the fraud of his co-partner.

Without attempting to enter at length upon the subject of part-
nership liabilities, incurred through the act of an individual
member of the firm, we may observe, that wherever a contract is
alleged to have been entered into through the medium of a third
person, whether a co-partner or not, the real and substantial ques-
tion is, with whom was the contract made? and, in answering this
question the jury will have to consider whether the party through

1 Blair v. Bromley, 5 Hare 542 ; s. c, 2 Phill. 354.

THE LAW OF CONTRACTS. 829

■whose instrumentality the contract is alleged to have been made,
had in fact authority to make it. "It would," moreover, "be very
dangerous to hold," as matter of law, "that a person who allows
an agent to act as a principal in carrying on a business, and invests
him with an apparent authority to enter into contracts incidental to
it, could limit that authority by a secret reservation."1

Assumpsit for work and labor, in writing certain literary articles,
was brought against the defendants, * whose names appeared r*cqn-i
as proprietors of a newspaper in the declaration filed under
6 & 7 Will. 4, c. 76; they had in fact ceased to be so before the
contract was entered into, at which time L. was the sole proprietor ;
the jury found that the contract was made by L. on his own behalf,
without any authority from the defendants ; and also, that the
plaintiff, when he supplied the articles in question, did not know
the defendants to be proprietors ; it was held, that, although the
declaration above mentioned was, under the provisions of the stat.
(s. 8), conclusive evidence of the fact that the defendants were
proprietors, yet "the real question was with whom the contract had
been made, and that upon the finding of the jury the defendants
were not liable.2

In like manner, in the case of an action brought at suit of a creditor
against a member of the managing or provisional committee of a
railway or other company, the question of liability ordinarily
resolves itself into the consideration, whether the defendant did or
did not authorize the particular contract for which he is sought to
be made responsible; in Barnett v. Lambert3 the defendant in
answer to an appliication from the secretary of a railway company,
consented, by letter, that his name should be placed on the
list of its provisional committee. His name was accordingly pub-
lished in the newspapers as a provisional committee-man, and it
appeared that on one occasion he attended and acted as chairman

1 Per Mellor, J., Edmunds v. Bushell, L. R. 1 C. P. 97, 100.

As to the authority of an agent see Howard v. Sheward, L. R. 2 C. P. 148 ;
Baines v. Ewing, L. R. 1 Ex. 320.

2 Holcroft v. Hoggins, 2 C. B. 488 (52 E. C. L. R.).

3 15 M. & W. 489, where Todd v. Emly, 8 M. & W. 505 ; Flemyng v. Hector,
2 M. & W. 172 ; and Tredwen v. Bourne, 6 M. & W. 461, were cited per Cur.
As to the liability of a partner on a contract prior to his joining the concern,
see Beale v. Mouls, 10 Q. B. 976 (59 E. C. L. R.).

830 broom's legal maxims.

r*8311 at a meet*no °f tne committee. It was held, that the
*defendant was liable for the price of stationery supplied
by the plaintiff on the order of the secretary, and used by
the committee after the date of his letter to the secretary, —
the question for decision being one of fact, and matter of inference
for the jury, to be drawn from the defendant's conduct, as showing
that he had constituted the secretary his agent to pledge his credit
for all such things as were necessary for the working of the
committee, and to enable it to go on. "Where," observed Alder-
son, B., "a subscription has been made, and there is a fund, it is
not so; because if you give money to a person to buy certain
things with, the natural inference is, that you do not mean him to
pledge your credit for them."1

In Reynell v. Lewis and Wylde v. Hopkins,2 decided shortly after
Barnett v. Lambert, supra, the Court of Exchequer took occasion
to lay down the principles applicable to cases falling within the
particular class under consideration ; and it may probably be better
to give the substance of this judgment at some length, as it af-
fords throughout important practical illustrations of that maxim,
"which," in the words of Tindal, C. J.,3 "is of almost universal
application," — Qui facit per alium facit per se.

"The question," observed the Court, "in all cases in which the
plaintiff seeks to fix the defendant with liability upon a contract,
express or implied, is, whether such contract was made by the de-
r*8391 ^en(^an^ DJ himself or his agent, with the plaintiff or his
agent, and this is a question *of fact for the decision of
the jury upon the evidence before them. The plaintiff, on whom
the burthen of proof lies in all these cases, must, in order to
recover against the defendant, show that he (the defendant) con-
tracted expressly or impliedly ; expressly, by making a contract
with the plaintiff; impliedly, by giving an order to him under
such circumstances as show that it was not to be gratuitously
executed : and, if the contract was not made ,by the defendant
personally, it must be proved that it was made by an agent of the
defendant properly authorized,4 and that it was made as his con-

1 Higgins v. Hopkins, 3 Exch. 163 ; Burnside v. Dayrell, Id. 224.

2 15 M. & W. 517 ; Collingwood v. Berkeley, 15 C. B. N. S. 145 (109 E. C.
L. R.) ; Cross v. Williams, 7 H. & N. 675 ; Barker v. Stead, 16 L. J. C. P. 160.

3 8 Scott N. R. 830.

4 See Cooke v. Tonkin, 9 Q. B. 936 (58 E. C. L. R.).

THE LAW OF CONTRACTS. 832

tract. In these cases of actions against provisional committee-men
of railways, it often happens that the contract is made by a third
person, and the point to be decided is, whether that third person
was an agent for the defendant for the purpose of making it, and
made the contract as such.1 The agency may be constituted by an
express limited authority to make such a contract, or a larger
authority to make all falling within the class or description to
which it belongs, or a general authority to make any ; or it may be
proved by showing that such a relation existed between the parties
as by law would create the authority, as, for instance, that of part-
ners, by which relation, when complete, one becomes by law the
agent of the other for all purposes necessary for carrying on their
particular partnership, whether general or special, or usually be-
longing to it ; or the relation of husband and wife, in which the
law, under certain circumstances, considers the husband to make
his wife an agent. In all these cases, if the agent in making
*the contract acts on that authority, the principal is bound r*ooqn
by the contract, and the agent's contract is his contract,
but not otherwise. This agency may be created by the immediate
act of the party, that is, by really giving the authority to the agent,
or representing to him that he is to have it, or by constituting that
relation to which the law attaches agency ; or it may be created by
the represensation of the defendant to the plaintiff that the party
making the contract is the agent of the defendant, or that such re-
lation exists as to constitute him such ; and if the plaintifF really
makes the contract on the faith of the defendant's representation,
the defendant is bound, — he is estopped from disputing the truth of
it with respect to that contract ; and the representation of an
authority is, quoad hoe] precisely the same as a real authority given
by the defendant to the supposed agent. This representation may
be made directly to the plaintifF, or made publicly, so that it may
be inferred to have reached him : and may be made by words and
conduct. Upon none of these propositions is there, we apprehend,
the slightest doubt, and the proper decision of all these questions
depends upon the proper application of these principles to the facts

1 See Riley v Packington, L. R. 2 C. P. 536 ; Maddiok v. Marshall, 17 C.

B. N. S. 829 (112 E. C. L. R.) ; s. c, 16 Id. 387 ; Burbridge v. Morris, 3 II. &

C. 664.

833 broom's legal maxims.

of each case, and the jury are to apply the rule with due assistance
from the judge." In the course of the judgment from which we
have already made so long an extract, the Court further observed,
that an agreement to be a provisional committee-man is merely an
agreement for carrying into effect the preliminary arrangements for
petitioning Parliament for a bill, and thus promoting the scheme,
but constitutes no agreement to share in profit or loss, which is the
characteristic of a partnership, although if the provisional commit-
tee-man subsequently acts he will be responsible for his acts. They
r*ft^4l likewise remarked, that *where the list of the provisional
committee has appeared in a prospectus, published with the
defendant's consent, knowledge, or sanction, the context of such
prospectus must be examined, to see whether or not it contains any
statement affecting his liability, as, for instance, the names of a
managing committee, in which case it will be a question whether
the meaning be that the acting committee shall take the whole man-
agement of the concern, to the exclusion of the provisional commit-
tee, or that the provisional committee-men have appointed the acting
committee, or the majority of it, on their behalf and as their agents.1
In this latter case, moreover, it must further be considered whether
the managing and delegated body is authorized to pledge the credit
of the provisional committee, or is merely empowered to apply the
funds subscribed to the liquidation of expenses incurred in the
formation and carrying out of the concern.2

The preceding remarks have reference merely, as will have been
noticed, to the right of a creditor of a company or projected com-
pany with which the defendant has become connected; in an action
at suit of an allottee for recovery of his deposit, the main questions
for consideration usually are, 1st, whether there has been such a
failure of consideration as will entitle the plaintiff to treat the

1 See Judgm., 15 M. & W. 530, 531 ; Wilson v. Viscount Curzon, Id. 532 ;
Williams v. Pigott, 2 Exch. 201.

2 Dawson v. Morrison, 16 L. J. C. P. 240 ; Rennie v. Clarke, 5 Exch. 292.
See also as to the liability of a provisional committee man, Patrick v. Rey-
nolds, 1 C. B. N. S. 727 (87 E. C. L. R.) ; or member of a committee of
visitors, Moffatt v. Dickson, 13 C. B. 543 (76 E. C. L. R.) ; Kendall v. King,
17 Id. 483, 508. As to the authority of a resident agent, or the directors of
a mining company, to borrow money on the credit of the company, see
Ricketts v. Bennett, 4 C. B. 686 (56 E. C. L. R.), and cases there cited ; Bur-

THE LAW OF CONTRACTS. 834

supposed contract as a nullity, according to the maxim, Ex
%nudo facto non oritur actio ; and, 2dly, whether there r*oor-i
has been such a degree of fraud or misrepresentation, such
dolus dans locum contractui, as will nullify the contract into which
the allottee has been induced to enter.1 And from decided cases
we may deduce, on the one hand, that the money deposited by a
subscriber to a railway or other similar undertaking may (in the
absence of special circumstances) be recovered back, 1st, where no
deed has been signed and the scheme has proved altogether abor-
tive, and has been definitely abandoned, or 2dly, where the usual
deed has been signed, provided the money were paid and the deed
executed under a misrepresentation of facts within the knowledge
of or sanctioned or adopted by the defendant ;2 and, on the other
hand, that the entire deposit3 cannot be recovered where there has
been no fraud, and the subscription contract has been executed, in-
asmuch as the provisions ordinarily inserted in such deed will afford
a good defence to the action.4

We do not propose to dwell at much length upon the maxim now
before us, in further illustration of which, however, some few addi-
tional cases may be mentioned.5

*The authority of the master of a ship is very large, and r*QQfn
extends to all acts that are usual and necessary for the use
and enjoyment of the ship ; it is, nevertheless, subject to several
well-known limitations. He may make contracts for the hire of the
ship, but cannot vary that which the owner has made. He may
take up money in foreign ports, and under certain circumstances at

1 Walstab v. Spottiswoode, 15 M. & W. 501 ; Wontner v. Shairp. 4 C. B.
404 (56 E. C. L. R.); Willey v. Parratt, 3 Exch. 211; Garwood v. Ede, 1
Exch. 264; Hutton v. Thompson, 3 H. L. Cas. 161 ; Johnson v. Goslett, 3 C.
B. N. S. 569.

2 Per Parke, B., Vane v. Cobbold, (Exch.), 12 Jur. 61 5 s. c, 1 Exch. 798 ;
Atkinson v. Pocock, 12 Jur. 60 ; s. c. 1 Exch. 796 ; and cases supra.

8 The letter of allotment may likewise empower the directors to apply the
deposits in discharge of necessary expenses: Jones v. Harrison, 2 Exch. 52.

4 Watts v. Salter, 10 C. B. 477 (70 E. C. L. R.).

6 The authority of a counsel to bind his client by a compromise was much
considered in Swinfen v. Swinfen, 1 C. B. N. S. 364 (87 E. C. L. R.) ; s. c,
18 C. B. 485 (86 E. C. L. R.) ; 24 Beav. 549; Swinfen v. Lord Chelmsford, 5
H. & N. 890; Strauss v. Francis, L. R. 1 Q. B. 379. As to the power of a
solicitor to bind his client by a reference, see Fray v. Voules, 1 E. & E. 839
(102 E. C. L. R.) ; Chown v. Parrott, 14 C. B. N. S. 74 (108 E. C. L. R.).

836 BROOM'S LEGAL MAXIMS.

home,1 for necessary disbursements and for repairs, and bind the own-
ers for repayment; but his authority is limited by the necessity of the
case, and he cannot make them responsible for money not actually
necessary for those purposes, although he may pretend that it is.
He may make contracts to carry goods on freight, but cannot bind
his owners by a contract to carry freight free. With regard also
to goods put on board the ship, the master may sign a bill of lading,
and acknowledge thereby the nature, quality, and condition of the
goods ; his authority, however, to give bills of lading being limited
to such goods as have been put on board.2

Further, the liability of the husband for necessaries supplied to

the wife results from her authority being implied by law to act as

T*8871 ^er nus^anc^'s agent, and to contract on his behalf for this

specific purpose ;3 but the ^implied authority of the wife

thus to bind her husband is put an end to by her adultery.4

To the general principle under consideration may also be re-
ferred the numerous decisions which establish that the sheriff is
liable for an illegal or fraudulent act committed by his bailiff, even
if he were not personally cognisant of the transaction ;5 and such

1 See Edwards v. Havill, 14 C. B. 107 ; 19 & 20 Vict. c. 97, s. 8.

2 Grant v. Norway, 10 C. B. 665, 687 (70 E. C. L. R.) ; Hubbersty v. Ward,
8 Exch. 330 ; Jessel v. Bath, L. R. 2 Ex. 267 ; Valieri v. Boyland, L. R. 1 C.
P. 382; Barker v. Higley, 15 C. B. N. S. 27 (109 E. C. L. R.). See, further,
as to the authority of the master, or ship's husband, to pledge the owner's
credit, The Great Eastern, L. R. 2 A. & E. 88 ; The Karnakj L. R. 2 P. C.
505.

3 Manby v. Scott, 1 Lev. 4 ; s. c, 1 Sid. 109 ; Montague v. Benedict, 3 B. &
C. 631 (10 E. C. L. R.); Seaton v. Benedict, 5 Bing. 28 (15 E. C. L. R.)
(which are leading cases on the subject of the husband's liability) ; Johnston
v. Sumner, 3 H. & N. 261 ; Richardson v. Dubois, L. R. 5 Q. B. 51 ; Wilson
v. Ford, L. R. 3 Ex. 63 ; Bazeley v. Forder, L. R. 3 Q. B. 559 ; Needham v.
Bremner, L. R. 1 C. P. 583 ; Helps v. Clayton, 17 C. B. N. S. 553 (112 E. C.
L. R.) ; Jolly v. Rees, 15 C. B. N. S. 628 (109 E. C. L. R.) ; Smout v. Ilbery,
10 M. & W. 1.

4 Cooper v. Lloyd, 6 C. B N. S. 519 (95 E. C. L. R.), and cases there
cited.

6 Per Ashhurst, J., Woodgate v. Knatchbull, 2 T. R. 154; Gregory v. Cot-
terell, 5 E. & B. 571 (85 E. C. L. R.) ; Raphael v. Goodman, 8 A. & E. 565
(35 E. C. L. R.) ; Sturmy v. Smith, 11 East 25: Price v. Peek, 1 Bing. N. C.
380 (27 E. C. L. R.) ; Crowder v. Long, 8 B. & C. 602 (15 E. C. L. R.) ; Smart
v. Hutton, 8 A. & E. 568, n. (35 E. C. L. R.). See Peshall v. Layton, 2 T. R.
712; Thomas v. Pearse, 5 Price 578; Jarmain v. Hooper, 7 Scott N. R.
663.

THE LAW OF CONTRACTS. 837

decisions are peculiarly illustrative of this principle, because there
is a distinction to be noticed between the ordinary cases and those
in which the illegal act is done under such circumstances as con-
stitute the person committing it the special bailiff of the party at
whose suit process is executed ; as, where the attorney of the plain-
tiff in a cause requested of the sheriff a particular officer, delivered
the warrant to that officer, took him in his carriage to the scene of
action, and there encouraged an illegal arrest ; it was held, that
the sheriff was not liable for a subsequent escape.1 Nor will the
sheriff be liable if the wrong complained of be neither expressly
sanctioned by him, nor impliedly committed by his authority ; as,
where the bailiff derived his authority, not from the sheriff, but
from the plaintiff, at whose instigation he acted ;2 and it is not com-
petent to *one whose act produces the misconduct of the
bailiff to say, that the act of the officer done in breach of L -I
his duty to the sheriff, and which he has himself induced, is the act
Of the sheriff.3

One additional exemplification of our principal maxim must suf-
fice: A contractor for supplying forage for the use of Her Majesty's
forces is exempted by the stat. 3 Geo. 4, c. 126, s. 32, from the
payment of toll in respect of any wagon conveying such forage to
a government store, and a person hired by such contractor to con-
vey it to the place of delivery will have a like privilege of ex-
emption in accordance with the principle Qui faeit per alium facit
per se.*

But, notwithstanding the almost universal applicability of the
legal maxim under consideration, cases may occur in which, by
reason of the express provisions of the statute law, it will not
apply ; for instance, it was formerly held that, under the stat. 9

1 Doe v. Trye, 5 Bing. N. C. 573 (35 E. C. L. R.) ; Ford v. Leche, 6 A. & E.
699 (33 E. C. L. R.) ; Wright v. Child, L. R. 1 Ex. 358 ; Alderson v. Daven-
port, 13 M. & W. 42; per Buller, J., De Moranda v. Dunkin, 4 T. R. 121;
Botten v. Tomlinson, 16 L. J. C. P. 138.

2 Cook v. Palmer, 6 B. & C. 39 (13 E. C. L. R.) ; Crowder v. Long, 8B.&
C. 598 (15 E. C. L. R.) ; Tompkinson v. Russell, 9 Price 287; Bowden v.
"Waithman, 5 Moore 183 ; Stuart v. Whittaker, R. & M. 310 ; Higgins v.
M'Adam, 3 Y. & J. 1.

3 Per Bayley, J., 8 B. & C. 603, 604 (15 E. C. L. R.).

* London and South Western R. C, app., Reeves, resp., L. R. 1 C. P. 580,
582.

838 broom's legal maxims.

Geo. 4, c. 14, s. 1. an acknowledgment signed by an agent of the
debtor would not revive a debt barred by the Statute of Limita-
tions.1 But the law upon this point has been altered by the stat.
19 & 20 Vict. c. 97, s. 13.

It has also been stated as a general rule, that a bill of discovery,
in aid of a defence to an action at law, cannot be sustained against
a person who is not a party to the record, although charged in the
bill to be solely interested in the subject of the action ; and this
r*8°Ql ru^e w^ ^e aPP^e(^ *even where the plaintiff in the original
action sues as agent for the party from whom this discovery
is sought, notwithstanding the maxim, Qui facit per alium facit per
se, might at first sight appear applicable.2

Before terminating our remarks • as to the legal consequences
which flow from the relation of principal and agent in transactions
founded upon contract, it becomes necessary to consider briefly a
kindred principle of law, which limits the operation of the maxim
Qui facit per alium facit per se, and will, therefore, most properly
be noticed in immediate connection with it: the principle to which
we allude is this, that a delegated authority cannot be redelegated —
Delegata potest as non potest delegarif or, as it is otherwise expressed,
Vicarius non liabet vicarium* — one agent cannot lawfully nominate
or appoint another to perform the subject-matter of his agency.5
Hence, a notice to quit, given by an agent of an agent, is not
sufficient, without a recognition by the principal. To render such
a notice valid, there must be either an authority to give, or a re-
cognition of it.6 So, a principal employs a broker from the opinion
which he entertains of his personal skill and integrity ; and the
broker has no right, without notice, to turn his principal over to

1 Hyde v. Johnson, 2 Bing. N. C. 776 (29 E. C. L. R.). See also Toms,
app., Cuming, resp., 8 Scott N. R. 910; Cuming, app., Toms, resp., Id. 827;
Davies, app^Hopkins, resp., 3 C. B. N. S. 376 (91 E. C. L. R.).

2 Queen of Portugal v. Glyn, 7 CI. & Fin. 466.

3 2 Inst. 597; arg.T Fector v. Beacon, 5 Bing. N. C. 310 (35 E. C. L. R.).

4 Branch Max., 5th ed., 38.

5 See per Lord Denman, C. J., Cobb v. Becke, 6 Q. B. 936 (51 E. C. L. R.) ;
Combes' Case, 9 Rep. 75. See Reg. v. Newmarket R. C, 15 Q. B. 702 (69
E.C. L. R.); Reg. v. Dulwich College, 17 Q. B. 600, 615 (79 E. C. L. R.),
where Lord Campbell, C. J., incidently observes that " the Crown cannot
enable a man to appoint magistrates."

6 Doe d. Rhodes v. Robinson, 3 Bing. N. C. 667, 679 (32 E. C. L. R.).

THE LAW OF CONTRACTS. 839

another, of whom he knows nothing ; and, therefore, a broker can-
not, without authority from his principal, transfer consignments
made to him, in his character of *broker, to another broker return
for sale.1 On the same principle, where an Act of Parlia-
ment for building a bridge required, that, when any notice was to
be given by the trustees appointed and acting under it, such notice
should be in writing or in print, signed by three or more of the
trustees ; it was held, that a notice, signed with the names of the
clerks to the trustees, but signed, in fact, not by such clerks, but
by a clerk employed by them, was insufficient, as being an attempt
to substitute for a deputy his deputy.2

It may, likewise, be well to observe, that delegated jurisdiction,
as contradistinguished from proper jurisdiction, is that which is
communicated by a judge to some other person, who acts in his
name, and is called a deputy ; and this jurisdiction is, in law, held
to be that of the judge who appoints the substitute, or deputy, and
not of the latter party ; and in this case the maxim holds, Dele-
gatus non potest delegare — the person to whom any office or duty
is delegated, — for example, an arbitrator cannot lawfully devolve
the duty on another, unless he be expressly authorized so to do.3
Nor can an individual, clothed with judicial functions delegate the
discharge of *these functions to another, unless, as in the r*QA-[-\
case of a County Court judge, he be expressly empowered
to do so under specified circumstances.4 For the ordinary rule is
that although a ministerial officer may appoint a deputy, a judicial
officer cannot.5

1 Cockran v. Irlam, 2 M. & S. 301, n. [a) ; Solly v. Rathbone, Id. 298 ; Cat
lin v. Bell, 4 Camp. 183 ; Schmaling v. Thomlinson, 6 Taunt. 147 (1 E. C. L.
R.) ; Coles v. Trecothick, 9 Ves. 251 ; Henderson v. Barnwall, 1 Yo. & J. 387.

2 Miles v. Bough, 3 Q. B, 845 (43 E. C. L. R.) ; cited arg., Allan, app.,
Waterhouse, resp., 8 Scott N. R. 68, 76.

3 See Bell Diet, and Dig. of Scotch Law 280, 281, 292 ; Whitmore.r. Smith,
7 II. & N. 509 ; cited in Thorburn v. Barnes, L. R. 2 C. P. 384, 404 ; Little v.
Newton, 2 Scott N. R. 509; Reg. v. Jones, 10 A. & E. 576 (37 E. C. L. R.) ;
Hughes v. Jones, 1 B. & Ad. 388 (20 E. C. L. R.) ; Wilson v. Thorpe, 6 M. &
W. 721 ; argument, 5 Bing. N. C. 310 (35 E. C. L 11.) ; White v. Sharp, 12
M. & W. 712; Rutter v. Chapman, 8 M. & W. 1. See The Case of the
Masters' Clerks, 1 Phill. 650. FA vide Reg. v. Perkin, 7 Q. B. 165 (53 E. C.
L. R.) ; Smeeton v. Collier, 1 Exch. 457; Sharp v. Nowell, 6 C. B. 253 (60 E.
C. L. R.); 17 &18 Vict, c: 125, s. 14.

* See Broom, Pr. C. C, 2d ed., 9.

6 See per Parke, B., Walsh v. Southwortb, 6 Exch. 150, 156; which illus-

841 broom's legal maxims.

A magistrate, as observed by Lord Camden, can have no assistant
nor deputy to execute any part of his employment. The right is
personal to himself, and a trust that he can no more delegate to
another, than a justice of the peace can transfer his commission to
his clerk.1

Although, however, a deputy cannot, according to the above rule,
transfer his entire powers to another, yet a deputy possessing gen-
eral powers may, in many cases, constitute another person his ser-
vant or bailiff, for the purpose of doing some particular act ; pro-
vided, of course, that such act be within the scope of his own
legitimate authority.

For instance, the steward of a manor, with power to make a
deputy, made B. his deputy, and B., by writing under his hand and
seal, made C. his deputy, to the intent that he might take a surren-
der of G., of copyhold lands. It was held, that the surrender
taken by C. was a good surrender ;2 and Lord Holt, insisting upon
the distinction above pointed out, compared the case before him to
that of an undersheriff, who has power to make bailiffs and to send
process all over the kingdom, and that only by virtue of his
deputation.3

r*R421 *S.'s wife was in the habit of managing his business,
and inter alia of drawing, accepting, and endorsing bills in
his name. On one occasion a promissory note was endorsed by S.'s
daughter, in his name, in the presence, and by the direction of her
mother, who then delivered it to the plaintiff. Upon an issue as to
the endorsement of the said note by S., the question was held to be
one of fact, whether or not the evidence showed an authority given
by the husband to the wife to endorse in the way mentioned. The
maxim, Delegatus non potest delegare, observed Maule, J. *' has no
application at all here;" and again, "there was evidence that the
wife had the general management of her husband's business. And
when he authorized her to draw, accept, and endorse bills, in his
name, that they may fairly be extended to authorizing her to

trates the former part of the rule stated supra. See Baker v. Cave, 1 II. &
N. 674.

1 Entick v. Carrington, 19 Howell St. Trials 1063.

3 Parker v. Kett, 1 Ld. Raym. 658, cited in Bridges v. Garrett, L. R. 4 C.
P. 591.

3 1 Ld. Raym. 659 ; Leak v. Howell, Cro. Eliz. 533.

THE LAW OF CONTRACTS. 842

select some person, pro Tide vice, to write the name of her husband
for her.1

The rule as to delegated functions must, moreover, be understood
with this necessary qualification, that, in the particular case, no
power to re-delegate such functions has been given.2 Such an
authority to employ a deputy may be either express or implied by
the recognised usage of trade ; as in the case of an architect or
builder, who employs a surveyor to make out the quantities of the
building proposed to be erected ; in which case the maxim of the
civil law applies, In contractu tacite insunt quce sunt moris et con-
suetudinis* — terms which are in accordance with and warranted by
custom and usage may, in some cases, be tactitly imported into
contracts.

*Respondeat Superior. [*843]

(4 Inst. 114.)
Let the principal be held responsible.

The above maxim is, in principle, almost identical with that
immediately preceding, but is more usually and appropriately ap-
plied with reference to actions ex delicto, than to such as are
founded in contract. Where, for instance, an agent commits a
tortious act, under the direction or with the assent of his principal,
each is liable at suit of the party injured : the agent is liable, be-
cause the authority of the principal cannot justify his wrongful act;
and the person who directs the act to be done is likewise liable,
according to the maxim, Respondeat superior.* " If the servant

1 Lord v. Hall, 8 C. B. 627 (65 E. C. L. R.). See Lindus v. Bradwell, 5 C. B.
583 (57 E. C. L. R.) ; Smith v. Marsack, 6 C. B. 486 (60 E. C. L. R.).

2 See 2 Prest. Abs. Tit. 276.

3 3 Bing. N. C. 814, 818 (32 E. C. L. R.).

4 4 Inst. 114; Sands v. Child, 3 Lev. 352; Jones v. Hart, 1 Ld. Raym. 738 ;
Britton v. Cole, 1 Salk. 408; Gauntlett v. King, 3 C. B. N. S. 59 (91 E. C. L-
R.); per Littledale, J., Laugher v. Pointer, 5 B. & C. 559 (11 E. C. L. R.) ;
Perkins v. Smith, 1 Wils. 328; cited 1 Bing. N. C. 418 (27 E. C. L. R.) ;
Stephens v. Elwall, 4 M. & S. 259; Com. Dig., " Trespass" (C. 1). See Col- .
lett v. Foster, 2 H. & N. 356 ; Bennett v. Bayes, 5 II. & N. 391.

A person who deals with the goods of a testator, as agent of the executor,
cannot be treated as executor de soji tort, whether the will has been proved
or not: Sykes v. Sykes, L. R. 5 C. P. 113.

42

843 broom's legal maxims.

commits a trespass by the command or encouragement of his master,
the master shall be guilty of it, though the servant is not thereby
excused, for he is only to obey his master in matters that are
honest and lawful;"1 and "all persons directly concerned in the
commission of a fraud are to be treated as principals."2
r*QAA-] *A railway company may be liable in trover for a con-
version by their agent.3 The rule, indeed, so far as regards
the method of applying the maxim before us, being the same be-
tween a private individual and a railway company as it is where the
same matter is in dispute between two private individuals.4

In the case of domestic servants, and such agents as are selected
by the master, and appointed to perform any particular work, al-
though, possibly, not in his immediate employ or under his direct
or personal superintendence, the maxim, Respondeat superior, is
also very often applicable.

" Upon the principle that Qui facit per alium facit per se," it
was said, in a leading case upon this subject, "the master is respon-
sible for the acts of his servant, and that person is undoubtedly
liable who stood in the relation of master to the wrong-doer — he
who had selected him as his servant, from the knowledge of, or
belief in, his skill and care, and who could remove him for miscon-
duct, and whose orders he was bound to receive and obey, and
whether such servant has been appointed by the master directly,
or intermediately through the intervention of an agent authorized
by him to appoint servants for him, can make no difference."5

Where, for instance, a man is the owner of a ship, he himself

1 1 Com. by Broom & Hadley, 518; et vide per Piatt, B.. Stevens v. Midland
Counties R. G., 10 Exch. 356; Eastern Counties R. C. v. Broom, 6 Exch. 314.

2 Ante, p. 824, n. (6).

Scrivener v. Pask, L. R. 1 C. P. 715, 719, shows that to charge a principal
for the misrepresentation of his agent, three things must he proved : (1) the
agency ; (2) that the agent was guilty of fraud or misrepresentation ; and (3)
that the principal knew of and sanctioned it.

Also the intentional concealment of a material fact from the underwriter
by the agent of the shipowner, though unknown to the last-mentioned party,
will vitiate the policy : Proudfoot v. Montefiore, L. R. 2 Q. B. 511.

3 Tuff Vale R. C. v. Giles, 2 E. & B. 822 (75 E. C. L. R.). See Poulton v.
London & South Western R. C, L. R. 2 Q. B. 534.

4 Roe v. Birkenhead, Lancashire and Cheshire R. C, 7 Exch. 30, 40.

5 Quarman v. Burnett, 6 M. & W. 509 ; cited L. R. 1 Jl. L. 114 ; Tobin v.
Reg., 10 C. B. N. S. 350 (111 E. C. L. R.).

THE LAW OF CONTRACTS. 844

appoints the master, and desires the master to *appoint and r*nA rn
select the crew: the crew thus become appointed by the
owner, and are his servants for the management and government of
the ship, and if any damage happens through their default, it is
the same as if it happened through the immediate default of the
owner himself.1 By a policy of insurance, however, the assured
makes no warranty 'to the underwriters that the master and crew
shall do their duty during the voyage; and their negligence or
misconduct is no defence to an action on the policy, where the loss
has been immediately occasioned by the perils insured against; nor
can any distinction be made in this respect between the omission by
the master and crew to do an act which ought to be done, and the
doing an act which ought not to be done, in the course of the navi-
gation.2 In the case just supposed, however, if the ship be char-
tered for the particular voyage, or for a definite period, it is always
a question of fact under whose direction and control the vessel was
at the time of the occurrence complained of; and this question
must be solved by ascertaining whose are the crew, and by consider-
ing whether the reasonable interpretation of the charter-party is,
that the owners meant to keep the control of the vessel in their
own hands, or to make the freighter the responsible owner pro
tempore:3 and a state of facts *might perhaps occur in r*c4p-i
which the charterer would be answerable as w'ell as the

1 Per Littledale, J., 5 B. & C. 554 (11 E. C. L. R.) ; Martin v. Temperley, 4
Q. B. 298 (45 E. C. L. R.) ; Dunford v. Trattles, 12 M. & W. 529 ; Bland v.

Ross, 14 Moo. P. C. C. 210.

2 Judgm., Dixon v. Sadler, 5 M. & W. 414 ; cited in The Duero, L. R. 2 A.

6 E. 393 ; Biccard v. Shepherd, 14 Moo. P. C. C. 471.

3 Fenton v. City of Dublin Steam Packet Co., 8 A. & E. 835 (35 E. C. L.
R.) ; Dalyell v. Tyrer, E., B. & E. 899 (96 E. C. L. R.) ; Fletcher v. Braddick,
2 N. R. 182; recognised, 5 B. & C. 556 (11 E. C. L. R.) ; Newberry v. Colvin,

7 Bing. 190 (20 E. C. L. R.); cited judgm., Shuster v. M'Kellar, 7 E. & B.
724 (90 E. C. L. R.) ; Trinity House v. Clark, 4 M. & S. 288.

4 Per Lord Denman, C. J., and Patteson, J., 8 A. & E. 842, 843 (35 E. C.
L. R.).

As to the owner's liability in trover for the act of the master, see Ewbank
v. Nutting, 7 C. B. 797 (62 E. C. L. R.).

As to the liability of the master for damage done to goods in the loading
thereof, see Blaikie v. Stembridge, 6 C. B. N. S. 694 (95 E. C. L. R.) (distin-
guished in Sack v. Ford, 13 C. B. N. S. 90 (106 E. C. L. R.)) ; Sandeman v.
Scurr, L. R. 2 Q. B. 86.

846 broom's legal maxims.

" The principle upon which a master is in general liable to
answer for accidents resulting from the negligence or unskilfulness
of his servant, is, that the act of his servant is in truth his own
act.1 If the master is himself driving his carriage, and from want
of skill causes injury to a passer-by, he is of course responsible for
that want of skill. If, instead of driving the carriage with his own
hands, he employs his servant to drive it, the servant it but an in-
strument set in motion by the master. It was the master's will
that the servant should drive, and whatever the servant does in
order to give effect to his master's will may be treated by others as
the act of the master, Qui facit per alium facit per se." 2 The
general rule being that " a master is responsible for all acts done
by his servant in the course of his employment, though without
particular directions;"3 even whilst engaged in private business of
r*R471 ^'m own, provided he be at the time * engaged generally on
that of his master.4 The tests applicable for determining
the liability of the master being — is the servant "in the employ of
his master at the time of committing the grievance?"5 — was he
authorized by his master to do the act complained of?6 "The
master," observes Maule, J.,7 "is liable even though the servant in
the performance of his duty is guilty of a deviation or a failure to
perform it in the strictest and most convenient manner. But where

1 So in Lumley v. Gye, 22 L. J. Q. B. 478 ; s. c, 2 E. & B. 216 (75 E. C. L.
R.), Coleridge, J., observes, " The maxims Qui facit per alium facit per se,
and Respondeat superior, are unquestionable ; but where they apply, the
wrongful act is properly charged to be the act of him who has procured it to
be done ; he is sued as a principal trespasser, and the damage, if proved,
flows directly and immediately from his act, though it was the hand of
another — and he a free agent — that was employed."

2 Judgm., Hutchinson v. York, Newcastle & Berwick R. C, 5 Exch. 350.
See Sharrod v. The London and North Western R. C, 4 Exch. 580, 585 ;
citing Gregory v. Piper, 9 B. & C. 591.

3 Per Lord Holt, 0. J., Tuberville v. Stampe, 1 Lord Raym. 266 ; Seymour
v. Greenwood, 7 H. & N, 355, 357-8 ; s. c, 6 Id. 359.

4 Patton v. Rea, 2 C. B. N. S. 606 (89 E. L. C. R.) ; Mitchell v. Crassweller,
13 C. B. 237 (76 E. C. L. R.) ; Storey v. Ashton, L. R. 4 Q. B. 476 ; judgm.,
Tobin v. Reg., 16 C. B. N. S. 350-352 (111 E. C. L. R.).

The same principle applies to fix a corporation aggregate with liability ;
Green v. London General Omnibus Co., 7 C. B. N. S. 290 (97 E. C. L. R.).

5 Per Jervis, C. J., 13 C. B. 246 ; Storey v. Ashton, supra.

6 Gordon v. Rolt, 8 Exch. 365. ' 13 C. B. 247 (106 E. C. L. R.}.

THE LAW OP CONTRACTS. 847

the servant, instead of doing that which he is employed to do, does
something which he is not employed to do at all, the master cannot
be said to do it by his servant, and therefore is not responsible for
the negligence of the servant in doing it."

A master may also be civilly responsible for the fraud of his
servant acting in the course of his employment.1 And " where a
corporation is formed for the purpose of carrying on a trading or
other speculation for profit, such as forming a railway, these ob-
jects can only be accomplished through the agency of individuals;
and there can be no doubt that if the agents employed conduct
themselves fraudulently, so that if they had been acting for private
employers, the persons for whom they were acting would have been
affected by their fraud, the same principles must prevail where the
principal under whom the agent acts is a corporation."2

*If A. employs B. to do an illegal act, or an act neces- r*Q4Q-i
sarily to be done in an unlawful way, A. will be responsible
to C, who sustains damage consequential on the act thus done, there
being here the injuria et damnum, which suffice to constitute a
cause of action.3

If, however, the act in question might be done without injury,
public or private, the maxim Respondeat superior, will apply only
where the relation of master and servant pro hdc vice is established,
as between the actual wrong-doer and the defendant.4

The principle of Respondeat superior does not, moreover, apply,
where an injury is committed by a servant wilfully, whilst neither
employed in his master's service, nor acting within the scope of his
authority:5 as if a servant, authorized merely to distrain cattle

1 Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259.

3 Per Lord Cranworth, C, Ranger v. Great Western R. C, 5 II. L. Cas.
86, 87.

3 Ellis v. Sheffield Gas Consumers' Co., 2 E. & B. 767 (75 E. C. L. R), and
Hole v. Sittingbourne and Sheerness R. C, 6 H. & N. 488 ; cited in Picard
v. Smith, 10 C. B. N. S. 470 (100 E. C. L. R.). See Gray v. Pullen, 5 B. &
S. 970 (117 E. C. L. R.) ; Peachey v. Rowland, 13 C. B. 187 (117 E. C. L. R.) ;
Sadler v. Henlock, 4 E. & B. 570 (76 E. C. L. R.); Gayford v. Nicholls, 9
Exch. 702 ; Newton v. Ellis, 5 E. & B. 115 (85 E. C. L. R.) ; Ward v. Lee, 7
E. & B. 426.

* Id.

6 See Storey v. Ashton, L. R. 4 Q. B. 476 ; Whatman v. Pearson, L. R. 3 C.
P. 422 ; Williams v. Jones, 3 H. & C. 602 ; Limpus v. London General Omnibus

848 broom's legal maxims.

damage-feasant, drives cattle from the highway into his master's
close, and there distrains them.1 Neither does the rule apply where
the relation of principal and agent has terminated before the com-
mission of the act complained of. Thus, the sheriff is not liable in
r*<UQl trover for a conversion *by his bailiff of goods seized under
process of attachment issuing out of the county court after
the bailiff has had notice of a supersedeas. The ground of the
sheriff's liability for the acts of his bailiff is, that he is casting upon
another a duty which the law imposes upon him, and, consequently,
that he is acting by a servant ; but the effect of the supersedeas is
to render the writ inoperative from the moment it was delivered to
the sheriff, and not the writ only, but the warrant also ; and the
consequence is, that, though the sheriff was responsible for every-
thing that was done up to the time of the supersedeas, yet that
which was done afterwards was done in defiance of his authority,
and to hold him liable for this would be holding him to be a wrong-
doer for the act of his servant after his authority had been deter-
mined.2

The liability of the master for the tort of the servant when
acting under his implied authority results, then, as above stated,
from the fact, that servants are hired and selected by the master to
do the business required of them, and their acts consequently stand
on the same footing as his own ;3 as in the case of coach proprie-
tors, who are answerable for an injury sustained by a passenger
through the driver's misconduct.4 A difficulty, however, often

Co., 1 II. & C. 534 ; per Cur., Croft v. Alison, 4 B. & Aid. 590 (6 E. C. L. R.) ;
Lyons v. Martin, 8 A. & E. 512 (35 E. C. L. R.) ; M'Manus v. Cricketfc, 1 East
106 ; Lamb v. Palk, 9 C. & P. 629 (38 E. C. R. R) ; Gordon v. Rolt, 4 Exch.
365 ; A.-G. v. Siddon, 1 Cr. & J. 220 ; Joel v. Morison, 6 C. & P. 501 (25 E. C.
L. R.) ; per Lord Kenyon, C. J., 8 T. R. 533 ; per Ashhurst, J., Fenn v.
Harrison, 3 T. R. 760; Gregory v. Piper, 9 B. & C. 591 (17 E. C. L. R.);
Huzzey v. Field, 2 C. M. & R. 432.

1 Lyons v. Martin, 8 A. & E. 512 (35 E. C. L. R.).

• 2 Brown v. Copley, 8 Scott IST. R. 350. The ground and extent of the
sheriff's liability are explained, per Jervis, C. J., Gregory v. Cotterell, 5 E. &

B. 584 (85 E. C. L. R.) ; per Maule, J., Smith v. Pritchard, 8 C. B. 588 (65
Woods v. Finnis, 7 Exch. 363 ; Hooper v. Lane, 6 H. L. Cas. 443.

3 Per Littledale, J., Laugher v. Pointer, 5 B. & C. 553, 554 (11 E. C. L. R.).

4 White v. Boulton, Peake N. P. C. 81 ; Jackson v. Tollett, 2 Stark. N. P.

C. 37 (3 E. C. L. R.). See the cases 2 Selw. N. P. 12th ed., 446, 1119.

THE LAW OF CONTRACTS. 849

arises in applying this general and fundamental rule to particular
facts, and in determining between what parties the relationship of
master and servant *actuallj subsists;1 for although that r*orn-i
party will usually be liable with whom the act complained
of ultimately originates, yet the applicability of this test fails in
one case ; for where he who does the injury (either in person or by
his servant) exercises an independent employment, the party em-
ploying him is clearly not liable;2 as in the instance of a butcher
who employs a drover, whose deputy does the mischief by his care-
less driving ;3 or of a builder who contracts to make certain altera-
tions in a club-house, together with the necessary gas-fittings, and
who employs a gas-fitter for the latter purpose under a sub-contract,
through the negligence of whom, or of whose servants, the plaintiff
sustains an injury:4 in these cases the relation of master and ser-
vant does not subsist between the principal and the person who oc-
casions the injury, and the former is, therefore, not liable for the
misconduct of the latter,5 unless he has adopted or sanctioned the
particular act by which the injury in respect whereof compensation
is sought has been occasioned, or there be evidence to show that he
has interfered with or had control over the work, in the performance
of which the damage has been caused;6 or unless the act which
*occasions the injury is one which the contractor was em- r*Q£-n
ployed to do ; or unless the injury is occasioned by neglect
of the contractor to perform a duty incumbent on his employer, but

1 As between pilot and owner of ship, post, p. 864 ; captain of ship and
inferior officer, Nicholson v. Mouncey, 15 East 384, and cases there cited ;
postmaster-general and clerk, Lane v. Cotton, 1 Salk. 17 ; s. c, 15 Mod. 472 ;
per Lord Ellenborough, C. J., 15 East 392 ; Whitfield v. Lord Despencer,
Cowp. 754; cited per Lord Wensleydale, L. R. 1 H. L. Ill, 124.

