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Roscoe's Digest of the law of evidence o 




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KOSCOE'S DIGEST 



OF THR 



LAW OF EVIDENCE 



ON THE TRIAL OF 



Civil Ections 



NINETEENTH EDITION 

BY 

■TAMES S. HENDEllSON, 

OF THE MIDDLE TEMPLE, BABBIBTEB-AT-LAW. 



IN 2'(rO VOLUMES. 



VOL. II. 



LONDON : 
STEVENS & SONS, Ltd., SWEET & MAXWELL, Ltd., 

119 & 120 CHANCERY LANE, 3 CHANCERY LANE, 

3Law pubdsbers. 
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iii ) 




SUMMAEY OF CONTENT&'v: 




MK1 



VOLUME 11. 



{For a fuller Table of Contents of this Volume, vide Vol. I., pp. v et seq.) 



PAET 11.— (continued). 
EVIDENCE IN PAETIOULAB ACTIONS— (cojitrntied). 



Actions for Weongs, independent of Conteact. 

PAGE 

Action for nuisance 639 

negligence 655 

disturbance of support of laud 692 

obstruction of light and air 695 

disturbance of common 702 

way 705 

watercourse 716 

pew 722 

deceit and misrepresentation 723 

defamation 730 

slander of title 758 

malicious prosecution 760 

arrest and abuse of civil process id. 

conspiracy 768 

wrongful distress 769 

seduction 786 

assault and battery 790 

false imprisonment 795 

trespass to personal property 802 

trespass to land 805 

mesne profits 821 

conversion of goods 823 

detention of goods 868 

the recovery of land : 871 

of replevin 941 

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Summary of Contents of Volume' 11. 



PAET III. 

EVIDENCE IN ACTIONS BY AND AGAINST PAETICULAE 
PEESONS. 

PAGE 

Actions by and against companies, &c 952 

against constables, justices and persons acting under Statutes 

or public duty 989 

by executors and administrators 1000 

against executors and administrators 1006 

by and against husband and wife 1019 

married women alone 1021 

against police authorities for damage done by rioters 1028 

sheriffs 1033 

Issues upon interpleader orders 1071 



APPENDIX. 



Affidavit to put off Teial on Account of Absence of Matebial 

Witness 1074 



INDEX 1075 



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DIGEST OF THE LAW OE EYIDE^OE 
AT MSI PEIUS. 



PART 11.— (continued). 
EVIDENCE IN PARTICULAR AGTIOI^^S— (continued). 



ACTIONS FOR WRONGS, INDEPENDENT OF CONTRACT. 



ACTION FOR NUISANCE. 

Under this head are inserted cases, which apply to nuisances in general, as 
affecting real property. 

Where the nuisance is a public one, so as to be an indictable offence, 
an indictment or information is the proper remedy, and an action will not 
lie at the suit of a priTate person ; Ricket v. Metropolitan By. , 36 L. J. 
Q. B. 205 ; L. E. 2 H. L. 175 ; Winterbottom v. Derby, 36 L. J. Ex. 194 ; 
L. E. 2 Ex. 316 ; unless he has sustained special damage by such nuisance, 
beyond that sustained by other persons. S. C. ; Iveson "v. Moore, 1 Ld. 
Eaym. 486; Benjamin v. Storr, 43 L. J. C. P. 162; L. E. 9 C. P. 400; 
Campbell v. Paddington Borough Council, 80 L. J. K. B. 739; [1911] 
1 K. B. 869; and see Metrop. Board of Works v. M'Carthy, 43 L. J". C. P. 
385; L. E. 7 H. L. 243. The same rules apply to a local authority. 
Att.-Gen. v. Logan, [1891] 2 Q. B. 100; Tottenham, Sc., Council v. 
Williamson, 65 L. J. Q. B. 591; [1896] 2 Q. B. 353; Stoke Parish Council 
V. Price, 68 L. J. Ch. 447; [1899] 2 Ch. 277. As to information by 
Att.-Gen. to restrain a nuisance, see Att.-Gen. v. Shrewsbury Bridge Co., 
51 L. J. Ch. 746; 21 Ch. D. 752, and cases there cited, Att.-Gen. v. Logan, 
supra, and Att.-Gen. v. Scott, 73 L. J. K. B. 196; [1904] 1 K. B. 404; 
74 L. J. K. B. 803; [1905] 2 K. B. 160. 

For the reason above mentioned, a private person cannot, of his own 
authority, abate a public nuisance, e.g., an obstruction to a highway, unless 
it does him a special injury, and then only so far as is necessary to exercise 
his right of passing along the highway. Dimes v. Petley, 15 Q. B. 276; 
19 L. J. Q. B. 449; Arnold v. Holbrook, 42 L. J. Q. B. 80; L. R. 8 Q. B. 
96. And where the obstruction arises from nonfeasance, as the decay of a 
bridge across which the highway passes, he may not re-erect the bridge. 
Campbell-Davys v. Lloyd, 70 L. J. Ch. 714; [1901] 2 Ch. 518. 