2 Per Williams, J., and Coleridge, J., 12 A. & E. 742 (40 E. C. L. R.) ; Gary
v. Pullen, 5 B. & S. 970 (117 E. C. L. R.).

3 Milligan v. Wedge, 12 A. & E. 737 (40 E. C. L. R.).

*Rapson v. Cubitt, 9 M. & W. 710. See Wilson v. Peto, 6 Moore 47;
Witte v. Hague, 2 D. & R. 33.

6 See judgm., Quarman v. Burnett, 6 M. & W. 509, 510; per Parke, B., 9
M. & W. 713. See also the remarks on Bush v. Steinman (1 B. & P. 404),
and Sly v. Edgley (6 Esp. N. P. C. 6), in 5 B. & C. 559, 560; and per Le
Blanc, J., Harris v. Baker, 4 M. & S. 29.

6 Burgess v. Gray, J C. B. 578 (50 E. C. L. R.) (distinguishing Bush v.
Steinman, 1 B. & P. 404), and cases cited post.

851 broom's legal maxims.

with the performance of which he was intrusted,1 or to select a
competent subordinate.2

"The liability," remarks Rolfe, B., delivering the judgment of
the Court in Reedie v. The London and North-Western Railway
Company,3 " of any one other than the party actually guilty of any
wrongful act, proceeds on the maxim Quifacit per alium facit per
se; the party employing has the selection of the party employed ;
and it is reasonable that he who has made choice of an unskilful or
careless person to execute his orders, should be responsible for any
injury resulting from the want of skill or care of the person em-
ployed; but neither the principle of the rule nor the rule itself can
apply to a case where the party sought to be charged does not stand
in the character of employer to the party by whose negligent act
the injury has been occasioned."

It is, however, obviously not essential "that the relation of
principal and agent in the sense of one commanding and the other
obeying should subsist in order to make one responsible for the
r*oziy\ tortious act of another: it is *enough if it be shown to
have been by his procurement and with his assent. The
cases where the liability of one for the wrongful act of another has
turned upon the relation of principal and agent are quite consist-
ent with the party's liability, irrespective of any such relation : as
if I agree with a builder to build me a house, according to a certain
plan, he would be an independent contractor, and I should not be
liable to strangers for any wrongful act unnecessarily done by
him in the performance of his work, but clearly I should be
jointly liable with him for a trespass on the land if it turned out
that I had no right to build upon it."4

1 Pickard v. Smith, 10 C. B. N. S. 470, 480 (100 E. C. L. R.) (with which
compare Welfare v. London and Brighton R. C, L. R. 4 Q. B. 693) ; Ellis v.
Sheffield Gas Co., 2 E. & B. 767 (75 E. C. L. R.) ; Blake v. Thirst, 32 L. J.
Ex. 188 ; s. c, 2 H. & C. 20.

2 See Brown v. Accrington Cotton Co., 3 H. & C. 511 ; Murphy v. Caralli,
Id. 462.

3 4 Exch. 244, 255 ; followed in Butler v. Hunter, 7 H. & N. 826, 834; per
Cresswell, J., Overton v. Freeman, 11 C. B. 873 (73 E. C. L. R.) ; and per
Maule, J., Peachey v. Rowland, 13 C. B. 187 (76 E. C. L. R.) ; Sadler v.
Henlock, 4 E. & B. 570 (82 E. C. L. R.) ; Cuthbertson v. Parsons, 12 C. B.
304 (74 E. C. L. R.); Gayford v. Nicholls, 9 Exch. 702; Grote v. Chester and
Holyhead R. C, 2 Exch. 251. See Mills v. Holton, 2H.&N. 14.

4 Per Willes, J., Upton v. Townend, 17 C. B. 71 (84 E. C. L. R.).

THE LAW OF CONTRACTS. 852

A railway company entered into a contract with A. to construct
a portion of their line. A. contracted with B., who resided in the
country, to erect a bridge on the line. B. had in his employment
C, who acted as his general servant, and as a surveyor, and had
the management of B.'s business in London, for which he received
an annual salary. B. entered into a contract with C, by which C.
agreed for 407. to erect a scaffold, which had become necessary in
the building of the bridge ; but it was agreed that B. should find
the requisite materials and lamps, and other lights. The scaffold
was erected upon the footway by C.'s workmen, a portion of it
improperly projected, and owing to that and the want of sufficient
light, D. fell over it at night, and was injured. After the accident,

B. caused other lights to be placed near the spot, to prevent a re-
currence of similar accidents. — Held, that an action was not main-
tainable by D. against B. for the injury thus occasioned.1

*Where the owner of a carriage hires horses of a stable-
keeper, who provides a driver, through whose negligence L ^° J
an injury is done, the driver must be considered as the servant of
the stable-keeper or job-master, against whom, consequently, the
remedy must be taken ; unless there be special circumstances show-
ing an assent, either express or implied, to the tortious act, of the
party hiring the horses, or showing that such party had control
over the servant, and was, in fact, dominus pro tempore.2

The maxim, Respondeat superior, does not, moreover, apply to
make the master responsible to a servant who sustains bodily hurt
whilst discharging the duties incidental to his employment, such

1 Knight v. Fox, 5 Exch. 721 (distinguishing Burgess v. Gray, 1 C. B.
578 (50 E. C. L. R.)) ; Steel v. South Eastern R. C, 16 C. B. 550 (81 E. C.
L.B.).

2 The following cases may be referred to otf this subject, which can only be
briefly noticed in the text : — M'Lauglin v. Pryor, 4 Scott N. R. 655 ; s. c, 1
Car. & M. 354; Quarman v. Burnett, 6 M. & W. 499; the judgments of
Abbott, C. J., and Littledale, J., in Laugher v. Pointer, 5 B. & C. 547 (11 E.

C. L. R.) ; Dalyell v. Tyrer, E.. B. & E. 898 (96 E. C. L. R.) ; Hart v. Crowley,
12 A. & E. 378 (40 E. C. L. R.) ; Taverner v. Little, 5 Bing. N. C. 678 (35 E.
C. L. R.) ; Croft v. Alison, 4 B. & Aid. 590 (6 E. C. L. R.) ; judgm., Seymour
v. Greenwood, 7 H. & N. 358 ; s. c, 6 Id. 359 ; Smith v. Lawrence, 2 Man. &
Ry. 1 ; Sammell v. Wright, 5 Esp. N. P. C. 263 ; Scott v. Scott, 2 Stark. N.
P. C. 438 (3 E. C. L. R.) ; Brady v. Giles, 1 M. & Rob. 494 ; per Patteson, J.,
8 A. & E. 839 (35 E. C. L. R.).

853 broom's legal maxims.

hurt having been caused by his own carelessness or negligence,1 or
through a defect in machinery,2 or a deficiency of hands,3 of which
the injured party must necessarily have been cognisant,4 or occa-
sioned by the negligence of a fellow-servant, provided the master
has been reasonably cautious in selecting as his associates persons
l~*8541 Possesse{^ °f ordinary *skill and care.5 If A. and B. are
fellow-servants of C, and by the unskilfulness of A., B. is
injured while they are jointly engaged in the same service, B. will
under ordinary circumstances have no claim against C. , for A. and
B., " have both engaged in a common service, the duties of which
impose a certain risk on each of them ; and, in case of negligence
on the part of the other, the party injured knows that the negli-
gence is that of his fellow-servant and not of his master. He knew
when he engaged in the service that he was exposed to the risk of
injury, not only from his own want of skill or care, but also from
the want of it on the part of his fellow-servant ; and he must be
supposed to have contracted on the terms, that as between himself
and his master he would run this risk."6 And the principle here

1 Dynen v. Leach, 26 L. J. Ex. 221 ; Senior v. Ward, 1 E. & E. 385 (102 E.
C. L. R.).

2 Dynen v. Leach, supra; Priestley v. Fowler, 3 M. & W. 1. See Winter-
bottom v. Wright, 10 M. & W. 109 ; Mellors v. Shaw, 1 B. & S. 437, '446.

3 Skipp v. Eastern Counties R. C, 9 Exch. 223 ; Seymour v. Maddox, 16 Q.
B. 326 (71 E. C. L. R,).

4 See Assop v. Yates, 2 H. & N. 768, which likewise illustrates the maxim
Injure non remota causa sed proxima spectator — ante, p. 216.

6 Hutchinson v. York, Newcastle and Berwick R. C, 5 Exch. 343; Wig-
more v. Jay, Id. 354; Tarrant v. Webb, 18 C. B. 797, 804 (86 E. C. L. R.) ;
Ormond v. Holland, E., B. & E. 102 (96 E. C. L. R.) ; Priestley v. Fowler, 3
M.&W.l, which has often been recognised (see, for instance, Waller v.
South Eastern R. C, 32 L. J. Ex. 205, 209 ; s. c, 2 H. & C. 112 • per Keating,
J., Searle v. Lindsay, 11 C. B! N. S. 439 (103 E. C. L. R.)) ; Southcote v.
Stanley, 1 H. & N. 247, 250.

6 Judgm., 5 Exch. 351 ; Tunney v. Midland R. C, L. R. 1 C. P. 291.

" The rule has been settled by a series of cases beginning with Priestley v.
Fowler (5 Exch. 343), and ending with Morgan v. Vale of Neath R. C. (L.
R. 1 Q. B. 149), that a servant when he engages to serve a master undertakes
as between himself and his master, to run all the ordinary risks of the service,
including the risk of negligence upon the part of a fellow-servant when he is
acting in the discharge of his fluty as servant of him who is the common master
of both :" per Erie, C. J., L. R. 1 C. P. 296. See also Murphy v. Smith, 19 C.
B. N. S. 361 (115 E. C. L. R.) ; Gallagher v. Piper, 16 C. B. N. S. 669 (111
E. C. L. R.).

THE LAW OF CONTRACTS. 854"^

stated may be applied where the work on which the one servant is
employed is very dissimilar from that on which the other is em-
ployed,1 or to the case where the servant of a sub-con-
tractor ^receives a bodily hurt, through the negligence of a L J
servant of the principal.2

In The Bartonshill Coal Company v. Reid,3 which came before
the House of Lords on appeal from the Court of Session in Scot-
land, the question for decision was whether, if in the working of a
mine one of the servants employed is killed or injured by the negli-
gence of another servant employed in some common work, that
other servant having been a competent workman and properly em-
ployed to discharge the duties intrusted to him, the common em-
ployers of both are responsible to the servant who is injured, or to
his representatives for the loss occasioned by the negligence of the
other ?

In answering the above question in the negative, Lord Cranworth
thus remarks upon the doctrine of our law respecting the liability
of a master to a stranger or to his own servant for bodily hurt sus-
tained through negligence : — " Where," he says, " an injury is occa-
sioned to any one by the negligence of another, if the person injured
seeks to charge with its consequences any person other than him
who actually caused the damage, it lies on the person injured to show
that the circumstances were such as to make some other person
responsible. In general, it is sufficient for this purpose to show
that the person whose neglect caused the injury was at the time
when it was occasioned acting not on his own account but in the
course of his employment as a servant in the business of a master,
•and that the damage resulted from the servant so employed not hav-
ing conducted his master's business *with due care. In r*e"fn
such a case, the maxim Respondeat superior prevails, and
the master is responsible."

" Thus, if a servant driving his master's carriage along the high-
way carelessly runs over a bystander, or if a gamekeeper employed
to kill game, carelessly fires at a hare, so as to shoot a person pass-

1 Morgan v. Vale of Neath R. C, L. R. 1 Q. B. 149, distinguished in War-
burton v. Great Western R. C, L. R. 2 Ex. 30, 33 ; Wilson v. Merry, L. R. 1
Sc. App. Cas. 326, 338 ; Feltham v. England, L. R. 2 Q. B. 33.

2 Wiggett o. Fox, 11 Exch. 832.

8 3 Macq. Sc. App. Cas. 266 ; Weems v. Mathieson, 4 Id. 215.

856 broom's legal maxims.

ing on the ground, or if a workman employed by a builder in build-
ing a house negligently throws a stone or brick from a scaifold and
so hurts a passer by; in all these cases (and instances might be
multiplied indefinitely)1 the person injured has a right to treat the
wrongful or careless act as the act of the master: Qui facit per
ulium facit per se.2 If the master himself had driven his carriage
improperly, or fired carelessly, or negligently thrown the stone or
brick, he would have been directly responsible, and the law does not
T*8571 Perm^ nim *° escaPe liability because the act complained
*of was not done with his own hand. He is considered as
bound to guarantee third persons against all hurt arising from the
carelessness of himself or of those acting under his orders in the
course of his business. Third persons cannot, or at all events may
not, know whether the particular injury complained of was the act
of the master or the act of his servant. A person sustaining in-
jury in any of the modes I have suggested, has a right to say, I
was no party to your carriage being driven along the road, to your
shooting near the public highway, or to your being engaged in
building a house. If you chose to do, or cause to be done, any of
these acts, it is to you, and not to your servants, I must look for

1 So in Barwick v. English Joint Stock Bank, L. R. 2 Ex. 265-6, the Court
observe, " The general rule is that the master is answerable for every such
wrong of the servant or agent as is committed in the course of the service
and for the master's benefit, though no express command or privity of the
master be proved. That principle is acted upon every day in running-down
cases. It has been applied also to direct trespass to goods, as in the case of
holding the owners of ships liable for the act of masters abroad improperly
selling the cargo (Ewbank v. Nutting, 7 C. B. 797 (62 E. C. L. R.)). It has
been held applicable to actions of false imprisonment in cases where officers
of railway companies intrusted with the execution of by-laws relating to
imprisonment, and intending to act in the course of their duty, improperly
imprison persons who are supposed to come within the terms of the by-laws
(Goff v. Great Northern R. C, 3 E. & E. 672 (107 E. C. L. R.)). It has been
acted upon where persons employed by the owners of boats, to navigate them
and to take fares, have committed an infringement of a ferry, or such like
wrong (Huzzey v. Field, 2 C, M. & R. 440). In all these cases it may be
said that the master has not authorized the act. It is true he has not author-
ized the particular act, but he has put the agent in his place to do that class
of acts, and he must be answerable fdr the manner in which the agent has
conducted himself in doing the business which it was the act of the master to
place him in."

2 Ante, p. 817.

THE LAW OF CONTRACTS. 857

redress, if mischief happens to me as their consequence. A large
portion of the ordinary acts of life are attended with some risk to
third persons, and no one has a right to involve others in risks
without their consent. This consideration is alone sufficient to
justify the wisdom of the rule which makes the person by whom or
by -whose orders these risks are incurred responsible to third per-
sons for any ill consequences resulting from want of due skill or
caution."1

"But," continues Lord Cranworth, " do the same principles
apply to the case of a workman injured by the want of care of a
fellow-workman engaged together in the same work ? I think not.
When the workman contracts to do work of any particular sort, he
knows, or ought to know, to what risk he is exposing himself; he
knows, if such be the nature of the risk, that want of care on the
part of a fellow-workman may be injurious or fatal to him, and that
against such want of care his *employer cannot by possi- r*oro-i
bility protect him. If such want of care should occur,
and evil is the result, he cannot say that he does not know whether
the master or the servant was to blame. He knows that the blame
was wholly that of the servant. He cannot say the master need
not have engaged in the work at all, for he was a party to its being
undertaken.

" Principle, therefore, seems to me opposed to the doctrine, that
the responsibility of a master for the ill consequences of his serv-
ant's carelessness is applicable to the demand made by a fellow-
workman in respect of evil resulting from the carelessness of a
fellow-workman when engaged in a common work."2

In the consideration of any case falling within the class above
adverted to, viz., where bodily hurt is caused to one servant by his

1 Ace, per Lord Chelmsford, C, Bartonshill Coal Co. v. McGuire, 3 Macq.
Sc. App. Cas. 306.

2 3 Macq. H. L. Cas. 282-4. (The learned lord whose words are above
cited then proceeds to comment seriatim on the following cases : Priestley v.
Fowler, 3 M. & W. 1 ; Hutchinson v. York, Newcastle, and Berwick R. C, 5
Exch. 349 ; Wigmore v. Jay, Id. 354 ; Skipp v. Eastern Counties R. C, 9 Exch.
223; Couch v. Steel, 3 E. & B. 402 (77 E. C. L. R.J ;— also on the Scotch
appeal cases — Paterson v. Wallace, 1 Macq. Sc. App. Cas. 748 ; Bryden v.
Stewart, 2 Id. 30). Bartonshill Coal Co. v. McGuire, 3 Macq. Sc. App. Cas.
300 ; Hall v. Johnson, 3 H. & C. 589 ; Senior v. Ward, 1 E. & E. 385, 391
(102 E. C. L. R.) ; Riley v. Baxendale, 6 H. & N. 445.

858 broom's legal maxims.

fellow-servant, it is necessary, as remarked by Lord Chelmsford,
C, in The Bartonshill Coal Company v. McGuire,1 to ascertain
whether the servants were fellow-laborers in the same work when
the catastrophe occurred, " because although a servant may be
taken to have engaged to encounter all risks which are incident to
the service which he undertakes, yet he cannot be expected to anti-
cipate those which may happen to him on occasions foreign to his
employment. Where servants, therefore, are engaged in different
P^rq-i departments of duty, *an injury committed by one servant
upon the other by carelessness or negligence in the course
of his peculiar work, is not within the exception, and the master's
liability attaches in that case in the same manner as if the injured
servant stood in no such relation to him. There may be some
nicety and difficulty in particular cases in deciding whether a com-
mon employment exists, but, in general, by keeping in view what
the servant must have known or expected to have been involved in
the service which he undertakes, a satisfactory conclusion may be
arrived at."2

The doctrine asserted by the House of Lords in The Bartonshill
Coal Company v. Reid has been frequently applied, ex. gr.,
in Clarke v. Holmes,3 in which case Cockburn, C. J., observes, that,
" where a servant is employed on machinery, from the use of which
danger may arise", it is the duty of the master to take due care and
to use all reasonable means to guard against and prevent any
defects from which increased and unnecessary danger may occur.
No doubt when a servant enters on an employment, from its nature
necessarily hazardous, he accepts the service subject to the
risks incidental to it; or if he thinks proper to accept an employ-
ment on machinery defective from its construction, or from the
want of proper repair, and with knowledge of the facts enters on
the service, the master cannot be held liable for injury to the ser-
vant within the scope of the danger which both the contracting
parties contemplated as incidental to the employment." But the

1 3 Macq. Sc. App. Cas. 307-8.

2 Waller v. South Eastern R. C, 32 L. J. Ex. 205, 209 ; s. c, 2 II. & C. 102 ;
Abraham v. Reynolds, 5 II. & N. 143 ; Vose v. Lancashire and Yorkshire R.

C, 2 H. & N. 728.

6 Id. 349.

THE LAW OF CONTRACTS. 8(50

danger contemplated *on entering into the contract must r*o^n-i
not be aggravated by any omission on the part of the
master to keep the machinery in the condition in which, from the
terms of the contract or the nature of the employment, the servant
had a right to expect thaf it would be kept.1 "A master," as
remarked on another occasion,2 " is by law bound to provide proper
and efficient machinery and reasonably competent workmen," but
is not responsible for damage caused to his servant through a defect
in such machinery due to the negligence of a fellow-servant.3

The rule laid down by Lord Cranworth in The Bartonshill Coal
Company v. Reid,4 also holds where the individual injured was at
the time of sustaining the injury voluntarily assisting the defend-
ant's servants in their work.5 But the cases above cited do not, of
course, apply to exonerate a master who has been guilty of per-
sonal negligence from liability to his servant in respect of damage
thence resulting.6

This part of our subject may accordingly be summed up in the
words of a learned lord,7 who says that the master is not, and can-
not be, liable to his servant unless there be negligence on the part
of the master in that which he, the master, has contracted or
undertaken with his servant to do. The master has not contracted
or ^undertaken to execute in person the work connected r*o^i-i
with his business. But the master, in the event of his not
personally superintending and directing the work, is to select proper
and competent persons to do so, and to furnish them with adequate
materials and resources for the work.

In Blakemore v. The Bristol and Exeter Railway Company,8

1 Per Cockburn, C. J., 7 H. & N. 944 ; Weems v. Mathieson, 4 Macq. Sc.
App. Cas. 215.

1 Per Keating, J., 11 0. B. N. S. 439 (103 E. C. L. R.).
8 Searle v. Lindsay, 11 C. B. N. S. 429 (103 E. C. L. R.).

* Ante, p. 855.

6 Degg v. Midland R. C, 1 II. & N. 773; affirmed in Potter v. Falkner, 1 B.
& S. 800, 806 (101 E. C. L. R.).

• Roberts v. Smith, 2 II. & N. 213 ; Ormond v. Holland, E., B. &E. 102 (96
E. C. L. R.) ; Tarrant v. Webb, 18 C. B. 797, 804 (86 E. C. L. R.) ; Mellorsv.
Shaw, 1 B. & S. 437 (101 E. C. L. R.).

7 Lord Cairns, C, Wilson v. Merry, L. R. 1 Sc. App. Cas. 332.

8 8 E. & B. 1035 (92 E. C. L. R.), (followed in MacCarthy v. Young, 6 II.
& N. 329, 336), in connection with which see Langridgo v. Levy, 2 M. & W.
519 ; s. c, 4 Id. 337; Longmeid v. Ilolliday, 6 Exch. 761.

861 broom's legal maxims.

the plaintiff sued under Lord Campbell's Act, as administratrix of
her husband, whose death had been caused by the defective condi-
tion of a chain used in the raising and removing of goods from the
trucks of the defendants' company, on arriving at the terminus of
their transit. The onus of removing t^iese goods lay, by virtue of
the conditions under which they were carried, on the consignee,
and the peculiar feature of the case was this — that the deceased,
though not in the employ of the consignee, was asked by one of
the consignee's servants to assist in the removal of the goods, which
had to be raised by a crane from the trucks of the company, with a
view to their being deposited in the carts and wagons of the con-
signee. During this process the chain gave way, and the deceased
being struck by the crane sustained a mortal hurt. Upon these
facts the action at suit of the administratrix of the deceased was
held not to be sustainable, and the case was distinguished from
Langridge v. Levy,1 on the ground of absence of fraud, and because
the duty of providing a safe engine for the transfer and removal of
goods could under the circumstances only arise from the contract
r*8fi91 *n *aw between tne company and *consignee, to which con-
tract the deceased was in no way privy.
It has been held that the owner of realty is not responsible for
a nuisance committed thereon by the occupying tenant, unless, in-
deed, he has been a party to the creation of the nuisance after the
demise, or has demised land with the nuisance existing.2 The
question moreover was on a recent occasion raised, but not decided,
''whether, in any case, the owner of real property, such as land or
houses, may be responsible for nuisances occasioned by the mode
in which his property is used by others, not standing in the rela-
tion of servants to him, or part of his family;" and the Court ob-
served that " it may be that in some cases he is so responsible. But
then his liability must be founded on the principle that he has not
taken due care to prevent the doing of acts which it was his duty
to prevent, whether done by his servants or others. If, for in-
stance, a person occupying a house or a field should permit another
to carry on there a noxious trade, so as to be a nuisance to his
neighbors, it may be that he would be responsible, though the acts

X2M. &W. 519 ;s. c, 4 Id. 337.

2 Rich v. Basterfield, 4 C. B. 783 (56 E. C. L. R.) ; cited in Brown v. Bus-
sell, L. R. 3 Q. B. 261.

THE LAW OF CONTRACTS. 862

complained of were neither his acts nor the acts of his servants ; he
would have violated the rule of law Sic utere tuo ut alienum non
Icedas."1 And to the foregoing observations the Court add that
"in none of the more modern cases has the alleged distinction be-
tween *real and personal property," in regard to the civil
liability of its owner, "been admitted."2 L J

With respect to public functionaries, having authority, such as
judges civil or ecclesiastical, or magistrates, these parties are, in
general, protected from the consequences of an illegal and wrongful
act done by an officer or other person employed in an inferior min-
isterial capacity, provided that the principal himself acted in the dis-
charge of his duty, and within the scope of his jurisdiction, and of
the authority delegated to him. The principle, however, on which
a private person or a company is liable for damage caused by the
neglect of servants has been held applicable to a corporation which
has been intrusted by statute to perform certain works, and to
receive tolls for the use of such works, although those tolls, unlike
the tolls received by the private person or the company, are not
applied to the use of the corporation, but are devoted to the mainte-
nance of the works, and in case of any surplus existing, to a pro-
portionate diminution of the tolls.3

"The law requires that the execution of public works by a public
body shall be conducted with a reasonable degree of care and skill;
and if they, or those who are employed by them, are guilty of neg-
ligence in the performance of the works intrusted to them, they are
responsible to the party injured."4

1 Judgm., Reedie v. London and North Western R. C, 4 Exch. 256 (citing
Rich v. Basterfield, supra, and Bush v. Steinman, 1 B. & P. 404 ) ; Gandy v.
Jubber, 5 B. & S. 78 (117 E. C. L. R.), explained in Bartlett v. Baker, 3 H.
& C. 160; Saxby v. Manchester, Sheffield, &c, R. C, L. R. 4 C. P. 198; Gay-
ford v. Nicholls, 9 Exch. 702; Pickard v. Smith, 10 C. B. N. S. 470, 479 (100
E. C. L. R.) ; Bishop v. Trustees of Bedford Charity, 1 E. & E. 697, 714 (100
E. C. L. R.).

2 Citing Milligan v. Wedge, 12 A. & E. 737 (40 E. C. L. R.), and recognis-
ing Allen v. Hayward, 7 Q. B. 960 (53 E. C. L. R.).

8 Mersey Docks Trustees v. Gibbs ; Same v. Penhallow, L. R. 1 II. L. 93,
where the cases are reviewed.

4 Clothier v. Webster, 12 C. B. N. S. 790, 796 (104 E. C. L. R.). See
Brownlow v. Metropolitan Board of Works, 16 C. B. N. S. 546 (111 E. C. L.
R.) ; Gibson v. Mayor, &c, of Preston, L. R. 5 Q. B. 518 ; Parsons v. St. Mathew,
Bethnal Green, L. R. 3 C. P. 56 ; Hyams v. Webster, L. R. 4 Q. B. 138.

43

863 broom's legal maxims.

r*cr 41 ^n an ordinary case? moreover, where such commissioners
*in execution of their office enter into a contract for the
performance of work, it seems clear that the person who contracts
to do the work " is not to be considered as a servant, but a person
carrying on an independent business, such as the commissioners
were fully justified in employing to perform works which they could
not execute for themselves, and who was known to all the world as
performing them."1 And the person thus employed may himself
by virtue of an express statutory clause, be protected or absolved
from liability to a suit whilst acting under the direction of the com-
missioners.2 And a shipowner is not responsible at common law3
for injuries occasioned by the unskilful navigation of his vessel
whilst under the control of a pilot whom the owner was compelled
to take on board, and in whose selection he had no voice.4

It is clear, also, that a servant of the Crown, contracting in his
official capacity, is not personally liable on the contracts so entered
into : in such cases, therefore, the rule of Respondeat superior does
not apply, such exceptions to it resulting from motives of public
policy ; for no prudent person would accept a public situation at
the hazard of exposing himself to a multiplicity of suits by parties
thinking themselves aggrieved.5

r*8«^l lastly, the maxim Respondeat superior, does not apply
in the case of the sovereign ; for, as we have before seen,
the sovereign is not liable for personal negligence;6 and, therefore,
the principle, Quifacitper alium facit per se — which is applied to
render the master answerable for the negligence of his servant, be-
cause this has arisen from his own negligence or imprudence in
selecting or retaining a careless servant — is not applicable to the
sovereign, in whom negligence or misconduct cannot be implied, and

1 Judgm., Allen v. Hayward, 7 Q. B. 975 (53 E. C. L. R.) ; citing Quarman
p. Burnett, 6 M. & W. 499; Milligan v. Wedge, 12 A. & E. 737 (40 E. C. L.
II.) ; and Rapson v. Cubitt, 9 M. & W. 710.

2 Ward v. Lee, 7 E. & B. 426 ; Newton p. Ellis, 5 E. & B. 115.

3 See also stat. 17 & 18 Vict. c. 104, s. 388 ; Gen. Steam Nav. Co. p. British
and Colonial Steam Nav. Co., L. R. 4 Ex. 238 ; The Lion, L. R. 2 P. C. 525.

* The Halley, L. R. 2 P. C. 193, 201, 202.

See The Thetis, L. R. 2 A. & E. 365 (29 E. C. L. R.).

5 Per Pallas, C. J., Gidley v. Lord Palmerston, 3 B. & B. 286, 287 ; per
Ashhurst, J., Macbeath p. Haldimand, 1 T. R. 181, 182.

6 Ante, p. 52.

THE LAW OF CONTRACTS. 865

for which, if it occurs in fact, the law affords no remedy. Accord-
ingly, in a modern case, already alluded to, it was observed by Lord
Lyndhurst, that instances have occurred of damage occasioned bv
the negligent management of ships of war, in which it has been
held, that, where an act is done by one of the crew without the par-
ticipation of the commander, the latter is not responsible ; but that,
if the principle contended for in the case then before the Court
were correct, the negligence of a seaman in the service of the Crown
would, in such a case, render the Crown liable to make good the
damage ; a proposition which certainly could not be maintained.1

1 Viscount Canterbury v. A.-G., 1 Phill. 306 ; Feather v. Reg., 6 B. & S.
294 et seq.; Tobin v. Reg., 16 C. B. N. S. 310 (111 E. C. L. R.) ; Reg. v.
Prince, L. R. 1 C. C. 150. See Hodgkinson v. Fernie, 2 C. B. N. S. 415 (89
E. C. L. R.).

It seems almost superfluous to observe, that the above remarks upon the
maxim Respondeat superior, are to some considerable extent applicable in
criminal law. On the one hand, a party employing an innocent agent is liable
for an offence committed through this medium ; on the other, if the agent had
a guilty knowledge he will be responsible as well as his employer. See Bac.
Max., reg. 16. Though " it is a rule of criminal law that a person cannot be
criminally liable for acting as the agent of another without any knowledge
4hat he was acting wrongly : per Crompton, J., Hearne v. Garton, 2 E. & E.
76 (105 E. C. L. R.).

In Coleman v. Riches, 16 C. B. 118 (81 E. C. L. R.), Jervis, C. J., specifies
various cases in which criminal responsibility will be entailed on a master
for the acts of his servants in the ordinary course of their employment.

" There are," moreover, " many acts of a servant for which, though crimi-
nal, the master is civilly responsible by action:" per Jervis, C. J.. Dunkley
v. Farris, 11 C. B. 458 (73 E. C. L. R.) ; Palmer v. Evans, 2 C.B. N. S. 151 (89
E. C. L. R.) ; Roberts, app., Preston, resp., 9 C. B.N. S. 208 (99 E. C. L. R.).

Upon the above subject Lord Wensleydale thus observes : — " I take it to be
a clear proposition of law, that if a man employs an agent for a perfectly
legal purpose, 'and that agent does an illegal act, that act does not affect the
principal unless a great deal more is shown : unless it is shown that the prin-
cipal directed the agent so to act, or really meant he should so act, or after-
wards ratified the illegal act, or that he appointed one to be his general agent
to do both legal and illegal acts :" Cooper v. Slade, 6 II. L. Cas. 793 ; and see
Parkes v. Prescott, L. R. 4 Ex. 169.

Also, in Wilson v. Rankin, 6 B. & S. 216, the Court of Queen's Bench thus
remark : — " It is a well-established distinction, that while a man is civilly
responsible for the acts of his agent when acting within the established limits
of his authority, he will not be criminally responsible for such acts unless
express authority be shown, or the authority is necessarily to be implied from
the nature of the employment, as in the case of a bookseller held liable for

866 broom's legal maxims.

l~*8Pfil *^" su^Ject sustaining a legal wrong at the hands of a
minister of the crown, is not, however, without a remedy,
for " as the sovereign cannot authorize wrong to be done, the
authority of the Crown would afford no defence to an action brought
for an illegal act committed by an officer of the crown."1

Lastly, assuming that an act which would primd facie be a tres-
pass, is done by order of the government, the party who commits
the trespass is clearly exempted from liability, and whether the in-
jury " is an act of state without remedy, except by appeal to the
justice of the state which inflicts it, or by application of the indi-
vidual suffering to the government of his country to insist upon
r*8f 71 *comPensati°n from the government of this — in either view,
the wrong is no longer actionable."2

Omnis Ratihabitio retrotrahitur et Manbato priori

iEQUIPARATUR.

(Co. Litt. 207 a.)

A subsequent ratification has a retrospective effect, and is equivalent to a prior

command. •

It is a rule of very wide application, and one which we find re-
peatedly laid down in the Roman law, that ratihabitio mandato com-
paratur,2, where ratihabitio is defined to be " the act of assenting to
what has been done by another in my name."4 "No maxim," re-
marks Mr. Justice Story, "is better settled in reason and law than
the maxim, Omnis ratihabitio retrotrahitur et mandato priori
a?quiparatur,5 at all events, where it does not prejudice the rights

the sale by his shopman of a libellous publication. Under ordinary circum-
stances the authority of the agent is limited to that which is lawful. If in
seeking to carry out the purpose of his employment he oversteps the law, he
outruns his authority, and his principal will not be bound by what he does."
See also Reg. v. Stephens, L. R. 1 Q. B. 702.

1 Judgm., Feather v. Reg., 6 B. & S. 296 (118 E. C. L. R.).

2 Vide per Parke, B., Buron v. Denman, 2 Exch. 189 ; explained in Feather
v. Reg., 6 B. & S. 296 (118 E. C. L. R.).

3 D. 46. 3. 12, H; D- 50. 17. 60 ; D. 3. 5. 6, \ 9 ; D. 43. 16. 1, I 14.

4 Brisson. ad verb. " Ratihabitio.'1'1

6 Co. Litt. 207 a ; 258 a ; Wing. Max. 485. Many instances of the applica-
tion of this maxim are given in 18 Vin. Abr., p. 156, tit. "Ratihabitio." See

THE LAW OF CONTRACTS. 867

of strangers. And the civil law does not, it is believed, differ from
the common law on this subject."1

It is, then, true as a general rule, of which instances have oc-
curred in the preceding pages, and with respect to *which r*opo-i
we shall merely make a few additional observations in this
place,2 that a subsequent ratification and adoption of what has been
already done has a retrospective effect, and is equivalent to a pre-
vious command. For instance, if the goods of A. are wrongfully-
taken and sold, the owner may either bring trover against the
wrong-doer, or may elect to consider him as his agent, may adopt
the sale, and maintain a*i action for the price.3 So, if a principal
ratifies the purchase by his agent of a chattel which the vendor had
no right to sell, the principal is guilty of a conversion, although at
the time of the ratification he had no knowledge that the sale was
unlawful.* So, if the agent of a vendor misrepresent the subject-
matter of the sale to the vendee, it will be proper for the jury to
infer from the vendor's subsequent conduct, — as, ex. gr., from his
not having repudiated a warranty, when apprised of it, — that he
was privy to, or impliedly assented to, the misrepresentation of the

Ward v. Broomhead, 7 Exch. 726 ; Sievewright v. Archibald, 17 Q. B. 103 (79
E. C. L. R.) ; cited per Erie, C. J., Heyworth v. Knight, 17 C. B. N. S. 308
(112 E. C. L. R.). (See also Parton v. Crofts, 16 C. B. N. S. 11 (111 E. C.
L. R.). Doe d. Gutteridge v. Sowerby, 7 C. B. N. S. 599, 626 (97 E. C. L.
B.)).

1 Per Story, J., delivering judgment, Fleckner v. United States Bank, 8
Wheaton (U. S.) R. 363. As to a ratification of a promise by an infant under
stat. 9 Geo. 4, c. 14, s. 5 ; see Mawson v. Blane, 10 Exch. 206 ; Rowe v. Hop-
wood, L. R. 4 Q. B. 1.

2 The operation of the maxim as to ratiJiabitio with reference to the law of
principal and agent, is considered at length in Story on Agency, 7th ed., pp.
283 et seq.

See Mitcheson v. Nicol, 7 Exch. 929 ; Simpson v. Egginton, 10 Exch. 845
(which forcibly illustrates the maxim, supra, and in connection with which,
see per Maule, J., Tassell v. Cooper, 9 C. B. 532 (67 E. C. L. R.) ; Kemp v.
Balls, Id. 607) ; Earl of Mountcashell v. Barber, 14 C. B. 53 (78 E. C. L. R.) ;
Maclae v. Sutherland, 3 E. & B. 1 (77 E. C. L. R.) ; Fagan v. Harrison, 8 C.
B. 388 (65 E. C. L. R.) ; Fitzmaurice v. Bayley, 9 H. L. Cas. 78.

5 Ante, p. 296 ; Smith v. Hodson, 4 T. R. 211 ; Rodgers v. Maw, 15 M. & W.
448 ; England v. Marsden, L. R. 1 C. P. 529. See Saunderson v. Griffiths, 5
B. & C. 909 (11 E. C. L. R.) ; Underhill v. Wilson, 6 Bing. 697 (19 E. C. L.
R.) ; Kynaston v. Crouch, 14 M. & W. 266.

* Hilbery v. Hatton, 2 H. & C. 822.

868 BROOM S LEGAL MAXIMS.

agent.1 Again, the title of an administrator relates back to the
time of the death of the intestate, so as to entitle the personal rep-
resentative to sue for the price of goods sold by one who intended
l~*Sf 91 to act as aSent f°r tne person, whoever he might *happen
to be, who legally represented the intestate's estate, — the
sale having been ratified by the plaintiff after he became adminis-
trator ; for, when one means or professes to act as agent for
another, a subsequent ratification by that other is equivalent to a
prior command ; and it is no objection, that the intended principal
was unknown at the time to the person who intended to be the
agent.2 H., the managing owner of a ship, directed an insurance-
broker to effect an insurance on the entire ship, upon an adventure
in which all the part-owners were jointly interested ; the amount of
the entire premium was carried to the ship's account in H.'s books,
which were open to the inspection of all the part-owners, who saw
the account, and never objected to it. It did not, however, appear
that the insurance-broker knew the names of all the part-owners,
or whether or not they had given authority to H. to insure. It was
observed that the maxim as to ratihabitio well applied to such a
case ; and it was held, that the jury were warranted in inferring
a joint authority to insure, and that the part-owners were jointly
liable for the premium to the insurance-broker, although he had
debited H. alone, and divided with him the profits of commission,
upon effecting the insurance.3 It is, indeed, true that "no one can
sue upon a contract, unless it has been made by him, or has been
made by an agent professing to act for him, and whose act has been
ratified by him;" and although persons who could not be named or
T*S701 ascertained *at the time when a policy of insurance was
effected, are allowed to come in and take the benefit of the
insurance, yet they must be persons who were contemplated when
the policy was made.4

Again — " if an arbitrator omits to enlarge the time limited for

1 Wright v. Crookes, 1 Scott N. K. 685.

a Foster v. Bates, 12 M. & W. 226 ; Hull v. Pickersgill, 1B.&B. 282 (5 E.
C. L. R.); cited per Parke, B., Heslop v. Baker, 8 Exch. 417. See also
Tharpe v. Stallwood, 6 Scott N. R. 715; Campanari v. Woodburn, 15 C. B.
400 (80 E. C. L. R.) ; Crosthwaite v. Gardner, 18 Q. B. 640 (83 E. C. L. R.).

3 Robinson v. Gleadow, 2 Bing. N. C. 156, 161 (29 E. C. L. R.). See
Prince v. Clark, 1 B. & C. 186 (8 E. C. L. R.) ; Clarke v. Perrier, 2 Freem. 48.

* Watson v. Swann, 11 C. B. N. S. 756, 769 (103 E. C. L. R.).

THE LAW OF CONTRACTS. 870

making his award, but continues to act as if he had enlarged it,
even to making his award, although in fact he has no authority, yet
he is a person animo agendi, and if the parties afterwards choose
to ratify his act by agreeing that the time shall be enlarged or other-
wise, though the act was not enforceable, yet, if ratified, it would
be just as binding as if done with original authority."1

Without unnecessarily multiplying instances to the same effect as
the preceding, it may be sufficient to state the general proposition,
that the subsequent assent by the principal to his agent's conduct
not only exonerates the latter from the consequences of a depar-
ture from his orders, but likewise renders the principal liable on
contracts made in violation of such orders, or even where there has
been no previous retainer or employment ; and this assent may be in-
ferred from the conduct of the principal.2 The subsequent sanction
is considered the same thing, in effect, as assent at the time ; the
difference being, that, where the authority is given beforehand, the
party *giving it must trust to his agent ; if it be given sub- r*G7i i
sequently to the contract, the party knows that all has
been done according to his wishes.3 " That an act done for another
by a person not assuming to act for himself, but for such other
person, though without any precedent authority whatever, becomes
the act of the principal if ^subsequently ratified by him, is the
known and well-established rule of law. In that case, the princi-
pal is bound by the act, whether it be for his detriment or advan-
tage, and whether it be founded on a tort or a contract, to the same
extent as by, and with all the consequences which follow from, the
same act done by his previous authority."4

It is, however, a doctrine of equity, applicable also, it would

1 Per Blackburn, J., Lord v. Lee, L. R. 3 Q. B. 404, 408.

2 Smith Merc. Law, 5th ed., 124, 138, and cases there cited; judgm.?
Wilson v. Tumman, 6 M. & Gr. 242 (46 E. C. L. R.). See Hasleham v.
Young, 5 Q. B. 833 (48 E. C. L. R.). The maxim is applied to a notice to
quit, given by the agent and subsequently recognised by the lessors, who
were joint tenants: per Abbott, C. J., Goodtitle v. Woodward, 3 B. & Aid.
686, 692 (5 E. C. L. R.). See Wright v. Cuthell, 5 East 491 ; as to a policy
of insurance, per Buller, J., Wolff v. Horncastle, 1 B. & P. 323; arg., 13 East
280 ; as to a past consideration, ante, p. 756.

3 Per Best, C. J., Maclean v. Dunn, 4 Bing. 727 (13 E. C. L. R.).

4 Wilson v. Tumman, 6 M. & Gr. 242 (46 E. C. L. R.) ; Ancona v. Marks, 7
H. & N. 686, 695-6.

871 broom's legal maxims.

seem, in a court of law, that there can be no ratification of an in-
valid transaction where the person performing the supposed act of
ratification has been kept by the conduct of the party in whose
favor it is made unaware of its invalidity, and where he has not at
the time of the supposed ratification the means of forming an inde-
pendent judgment.1

"The doctrine Omnis ratihabitio retrotrahitur, et mandato cequi-
pratur is one," remark the Court of Exchequer in a modern case,2
"intelligible in principle, and easy in its application, when applied
to cases of contract. If A., unauthorized by me, makes a contract
on my behalf with B., which I afterwards recognise and adopt,
there is no difficulty in dealing with it, as having been originally
*made by my authority. B. entered into the contract on
the understanding that he was dealing with me, and when
I afterwards agreed to admit that such was the case, B. is precisely
in the condition in which he meant to be ; or if he did not believe
A. to be acting for me, his condition is not altered by my adoption
of the agency, for he may sue A. as principal at his option, and has
the same equities against me, if I sue, which he would have had
against A." The ratification of a contract must, however, be made
by an existing person, on whose behalf the contract might have
been made at the time.3

" In cases of tort," as further observed by the Court in a
case just now cited,4 "there is more difficulty. If A. professing to
act by my authority, does that which prima facie amounts to a tres-
pass, and I afterwards assent to and adopt his act, there he is
treated as having from the beginning acted by my authority, and I
become a trespasser unless I can justify the act, which is to be
deemed as having been done by my previous sanction, i So far
there is no difficulty in applying the doctrine of ratification even in
cases of tort. The party ratifying becomes, as it were, a trespasser
by estoppel ; he cannot complain that he is deemed to have author-
ized that which he admits himself to have authorized.

1 Savery v. King, 5 H. L. Cas. 627, 664.

2 Bird v. Brown, 4 Exch. 798, 799 ; per Lord Wensleydale, Ridgway v%
Wharton, 6 H. L. Cas. 296.

s Kelner v. Baxter, L. R. 2 C. P. 174, 185-6 ; with which ace. Scott v. Lord
Ebury, Id. 255, 264, 267.
4 Bird v. Brown, supra, n. 2.

THE LAW OF CONTRACTS. 872-

" But the authorities go much further, and show that, in some
cases, where an act, which if unauthorized would amount to a tres-
pass, has been done in the name and on behalf of another, but with-
out previous authority, the subsequent ratification may enable the
party, on whose *behalf the act was done to take advan- r*G7Q-|
tage of it, and to treat it as having been done by his direc-
tion. But this doctrine must be taken with the qualification that
the act of ratification must take place at a time, and under circum-
stances when the ratifying party might himself have lawfully done
the act which he ratifies."1

In accordance with the foregoing remarks it has been held, that
a railway company may be liable for an assault ratified by them, if
the act complained of could be said to have been done for the use
or benefit of the company, ex. gr., the assault and imprisonment of
a party liable to the company for not having paid his fare, is an act
of a servant of the company which manifestly might have been for
their benefit ; it might therefore be ratified by them.2

By the common law, says Sir E. Coke,3 "he that receiveth a
trespasser, and agreeth to a trespass after it be done, is no tres-
passer, unless the trespass tvas done to his use, or for Ms benefit,
and then his agreement subsequent amounteth to a commandment ;
for, in that case, Omnis ratihabitio retrotrahitur et mandato cequi-
paratur." The question of liability by ratification depends ac-
cordingly upon this consideration — whether the act was originally
intended to be done to the use or for the benefit of the party who
is afterwards said to have ratified it.4 A person, therefore, who
knowingly receives *from another a chattel which the latter r*o>jA-]
has wrongfully seized, and afterwards on demand refuses
to give it back to the owner, does not thereby become a joint tres-
passer, unless the chattel was seized for his use.5 In a well known

1 Ace. per Bovill, C. J., Ainsworth v. Creeke, L. R. 4 C. P. 486; cited in
Medwin v. Streeter, Id. 496.

a Judgm., Eastern Counties R. C. v. Broom, 6 Exch. 326, 327 ; Roe v. Bir-
kenhead, Lancashire and Cheshire R. C, 7 Exch. 36.

3 4 Inst. 317 ; cited per Parke, J., 4 B. & Ad. 616 ; per Willes, J., Stacey,
app., Whitehurst, resp., 18 C. B. N. S. 356 (114 E. C. L. R.) ; arg., Nicoll v.
Glennie, 1 M. & S. 590 ; 6 Scott N. R. 897. See another application of the
maxim to a tort, per Lord Ellenborough, C. J., 9 East 281.

4 Judgm., 6 Exch. 327 ; James v. Isaacs, 12 C. B. 791 (74 E. C. L. R.).
6 Wilson v. Barker, 4 B. & Ad. 614 (24 E. C. L. R.).

874 broom's legal maxims.

case, it was held, that, where goods are wrongfully seized by the
sheriff under a valid writ of fi. fa., the execution-creditor does not,
by a subsequent ratification only, become liable in trespass for the
original seizure ; and the rule stated at page 871 was laid down by
Tindal, C. J., delivering the judgment of the Court.1 Trespass
does not lie against an attorney who improperly caused an attach-
ment to be issued out of Chancery under which the plaintiff was
arrested and detained until discharged by an order of the Lords
Justices ; nor would trespass under such circumstances lie as against
the attorney's client who, though not ordering the plaintiff's arrest,
knew of it and did not interfere. Where an execution is set aside
on the ground of an erroneous judgment, the plaintiff or his attor-
ney is no more liable than is the sheriff who executes the process.2

A landlord authorized bailiffs to distrain for rent due to him
from the tenant of a farm, directing them not to take anything
except on the demised premises. The bailiffs distrained cattle of
another person (supposing them to be the tenant's) beyond the
boundary of the farm : the cattle were sold, and the landlord re-
ceived the proceeds. It was held, that the landlord was not liable
l~*87r1 *n trover f°r tne vame °f tne cattle, unless it were found
*by the jury that he ratified the act of the bailiffs with
knowledge of the irregularity, or that he chose, without inquiry,
to take the risk upon himself, and to adopt the whole of their acts.3

Generally speaking, the subsequent ratification of an act done
as agent, is equal to a prior authority. This proposition, however,
is not universally true. In the case of a tenant from year to year,
who has by law a right to a half-year's notice to quit, if such notice
be given by an agent without the authority of the landlord, the
tenant is not bound by it.4 Where, moreover, a person commits a
tortious act, — as, if he seize goods, claiming property in them hiin-

1 Wilson v. Tumman, 6 M. & Gr. 242 (46 E. C. L. R.) ; followed in Woollen
v. Wright, 1 H. & C. 554; per Bramwell, B., Withers v. Parker, 4 H. & N.
534; Walker v. Hunter, 2 C. B. 324 (52 E. C. L. R.). See Trent v. Hunt, 9
Exch. 14.

2 Williams v. Smith, 14 C. B. N. S. 596 (108 E. C. L. R.).

3 Lewis v. Read, 13 M. & W. 834 ; Freeman v. Rosher, 13 Q. B. 780, 789
(66 E. C. L. R.) ; per Blackburn, J., Lord v. Lee, L. R. 3 Q. B. 408 ; Haseler
v. Lemoyne, 5 C. B. N. S. 530 (94 E. C. L. R.) ; Collett v. Foster, 2 H. & N,
356, 361.

* Judgm., 2 Exch. 188.

THE LAW OF CONTRACTS. 875

self, — the subsequent agreement of another party will not amount
to a ratification of his authority at the time.1 So, if two out of
three executors contract with another person on their own account,
and as agents for the third executor, such last-mentioned party may
adopt the contract, and all three may sue upon it, although it was
made with the two only ; but if the contract was with the two on
their own account only, they could not ; for, to such a case accord-
ing to the distinction above mentioned, the maxim which we have
been illustrating does not apply.2

Such being the law as between private individuals, the question
arose in Buron v. Denman,3 whether it applies likewise where the
Crown ratifies the act of one its ^officers, and the majority
of the Judges, presiding at the trial at bar in that case, *- -I
held clearly that it does so ; Parke, B., however, suggesting a dis-
tinction between the effect of a ratification by the sovereign, and
that by a private person ; for if an individual ratifies an act done
on his behalf, the nature of the act remains unchanged, it is still a
mere trespass, and the party injured has his option to sue either
the actual wrong-doer, or him who ratifies the tort : whereas, " if
the Crown ratifies an act, the character of the act becomes altered ;
for the ratification does not give the party injured the double
option of bringing his action against the agent who committed the
trespass, or the principal who ratified it ; but a remedy against the
Crown only."4

To one who has glanced, however cursorily, over the preceding
pages, it must be evident that the three maxims latterly considered,
viz., Qui facit per alium facit per se — Respondeat superior — and
Omnis ratihabitio retrotrahitur et mandato priori cequiparatur — will
often simultaneously claim attention from the practitioner, where a
state of facts involving the relation of principal and agent is placed
before him. It may well therefore be imagined, that the effort

1 Judgm., 6 Scott N. R. 904.

2 Heath v. Chilton, 12 M. & W. 632, 638. As to contracts by executors
and administrators, see, further, Broom's Com., 4th ed., 611, et seq.

3 2 Exch. 167 j recognised in Sec. of State of India v. Sahaba, 13 Moo. P.
C. C. 86.

4 Ante, pp. 52, 866. See Reg. v. Dring, Dearsl. & B. 329, as to the effect
of an adoption by the husband of his wife's receipt of stolen goods.

876 broom's legal maxims.

■would be vain to separate from each other and systematically
classify reported cases, illustrating the maxims specified. Little
has consequently been here attempted in dealing with these ele-
mentary principles beyond offering to the reader a selection of
decisions, arranged under the respective heads to which they
r*8771 seeme(i specially appropriate, fitted for impressing on *his
mind the meaning and leading qualifications of the legal
principles above commented on.

Nihil tam conveniens est naturali JEquitati quam unum-
quodque dissolvi eo llgamine quo ligatum est.

(2 Inst. 360.)

Nothing is so consonant to natural equity as that every contract should he dis-
solved by the same means which rendered it binding.

Every contract or agreement ought to be dissolved by matter of
as high a nature as that which first made it obligatory.1 And again,
" it would be inconvenient that matters in writing, made by advice
and consideration, and which finally import the certain truth of the
agreement of the parties, should be controlled by averment of the
parties, to be proved by the uncertain testimony of slippery mem-
ory."2 Hence it is laid down, that, " an obligation is not made
void but by a release ; for Naturale est quidlibet dissolvi eo modo
quo ligatur : a record by a record; a deed by a deed ; and a parol
promise or agreement is dissolved by parol ; and an Act of Parlia-
ment by an Act of Parliament. This reason and this rule of law
are always of force in the common law."3

In the first place, with respect to statutes of the realm, we may
remark that these, being created by an exercise of the highest
authority which the constitution of this country acknowledges, can-
r*X78~ll not ^e dispensed with, altered, *amended, suspended, or re-
1 pealed, but by the same authority by which they were
made — Jura eodem modo destituuntur quo constituunte?*.* It was,

1 Jenk. Cent. 1 66 ; Id. 74.

3 Countess of Rutland's Case, 5 Rep. 26.

3 Jenk. Cent. 70.

4 Dwarr. Stats., 2d ed., 529 ; Bell Diet, and Dig. of Scotch Law 636. In

THE LAW OF CONTRACTS. 878

indeed, a maxim of the civilians that, as laws might be established
by long and continued custom, so they could likewise be abrogated
by desuetude, or be annulled by contrary usage, — ea vero quai ipsa
sibi quceque eivitas comtituit scepe mutari solent vel tacito consensu
populi vel alid postea lege latd.1 The law of England, however, as
above stated, follows a different and much safer maxim, viz., that
every statute continues in force till repealed by a subsequent Act
of the Legislature.2

We propose, in the next place, to consider the three following
species of obligations : viz., by record, by specialty, and by simple
contract; as to the first of which it will suffice *o say, that an ob-
ligation by record mav clearly be discharged by a release under
seal;3 and that a judgment or decree of the House of Lords can,
due regard being had to constitutional principles, only be reversed
or corrected by Act of Parliament.4

*In the case of a specialty, no rule of our common law r*Q7Q-|
is better established than that such a contract can, before
breach, only be discharged by an instrument of equal force ;5 that
a subsequent parol, that is to say, written or verbal agreement, not
under seal, dispensing with or varying the time or mode of per-

Sydney's Discourse concerning Government, p'. 15, we find the following
passage: — "Cujus est instituere ejus est abrogare. We say, in general, he
that institutes may also abrogate, most especially when the institution is not
only by, but for himself. If the multitude, therefore, do institute, the mul-
titude may abrogate ; and they themselves, or those who succeed in the same
right, can only be fit judges of the performance of the ends of the institu-
tion."

1 I. 1. 2. 11 ; Irving Civ. Law, 4th ed., 123.

2 The case of Ashford v. Thornton, 1 B. & Aid. 405, affords a remarkable
instance of the revival of an obsolete law. See also, per Patteson, J., Reg.
v. Archbishop of Canterbury, 11 Q. B. 627 (63 E. C. L. R.).

s Per Parke, B., Barker v. St. Quintin, 12 M. & W. 453 (cited in Ex parte
Games, 3 H. & C. 299) ; Litt. s. 507, and the commentary thereon ; Shep.
Touch., by Preston, 322; Farmer v. Mottram, 7 Scott N. R. 408.

4 Tommey v. White, 3 H. L. Cas. 49 ; per Lord Campbell, C. J., 1 E. & B.
804 (72 E. C. L. R.)5 ante, p. 333, n. 4. See Frith v. Wollaston, 7 Exch.
194. A local custom may, of course, be abrogated by statute, see (ex. gr.)
Truscott v. Merchant Tailors' Co., 11 Exch. 855 ; Cooper v. Hubbuck, 12 C.
B. N. S. 456 (104 E. C. L. R.).

6 Per Bosanquet, J., 3 Scott N. R. 216. But in certain cases an equitable
plea may be available that performance has been dispensed with by an
instrument not under seal ; see, per Pollock, C. B., 1 II. & N. 458.

879 broom's legal maxims.

formance of an act covenanted to be done, cannot be pleaded in bar
to an action, on an instrument under seal, for non-performance of the
act in the manner thereby prescribed j1 — in short, that the terms of
a deed cannot be contradicted or varied by parol ; that a parol
license cannot be set up in opposition to a deed.2

For instance, a defeazance, not under seal, cannot be pleaded to
an action on a bond, being a specialty ;3 nor to an action on a bond
conditioned to perform an award, can a parol agreement between
the parties to waive and abandon the award be set up successfully
in defence.4 It has, however, been already observed, and must be
r*8801 ^ere rePeated> tnat if tne performance of the condition be
*rendered impossible by, or the breach result from, an act
of the obligee, undoubtedly he can maintain no action on the
bond.5 The following case6 will, it is conceived, show clearly the
application of the general rule of law under consideration : — An
action of covenant was brought by the surviving executor of the
lessor against the lessee, the breach being, inter alia, the pulling
down and removing a greenhouse which had been erected during
the term, in contravention of the lessee's covenant to yield up the
premises at the expiration of the term, together with all "erections
and improvements" which, during the term, should be erected,
made, or set up, in or upon the premises. The defendant pleaded,
by way of answer to this breach, an agreement by parol between
the lessor and one H., to whom the defendant's term in the pre-
mises came by assignment, whereby the lessor promised and agreed,
that, if H. would erect a greenhouse upon the demised premises,
he (H.) should be at liberty to pull down and remove such green-

1 Heard v. Wadham, 1 East 619 ; Gwynne v. Davy, 2 Scott N. R. 29 ; cited,
per Cockburn, C. J., L. R. 3 Q. B. 127 ; Roe v. Harrison, 2 T. R. 425 ; Blake's
Case, 6 Rep. 43 •, Peytoe's Case, 9 Rep. 77 ; Kaye v. Waghorn, 1 Taunt. 428 ;
Jenk. Cent. 66 ; Cocks v. Nash, 9 Bing. 341 (23 E. C. L. R.) ; Harden v. Clif-
ton, 1 Q. B. 522 (41 E. C. L. R.) ; Rippinghall v. Lloyd, 5 B. & Ad. 742 (27
E. C. L. R.), is particularly Avorthy of perusal in connection with the above
subject.

2 Per Lush, J., Albert v. Grosvenor Investment Co., L. R. 3 Q. B. 128.

3 Blemerhasset v. Pierson, 3 Lev. 234.

4 Braddick v. Thompson, 8 East 344.

s Per Tindal, C. J., 2 M. & Gr. 750, 751 (40 E. C. L. R.) ; ante, p. 283.

6 West v. Blakeway, 2 M. & Gr. 729 (40 E. C. L. R.) ; Harris v. Goodwyn,
2 M. & Gr. 405 ; cited judgm., Cort v. Ambergate, &c, R. C, 17 Q. B. 146 (79
E. C. L. R.).

THE LAW OF CONTRACTS. 880

house at the expiration of the term, provided no injury was thereby
done to the premises. This plea was found by the jury to be true
in fact, but it was held bad, on motion to enter judgment for the
plaintiff non obstante veredicto, as presenting no legal answer to
the action. " I agree," observed Tindal, C. . J., " that, if it
amounted to an assertion that the lessor himself, by active inter-
ference, prevented the lessee from performing the covenant, the
plea would have been an answer1 — not, however, on the footing of
an agreement *or dispensation, but on the ground that the r*oo-|-|
breach of covenant complained of would, in that case, have
been the act of the lessor, and not of the lessee ; but that which
is here set up is nothing more than a parol license or permission.2
Now, I apprehend, no rule of law is better established than this :
that a covenant under seal can only be discharged by an instru-
ment of equal force and validity — Quodque dissolvitur eodem liga-
mine quo ligatur." And his Lordship further here remarked, that
the argument derived from conditions that are waived,3 or rendered
impossible of performance, seemed not necessarily to be applicable
to the case of covenants under seal; that, in the former case, the
obligation is under seal, but "the condition is of a thing resting on
evidence only. It may be compared to matter in pais;"* whereas,
in the latter, the whole obligation is under the seal of the party,
and, therefore, his discharge can only be effected by an instrument
of the like nature and validity with that upon which he is sued.5
So it has more recently been held, that a covenant to pay a sum
certain after notice given, could not, before breach, be discharged
by delivery to the covenantee of goods and chattels by the cove-
nantor— this being matter purely in pais.6

1 See Cort v. Ambergate, &c, R. C, 17 Q. B. 127, 146 (79 E. C. L. R.) ; ante,
p. 282.

2 See Cocks v. Nash, 9 Bing. 341 (23 E. C. L. R.) ; judgm., Doe d. Muston
v. Gladwin, 6 Q. B. 962 (51 E. C. L. R.).

3 See 2 M. & Gr. 751 (40 E. C. L. R.). A parol license could not be pleaded
as such in discharge of a covenant : see Rawlinson v. Clarke, 14 M. & W. 187,
191, 192; Thames Haven Dock and R. C. v. Brymer, 5 Excti. 696-, s c, 2
Exch. 549 ; Mutual Guarantee Co. v. Froane, 7 H. & N. 5, 14 ; Thames Iron
Works Co. v. Royal Mail Steam Packet Co., 13 C. B. N. S. 358, 376 (106 E.
C. L. R.).

4 See Peytoe's Case, 9 Rep. 79 b.

6 See Harris v. Goodwyn, 2 Scott N. R. 459 ; Gwynne v. Davy, Id. 29.
6 Spence v. Healey, 8 Exch. 668, and cases there cited Id. 669, (6).

■

881 broom's legal maxims.

In The Major, &c, of Berwick v. Oswald,1 the ""defendant
was sued in covenant upon a bond which he had entered
into as surety for the due performance of his duty by one M., who
had been elected to fill the office of treasurer of the town of Berwick.
The breaches assigned were, that the said M. had not paid over,
nor truly accounted for, certain moneys to the plaintiffs. In
answer to this declaration the defendant pleaded, inter alia, that,
after the making of the bond in question, and before any of the
breaches of covenant alleged, the said M., and others as his sureties,
executed and delivered to the plaintiffs, and the plaintiffs accepted
and received from them, another bond " in full satisfaction and dis-
chage of" that declared upon, and of all covenants, &c, contained
therein. The bond thus alleged to have been given in lieu of that
declared upon was similar to it, save that the defendant was not
named therein as a surety. The Court held, that the plea thus put
on the record was clearly bad, because an accord and satisfaction
cannot be pleaded to an action upon a deed before breach,2 and
there wras nothing in the second deed which could operate as a
release of that previously executed.

Again, where there has been a breach of a contract under seal,
and the damages are unliquidated, accord with satisfaction of the
damages resulting from such breach may be a good plea to an
r*8831 act*on on ^ie specialty ; for this * defence is by no means
equivalent to setting up a parol contract in contravention
of a prior contract by deed, the action being founded, not merely
on the deed and the subsequent wrong, wThich wrong is the cause of
action and for which damages are recoverable.3 "Nothing," how-
ever, "can discharge a covenant to pay on a certain day,

1 1 E. & B. 295 (72 E. C. L. R.); s. c, 3 Id. 653; 5 II. L. Cas. 856;
Blake's Case, 6 Rep. 44; Snow v. Franklin, I Lutw. 358; Kaye v. Waghorn,
1 Taunt. 428.

2 In covenant for non-payment of rent, the defendant pleaded accord with
satisfaction of the covenant before any breach : — Held bad, on demurrer ;
Snow v. Franklin, Lutw. 358. See Kaye v. Waghorn, 1 Taunt. 428 ; Drake
v. Mitchell, 3 East 251 ; Scholey v. Mearns, 7 East 147 ; Rogers v. Payne,
cited 1 Selw. N. P., 10th ed., 511. As to the plea of accord and satisfaction
in debt on bond before the day of payment, see Id. 541 ; — in an action for
libel, Boosey v. Wood, 3 H. & C. 484 ; and as to the plea of solvit post diem
in an action, see Broom's Com., 4th ed., 177.

3 Blake's Case, 6 Rep. 43.

THE LAW OF CONTRACTS. 883

but actual payment or tender on that day."1 "Accord and satis-
faction is no bar to an action for a debt certain covenanted to be
paid."2 In other words, where the damages are liquidated, the rule
laid down per Curiam in Blake's Case, does not apply. Where, in-
deed, a covenant is entered into by A. to pay to B. a sum of money in
gross on a day certain, it is incumbent on the covenantor, when the
day specified arrives, to seek out the person to be paid, and pay or
tender him the money, for A. has contracted so to do.3

In Smith v. Trowsdale,4 the declaration, after stating that
a submission to arbitration under seal had been entered into
between the plaintiff and the defendants, and that an award had
been made thereupon, set forth as the gist of the action the non-
payment of money due under the award. The plea to this declara-
tion set up a new agreement after the breach of duty arising out of
the award, whereby, in consideration of the defendants' paying a
smaller sum at an earlier time, the parties mutually stipulated that
this new agreement, and the performance of it by the defendants,
should be accepted by the plaintiff in satisfaction of all that was to
be done under the award, *and of all damages sustained r* 004-1
by reason of the breach of it. The Court were of opinion
that this plea was substantially a plea of accord and satisfaction,
and that there was no necessity for showing that the agreement
which it set up was under seal, the action not being brought
directly on the deed of submission, but for the breach of duty in
not performing the award. "The deed," remarked Wightman, J.,
" is only stated by way of inducement, to show that the arbitrator
had authority to bind the parties. The declaration need not have
alleged that the submission was by deed."

The preceding remarks may, therefore, be summed up thus : —
That, in order to relieve a party liable on a specialty, there must
either be an agreement under seal to that express effect, or
an accord and satisfaction after breach, the damages being unliqui-
dated.5

1 Per Parke, B., Poole v. Tumbridge, 2M.& W. 223, 226.

2 Judgm., Massey v. Johnson, 1 Exch. 253.

3 Judgm., Haldane v. Johnson, 8 Exch. 606.

* 3 E. & B. 83 (77 E. C. L. R.), with which compare Braddick v. Thompson,
8 East 344.

6 Ses per Tindal, C. J., Harris v. Goodwyn, 2 Scott N. R. 466 ; s. c, 2 M. &
Gr. 405 (40 E. C. L. R.j.

44

884 broom's legal maxims.

The extent of applicability of the maxim, Unumquodque dis-
solvitur eodem ligamine quo ligatur, to simple contracts, may be
thus concisely indicated: "It is," says Parke, B., in Foster v.
Dawber,1 " competent for both parties to an executory contract, by
mutual agreement, without any satisfaction, to discharge the obli-
gation of that contract.2 But an executed contract cannot be dis-
charged, except by release under seal, or by performance of the
obligation, as by payment, where the obligation is to be performed by
poor-i payment,"3 or by accord and *satisfaction. A promissory
note or a bill of exchange, however, appears to stand on a
different footing, and the obligation on such an instrument may,
even after breach, be discharged by the assent or waiver of the
holder.4

With respect, then, to simple contracts, .which are neither within
the operation of the Statute of Frauds, nor under the control of
any Act of Parliament, the rule is, that such contracts may, before
breach, be dissolved by parol ; the term parol being understood as
applicable indifferently to written and verbal contracts. By the
general rules of the common law, and independently of any statu-
tory enactment, if there be a contract which has been reduced into
writing, and which is meant in itself to constitute an entire agree-
ment, verbal evidence is not allowed to be given of what passed
between the parties, either before the written instrument was made,
or during the time that it was in a state of preparation, so as to add
to, or subtract from, or in any manner to vary or qualify, the

r*Qopn written contract;5 but, after the instrument has *been
I "oooj , .... ,

reduced into writing, it is competent to the parties, at any

1 G Exch. 839, 851.

2 See De Bernardy v. Harding, 8 Exch. 822.

3Goldham v. Edwards, 17 C. B. 141 (84 E. C. L. R.). " It is a general
rule of law, that a simple contract may before breach be waived or discharged
without a deed and without consideration ; but after breach there can be no
discharge, except by deed or upon sufficient consideration." Byles on Bills,
7th ed., p. 168, adopted per B ram well, B., Dobson v. Espie, 2 H. & N. 79, 83
(which shows that "leave and license" cannot be pleaded to a declaration
for breach of contract). Clay v. Turley, 27 L. J. Ex. 2.

4 Cook v. Lister, 13 C. B. N. S. 543, 593 (106 E. C. L. R.) ; judgm., Foster
v. Dawber, 6 Exch. 851. See Harmer v. Steele, 4 Exch. 1, where the waiver
set up was before breach.

5 See Eden v. Blake, 13 M. & W. 614 (which presents a good illustration of
this rule) ; Abrey v. Crux, L. R. 5 C. P. 37 ; Laurie v. Scholefield, L. R. 4 C.

THE LAW OF CONTRACTS. 886

time before breach of it, by a new contract, not in writing, either
altogether to waive, dissolve, or annul the former agreement, or in
any manner to add to, or subtract from, or vary, or qualify the
terms of it, and thus to make it a new contract, which is to be
proved partly by the written agreement, and partly by the subse-
quent verbal terms engrafted upon what will be thus left of the writ-
ten agreement.1 It should be observed, that the first part of the
above rule is confined and must be restricted in its application to a
contemporaneous verbal agreement. It has been expressly decided,
that, in an action on a bill or note, a contemporaneous agreement,
in writing, may be set up to vary the contract evidenced by such
instrument.2 A verbal agreement, also, may be set up in suspen-
sion— though not in defeasance — of a written contract.3

In King v. Gillett,4 (which may be cited as an instance to show

P. 622; perWilles, J., Heffield v. Meadows, L. R. 4 C. P. 599; Lockett v.
Nicklin, 2 Exch. 93 ; Shelton v. Livius, 2 Cr. & J. 411 ; Martin v. Pycroft, 2
De G., M. & G. 785 ; Adams v. Wordley, 1 M. & W. 374, 380; recognised in
Flight v. Gray, 3 C. B. N. S. 320, 322 (91 E. C. L. R.) ; Hughes v. Statham
4 B. & C. 187; Hoare v. Graham, 3 Camp. 57; cited, per Tindal, C. J., 5
Scott N. R. 254; Henson v. Coope, 3 Scott N. R. 48 ; Reay v. Richardson, 2
Cr. M. & R. 422 ; per Bayley, J., Lewis v. Jones, 4 B. & C. 512 (10 E. C. L.
R.) ; per Lord Abinger, C. B., Allen v. Pink, 4 M. & W. 140, 144 ; Knapp v.
Harden, 1 Gale 47 ; Soares v. Glyn, 8 Q. B. 24 (55 E. C. L. R) ; Manley t-
Boycot, 2 E. & B. 46 (75 E. C. L. R.).

See Maplas v. London and South Western R. C, L. R. 1 C. P. 336.

A mistake in the original written contract may sometimes be set up by
way of equitable defence: see Steele v. Haddock, 10 Exch. 643; Reis v.
Scottish Equitable Life Ass. Soc, 2 H. & N. 19 ; Wake v. Harrop, 6 H. &
N. 768.

But an equitable defence to an action is admissible only where it sets up
matter in respect of which a court of equity would have granted relief uncon-
ditionally : Flight v. Gray, supra.

1 Judgm., Goss v. Lord Nugent, 5 B. & Ad. 64, 65 (27 E. C. L. R.) ; Har-
greaves v. Parsons, 13 M. & W. 561. Taylor v. Hilary, 1 Cr., M. & R. 741,
and Giles v. Spencer, 3 C. B. N. S. 244 (91 E. C. L. R.), present instances of
substituted agreements. See also Patmore v. Colburn, Id. 65 ; Douglas v.
Watson, 17 C. B. 685 (84 E. C. L. R.).

2 Brown v. Langley, 5 Scott N. R. 249 ; per Gibbs, J., Bowerbank v. Mou-
teiro, 4 Taunt. 846 ; Young v. Austen, L. R. 4 C. P. 553, 557. See Strong v.
Foster, 17 C. B. 201 (84 E. C. L. R.) ; Halhead v. Young, 6 E. & B. 312 (88
E. C. L. R.) ; Pooley v. Harradine, 7 E. & B. 431 (90 E. C. L. R.) ; cited in
Ewin v. Lancaster, 6 B. & S. 576 (118 E. C. L. R.).

3 Wallis v. Littell, 11 C. B. N. S. 369 (103 E. C. L. R.).

II. & N. 245.

887 broom's legal maxims.

I~*8871 ^at a contract to marry, founded on *mutual promises, is
not within the 4th sect, of the Statute of Frauds), the
Court of Exchequer held, that to a declaration on such a contract,
it is a good plea that, after the promise, and before any breach
thereof, the plaintiff absolved, exonerated, and discharged the de-
fendant from his promise and the performance of the same; and
we have here more particularly mentioned this case, because it seems
to afford an exact illustration of the rule now under consideration,
and which we find laid down in the Digest in these words : Nihil
tarn naturale est quam eo genere quidque dissolvere quo colligatum
est ; ideo verborum obligatio verbis tollitur, nudi consensus obligatio
eontrario consensu dissohitur.1 So, in Langden v. Stokes,2 which
was recognised and followed by the Court in deciding the above
case, and which was an action of assumpsit, the defendant pleaded
that, before any breach, the plaintiff on &c. exoneravit eum of the
alleged promise, and, on demurrer, the plea was held good, on the
ground that, as this was a promise by words, it might be discharged
by words before breach. In order, however, to sustain such a plea
as that just mentioned, if issue be taken thereon, the defendant, it
has been observed, must prove " a proposition to exonerate on the
part of the plaintiff, acceded to by himself, and this in effect will be
a rescinding of the contract previously made."3
r*ooo-i *Where a contract is required to be in writing by the
statute law, it clearly cannot be varied by any subsequent
verbal agreement between the parties ; for, if this were permitted,
the intention of the legislature would be altogether defeated.4 A

1 D. 50. 17. 35. 2 Cro. Car. 383.

3 Judgm., 7 M. & W. 59. In Wood v. Leadbitter, 13 M. & W. 838, it was
held that a parol license to enter and remain for some time on the land of
another, even though money were paid for it, is revocable at any time, and
without paying back the money. In this case the law respecting the revoca-
tion of a license was much considered. See also Roffey v. Henderson, 17 Q.
B. 586 (79 E. C. L. R.) ; Adams v. Andrews, 15 Q. B. 284 (69 E. C. L. R.) ;
Taplin v. Florence, 10 C. B. 744 (70 E. C. L. R.).

As to the proper mode of pleading a contemporaneous or subsequent agree-
ment, varying that entered into between the parties, see per Parke, B., Heath
v. Durant, 12 M. & W. 440, which was an action of assumpsit on a policy of
insurance.

4 With reference to the Statute of Frauds, see Goss v. Lord Nugent, 5 B. &
Ad. 58 (27 E. C. R. R.) ; Caton v. Caton, L. R. 2 H. L. 127; per Maule, J.,

THE LAW OF CONTRACTS. 888

contract, for instance, falling within the operation of the 4th sec-
tion of the Statute of Frauds cannot be waived and abandoned in
part ; for the object of the statute1 was to exclude all oral evidence
as to contracts for the sale of land; and, therefore, any contract
sought to be enforced must be proved by writing only ; and if such
a contract could be verbally waived in part, the new contract be-
tween the parties would have to be proved partly by the former
written agreement, and partly by the new verbal agreement.2 And
this reasoning applies also to a contract for the sale of goods falling
within the operation of the 17th section of the same statute. Such
a contract cannot be varied or altered by a subsequent verbal agree-
ment. Where, therefore, a contract for the bargain and sale of
goods is made, stating a time for the delivery of them, an agree-
ment to substitute another day for that purpose must, in order to
be valid, be in writing.3

*A. entered into the service of B., as clerk, under a
written agreement, which specified the salary tO be payable •- -•
"at the following rates, viz., for the first year, 101. ; for the second,
90?.; for the third, 110Z.; for the fourth, 130Z. ; and 1501 for the
fifth and following years that you may remain in my employment :"
it was held, that this agreement was one required by the Statute of
Frauds to be in writing, and that, there being a precise stipulation
for yearly payments, evidence was inadmissible to show, that, at or
after the date of the agreement, it was verbally agreed between the
parties, that the salary should be paid quarterly. " This appears
to me," said Tindal, 0. J., "to be a contract within the Statute of

Pontifex v. Wilkinson, 2 C. B. 361 (52 E. C. L. R.) ; per Alderson, B., Eden
v. Blake, 13 M. & W. 616 ; Stowell v. Robinson, 3 Bing. N. C. 928, 938 (32 E.
C. L. R.).

1 See Wain v. Warlters, 5 East 10; Morley v. Boothby, 3 Bing. 112 (11 E.
C. L. R.).

2 Judgm., Gross v. Lord Nugent, 5 B. & Ad. 66 (27 E. C. L. R.) ; recognised,
Marshall v. Lynn, 6 M. & W. 117 ; Earl of Falmouth v. Thomas, 1 Cr. & M.
89 ; which cases are recognised, Harvey v. Grabham, 5 A. & E. 74 (31 E. C.
L. R.); judgment, Morley v. Boothby, 3 Bing. 112 (11 E. C. L. R.) ; per
Lord Denman, C. J., Clancy v. Piggott, 2 A. & E. 480 (29 E. C. L. R.).

3 Noble v. Ward, L. R. 2 Ex. 135; Marshall v. Lynn, 6 M. & W. 109 (cited
arg., Hargreaves v. Parsons, 13 M. & W. 568) ; Stead v. Dawber, 10 A. & E.
57 (37 E. C. L. R.) ; Moore v. Campbell, 10 Exch. 323, 332. Sec Ingram v.
Lea, 2 Camp. 521.

BROOM S LEGAL MAXIMS.

Frauds ; it was not to be performed within a year.1 . . . The
question, therefore, is, whether we can supply an alleged defect in
the contract by parol evidence of a contemporaneous or subsequent
agreement for the payment of the salary quarterly. I think that
would be a direct violation of the statute."2

But although a contract, which is required to be in writing, can-
not be varied by a subsequent verbal agreement, it seems that
neither the 4th nor the 17th section of the Statute of Frauds can
apply to prevent a verbal waiver or abandonment of a contract
within its operation from being set up as a good defence to an
action upon the contract. Under the former of these sections, in-
deed, the remedy by action is taken away in certain specified cases
r*890~l ^ taere ^e n0 written agreement, and, under the *latter
the particular contract is invalidated ; but it does not ap-
pear that a verbal rescission of the contract would be void as within
the language of either section, nor that the policy of the statute
would lead to such a conclusion.3 A verbal alteration of a contract
required by statute to be in writing, being invalid, does not effect
an implied rescission of the original contract.4

We may further observe, in connection with the maxim under
consideration, that payment of a portion of a liquidated and ascer-
tained demand, cannot be in law a satisfaction of the whole; for
here the contract between the parties consists in reality of two

1 See Smith v. Neale, 2.C. B. N. S. 67 (89 E. C. L R.) ; confirmed in Reuss
v. Picksley, L. R. 1 Ex. 342.

2 Giraud v. Richmond, 2 C. B. 834, 840 (52 E. C. L R.) ; recognising Goss
v. Lord Nugent, supra.

3 See judgm., Goss v. Lord Nugent, 5 B. & Ad. 65, 66 (27 E. C. L. R.) ;
cited, Harvey v. Grabham, 5 A. & E. 74 (31 E. C. L. R.) ; Stead v. Dawber,
10 A. & E. 65 (37 E. C. L. R.) ; judgm., Noble v. Ward, L. R. 2 Ex. 137-8.
See Moore v. Campbell, supra. To an action for breach of a parol contract,
accord and satisfaction is a good plea, because damages only are recoverable ;
see Selw. N. P., 10th ed., 118 ; per Cur., Taylor v. Hilary, 1 C. M. & R. 743 ;
Griffiths v. Owen. 13 M. & W. 58 ; Carter v. Wormald, 1 Exch. 81 ; Bainbridge
t>. Lax, 16 L. J. Q. B. 85. As to what will constitute or support a plea of
accord and satisfaction, see Hall v. Flockton, 16 Q. B. 1039 (71 E. C. L. R.) ;
s. c, 14 Id. 380; Williams v. London Commercial Exchange Co., 10 Exch.
569 ; Gabriel v. Dresser, 15 C. B. 622 (80 E. C. L. R.) ; Perry v. Atwood, 6
E. & B. 691 (88 E. C. L. R.), and cases there cited.

4 Noble v. Ward, L. R. 2 Ex. 135. See Ogle v. Earl Vane, L. R. 3 Q. B.
272.

THE LAW OF CONTRACTS. 890

parts, viz., payment, and an agreement to give up the residue ;
which latter agreement is void, as being made without considera-
tion.1 The above rule does not, however, apply if the claim is
bond fide disputable ; nor, if there has been an acceptance of a
chattel or of a negotiable security in satisfaction of the debt, will
the Court examine whether that satisfaction were a reasonable one,
but it will merely inquire *whether the parties actually
came to such an agreement. A man, therefore, may give *- -■
in satisfaction of a debt of 100?. a horse of the value of 5?., but not
5Z. ; and a sum of money payable at a different time may be a good
satisfaction of a larger sum payable at a future day.2 Moreover,
although the obligor of a bond cannot, at the day appointed, pay
a less sum in satisfaction of the whole, yet if the obligee then re-
ceive a part and give his acquittance under seal for the whole, this
will be a good discharge, according to the maxim, Eodem ligamine
quo ligatum est dissolvitur.3

Lastly, the maxim which has been here considered has been held
to apply in some cases which do not fall within the law of contracts :
thus, a donative is a benefice merely given and collated by the
patron to a man, without either presentation to, or institution by,
the ordinary, or introduction by his order. In this case, the resig-
nation of the donative by the incumbent must be made to the
patron ; for a donative begins only by the erection and foundation
of the donor, and he has the sole visitation and corection, the ordi-
nary having nothing to do therewith ; and, as the incumbent
comes in by the patron, so he may restore to him that which he
conferred, for Unumquodque eodem modo quo colligatum est dis-
solvitur.i

1 Sibree v. Tripp, 15 M. & W. 23 ; qualifying the decision in Cumber v.
Wane, 1 Stra. 426.

See per Parke, B., Curlewis v. Clark, 3 Exch. 377, and in Evans v. Powis,
1 Exch. 606 ; Pinnel's Case, 5 Rep. 117 ; Jones v. S.iwkins, 5 C. B. 142 (94 E.
C. L. R.) ; Grimsley v. Parker, 3 Exch. 610 ; Hall v. Conder, 2 C. B. N. S. 22
(89 E. C. L. R.).

2 15 M. & W. 34, 38 : Cooper v. Parker, 14 C. B. 118 (78 E. C. L. R.).

3 Co. Litt. 212 b ; per Parke, B., 15 M. & W. 34.

4 Per Littledale, J., Rennell v. Bishop of Lincoln, 7 B. & C. 160 (14 E. C.
L. R.) ; s. c, 8 Bing. 490 (21 E. C. L. R.) ; citing Fairchild v. Gaire, Yelv.
60; s. c, Cro. Jac. 65 ; 3 Burn Eccles. Law, 9th ed., 541.

892 broom's legal maxims.

[*892] *vlgilantibus, non dormientibus, jura subveniunt.

(2 Inst. 690.)
The laws assist those who are vigilant, not those who sleep over their rights.1
We have already, under the maxim Caveat emptor,2 considered
cases illustrative of the proposition that courts of justice require
and expect that each party to a contract or bargain shall exercise a
due degree of vigilance and caution ; we shall now, therefore, con-
fine our attention to the important subject of the limitation of
actions, which will serve to exemplify that general policy of our law,
in pursuance of which " the using of legal diligence is always
favored, and shall never turn to the disadvantage of the creditor :"3
merely prefacing that this principle is well known4 and of very ex-
tensive applicability, and might be illustrated by reference to very
many reported cases.5 Thus, where the right to claim compensa-
tion is given by Act of Parliament — ex. gr., an enclosure Act —
which also directs that the claim shall be made within a certain
l~*8931 *sPec'fied time, this right will be forfeited by an omission
to assert it within the given time, and in such a case the
maxim under consideration has been held forcibly to apply ;6 and,
the rule before us is obviously applicable whenever a party debars
himself of a legal right or remedy by his own negligence or laches.7

1 See Wing. Max., p. 672; Ilobart R. 347; cited, ante, p. 772.

2 Ante, p. 768. See, also, the maxim, Prior tempore, potior jure, — ante ,p.
345.

3 Per Heath, J., Cox v. Morgan, 2 B. & P. 412.

4 In 2 B. & P. 412, Heath, J., observes, that this is one of the maxims
which we learn on our earliest attendance in Westminster Hall. It is applied
in Courts of Equity as well as in Courts of Law ; see per Lord Cranworth, in
Leather Cloth Co. v. American Leather Cloth Co., 11 H. L. Cas. 535 ; Spack-
man v. Evans, L. R. 3 H. L. 220 ; Downes v. Ship, Id. 343 ; McDonnel v.
White, 11 II. L. Cas. 570 ; and cases cited, ante, p. 743.

6 The principle applies to construing statutes which (ex. gr.) should not be
so interpreted as to deprive a creditor of a right actually existing and vested
in him, " unless they be clear and direct upon the point ;" judgm., Bottomley
v. Hay ward, 7 H. & N. 569, 570.

The maxim applies also where there has been undue delay in instituting a
suit for divorce on the ground of adultery ; 20 & 21 Vict. c. 85, s. 31 ; and
cases cited in Inderwick, Div. Acts, p. 27. See also Castleden v. Castleden,
4 Macq. Sc. App. Cas. 159.

6 Doe d. Watson v. Jefferson, 2 Bing. 118, 125 (9 E. C. L. R.).

7 See, for instance, Camidge v. Allenby, 6 B. & C. 373 (with which com-

THE LAW OF CONTRACTS. 893

Relative to the doctrine of limitation of actions,1 Mr. Justice
Story has observed, " It has often been matter of regret in modern
times that, in the construction of the Statute of Limitations (21
Jac. 1, c. 16), the decisions had not proceeded upon principles better
adapted to carry into effect the real objects of the statute ; that, in-
stead of being viewed in an unfavorable light as an unjust and dis-
creditable defence, it had not received such support as would have
made it what it was intended to be, emphatically a statute of re-
pose. It is a wise and beneficial law, not designed merely to raise
a presumption of payment of a just debt from lapse of time, but to
afford security against stale demands after the true state of the
transaction may have been forgotten, or be incapable of explanation
by reason of the death or removal of witnesses."2 So in the ancient
possessory actions, " there was a time of limitation settled, beyond
which no man should avail himself of the possession of himself or
his ancestors, or take advantage of the wrongful possession of
*his adversary ; for if he were negligent for a long and un- pead!
reasonable time, the law refused afterwards to lend him
any assistance to recover the possession merely ; both to punish his
neglect, nam leges vigilantibus, non dormientibus, subvenmnt, and
also because it wras presumed that the supposed wrong-doer had in
such a length of time procured a legal title, otherwise he would
sooner have been sued."3 . . . And further, Sir W. P. Wood,
V.-C, remarks, in Manby v. Bewicke,4 that, " the legislature has
in this, as in every civilized country that has ever existed, thought
fit to prescribe certain limitations of time, after which persons may
suppose themselves to be in peaceable possession of their property

pare Timmins v. Gibbins, 18 Q. B. 722 (83 E. C. L. R.)) ; Guardians of Lich-
field Union v. Greene, 1 H. & N. 884. The maxim supra, was applied, per
Coltman, J., in Onions, app., Bowdler, resp., 5 0. B. 74 (57 E. C. L. R.),
where a mistake occurred in the overseers' list of persons qualified to vote for
a borough.