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640 Action for Nuisance. 

Tbs plaintiff may, by a proper defence, be put to prove the inducement, 
if any ; his possessory title ; the nuisance ; and the damages. 

Proof of plaintiff's title — Injury to reversion.] If the plaintiff is in 
possession, whether as owner or otherwise, it is sufficient to prove, as usually 
alleged in the statement of claim, that he was possessed of the premises 
injured by the nuisance. If the nuisance be of a permanent nature, or 
injurious to the reversion, an action may be brought by the reversioner, 
as well .as by the tenant in possession, each being entitled to recover for his 
respective loss. Bedingfi-eld v. Onslow., 3 Lev. 209; 1 Wms. Saund. 
322, e (k). The reversioner may sue, where the injury complained of is 
an injury to his right, though the nuisance is capable of being easily 
removed; as the obstruction of light, by an alteration in the defendant's 
house; Jesser v. Gifford, 4 Burr. 2141; Shadwell v. Hutchinson, M. & M. 
350; or by a wall built by the defendant. Id. v. Id., 2 B. & Ad. 97; 
Metropolitan Assoc., Sc. v. Fetch, 5 C. B. (N. S.) 287; 27 L. J. C. P. 
330; or by injury caused to a riparian owiber by pollution of a natural 
stream ; Jones v. Llanrwst Urban Council, 80 L. J. Ch. 145 ; [1911] 1 Ch. 
393; or by injury caused to the plaintiff's house by vibration arising from 
the working by the defendant on adjoining premises of permanent 
machinery. Shelf er v. City of London Electric Lighting Co., 64 L. J. 
Ch. 216; [1895] 1 Ch. 287; Colwell v. S. Pancras Council, 73 L. J. Ch. 
275; [1904] 1 Ch. 713. The plaintiff must prove as a fact that he was 
injured in his reversionary estate. Kidgill v. Moor, 9 C. B. 364; 19 L. J. 
C. P. 177; White v. London General Omnibus Co., 58 S. J. 339. The 
action lies by the reversioner against his own tenant, and even although 
the injury is caused by an act done in breach of an express covenant by 
the defendant. The erection of a roof, which throws rain-water in the yard 
of the plaintiff's tenant, is a ground of action to the plaintiff, if the jury 
think the reversion is [or will be] damaged. Tucker v. Newman, 9 L. J. 
Q. B. 1; 11 Ad. & E. 40. But no action lies by the lessor against a 
stranger, for a mere transient trespass, though it be in assertion of a claim 
of right of way, &c. ; such an act not being injurious to the reversion. 
Baxter v. Taylor, 2 L. J. K. B. 65 ; 4 B. & Ad. 72; see, however, the 
judgment in Dobson v. Blackmore, 16 L. J. Q. B. 283 ; 9 Q. B. 991, where 
it is observed by the court that, even an act, not permanent, if coupled 
with an obvious denial of right, as by a public notice, might perhaps be 
actionable. And it seems that, where the plaintiff claims a right of way 
for his tenants, an obstruction of the exercise of the right, coupled with a 
denial of it, is actionable, though the obstruction be of a temporary 
character, as by locking a gate. Kidgill v. Moor, 19 L. J. C. P. 177 ; 
9 C. B. 364; Bell v. Midland By. Co., 10 C. B. (N. S.) 287; 30 L. J. 
C. P. 273. But where the act complained of cannot injure the reversion 
(as in case of a noisy occupant of the next premises), it ought not to be 
left to the jury; Mumford v. Oxford, d-c, Ry. Co., 1 H. & N. 34; 26 L. J. 
Ex. 265 ; even although the selling value of the reversion is thereby 
temporarily diminished. Rust v. Victoria, d-c, Dock Co., 36 Ch. D. 113. 
Nor is the reversioner in such case entitled to an injunction. Cooper v. 
Crabtree, 51 L. J. Ch. 544; 20 Ch. D. 589. A nuisance occasioned by 
excessive smoke from a neighbour's chimney is not generally a cause of action 
for the reversioner. Simpson v. Savage, 1 C. B. (N. S.) 347 ; 26 L. J. C. P. 
50; see also Mott v. Shoolbred, 44 L. J. Ch. 380; L. K. 20 Eq. 22. 