1 Which may also be referred to the maxim, Interest reipublicce ut sit finis
litium — ante, pp. 331, 343.

2 Bell v. Morrison, 1 Peters (U. S.) R. 360.

3 3 Com. by Broom & Hadley 270, 271. As to the doctrine of Prescrip-
tion in the Roman Law, see Mackeld. Civ. Law 290. Usucapio constituta est
ut aliquis litium finis esset ; D. 41. 10. 5 ; Wood, Civ. Law, 3d ed., 123.

* 3 K. & J. 352 ; Trustees of Dundee Harbor v. Dougall, 1 Macq. Sc. App.
Cas. 317.

894 broom's legal maxims.

and capable of transmitting the estates of which they are in pos-
session, without any apprehension of the title being impugned by
litigation in respect of transactions which occurred at a distant
period, when evidence in support of their own title may be most
difficult to obtain."

Such being the policy on which our Statutes of Limitation are
founded, reference will briefly be made to the more important
clauses of them — some few cases being cited in notis explanatory
of their meaning.1 Under stat. 21 Jac. 1, c. 16, s. 1, the plaintiff
in ejectment must have proved either actual possession or a
r*£Q^1 *right of entry within twenty years, or have accounted for
the want of it; for, by force of that statute, an uninter-
rupted adverse2 possession for that period operated as a complete
bar, except in those cases of disability which fell within section 2,
viz., infancy, coverture, unsoundness of mind, imprisonment, and
absence beyond seas, in which cases the party who was suffering
under the disability at the time when the right of entry first
accrued was allowed to bring his action at any time within ten years
after its removal ; and now, by stat. 3 & 4 Will. 4, c. 27, s. 2, no
person shall make an entry or distress, or bring an action to re-
cover any land or rent, but within twenty years next after the time
at which the right to make such entry or distress, or to bring such
action, shall have first accrued3 to some person through whom he
claims ; or, if such right shall not have accrued to any person
through whom he claims, then within twenty years next after the
time at which the right to make such entry or distress, or to bring
such action, shall have first accrued to the person making or

1 In Wilson v. Braddyll, 9 Exch. 718, 720, Pollock, C. B., observes, " Par-
ties are entitled by agreement to make a covenant, which shall operate as a
release ; but they cannot enter into a covenant to the effect that a matter shall
be pleadable in bar which in point of law is no bar." Nor could two parties
agree that the Statute of Limitations should not be pleaded to a debt. Id.

2 Respecting the doctrine of adverse possession before the stat. 3 & 4 Will.
4, c. 27, see Taylor d. Atkyns v. Horde, 1 Burr. GO. And as to the same
doctrine since that statute, see Nepean v. Doe (in error), 2 M. & W. 894; and
also the Note to these cases, 2 Smith L..C. 6th ed., 611 et seq. The latter
case decides that the doctrine of non-adverse possession is done away with by
the above Act.

3 Section 3 declares when the right shall be deemed first to have accrued.

THE LAW OF CONTRACTS.

895 » <A I

bringing the same.1 By section 16 of the same Act, it is provided,
that persons under disability of infancy, lunacy, or coverture, or
beyond seas, and their representatives, shall be allowed ten years
from the termination of their disability or death ; provided,2 never-
theless, that no action shall *be brought beyond forty years r*oqfin
after the right of action accrued.

Again, by stat. 3 & 4 Will. 4, c. 42, s. 3, it is enacted, that all
actions of debt for rent upon an indenture of demise, all actions of
covenantor debt upon any bond or other specialty, and all actions of
debt or sci. fa. upon any recognisance, and also all actions of debt
upon any award where the submission is not by "specialty, or
for any fine due in respect of any copyhold estate, or for an escape,
or for money levied on any fi. fa., and all actions for penalties,
damages, or sums of money given to the party grieved by any stat-
ute then or thereafter to be in force, that shall be sued or brought
at any time after the end of the then session of Parliament, shall
be commenced and sued within the time and limitation following, —
(that is to say), — the said actions of debt for rent upon an indent-
ure of demise, or covenant or debt upon any bond or other specialty *
or actions of debt or sci. fa. upon recognisance, within ten years
after the end of the then session of Parliament, or within twenty
years after the cause of such actions or suits, but not after; the
said actions by the party grieved, one year5 after the end of the
then session, or within two years after the cause of such actions or
suits, but not after ; and the said other actions, within three years
after the *end of the then session, or within six years after r*QQ7i
the cause of such actions or suits, but not after.6 It is,

1 See as to the operation of the above section, Manning v. Phelps, 10 Exch.
59, and cases there cited.

2 Sect. 17.

3 See Dixon v. Holdroyd, 7E.&B. 903 (90 E. C. L. R.).

4 An action of debt by a railway company for calls under the 8 & 9 Vict,
c. 16, and the Company's Special Act, must be brought within twenty years
of the accruing of the cause of action ; Cork and Bandon R. C. v. Goode, 13
C. B. 826 (76 E. C. L. R.) ; s. c, Id. 618. See Shepherd v. Hills, 11 -Exch.
55, 65, 67 (where the action was likewise held to be founded on a statute) ;
Tobacco Pipe Makers v. Loder, 16 Q. B. 765 (71 E. C. L. R.) ; Jones v. Pope,
1 Wms. Saund. 38.

6 See stat. 31 Eliz. c. 5, s. 5 ; Dyer v. Best, 4 H. & C. 189.
« See Sturgis v. Darell. 4 H. & N. 622.

897 broom's legal maxims.

however, further provided, that nothing in this Act shall extend to
any action given by any statute, where the time for bringing such
action is or shall be by any statute specially limited.

By section 4 of the same statute, it is further enacted, that, if
any person, entitled to any such action or suit as above mentioned,
shall, at the time of such cause of action accruing, be within the
age of twenty-one years, feme covert, non compos mentis, [or be-
yond the seas,1] then such person shall be at liberty to bring the
same, provided it be commenced within the specified time after
coming to or being of full age, discovert, of sound memory, [or re-
turned from beyond the seas2] ; and a provision is inserted in the
same section, which applies to the case of a defendant similarly
circumstanced.3

The doctrine of limitation in the case of simple contracts is
founded upon a presumption of payment or release arising from
length of time, as it is not common for a creditor to wait so long
without enforcing payment of what is due ; and, as presumptions
are founded upon the ordinary course of things, ex eo quod plerum-
que Jit, the laws have formed the presumption, that the debt, if
not recovered within the time prescribed, has been acquitted or re-
leased. Besides, a debtor ought not to be obliged to take care for
ever of the acquittances which prove a demand to be satisfied ;
and it is proper to limit a time beyond which he shall not be under
pnan-i the necessity *of producing them. This doctrine has also
been established as a punishment for the negligence of the
creditor. The law having allowed him a time within which to in-
stitute his action, the claim ought not to be received or enforced
when he has suffered that time to elapse.4

For the above reasons, it was enacted by stat. 21 Jac. 1, c. 16,
s. 3,5 that all actions of account and of assumpsit (other than such
accounts as concern the trade of merchandise between merchant

1 See 19 & 20 Vict. c. 97, s. 10, cited post, p. 899.

2 Id. » See Forbes v. Smith, 11 Exch. 161.
A 1 Pothier by Evans 451.

6 This statute, observes Pollock, C. B., in Gulliver v. Gulliver, 1 II. & N.
176, " applies in terms to actions at law only, though by analogy courts of
equity have adopted the provision ; but the 85th section of the Com. Law
Proc. Act, 1854, cannot alter the effect of the Statute of Limitations in Courts
of law."

See Harris v. Quine, L. R. 4 Q. B. 653.

THE LAW OF CONTRACTS. 898

and merchant, their factors or servants), and all actions of debt
grounded upon any lending or contract without specialty, and all
actions of debt or arrearages of rent,1 shall be commenced and sued
within six years next after the cause of such action or suit, and
not after.2 And now by stat. 19 & 20 Vict. c. 97, s. 9, it is further
provided that, "All actions of account or for not accounting, and
suits for such accounts as concern the trade of merchandise be-
tween merchant and merchant, their factors or servants, shall be
commenced and sued within six years *after the cause of r*oqq-|
such actions or suits, or, when such cause has already
arisen, then within six years after the passing of this Act; and
no claim in respect of a matter which arose more than six years
before the commencement of such action or suit shall be enforce-
able by action or suit by reason only of some other matter of claim
comprised in the same account having arisen within six years next
before the commencement of such action or suit."

The 7th section of the statute of James, above cited, contains
also a proviso, similar to those already mentioned, with respect to
infants, married women, non compotes mentis [and persons im-
prisoned or beyond the seas],3 viz., that an action may be com-
menced in the above cases within six years after the particular
disability shall have ceased. The action of debt for not setting
out tithes is not within the above statute ; but, by 53 Geo. 3, c.
127, s. 5, no action shall be brought for the recovery of any
penalty for not setting' out tithes, unless such action be brought
within six years from the time when such tithes became due.

With respect to certain of the statutory disabilities above speci-
fied, it has been recently enacted that "no person or persons who

1 See 3 & 4 Will. 4, c. 27, s. 42 ; 19 & 20 Vict. c. 97, ss. 10, 11.

2 See Hartland v. Jukes, 1 H. & C. 667. No time less than six years is
unreasonable, as between drawer and holder of a check, for its presentment,
unless loss is occasioned by the delay : Laws v. Rand, 3 C. B. N. S. 442 (91
E. C. L. R.). See also as to payment by check, Hopkins v. Ware, L. R. 4
Ex. 268.

Inasmuch as a debt which accrued more than six years before action
brought may have been renewed within that period [ante, p. 656), a plea of
the Statute of Limitations ought to allege that the debt did not accrue within
the six years. See Bush v. Martin, 2 H. & C. 311 ; et vide Everett v. Robert,
son, 1 E. & E. 16 (102 E. C. L. R.).

8 See 19 & 20 Vict. c. 97, s. 10.

899 broom's legal maxims.

shall be entitled to any action or suit, with respect to which the
period of limitation within which the same shall be brought is
fixed," by the 21 Jac. 1, c. 16, s. 3 ; 4 Ann. c. 16, s. 17; 53 Geo.
3, c. 127, s. 5; 3 & 4 Will. 4, c. 27, ss. 40, 41, 42; and 3 & 4
Will. 4, c. 42, s. 3, "shall be entitled to any time within which to
commence and sue such action or suit beyond the period so fixed
r*Q001 for the same by the enactments aforesaid, *by reason only
of such person, or some one or more of such persons, being
at the time of such cause of action or suit accrued beyond the seas,
or in the cases in which by virtue of any of the aforesaid enact-
ments imprisonment is now a disability, by reason of such person
or some one or more of such persons being imprisoned at the time
of such cause of action or suit accrued."1

Also by the next ensuing section of the Act just cited2 it is
further enacted that, "where such cause of action or suit with re-
spect to which the period of limitation is fixed by the enactments
aforesaid, or any of them, lies against two or more joint debtors,
the person or persons who shall be entitled to the same shall not
be entitled to any time within which to commence and sue any such
action or suit against any one or more of such joint debtors who
shall not be beyond the seas at the time such cause of action or suit
accrued, by reason only that some other one or more of such joint
debtors was or were at the time such cause of action accrued be-
yond the seas ; and such person or persons, so entitled as aforesaid,
shall not be barred from commencing and suing any action or suit
against the joint debtor or joint debtors who was or were beyond
seas at the time the cause of action or suit accrued after his or their
return from beyond seas, by reason only that judgment was already
recovered against any one or more of such joint debtors who was
not or were not beyond seas at the time aforesaid."
r*Q011 *The 14th section also provides in reference to the 21
L ° J Jac. 1, c. 16, s. 3, and 3 & 4 Will. 4, c. 42, s. 3, that

1 19 & 20 Vict. c. 97, s. 10. In Cornill v. Hudson, 8 E. & B. 429 (92 E. C.
L. R.), Lord Campbell, C. J., observes, that the above 10th section of the Act
prevents any action being commenced after the period has elapsed within
which the right to bring the action is limited by statute irrespective of the
circumstance that the plaintiff has been abroad or in prison. See Townsend
v. Deacon. 3 Exch. 706.

2 19 & 20 Vict. c. 97, s. 11.

THE LAW OF CONTRACTS. 901

"when there shall be two or more co-contractors or co-debtors,
wrhether bound or liable jointly only, or jointly and severally, or
executors or administrators of any contractor, no such co-contractor
or co-debtor, executor or administrator shall lose the benefit of the
said enactments or any of them so as to be chargeable in respect or
by reason only of payment of any principal, interest, or other
money, by any other or others of such co-contractors or co-debtors,
executors or administrators." This section of the recent statute
for amending the laws affecting trade and commerce has been held
not to be retrospective in its operation.1

With respect to actions ex delicto, the period of limitation2 in
trespass qu. cl.fr., or for taking goods or cattle, as also in trover,
detinue, replevin, and case (except for slander), is six years ; in
trespass for assault, battery, or false imprisonment,3 it is four years :
and in case for slander, two years. Where defendant caused dam-
age to the plaintiff's ancient house by working coal mines near to
it, the act having been done more than six years before the com-
mencement of the action, but the damage having occurred within
that period, the Statute of Limitations was held to be no answer to
the action.4 And to a plea *of the Statute of Limitations r*qo9~|
in an action of trespass for taking coal from under the
plaintiff's land, a replication that the trespasses were fraudulently
concealed from the plaintiff till within the six years was not al-
lowed.5

Lastly, in connection with this part of the subject, it may be ob-
served, that "no judgment in any cause shall be reversed or avoided
for any error or defect therein, unless error be commenced or
brought and prosecuted with effect within six years after such judg-

1 Jackson v. Woolley, 8 E. & B. 778, 784 (92 E. C. L. R.) ; Flood v. Patter-
son, 30 L. J. Chanc. 487. As to the effect of part payment, generally, in
connection with the statute of James, see Chitt. Contr., 8th ed., pp. 763
et seq.

2 21 Jac. 1, c. 16, s. 3. 3 See Coventry v. Apsley, Salk. 420.

4 Backhouse v. Bonomi, 9 H. L. Cas. 503 ; s. c, E., B. & E. 623, 646 (96 E.
C. L. R.). See Smith v. Thackerah, L. R. 1 C. P. 564; Whitehouse v. Fel-
lowes, 10 C. B. N. S. 765, 785 (100 E. C. L. R.); Violett v. Sympson, 8 E. &
B. 344 (92 E. C. L. 11.). As to an action for libel, see Duke of Brunswick v.
Harmer, 14 Q. B. 185 (68 E. C. L. 11.).

6 Hunter v. Gibbons, 1 H. & N. 459 ; Imperial Gas Light and Coke Co. v
London Gas Light Co., 10 Exch. 39.

902 broom's legal maxims.

ment signed or entered of record."1 But if any person entitled to
bring error be, " at the time of such title accrued, within the age
of twenty-one years, feme covert, non compos mentis, or beyond the
seas, then such person shall be at liberty to bring error as afore-
said, so as such person commences or brings and prosecutes the
same with effect, within six years after coming to or being of full
age, discovert, of sound memory, or shall return from beyond the seas ;
and if the opposite party shall, at the time of the judgment signed
or entered of record, be beyond the seas, then error may be brought,
provided the proceedings be commenced and prosecuted with effect
within six years after the return of such party from beyond seas."2
It is not intended, nor would it be consistent with the plan of
this work, to consider, in detail, either from what period limitation
runs, or the mode in which a claim may be taken out of the opera-
tion of the statute, or, when barred by any statute, may be revived
by a subsequent promise or acknowledgment. These subjects will
be found minutely treated of in works devoted to an exposition of
r*Q0m the law of real property, and of contracts and ^mercantile
transactions. There, is, however, one maxim which natu-
rally suggests itself in this place, and which is illustrated by those
provisions in the different statutes of limitations, which, in the case
of infancy and coverture, and others similar, suspend their opera-
tion until removal of such disability. The maxim alluded to is ex-
pressed thus : Contra non valentem agere nulla currit prcescriptio —
prescription does not run against a party who is unable to act. For
instance, in the case of a debt due, it only begins to run from the
time when the creditor has a right to institute his suit, because no
delay can be imputed to him before that time.3 Where, therefore,
a debt is suspended by a condition ; as, if the contract be to pay
money at a future period, or upon the happening of a certain
event, as, " when J. S. is married," the six years are to be dated, in
the first instance, from the arrival of the specified period ; in the

1 15 & 16 Vict. c. 76, s. 146. 2 Id. s. 147.

3 1 Pothier by Evans 451 ; Hemp v. Garland, 4 Q. B. 519, 524 (45 E. C. L.
R.) ; Flood v. Patterson, 30 L. J. Chanc. 486 ; Huggins v. Coates, 5 Q. B. 432
(48 E. C. L. R.) : Holmes v. Kerrison, 2 Taunt. 323 ; Cowper v. Godmond, 9
Bing. 748 (23 E. C. L. R.). See, also, Davies v. Humphreys, 6 M. & W. 153 ;
Bell Diet, and Dig. of Scotch Law 223.

"Where a loan is made by check the Statute of Limitations runs from the
date of payment of the check : Garden v. Bruce, L. R. 3 C. P. 300.

THE LAW OF CONTRACTS. 903

second, from the time when the event occurred.1 Where, however,
the breach of contract, which, in assumpsit, is the gist of the action,2
occurred more than six years before the commencement of the pro-
ceedings, the statute will afford a good defence, although the plain-
tiff did not discover the injury resulting from the breach, r*qo4~|
till within the six *years.3 So, in trover, the six years run
from the conversion, though it was not discovered at the time.4

Where, however, the statute has once begun to run, no subse-
quent disability interrupts it ;5 such, for instance, as the death of
the defendant, and the non-appointment of an executor by reason
of litigation as to the right to probate.6

Actio personalis moritur cum Persona.

(Noy Max. 14.)
A personal right of action dies with the person.

The legal meaning and application of this maxim will, perhaps,
most clearly be shown, by stating concisely the various actions

1 1 Pothier by Evans 451; Shutford v. Borough, Godb. 437; Fenton v.
Emblers, 1 W. Bla. 353.

2 "The rule is firmly established that in assumpsit the breach of contract
is the cause of action, and that the statute runs from the time of the breach,
even where there is fraud on the part of the defendant :" per Lord Campbell,
East India Co. v. Paul, 7 Moo. P. C. C. 111.

3 Short v. M'Carthy, 3 B. & Aid. 626 (5 E. C. L. R.) ; Brown v. Howard, 2
B. & B. 73 (6 E. C. L. R.) ; Howell v. Young, 5 B. & C. 259 (11 E. C. L. R.) j
Bree v. Holbech, 2 Dougl. 654 ; Smith v. Fox, 6 Hare 386.

4 Granger v. George, 5 B. & C. 149 (11 E. C. L. R.). See Philpott v.
Kelley, 3 A. & E. 106 (30 E. C. L. R.).

6 Baird v. Fortune, 4 Macq. Sc. App. Cas. 127, 139.

• Rhodes v. Smethurst, 4 M. & W. 42 ; s. c, 6 M. & W. 351 ; approved in
Penny v. Brice, 18 C. B. N. S. 396, 397 (114 E. C. L. R.) (which decided
that it is not competent to an executor to maintain an action for a debt which
accrued to his testator and for which he might have sued more than six years
before the issuing of the writ) ; cited and followed judgm., Homfray v.
v. Scroope, 13 Q. B. 513 (66 E. C. L. R.) ; Freake v. Cranefeldt, 3 My. & Cr.
499.

The 4th sect, of stat. 21 Jac. 1, c. 16, applies to the limitation of actions
after judgment or outlawry reversed ; as to what cases are within the equity
of this clause of the Act, see Curlewis v. Lord Mornington, 7 E. & B. 283
(distinguishing Rhodes v. Smethurst, supra), judgm., Sturgis v. Darell, 4
H. & N. 629.

45

I

904 broom's legal maxims.

which may be maintained by and against executors and administra-
tors, as well as those rights of action which die with the person, —
to which alone the above rule may be considered in strictness to
apply.

The personal representatives are, as a general rule, entitled to
r*Q0^n sue on all covenants broken in the lifetime of *the cove-
nantee ; as for rent then due, or for breach of covenant for
quiet enjoyment,1 or to discharge the land from encumbrances.2 A
distinction must, however, be remarked between a covenant running
with the land, and one purely collateral. In the former case,
where the formal breach has been in the ancestor's lifetime, but the
substantial damage has taken place since his death, the real and
not the personal representative is the proper plaintiff; whereas, in
the case of a covenant not running with the land, and intended not
to be limited to the life of the covenantee, as a covenant not to fell
trees, excepted from the demise, the personal representative is alone
entitled to sue.3 In a recent case, it was held, that the executor of
a tenant for life may recover for a breach of a covenant to repair
committed by the lessee of the testator in his lifetime, without
averring a damage to his personal estate ; and, in this case, the
rule was stated to be, that unless the particular covenant be one
for breach whereof, in the lifetime of the lessor, the heir alone can
sue, the executor may sue, unless it be a mere personal contract,
to which the rule applies, that Actio personalis moritur cum per-
sonal.4'

r*QOfi~l -^e Personal representative, moreover, may sue, not *only
for the recovery of all debts due to the deceased by specialty

1 Lucy v. Levington, 2 Lev. 26. By 13 Edw. 1, st. 1, c. 23, executors shall
have a writ of account. In the stat. 31 Edw. 3, st. 1, c. 11, originated the
office of administrator.

2 Smith v. Simonds, Comb. 64.

3 Raymond v. Fitch, 2 0., M. & R. 598, 599 ; per Williams, J., and Parke,
B., Beckham v. Drake, 2 H. L. Cas. 596, 624 ; per Parke, J., Carr v. Roberts,
5 B. & Ad. 84 (27 E. C. L. R.) ; Kingdon v. Nottle, 1 M. & S. 355; 4 M. & S.
53 ; King v. Jones, 5 Taunt. 518 (1 E. C. L. R.) ; s. c. (in error), 4 M. & S.
188.

4 Ricketts v. Weaver, 12 M. & W. 718, recognising Raymond v. Fitch,
supra. As to a covenant respecting a chattel, see per Parke, J., Doe d.
Rogers v. Rogers, 2 Nev. & Man. 555 ; — in an indenture of apprenticeship,
Baxter v. Burfield, 2 Stra. 1266 ; Cooper, app., Simmons, resp., 7 H. & N
707.

THE LAW OF CONTRACTS. 906

or otherwise, but on all contracts with him, whether broken in his
lifetime or subsequently to his death, of which the breach occasions
an injury to the personal estate,1 and which are neither limited to
the lifetime of the deceased, nor, as in the instance of a submis-
sion to arbitration containing no special clause to the contrary, re-
voked by his death.2 An administrator, moreover, may sue for the
price of goods sold and delivered between the death of the intestate
and the taking out letters of administration,3 but he cannot sue in
his representative character upon contracts made after the death of
the intestate in the course of carrying on the intestate's business.4
An action, however, is not maintainable by an executor or
administrator for a breach of promise of marriage made to the
deceased, where no special damage is alleged ;5 and, generally, with
respect to injuries affecting the life or health of the deceased, —
such, for instance, as arise out of the unskilfulness of a medical
practitioner,, or the negligence of an attorney, or a coach-pro-
prietor,— the maxim as to actio personalis is applicable, unless
some damage done to the personal estate of the deceased be stated
on *the record.6 But, where the breach of a contract relat- r^nny-i
ing to the person occasions a damage, not to the person
only, but also to the personal estate ; as, for example, if in the
case of negligent carriage or cure there was consequential damage
— if the testator had expended his money, or had lost the profits of
a business, or the wages of labor for a time ; or if there were a
joint contract to carry both the person and the goods, and both
were injured; it seems a true proposition, that, in these cases, the

1 Judgm., 2 C, M. & R. 596, £97 ; per Tindal, C. J., Orme v. Broughton
10 Bing. 537 (25 E. C. L. R.) ; Stubbs v. Holywell R. C, L. R. 2 Ex. 311 ; 1
Wnis. Saund. 112, n. (1) ; Edwards v. Grace, 2 M. & W. 190 ; Webb v. Cow-
dell, 14 M. & W. 820.

2 Cooper v. Johnson, 2 B. & Aid. 394 ; per Bayley, J., Rhodes v. Haigh, 2

B. & C. 346, 347 (9 E. C. L. R.) ; M'Dougal v. Robertson, 4 Bing. 435 (13 E.

C. L. R.) ; Tyler v. Jones, 3 B. & C. 144 (10 E. C. L. R.) ; Clarke v. Crofts, 4
Bing. 143 (13 E. C. L. R.) ; Knights v. Quarles, 2 B. & B. 102 (6 E. C. L. R.),
which was an action against an attorney for negligence in investigating a
title.

3 Foster v. Bates, 12 M. & W. 226.

4 Bolingbroke v. Kerr, L. R. 1 Ex. 222.

6 Chamberlain v. Williamson, 2 M. & S. 408.

6 Judgm., 2 M.&S. 415, 416; Beckham v. Drake, 2 H. L. Cas. 579, 596?
624. See Knights v. Quarles, 2 B. & B. 104.

907 broom's legal maxims.

executor might sue for the breach of contract, and recover damages
to the extent of the injury to the personal estate.1

The personal representatives, on the other hand, are liable, as
far as they have assets, on all the covenants and contract's of the
deceased broken in his lifetime,2 and likewise on such as are broken
after his death, for the due performance of which his skill or taste
was not required,3 and which were not to be performed by the de-
ceased in person.4 "The executors," observes Parke, B.,5 "are
in truth contained in the person of the testator, with respect to all
r*9081 ^*s contracts5 except indeed *in the case of & personal con-
tract, that is, a contract depending on personal skill, in
which is always implied the condition that the person is not pre-
vented by the act of God from completing the work. That condi-
tion is peculiar to personal contracts." The distinction must,
moreover, be noticed between a mere authority and a contract, the
former being revoked by death, whereas the latter is not determined
thereby, except as above mentioned.6

Further, the personal representatives are liable on a covenant by
deceased for their performance of a particular act, as for payment
of a sum of money ;7 for building a house left unfinished by the de-
ceased ;8 or on his contract for the performance of work by the
plaintiff, before the completion of which he died, but which was

2 Semble. " Where a relation exists between two parties which involves
the performance of certain duties by one of them, and the payment of reward
to him by the other, the law will apply, or the jury may infer a promise by
each party to do what is to be done by him j" and for breach of such a
promise by deceased, his executors might sue : Morgan v. Ravey, 6 H. & N.
265, 276.

' Per Parke, B., Siboni v. Kirkman, 1 M. & W. 423 ; per Patteson, J.,
Wentworth v. Cock, 10 A. & E. 445, 446 (37 E. C. L. R.) ; Hopwood v. Wha-
ley, 6 C. B. 744 (60 E. C. L. R.) ; Bac. Abr. " Executors and Administrators, "
(P. 1) ; Com. Dig. "Administration," (B. 14).

4 Hyde v: Dean of Windsor, Cro. Eliz. 552, 553 ; per Cur., Marshall v.
Broadhurst, 1 Cr. & J. 406.

6 Wills v. Murray, 4 Exch. 866. See Tasker v. Shepherd, 6 II. & N. 575.

6 Bradbury v. Morgan, 1 H. & C. 249.

7 Ex parte Tindal, 8 Bing. 404, 405 (21 E. C. L. R.), and cases there cited;
Powell v. Graham, 7 Taunt. 580 (2 E. C. L. R.).

8 Quick v. Ludborrow, 3 Bulstr. 30 ; recognised, 1 M. &. W. 423. See per
Cur., 1 Cr. & J. 405, 406 ; per Lord Abinger, C. B., 3 M. & W. 353, 354.

THE LAW OF CONTRACTS. 908

subsequently completed.1 And the same principle was held to
apply where an intestate had entered into an agreement to receive
from plaintiffs a certain quantity of slate monthly for a certain
period, a portion of which, when tendered after his death, but be-
fore the expiration of the stipulated period, his administrator re-
fused to accept.2

The action of debt on simple contract, except for rent,3 did not,
however, formerly lie against the personal representative for a debt
contracted by the deceased,4 unless the undertaking to pay origi-
nated *with the representative ;5 and the reason of this was,
that executors or administrators, when charged for the >- -•
debt of the deceased, were not admitted to wage their law, and,
consequently, were deprived of a legal defence which the deceased
himself might have made use of; but this reason did not apply to
assumpsit, which, therefore, might always have been brought.6
Now, however, by stat. 3 & 4 Will. 4, c. 42, s. 13, wager of law is
abolished ; and by sec. 14 it is enacted, that an action of debt on
simple contract shall not be maintainable in any court of common
law against an executor or administrator.

It is, however, to actions in form ex delicto that the rule Actio
personalis moritur cum persond is peculiarly applicable; indeed, it
has been observed that this maxim is not applied in the old authori-
ties to causes of action on contracts, but to those in tort which are
founded on malfeasance or misfeasance to the person or property of
another; which latter are annexed to the person, and die with
the person, except where the remedy is given to the personal rep-
resentative by the statute law;7 it being a general rule that
an action founded in tort, and in form ex delicto, was considered as
actio personalis, and within the above maxim.8 But, by stat. 4

1 Corner v. Shew, 3 M. & W. 350, 352. See per Alderson, B., Prior v.
Hembrow, 8 M. & W. 889, 890.

2 Wentworth v. Cock, 10 A. & E. 42 (37 E. C. L. R.).

3 Narwood v. Read, Plowd. 180. * Barry v. Robinson, 1 N. R. 293.
6 Riddell v. Sutton, 5 Bing. 206 (15 E. C. L. R).

«3Bla. Com., 16th ed., 347, and n. (12). In Perkinson v. Gilford, Cro.
Car. 539, debt was held to lie against the executors of a sheriff, who had
levied under a Ji. fa., and died without paying over the money. As to a
set-off by an executor sued as such, see Mardall v. Thellusson, 6 E. & B. 976
(88 E. C. L. R) , s. c, 18 Q. B. 857 (83 E. C. L. R.).

' Per Lord Abinger, C. B., 2 C, M. & R. 597.

8 Wheatley v. Lane, 1 Wms. Saund. 216, n. (1).

909 broom's legal maxims.

Edw. 3, c. 7, reciting, that, in times past, executors had not had
actions for a trespass done to their testators, — as of the goods and
chattels of the said testators carried away in their lifetime, — it is
r*Q1fn enacted, that the executors, in such *cases, shall have an
action against the trespassers, in like manner as they
■whose executors they are should have had if they were living.1
This Act has always been expounded liberally ;2 and, by virtue of
it, executors may maintain ejectment, quare impedit, trover,
or replevin, the conversion or taking having been in the testator's
lifetime.3 Case also lies by an executor against a sheriff for a false
return to &fi. fa. made in the lifetime of testator,4 or for an escape
on final process.5

And here we may remind the reader that the right of an execu-
tor to the personal estate of the testator is derived from the will,
and the property in the personal goods and chattels of the testator
is vested in him immediately upon the testator's death, and he is
deemed to be in legal possession of them from that time, though
before probate granted.6 The title of an administrator, however,
is derived from the letters of administration, though it has relation
back, for many purposes, to the date of the death; for instance,
trespass has been held maintainable by an administrator for an act
r*Q111 ^one between the deatn> and the *grant of the letters of
administration.7 Detinue, however, will not lie by an

1 An administrator is within the equity of this statute (Smith v. Colgay,
Cro. Eliz. 384) ; and by stat. 25 Edw. 3, st. 5, c. 5, a similar remedy is ex-
tended to the executors of executors.

2 See per Lord Ellenborough, 0. J., Wilson v. Knubley, 7 East 134, 135 ; 1
Wms. Saund. 216, n. (1) ; Emerson v. Emerson, 1 Ventr. 187.

3 1 Wms. on Executors, 6th ed., 738 et seq. ; Bro. Abr. " Executors," 45 ;
Doe d. Shore v. Porter, 3 T. R. 13 ; Rutland v. Rutland, Cro. Eliz. 377 ; Com.
Dig. "Administration" (B. 13) ; 1 Wms. Saund. 217 n. See Doe d. Stace v.
Wheeler, 15 M. & W. 623.

4 Williams v. Gray, 1 Ld. Raym. 40: Com. Dig. "Administration" (B. 13).
6 Per Holt, C. J., Berwick v. Andrews. 2 Lord Raym. 973. See Palgrave

#. Windham, 1 Stra. 212 ; Le Mason v. Dixon, Sir W. Jones 173.

6 Judgm., Pemberton v. Chapman, 7 E. & B. 217 (90 E. C. L. R.) ; citing
Smith v. Milles, 1 T. R. 480.

7 Tharpe v. Stallwood, 5 M. & Gr. 760 (44 E. C. L. R.) ; recognised Foster
v. Bates. 12 M. & W. 226. See Welchman v. Sturgis, 13 Q. B. 552 (66 E. C.
L. R.). In Bodger v. Arch, 10 Exch. 333, the doctrine of relation was also held
applicable, under peculiar circumstances, so as to prevent the operation of
the Statute of Limitations. See per Parke, B., Id. 339, 340.

THE LAW OF CONTRACTS. 911

administrator for goods of the intestate, which the defendant has
re-delivered prior to the grant of administration.1

In regard to the doctrine of relation just mentioned, we may
add, in the words of a very learned judge, that "an act done by
one who afterwards becomes administrator to the prejudice of the
estate, is not made good by the subsequent administration. It is
only in those cases where the act is for the benefit of the estate,
that the relation back exists, by virtue of which relation the
administrator is enabled to recover against such persons as have
interfered with the estate, and thereby prevent it from being pre-
judiced and despoiled."2

Previously to the stat. 3 & 4 Will. 4, c. 42, no remedy was pro-
vided for injuries to the real estate of any person deceased com-
mitted in his lifetime;3 but section 2 of that statute enacts, that an
action of trespass, or trespass on the case, as the case may be,
shall be maintainable by the executors or administrators of any
person deceased, for any injury to the real estate of such person
committed in his lifetime, for which an action might have been
maintained by such person, so as such injury shall have been com-
mitted within six calendar months before the death of such deceased
person, and provided such action shall be brought within one year
after the death of such person; and the *damages, when
recovered, shall be part of the personal estate of such L -•
person.4

Notwithstanding, however, the statutory exceptions above noticed
to the general rule which was recognised by the common law, this
rule still applies where a tort is committed to a man's person,
feelings, or reputation, as for assault, libel, slander, or seduction of
his daughter: in such cases, no action lies at suit of the executors
or administrators, for they represent not so much the person as the
personal estate of the testator or intestate, of which they are in
law the assignees.5

Again, prior to the 9 & 10 Vict. c. 93, (amended by 27 & 28
Vict. c. 95,) an action was not maintainable against a person who,

1 Crossfield v. Such, 8 Exch. 825.
3 Per Parke, B., Morgan v. Thomas, 8 Exch. 307.
3 1 Wms. Saund, 217, n.

* See Adam v. Inhabs. of Bristol, 2 A. & E. 389, 402 (29 E. C. L. R.) ; 1
Wms. on Executors; 6th ed., 748.

6 3 Bla. Com., 16th ed., 302, n. (9) ; Com. Dig. "Administration" (B. 13).

912

BROOM S LEGAL MAXIMS.

by his wrongful act, occasioned the death of another; but by sect.
1 of that statute it is enacted, that "whensoever the death of a
person shall be caused by wrongful act, neglect, or default, and the
act, neglect, or default is such as would (if death had not ensued)
have entitled the party injured to maintain an action, and recover
damages in respect thereof,1 then and in every such case the person
who would have been liable if death had not ensued, shall be liable
to an action for damages, notwithstanding the death of the person
r*91-°l *nJure(*> anc* although the death shall have been caused *under
such circumstances as amount in law to felony." By sect.
2, it is further enacted, that " every such action shall be for the
benefit of the wife, husband, parent,2 and child,3 of the person
whose death shall have been so caused, and shall be brought by and
in the name of the executor or administrator of the person de-
ceased; or if there be no executor or administrator of the deceased,
or such action as aforesaid be not brought within six calendar
months after his death, then it may be brought in the name or
names of all or any of the persons for whose benefit the personal
representatives of the deceased would have sued.4 In every such
action the jury may give such damages as they may think propor-
tioned to the injury resulting from such death to the parties respect-
ively for whom and for whose benefit such action shall be brought;
and the amount so recovered, after deducting the costs not recovered
from the defendant, shall be divided amongst the before-mentioned
parties, in such shares as the jury by their verdict shall find and
direct." And, by sect. 3, the action for damages must be brought
within twelve calendar months after the death of such deceased
person. It will be observed, that this statute only applies where
death ensues from the particular wrongful act, and does not, there-

1 These words have reference, "not to the nature of the loss or injury sus-
tained, 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 had by his own negligence materially contributed to the acci-
dent whereby he lost his life, inasmuch as he, if living, could not have main-
tained an action for damages, although there had been negligence on the part
of the defendant, an action would not lie under the statute : Pym v. Great
Northern R. C, 2 B. & S. 759, 767 (110 E. C. L. R.).

2S. 5.

s Id. ; see Dickinson v. North Eastern R. C, 2 H. & C. 735.

4 27 & 28 Vict. c. 95, s. 1 ; see also $
3 Q. B. 555 ; et vide stat. 31 & 32 Vict. c. 119, ss. 25, 26.

THE LAW OF CONTRACTS. 913

fore, affect the class of cases above mentioned, viz., where a tort is
committed to the person which does not occasion death.1

By the statute 3 & 4 Will. 4, c. 42, s. 2, already mentioned, tres-
pass and case will also lie against personal Representatives r*q-|4.-|
for any wrong committed by any person deceased, in his
lifetime, to another in respect of his property, real or personal, so
as such injury shall have been committed within six calendar months
before such person's death, and so as such action shall be brought
within six months after the executors or administrators shall have
taken upon themselves the administration of the estate and effects of
such person.2 Prior to this Act, the remedy for a tort to the pro-
perty of another, real or personal, by an action in form ex delicto,
— such as trespass, trover, or case for waste, for diverting a water-
course, or obstructing lights, — could not have been enforced against
the personal representatives of the tort-feasor ;3 and, even now, no
action can be maintained against them under that statute for a per-
sonal tort committed by him.4 Cases, however, do occur where an
action founded in tort may be brought in assumpsit, and such an
action will, it seems,5 independently of the above Act, lie against
the executor.6 For instance, the executors of an innkeeper have
been held answerable for the value of articles lost *by the |-*q-. r-i
plaintiff whilst staying in the inn kept by the deceased.7

1 See, further, as to the operation of the above statute, Broom's Com., 4th
ed., 715 et seq.

2 With reference to this statute, see Richmond v. Nicholson, 8 Scott 134;
Powell v. Rees, 7 A. & E. 426 (34 E. C. L. R).

* 1 Wins. Saund. 216, n. (1). See Bacon v. Smith, 1 Q. B. 348 (41 E. C. L.
R.). Where chattels, wrongfully in the possession of testator, continued
in specie in the hands of his executor, replevin or detinue would have been
maintainable to recover the specific goods; Bro. Abr., " Detinue" pi. 19 ; Le
Mason v. Dixon, Sir W. Jones, 173, 174. See Crossfield v. Such, 8 Exch. 825.

4 1 Wms. Saund. 216, n. (1); Com. Dig., "Administration" (B. 15); 2
Inst. 382 ; Ireland v. Champneys, 4 Taunt. 884. By stats. 30 Car. 2, st. 1 , c.
7, and 4 & 5 Will. & M., c. 24, s. 12, the representatives of an executor or
administrator who has committed waste are rendered liable : see 2 Wms. on
Executors, 5th ed., 1567 ; Huntley v. Russell, 13 Q. B. 572 (66 E. C. L. R.).

As to the liability of the executor of an executor for a devastavit by the
latter, see Coward v. Gregory, L. R. 2 C. P. 153.

6 Ante, p. 907, n. 2.

6 Per Lord Mansfield, C. J., Hambly v. Trott, 1 Cowp. 373 ; recognised, 4
B. & Ad. 829 (24 E. C. L. R.).

T Morgan v. Ravey, 6 H. & N. 265. See stat. 26 & 27 Vict. c. 41.

915 broom's legal maxims.

In a recent case, where the question arose, whether the reigning
sovereign was liable to make compensation for a wrong done by the
servants and during the reign of his predecessor : Lord Lyndhurst,
C, observed, that if the case had been between subject and subject,
an action could not have been supported, upon the principle that
Actio personalis moritur cum persond : and, although it was con-
tended that a different rule prevails where the sovereign is a party,
that some authority should be adduced for such a distinction.1

For a tort committed to the person, it is clear, then, that at com-
mon law no action can be maintained against the personal represent-
atives of the tort-feasor, nor does the stat. 9 & 10 Vict. c. 93, as
amended by 27 & 28 Vict. c. 95, supply any remedy against the
executors or administrators of the party who, by his " wrongful act,
neglect, or default," has caused the death of another ; for the first
section of this Act renders that person liable to an action for dam-
ages, "who would have been liable if death had not ensued," in
which case, as already stated, the personal representatives of the
tort-feasor would not have been liable.

It may be observed, in concluding this subject, that cases occur,
ex. gr., respecting the right of action by or against a feme covert,2
surviving her husband, for an injury to her person or property, or
for her tortious act committed before or during coverture, — which
are exceedingly similar in principle and analogous to those which
PQIfil *nave Deen nere cited and commented on. It cannot,
however, be said with propriety that the maxim above illus-
trated is strictly applicable to such cases ; and it has, therefore,
been thought better to confine our attention to those in which the
right of action or liability either survives the death of the party, or,
in the words of the maxim, moritur cum

1 Vise. Canterbury v. A.-G., 1 Phill. 322.

s See per Erie, C. J., Capel v. Powell, 17 C. B. N. S. 747 (112 E. C. L. R.).

8 As to actions by and against the executors of a parson in respect of waste
and dilapidations, see Ross v. Adcock, L. R. 3 C. P. 655; Bunbury v. Hew-
son, 3 Exch. 558 ; Warren v. Lugger, Id. 579 : Bryan v. Clay, 1 E. & B. 38
(72 E. C. L. R.) ; Martin v. Roe, 7 E. & B. 237 (90 E. C. L. R.) ; Wise v. Met-
calfe, 10 B. & C. 299 (21 E. C. L. R.). In Bird v. Relph, 4 B. & Ad. 830 (24
E. C. L. R.) ; Patteson, J., observes, that " the action against the executor of
a parson for dilapidations is an anomalous action, and appears like an excep-
tion to the general rule that ' Actio personalis moritur cum persona.'' " See
also Gleaves v. Parfitt, 7 C. B. N. S. 838 (97 E. C. L. R.).

MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 917

*CHAPTER X. [*917]

MAXIMS APPLICABLE TO THE LAW OF EVIDENCE.

We have, in a previous Chapter, investigated certain rules of the
law of evidence which relate peculiarly to the interpretation of writ-
ten instruments ; it is proposed, in these concluding pages, to state
some few additional rules of evidence. Very little, however, has
been here attempted beyond a statement and brief illustration of
them ; because, on reflection, it appeared desirable at once to refer
the reader to treatises of acknowledged authority on the subject,
from which, after patient consideration of the more important cases
there indicated, a clear perception of the extensive applicability of
the following maxims can alone be derived.

Optimtjs Interpres Rekum Ustjs.

(2 Inst. 282.)
Usage is the best interpreter of things.