In an action for an injury to the reversion, payment of rent to the 
plaintiff is evidence that he is reversioner. Logan v. Hall, 16 L. J. C. P. 
252; 4 C. B. 598; Daintry v. Brocklehurst, 18 L. J. Ex. 57; 3 Ex. 207. 
In an action by the reversioner, a trustee, proof that the cestui que trust 
let the premises and received rent from the tenant was held to support an 
alleged occupation by the tenant, as tenant to the plaintiff. Vallance v. 
Savage, 7 Bing. 595; 9 L. J. (0. S.) C. P. 181. The plaintiff alleged 
possession of a wharf, and a nuisance to it by the defendant : plea, not 

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Proof of the Nuisance. 641 

possessed : held, that long user of the wharf would support a verdict for 
the plaintiff, though the defendant showed a grant to a lessee (under whom 
the plaintiff claimed) of the iise of the land for a certain purpose only. 
Page v. Hatchett, 15 L. J. Q. B. 281; 8 Q. B. 593. Possession of A. B., 
as tenant to the plaintiff, is proved by showing that A. B. continues legally 
interested as tenant, though he has given up actual possession to the 
defendant. Hosking v. Phillips, 18 L. J. Ex. 1; 3 Ex. 168. Where the 
defendants, corporators, had erected a building on the land of the corpora- 
tion, which obstructed the market of L., and L. afterwards demised the 
market to the plaintiff, an action was held to lie for the plaintiff against the 
defendants for continuing the nuisance. Thompson v. Oibson, 10 L. J. 
Ex. 330; 7 M. & W. 456. 

Proof of the nuisance.^ To erect anything offensive eo near the house of 
another as to make it useless, as a swine-sty, a forge, &o., is actionable; 
Com. Dig. Action on the case for Nuisance (A) ; and it is enough that it 
renders the enjoyment of life and property uncomfortable. Per Ld. Mans- 
field, in R. V. White, 1 Burr. 337; Walter v. Selfe, 4 De G. & Sm. 315, 
322, 323; 20 L. J. Ch. 433, 435; Fleming v. Hislop, 11 App. Cas. 686, 691, 
697. It is a nuisance to build a cornice over a neighbour's land ; and no 
proof of damage is necessary. Fay v. Prentice, 14 L. J. C. P. 298; 
1 C. B. 828; see also Battishill v. Reed, 18 C. B. 696; 25 L. J. C. P. 290. 
So, to make an artificial heap of earth, which brings damp to the plaintiff's 
premises, is a nuisance; Hurdman v. N. E. Ry., 47 L. J. C. P. 368; 

3 C. P. D. 168; or an excessive collection of manure. Bland v. Yates, 
58 S. J. 612. Where, indeed, the plaintiff sued the defendant for keeping 
his dogs so near the plaintiff's house that his family were prevented from 
sleeping at night, and were much disturbed during the day, and the jury 
found a verdict for the defendant, though no evidence was given by him; 
the court refused a new trial; Street v. Tugwell, 2 Selw. N. P., 13th ed. 
1070; and this has been sometimes represented as an authority, that to keep 
a kennel close to a neighbour's house is not in law a nuisance. But the 
court no doubt would have upheld a verdict the other way, if the jury had 
found it to be a nuisance; for noise may be a nuisance, even in a legal 
trade. See Elliotson v. Feetham, 2 Bing. N. C. 134; Scott v. Firth, 

4 P. & P. 349; Crump v. Lam.bert, L. E. 3 Bq. 409; Gaunt v. Fynney, 
42 L. J. Ch. 122; L. B. 8 Oh. 8; De Keyser's Royal Hotel v. Spicer, 
30 T. L. E. 257 (pile driving at night). And, for this reason, a stable 
adjoining or near to the plaintiff's dwelling-house has been held to be a 
nuisance. Ball v. Ray, L. E. 8 Ch. 467; Broder v. Saillard, 45 L. J. 
Ch. 414; 2 Ch. D. 692; Rapier v. L. Tramways Co., 63 L. J. Ch. 36; 
[1893] 2 Ch. 588. So yards for cattle. Truman v. L. Brighton, dc, Ry., 
53 L. J. Ch. 209; 25 Ch. D. 423 : reversed in H. L. on the ground that 
the yards were made under statutory authority. 55 L. J. Ch. 354; 11 App. 
Cas. 45. This case was distinguished in Rapier v. L. Tramways Co., 
supra. As to hospitals, see Tod-Heailey v. Benham, 58 L. J. Ch. 83; 
40 Ch. D. 80; Frost v. King Edward VII. Welsh National Memorial, 
87 L. J. Ch. 561 ; [1918] 2 Ch. 180. 