Custom, consuetudo, is a law not written, established by long
usage and the consent of our ancestors ;l and hence it is said that
usage, usus, is the legal evidence of custom.2 Moreover, where a
law is established by an implied consent, it is either common law
or custom ; if *universal, it is common law ;3 if particular r*oi gn
to this or that place, then it is custom. When any prac-
tice was, in its origin, found to be convenient and beneficial, it was
naturally repeated, continued from age to age, and grew into a law,

1 Jacob, Law Diet., tit. " Custom.'1''

* Per Bayley, J., 10 B. & C. 440 (21 E. C. L. R.).

• "In point of fact, the common law of England, lex non scripta, is nothing
but custom :" judgm., Nunn v. Varty, 3 Curt. 363. But the claim of any par-
ticular place to be exempt from the obligation imposed by the common law,
may also be properly called a custom. Id.

918 broom's legal maxims.

either local or national.1 A custom, therefore, or customary law,
may be defined to be an usage which has obtained the force of law,
and is, in truth, the binding law within a particular district, or at
a particular place, of the persons and things which it concerns :2
Consuetudo loci est ohservanda.3

There are, however, several requisites to the validity of a custom,
which can here be but briefly specified.

First, it must be certain, or capable of being reduced to a cer-
tainty.4 Therefore, a custom that lands shall descend to the most
worthy of the owner's blood, is void ; for how shall this worth be
determined? but a custom to descend to the next male of the blood,
exclusive of females, is certain, and therefore good. And a custom
T*9191 t0 *Pay a years improved value for a fine on a copyhold
estate is good ; for, although the value is a thing uncertain,
yet it may at any time be ascertained.5

Secondly, the custom must be reasonable in itself;6 it is not,
however, unreasonable merely because it is contrary to a particular
maxim or rule of the common law, for Consuetudo ex certd causd
raiionabili usitata privat communem legem1 — custom, when grounded
on a certain and reasonable cause, supersedes the common law ;8
in proof of which may be instanced the customs of gavelkind and
borough English,9 which are directly contrary to the law of de-

1 3 Salk. 112. Ex non scripto jus venit quod usus comprobavit ; nam diu-
turni mores consensu utentium comprobati legem, imitantur : I. 2. 9. Consue-
tudinis jus esse putatur id quod voluntate omnium sine lege vetustas compro-
bavit— Cic. de Invent, ii. 22.

2 Le Case de Tanistry, Davys R. 31, 32; cited judgm., 9 A. & E. 421 (36
E. C. L. R.) ; and in Rogers v. Brenton, 10 Q. B. 26, 63 (59 E. C. L. R.).

3 6 Rep. 67 ; 10 Rep. 139. See Busher, app., Thompson, resp., 4 C. B. 48
(56 E.G. L.R.).

4 Ante, p. 623 ; Bluett v. Tregonning, 3 A. & E. 554, 575 (30 E. C. L. R.),
(where the custom alleged was designated, per Williams, J., as " uncertain,
indefinite, and absurd") ; Constable v. Nicholson, 14 C. B. N. S. 230 (108 E.
C. L. R.) ; A.-G. v. Mathias, 27 L. J. Chanc. 761 : Padwick v.' Knight, 7 Exch.
854 ; Wilson v. Willes,'7 East 121 ; Broadbent v. Wilkes, Willes 360 ; s. c. (in
error), 1 Wils. 63 (which also shows that a custom must be reasonable) ; with
this case compare Rogers v. Taylor, 1 H. & N. 706 ; Carlyon v. Lovering, Id. 784.

6 1 Com. by Broom & Hadley 7J ; 1 Roll. Abr. 565 ; Davys R. 33.

6 Co. Litt. 113 a; Tyson v. Smith (in error), 9 A. & E. 406, 421 (36 E. C.
L. R.).

7 Litt. s. 169 ; Co. Litt. 33 b. 8 lb. See judgm., 5 Bing. 293.

9 See Muggleton v. Barnett, 2 H. & N. 653 ; s. c, 1 Id. 282. The law takes

MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 919

scent ; or, again, the custom of Kent, which is contrary to the law

of escheat.1 Referring to a peculiar custom respecting the descent

of copyhold land in a manor, Cockburn, C. J., observes in a recent

case,2 that such "local customs are remnants of the older English

tenures, which, though generally superseded by the feudal tenures

introduced after the dominion of the Normans had become firmly

established, yet remained in many places, probably in manors which

instead of passing into the possession of Norman lords remained in

the hands of the English proprietors. These customs, therefore,

are not merely the result of accident or caprice, but were originally

founded on some general principle or rule of descent."

^Further, a custom is not necessarily unreasonable be-

. . r*9201

cause it is prejudicial to the interests of a private man, if L J

it be for the benefit of the commonwealth ; as the custom to turn
the plough upon the headland of another, which is upheld in favor
of husbandry ; or to dry nets on the land of another, which is like-
wise upheld in favor of fishing and for the benefit of navigation.3
So, a custom the exercise of which causes interruption to a high-
way for a beneficial purpose and durmg a limited time may be
reasonable.4 And a custom that the tenant shall have the way-
going crop after the expiration of his term,5 or that a tenant, who
is bound to use a farm in a good and tenantable manner and ac-

notice of the custom of borough English, and the nature of this custom need
not, therefore, be specially set forth in pleading. (Judgm., Doe d. Hamilton
v. Clift, 12 A. & E. 579 (40 E. C. L. R.)). The same remark applies to the
custom of gavelkind. (Co. Litt. 175 b.)

1 See 2 Com. by Broom & Hadley 170.

2 Muggleton v Barnett, 2 H. & N. 681 ; s. c, 1 Id. 282 ; ante, p. 461.

» Judgm., Tyson v. Smith (in error), 9 A. & E. 421 (36 E. C. L. R.); Co.
Litt. 33 b. See Lord Falmouth v. George, 5 Bing. 286, 293 (15 E. C. L. R.).
A custom for all the inhabitants of B., as such, to enter the close of the
plaintiff and take fish there Without limit would be bad : Lloyd v. Jones, 6 C.
B. 81, 89 (60 E. C. L. R.); citing Gateward's Case, 6 Rep. 60 b; A.-G. v.
Mathias, 27 L. J. Chanc. 761. See Mounsey v. Ismay, 1 II. & C. 729 ; 3 Id.
486.

A custom for the inhabitants of a parish to exercise and train horses at all
seasonable times of the year in a place beyond the limits of the parish, is
bad : Sowerby v. Coleman, L. R. 2 Ex. 96.

* Elwood v. Bullock, 6 Q. B. 383 (51 E. C.' L. R.).

6 Wigglesworth v. Dallison, Dougl. 201 ; s. c, 1 Smith L. C, 6th ed., 539,
and Note thereto.

920 broom's legal maxims.

cording to the rules of good husbandry, shall be at liberty on quit-
ting the farm to charge his landlord with a portion of the expense
of draining land which needs drainage according to the rules of
good husbandry, though the drainage be done without his landlord's
knowledge or consent,1 is not unreasonable.2 But, on the other
r*921"l *ftanc^ a custom, which is contrary to the public good, or
injurious or prejudicial to the many, and beneficial only to
some particular person, is repugnant to the law of reason, for it
could not have had a reasonable commencement. For example, a
custom set up in a manor on the part of the lord, that the com-
moner cannot turn in his cattle until the lord has put in his own,
is clearly bad, for it is injurious to the multitude, and beneficial
only to the lord.3 So, a custom, that the lord of the manor shall
have 3?. for every pound-breach of any stranger,4 or that the lord
of the manor may detain a distress taken upon his demesnes until
fine be made for the damage at the lord's will, is bad.5 In these
and similar cases,6 the customs themselves are held to be void, on
the ground of their having had no reasonable commencement, — as
being founded in wrong and usurpation, and not on the voluntary
consent of the people to whom they relate f for it is a true princi-
ple, that no custom can prevail against right, reason, or the law of
nature. The will of the people is the foundation of that custom,
which subsequently becomes binding on them ; but, if it be ground-
ed, not upon reason, but error, it is not the will of the people,8

1 Mousley v. Ludlam, 21 L. J. Q. B. 64 ; Dalby t>. Hirst, 1 B. & B. 224.

In Cuthbert v. Cumming, 10 Exch. 809; s. c, 11 Exch. 405, a question
arose as to the reasonableness of an alleged usage of trade. See Grissell v.
Bristowe, L. R. 4 C. P. 36 ; Cropper v. Cook, L. R. 3 C. P. 194 ; Baines v.
Ewing, L. R. 1 Ex. 320.

2 The Marquis of Salisbury v. Gladstone, 9 H. L. Cas. 692 (cited ante, p.
461, and followed in Blewett, app., Jenkins, resp., 12 C. B. N. S. 16 (104 E. C.
L. R.)), is important with reference to the reasonableness of a custom ; et vide
Phillips v. Ball, 6 C. B. N. S. 811 (95 E. C. L. R.).

3 Year Bk., 2 H. 4, fol. 24, B. pi. 20 ; 1 Com. by Broom & Hadley 70.
* See the references, 9 A. & E. 422, n. (a) (36 E. C. L. R.).

6 Ante, p. 158.

6 Douglas app., Dysart resp., 10 C. B. N. S. 688 (100 E. C. L. R.). See
Phillips v. Ball, 6 C. B. N. S. 811 (95 E. C. L. R.).

' Judgm., 9 A. & E. 422 (36 E. C. L. R.).

8 See Taylor Civ. Law, 3d ed., 245, 246 ; Noy Max., 9th ed., p. 59 n (a) ;
Id. 60.

MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 921

and to such a custom the established maxim of law applies,
Malus usu8 est abolendus1 — an evil or invalid custom ought to be
abolished.

*Thirdly, the custom must have existsd from time im- r*qoo-i
memorial ;2 so that, if any one can show its commence-
ment, it is no good custom.3

Fourthly, the custom must have continued without any interrup-
tion ; for any interruption would cause a temporary cessation of
the custom, and the revival would give it a new beginning, which
must necessarily be within time of memory, and consequently the
custom will be void. But this must be understood with regard to
an interruption of the right ; for an interruption of the possession
only, for ten or twenty years, will not destroy the custom. As, if
the inhabitants of a parish have a customary right of watering
their cattle at a certain pool, the custom is not destroyed though
they do not use it for ten years : it only becomes more difficult to
prove ; but, *if the right be in any way discontinued for a r*qoQ-i
single day, the custom is quite at an end.4

1 Litt. s. 212 ; 4 Inst. 274, Hilton v. Earl Granville, 5 Q. B. 701 (48 E. C. L.
R.) (which is an important case with reference to the reasonableness of a mano-
rial custom or prescriptive right), commented on, but followed in Blackett v.
Bradley, 1 B. & S. 940, 954 (101 E. C. L. R.). See also Rogers v. Taylor, 1
H. & N. 706 ; Clayton v. Corby, 5 Q. B. 415 (48 E. C. L. R.) (where a pre-
scriptive right to dig clay was held unreasonable) ; cited, per Lord Denman,
C. J., 12 Q. B. 845 (64 E. C. L. R.) ; Gibbs v. Flight, 3 C. B. 581 (54 E. C. L.
R.) ; Bailey v. Stephens, 12 C. B. N. S. 91 (104 E. C. L. R.); Constable v.
Nicholson, 14 C. B. N. S. 230, 241 (108 E. C. L. R.). In Lewis v. Lane, 2
My. & K. 449, a custom inconsistent with the doctrine of resulting trusts was
held to be unreasonable.

" The Superior Courts have at all times investigated the customs under
which justice has been administered by local jurisdictions; and, unless they
are found consonant to reason and in harmony with the principles of law,
they have always been rejected as illegal ;" judgm., Cox v. Mayor of London,
1 H. & C. 358 ; s. c, L. R. 2 H. L. 239.

2 See as to the proofs whence immemorial usage, or the legal origin of a
toll, may be presumed, Holford, app., George, resp., L. R. 3 Q. B. 639, 649,
650 ; Bryant v. Foot, Id. 497 ; Lawrence c. Hitch, Id. 521 ; Shepherd v. Payne,
16 C. B. N. S. 132 (111 E. C. L. R.); Foreman v. Free Fishers of Whitstable,
L. R. 4 H. L. 266, and cases there cited.

3 1 Com. by Broom & Hadley 68. The above requisite of a good custom is,
however, qualified by the Prescription Act, 2 & 3 Will. 4, c. 71.

4 1 Com. by Broom & Hadley 69.

923 broom's legal maxims.

Fifthly, the custom must have been peaceably enjoyed and acqui-
esced in, not subject to contention and dispute. . For, as customs
owe their origin to common consent, their being immemorially dis-
puted, either at law or otherwise, is a proof that such consent was
wanting.1

Sixthly, a custom, though established by consent, must, when es-
tablished, be compulsory, "and not left to the option of every man,
whether he will use it or no. Therefore a custom that all the in-
habitants shall be rated towards the maintenance of a bridge will be
good; but a custom that every man is to contribute thereto at his
own pleasure is idle and absurd, and indeed no custom at all."2

Seventhly, customs existing in the same place "must be consist-
ent with each other ; one custom cannot be set up in opposition to
another. For if both are really customs, then both are of equal
antiquity, and both established by mutual consent : which to say of
contradictory customs is absurd."3

Eighthly, customs in derogation of the common law, or of the
general rights of property, must be strictly construed.4

Where, then, continued custom, characterized as above mentioned,
has acquired the force of an express law,5 reference must of course
r*Q94l be made to such custom in *order to determine the rights
and liabilities of parties, arising out of transactions which
are affected by it ; for Optimus interpres rerum usus. This maxim
is, however, likewise applicable to many cases, and under many cir-
cumstances, which are quite independent of customary law in the
sense in which that term has been here used, and which are regu-
lated by mercantile usage and the peculiar rules recognised by
merchants.

The law merchant, it has been observed, forms a branch of the
law of England, and those customs which have been universally and
notoriously prevalent amongst merchants, and have been found by
experience to be of public use, have been adopted as a part of it,
upon a principle of convenience, and for the benefit of trade and

1 1 Com. by Broom & Hadley 69.

2 Id. 73. 3 Id.

4 Id. ; judgm., 10 Q. B. 57 (59 E. C. L. R.) ; per Bayley, J., 2 B. & C. 839 (9
E. C. L. 11 ). See as to the above rule, per Cockburn, C. J., 2 H. & N. 680,
681.

6 See judgm., 9 A. & E. 425, 426 (36 E. C. L. R.).

MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 924

commerce; and, when so adopted, it is unnecessary to plead bad
prove them.1

In cases, also, relating to mercantile contracts, courts of law will,
in order to ascertain the usage and understanding of merchants,
examine and hear witnesses conversant with those subjects ; for
merchants have a style peculiar to themselves, which, though short,
yet is understood by them, and of which usage and custom are the
legitimate interpreters.2 And this principle is not *con- r*q9r-i
fined to mercantile contracts or instruments, although it
has been more frequently applied to them than to others ;3 but it
may be stated generally, that where the words used by parties have,
by the known usage of trade, by any local custom, or amongst par-
ticular classes, acquired a peculiar sense, distinct from the popular
sense of the same words, their meaning may be ascertained by re-
ference to that usage or custom.4 And the question in such cases
usually is, whether there was a recognised practice and usage with
reference to the transaction out of which the written contract be-
tween the parties arose, and to which it related, which gave a par-
ticular sense to the words employed in it, so that the parties might

1 Judgm., 7 Scott N, R. 327 ; ante, p. 919, n. 9. See Brandao v. Barnett, 12
CI. & F. 787 ; s. c, 3 C. B. 519 (54 E. C. L. R.) ; Bellamy v. Majoribanks, 7
Exch. 389 ; Jones v. Peppercorne, 28 L. J. Chanc. 158.

As to the mode of proving mercantile usage, see Mackenzie v. Dunlop, 3
Macq. Sc. App. Cas. 22.

2 3 Stark. Ev. 1033 ; (Id. 4th ed.r 701) ; cited 3 B. & Ad. 733 (23 E. C. L.
R.) ; per Lord Hardwicke, C, 1 Ves. sen. 459. See Startup v. Macdonald, 7
Scott N. R. 269 (where the question was respecting the reasonableness of the
time at which a tender of goods was made, in the absence of any usage of
trade on the subject) ; Coddington v. Paleologo, L. R. 2 Ex. 193, 197.

Evidence of former transactions between the same parties is receivable for
the purpose of explaining the meaning of the terms used in their written
contract: Bourne v. Gatliff, 1 1 CI. & Fin. 45. v

See, further, Johnston v. Usborne, 11 A. & E. 549 (39 E. C. L. R.) ; Stewart
v. Aberdein, 4 M. & W. 211, as to which case, see 1 Arnould Mar. Insur.,
2d ed., p. 154 (a).

3 Per Parke, J., Smith v. Wilson, 3 B. & Ad. 733 (23 E. C. L. R.), which
case has been repeatedly recognised, and where evidence was held admissible
to show that, by the custom of the country where a lease was made, the word
thousand, as applied to rabbits, denoted twelve hundred. Spicer v. Cooper, 1
Q. B. 424 (41 E. C. L. R.), is also in point.

4 Judgm., Robertsons. French, 4 East 135. See Carters. Crick, 4 II. &
N. 412.

46

925 broom's legal maxims.

be supposed to have used such words in that particular sense.
" The character and description of evidence admissible for that
purpose" being "the fact of a general usage and practice prevail-
ing in that particular trade or business, not the judgment and
opinion of the witnesses, for the contract may be safely and cor-
rectly interpreted by reference to the fact of usage, as it may be
presumed such fact is known to the contracting parties, and that
they contract in conformity thereto ; but the judgment or opinion
of the witnesses called affords no safe guide for interpretation, as
such judgment or opinion is confined to their own knowledge."1
r*Q9Cl *The following examples must here suffice in illustration
of the subject just adverted to,2 and in the margin will
be found references to a few cases, showing the operation of the
well-known rule, that evidence of usage — mercantile or otherwise —
cannot be admitted to vary a written contract.3

In an action for the breach of a contract for the sale by the de-
fendants to the plaintiffs of a quantity of gambier, evidence was
held admissible to show that by the usage of the trade, a "bale"
of gambier was understood to mean a package of a particular de-
scription, and, consequently, that the contract would not be duly

1 Judgm., Lewis v. Marshall, 8 Scott N. R. 493 ; Russian Steam Nav. Co.
•v. Silva, 13 C. B. N. S. 610 (106 E. C. L. R.).

As to mercantile words see also Peek v. North Staffordshire R. C, 10 H. L.
Cas. 543.

2 See further from this subject, Broom's Com., 4th ed., Bk. II. Chap. 4, and
cases cited, infra.

3 In the under-mentioned cases, evidence of custom or usage was held
inadmissible for construing a mercantile instrument: Dickenson v. Jardine,
L. R. Z C. P. 639 ; Hall v. Janson, 4 E. & B. 500 (82 E. C. L. R.) ; Cockburn
». Alexander, 6 C. B. 791 (60 E. C. L. R.) ; Spartali v. Benecke, 10 C. B. 212
(70 E. C. L. R.) ; distinguished in Godts v. Rose, 17 C. B. 229, 234 (84 E. C.
L. ,R.), and in Field v. Lelean, 6 II. & N. 617; Courturier v. Hastie, 8 Exch.
40 ; b.'c, 9 Exch. 102 ; Re Stroud, 8 C. B. 502 (65 E. C. L. R.). See Miller
v. Tetherington, 6 H. & N. 278 ; s. c, 7 Id. 954 ; Symonds v. Lloyd, 6 C. B.
N. S. 691 (95 E. C. L. R.) ; Foster v. Mentor Life Ass. Co., 3 E. & B. 48 (77
E. C. L. R.).

Parol evidence may be admitted to show that a person whose name appears
at the head of an invoice as vendor, was not in fact a contracting party :
Holding v. Elliott, 5 H. & N. 117, or to show that there never was any con-
tract between the parties, Rogers v. Hadley, 2 II. & C. 227 ; Kempson v.
Boyle, 3 Id. 763 ; Hurst v. Great Western R. C, 19 C. B. N. S. 310 (115 E.
C. L. R.). *

MAXIMS APPLICABLE TO THE LAW OF E V I D E N C E. 926

performed by making tender of packages of a totally different size
and description.1

*Where evidence of an established local usage — as on the r*qo7i
stock exchange of a particular town2 — is admitted to add *" *
to or to affect the construction of a written contract, it is admitted
on the ground that the contracting parties are both cognisant of the
usage, and must be presumed to have made their agreement with
reference to it. But no such presumption arises where one of the
parties is ignorant of it.3

In Dale v. Humfrey,4 the facts were as under : — the action was
for the price of linseed oil, alleged to have been bargained and sold
by the plaintiff to the defendants, and not accepted by them ; the
plaintiff had employed Messrs. T. &■ M., brokers, to sell for him the
oil in question ; and the defendants, also brokers, were employed by
S., to purchase oil for him ; the defendants accordingly, dealing
with the plaintiff's brokers, delivered to them a bought note in
these terms, " Sold this day for Messrs. T. k M. to our principals,
ten tons of linseed oil, &c, (signed by the defendants) ; the sold
note signed by the plaintiff's brokers, stated the oil to have been
sold to the defendants. The bought note was delivered to the plain-

1 Gorrissen v. Perrin, 2 C. B. N. S. 681 (89 E. C. L. R.). See Devaux v.
Conolly, 6 C. B. 640 (65 E. C. L. R.).

In the following cases evidence of mercantile usage has been admitted to
explain words or phrases occurring in written contracts: — "month," Simp-
son v. Margitson, 11 Q. B. 27 (63 E. C. L. R.) ; "net proceeds," Caine v.
Horsfall, 1 Exch. 519; "wet," as applied to palm oil, "Warder. Stuart, 1 C.
B. N. S. 88 (87 E. C. L. R.); "in regular turns of loading," Leidemann v.
Schultz, 14 C. B. 38 (78 E. C. L. R.) ; (with which compare Hudson v.
Clementson, 18 C. B. 213 (86 E. C. L. R.). See Boden v. French, 10 C. B.
866 (70 E. C. L. R.) ; Moore v. Campbell, 10 Exch. 323 ; Metzner v. Bolton, 9
Exch. 518 ; Sotilichos v. Kemp, 3 Exch. 105.

2 Bayliffe v. Butterworth, 1 Exch. 425 ; Pollock v. Stables, 12 Q. B. 765 (64
E. C. L. R.) ; Bayley v. Wilkins, 7 C. B. 886 . (62 E. C. L. R.) ; Taylor v.
Stray, 2 C. B. N. S. 174 (89 E. C. L. R.) ; Cropper v. Cook, L. R. 3 C. P. 194,
198 ; Viscount Torrington v. Lowe, L. R. 4 C. P. 26 ; Grissell v. Bristowe, Id.
36; Maxted v. Paine, L. R. 4 Ex. 81, 203 ; Davis v. Haycock, L. R. 4 Ex. 373 ;
Kidston v. Empire Mar. Ins. Co., L. R. 1 C. P. 535, L. R. 2 C. P. 357 ; Chap-
man v. Shepherd, L. R. 2 C. P. 228.

3 Kirchner v. Venus, 12 Moo. P. C. C, 361, 399 ; Sweeting v. Pearce, 9 C.
B. N. S. 534 (99 E. C. L. R.) ; s. c, 7 Id. 449 (97 E. C. L. R.). See Buckle
v. Knopp, L. R. 2 Ex. 125, 333.

4 E., B. & E. 1004 (96 E. C. L. R.) ; s. c, 7 E. & B. 266 (90 E. C. L. R.).

927 BROOM'S LEGAL MAXIMS.

tiff's brokers by the defendants, without disclosing the name of their
r*Q081 Pr^nc^Pa^ wno afterwards became insolvent, and *did not
accept the oil. In order to charge the defendants, proof
was given at the trial of a custom in the trade, that when a broker
purchased without disclosing the name of his principal, he was liable
to be looked to as purchaser; the evidence thus given was held by
the Court of Queen's Bench to have been admissible, and the action
was held maintainable against defendants.

" In a certain sense," remarked Lord Campbell, C< J., delivering
judgment in the above case,1 " every material incident which is
added to a written contract, varies it, makes it different from what
it appeared to be, and so far is inconsistent with it. If by the side
of the written contract without, you write the same contract with,
the added incident, the two would seem to import different obliga-
tions, and be different contracts. To take a familiar instance by
way of illustration : on the face of a bill of exchange at three
months after date, the acceptor would be taken, to bind himself to
the payment precisely at the end of the three months; but by
the custom he is only bound to do so at the end of the days of grace,
which vary according to the country in which the bill is made paya-
ble, from three up to fifteen. The truth is, that the principle on
which the evidence is admissible is, that the parties have not set
down on paper the whole of their contract in all its terms, but those
only which were necessary to be determined in the particular case
by specific agreement, and which of course might vary infinitely,
leaving to implication and tacit understanding, all those general and
unvarying incidents which a uniform usage would annex, and ac-
r*Q9cn cording to which they must in reason be ^understood to
contract, unless they expressly exclude them. To fall
within the exception, therefore, of repugnancy, the incident must
be such as, if expressed in the written contract, would make it in-
sensible or inconsistent;"2 and again, "It is the business of Courts
reasonably so to shape their rules of evidence as to make them
suitable to the habits of mankind and such as are not likely to ex-
clude the actual facts of the dealings between parties when they are

1 7 E. & B. 274, 275 (90 E. C. L. R.) ; judgm., Field v. Lelean, 6 H. & N.
627. See also the cases cited ante, p. 926.

2 See also judgm., Brown v. Byrne, 3 E. & B. 715 (77 E. C. L. R.), where
the prior cases are reviewed.

MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 929

to determine on the controversies which grow out of them. It can-
not be doubted, in the present case, that in fact this contract was
made with the usage understood to be a term in it: to exclude the
usage is to exclude a material term of the contract, and must lead
to an unjust decision."1

Besides cases such as have been just considered, there is another
extensive class of decisions referred to in a former chapter,2 in which
evidence of usage is admitted to explain and construe ancient
grants or charters, or to support claims not incompatible therewith.3
Nor is there any difference in this respect between a private deed
and the king's charter :4 in either case, evidence of *usage r*qorn
may be given to expound the instrument, provided such
usage is not inconsistent with, or repugnant to, its express terms.5
So, the immemorial existence of certain rights or exemptions, as a
modus or a claim to the payment of tolls, may be inferred from un-
interrupted modern usage.6

1 7 E. & B. 278, 279 (90 E. C. L. R.). In the following cases evidence of
usage has also been admitted to interpret or annex incidents to written con-
tracts: Syers v. Jonas, 2 Exch. Ill ; cited Harnor v. Groves, 15 C. B. 667,
674 ; and, per Alderson, B., Phillipps v. Briard, 1 H. & N. 25, who observes
that " evidence of custom is admissible to annex incidents to written con-
tracts, that is, something which is tacitly in the contract itself." In this case,
Pollock, C. B., observes that Brown v. Byrne, supra, ;<went a long way."
See, however, judgm., Hall v. Janson, 4 E. & B. 510 (82 E. C. L. R.) ; judgm.,
7 E. & B. 279 (90 E. C. L. R.). Brown v. Byrne was followed in Lucas v.
Bristow, E., B. & E. 907, 913 (96 E.-C. L. R.).

2 Ante, p. 682.

* Bradley v. Pilots of Newcastle, 2 E. & B. 427 (75 E. C. L. R.) ; Duke of
Beaufort v. Mayor of Swansea, 3 Exch. 413, 425 ; and cases cited, ante, p.
922, n. 2.

4 " All charters or grants of the Crown may be repealed or revoked when
thcjy are contrary to law, or uncertain or injurious to the rights and interests
of third persons, and the appropriate process for the purpose is by writ of
scire facias." Judgm., Reg. v. Hughes, L. R. 1 P. C. 87.

6 Per Lord Kenyon, C. J., Withnell v. Gartham, 6 T. R. 398 ; R. v. Salway,
9 B. & C. 424, 435 (1 7 E. C. L. R.) ; Stammers v. Dixon, 7 East 200 ; per Lord
Brougham, C, A.-G. v. Brazen Nose Coll., 2 CI. & Fin. 317 ; per Tindal, C.
J., 8 Scott N. R. 813.

6 See per Parke, B., Jenkins v. Harvey, 1 Cr., M. & R. 894 ; per Richard-
son, J., Chod v. Tilsed, 2 B. & B. 409 (6 E. C. L. R.) ; Foreman v. Free
Fishers of Whitstable, L. R. 4 II. L. 266, and cases there cited ; Earl of Egre-
mont v. Saul, 6A.O. 924 (33 E. C. L. R.) ; Brune v. Thompson, 4 Q. B.
543 (45 E. C. L. R.).

030 broom's legal maxims.

Generally, as regards a deed (as well as a will),1 — the state of the
subject to which it relates at the time of execution, may be inquired
into ; and where a deed is ancient, so that the state of the subject-
matter at its date cannot be proved by direct evidence, modern
usage and enjoyment for a number of years are admissible as evi-
dence raising a presumption that the same course was adopted from
an earlier period, and so to prove contemporaneous usage and en-
joyment at the date of the deed. Such a deed may, therefore, be
construed by evidence of the manner in which the subject to which
it refers has been possessed or used — Optimus interpres rerum usus.2
P^qo-ji Lastly, evidence of usage is likewise admissible to aid *in
interpreting Acts of Parliament, the language of which is
doubtful ; for jus et norma loquendi are governed by usage. The
meaning of things spoken or written must be such as it has con-
stantly been received to be by common acceptation,3 and that expo-
sition shall be preferred, which, in the words of Sir E. Coke,4 is
"approved by constant and continual use and experience :" Optima
enim est legis interpres consuetudo.5

We shall conclude these very brief remarks upon the maxim
Optimus interpres rerum usus in the words of Mr. Justice Story,
who observes, "The truth and appropriate office of a usage or
custom is, to interpret the otherwise indeterminate intentions of
parties, and to ascertain the nature and extent of their contracts,
arising, not from express stipulations, but from mere implications
and presumptions, and acts of a doubtful and equivocal character.
It may also be admitted to ascertain the true meaning of a particu-
lar word, or of particular words in a given instrument, when the
word or words have various senses, some common, some qualified,
and some technical, according to the subject-matter to which they

1 Ante, p. 613.

2 Per Lord Wensleydale, Waterpark v. Furnell, 7 H. L. Cas. 684 ; citing
Weld v. Hornby, 7 East 199 ; Duke of Beaufort v. Swansea, 3 Exeh. 413 ; A.-
G. v. Parker, 1 Ves. 43; 3 Atk. 576; per Lord St. Leonards, A.-G. v. Drum-
mond, 1 Dru. & W. 368. See the maxim as to contemporanea expositio — ante,
p. 682. As to construing the rubrics and canons see Martin v. Mackonochie,
L. R. 2 A. & E. 195.

3 Yaughan R. 169 ; per Crowder, J., The Fernioy Peerage, 5 H. L. Cas.
747; arg., R. v. Bellringer, 4 T. R. 819.

4 2 Inst. 18.

6 D. 1. 3. 37 ; per Lord Brougham, 3 CI. & Fin. 354.

MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 931

are applied. But I apprehend that it can never be proper to re-
sort to any usage or custom to control or vary the positive stipula-
tions in a written contract, and, a fortiori, not in order to contradict
them. An express contract of the parties is always admissible to
supersede, or vary, or control a usage or custom; for the latter
may always be waived at the will of the parties. But a written and
express contract cannot be controlled, or varied, or contradicted by
a usage *or custom; for that would not only be to admit r^qooT
parol evidence to control, vary, or contradict written con-
tracts; but it would be to allow mere presumptions and implications,
properly arising in the absence of any positive expressions of in-
tention, to control, vary, or contradict the most formal and delib-
erate declarations of the parties."1

CUILIBET IN SUA ARTE PERITO EST CREDENDUM.

(Co. Litt. 125 a.)

Credence should be given to one skilled in his peculiar profession.

Almost all the injuries, it has been observed, which one individ-
ual may receive from another, and which lay the foundation
of numberless actions, involve in them questions peculiar to the
trades and conditions of the parties; and, in these cases, the jury
must, according to the above maxim, attend to the witnesses, and
decide according to their number, professional skill, and means of
knowledge. Thus, in an action against a surgeon for ignorance,
the question may turn on a nice point of surgery. In an action
on a policy of life insurance, physicians must be examined. So,
for injuries to a mill worked by running water, and occasioned by
the erection of another mill higher up the stream, mill-wrights and
engineers must be called as witnesses. In like manner, many ques-
tions respecting navigation arise, which must necessarily be
decided by a jury, as in the ordinary case of deviation on a policy
of marine insurance, of seaworthiness, or where one ship runs
down another at sea in consequence of bad steering.2

1 The Schooner Reeside, 2 Sumner (U. S.) It. 567.

2 Johnstone v. Sutton (in error), 1 T. R. 538, 539.

933 broom's legal maxims.

P^qoo-i ^Respecting matters, then, of science, trade,1 and others
" of the same description, persons of skill may not only
speak as to facts, but are tven allowed to give their opinions
in evidence,2 which is contrary to the general rule, that the opinion
of a witness is not evidence. Thus the opinion of medical men is
evidence as to the state of a patient whom they have seen ; and
even in cases where they have not themselves seen the patient, but
have heard the symptoms and particulars of his state detailed
by other witnesses at the trial, their opinions on the nature of such
symptoms have been admitted.3 In prosecutions for murder, they
have, therefore, been allowed to state their opinion, whether the
wounds described by witnesses were likely to be the cause of
death.4

With respect to the admissibility in evidence of the opinion of a
medical man as to the state of mind of a prisoner when on his trial
for an alleged offence, the following question was recently proposed
to the judges by the House of Lords:5 "Can a medical man, con-
versant with the disease of insanity, who never saw the prisoner
previously to the trial, but who was present during the whole trial
and the examination of all the witnesses, be asked his opinion as
to the state of the prisoner's mind at the time of the commission
of the alleged crime, or his opinion whether the prisoner was con-
r*Q341 sci°us5 at tne time °f doing the act, that he was acting
^contrary to law, or whether he was labor ing under any,
and what, delusion at the time?" To the question thus proposed,
the majority of the judges returned the following answ er, which
removes much of the difficult}'' which formerly existed with refer-
ence to this, the most important practical applicati on of the maxim
under review, and must be considered as laying down the rule upon
the subject: "We think the medical man, under the circumstances
supposed, cannot, in strictness, be asked his opinion in the terms
above stated, because each of those questions involves the determi-

x The importance attached to the lex mercatoria, or custom of merchants
and the implied warranty by a skilled laborer, artisan, or artist, that he is
reasonably competent to the task he undertakes, may be referred to the maxim
supra.

2 1 Stark. Ev., 3d ed., 173, 175 ; Stark. Ev., 4th ed., 96, 273.

3 1 Phil. Ev., 10th ed., 521. 4 Id. ibid.
6 M'Naghten's Case, 10 CI. & F. 211, 212.

MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 934

nation of the truth of the facts deposed to which it is for the jury
to decide, and the questions are mere questions upon a matter of
science, in which case such evidence is admissible. But where the
facts admitted are not disputed, and the question becomes substan-
tially one of science only, it may be convenient to allow the
question to be put in that general form, though the same cannot be
insisted on as a matter of right."

Further, on the principle expressed by the maxim, Cuilibet in
sud arte perito est credendum, ship-builders have been allowed to
state their opinions as to the sea-worthiness of a ship from examin-
ing a survey which had been taken by others, and at the taking of
which they were not present; and the opinion of an artist is evi-
dence as to the genuineness of a picture.1 But, although r*qoc-i
^witnesses conversant with a particular trade may be
allowed to speak on a prevailing practice in that trade, and although
scientific persons may give their opinion on matters of science, it
has been expressly decided that witnesses are not receivable to state
their views on matters of legal or moral obligation, nor on the man-
ner in which others would probably have been influenced if particu-
lar parties had acted in one way rather than another.2 For in-
stance, in an action on a policy of insurance, where a broker stated,
on cross-examination, that in his opinion certain letters ought to
have been disclosed, and that, if they had, the policy would not
have been underwritten : this was held to be mere opinion, and not
evidence.3 And, in like manner, it seems, notwithstanding some

1 Phil. Ev., 10th ed., 522. So evidence as to the genuineness of hand-
writing given by a witness possessing the requisite experience and skill is
admissible, although little or no weight has, by many judges, been thought
to be due to testimony of this description. 2 Phil. Ev., 10th ed., 308 ; Doe d.
Mudd v. Suckermore, 5 A. & E. 703 (31 E. C. L. R.); Doe d. Jenkins v.
Davies, 10 Q. B. 314 (59 E. C. L. R.). See Brooks v. Tichbourne, 5 Exch.
929, 931 ; Newton v. Rickets, 9 H. L. Cas. 262.

And now by stat. 17 & 18 Vict. c. 125, s. 27, it is enacted that "comparison of
a disputed writing with any writing proved to the satisfaction of the judge to be
genuine shall be permitted to be made by witnesses ; and such writings, and the
evidence of witnesses respecting the same, may be submitted to the Court and
jury as evidence of the genuineness, or otherwise, of the writing in dispute."

2 Judgm., 5 B. & Ad. 846 (27 E. C. L. R.). See also Greville v. Chapman,
5 Q. B. 731.

3 Carter v. Boehm, 3 Burr. 1905, 1913, 1914 ; Campbell v. Rickards, 5 B. &
Ad. 840 (27 E. C. L. R.) ; with which compare Rickards v. Murdock, 10 B. &

935 broom's legal maxims.

conflicting decisions, that the opinions of undenvriters as to the ma-
teriality of facts, and the effect they would have had upon the
amount of premium, would not, in general, be admissible in evi-
dence ; it being the province of the jury, and not of any witness, to
decide what facts ought to be communicated.1 Where, however, the
fixing the fair price and value upon a contract to insure is a matter
of skill and judgment, and must be effected according to certain
r*9S6"l *general ru^es and principles of calculation applied to the
particular circumstances of each individual case, it seems
to be matter of evidence to show whether the fact suppressed would
have been noticed as a term in the particular calculation. In some
instances, moreover, the materiality of the fact withheld would be a
question of pure science ; in others, it is very possible that mere
common sense, although sufficient to comprehend that the disclosure
was material, would not be so to understand to what extent the risk
was increased by that fact ; and, in intermediate cases, it seems dif-
ficult in principle wholly to exclude evidence of the nature alluded
to, although its importance may vary exceedingly according to cir-
cumstances.2 Thus, it has been said,3 that the time of sailing may
be very material to the risk. How far it is so, must essentially de-
pend upon the nature and length of the voyage, the season of the
year, the prevalence of the winds, the conformation of the coasts,
the usages of trade as to navigation and touching and staying at
port, the objects of the enterprise, and other circumstances political
and otherwise, which may retard or advance the general progress of
the voyage. The material ingredients of all such inquiries are
mixed up with nautical skill, information, and experience, and are
to be ascertained in part upon the testimony of maritime persons,
and are in no case judicially cognisable as matter of law. The ulti-
mate fact itself, which is the test of materiality, that is, whether the
risk be increased so as to enhance the premium, is, in many
T*9S71 cases> an inquiry dependent upon the judgment of under-
writers *and others who are conversant with the subject of
insurance.

C. 257 (21 E. C. L. R.), and Chapman v. Walton, 10 Bing. 57. Upon the
above subject see 1 Arnould Mar. Ins., 2d ed., pp. 189 et seq.

1 Per Gibbs, C. J., Durrell v. Bederly, Holt N. P. C. 285 (3 E. C. L. R.).

2 3 Stark. Ev., 3d ed., 887, 888.

* Per Story, J., delivering judgment, M'Lanahan v. Universal Insurance
Co., 1 Peters (U. S.) R. 188.

MAXIMS APPLICABLE TO THE LAW OF E V I D E N C E. 937

The Sussex Peerage Case will be found to offer a good illustra-
tion of the above maxim as it applies to the legal knowledge of a
party, whose evidence it is proposed to take. In order to prove
the law prevailing at Rome on the subject of marriage, a Roman
Catholic Bishop was there tendered as a witness, and was subjected
to examination as to the nature and extent of the duties of his
office in its bearing on the subject of marriage, with the view of
ascertaining whether he had such a peculiar knowledge of the law
relative to marriage as would render him competent to give evi-
dence respecting it. It appeared from this examination, that the
witness had resided more than twenty years at Rome, and had
studied the ecclesiastical law prevailing there on the above subject ;
that a knowledge of this law was necessary in order to the due
discharge of an important part of the duties of his office ; that the
decision of matrimonial cases, so far as they might be aifected by the
ecclesiastical and canon law, fell within the jurisdiction of Roman
Catholic bishops ; and, further, that the tribunals at Rome would
respect and act upon his decision or judgment in any particular
case if it was unappealed from. It was held, that the witness came
within the definition of peritus, and was admissible accordingly.1
In a more recent case it has been held that the mercantile custom
or usage of a foreign country *bearing on any particular r*qoo-i
subject may be proved by one who, though not a lawyer
by profession, nor having filled any official appointment as judge,
advocate, or solicitor, can satisfy the Court that he had special and
peculiar means of acquiring knowledge respecting it.2

Lastly, although in accordance with the principal maxim, a
skilled witness may be examined as to mercantile usage, or as to

1 The Sussex Peerage, 11 CI. & Fin. 85. See also Di Sora v. Phillipps. 10
H. L. Cas. 624 ; per Lord Langdale, M. R., in Earl Nelson v. Lord Bridport,
8 Beav. 527 ; Baron de Bode v. Reg., 8 Q. B. 208, 246, 250, et seq. (55 E. C.
L. R.) ; The Perth Peerage, 2 H. L. Cas. 865, 874. "A long course of prac-
tice sanctioned by professional men, is often the best expositor of the law ;"
per Lord Eldon, C, Candler v. Candler, 1 Jac. 232.

2 Vander Donckt v. Thellusson, 8 C. B. 812 (65 E. C. L. R.). See Reg. V
Povey, 22 L. J. Q. B. 19 ; s. c, Dearsl. C. C. 32. In Bristow v. Sequeville, 5
Exch. 275, a witness was held inadmissible to prove the law of a foreign
country, whose knowledge of it had been acquired solely by studying it at an
university there situate.

938 broom's legal maxims.

the meaning of a term of art, he cannot be asked to construe * a
written document, for Ad qucestionem legis respondent judices.2

Omnia pr^sumuntur contra Spoliatorem.

(Branch, Max., 5th ed., p. 80.)
Every presumption is made against a ivrong-doer.

The following case will serve forcibly to illustrate the above
maxim. An account of personal estate having been decreed in
equity, the defendant charged the plaintiff with a debt as due to
the estate. It was proved that the defendant had wrongfully
opened a bundle of papers relating to the account, which had been
sealed up and left in his hands. It further appeared that he had
altered and displaced the papers, and that it could not be known
what papers might have been abstracted. The Court, upon proof
of these facts, disallowed the defendant's whole demand against the
r*qQQ-| plaintiff, although the Lord Chancellor *declared himself
satisfied, as indeed the defendant swore, that all the papers
entrusted to the defendant had been produced; the ground of this
decision being that in odium spoliatoris omnia prcesumuntur.3

Again, " if a man, by his own tortious act, withhold the evidence
by which the nature of his case would be manifested, every presump-
tion to his disadvantage will be adopted."* Where a party has the
means in his power of rebutting and explaining the evidence
adduced against him, if it does not tend to the truth, the omission
to do so furnishes a strong inference against him.5 Thus, where
a person who has wrongfully converted property will not produce

1 Kirkland v. Nisbet, 3 Macq. Sc. App. Cas. 766.

2 Ante, p. 102.

8 W ardour v. Berisford, 1 Vern. 452 ; s. c, Francis, M., p. 8. Sanson r.
Rurasey, 2 Vern. 561, affords another illustration of the maxim. See also
Dalston v. Coatsworth, 1 P. Wms. 731 ; cited, per Sir S. Romilly, S.-G., arg.,
Lord Melville's Trial, 29 St. Tr. 1194 ; Gartside v. Ratcliff, 1 Chanc. Cas. 292.