In the case of adjoining houses so built that their several occupiers B. & 
E. were intended each to enjoy their own property for the ordinary purposes 
for which they were so constructed, such user by E. is not a legal nuisance 
as regards B. ; if, however, the user by E. is so altered as to cause substantial 
injury to B., E. is liable. Ball v. Ray, L. E. 8 Ch. 467, 469, 470. Thus 
where E. had altered his stables adjoining the house of B., so that their 
user caused nuisance by noise to B., E. is liable to B. S. C. So in the 
case of residential fiats, where the occupier D. of a lower fiat, changed it 
into a restaurant and fitted up therein a large cooking range, which unduly 
heated the flue, which passed along the wall of S.'s flat above, thereby 
creating a nuisance to S., S. can sue D. Sanders-Clark v. Grosvenor 
Mansions Co., 69 '^■[jfigifi^ei^By W8?&^1^ ^'^^- ^° *^'^ '^^^^ ^* " 



642 Action for Nuisance. 

pointed out that Reinhardt v. Mentasti, 42 Ch. D. 685, appears to have 
been decided on grounds inconsistent with Ball v. Ray, supra, and this 
seems to have been the case, notwithstanding the explanation in Att.-Gen. 
V. Cole, 70 L. J. Ch. 148; [1901] 1 Gh. 205, although the decision itself 
may perhaps be supported on the facts. As to musical and other sounds 
in adjoining houses, see Christie v. Davey, 62 L. J. Gh. 439; [1893] 1 Ch. 
316, where a distinction was drawn between sounds necessary for carrying 
on a profession and such as were made merely to annoy the neighbour; 
New Imperial & Windsor Hotel v. Johnson, [1912] 1 Ir. E. 327. 

It is a nuisance to discharge sewage into the sea so as to injure the oysters 
of the plaintiff stored in ponds or " layings " occupied by him, constructed 
on the foreshore. Foster v. Warblington Urban, lic. Council, 75 L. J. 
K. B. 514; [1906] 1 K. B. 648; Hobart v. Southend-oii-Sea Corporation, 
75 L. J. K. B. 305 (compromised in C. A.). So, too where in dealing with 
sewage it is thrown on to the plaintiff's land. Price's Patent Candle Co. 
V. London County Council, 78 L. J. Ch. 1; [1908] 2 Ch. 526. So, to 
discharge rockets, so as to frighten away game on the plaintiff's land 
adjoining. Ibbotson v. Peat, 3 H. & C. 644; 34 L. J. Ex. 118. As to 
nuisance created by display of fireworks, or by a circus, club or theatre 
conducing to the collection of a crowd of noisy and disorderly people, in 
the neighbourhood of the plaintiff's house and blocking up access thereto, 
see Walker v. Brewster, 37 L. J. Ch. 38; L. E. 5 Bq. 25; Inchbald v. 
Robinson, L. E. 4 Ch. 388; Bellamy v. Wells, 60 L. J. Ch. 156; and 
Barber v. Penley, 62 L. J. Ch. 623; [1893] 2 Ch. 447; Lyons v. Gulliver, 
83 L. J. Ch. 281 ; [1914] 1 Gh. 631. As to what amount of obstruction to 
a highway or navigable river, interfering with the access to the plaintiff's 
house or wharf, is actionable, vide S. C, Original Hartlepool Collieries Co. 
V. Gibb, 46 L. J. Ch. 311; 5 Ch. T>. 713, and Att.-Gen. v. Brighton, dec. 
Supply Assoc, 69 L.. J. Gh. 204; [1900] 1 Gh. 276. The storage of 
dangerous substances, as wood naptha or gunpowder, in a warehouse in 
a town, near to streets and dwelling-houses, in such large quantities as to 
endanger life and property therein, if it chanced to take fire ab extra, is 
a nuisance, although from the care taken no accident has happened. R. v. 
Lister, Dears. & Bell, 209; 26 L. J. M. G. 196; Belvedere Fish Guano Co. 
V. Rainham Chemical Works, 89 I.. J. K. B. 631; [1920] 2 K. B. 487 ; affd. 
H. L. 37 T. L. E. 973. 