4 1 Smith L. C, 6th ed., 323 ; 1 Vern. 19. The maxim likewise applies to
the spoliation of ship's papers: The Hunter, 1 Dods. Adm. R. 480, 486 ; The
Emilie, 18 Jur. 703, 705.

6 3 Stark. Ev., 3d ed., 937.

MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 939

it, it shnll be presumed, as against him, to be of the best descrip-
tion.1 On the other hand, if goods are sold without any express
stipulation as to the price, and the vendor prove the delivery of the
goods, but give no evidence to fix their value, they are presumed
to be worth the lowest price for which goods of that description
usually sell ; but, if the vendee himself be shown to have sup-
pressed the means of ascertaining the truth, then a con- r*qjnn
trary ^presumption arises, and the goods are taken to be
of the very best description.2

According to the same principle, if a man withhold an agreement
under which he is chargeable, after a notice to produce, it is pre-
sumed, as against him, to have been properly stamped, until the
contrary appear.3 Where a public officer, such as a sheriff, pro-
duces an instrument, the execution of which he was bound to pro-
cure, as against him it is presumed to have been duly executed.4
Moreover, if a person is proved to have defaced or destroyed any
written instrument, a presumption arises, that, if the truth had
appeared, it would have been against his interest, and that his con-
duct is attributable to his knowledge of this circumstance, and,
accordingly, slight evidence of the contents of the instrument will
usually, in such a case, be sufficient.5 A testator made a will, by
which he devised certain premises to A., and afterwards made
another will, which was lost, and which the jury found, by special
verdict, to have been different from the former will, though they did
not find in what particular the difference consisted : the Court de-

1 Armory v. Delamirie, 1 Stra. 504 (followed in Mortimer v. Cradock, 12 L.
J. C. P. 166 ; and applied by Lord Cairns, Hammersmith and City 11. C. v
Brand, L. R. 4 H. L. 224; and by Sir S. Roniilly, S.-G., arg., Lord Melville's
Trial, 29 St. Tr. 1193-4). But "a person who refuses to allow his solicitor
to violate the confidence of the professional relation" cannot be regarded in
the same odious light as was the jeweller in the above case ; per Lord Chelms-
ford, Wentworth v. Lloyd, 10 H. L. Cas. 591.

2 Clunnes v. Pezzey, 1 Camp. 8 ; followed Lawton v. Sweeney (Exch.), 8
Jur. 964. See Hayden v. Hayward, 1 Camp. 180.

3 Crisp v. Anderson, 1 Stark. N. P. C. 35 (2 E. C. L. R.).

4 Scott v. Waithman, 3 Stark. N. P. C. 168 ; Plumer v. Brisco, 11 Q. B. 52
(63 E. C. L. R.) ; Barnes v. Lucas, 1 Ry. & M. 264 (21 E. C. L. R.).

* 1 Phil. Ev., 10th ed., 477, 478, where various cases are cited exemplifying
the maxim in the text; Annesley v. Earl of Anglesey, 17 Howell St. Tr.
1430 ; 1 Stark. Ev., 3d ed., 409 ; Roe d. Haldane v. Harvey, 4 Burr. 2484 ;
Lord Trinilestown v. Kemmis, 9 CI. & F. 775.

940 broom's legal maxims.

cided that the devisee under the first will was entitled to the estate;
but Lord Mansfield observed, that, in case the devisee under the
first will had destroyed the second, it would have been a good
ground for the jury to find a revocation.1

r*Q4~n *With reference to the class of cases last mentioned, viz.,
where a deed or other instrument, which ought to be in
the possession of a litigant party, is not produced, the general rule
is, that the law excludes such evidence of facts as, from, the nature
of the thing, supposes still better evidence in the party's possession
or power. And this rule is founded on a sort of presumption that
there is something in the evidence withheld which makes against the
party producing it.2 Twyman v. Knowles3 may be referred to in
connection with this part of the subject. That was an action of
trespass qu. cl. fr., at the trial of which the plaintiff relied upon his
bare possession of the locus in quo, although it appeared that he
had taken the said premises under an agreement in writing which
was not produced; the judge directed the jury that, having proved
that he was in possession of the close at the time when the trespass
was committed, the plaintiff must have a verdict;4 but that to enti-
tle himself to more than nominal damages, he should have shown
the duration of his term. And this direction was upheld by the
Court in banco, Maule, J., observing, that the plaintiff had the
means of showing the quantum of his interest, and that "the non-
production of the lease raised a presumption that the production of
it would do the plaintiff no good."

If indeed the evidence alleged to be withheld is shown to be un-
attainable, the presumption contra spoliatorem ceases, and the infe-
r*Q4'9l r*or eyidence is admissible. If, therefore, *a deed be in
the possession of the adverse party, and not produced, or if
it be lost and destroyed, no matter whether by the adverse party
or not, secondary evidence is clearly admissible ; and if the deed be
in the possession of a third person, who is not by law compellable

1 Harwood v. Goodright, Cowp. 86.

5 As illustrating the nature and force of this presumption, see Lumley v.
Wagner, 1 De G., M. & G., 604, 633, 634.

3 13 C. B. 222 (76 E. C. L. 11.).

4 It is a well-known rule that " a person in possession is held to have a good
title against everybody except the legal owner of the estate." See [ex. gr.)
Daintry v. Brocklehurst, 3 Exch. 207, 210; ante, p. 713.

MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 942

to produce it, and he refuses to do so, the result is the same, for
the object is then unattainable by the party offering the secondary
evidence.1

The fabrication of evidence, we may further remark, is calculated
to raise a presumption against the party who has recourse to such
a practice, even stronger than when evidence has been suppressed
or withheld.

A considerable degree of caution should, nevertheless, be applied
in cases of this latter description, more especially in criminal pro-
ceedings,2 for experience shows that a weak but innocent man will
sometimes, .when appearances are against him, have recourse to
falsehood and deception, for the purpose of manifesting his inno-
cence and ensuring his safety.3

Omnia pr^sumuntur rite et solenniter esse acta.

(Co. Litt. 6 b. 332.)
All acts are presumed to have been rightly and regularly done.

Ex diuturnitate temporis omnia prcesumwitur rite et solenniter
esse acta.41 '; Antiquity of- time fortifieth *all titles and r^qjon
supposeth the best beginning the law can give them."5 And
again, "it is a maxim of the law of England to give effect to
every thing which appears to have been established for a considera-
ble course of time, and to presume that what has been done was
done of right, and not of wrong.}''6 This maxim applies as well

1 Judgm., Doe d. Gilbert v. Ross, 7 M. & "W. 121 ; Marston v. Downes, 1 A.
& E. 31 (28 E. C. L. R.) ; Cooke v. Tanswell, 8 Taunt. 450 (4 E. C. L. R.).

2 As to the maxim in such cases, see, per Mounteney, B., 17 Howell St. Tr.
1430; Norden's Case, Fost. C. L. 129.

3 1 Stark. Ev., 3d ed., 564, 565.

« Jenk. Cent. 185 ; Roberts v. Bethell, 12 C. B. 778 (74 E. C. L. R.), seems
to offer an illustration of the presumption omnia solenniter esse acta. See
Potez v. Glossop, 3 Exch. 191 ; observed upon, per Lord Wensleydale, Buller
v. Mountgarrett, 7 H. L. Cas. 647 ; Morgan v. Whitmore, 6 Exch. 716.

6 Hob. 257 ; Ellis v. Mayor of Bridgnorth, 15 C. B. N. S. 52 (109 E. C. L. R.).

6 Per Pollock, C. BM 2 II. & N. 623 ; and in Price v. Worwood, 4 II. & N.
514, where the same learned judge observes, ''The law will presume a state
of things to continue which is lawful in every respect ; but, if the continu-
ance is unlawful, it cannot be presumed."

943 broom's legal maxims.

where matters are in contest between private persons as to matters
public in their nature.1

For instance : a lease contained a covenant on the part of the
lessee that he would not, without the consent of the lessor, use, ex-
ercise, or carry on in the demised premises, any trade or business
whatsoever, nor convert the demised dwelling-houses into a shop,
nor suffer the same to be used for any other purpose than dwelling-
houses. One of the dwelling-houses was converted into a public-
house and grocery shop, and the lessor, with full knowledge thereof,
for more than twenty years received the rent. The plaintiff, having
purchased from the lessor the reversion of the premises in question,
brought an action of ejectment for breach of the covenant above
specified. — Held, that user of the premises in their altered state for
more than twenty years, with the knowledge of the lessor, was evi-
r* 04.4.1 dence from which a jury might presume a license.2 Where,
indeed, a private right is in question, the ^presumption
omnia rite essa acta may, as already stated, under various and
wholly dissimilar states of facts arise ex diuturnitate temporis. —
Thus, the enrolment of a deed may be presumed ; where there has
been a conveyance by lease and release, the existence of the lease
may be presumed on the production of the release ; and livery of
seisin, the surrender of a copyhold estate, or a reconveyance from
the mortgagee to the mortgagor, may be presumed.3

Again, where acts are of an official nature, or require the concur-
rence of official persons, a presumption arises in favor of their due

1 See, per Pollock, C. B., Reed v. Lamb, 6 H. & N. 85-86 ; per Crompton,
J., Dawson v. Surveyor of Highways for Willoughby, 5 B. & S. 924 (117 E.
C. L. R.).

2 Gibson v. Doeg, 2 II. & N. 615.

3 Per Watson, B., 2 II. & N. 777 ; and cases cited, Doe d. Robertson v.
Gardiner, 12 C. B. 319 (74 E. C. L. R.). So a lease will be presumed, in the
absence of evidence to the contrary, on production of the counterpart :
Hughes v. Clark, 10 C. B. 905 (70 E. C. L. R.). Upon a sale of leasehold
property, without any condition protecting the vendor against the production
of deeds, the vendor is bound to produce the lease which is the root of his
title, although the lease is more than sixty years old : Frend v. Buckley, L. R.
5 Q. B. 213. In Avery v. Bowden (in error), 6 E. & B. 973 (88 E. C. L. R.) -t
Pollock, C. B., observes, that "where the maxim of Omnia rite acta prcesu-
muntur applies, there indeed, if the event ought properly to have taken place
on Tuesday, evidence that it did take place on 'Tuesday or Wednesday is
strong evidence that it took place on the Tuesday."

MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 944

execution. In these cases the ordinary rule is, Omnia prcesumun-
tur rite et solenniter esse acta donee probetur in contrarium1 — every-
thing *is presumed to be rightly and duly performed until r*<> i-i
the contrary is shown.2 The following may be mentioned
as general presumptions of law illustrating this maxim : — That a
man, acting in a public capacity, was properly appointed and is duly
authorized so to do ;3 that in the absence of proof to the contrary,
credit should be given to public officers who have acted, prima* facie,
within the limits of their authority, for having done so with hon-
esty and discretion ;4 that the records of a court of justice have been
correctly made,5 according to the rule, Res judicata pro veritate
accipitur ;6 that judges and jurors do nothing causelessly and niali-

1 Co. Litt. 232 ; Van Omeron v. Dowick, 2 Camp. 44 ; Doe d. Phillips v.
Evans, 1 Cr. & M. 461 ; Powell v. Sonnett, 3 Bing. 381 (17 E. C. L. R.), offers
a good instance of the application of this maxim. Presumption as to signa-
ture, Taylor v. Cook, 8 Price 653. The Court will not presume any fact so as
to vitiate an order of removal : per Lord Denman, C. J., R. v. Stockton, 5 B.
& Ad. 550 (27 E. C. L. R.). See Reg. v. St. Paul, Covent Garden, 7 Q. B.
232 (53 E. C. L. R.j; Reg. v. Justices of Warwickshire, 6 Q. B. 750 (51 E. C.
L. R.) ; Reg. v. St. Mary Magdalen, 2 E. & B. 809 (75 E. C. L. R.). As to an
order of affiliation, see Watson v. Little, 5 H. & N. 472, 478. As to an award,
see, per Parke, B., 12 M. & W. 251 ; as to presuming an indenture of appren-
ticeship, Reg. v. Inhabs. of Fordingbridge, E., B. & E. 678 (96 E. C. L. R.) ;
Reg. v. Inhabs. of Broadhampton, 1 E. & E. 154, 162, 163 (102 E. C L. R.).

Qucere whether the maxim applies to the performance of a moral duty, see
per Willes, J., Fitzgerald v. Dressier, 7 C. B. N. S. 399 (97 E. C. L. R.).

2 See per Story, J., delivering judgment, Bank of the United States v. Dan-
dridge, 12 Wheaton (U. S.) R. 69, 70 (where the above maxim is illustrated
and explained); Davies v. Pratt, 17 C. B. 183 (84 E. C. L. R.).

8 Per Lord Ellenborough, C. J., R. v. Verelst, 3 Camp. 432; Monke v
Butler, 1 Roll. R. 83 ; M'Gahey v. Alston, 2 M. & W. 206 ; Faulkner v. John-
son, 11 M. & W. 581 ; Doe d. Hopley v. Young, 8 Q. B. 63 (55 E. C. L. R.) ;
Reg. v. Essex, Dearsl. & B. 369 ; M'Mahon v. Lennard, 6 II. L. Cas. 970.
See the above maxim applied, per Erie, C. J., Bremner v. Hull, L. R. 1 C. P.
759.

4 Judgm.,Earlof Derby v. Bury ImprovementCommissioners,L. R.4 Ex.226.

6 Reed v. Jackson. 1 East 355.

• D. 50. 17. 207 ; Co. Litt. 103 a; judgm., Magrath v. Hardy, 4 Blng. N. C.
796 (33 E. C. L. R.) ; per Alderson, B., Hopkins i>. Francis, 13 M. & W. 670;
Irwin v. Gray, L. R. 2 H. L. 20; Smith v. Sydney, L. R. 5 Q. B. 203.

A family Bible is in the nature of a record, and being produced from the
proper custody, is itself evidence of pedigrees entered in it: Hubbard v. Lees,

47

945 broom's legal maxims.

ciously 51 that the decisions of a court of competent jurisdiction are
l"*946~l We^ ^oun(^e(^ an(^ tneir judgments regular;2 and that facts
without proof of which the *verdict could not have been
found, were proved at the trial.3

Where the judgment of a court of competent jurisdiction is
brought under review, Lord Wensleydale4 thus indicates the degree
of weight, attributable to it — "I take it to be perfectly clear," re-
marks his lordship, "that when a Court of Error is considering a
former decision on appeal, that decision is not to be overturned
unless the Court of Error is perfectly satisfied that the decision is
wrong. Primd facie it is to be considered a right decision, and is
not to be deprived of its effect unless it is clearly proved to the sat-
isfaction of the judge that this decision is wrong ; but he must con-
sider the whole circumstances together, and if he still feels satisfied
upon the whole of the case that the decision is wrong, he ought un-
doubtedly to overturn it; it is only to be considered as prim a facie
right. The onus probandi lies on the opposite party to show that
it is wrong, and, if he satisfies the conscience of the judge that it is
wrong, it ought to be reversed."5

Besides the cases below cited,6 which strikingly illustrate the pre-
sumption of law under our notice, the following maybe adduced : —

1 Sutton v. Johnstone, 1 T. R. 503. See Lumley v. Gye, 3 E. & B. 114 (77
<E. C. L. R.).

* Per Bayley, J., Lyttleton v. Cross, 3 B. & C. 327 (10 E. C. L. R.) ; Reg.
v. Brenan, 16 L. J. Q. B. 289. See Lee v. Johnstone, L. R. 1 Sc. App. Cas.
426 : Morris v. Ogden, L. R. 4 C. P. 687, 699.

3Ter Buller, J., Spieres v. Parker, 1 T. R. 145. 146. If the return to a
mandamus be certain on the face of it, that is sufficient, and the Court cannot
intend facts inconsistent with it, for the purpose of making it bad. Per
Buller, J., R. v. Lyme Regis, 1 Dougl. 159. See R. v. Nottingham Water-
works Co., 6 A. & E. 355 (33 E. C. L. R.).

4 Mayor, &c, of Beverley v. A.-G., 6 II. L. Cas. 332, 333.

5 Et vide per Lord Chelmsford, ante, p. 168.

6 See, as to presuming an Act of Parliament in support of an ancient usage,
judgm., Reg. v. Chapter of Exeter, 12 A. & E. 532 (40 E. C. L. R.)— the
passing of a by-law by a corporation from usage, Reg. v. Powell, 3 E. & B.
377 (77 E. C. L. R.) ; in favor of acts of commissioners having authority by
statute, Horton v. Westminster Improvement Commissioners, 7 Exch. 780 ;
Reg. v. St. Michael's, Southampton, 6 E. & B. 807 (88 E. C. L. R.) ; an order
of justices for stopping up a road, Williams v. Eyton, 2 H. & N. 771, 777 •,
s. c, 4 Id. 357. See, also, Woodbridge Union v. Guardians of Colneis, 13 Q.
B. 269 (66 E. C. L. R.).

MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 947

*It is a well-established rule that the law will presume r^,«
in favor of honesty and against fraud ;l it will moreover
strongly presume against the commission of a criminal act, ex. g?:,
that a witness has perjured himself.2

The law will also presume strongly in favor of the validity of a
marriage, especially where a great length of time has elapsed since
its celebration3 — indeed the legal presumption as to marriage and
legitimacy is only to be rebutted by "strong, distinct, satisfactory
and conclusive" evidence.4

Where the claimant of an ancient barony, which has been long
in abeyance, proves that his ancestor sat as a peer in Parliament,
and no patent or charter of creation can be discovered, it is now
the established rule to hold that the barony was created by writ of
summons and sitting, although the original writ of summons or
enrolment of it is not produced.5 In The Hastings Peerage, it was
proved that A. B. was summoned by special writ to Parliament in
the 49th Hen. 3, but there was no proof that he ever sat, there being
no rolls or journals of that *period. A. B.'s son and heir, C. r*q i q-i
D., sat in the Parliament of 18 Edw. 1, but there was no proof
that he was summoned to that Parliament, there being no writs of
summons or enrolments of them extant from 49 Hen. 3 to 23
Edw. 1. It further appeared that C. D. was summoned to the
Parliament of 23 Edw. 1, and to several subsequent Parliaments,
but there was no proof that he sat in any of them. Held, that it
might be well presumed that C. D. sat in the Parliament of the

1 Middleton v. Barned, 4 Exch. 241 ; per Parke, B., Id. 243 ; and in Shaw,
app., Beck, resp., 8 Exch. 400; Doe d. Tatum v. Catomore, 16Q. B. 745, 747
(71 E. C. L. R.), with which compare Doe d. Shallcross v. Palmer, Id. 747.
See Trott v. Trott, 29 L. J., P., M. & A. 156.

2 Per Lord Brougham, McGregor v. Topham, 3 II. L. Cas. 147, 148 ; per
Turner, L. J., 4 De G., M. & G. 153.

3 Piers v. Piers, 2 II. L. Cas. 331 ; Sichel v. Lambert, 15 C. B. N. S. 781,
787, 788 (80 E. C. L. R.). And see Reg. v. Manwaring, Dearsl. & B. 132,
144 ; ante, p. 507, n. 5.

4 Per Lord Brougham, 2 H. L. Cas. 373 ; citing per Lord Lyndhurst, Mor-
ris v. Davies, 5 CI. & F. 265. See Lapsley v. Grierson, 1 II. L. Cas. 498 ; The
Saye and Sele Peerage, Id. 507 ; per Erie, J., Walton v. Gavin, 16 Q. B. 58
(71 E. C. L. R.) ; Harrison v. Mayor of Southampton, 4 De G., M. & G. 137,
153.

6 The Braye Peerage, 6 CI. & Fin. 757 ; The Vaux Peerage, 5 CI. & Fin.
526.

948 broom's legal maxims.

18th of Edw. 1, in pursuance of a summons, on the principle that
that Omnia prcesumuntur legitime facto donee probetur in con-
trarium.1

As regards the acts of private individuals, the presumption,
omnia rite esse acta, forcibly applies where they are of a formal
character, as writings under seal.2 Likewise, upon proof of title,
everything which is collateral to the title will be intended, without
proof; for, although the law requires exactness in the derivation of
a title, yet where that has been proved, all collateral circumstances
will be presumed in favor of right ;3 and, wherever the posses-
sion of a party is rightful, the general rule of presumption is
applied to invest that possession with a legal title.4 No greater
r*Q4Q1 oD^gati°n' i* nas> indeed, been *said,5 lies upon a court of
justice than that of supporting long continued enjoyment
by every legal means, and by every reasonable presumption ; this
" doctrine of presumption goes on the footing of validity, and up-
holds validity by supposing that everything was present which that
validity required," Omnia prcesumuntur rite fuisse acta, is the
principle to be observed.

In reference also to a claim by the rector of a parish to certain
fees, founded on prescription, it has been judicially observed that
uthe true principle of the law applicable to this question is that
where a fee has been received for a great length of time, the right
to which could have had a legal origin, it may and ought to be as-
sumed that it was received as of right during the whole period of

1 The Hastings Peerage, 8 CI. & Fin. 144.

2 See arg. and judgm., in Ricard v. Williams, 7 Wheaton (U. S.) R. 59 ;
Strother v. Lucas, 12 Peters (IT. S.) R. 452; s. p., 2 Id. 7G0 ; 2 Exch. 549;
D'Arcy v. Tamar, &c, R. C, 4 H. & C. 463, 467-8.

As to presumption that a foreign bill of exchange was duly stamped at the
time of its indorsement to plaintiff, Bradlaugh v. De Rin, L. R. 3 C. P. 286.

As to presumption of evidence of probate, see Doe d. Woodhouse v. Powell,
8 Q. B. 576 (55 E. C. L. R.).

As to presumption that a will was duly executed, Lloyd v. Roberts, 12 Moo.
P. C. C. 158, 165; Trott v. Trott, 29 L. J. P. M. & A. 156.

3 3 Stark. Ev., 3d ed., 936; 2 Wms. Saund., 5th ed., 42, n. (7).

4 Per Lord Ellenborough, C. J., 8 East 263. See Simpson, app., Wilkinson,
resp., 8 Scott N. R. 814; Doe d. Dand v. Thompson, 7 Q. B. 897 (53 E. C.
L. R.)

6 Per Lord Westbury, Lee v. Jonstone, L. R. 1 Sc. App. Cas. 435.

MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 949

legal memory, that is, from the reign of Richard I. to the present
time, unless the contrary is proved."1

On the same principle it is a general rule that, where a person is
required to do an act, the not doing of which would make him guilty
of a criminal neglect of duty, it shall be intended that he has duly
performed it unless the contrary be shown — stabit prcesumptio donee
probetur in contrarium ;2 negative evidence rebuts this presumption,
that all has been duly performed.3 Thus, on an indictment for the
non-repair of a road, the presumption, that an award, in relief of
the defendants, was duly made according to the directions of an
inclosure *Act, may be rebutted by proof of repairs subse-
quently done to the road by the defendants ; for, if the fact L ° J
had been in accordance with such presumption, they ought not to
have continued to repair.4

It is, however, important to observe, in addition to the above
general remarks, that, in inferior courts and proceedings by magis-
trates, the maxim, Omnia prcesumuntur rite esse acta, does not
apply to give jurisdiction.5

Thus, the Lord Mayor's Court in London is an inferior Court.
When therefore process had issued out of that Court against C. as
a garnishee, and he declared in prohibition, a plea which set up the
custom of foreign attachment, but did not allege, and the fact did
not warrant, any such allegation, that the original debt or the debt
alleged to be due from the garnishee to the defendant arose within
the city,- or that any one of the parties to the suit was a citizen or
was resident within the city, was held insufficient to show the ex-
istence of jurisdiction.6

1 Bryant v. Foot, L. R. 3 Q. B. 565 ; Lawrence v. Hitch, Id. 521.

2 Wing. Max. 712; Hob. R. 297; per Sir W. Scott, 1 Dods. Adm. R. 266 -
Davenport v. Mason, 15 Mass. (U. S.) R., 2d ed., 87. "It seems reasonable
that presumption which is not founded on the basis of certainty, should yield
to evidence which is the test of truth/' Id.

* Per Lord Ellenborough, C. J., R. v. Haslingdeld, 2 M. & S. 561 ; recog-
nising Williams v. East India Co., 3 East 192.

4 R. v. Haslingfield, 2 M. & S. 558 ; Manning v. Eastern Counties R. C. 12
M. & W. 237 : Doe d. Nanney v. Gore, 2 M. & W. 321 ; Heysham v. Forster,
5 Man. & Ry. 277.

6 Per Holroyd, J., 7 B. & C. 790 (14 E. C. L. R.). See Reg. v. Inhabs. of
Gate Fulford, Dearsl. & B. 74.

6 The Mayor, &c, of London v. Cox, L. R. 2 II. L. 239.

950 broom's legal maxims.

Again, where the examination of a soldier, taken before two
magistrates, was tendered in evidence to prove his settlement, but it
did not appear by the examination itself, or by other proof, that
the soldier, at the time when he was examined, was quartered in
the place where .the justices had jurisdiction, it was held not to be
admissible.1 So, in the case of an order by magistrates, their juris-
diction must appear on the face of such order ; otherwise, it is a
nullity, and not merely voidable.2 * Where an examination
L ' ' J before removing justices left it doubtful whether the ex-
amination had been taken by a single justice or by two, the Court
stated that they would look at the document as lawyers, and would
give it the benefit of the legal presumption in its favor ; and it was
observed, that the maxim, Omnia prcesumuntur rite esse acta ap-
plied in this case with particular effect, since the fault, if there
really had been one, was an irregular assumption of power by a
single justice, as well as a fraud of the two, in pretending that to
have been done by two, which was, in fact, done only by one.3

In a case before the House of Lords some remarks were made in
reference to this subject, which may be here advantageously in-
serted : — It cannot be doubted, that where an inferior court (a
court of limited jurisdiction, either in point of place or of subject-
matter) assumes to proceed, its judgment must set forth such facts
as show that it has jurisdiction, and must show also in what respect
it has jurisdiction. But it is another thing to contend that it must
set forth all the facts or particulars out of which its jurisdiction
arises. Thus, if a power of commitment or other power is given to
justices of a county, their conviction or order must set forth that
they are two such justices of such county, in order that it may be
certainly known whether they constitute the tribunal upon which
the statute they assume to act under has conferred the authority
to make that order or pronounce that conviction. But, although
it is necessary that the jurisdiction of the inferior court should
appear, *yet there is no particular form in which it should
L J be made to appear. The Court above, which has to ex-

1 R. v. All Saints, Southempton, 7 B. & C. 785 (14 E. C. L. R.).

2 Per Bayley, J., 7 B. & C. 790 (14 E. C. L. R.) ; R. v. Hulcott, 6 T. R.
583 ; R. v. Helling, 1 Stra. 8 ; R. v. Chilverscoton, 6 T. R. 178 ; R. v. Holm,
11 East 381 ; Reg. v. Totness, 11 Q. B. 80 (63 E. C. L. R.).

3 Reg. v. Silkstone, 2 Q. B. 520 (42 E. C. L. R,), and cases cited, Id. p. 729,
note (p).

MAXIMS APPLICABLE TO THE LAW OP EVIDENCE. 952

amine, and may control, the inferior court, must be enabled, some-
how or other, to see that there is jurisdiction such as will support
the proceeding ; but in what way it shall so sec it is not material,
provided it does so see it.1 The rule, therefore, may be stated to
be, that, where it appears upon the face of the proceedings that the
inferior court has jurisdiction, it will be intended that the proceed-
ings are regular ;2 but that, unless it so appears, — that is, if it
appear affirmatively that the inferior court has no jurisdiction, or,
if it be left in doubt, whether it has jurisdiction or not, — no such
intendment will be made.3 " The old rule for jurisdiction is, that
nothing shall be intended to be out of the jurisdiction of the supe-
rior court but that which specially appears to be so ; nothing is
intended to be within the jurisdiction of an inferior court but that
which is expressly alleged."4 And again, "it is necessary for a
party, who relies upon the decision of an inferior tribunal, to show
that the proceedings were within the jurisdiction of the Court.5

*In the great case of Grosset v. Howard,6 the Court of r*qrq-i
Exchequer Chamber held, that the warrant of the Speaker
of the House of Commons must be construed by the rules applied
in determining as to the validity of the warrants and writs issuing
from a superior court; and they remarked that, with respect

1 Per Lord Brougham, Taylor v. Clemson, 11 CI. & Fin. 610, affirming the
judgment of the Exchequer Chamber in s. c, 2 Q. B. 978 (42 E. C. L. 11.).
In this case, and in The Mayor, &c, of London v. Cox, L. R. 2 II. L. 239,
many authorities as to the necessity of showing jurisdiction are collected and
reviewed.

2 A presumption in favor of regularity in official practice is often made.
See (ear. gr.) Barnes v. Keane, 15 Q. B. 75, 82 (69 E. C. L. R.) ; Re Warne,
15 C. B. 767, 769 (80 E. C. L. R.) ; Baker v. Care, 1 H. & N. 674 ; Cheney v.
Courtois, 13 C. B,. N. S. 634 (106 E. C. L. R.) ; Robinson v. Collingwood, 17
C.B.N. S. 777 (112 E. C. L. R.).

3 Per Tindal, C. J., Dempster v. Purnell, 4 Scott N. R. 39 (citing Moravia
v. Sloper, Willes 30, and Titley v. Foxall, Id. 688) ; per Erie, J., Barnes v.
Keane, 15 Q, B. 84 (69 E. C. L. R.).

4 Arg., Peacock v. Bell, 1 Wins. Saund. 73 ; adopted Gosset v. Howard, 10
Q. B. 453 (59 E. C. L. R.) ; and in The Mayor, &c, of London v. Cox, L. R.
2 H. L. 259. See also further in connection with the text, Id. 261 et seq.

6 Per Alderson, B., Stanton v. Styles, 5 Exch. 583 ; ace. The Mayor, &o., of
London v. Cox, ubi supra.

6 10 Q. B. 411 (59 E. C. L. R.), where the cases with respect to the validity
of warrants were cited in argument.

953 broom's legal maxims.

to writs so issued, it must be presumed that they are duly issued,
that they have issued in a case in which the Court had jurisdiction,
unless the contrary appear on the face of them, and that they are
valid of themselves, without any allegation other than that of their
issue, and a protection to all officers and others in their aid acting
under them. Many of the writs issued by superior courts do,
indeed, upon the face of them, recite the cause of their issuing,
and show their legality — writs of execution for instance. Others,
however, do not, and, though unquestionably valid, are framed in a
form which, if they had proceeded from magistrates or persons
having a special jurisdiction unknown to the common law, would
have been clearly insufficient, and would have rendered them alto-
gether void. With respect to the Speaker's warrant, the Court
held themselves bound to construe it with at least as much respect
as would be shown to a writ out of any of the courts of Westmin-
ster; observing, in the language of Mr. Justice Powys,1 that "the
House of Commons is a great Court, and all things done by them
are intended to have been rite acta "2

[*954] *Res inter alios acta alteri nocere non debet.

(Wing. Max., p. 327.)
A transaction between two parties ought not to operate to the disadvantage

of a third.3

Of maxims relating to the law of evidence, the above may cer-
tainly be considered as one of the most important and most
practically useful ; its effect is to prevent a litigant party from being
concluded, or even affected, by the evidence, acts, conduct, or
declarations of strangers.4 On a principle of g<4od faith and

1 Reg. v. Paty, 2 Lord Raym. 1105, 1108.

a Judgm., Gosset v. Howard, 10 Q. B. 457 (59 E. C. L. R).

3 Res inter alios judicata? neque emolumentum ajferre his qui judicio non
interfuerunt neque prejudicium solent irrogare. — Cod. 7. 56. 2.

4 The maxim as to res inter alios acta, was much considered in Meddow-
croft v. Huguenin, 3 Curt. R. 303 (where the issue of a marriage which had
been pronounced null and void by the Consistorial Court, attempted unsuc-
cessfully to impeach that sentence in the Prerogative Court), s. c, 4 Moore
P. C. C. 386; cited, ante, p. 342, n. 3. See Reg. v. Fontaine Moreau, 11 Q.
B. 1028 (63 E. C. L. R.), and cases infra.

MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 954

mutual convenience, a man's own acts are binding upon himself,
and are, as well as his conduct and declarations, evidence against
him; yet it would not only be highly inconvenient, but also mani-
festly unjust, that a man shall be bound by the acts of mere
unauthorized strangers; and if a party ought not to be bound by
the acts of strangers, so neither ought their acts or conduct to bo
used as evidence against him.1

The above rule, then, operates to exclude all the acts, declara-
tions, or conduct of others as evidence to bind a party, either
directly or by inference; so that, in general, no declaration,
written entry, or affidavit made by a *stranger, is evidence r*orr-i
against a man ; nor can a person be affected, still less
concluded, by any evidence,2 decree, or judgment to which he was
not actually, or, in consideration of law, privy.3 From an import-
ant case,4 immediately connected with this subject, the following
remarks are extracted: — It is certainly true, as a general principle,

1 1 Stark. Evid., 3d ed., 58, 59, from which valuable work many of the
remarks appended to the above maxim have been extracted. See Armstrong
v. Normandy, 5 Exch. 409 ; Keg. v. Ambergate, &c, R. C, 1 E. & B. 372, 381
(72 E. C. L. R.) ; Salmon v. Webb, 3 H. L. Cas. 510.

2 See Humphreys v. Pensam, 1 My. & Cr. 580.

8 "It cannot be doubted that a man's assertions or admissions, whether
made in the course of a judicial proceeding or otherwise, and, in the former
case, whether he was himself a party to such proceeding or not, may be given
.in evidence against him in any suit or action in which the fact so asserted or
admitted becomes material to the issue to be determined. And in principle
there can be no difference whether the assertion or admission be made by the
party himself, who is and ought to be affected by it, or by some one employed,
directed, or invited by him to make the particular statement on his behalf.
In like *nanner a man who brings forward another for the purpose of assert-
ing or proving some fact on his behalf, whether in a court of justice or else-
where, must be taken himself to assert the fact which he thus seeks to estab-
lish :" per Cockburn, C. J., Richards v. Morgan, 4 B. & S. 661 (116 E. C.
L. R.).

4 See the opinion of the judges in the Duchess of Kingston's Case, 11
Howell St. Tr. 261. See, also, Needham v. Bremner, L. R. 1 C. P. 583;
Natal Land, &c, Co. v. Good,-L. R. 2 P. C. 121 ; Davies, demand., Lowndes,
ten., 7 Scott N. R. 141 ; Doe d. Bacon v. Brydges, Id. 333; Lord Trimlestown
v. Kemmis, 9 CI. & Fin. 781, cited Boileau v. Rutlin, 2 Exch. 665, 667. The
general rule stated in the text has, however, been departed from in certain
cases ; for instance, in questions relating to manorial rights, public rights of
way, immemorial custom, disputed boundary, disputed modus, and pedigrees.

955 broom's legal maxims.

that a transaction between two parties in judicial proceedings ought
not to be binding upon a third party, for it would be unjust to bind
any person who could not be admitted to make a defence, or
to examine witnesses, or to appeal from a judgment, which he might
think erroneous; and, therefore, the depositions of witnesses in
another cause1 in proof of a fact, the verdict of a jury finding the

[~*9561 **act' an(* ^ie *Judgment °f tne Court upon facts found,

although evidence against the parties and all claiming under

them, are not, in general, to J)e used to the prejudice of strangers.2

As between the parties to the original suit, it will be merely
necessary to observe, that the judgment of a court of concurrent
jurisdiction directly upon the point is as a plea, a bar, or as evi-
dence, conclusive, between the same parties upon the same matter
directly in question in another court.3 But, where the judgment
of a court of competent jurisdiction has been pronounced in rem,
and has actually operated upon the status of a particular thing, it
may happen that some other court, proceeding likewise in rem, may
pronounce a contrary judgment on the same subject-matter, in
which case it must be looked upon as arrogating to itself and exer-
cising the functions of a court of appeal, and it is only in this point
of view that its decision can be considered as warrantable. It must
be further observed, that in no case can a judgment be evidence of
any matter which came collaterally in question, though within the
jurisdiction of the Court, nor of any matter incidentally cognisable,
nor of any matter to be inferred by argument from the judgment;
and the above rule applies not only to the parties to the judgment,
but likewise to the privies thereto.4

As regards third persons, it is peculiarly necessary to notice the

distinction between judgments strictly inter partes and those in

rem; a judgment inter partes being, in general, conclusive between

the original parties only *and their privies;5 whereas a

*- -• judgment in rem renders the thing adjudicated upon, ipso

1 See, for instance, Morgan v. Nicholl, L. R. 2 C. P. 1 17.

2 See, also, judgm., King v. Norman, 4 C. B. 898 (56 E. C. L. R.).

3 Ante, p. 334.

4 Duchess of Kingston's Case, ubi supra, and note thereto, 2 Smith L. C.
6th ed., 679 et seq. ; Doe d. Lord Downe v. Thompson, 9 Q. B. 1037 (58 E. C.
L. R).

6 See, for instance, Lady Wenman v. Mackenzie, 5 E. & B. 447 (85 E. C.
L. R.).

MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 957

facto, such as it is thereby declared to be, and is, therefore, of
effect as between all persons whatever.1 Thus, a grant of probate
or of administration is in the nature of a decree in rem, and actually
invests the executor or administrator with the character -which it
declares to belong to him ; and such grant of probate or administra-
tion is accordingly (if genuine, unrevoked, and granted by a Court
of competent jurisdiction) conclusive as against all the world.2 So,
the sentence of a foreign Court of Admiralty, duly constituted and
of competent jurisdiction, decreeing a ship to be lawful prize, is
conclusive as to that which is in it, and as to the existence of the
ground on which it professes to proceed, against all persons, until
reversed by a regular court of appeal ; all the world, it has been
said, are parties to such a sentence.3 And, generally, where any
statute or law, decree or judgment, is of a public nature, or oper-
ates in rem, the rule as to res inter alios acta does not apply, for to
such proceedings all are privy.4

*It is likewise requisite to notice the distinction which
exists between the case in which a verdict or judgment inter L -1
partes is offered in evidence, with a view to establish the mere fact
that such a verdict was given, or such a judgment pronounced, and
that in which it is offered as a means of proving some fact which is
either expressly found by the verdict, or upon the supposed exist-
ence of which the judgment can alone be supported. In the latter
case, as above stated, the evidence will not, in general, be admis-
sible to conclude a third party ; whereas, in the former, the judg-
ment itself is invariably not only admissible as the proper legal
evidence to prove the fact, but is usually conclusive evidence for

1 But a verdict of guilty and judgment thereon on an indictment for
obstructing a public highway cannot be pleaded as an estoppel in an action
afterwards brought by the party convicted against a third person for using
the way: Petrie v. Nuttall, 11 Exch. 569.

2 See, per Buller, J., Allen v. Dundas, 3 T. R. 129 ; Prosser v. Wagner, 1
C. B. N. S. 289 (87 E. C. L. R.).

8 Per Lord Mansfield, C. J., Bernardi v. Motteux, Dougl. 581 ; Hughes v.
Cornelius, 2 Show. 232; per Lord Ellenborough, C. J., Bolton v. Gladstone,
5 East 160 ; 2 Park. Mar. Insur., 8th ed., 718 ; Kindersley v. Chase, cited Id.
743. As to the weight due to, and efficacy of a foreign judgment, see 2
Smith L. C, 6th ed., pp. 725 et seq.

* 1 Stark. Evid., 3d ed., 61, 62 ; Pim v. Currell, 6 M. & W. 234.

See Cammell v. Sewell, 5 H. & N. 728 ; s. c, 3 Id. 617, which was finally
decided, however, by reference to the lex loci contractus.

958 broom's legal maxims.

that purpose, since it must be presumed that the court has made a
faithful record of its own proceedings. Moreover, the mere fact
that such a judgment was given can never be considered as res
inter alios acta, being a thing done by public authority ; neither
can the legal consequences of such a judgment be ever so consid-
ered, for, when the law gives to a judgment a particular operation,
that operation is properly shown and demonstrated by means of the
judgment, which is no more res inter alios than the law which gives
it force.1

Having thus noticed that the general rule as to res inter alios
acta is not applicable, first, where a judgment is in rem, and,
secondly, where it is oifered as evidence merely to show that such
a judgment was, in fact, given, we may proceed to observe briefly
on several extensive classes of cases, in which, likewise, this rule
has no application.

r-^qrq-i *Thus, where the acts or declarations of others have any
legal operation material to the subject of inquiry, they
must necessarily be admissible in evidence, and the legal conse-
quences resulting from their admission, can no more be regarded as
res inter alios acta than the law itself. For instance, where a ques-
tion arises as to the right to a personal chattel, evidence is admissi-
ble even against an owner who proves that he never sold the
chattel, of a subsequent sale of the chattel in market overt ; for,
although he was no party to the transaction, which took place en-
tirely between others, yet, as such a sale has a legal operation on
the question at issue, the fact is no more res inter alios than the
law which gives effect to such a sale. So, in actions against the
sheriff, it very frequently happens that the law depends wholly on
transactions to which the sheriff is personally an entire stranger;
as, where the question is as to the right of ownership in particular
property seized under an execution ; and in these cases all transac-
tions and acts between others are admissible in evidence, which, in
point of law, are material to decide the right of property.2

In an action of assumpsit for making and fixing iron railings to
certain houses belonging to the defendant, the defence was, that the

1 1 Stark. Evid., 3d ed., 252 ; King v. Norman, 4 C. B. 884 (56 E. C. L. R.) ;
Thomas v. Russell, 9 Exch. 764; Drout v. Taylor, 16 C. B. 671 (81 E. C. L.
R.) ; Boileau v. Rutlin, 2 Exch. 665.

2 1 Stark. Evid., 3d ed., 61.

MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 959 ~

credit was given to A., by whom they were built under a contract,
and not to the defendant. A., who had become a bankrupt since
the railing was furnished, was called as a witness for the defendant,
and having stated that the order was given by him, he was asked
what was the state of the account between himsejf and the defend-
ant in reference to the building of the houses at the time of his
bankruptcy. To this question *A.'s reply was, that the r*qp/yi
defendant, had overpaid him by 350Z. On the part of the
plaintiff it was insisted that the state of the account between A.
and the defendant was not admissible in evidence; that it was res
inter alios acta; and that the inquiry was calculated improperly to
influence the jury. It was held, however, by the Court in banc,
that the evidence was properly received; and Erie, J., remarked,
that in an action for goods sold and delivered, a common form of
defence is, that the defendant is liable to pay another person, and
that in such cases the jury usually come to the conclusion that the
defendant in reality wants to keep the goods without paying for
them ; that the evidence in question went to show the bona fides
of the defence by proving payment to such third person; and that it
was not, therefore, open to the objection of being res inter alios acta.1
An exception similar to the preceding occurs where the conduct
or declaration of another operates, not by way of admission or
mere statement, but as evidence which the law admits, as being,
under the particular circumstances, not only free from objection,
but conducive to the ends of justice. Thus, if A. makes a private
memorandum of a fact in which B. has an interest, this memoran-
dum, generally speaking, would not be evidence against B. : it
would fall within the description of res inter alios acta ; but, if it
were a memorandum of a fact peculiarly within the knowledge of
A., and made in the usual course of business, and especially if A.
by that entry charged himself, it would be admissible in evidence
after the death of A. ; — not that it operates against B. by way of
admission of the fact ; for, if so, it would be admissible whether A.
*were living or dead; but because, under the circum- r*%i-|
stances above stated, the law considers the entry to be a
proper medium for communicating the original fact to the jury, the
testimony of A. himself being unattainable.2

1 Gerish v. Chartier, 1 C. B. 13, 17 (50 E. C. L. R.).

2 1 Stark. Evid., 3d ed., G2.

961 broom's legal maxims.

It has long been an established principle of evidence, that, if a
party who has knowledge of a fact make an entry of it, whereby
he charges himself or discharges another upon whom he would
otherwise have had a claim, such entry is admissible after his death
in evidence of the fact, because it is against his own interest;1 or,
as it has been said, an entry by a man against his own interest is
evidence against all the world:2 and, in order to render an entry
such as the above admissible, it is only necessary to prove the
handwriting and death of the party who made it.3

In the leading case on this subject, it was held, that an entry
made by a man-midwife, who had delivered a woman of a child, of
his having done so on a certain day, referring to his ledger, in
which he had made a charge for his attendance, which was marked
as "paid," was evidence upon an issue as to the age of such child
at the time of his afterwards suffering a recovery.4 Here, it
l"*Qfi91 *will be remarked, the entry was admitted, because the
party, by making it, discharged another, upon whom he

1 See per Bayley, J.. Doe d. Rcece v. Robson, 15 East 34.

2 Per Bayley, B., Gleadow v. Atkin, 1 Cr. & M. 423, adverting to Middleton
v. Melton, 10 B. & C. 317 (21 E. C. L. R.). In Doe d. Sweetland v. Webber
(1 A. & E. 740 (28 E. C. L. R.)), Lord Denman, C. J., observes, "Mere want
of interest, not coupled with other circumstances, has never, as far as I know,
been held a ground for admitting declarations as evidence." And a multo
fortiori a declaration of a deceased person obviously for his interest cou;d
not be received : see judgm., Plant v. Taylor, 7 II. & N. 238.

3 Per Parke, J., 3 B. & Ad. 889.

4 Higham v. Ridgway, 10 East 109 (distinguished in Doe d. Kinglake v.
Beviss, 7 C. B. 456, 490, 509, 512 (62 E. C. L. R.) ; and in Smith v. Blakey,
L. R. 2 Q. B. 326)) ; Bradley v. James, 13 C. B. 822, 925 (76* E. C. L. R.) ;
Pervicalw. Nanson, 7 Exch. 1 ; Edie v. Kingsford, 14 C. B. 759 (78 E. C. L.
R.) ; Doe d. Earl of Ashburnham v. Michael, 17 Q. B. 276 (79 E. C. L. R.).

In Higham v. Ridgway, it should be observed, there was evidence to show
that the work for which the charge was made was actually done. (See Doe
d. Gallop v. Vowles, 1 M. & Rob. 261.) Moreover, it will not be a valid objec-
tion to the admissibility of an entry, that it purports to charge the deceased,
and afterwards to discharge him ; for such an objection would go to the very
root of this sort of evidence. (Per Lord Tenterden, C. J., Rowe v. Brenton,
3 Man. & Ry. 267.) In The Sussex Peerage, 11 CI. & Fin. 112, Lord Brough-
am remarks that, " The law in Higham v. Ridgway has been carried far
enough, although not too far." It is applied in Reg. v. Overseers of Bir-
mingham, 1 B. & S. 763 (101 E. C. L. R.), (where a declaration was against
the proprietary interest of the party making it), with which ace. Reg. v. Exe-
ter, L. R. 4 Q. B. 341, 345.

MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 962

-would otherwise have had a claim. In another case, which was an
action of trover by the assignees of a bankrupt, two entries made
by an attorney's clerk, in a daybook kept for the purpose of
minuting his transactions, were held admissible, by the first of
which the clerk acknowledged the receipt of 100/. from his employer
for the purpose of making a tender, and in the second of which he
stated the fact of tender and refusal; for if an action had been
brought by the official assignee of the bankrupt against the clerk
for money had and received, the plaintiff could have proved by the
first entry that the defendant had received the 100Z. ; and, by the
second, he could have shown that the object for which the money
was placed in defendant's hands had not been attained. Conse-
quently, the declaration might be considered as the entry of a fact
within the knowledge of the deceased, which rendered him subject
to a pecuniary demand.1 And, generally, it may be observed, that
the rule as to res inter alios acta does not apply to exclude entries
made by receivers, stewards, and other agents *charging
themselves with the receipt of money; such entries being ■- -■
admissible after their decease, to prove the fact of their receipt of
such money.2

Nor does this rule operate in other cases to exclude the admis-
sion in evidence of declarations against the interest of the deceased.
For instance, an occupier proved to be in possession of a piece of
land, is primd facie, presumed to be owner in fee, and his declara-
tion is receivable in evidence, when it shows that he was only
tenant for life or years.3 So, in an issue between A. and B.,
whether C. died possessed of certain property, her declaration, that
she had assigned it to A., was held admissible.4 But it is clear,
that a person who has parted with his .interest in property cannot
be allowed to divest the right of another claiming under him by
any statement which he may choose to make ;5 and, therefore, the
declarations of a person who had conveyed away his interest in an

1 Marks v. Lahee, 8 Bing. N. C. 408 (21 E. C. L. R.).

2 Per Parke, J., Middleton v. Melton, 10 B. & C. 327 (2t E. C. L. It.).

3 Judgm., Crease v. Barrett, 1 C., M. & R. 931 ; per Mansfield, C. J., Peace-
able v. Watson, 4 Taunt. 16 ; Davies #. Pearce, 2 T. R. 53; Lord Trimlestown
v. Kemmis, 9 CI. & Fin. 780.

4Ivatu. Finch, 1 Taunt. 141.

5 Per Lord Denman, C. J , 1 A. & E. 740 (28 E. C. L. R.).

963 broom's legal maxims.

estate by executing a settlement, and had subsequently mortgaged
the same estate, were, after the death of the mortgagor, held inad-*
missible, on behalf of the mortgagee, to show that money had
actually been advanced upon the mortgage-1

An entry will also be admissible in evidence, if made at the time
of the transaction to which it relates, in the usual course and rou-
r*Qfi4-1 ^ne °^ Dus^ness5 Dy a person (since *deceased) who had no
interest to mis-state what had occurred. The case2 usually
referred to as establishing the above rule, was an action brought by
the plaintiff, who was a brewer, against the Earl of Torrington, for
beer sold and delivered ; and the evidence given to charge the de-
fendant showed, that the usual way of the plaintiff's dealing was, that
the drayman came every night to the clerk of the brewhouse, and
gave him an account of the beer they had delivered out, which he
set down in a book kept for that purpose, to which the draymen
signed their names; and that the drayman was dead whose name
appeared signed to an entry stating the delivery of the beer
in question. This was held to be good evidence of a delivery.

In another important case on this subject, at the trial of an action
of ejectment, it was proved to be the usual course of practice in an
attorney's office for the clerks to serve notices to quit on tenants,
and to indorse on duplicates of such notices the fact and time of
service; that, on one occasion, the attorney himself prepared a
notice to serve on a tenant, took it out with him, together with two
others, prepared at the same time, and returned to his office in the
evening, having indorsed on the duplicate of each notice a memo-
randum of his having delivered it to the tenant; and two of the
notices were proved to have been delivered by him on that occasion.
The indorsements so made were held admissible, after the attorney's
death, to prove the service of the third notice.3

1 Doe d. Sweetland v. Webber, 1 A. & E. 733 (28 E. C. L. R.). As to
declarations against interest, see also The Sussex Peerage, 11 CI. & Fin. 85 j
Smith v. Blakey, L. R. 2 Q. B. 326 ; per Lord Denman, C. J., Davis v. Lloyd,
1 Car. & K. 276 (47 E. C. L. R.).

2 Price v. Earl of Torrington, 1 Salk. 285 ; cited arg., Malcomson v. O'Dea,
10 IT. L. Cas. 605 ; and in Smith v. Blakey, L. R. 2 Q. B. 329, 333.

3 Doe d. Patteshall v. Turford, 3 B. & Ad. 890 (23 E. C. L. R.) ; cited, per
Sir J. Romilly, M. R., Bright v. Legerton, 29 L. J., Chanc, 852, 854 ; Stapyl-
ton v. Clough, 2 E. & B. 933 (75 E. C. L. R.); Eastern Union R. C. v.
Symonds, 5 Exch. 237 ; Doe d. Padwick v. Wittcomb, 4 H. L. Cas. 425 ; s. c,

MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 965

*It is necessary, however, that the particular entry be r#qrcT
contemporaneous with the circumstance to which it relates;
that it be made in the course of performing some duty, or discharg-
ing some office ; and that it be respecting facts necessary to the
performance of such duty ; for, if the entry contain a statement of
other circumstances, however naturally they may be thought to find
a place in the narrative, it will not be legal proof of those circum-
stances.1

In like manner, the declarations of deceased persons, and evi-
dence of reputation in matters of public prescription, pedigree, and
character, are admissible; not because strangers have any power to
conclude a party by what they may choose wantonly to assert upon
the subject in question ; but because the law considers such evidence
to be sufficiently deserving of credit, as a means of communicating
the real fact, to be offered to a jury. So, where declarations
accompany an act, they must either be regarded as part of the res
gestae, or as the best and most proximate evidence of the nature and
quality of the act ; their connection with which either sanctions
them as direct evidence, or constitutes them indirect evidence from
which the real motive of the actor may be duly estimated.2

Thus, an action was brought by a man on a policy of r*qp«-i
insurance on the life of his wife ; and the question arose
as to the admissibility of declarations made by the wife, when lying
in bed, apparently ill, as to the bad state of her health, at the
period of getting the regular surgical certificate, and down to that
time. These declarations were made to the witness, who was pro-
duced at the trial to relate the wife's own account of the cause of
her being found in bed by witness at an unseasonable hour, and
with the appearance of being ill, and were held admissible, on the
same ground, that inquiries of patients, by medical men, with the
answers to them, are evidence of the state of health of the patient

6 Exch. 601. See Doe d. Padwick v. Skinner, 3 Exch. 84 ; Reg. v. St. Mary,
Warwick, 1 E. & B. 816, 820, 825 (72 E. C. L. R.) ; Reg. v. Inhabs. of Worth,
4 Q. B. 132 (45 E. C. L. R.). See also Poole v. Dicas, 1 Bing. N. C. 649 (27
E. C. L. R.).

1 Chambers v. Bernasconi (in error), 1 C, M. & R. 347 j per Blackburn, J.,
Smith v. Blakey, L. R. 2 Q. B. 332; per Parke, J., 3 B. & Ad. 897, 898 (23
E. C. L. R.) ; per Pollock, C. B., Milne v. Leister, 7 H. & N. 795.

8 See Ford i>. Elliott, 4 Exch. 78 ; per Pollock, C. B., Milne v. Leister, 7 II.

& N. 796.

43

966 broom's legal maxims.

at the time ; and it was further observed, that this was not only
good evidence, but the best evidence which the nature of the case
afforded.1

So, where a bankrupt has done an equivocal act, his declarations
accompanying the act have been held admissible to explain his in-
tentions ; and, in order to render them so, it is not requisite that
such declarations were made at the precise time of the act in
question.2

So, in cases of treason and conspiracy, it is an established rule,
that, where several persons are proved to have combined together
for the same illegal purpose, any act dene by one of the party in
pursuance of the plan originally concerted, and with reference to
the common object, is, in the contemplation of law, the act of the
whole party ;3 though, where a question arises as to the admissi-
r*9671 kility of documentary evidence, for the purpose of im-
plicating a party, and showing his acquiescence in such
illegal purpose and common object, it will always be necessary to
consider, whether the rule scribere est agere applies,4 or whether the
evidence in question is merely the narrative of some third party of
a particular occurrence, and therefore, in its nature hearsay, and
original evidence.

The substance of the preceding remarks, showing the more im-
portant limitations of the general rule, Res inter alios acta alteri
nocere non debet, may be thus stated in the words of a learned
judge : — One great principle in the law of evidence is, that all such
facts as have not been admitted by the party against whom they
are offered, or some one under whom he claims, ought to be proved
under the sanction of an oath, (or its statutory equivalent,) either
on the trial of the issue, or some other issue involving the same
question, between the same parties, or those to whom they are
privy. To this rule certain exceptions have been recognised, some
from very early times, on the ground of necessity or convenience ;

1 Aveson v. Lord Kinnaird, 6 East 188 ; 1 Phill. Evid., 10th ed., 149.

2 Bateman v. Bailey, 5 T. R. 512. Per Tindal, C. J., Ridley v. Gyde, 9
Bing. 352 (23 E. C. L. R.) ; Rawson v. Haigh, 2 Bing. 99 (9 E. C. L. R.).
See Smith v. Cramer, 1 Bing. N. C. 585 (27 E. C. L. R.).

3 Per Bayley, J., Watson's Case, 32 Howell St. Tr. 7 ; Reg. v. Blake, 6 Q.
B. 126 (51 E. C. L. R.).

4 Ante, p. 312.

MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 967

such as the proof of the quality and intention of acts by declara-
tions accompanying them, of pedigrees and of public rights by tin-
statement of deceased persons presumably well acquainted with
the subject, as inhabitants of the district, in the one case, or rela-
tions, within certain limits, in the other; and another exception
occurs, where proof of possession' is allowed to be given by the
entries of deceased stewards or receivers charging themselves, or
proof of facts of a public nature by public documents.1

*Nemo tenetur seipsum accusare. [*968]

(Wing. Max. 486.)
No man can be compelled to criminate himself.*

The general policy of our law3 is in accordance with the rule
above stated. A Justice of the Peace, therefore, before receiving
the statement of the accused, is required, under the stat. 11 & 12
Vict. c. 42, s. 18, to administer to him the caution therein specifi-
cally set forth. A witness also is, in general,4 privileged from
answering not merely where his answer will criminate him directly,
but where it may have a tendency to criminate him.5 " The propo-
sition is clear," remarked Lord Eldon in Ex parte Symes,6 "that
no man can be compelled to answer what has any tendency to
criminate him," — which proposition is, it seems, to be thus quali-

1 Per Parke, B., 7 A. & E. 384, 385 (34 E. C. L. R.). For additional
information as to the maxim respecting res inter alios acta, the reader is
referred to 1 Tayl. Evid., 5th ed., pp. 334 et seq.

2 A man is competent to prove his own crime, though not compellable : per
Alderson, B., Udal v. Walton, 14 M. & W. 256.

3 As to the Scotch law on the above point, see Longworth v. Yelverton, L.
R. 1 Sc. App. Cas. 218.

4 See cases cited infra.

6 Fisher v. Ronalds, 12 C. B. 762 (74 E. C. L. R.) ; per Pollock, C. B.,
Adams v. Lloyd, 3 H. & N. 362 ; R. v. Garbett, 1 Den. C. C. 236. The cases
supporting this proposition are collected in Rose. Law of Evidence in Crim.
Cas., 4th ed., pp. 162 et seq. See Ex parte Fernandez, 10 C. B. N. S. 3 (100
E. C. L. R.) ; Re Fernandez, 6 H. & N. 717 ; Bradlaugh v. Evans, 11 C. B.
N. S. 377 (103 E. C. L. R.).

6 11 Ves. 525.

968 broom's legal maxims.

fied, that the danger to be apprehended by the witness must be
"real and appreciable with reference to the ordinary operation of
law in the ordinary course of things, not a danger of an imaginary
and unsubstantial character having reference to some extraordinary
and barely possible contingency, so improbable that no reasonable
man would suffer it to influence his conduct," for such a possibility
should not be suffered to obstruct the administration of justice.1
r*()fi°Tl *And' ^though a party to a cause, who has been subpoenaed
as a witness, cannot object to be sworn on the ground that
any relevant questions would tend to criminate him,2 he may, when
such objectionable questions are put, claim his privilege.3 Further,
an individual charged with the commission of a criminal act, cannot,
conformably to the course of justice in our tribunals, be interro-
gated by the Court, with a view to eliciting the truth, nor is he a
competent witness in the case.4

Where, however, the reason for the privilege of the witness or

1 Reg. v. Boyes, 1 B. & S. 311, 330 (101 E. C. L. R.). See Re Mexican and
South American Co., 28 L. J. Chanc. 631.
2 Boyle v. Wiseman, 10 Exch. 647.

3 The objection that interrogatories delivered under 17 & 18 Vict. c. 125, s.
51, tend to criminate the party sought to be interrogated must come from
himself when sworn : Osborn v. London Dock Co., 10 Exch. 698, followed in
Chester v. Wortley, 17 C. B. 410, 426 (84 E. C. L. R.) ; and in Bartlett v.
Lewis, 12 C. B. N. S. 249.

As to interrogatories tending to criminate, see Edmunds v. Greenwood, L.
R. 4 C. P. 70; Villeboisnet v. Tobin, Id. 184.

As to compelling a person to produce documents, the production of which
which might subject him to penalties, see Pritchett v. Smart, 7 C. B. 625 (62
E. C. L. R.), citing Bullock v. Richardson, 11 Ves. 373.

Whether or not a witness is compellable to answer questions having a ten-
dency to disgrace him, is ably discussed by Mr. Best in his Principles of the
Law of Evidence, 2d ed., pp. 163 et seq., to which the reader is referred. See
17 & 18 Vict. c. 125, s. 25.

In a criminal suit against a clergyman under the stat. 3 & 4 Vict. c. 86, the
defendant has been held to be competent to give evidence: Bishop of Norwich
v. Pearse, L. R. 2 A. & E. 281.

4 See A.-G. v. Radloff, 10 Exch. 84 ; Cattell v. Ireson, E., B. & E. 91 (96 E.

C. L. R.), in connection with the 14 & 15 Vict. c. 99, s. 3. See also Parker
v. Green, 2 B. & S. 299.

As the evidence of a witness implicated, in any proceeding " instituted in
consequence of adultery," see Hebblethwaite v. Hebblethwaite, L. R. 2 P. &

D. 29 5 32 & 33 Vict. c. 68, s. 3, cited ante, p. 537.

MAXIMS APPLICABLE TO THE LAW OF EVIDENCE. 969

party interrogated ceases, the privilege will cease also ;* as if the

prosecution to which the witness might be exposed or his liability to

a penalty or forfeiture *is barred by lapse of time, or if

the offence has been pardoned or the penalty or forfeiture L i -»

waived.2

The rule Nemo tenetur seipsum accmare, which has been desig-
nated3 "a maxim of our law as settled, as important and as wise as
almost any other in it," is, however, sometimes trenched upon, and
the privilege which it confers is in special cases abrogated.4 And
the legislature will sometimes on grounds of policy extend indem-
nity— partial or entire — to a witness whose privilege is taken away5
or not insisted on ; thus by the 24 & 25 Vict. c. 96 (" An Act to
consolidate and amend the statute law of England and Ireland re-
lating to larceny and other similar offences") it is enacted (s. 85),
that nothing in any of the preceding ten sections of that Act con-
tained which relate to frauds by agents, bankers, and factors, "shall
enable or entitle any person to refuse to make a full and complete
discovery by answer to any bill in equity, or to answer any question
or interrogatory in any civil proceeding in any court or upon the
hearing of any matter in bankruptcy or insolvency ; and no person
shall be liable to be convicted of any of the misdemeanors in any
of the said sections mentioned by any evidence whatever in respect
of any act done by him, if he shall at any time previously to his
being charged with such offence have *first disclosed such r*Q71-J
act on oath in consequence of any compulsory process of ■- ^
any court of law or equity in any action, suit or proceeding which
shall have been bond fide instituted by any party aggrieved, or if

1 Wigr. on Discovery, 2d ed., p. 83, where the equity cases upon the point
supra, are collected.

2 See Ex parte Fernandez, and Reg. v. Boyes, ante, 967, n. 5, and 968, n. 1.

3 Per Coleridge, J., Dearsl. & B. 61.

* It was held by a majority of the Court of Criminal Appeal, that the
examination of a bankrupt taken under the repealed statute 12 & 13 Vict. c.
106 (s. 117), may, although tending to criminate, afterwards be used as evi-
dence against him on a criminal proceeding : Reg. v. Scott, Dearsl. & B. 47 ;
Reg. u Cross, Id. 68; Reg. v. Skeen, Bell C. C. 97; Reg. v. Robinson, L. R.
1 C. C. 80, 85, 87, 90.

* For instance, under the 15 & 16 Vict. c. 57 (an Act to provide for more
effectual inquiry into the existence of corrupt practices at elections for mem-
bers to serve in Parliament), ss. 9, 10, 11.

971 broom's legal maxims.

he shall have first disclosed the same in any compulsory examina-
tion or deposition before any Court upon the hearing of any matter
in bankruptcy or insolvency."1 Also by sect. 86 it is further
enacted, that nothing in any of the eleven preceding sections of
the Act "nor any proceeding, conviction, or judgment to be had
or taken thereon against any person under any of the said sections,
shall prevent, lessen,- or impeach any remedy at law, or in equity,
which any party aggrieved by any offence against any of the said
sections might have had, if this Act had not been passed ; but no
conviction of any such offender shall be received in evidence in
any action at law, or suit in equity against him, and nothing in the
said sections contained shall affect or prejudice any agreement en-
tered into or security given by any trustee having for its object the
restoration or repayment of any trust property misappropriated."

The disclosure of any such illegal act as above referred to, in
order to be available as a protection, must have been made bond
fide, and must not have been a mere voluntary statement, made for
the express purpose of screening the person making it from the
penal consequences of his act.2

Lastly, in Reg. v. Gillyard,3 the facts were as under : — a malt-
ster, suspected of having violated the excise laws, Ob-
tained a conviction against his servant for the purpose, as
was suspected and charged, of relieving himself from penalties in
respect of the same transaction by force of the stat. 7 & 8 Geo. 4,
c. 52, s. 46. In support of a rule nisi to quash the conviction
thus had the affidavits stated circumstances, showing that the con-
viction in question had been collusively obtained, and no affidavit
ivas made in opposition to the rule. On behalf of the maltster it
was urged that he ought not (regard being had to the maxim now
under consideration) to have been called upon to defend himself by
affidavit on a charge which was virtually of a criminal nature.4
But the conviction nevertheless, was quashed as being "a fraud and
mockery, the result of conspiracy and subornation of perjury,"

1 See, also, 24 & 25 Vict. c. 96, s. 29, which has reference to the stealing or
fraudulent destruction of testamentary instruments.

2 See Reg. v. Strahan, 7 Cox. C.
pealed statute, 7 & 8 Geo. 4, c. 29, s. 52.

3 12 Q. B. 527 (64 E. C. L. R.).

4 Citing Stephens v. Hil

MAXIMS APPLICABLE TO THE LAW OF E V ID EN C E. 97J

Coleridge, J., remarking that, "where the Court observes such
dishonest practices it will interfere, although judgment has been
given," and that "no honest man ought to think it beneath him or
a hardship upon him to answer upon affidavit a charge of dis-
honesty made upon affidavit against him. If a man, when such a
serious accusation is preferred against him, will not deny it, he
must not complain if the case is taken pro confesno."

Having thus briefly touched upon some few rules relating chiefly
to the admissibility of evidence, and having considerably exceeded
the limits originally prescribed to myself, I now feel compelled re-
luctantly to take leave of the reader, trusting that, however slight
or disproportioned this attempt to illustrate our legal maxims may
appear, when compared with the extent and importance *of r*q7Qi
the subject, I have yet, in the language of Lord Bacon,
applied myself, not to that which might seem most for the ostenta-
tion of mine own wit or knowledge, but to that which might yield
most use and profit to the student; and have afforded some mate-
rials for acquiring an insight into those conclusions of reason —
those legum leges — essential to the true understanding and proper
application of the law — whereof, though some may strongly savor
of human refinement and ingenuity, the greater portion claim
from us instinctively, as it were, recognition — and why ? they have
been "written with the finger of Almighty God upon the heart
of man."1

1 See Calvin's Case, 7 Rep. 126.

vf

INDEX

The pages referred to are those between brackets [ ].

ABATEMENT. See Error.

plea in, to be verified by affidavit,
699 n.
ACCESSIO,

title by, in Roman law, 491.
ACCESSORIUM SEQUITUR PRIN-
CIPAL E.
instances of this rule, 491, 493.
ACCESSORY. See Criminal Law.

how punishable, 497.
ACCORD AND SATISFACTION,
may be pleaded, when, 882.
cannot be pleaded, when, 882, 883.
ACTION AT LAW. See Case, Con-
tract, Debt, Limitation, Trespass,
Trover, Venue.
for compensation' for injury to land,

5, n.
whether it will lie against the Sover-
eign, 57, 61.
right of, merges in felony, 162, 210.
consolidation of actions, 346.
intention, when material, 306, 309.
where death caused by wrongful act,

912.
Actio personalis morilur cum persona,
904. See Executor.
ACTUS

curise neminen gravabit, 122.
legis nemini est damnosus, 126.
Dei. 230, 234, 239.
ADMINISTRATOR. See Executor.
power of, as to contracts made after

intestate's death, 868.
relation of title of, 910.
ADVOWSON. See Lapse, Quare Im-
pedit.
appendant to a manor, 493.
AFFIDAVIT,

court will look solely at facts deposed

to therein, 164.
to be sufficiently intituled, 675.
AGENT. See Principal and Agent.
AIDER BY VERDICT, 181.
ALIEN. See Allegiance.
plea of alien enemy, 187.
ALIENATION,
how defined, 442.

ALIENATION— continued.

feudal system was opposed to, ib.
distinguished from subinfeudation,

443.
operation of statute Quia Emptores,
444.

De Prerogative Regis, ib.
De Donis, 445.
favored by the courts, 446.
by will, 447.

right of at common law, 448.
creation of perpetuities by will re-
strained, 452.
trusts for accumulation, ib.
by feme covert may be restrained.

453, 454.
of personalty favored, 455.
ALLEGANS CONTRA RI A,
rule as to, 169, 293, 294.
party bound by misrepresentation,

286 et seq., 293.
fictitious payee of bill, 295.
ALLEGIANCE
defined, 76.
release from, by act of Legislature,

77.
of aliens, 78.
ALLUVION,

where it belongs to the owner of the
land, 165.
AMBIGUITY

in pleading, 601, 602.

definition of latent and patent, 608.

rule as to patent, ib.

qualification of rule as to, 612.

latent, rule as to, 614.

admissibility of extrinsic evidence

respecting, 617.
rule of construction in absence of,
619.
ANCESTOR. See Heir, Sbisina.
ANNUITY,

grant of, after cohabitation, when
valid, 463.
APICES JURIS, 187.
APPEAL,

death of revising barrister, before
signing case, 241.

976

INDEX.

APPEAL OP DEATH, 351.
APPORTIONMENT

of rent, in what case, 231, 239, 282.
APPROPRIATION ■

of money paid, 810, 813, 815.
ARGUMENTUM AB INCONVENI-

ENTI, 184.
ARREST

on Sunday illegal, 22.
ASSAULT. See Trespass.
ASSIGNEE,

who is an assignee, 465.

what amount of interest is assignable,
467, 468, 470.

of chose in action, his rights, 469.

of bill of lading, 471.

liability of, 472.

payment of bill of exchange for honor,
473.

must sue in name of assignor, 474.

what is a good equitable assignment,
475.
ATTAINDER. See Error, Heir.
ATTORNEY,

action against, for negligence, 202,
755.

for trespass, 874.
AUDI ALTERAM PARTEM.

rule and examples, 113, 115.
AUTREFOIS ACQUIT.

plea of, 347, 348.
AUTREFOIS CONVICT,

plea of, 349, 350.
AWARD,

when final, 92.

when sufficiently certain, 626.

surplusage in, 628.

accord and satisfaction of, 883.
AWAY-GOING CROP,

who is entitled to, 412.

right of possession in respect of, 482.

custom for tenant to have, 920.

BAIL

may take their principal on Sunday,
23.
BAILEE. See Case.
BAILIFF. See Sheriff.
BANK NOTE,

stolen, not recoverable from bona fide
holder, 808.
BANKER'S

appropriation of payments, 818.
BANKRUPT,

declarations by, when evidence, 966.
BARONY,

proof of ancient, 947.
BASTARD

cannot inherit lands, 516, 519.

may take under a devise to children
when, 562.

BILL OF EXCEPTIONS,

where plaintiff improperlv nonsuited,
167
BILL OF EXCHANGE. See Assignee,
Debt, Negotiable Instrument, Nu-
dum Pactum.

effect of alteration of, 154.

fictitious payee, 295.

notice of dishonor, 165, 295, n.
waiver of, 701.

is assignable, 470.

whether consideration requisite, 753.

seizure of, under an extent, 67.

rights of holder of, 716.

days of grace, 928.

stolen, 808.

effect of payment by, 816.

mistake in, not to be explained by
parol evidence, 611.

discharged by waiver, 885.
BILL OF LADING,

transfer of, by endorsee, 471.

authority of master of ship as to, 836.
BLANK,

in a will not supplied by parol evi-
dence, 609.
BOND,

effect of alteration of, 154.

action on, by commissioners of taxes,
164.

act of God making condition impos-
sible, 236.

effect of the condition becoming
otherwise impossible, 247, 283.

executed under assumed name, 287.

illegality a good defence to action on,
733.

how discharged, 879, 882, 891.
BOROUGH ENGLISH, 356.
BOUGHT AND SOLD NOTE,

effect of alteration of, 155.
BROKER. See Lien, Principal and

Agent.
BY-LAW

restraining navigation of canal, 26.

power of corporation to make, 484.
CARRIER. See Case, Ppincipal and
Agent.

for what damage he is liable, 225, 238.

how bound by his notices, 598.

railway company regarded as, 821.
CASE. See Injury, Limitation.

origin of the action, 192, 193.

novelty of complaint in, no objection,
193.

against returning officer, by,voter, 194.

for invasion of a right, 200.

where it lies indifferently with as-
sumpsit, 201, 202.

by commoner, for invasion of com-
mon, 203.

INDEX.

977

CASE — continued.

for slander, what is special damage

recoverable in, 207.
for injury occasioned by negligence,

383.
how far barred by plaintiff's miscon-
duct or unskilfulness, 384.
by reversioner, 397.
for deceit in general, 784, 790, 793.
action on, what fraud will maintain,
793 et seq.
CASUS OMISSUS,
rule as to, 45. 83.
CA VEAT EMPTOR. See Case, Con-
tract.
warranty not implied on sale of land,

769-774.
what warranty is implied on a de-
mise of land, 774.
house, 775.
sale of goods, 777.
rule as to simplex commendatio, 781.
representation false, effect of. 784.
by tacit assent, 786.
how distinguished from warranty,

787.
cases as to moral fraud considered,
793.
title of vendor in chattels personal,
799, 802.

sold in market overt, 804.
pawned, 805.
stolen. 805, 806.
sold by auction, 807.
to negotiable instruments, 808.
CAVEAT VIATOR, 387 n.
CERTAINTY,

what degree of is sufficient, 623.
in a lease, ib.
in a feoffment, 624.
in an agreement, 625.
in a will, ib.
in an award, 626.
in an affidavit, 629.
in an indictment, ib.
CHALLENGE,

peremptory, allowed the prisoner in
all felonies, 325.
CHARTER-PARTY,

when vitiated by alteration, 156.
how construed by reference to the in-
tention of the parties, 550.
freight, pro rata itineris, how recov-
ered, 845.
liability of parties to, 845.
CHATTEL,

liability of lender of, 392.
CHECK,
action against banker, for refusing

payment of, 201.
is assignable, 476.

CHECK— continued.

within what time to be presented,
898, n.
CHOSE IN ACTION,

rights of assignee of, 469, 472.
when not assignable, 474.
liability of assignee of, 709.
CIRCUITY

is to be avoided, 343.
CLAUSULA DEROGATORIA,

what, 27.
COLONIAL LEGISLATIVE ASSEM-
BLY,
power of, to punish for contempt,
487.
COMMISSIONERS OF PAVING,

liability of, 6.
COMMISSIONERS OF TAXES,

action by, on bond, against tax-col-
lector's surety, 164.
COMMON. See Case.

action for damage to, 144, 203.
pur cause de vicinage, 160, 161.
right to abate nuisance on, 440.
of pasture appendant, 494.
COMMUNIS ERROR FACIT JUS.
mearting of maxim, 139.
limitations, 140.
CONDITION,

rendered impossible by act of God,
236, 237.

by act of obligor, 247.
by act of stranger, 248.
by act of feoffor, 282.
impossible at its creation, 246.
rendered impossible by act of obligee,
247, 283.
CONFUSION OF GOODS, 285.
CONSENSUS TOLLIT ERROREM,

135.
CONSIDERATION. See Contract, Nu-
dum Pactum.
definition of, 748.
impossible, 248.
CONSPIRACY. See Criminal Law.

offence defined, 312.
CONSTABLE.

when he may justify under warrant,
96, 99.

require assistance of bvstanders,
486.
CONTEMPT,

power of colonial legislative assem-
bly to punish for, 487.
CONTINGENT INTEREST.

how distinguished from vested estate,
671.
CONTRACT. See Caveat Emptor, Limi-
tation, Nudum Pactum, Principal
and Agent.
made on Sunday, when void, 24.

978

INDEX.

CONTRACT— continued.

where avoided by duress, 132.
breach of, by act of contractor, 250.
not avoided by inevitable accident,

393.
by infant for necessaries, 533.
father whether liable on son's con-
tract for necessaries, 535.
written agreements, how construed,
107, 549, 550.

fortius contra proferentem, 594.
rule of Roman law as to, 599.
exeeptions, 603.
ambiguity, latent and patent, 608,

614.
expressum facit cessare taciturn, 651.
parol evidence, where inadmissi-
ble, 657.
examples — contract of sale, ib.
sale of goods, 659.
warranty, ib.
implied by law, 660.
evidence of custom, where admis-

ible, 662.
evidence inadmissible to vary, 6fJ3.
modus et conventio vincunt legem, 6 89.
of married woman void, 696, 762.
rights of third parties not affected

by, 697.
incidental advantages may be re-
nounced by the party entitled to
benefit, 699.
effect of adopting an unauthorized,
860, 871.

fraud, 287, 293.

a party shall not take advan-
tage of his own fraud, 287.
par delictum, 719. See Par Delictum.
immoral or illegal, 732, 734, 736,

738.
to oust court of jurisdiction, 736.
when divisible, 741.
reason of rule as to ratification of,

757, 871.
dissolution of, 877, 886.
when required by statute to be in

writing, 36, 888.
may be explained by usage, 924, 927.
actions on by personal representa-
tives, 904, 906.

against personal repre-
sentatives, 907.
CONTRIBUTION,

action for, when not maintainable,
728, 730.
CONVEYANCE. See Caveat Emptor,
Deed.
act of God making a condition

annexed impossible, 237.
condition being otherwise impossible,
248.

CONVEYANCE— continued.
consideration for, 747.
may operate by estoppel, 727.
CO-PARCENERS, 356.
COPYHOLD,

relation of title to, 128.
grantable by custom, 176.
custom to dig clay in, 461.
surrender of, taken by deputy stew-
ard, 841.
custom as to descent of, 919.
COPYRIGHT,
what it is, 364.

depends on priority of composition
and publication, ib.
CORPORATION,

indictment against, for non-reoairing,

205.
power of, to make by-laws, 26, 484.
power of founder, 463.
liability of, for works under statute,
863.
COUNSEL,

cannot sue for fees, 746, n.
authority of, to bind client, 835, n.
COSTS. See Judge.
judge at chambers may tax, 82.
amount of, is for the court to deter-
mine, 106.
liability to, may be for a jury to
decide, 107.
COURT. See Judge.

of limited jurisdiction, 95.
territorial limits of jurisdiction of,

100, 101.
agreement to oust jurisdiction of,

736.

review of judgment of, 946.

proceedings of inferior, 950.

COUNTY COURT JUDGE, 841.

COURT OF QUEEN'S BENCH,

jurisdiction of, 111, 112.
COURT OF REQUEST.

liability of officers of, 95.
COVENANT. See Deed, Executor,
Limitation, Specialty.
breach of, occasioned by statute, 244,
'245.

lessor, 282.
running with land, 476, 495.
how to be construed, 546, 548.
joint or several, 548.
dependent or independent, ib.
how discharged, 880, 883.
right of personal representatives to
enforce, 904, 907.
COVERTURE. See Husband and Wife.
CRIMINAL CONVERSATION,

effect of husband's connivance on the
maintenance of action for, 268,
269.

INDEX.

979

CRIMINAL INFORMATION,

where rule for, re-opened, 262.
CRIMINAL INTENTION,

of insane persons, 15, 16.

intention when material, 306-309.

bare intention not punishable, 309.

in treason, 311.

in misdemeanor, 312.

nom compotes mentis, 314.

persons of immature years, 316.

libel and slander, 317.

murder, 323.

presumption in favor em vitse, 324.

inference as to, respecting goods
found, 807, 808.
CRIMINAL LAW. See Domus, Indict-
ment, Judgment.

foundation of, 9, 10.

whether ignorance excuses infringe-
ment of the law, 266.

plea of autrefois acquit, 347.

actus non facit reum nisi mens sit rea,
306.

law relating to malice, 309.

consideration in favorem vitse, 324.

guiltiness of accessories, 497.

principal and agent, 865, n.

nemo ienetur se^sum accusare, 968.
CROWN. See Allegiance, Extent,
Franchise, Judgment, King, Mas-
ter and Servant, Nullum Tempus,
Petition op Right, Pardon, Stat-

' UTES.

attributes of, 47.

descent of, 50.

conflicting rights of Crown and sub-
ject, 57, 59, 69-72.

demise of, 50.

irresponsibility of, 52.

wrong or trespass done by command
of, 865, 866.

grant from, when void, 53-57.

not voidable propter apices
juris, 188, n.

remedy against, 57, 59.

not responsible for laches of its ser-
vants, 60, 62

when bound by statutes, 72-76.

grant from, eonstrued strictly against
the grantee, 607.

servant of, not liable on contract,
when, 864.

ratification by, of agent's act, 875,
876.
C URS US C URI^E EST LEX C URI^E,

133.
CUSTOM,

reasonableness of, 158, 461, 919.

to grant copyhold lands, 176.

respecting away-going crop, 412-416.

of copyholder to dig clay, 461.

CUSTOM— continued.

of country in farming, 663.

definition of, 917.

requisites to the validity of, 918-923.
CUSTOM HOUSE,

liability for default of agent at, 281.
CY-FRES,

the doctrine of, 565.

DAMNUM ABSQUE INJURIA, 195.
DEATH,

Actus Dei applicable as to, 234, 239-

242.
wrongfully occasioned, action for,
912 915.
DEBILE FUND AMENTUM FALL IT

OPUS, 180.
DEBT. See Contract, Limitation, Pen-
alty.
DEED. See Grant.

requisites to the validity of, 103.
effect of alteration of, 154, 156.
lost, 163.

uses raised by void, 180.
surplusage in, 627.
interpretation of, where equivocal,
185.
general principles for construction
of, 541.

1. must give effect to every part,
ib.

2. must be reasonable, ib.

3. must be favorable, ib.

deeds shall be made operative,
542.
examples, 543, 544.
words of doubtful import in,

545.
agreement for lease, 546.
construction of covenants, ib.
joint and several, 548.
dependent and independent,

ib.
construction of covenants
generally, 549.
ex antecedentibus et consequcnti-
bus, 577.

examples — bond with condi-
tion, ib.
recitals, 578.
covenants, 579.
transposition of words, 580.
rejection of words, 581.
maxim, noscitur a sociis ap-
plied to, 588.
fortius contra proferentem, 594.
application to deed-poll, 595.
grant, ib.

leaseholds passed by general
words in, 596.
exceptions, 603.

980

INDEX.

DEED — continued.

ambiguity, 608.

patent, not to be helped
by averment, ib.
qualification of rule,
612.
latent, may be removed
by averment, 614.
remarks on parol evidence,
616, 617.

rule where no ambiguity
exists, 619.
certainty in, how ascer-
tained, 623
rejection of surplusage in,

627.
falsa demonstratio non nocet,

629.
verba gener alia, how restrain-
ed, 646, 648.

construction of, 648.
ezpressumfacit cessare taciturn,
651.

applied to control im-
plied covenants, 652.
examples — mortgage
deed, 654.

charter-party, ib.
clausula inutilis, 672.

words incorporated by

reference, 673.
schedule, ib.
relative words, how referred,

680.
exceptions and provisoes in,

677.
context, how used, 577.
literal construction, where de-
parted from, 685.
false grammar, 686.
explained — by contemporane-
ous acts of the
parties, 682.
by usage, 917.
rendered invalid by fraud, 733.
735.

DELEGATUS

non potest delegare, 839, 840.
DE MTNIMIS NON CUR A T LEX.

rule stated and considered, 142.
DEPUTY,

power of, 839, 841.
DESCENT. See Heir.
DEVISEE. See Away-going Crop,

Fixtures.
DISTRESS. See Sheriff, Trespass.

damage feasant, 286, 301.

for poor rates, 303.

ratification of, 874.

grant of power of, 619.

DOLUS,

what, 229. n.

circuitu non purgatur, 228.
DO 31 US TUTISSIMUM REFUGLUM.

Se?nayne's Case, 432.

where homicide is justifiable in resist-
ing attempted entry, 433.

where sheriff may break the house, ib.

effect of statute 1 & 2 Vict. c. 74, 434.

where sheriff may enter on execution
at suit of the Crown, ib.

landlord may enter, the door being
open, 435.

right to break inner door, 436, 437.

protection limited to house alone, 438.
to occupier of house, 439.
DONATIVE.

defined, 891.

how resigned, ib.
DRUNKENNESS

does not excuse crime, 17.
DURESS

of person, when it avoids contract,
132.

money paid under, 273, 275.

warrant of attorney obtained by, 333.

EASEMENT. See Case' Watercourse.
right to support, 370, 479.
how protected by 2 & 3 Will. 4, c. 71,

380.
enjoyment of light, 381.
EJECTMENT. See Lease, Limitation.
rent paid by mistake, 257, 261.
what passes by judgment in, 339.
court will consolidate actions de-
pending on the same title, 346.
by landlord against purchaser under

an execution, 490.
melior est conditio possidentis, 713.
by mortgagee, without giving notice

to quit, 358.
proof in, under statutes of limitation,

894, 895.
ELECTION,

doctrine of, in equity, 173.

laid down by Lord Coke, 295, 296.
by Lord Bacon, 612.
EMBLEMENTS. See Landlord and

Tenant, Tenant for Life.
right to, 239, 406, 409.
right of tenant at rack-rent to, 410.
of tenant at will, 412.
of tenant under execution, ib.
may be distrained, 411.
in whom they vest on death of owner,

ib.
right of entry to carry away, 482.
EQUITY,

doctrine of, where money paid by

mistake, 262, 264.

INDEX.

981

EQUITY— continued

will relieve against fraud, 288.
doctrine of, as to specific perform-
ance, 693.
rule of, in sequali jure, 718.

that benefit must be taken cum

onere, 710.
in pari delicto, 728.
election, 173.
discovery, 719.
ERROR. See Limitation.
redress by court of, 91.
on attainder, 166.
limitation of time for writ of, 902.
ESCAPE. See Sheriff.
ESCHEAT

of an intestate's unclaimed lands, 354.
ESTOPPEL. See Lease.

plea in, must be certain, 187.
in pais, doctrine of, 173, 290-295.
in case of lease, 184, 282, 468, 501.
in case of conveyance, 501.
by record, 709, 710.
ESTOVERS,

right to, 700.
EVIDENCE,

whether any, must be decided by the
judge ; whether sufficient, by the
jury, 109, 110.
admissibility of, a question for the
judge, 109.

of opinion in matters of science,
933.
extrinsic, when admissible to explain

instrument, 614, 617.
parol, when inadmissible, 609, 611,

613.
presumption contra spoliatorem, 938.
the effect of withholding, 939.

of fabricating, 942.
presumption rite esse acta, 942, 944.
rule as to res inter alios acta, 954.
of acts having a direct legal opera-
tion, 959.

entry against interest, 961.

made in course of business, 963.
res gestse, 965.
of handwriting, 934, n.
of wife against husband, 536.
of custom and usage, 662, 924, 925.
when inadmissible, 663.
EXCEPTIO REI JUDICATA.
what it was, 327.
rule as to res judicata, 329.
judgment of court, when conclusive,
333, 335, 337, 3il.
EXCEPTION

in general clauses, 677.
difference between proviso and, ib.
EXECUTIO JURIS NON HABET
IN JUKI AM, 130.