The encroachment of the boughs and roots of trees in A.'s land over and 
within the land of the adjoining owner B. is a nuisance, in respect of which 
B. may sue A. if damage ensue to B. ; Lemmon v. Webb, 63 L. J. Gh. 
570, 578 ; [1894] 3 Ch. 1, 24, per Kay, L.J. ; as by interfering with the 
growth of B.'s fruit trees. Smith v. Giddy, 73 L. J. K. B. 894; [1904] 
2 K. B. 448; or B. may, even without notice to A., lop the overhanging 
branches provided he does not trespass on A.'s land. Lemmon v. Webb, 
64 L. J. Gh. 205; [1895] A. G. 1. So where A.'s overhanging trees were 
yews, and B.'s horses were poisoned by eating the yew leaves. Crdwhurst 
V. Amersham Burial Board, 48 L. J. Ex. 109; 4 Ex. D. 5; see also Firth v. 
Bowling Iron Co., 47 L. J. G. P. 358; 3 C. P. D. 254. But A. is not liable 
if the yews do not extend beyond A.'s land, and B.'s horses trespass thereon 
so as to get to the yews, A. not being under an obligation to fence against 
B.'s cattle. Pouting v. Noakes, 63 L. J. Q. B. 549; [1894] 2 Q. B. 281. 
Nor is a landlord liable to his tenant who takes land adjoining that of the 
landlord and where yew trees on the land of the latter overhang the demised 
land, so as to be within reach of the tenant's cattle. Gheator v. Cater, 
87 L. J. K. B. 449; [1918] 2 K. B. 439. Whether there would be any 
liability on the landlord if, since the demise, the trees had overhung the 
tenant's land, gucsre. S. C. Where a tree is blown down by a violent 
gale and falls into an adjoining garden, the occupier of the ground in 
which the tree was growing, is not liable for any damage caused unless 
there is evidence that he knew the tree was dangerous. Bruce v. Caulfield, 
34 T. L. E. 204. See also Wilson v. Newberry, 41 L. J. Q. B. 31 ; L. E. 

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Proof of the Nuisance. 643 

7 Q. B. 31. A person is not liable for injury caused by that which grows 
naturally on his land, e.g., thistles, the seed of which is scattered by the 
wind on the land around. Giles v. Walker, 59 L. J. Q. B. 416 ; 24 Q. B. D. 
656. Nor for damage to crops, occasioned by rats attracted to neighbour- 
hood by bones in artificial manure factory. Steam v. Prentice, 88 L. J. 
K. B. 422; [1919] 1 K. B. 394. 

A public nuisance is a ground of action if a special injury also be alleged 
and shown by the plaintiff, beyond that which is common to the public at 
large. In such cases the private injury or damage, as a ground of action, 
appears on the record. Where vitriol works were established by the 
defendant, which were complained of as injurious to the plaintiff's garden, 
evidence was admitted on both sides to show the effect of the works on 
other gardens in the same neighbourhood; but the plaintiff's counsel was 
not allowed to ask one of the defendant's witnesses, " whether he knew of 
any money paid by the defendant to another person A. for alleged damage 
to his ground by the works;" although he had stated, on his examination, 
that he knew of no damage to A. by them ; for the inquiry as to such pay- 
ment is collateral, and the answer would not be evidence, either to prove 
damage, or to test the veracity of the witness. Tennant v. Hamilton, 
7 CI. & P. 122. Whether an act done is a nuisance or not, depends not 
only on the act itself, but on the surrounding circumstances, for what would 
be a nuisance in one place would not be in another. Sturges v. Bridgman, 
48 L. J. Ch. T85; 11 Ch. D. 852; Polsue v. Rushmer, 76 T,. J. Ch. 365; 
[1907] A. C. 121 ; but a substantial addition to noise previously existing 
may be actionable as a nuisance. S. C. 

In the case of Walter v. Selfe, 20 L. J. Ch. 433; 4 De G. & Sm. 315, an 
injunction was granted against the continuance of a brick-clamp near the 
plaintiff's house, although it was shown that other brick-clamps had been 
burning in the same neighbourhood. Where any act is shown to interfere 
with the comfort of an individual, so as to come within the legal definition 
of a nuisance, it cannot be justified by the finding of a jury that it is done 
in a proper and convenient place, and is a reasonable use by the defendant 
of his land and premises. Bamford v. Turnley, 3 B. & S. 62; 31 L. J. 
Q. B. 286. Thus, where the plaintiff and the defendant had purchased 
adjoining portions of some land, sold for building purposes; the defendant 
in order to obtain bricks to build upon his own land, erected a temporary 
clamp of bricks within 180 yards of the plaintiff's house, but on that part of 
his land which was most distant from the plaintiff's house; the action was 
held to lie. S. C. The question for the jury is, whether burning the bricks 
rendered the enjoyment of the plaintiff's life and property substantially 
uncomfortable, and not whether the bricks were burnt in a convenient 
place. Cavey v. Lidbetter, 13 C. B. (N. S.) 470; 32 L. J. C. P. 104; 
Att.-Oen V. Cole, 70 L. J. Ch. 148; [1901] 1 Ch. 205. In Wanstead Local 
Board v. Hill, 13 C. B. (N. S.) 479; 32 L. J. M. C. 135, Willes, J., is 
reported to have said that the case of Bamford v. Turnley, supra, over- 
rules Hole V. Barlow, 27 L. J. C. P. 207; 4 C. B. (N. S.) 334, in this 
respect only, that it decides that it is not in every case to be left to the 
jury to say whether the act complained of was, under the circumstances, 
done in a reasonable place, and was a reasonable use of the laud of the 
person who did it. As to nuisance created by erection of a new kiln near 
plaintiff's land, see Boreham v. Hall, W. N. 1870, p. 57. 