EXECUTION,
priority of, 359.

when property is bound bv writ of,
360.
EXECUTOR. See Administrator, Fix-
tures.
cannot be sued at law for not paying

a legacy, 209.
may pay himself before other credi-
tors of testator, 215, 216.
de son tort, 216, 279.
may sue for breach of covenant in

testator's lifetime, 904.
on what contracts he may sue, 905,

906.
what rights of action do not pass to,

906.
in legal possession before probate, 910.
liability of, on testator's covenants

and contracts, 907.
for what torts he may sue, 909.
liability of, for torts by testator, 913,
915.
EXTENT. See Bill of Exchange.
right of the Crown to priority under,
70, 71.
FACTOR. See Lien, Principal and

Agent.
FALSA DEMONSTRATE NON

NOCET, 629.
FALSE REPRESENTATION,

contract, how affected by, 784.
FELONY. See Challenge, Criminal
Law, Infant.
private remedy suspended by, 162,
210.
FERRY,

grantee of, liable to repairs, 712.
how protected, 713.
FICTION OF LAW,
what, 127.

shall not work a wrong, ib.
FIRE,

pulling down house to arrest progress

of, 2.
destruction of premises by, 232.
FIXTURES.

division of subject, respecting right

to, 417.
defined, 417, 418.

right to, of heir against executor,
420.

relaxation in favor of trade, 421,
425.

of ornamental, 426.
of devisee against executor, 423.
of devisee and heir, 424.
of vendee against veudor, ib.
of mortgagee against mortgagor,
ib.
valuation. 426.

982

INDEX.

FIX T URE S— continued.

of remainderman or reversioner

against executor, ib.
of landlord against tenant, 427.
for agricultural purposes, 428.
tenant must remove during his

term, 429.
effect of special usage as to, 431.
what Avere held to pass in mortgage
by general words, 654.
FORCIBLE ENTRY,

when not justifiable, 435, 436.
FOREIGN LANGUAGE,

contract in, how construed, 107.
FRANCHISE

granted by the crown, when void, 54,
63.
FRAUD. See Contract, Judgment.
dolus circuitu non purgatur, 228.
ex dolo malo non oritur actio, 729.
dolosus versatur in generalibus, 289.
renders a transaction voidable, 297.

298.
judgment may be impeached for, 341.
definition of dolus, 731.
effect of, in vitiating contract, 731,
784, 785.

deed, 733, 734.
what is legal fraud, 791.
necessity of provingmoral fraud, 793.
by agent in contracting, 823.
of corporation, 847.
by copartner, 828.
presumption against, 947.
FREEHOLD. See Tenant in Fee.
what passes with, 401, 406.
trees, 403.

emblements, 406, 482.
away-going crops, 412.
fixtures, 417.
FREIGHT. See Charter-party, Money

HAD AND RECEIVED.

GAVELKIND, 495.
GRANT. See Deed.

what passes by, 177, 460, 472, 480.

construction of, 177.

presumption of, 370.

ancient, how construed by usage, 682.

how it may be qualified by the donor,
448.
limitations, 452.

of easement, 370, 374.

title-deeds belong to purchaser, 492.

of future property invalid, 498.

rules for construing, 640.

of ferry, 712.
GUARANTEE.

effect of alteration, 155.

construction of, 598.

HEIR. See Executor, Fixtures, Mar-
riage, Seisina.
hserest est quern nuptise demonstrant, 515.
heir to the father is heir to the son,
517.

former exception in case of attain-
der, 518.
nullius fillius cannot be, 519.
nemo est hseres viventis, 522.

relaxed interpretation of the term
"heir," 523.
hsereditas nunquam ascendil, 527.

rule, how qualified by stat. 3 & 4

Will. 4, c. 106; 528.
lineal descent preferred, 529.
exclusion of the half blood, 530.
did not hold on the descent of
the Crown, 531.
primogeniture, 356.
HEIRLOOMS,

nature of, 493.
HEIRS OF THE BODY

the words how construed, 565.
HERIOT

claimed by bishop as lord of manor.
58.
HIGHWAY,

when impassable, what right of way, 3.
provisions for stopping or diverting
to be construed liberally, 9.
who liable for repair of, 205.
HOMICIDE,

in what cases excusable, 11, 433.
HONORARIUM.

not recoverable at law, 746, n.
HOUSE. See Domus.

right to support of, 370, 479.
HOUSE OF COMMONS,

member of, privileged from arrest, 159.
warrant of speaker, 94, 953.
how construed, 953.
HUSBAND AND WIFE. See Marriage,
Principal and Agent, Tenant ry
the Curtesy.
wife not held guilty of crime when

under husband's subjection, 18.
right of husband to emblements, 408,

409.
contract of wife void, 696.
HYPOTHECATION BONDS,
how paid, 358.

INDICTMENT. See Judgment, Trba-

SON.

remedy by, 204, 205.

one count in, may refer to another, 675.

malicious, 105.

may fail on ground of remoteness,

229.
rejection of surplusage in, 629.
for misdemeanor, 147.

INDEX.

988

INEVITABLE ACCIDENT.

action will not lie for, 393.
INFANT. See Limitation.

contract by, for necessaries, 533.
within what age he is doli incapax,

316.
maliiia supplet setatem, ib.

except in rape, 317.
INJURY. See Case, Jus, Nuisance,

Petition of Right.
where no action lies for, 2, 195, 197,

199.
remedy by indictment, 204.
where caused by felonious act, civil

remedy suspended till after trial,

162, 210.
damnum absque injuria, 195.
damage caused by, when too remote,

206.
remedy by operation of law, 212.

See Remitter.
voluntarily incurred, no remedy for,

268.
trivial — de minimis non curat lex, 142.
occasioned by plaintiff's unskilful-

ness, 384.
whether trespass or case be the

proper form of action for, 396.
INNKEEPER,

liability of, 708.
INSURANCE. See Marine Insurance,

Policy of Insurance.
INTENTION

deducible from acts, 301.

what, to constitute crime, 306 et seq.,

367.
bare, dispunishable, 309.
INTEREST

dependent on principal, 497.
ISSUE,

the word, how construed in a will, 562.
dying without, 563.

JOINT DEBTOR,

absence beyond seas of, 900.
JUDGE. See Jury.

jurisdiction of, 70.

at chambers, 82.

not liable for judicial act, 85.

unless it exceeds his jurisdiction,
86.

cannot act when interested, 116, 119.

misdirection of, 110.

proper functions of, 103, 168, 323.

power to certify, 144.

liability of, for officers, 863.
JUDGMENT. See Pleading.

the Crown has priority in satisfaction,
70, 71.

nunc pro tunc, 122.

non obstante veredicto, 137.

40

JUDGMENT— continued.

arrest of, ib.

relation of, 128, 129.

conclusive with respect to what
parties, 329, 335, 336.

in ejectment, 339.

impeachable for fraud, 341.

obtained by collusion, 736.

presumption as to regularity of, 345.

recovered against joint debtor, 900.

in rem and inter partes, 956.
JURY.

province of judge and jury defined.
103, 105, 107, 109.

on malicious indictment, 105.

in libel, 106.
JURYMAN,

wrong, sworn by mistake, 639.
JUS

respicit sequitatem, 151.

ubi jus ibi remedium, 191.

in sequali jure melior est conditio possi-
dentis, 713.

prior tempore, potior jure, 353.
JUSTICES,

liability of, 88. •

cannot act when interested, 119, 120.

party, to be summoned before convic-
tion by, 114.

cannot delegate their functions, 841.

proceedings before, 950, 951.

KING. See Crown.

maxims relating to, 47-75.

how subject to the law, 47.

twofold character of, ib.

is beneath the law, 49.

never dies, 50.

descent from, 51, 531.

how circumstanced as to personal

property, 52.
can do no wrong, ib.
grant by, when void, 55, 56.

how construed, 607.
remedy against, 57.
petition of right, 59, 60.
not responsible for laches of servants,

62.
what favors cannot be conferred on

subject by, 63.
whether he can pardon, 64.
right of, not barred by lapse of time,

65.

limitation of rule, 65, 66.
where property in chattel, <fcc, vests

in, jointly with subject, 69.
execution at suit of, 70, 71.
not bound by statute unless named.

72.

rule as to, how restricted, 73, 74.
allegiance to, cannot be abjured, 75.

984

INDEX.

KING — continued.

not liable for personal negligence of
his servant, 865.

effect of ratification by, of act of offi-
cer, 875, 876.

LAND,

entry on another's, when excusable,

301, 303, 304.
legal definition of, 395, 398.
whether building passes with, 401,

402.
right to support of, 196, 370, 479.
liability in respect of nuisances to,

369, 373.
liability of owner of, for nuisance,

862.
parol license to enter on, 887, n.
LANDLORD AND TENANT. See

Domus, Ejectment, Fixtures,

Lease, Property.
apportionment of rent, when land

lost by casualty, 231.
in case of eviction, 282.
right of landlord to distrain, 302.
liability of, premises being destroyed

by fire, 232, 233.

of tenant for waste, 403.
where tenant may cut down trees for

repairs, 403, 404.
right of tenant to emblements, 406-

412.

to away-going crop, 412-416.
jus disponendi of landlord, 462.
liability on covenants running with

the land, 476, 495.
custom of the country in farming,

where admissible, 662, 663.
qui sentit commodum sentire debet et

onus, 706.

applied to the liability of tenant
to repair, ib.
liability of landlord for baliff for

distraining, 874.
customs affecting, 918 el seq.
presumption of license between, 943.
LAPSE

of church preferment to the Crown,

66, -67.
notice to patron of presentee's in-
sufficiency, 180.
LARCENY

in respect of property found, 807, 808.
LAW

is founded in reason, 153, 159.
how this proposition must be under-
stood, 158.
regards the course of nature, 252.
ignorance of, does not excuse, 253.
authority implied by, 485, 486.
prohibition implied by, 489.

LAWS,

necessity of obedience to existing, 12.

when obligatory, 19.

when opposed to law of God, 19-21.

framed to meet cases of ordinary
occurrence, 43-46.

sovereign subject to, 47.

have no force beyond territory, 100-
102.
LEASE. See Landlord and Tenant.

exception of trees in, 160.

for what term warranted by power.
175.

where void or voidable, 178, 179.

by estoppel, 184.

whether act of God discharges lessee,
232.

of minerals gives right to open
mines, 481.

right of lessor to enter to fell timber,
ib.

effect of a covenant to repair, 652.

agreement for, 546.

certainty of, how ascertained, 618.

how a power to lease may be exer-
cised, 700.
LENDER OF CHATTEL,

liability of, 392.
LIBEL. See Case, Slander.

definition of, 317.

what malice will sustain action for,
318, 322.
LICENSE,

to enter upon land, 301, 303, 304.

when abuse of, will not make party
a trespasser ab initio, 303.

from lessor presumed, 943.
LIEN. See Landlord and Tenant,
Limitation, Pkincipal and Agent.

of a factor on goods of his principal,
692.

of a banker, 693.
LIGHT,

prescriptive right to enjoyment of,
381, 382.
LIMITATION OF ACTIONS,

operation of, how prevented, 656.

appropriation of payments in refer-
ence to, 811.

acknowledgment of debt barred by,
761.

policy of statutes for, 893, 894.

ejectment, 894.

debt and covenant, 896.

on simple contracts, 897.

on merchants' accounts, 898.

effect of part payment by one con-
tractor, 901.

in case of absence beyond seas of
joint debtor, 900.

ex delicto. 901.

INDEX.

LIMITATION OF ACTIONS— continued.

proceeding in error, 902.

prescription, ib.

runs from what time, 901, 903.
LUNATICS,

when chargeable for their acts, 15,
314, 315.

saving in favor of, in Statute of Limi-
tations, 897, 899.

admissibility of evidence respecting,
933.

MAGISTRATES. See Justices.
MAINTENANCE, 734, n.
MALICIOUS PROSECUTION,

action for, 209.
MANDAMUS

does not lie to the crown, 210.
to do an impossibility, 243, 244.
MANOR,

what passes by grant of, 493.

custom of, 461

right of purchaser of, to fine paid

after contract for sale, 658.
customs of, 919.
MARINE INSURANCE,
perils of the sea, what, 217.

loss, when referable to, 219, 221,
222.
evidence as to disclosure of facts and

risk, 935, 936.
construction of general words in, 589.
MARKET OVERT .
defined, 805.

Crown not bound by sale in, 72.
sale in, 359, 471, 804.
custom of London, 805.
MARRIAGE. See Heir.

extinguishes a debt between the par-
ties, 126.

exceptions, ib.
can a clergyman be sued at law for

refusing to perform? 210, n.
plea to action for breach of promise

of, 250.
consensus facit matrimonium, 505.
per verba de prsesenti, 506, 507.
per verba defuturo, 511.
between parties under age, 512.
consent of parents or guardians, 513.
of members of the Royal family, 514.
according to the lex loci, for what

purposes valid, 520.
at British embassies, &c, 521, n.
contract for, how discharged, 886.
proof of foreign law respecting, 937.
presumption in favor of, 947.
MASTER AND SERVANT. See Prin-
cipal and Agent.
servant justified for acts done in de-
fending master from felony, 13.

MASTER AND SERVANT— continued.
not justified in committing crime,
14.
communication of the character of a

servant when privileged, 320.
what constitutes the relation of, 844,

846.
respondeat superior, 843.
liability of ship-owner, 844.

job-master, 853.
qualification of general rule, 848.
master whether liable for injury by

fellow-servant, 853-861.
liability of public functionaries, 863.
of sheriff, 848, 849.
of Crown for act of its servants,

62.
of servants of the Crown, 864,

866, 875.
of master criminally, 865, n.
MERCHANTS' ACCOUNTS,

limitation of actions on, 898.
MERGER,

definition of, 176.
MINERALS. See Lease.
property in, 398, 400.
reservation of, to grantor, 479, 480.
effect of grant of, 481, n.
not rateable to poor, 665.
MISCHIEVOUS ANIMALS,
liability of owner of, 392.
MISDEMEANOR. See Conspiracy,
Criminal Law, Criminal Intention.
in, all are principals, 147.
MISTAKE

in written instrument, parol evidence
whether admissible to explain, 611.
MONEY HAD AND RECEIVED,
where the action for, lies, 81, 256, 258.
action for freight on treasure paid by
captain of a king's ship, 256.
MONEY PAID,

where recoverable, and where not,

256-261.
voluntary payment, 271
compulsory payment, 272-276.
application of, 810, 812, 815.
payment in satisfaction, 884.
of sum less than due, 890.
MORTGAGE. See Ejectment.

how a posterior mortgage may be

tacked to a prior, 357.

mortgagee and tenant, 358.

MURDER. See Criminal Law.

special malice not requisite to be
proved, 309, 311.
MUTUALITY, 765, 766.

NECESSARIES,

liability on infant's contract for, 533-
536.

986

INDEX.

NECESSARIES— continued.

husband's liability, for wife's, 535,
832.
NECESSITAS INDUCIT PRIVILE-
GIUM,
when, 3, 11.
quoad jura privata, 11.
necessity of self-preservation, ib.
of obedience to law, 12, 14.
resulting from act of God, 15.

of stranger, 17.
law must, yield to, 242.
NEGLIGENCE,

resulting from plaintiff's unskilful-

ness, 384.
collision between vessels, 389.
in keeping dangerous instruments,
390.

mischievous animals, 392.
doctrine as to, in connection with
negotiable instruments, 716.
NEGOTIABLE INSTRUMENT,
rights of holder of, 470, 717.
NEMO DAT QUOD NON HABET,

470.
NEW TRIAL,

on account of misdirection, 110.
in penal actions, ib.
not granted where damages are
small, 142.
NON C03IPOS MENTIS.

whether criminally liable, 15, 16,

314.
whatis criminal self-destruction, 315,

316.
saving in favor of, in statute of limi-
tations, 897, 899.
admissibility of evidence respecting,
933.
NONSUIT,

illegal — bill of exceptions, 167.
NOSCITUR A SOCIIS,
rule explained, 588.

applied to policy of insurance,. 589.
to wills, 590.
conjunctive and disjunctive, 591.
rule applied to statutes, 592.
NOVA CONSTITUTIO,

rule as to, 34.
NUDUM FACTUM,
definition of, 745.

consideration requisite to sustain a
contract in general, ib.

a contract under seal, 746.
good, ,747.
valuable, ib.
a simple contract, 748.

bill of exchange, promissory
note, 753.
consideration, legal, definition of,
748.

NUDUM PACTUM— continued.

consideration, a benefit to defendant
or detriment to plaintiff, ib.

whether moral obligation is suffi-
cient, 751.
consideration executed, 756.
implied request, 757.
allegation of request, 758.
precedent good consideration
how revived, 760.
concurrent, 766.

promise express or implied, 763.
continuing, 767.
executory, 768.
NUISANCE,

indictment for, 205.

action for, 205, 369, 373.

remedy for, in equity, 490.

whether it can be pardoned by the

Crown, 64.
liability of owner of realty for, 862.
NULLUM TEMP US OCCURRIT
REGI. See Quare Impedit.
meaning of the maxim, 65, 68.
how qualified by statute, 66.

OMNIA PRjESUMUNTUR RITk

ESSE ACTA, 942.
OPTIMUS INTERPRES RER UM

US US, 917.
OUTLAWRY. See Error.

PAR DELICTUM,

rule stated, 719, 721.

applied to illegal agreement, ib.
wager, 720.
insurance, 724.
composition-deed, ib.
joint tort-feasors, 728.
test applicable as to, 722.
rule as to, in equitv, 718.
PARDON,

cases in which the Crown cannot at
common law grant, 64.
PARLIAMENT. See House op Com-
mons, Statutes.
PARSON,

right of, to emblements, 409.
action against executors of, for di-
lapidations, 916, n.
PARTNER. See Principal and Agent.
where party represents himself to be,

171.
liability of retiring, 292.
right of survivorship between, 456.
when executors of a deceased, may

take his place, 692.
how parties may limit the legal effect
of partnership, 702.

as in the case of freehold lands,
703.

INDEX.

987

PARTNER— continued.

continuing dealings after change of

firm, 814.
burthen of partnership debts, 703.
responsibility of, how created, 827.
for fraud of copartner, 828.
PATENT.

effect of entering disclaimer under

stat. 5 & 6 Will. 4, c. 83; 38.
retrospective operation of Act as to, 40.
who is entitled to, 361-363.
construction of, 552.
PAWNBROKERS,

some acts relating to, 805.
PAWNOR,

right of action by, 477.
PENALTY,

debt for, under statute, 194.
PERSONA CONJUNCTA, 533.
PETITION OF RIGHT,

remedy by, for wrong occasioned by
the Crown, 59, 61.
or its servants, 62.
Crown may plead and demur to, 73.
when it will not lie, 60.
PHYSICIAN,

whether he can sue for fees, 746, n.
PLEADING. See Estoppel.
effect of pleading over, 136, 601.
ambiguity in, 601.
surplusage in, 627, n., 628.
certainty in, 187.
apices juris , ib.

ambiguous, shall be taken fortius con-
tra proferentem, 601.
cured by pleading over, ib.
of proviso, 677.
effect of videlicet in, 628, n.
POLICY OF INSURANCE,
revival of, 261.
Court will consolidate several actions

on the same, 346.
on a life, whether avoided by suicide

of assured, 315.
interpretation of, 553.
effect of warranty in reference to, 789.

concealment in reference to, 792.
whether affected by conduct of mas-
ter and crew, 845.
how vitiated, 792.
evidence in action on, 934, 936.
POSSESSIO FRATRIS.

rule as to, 532.
POWER,
execution of, 558.
by will, 558, 655.
of power to lease, 700.
PRACTICE,

necessity of adhering to rules of, 133,

135.
prior tempore portior jure, 353.

PREAMBLE

of statute when considered, 572.
PRECEDENTS

must be followed, 147, 149.
exceptions, 151.
PRESCRIPTION,

right to support of house by, 196,

370.
liability to repair by, 231.
right to use of water by, 373, 374.
under stat. 2 & 3 Will. 4, c. 71 ; 380.
PRESUMPTION

against illegality, 744.
in favor of title, 943, 944.
PRIMOGENITURE,

law of, 356.
PRINCIPAL AND AGENT. See Ca-
veat Emptor, Contract, Lien, Mas-
ter and Servant.
right of set off, 161.
adoption of contract, 708.
general rule, qui facit per alium facit

per se, 817.
payment to by agent, 818, 820.
delivery of goods to carrier, 820.
agency for sale of goods, 821.
del credere. 822.

liability of agent, 818, 823, 826.
co-partnership, 827, 828.
railway companies, 830.
agency how constituted, 832.
husband, 836.
sheriff, 837.
master of ship, 836.
ratification of agent's act, 868, 871.

in actions of tort, 872.
agent cannot delegate his authority,
839.

except in certain cases, 841.
liability of master for tort by servant,
843.

exceptions, where the tort is wil-
ful, 848.
public functionaries, 863.
servants of the Crown, 865, 866.
criminal law, 865, n.
PRINCIPAL AND SURETY.

surety, when released, 703, 704.
PRIVATE ACT,

how construed, 8, 604.
PRIVILEGE OF PARLIAMENT, 159.
PRIVILEGED COMMUNICATIONS,

what are, 318-323.
PRIVITY, 754, 755, 817 n.
PROCESS

cannot be served on Sunday. 22.
mistaken serving of, whether action-
able, L98.
PROMISSORY NOTE. See Negotia-
ble Instrument.
is assignable, 476.

988

INDEX.

PROMISSORY NOTE— continued.

rights of holder of, 716.

discharged by waiver, 885.
PROPERTY

in land, when trees excepted from
demise, 160.

sic utere tuo ut alienum non Isedas, 365.

in land, 395, 398.

in surface and minerals, 399.

in trees, 403, 404, 481.

how acquired by occupancy, 353, 355.

in animals ferse naturse, 355.

absolute and special, 477.

personal, follows owner's domicil, 52 1.

when found, 807, 808.
PUBLIC COMPANIES,

rules for construing Acts relating to,
604-607.

liability of, to repair works, &c, 707.
PUBLIC AND PRIVATE ACTS,

distinction between, 8.
PUBLIC FUNCTIONARIES,

liability of, for acts of agents, 6, 7.

presumption as to execution of docu-
ments by, 944.

QUA RE IMPED IT

by the Crown, where preferment has

lapsed, 66, 67.
by tenants in common, 252.
QUARTER SESSIONS,

where concurrent in jurisdiction with
assizes, 30. ,

QUEEN. See Crown, King.

RAILWAY ACTS

construed strictly, 5, 604, 606.
RAILWAY COMPANY,

monev exacted by, recoverable, 275,

276".
right of, as to constructing a bridge,

482.
like other carriers as to delivery of

goods, 821.
implied authority of station-master

of, ib.
liable in trover for conversion by

agent, 844.
may he liable for an assault ratified

by, 873.
liability of committee-men, 830.
agency, how constituted, 82.
action for recovery of deposit, 834.

failure of consideration, 835.

effect of executing deed, ib.
fraud, ib.
RAPE. See Criminal Law, Infant.
RATIHABITION

general rule as to, 867.

illustrated, 868.
effect of, in actions ex delicto, 872.

RE-CAPTION.

right of entry to re-capture, 303.
limitation, 305.
RECIEPT,

loss of, 332.
RECORD,

obligation by, how discharged, 878.
RELATION,

doctrine of — with respect to judg-
ment, 128, 129.

in case of title to copyholds, 128.
trespass, ib.
RELEASE,

how construed, 646, n.

bv one of several joint creditors, 703.
REMAINDER,

where void, 179.
REMEDY. See Case, Injury.

ubi jus ibi remedium, 191.

when cumulative, 669.
REMITTER,

doctrine of, 212.
REMOTENESS OF DAMAGE.

doctrine as to, 206, 226.
RENT

passes by grant of reversion, 493.
RES INTER ALIOS ACTA, 333, 954.
RES JUDICATA,

doctrine of law as to, 329.
RESTITUTION,

in cases of capture, 390.
RETAINER. See Executor.

doctrine of, 215.
REVERSIONER. See Case, Executor,
Fixtures.

whether liable for nuisance, 862.

SALE OF GOODS. See Caveat Emp-
tor, Contract, Market Overt.
effect of a sale on credit, 693.
SAL US POPULI SUPREMA LEX,

I, 10.
SEA,

collision at, 389.

absence beyond, of joint debtor or
creditor, 895, 897, 899.
SEA-WALL,

liability to repair, 231.
SEISIN A FACIT STIPITEM. See
Heir.
rule explained, 525.

did not apply to estates tail, &c,
527.
succession of a sister in preference
to a half-brother, 530.

abrogated by Inheritance Act,
530, 531.
SET-OFF. See Principal and Agent.

reason of the law of, 343.
SHELLEY'S CASE,
rule in, 558,

INDEX.

989

SHERIFF. See Bankrupt, Domus, Exe-
cution, EXTENT.

liability of, for ministerial act, 13.
for arrest, 131.

action against, for an escape, 200,
201.

when liable for act of bailiff, 837.

when a trespasser ab initio, 302.

liability of, for mistaken seizure, 324.

may summon the posse comitates, 486.

construction of return by, 597.

liability of, for executing writ after a
supersedeas, 849.

action by executor against, for false
return, 910.
SHIPOWNER,

liability of, for collision, 389.

right of, in case of capture, 390.

liability of master of ship for repairs,
836.

for act of crew, 844, 845.
for insurance, 869.
SLANDER. See Case.

piivileged communications, 317, 319.

literary criticism, 320.

inference of malice in, 318, 322.
SPECIAL VERDICT,

how construed, 163.
SPECIALTY. See Bond, Covenant,
Deed.

discharged by agreement under seal,
879.

whether discharged by accord and
satisfaction, 882.
STARE DECISIS,

rule as to, 147, 151.

innovation discouraged, 149.

qualification of rule as to, 151.
STATUTE OF FRAUDS. See Con-
tract, Lease.

s. 4 not retrospective, 36.
STATUTE OF LIMITATIONS. See
Limitation.

effect of a conditional promise, 656.
part payment, 901.
STATUTES. See By-Law, Clausula
Derogatoria, Laws, Railway Acts.

construction of, as to compensation, 5.

distinction between public and pri-
vate, 8.

repeal of prior statute, 27.

effect of repeal, 31.

cannot be dispensed with, 877.

when Act begins to operate, 32.

common law yields to, 33.

ancient custom yields to, ib.

when not revived, 32.

not retrospective, 34.

exceptions, 40.

void, where opposed to the law of
God, 19, 20.

STATUTES— continued,
casus omissus, 45, 46.
how far the Crown is bound by, 72-

75.
remedial, how construed, 83.
date from the giving of the royal as-
sent, 33.
construction of, how guided by con-
venience, 186.
where words applicable to inferior

degree are used, 651.
to be construed according to maker's

intention, 5* 8, 622.
penal — construction of. 194, 570, 572.
general principles of construction,
568, 585.

founded on intentions of Parlia-
ment, 570.
every word should take effect,

569, 585.
words to be construed in ordi-
nary sense, 569, 573, 574.
how limited by preamble, 572.
technical terms, 576.
ex antecedentibus et consequenti-

bus, 577, 585.
full effect to be given to words

of, 585.
noscitur d, sociis, applicable in

construction of, 588, 592.
d verbis legis non est recedendum,

622.
ezpressum facit cassare taciturn,

664.
literal construction, how far

followed, 686.
guided by contemporaneous

opinion, 683.
evidence of usage to explain,
930.
acts relating to public companies,

604.
remedy given by, when cumulative,

669.
application of maxim expresxio unius,

&c, to construction of, 664, 665.
exemptions conferred by, 666.
STATUTES CITED.

13 Ed. 1, st. 1, c. 23; 905, n.

st. of West. 2, c. I ; 415.
st. of West. 2, c. 18; 459, n.
st. of West. 2, c. 24; 193.
18 Ed. I, st. 1, c. 1; 444.
17 Ed. 2, c. 6; 444.
4 Ed. 3, c. 7; 909.

20 Ed. 3, c. 1 ; 63, n.
25 Ed. 3, st. 5; 910, n.

31 Ed. 3, st. I, c. 11 ; 905, n.
34 Ed. 3, c. 15; 445.
4 Hen. 7, c. 24 ; 447, n.

21 Hen. 8, c. 11: 806, n.

990

INDEX.

STATUTES CITED— continued.

28 Hen. 8, c. 11; 409.

32 Hen. 8, c. 1 ; 447.

c. 34; 476.

c. 36 ; 446, 447, n.

33 Hen. 8, c. 39; 70, n., 173.

34 & 35 Hen. 8, c. 5 ; 447.

c. 20; 447, n.

5 & 6 Ed. 6, c. 16; 743.
2 P. & M. c. 7 ; 806, n.

13 Eliz. c. 4; 70, n.
c. 10; 178.
27 Eliz. c. 4; 520.

31 Eliz. c. 5; 896, n.

c. 12; 806, n.
43 Eliz. c. 2 ; 72.
c. 6; 144.
1 Jac. 1, c. 21 ; 805.
21 Jac. 1, c. 3; 362.

c. 16; 66, 893, 894, 898,
899, 901, 904, n.

12 Car. 2, c. 24; 448.
17 Car. 2, c. 8: 123.

29 Car. 2, c. 3 ; 36, 360, 889.

e. 7 ; 22, 23.

30 Car. 2, st. 1, c. 7 ; 914, n.
4 & 5 W. & M. c. 24 ; 914, n.
7 Will. 3, c 3 ; 66.

7 & 8 Will. 3, c. 3 ; 312, n.

c. 25; 727.
9 & 10 Will. 3, c. 7; 229, n.
10 & 11 Will. 3, c. 17; 726.

13 Will. 3, c. 2 ; 87, n.
4 Ann. c. 16; 899.

6 Ann. c. 31 ; 232.

8 Ann. c. 19 ; 364.

10 Ann. c. 23; 727.

4 Geo. 2, c. 28; 670.

7 Geo. 2, c. 8; 182, n.

11 Geo. 2, c. 19; 239, 302, 305, 411,

436.

12 Geo. 2, c. 28; 726.

15 Geo. 2, c. 30 ; 515, n.
17 Geo. 2, c. 38; 303.
19 Geo. 2, c. 13; 508.

24 Geo. 2, c. 44; 97, 98.
26 Geo. 2, c. 33; 183, 507.

1 Geo. 3, c. 23 ; 87, n.

9 Geo. 3, c. 16; 66.
12 Geo. 3, c. 11; 514.

14 Geo. 3, c. 78; 691.

25 Geo. 3, c. 18 ; 112, n.

32 Geo. 3, c. 58 ; 66.

33 Geo. 3, c. 13; 32.

39 & 40 Geo. 3, c. 98 ; 452, 805, n.
43 Geo. 3, c. 99; 164.
46 Geo. 3. c. 65; 27^.
53 Geo. 3, c. 127; 899.
59 Geo. 3, c. 46; 351.

3 Geo. 4, c. 126; 170, 838.

4 Geo. 4, c 34; 350.

STATUTES CITED— continued.
4 Geo. 4, c. 76, 513.

C. 91 ; 521, n.

6 Geo. 4, c. 94; 804.

7 & 8 Geo. 4, c. 18; 388, n.

c. 27; 806, n.

c. 29; 99, 806, n., 971,

n.
c. 52; 972.
9 Geo. 4, c. 14; 41, 838.
c. 91 ; 521, n.
11 Geo. 4 & 1 Will. 4, c. 68; 496.

1 Will. 4, c. 3 ; 23.

2 Will. 4, c. 39 ; 23, n.

c. 45; 665.

2 & 3 Will. 4, c. 71 ; 380, 381, 396,

922, n.
c. 100; 684.

3 & 4 Will. 4, c. 2 ; 281.

c. 15; 308.

c. 27; 215, 895, 898,

n., 899.
c. 31 ; 21, n.
c. 42; 81. n., 896, 899,

901, 909, 911, 913.
c. 74; 447.
c. 106; 505, 517, 518,

519, 526, 527, 529,

531, 532.

4 & 5 Will. 4, c. 22 ; 239.

5 & 6 Will. 4, c. 83 ; 38.
6& 7 Will. 4, c. 71 ; 116.

c. 76; 830.

c. 85; 511,513, n., 514.
7 Will. 4 & 1 Vict. c. 78 ; 66, n.
1 Vict. c. 22: 514.

c. 26; 448, 463, n., 503, n.,
558, n., 563, n., 564, n., 649,
n., 655, 675.

1 & 2 Vict. c. 74 ; 434.

2 & 3 Vict. c. 37 ; 41, n.

c. 71 ; 805, n.

3 & 4 Vict. c. 9 ; 94.

c. 52 ; 51, n.
c. 86: 969, n.
5 & 6 Vict. c. 39; 471, 804, n.

c. 45; 364, n , n., 365.
c. 51 ; 66, n.
c. 93; 307.
c. 97; 100, n.
c. 113; 507, n.

6 & 7 Vict. c. 18, s. 4; 23, 241.

c. 73; 41, n.

7 Vict. c. 12 ; 364, n.

7 & 8 Vict. c. 76 ; 546, 652, n., 695, n.

c. 81; 507, n., 508.
c. 110; 183.

8 & 9 Vict. c. 10; 240.

c. 16; 896, n.
c. 18 ; 73.
c. 20; 207.

INDEX.

!♦!»!

STATUTES CITED— continued.

8 & 9 Vict.c. 106; 4G7, 546, 595, n.,

652, n.
c. 109; 37, 474, n., 720.

9 & 10 Vict. c. 93; 210, 912, 915.

10 & 11 Vict. c. 95; 364, n.

11 & 12 Vict. c. 12; 66.

c. 42; 968.
c. 44 ; 89, n.

12 & 13 Vict. c. 106; 970, n.

13 & 14 Vict. c. 21 ; 28, n., 32, n.

14 & 15 Vict. c. 25 ; 410, 428, 429, n.

c. 99 ; 969, n.
c. 100; 310.

15 & 16 Vict. c. 3 ; 58, n.

c. 12 ; 364, n.
c. 24; 448.

c. 57 ; 585, n , 970, n.
c. 76; 73, 81, n., 92.
340, n., 351, n., 902.

16 & 17 Vict. c. 83; 536.

17 & 18 Vict. c. 36; 500, n.

c. 90; 762.

c. 125; 81, n., 91, n.,
109, n., Ill, n., 174,
n., 203, 840, n., 934,
n., 969, n.

18 & 19 Vict. c. Ill ; 471, n.

c. 120; 115.
C. 122; 296.

19 & 20 Vict. c. 97 ; 38, 361, 621, n.

838, 897, 898, 900.

19 & 20 Vict. c. 108; 340, n.

c. 119; 507, n., 511, n.,

513, n., 514.
c. 120 ; 447.

20 & 21 Vict. c. 43; 251.

c. 57 ; 455.

c. 85 ; 41, n., 268, 455,
730, n., 892, n.

21 & 22 Vict. c. 77 ; 447.

c. 90 ; 41, n., 746, n.
c. 93 ; 76, n.

22 Vict. c. 32 ; 64, n.

22 & 23 Vict. c. 35; 520.

23 & 24 Vict. c. 34; 73.

24 & 25 Vict. c. 96; 210, n., 314, n.,

805, 970,971, n.
c. 100; 349, n., 388, n.,
433, n.

25 & 26 Vict. c. 37; 51, n.

c. 68 ; 364, n.
c. 88 ; 349, n.

26 & 27 Vict. c. 41 ; 709, 915, n.

c. 125 ; 34, n. .

27 & 28 Vict. c. 45 ; 447, n.

c. 95; 210, n., 912, 913,
n., 915.

28 & 29 Vict.c. 18; 174.

c. 60; 393, n.
c. 86: 827, n.

STATUTES CITED— continued.

28 & 29 Vict. c. 104 ; 70, n.

29 & 30 Vict. c. 96; 501, n.

30 & 31 Vict. c. 68; 82, n.

c 102; 666, a.
c. 144; 476, n.

31 & 32 Vict. c. 20; 76, n.

c. 86; 476, n.
c. 119: 913, n.

32 & 33 Vict. c. 46 ; 70, n.

c. 68 ; 537, 969, n.
STATUTORY PROTECTION,

general remarks as to, 98.
STAYING PROCEEDINGS, 347.
STOCK,

transfer of, 182, n.

description of, in will, 632, 633.
STOCK EXCHANGE,

usage of, 927.
STOPPAGE IN TRANSITU,

when right does not exist, 471.
SUICIDE. See Policy of Insurance.
SUMMA RATIO QUJE PRO RELI-

GIONE FACIT, 19.
SUNDAY. See Arrest, Bail, Con-
tract, Process.

is not dies juridicus, 21.

taken to be the first day of term, 23.

but not the last, ib.

trading on, 23, 24.

by-law to close navigation on, not
valid, 26.
SURPLUSAGE

does not vitiate an instrument, 627.

application of rule in pleading, 628.

indictment, 629.
SURRENDER,

by operation of law, 697.

TACKING, 357.
TAXES,

to be imposed by clear authority, 4.

action by commissioners of, 164.
TENANT BY THE CURTESY

of land, 251.

of an advowson, ib.
TENANT IN FEE. See Grant.

his power over estate, 175.

may annex conditions to land, 175,
448.
TENANT FOR LIFE,

liability of, for waste, 403, 405.

right of his representatives to em-
blements, 239, 408.
lessees, 409.

demise by, 496.
TENANT IN TAIL,

liability of, for waste, 406.

power of alienation by, 446.
TENANTS IN COMMON,

where they must join in an action, 252.

992

INDEX.

TENDER,

what is sufficient, 174.
effect of refusing, 285.
meaning of, 671.
to agent, 820.
TITHE

of corn left in raking, where payable,

143.
set out under an agreement, 692.
limitation of time in action for not

setting out, 899.
TITLE. See Land, Minerals, Property.
allegation of, in pleading, 163.
to unappropriated land, 353.
by escheat, 354.
elder shall be preferred, 356.
to chattels, 359.

as between execution-creditors, ib.
by possession, 713.
warranty of vendor's, 799, 801.
TITLE-DEEDS,
right to, 492.
TORT. See Case, Infant, Injury,

Trespass.
no man shall take advantage of his

own wrong, 279, 287.
wrongful mixture ofproperty, 285, 286.
TREASON,

indictment for, must be found within

three years, 66.
what constitutes the crime, 311.
what are overt acts of, 311, 312.
TREES. See Landlord and Tenant,

Property, Trover.
TRESPASS. See Court of Requests,

Judge, Limitation, Misdemeanor,

Pleading, Sheriff.
whether it lies against disseisor, or

against his grantee, 128.
by relation, ib.

for taking goods of wrong party, 133.
lies for taking a horse, &c, damage

feasant, if the horse were at the

time under the plaintiff's care, 2 78.
ab initio by abuse of authority, 301,

306.
for an assault committed abroad, 349,

n.
whether it lies for unintentional in-
jury, 366, 367.
lies for a direct injury, 367.
by command of the Crown, 866.
by agent, adopted by principal. 872,

873.
action of, by personal representatives

for injury to real estate, 911.

against personal representatives,
913, 914.
TROVER. See Bankrupt, Limitation.
for goods seized under execution

against a third party, 290.

TROVER— continued.

effect of recovery in, 338.
against trespasser for timber, 404.
against vendee or mortgagee for fix-
tures, 425.
does not lie for fixtures before sever-
ance, 427, n.
TRUSTEE

cannot be sued at law by cestui que
trust, 209.
TRUSTEES,

for executing public works, liability

of, 7.
of road, liability of, 229.

USAGE. See Custom.

evidence of, when admissible, 662.

best interpreter of things, 917.

of trade, 924.

in reference to mercantile contracts,
924, 926.

reference to, in construction of con-
tracts, 618.
of deeds, 682.

of no avail against statute, 684.

proof of foreign mercantile, 937, 938.

evidence of, to explain deeds, 929.
statutes, 930, 931.

VENDOR AND VENDEE. See Caveat

Emptor, Contract, Fixtures.
VENUE,

change of, 109.

wrongfully laid by consent shall
stand, 135.
VERBA EEL ATA INESSE VIDEN-

TUR, 673.
VERDICT,
aider by, 181.
presumption as to, 945.
VOLENTI NON FIT INJURIA, 268.

WAGER. See Par Delictum.

illegal, whether money paid upon, is
recoverable, 720.
WAIFS,

to whom they belong, 354.
WAIVER,

definition of, 136.
of notice of dishonor, 701.
of right by married woman, 705.
of simple contract, 884, 888.
WARRANTY. See Caveat Emptor,
Contract.
where express warranty excludes im-
plied, 657, 659, 660.
of quality, 777, 801.
distinguished from representation,

787.
of title, 799, 801.

INDEX.

US*:?

WASTE. See Landlord and Tknant,
Tenant.
liability for, 403, 406.
WATER,

action for wrongful obstruction of,

144.
right in running water, bow to be ex-
ercised, 373.
subterraneous, 377.
WAY,

right of, over private land, where,

2,3.
right of, when impliedly granted or

reserved, 480.
reservation of, 483.
of necessity, 483, 485.
WIFE,

subjection of, to husband, 14."
agency of, 107.

right of, by survivorship, 477.
evidence of, against husband, 536.
agent of husband, 832.
WILL
revocable during testator's lifetime,

503.
general principles of interpretation
of wills, 554.
founded on testator's intentions,
554, 556.
which must be collected from
the words used, 555.
regardless of legal results,
556.
technical expressions, 560.
" children," 561.
" dying without leaving issue,"

563.
"estate," ib.

"heirs of the body," 565.
cy-pres, ib.

summary of doctrine as to con-
struction of, 566.
analogous principles of Roman law,

567.
nocitur a sociis applicable to, 590.
ex antecedentibus et consequenlibus,
582, 590.

WILL — continued.

when irreconcilable clauses in,
last words will prevail, 583.
technical rules, 555, 557, 559.
conjunctive and disjunctive
words in, 591.
ambiguities, 604, 609, etseq.
patent, example of, 609, 611.
qualification of rule as to, 612.
latent, example of, 614.
general remarks as to parol evi-
dence to explain, 616, 617.
falsa demonstratio non nocet, 630.
applies to remove surplusage,
634, 638.
not to supply defect, 637.
legal intendment, 643.
summary of the above principles,

643-645.
verba generalia, how construed, 649.
doctrine of general intent qualified,

650.
documents incorporated by refer-
ence, 673, 675.
exceptions and provisoes, 677.
relative words, how referred, 681.
context, how used; noscitur a sociis,

590.
right of executor derived from,
910.
WITNESS,

not bound to criminate himself, 968.

WORDS. See Deed, Statutes, Will.

how to be construed, 551, 553, 685.

construction of, in statutes, 573, 585.

according to ordinarv meaning,

574.

may be modified or rejected, when,

574, 581.

meaning of, how ascertained, 551,

575, 576.

conjunctive and disjunctive, 591.

meaning of, when to be ascertained
by usage, 924, 926.
WRIT,

what is good service of, 287.
WRIT OF ERROR. See Error.

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