There is a difference between a nuisance which produces material injury 
to the property, and one which is productive merely of sensible personal dis- 
comfort ; persons must sometimes submit to the latter, in order that their 
neighbours may carry on their trades, whereas, if the nuisance caused 
sensible injury to the value of adjacent property, it would be actionable. 
Tipping v. S. Helm's Smelting Co., 11 H. L. C. 642; 35 L. J. Q. B. 66. 
There, vapours from the defendant's smelting furnaces, destroyed the shrubs 
on the plaintiff's grounds adjacent, and it was held that the action was 
maintainable on the a^yft/ggg^I)^ l\^^BS8ft@ Salvin v. N. Brancepath 



644 Action for Nuisance. 

Coal Co., 44 L. J. Ch. 149; L. E. 9 Ch. 705; Shotts Iron Go. v. Inglis, 
7 App. Gas. 518; Wood v. Conway Corporation, 83 L. J. Ch. 498; [1914] 
2 Ch. 47. It is not sufficient that the vapours, &c., should do harm to some 
particular trade in the neighbourhood, if they would not prejudically affect 
any ordinary trade, or the ordinary enjoyment of life. Robinson v. Kilvert, 
58 L. J. Ch. 392; 41 Ch. D. 88. If smoke and noise materially interfere 
with the comfort of human existence, in the plaintiff's premises, it is an 
actionable nuisance. Crump v. Lambert, L. E. 3 Eq. 409 ; Pwllbach 
Colliery Co. v. Woodman, 84 L. J. K. B. 874; [1915] A. C. 634. Per- 
mission to carry on a business does not imply permission to carry it on in 
such a way as to create a nuisance unless, indeed, the business cannot 
possibly be carried on without committing a nuisance, or that some particu- 
lar method of carrying it on has been authorized which necessarily results 
in a nuisance being committed. S. C. See also Bainbridge v. Chertsey 
Urban Council, 84 L. J. Ch. 626 (sewage farm) ; Great Central Ry. y. 
Doncaster Rural Council, 87 I*. J. Ch. 80; Bosworth-Smith v. Gwynnes, 
89 L. J. Ch. 368. See also Scott v. Firth, 4 P. & P. 349, and Walter v. 
Selfe, 20 L. J. Ch. 433; 4 De G. & Sm. 315. The offensive smell from a 
fried fish shop may constitute a nuisance. Adams v. Ursell, 82 L. J. Ch. 
157 ; [1913] 1 Ch. 269. It is a nuisance to use a traction-engine on a 
highway so as to make it foundrous and a cause of danger; Att.-Gen. v. 
Scott, 73 L. J. K. B. 198; [1904] 1 K. B. 404; provided the road authority 
have kept the road up to the proper standard for the traffic that may 
reasonably be expected to traverse it, but not otherwise. S. C, 74 L. J. 
K. B. 803; [1905] 2 K. B. 160. See also Chichester Cor. v. Foster, 
75 L. J. K. B. 33; [1906] 1 K. B. 167, where the defendant's traction- 
engine broke the plaintiffs' water main under the road. Or to allow the 
emission of sparks from the engine, which cause a fire. Mansell v. Webb, 
88 L. J. K. B. 323. Placing a motor omnibus on a greasy road whereon 
it is liable to skid, and does in fact become uncontrollable through skidding, 
does not constitute a nuisance. Wing v. London General Omnibus Co., 
78 L. J. K. B. 1063; [1909] 2 K. B. 652. But for such things as merely 
abridge the pleasure of the plaintiff in the enjoyment of his property, as 
shutting out the prospect from his windows, an action will not lie; Aldred's 
Case, 9 Eep. 58 b. ; unless the obstruction is an illegal nuisance which 
lessens the value of the plaintiff's property. Gamphell v. Paddington 
Borough Council, 80 L. J. K. B. 739; [1911] 1 K. B. 869. And an occupier 
is entitled to use his premises in a reasonable manner, although the user 
may cause some inconvenience to the occupier of neighbouring premises. 
Gaunt V. Fynney, 42 L. J. Ch. 122; L. E. 8 Ch. 8; Chnstie v. Davey, 
62 L. J. Ch. 439 ; [1893] 1 Ch. 316. 

If, after a highway has been established anything be newly made so near 
to it as to be dangerous to those using the highway, this is unlawful and 
a nuisance. Thus, the possessor of land which has been subjected to 
excavation is bound to keep it fenced off from any public place or right of 
way, irrespective of the circumstances whether the excavation was made before 
or during his possession. Att.-Gen. v. Roe, 84 L. J. Ch. 322; [1915] 
1 Ch. 235. Where the defendant's house and area, which were newly 
erected and incomplete, adjoined a public footway, and the plaintiff was 
injured by falling into the area, while passing along the way, with ordinary 
care in the night; held that the defendant was liable, and that it was 
immaterial that the party injured had fallen in consequence of his acci- 
dentally deviating from the path, and so inadvertently becoming a trespasser. 
Barnes v. Ward. 9 C. B. 392; 19 L. J. C. P. 195; Hadley v. Taylor, L. E. 
1 C. P. 53. Where, however, a child crept through a gap in a railing, 
and was injured by falling into the area, the gap having been made by a 
trespasser, the owner not knowing of it, nor could know of it at the time 
of the accident, had he used reasonable care to prevent his premises becoming 
dangerous to persons using the highway, it was held that the owner was 
not liable. Barker v. Herbert, 80 L. J. K. B. 1329; [1911] 2 K. B. 633. 

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Proof of the Nuisance. 645 

If the area la distant from the path, so as not to be dangerous to passengers 
using it, there is no liability. Barnes v. Ward, supra, and the cases there 
cited; Coupland v. Hardingham, 3 Camp. 398; Jarvis v. Dean, 3 Bing. 
147; 4 L. J. (0. S.) G. P. 144. In Hardcastle v. S. Yorkshire, £e., %;. 
Co., 4 H. & N. 67; 28 L. J. Ex. 139, wherei a foot-passenger missed his 
way along a public path, and strayed into a reservoir made by the defen- 
dants near to, but not " substantially adjoining," the path, the defendants 
were held not liable, though the jury found the reservoir dangerous, and. 
that the foot-passenger had used ordinary care. Hounsell v. Smyth, 7 C. B. 
(N. S.) 731; 29 L. J. C. P. 203; and Binks v. S. Yorkshire, dc., By. Co., 
3 B. & S. 244; 32 L. J. Q. B. 26. The defendant's duty is to guard only- 
against such accidents as may reasonably be foreseen. Pearson v. Cox, 

2 C. P. D. 369. An occupier from whose land a tree is blown down by a 
violent gale falls across a highway, and causes an obstruction thereto, is 
under no obligation by virtue of sect. 65 or 72 of the Highway Act, 1835, 
to light the tree or warn persons passing along the highway of the obstruc- 
tion. Hudson V. Bray, 86 L. J. K. B. 576 ; [1917] 1 K. B. 520. He may, 
however, be liable if after being called upon by the' surveyor of highways 
to remove the obstruction, he fails to do so. S. C. Where A. lawfully 
diverts a public footpath, he must take steps to protect reasonably careful 
persons from injury by going astray at the point of diversion. Hurst M. 
Taylor, 54 L. J. Q. B. 310; 14 Q. B. D. 918. In Williams v. Groucott, 

3 B. & S. 149; 32 L. J. Q. B. 237, the occupier of mines was held hable to 
an action, at the suit of the occupier of the soil above, for leaving a shaft 
insufficiently covered, so that a horse fell in and was injured. To the same 
effect, M'Morrow v. Layden, [1919] 2 I. E. 398. As to the duty of fencing 
in the case of abandoned mines, see 50 & 51 V. c. 58, s. 37. A person, who 
af&xes to his house a lamp, which projects over a public footway, or who 
allows it to remain so fixed, is liable for any injury which may be caused to 
a passer-by by reason of its non-repair. Tarry v. Ashton, 45 L. J. Q. B. 
260; 1 Q. B. D. 314, but where the invitee to premises was injured by the 
fall of a projecting cornice, the owner was held not liable as he was not 
aware that the cornice was defective. Pritchard Y. Peto, 86 L. J. K. B. 
1292; [1917] 2 K. B. 173. Placing something on the highway which is 
dangerous — e.g., a fire in a perforated pail on which is placed a ladle for 
melting lead — if left unattended, constitutes a nuisance. Crane v. South 
Suburban Gas Co., 85 L. J. K. B. 172; [1916] 1 K. B. 83; but the person 
leaving it is not liable if the danger is solely caused by the wrongful act 
of a third party. Ruoff v. Long, 85 L. J. K. B. 364 ; [1916] IK. B. 148. 

But a way may be dedicated to the public, subject to the inconvenience 
or risk arising from its peculiar condition. In Fisher v. Prowse, 2 B. & S. 
771; 28 L. J. Q. B. 212, the defendant was occupier of a house adjoining 
the public street ; the mouth of the cellar opened into the street by a trap- 
door, which was closed at night by a flap, which slightly projected over 
the footway; the plaintiff fell over the flap, which, as far back as memory 
went, had been in the same condition; held, that there was no evidence to 
go to the jury. The principle of this case was followed in Bobbins v. Jones, 
15 C. B. (N. S.) 221 ; 33 L. J. C. P. 1 ; and Mercer v. Woodgate, 39 L. J. 
M. C. 21; L. B. 5 Q. B. 26, and Arnold v. Blaker, 40 L. J. Q. B. 185'^ 
L. E. 6 Q. B. 433. So persons may be allowed to go across dangerous 
land, at their own peril; in which case the owner is not, in the absence of 
anything in the nature of a. trap, liable for any injury that may happen 
to the licensees from such use of the land. Hounsell v. Smyth, 29 L. J. 
C. P. 203; 7 C. B. (N. S.) 731; Bolch v. Smith, infra; Gautret v. EgeHon, 
36 L. J. C. P. 191; L. R. 2 C. P. 371; Castle v. Parker, 18 L. T. 364; 
Latham v. Johnson, 82 L. J. K. B. 258; [1913] 1 K. B. 398. See also 
Ivay V. Hedges, 9 Q. B. D. 80; Wilson v. Barry By., 86 L. J. K. B. 432. 
If the owner puts a dangerous beast on his land, he is liable to a person 
who has been allowed to cross the land. Lowery v. Walker, 80 L. J. 
K. B. 138 ; [1911] A.. [^gf^ggf^^f^gfcf^Q^^orkmen of a contractor. 



646 Action for Nuisance. 

employed in a dockyard, was hurt by unfenced machinery whilst croseing 
the yard, which for his own convenience he was allowed to do, this was held 
to give no right of action, as he was a mere licensee, who had only the 
right not to be treated as a trespasser, and the danger was open and visible. 
Bolch V. Smith, 7 H. & N. 736; 31 L. J. Ex. 201. The court, in this 
case, intimated that the decision would have been otherwise, if the danger 
had been in the nature of a trap, as explained in Corby v. Hill, infra. 
See Kimber v. Gas Light S Coke Co., 87 L. J. K. B. 651; [1918] 1 K. B. 
439 (hole left in floor on dark landing by defendant's workman, and no 
warning given to plaintiff) ; and Smith v. L. d: S. Katherine's Docks, 
37 L. J. C. P. 217 ; L. R. 3 G. P. 326. In Seymour v. Maddox, 16 Q. B. 
326; 20 L. J. Q. B. 327, the owner of a theatre was held not liable for an 
injury sustained by one of the players, who fell through an aperture in the 
floor of the stage, which was not suf&oiently lighted. In Scuthcote v. 
Stanley, 1 H. & N. 247 ; 25 L. J. Ex. 339, the declaration stated that the 
plaintiff, a visitor at the defendant's house, had been injured by the falling 
of a glass door through the negligence of the defendant; it was held that, 
the plaintiff having pro hac vice become an inmate of the defendant's 
family, a rule similar to that in the case of fellow-servants applied, and 
the action would not lie, as the negligence might have been that of the 
defendant's servant. See also Collis v. Selden, 37 L. J. C. P. 233; L. E. 
3 C. P. 495. Where the plaintiff, a carman, who went to fetch some goods 
from the defendant's house, was directed by the defendant's servant to go 
to the counting-house ; in going along a dark passage in the direction 
indicated, the plaintiff fell down a staircase and was injured; it was held 
that the defendant was not liable, on the ground that either the plaintiff 
could see, and therefore the accident arose from his own negligence, or if 
lie could not see he ought not to have proceeded without a light. Wilkinson 
V. Fairrie, 1 H. & C. 633; 32 L. J. Ex. -73. 

Where the obstruction is lawful, it may give rise to an action upon proof 
that it was concealed, and the plaintiff invited to pass near it. In Corby v. 
Hill, 4 C. B. (N. S.) 556; 27 L. J. C. P. 318, permission was given to the 
defendant to place a stack of slates on a private road, with the consent of 
the owners and occupiers of the road ; the slates were left at night with no 
light to mark the spot where they were, and the plaintiff (while using the 
road) drove over them and was injured ; held that the defendant was liable. 
So, where the owner of land permits others to pass over it, he is liable for 
an accident caused by the negligence of himself or his servants to the 
plaintiff, a person lawfully availing himself of such permission, for of 
such negligence the plaintiff could not be aware ; but he is not liable for 
an accident caused by the ordinary risks attaching to the nature of the 
place or the business carried on. Gallagher v. Humphrey, 10 W. E. 664. 
In Chapman v. Rothwell, E. B. & E. 168; 27 L. J. Q. B. 315, the plaintiff's 
wife was returning as a customer from the defendant's brewery through 
the regular passage, when she fell through a trap-door improperly guarded 
and lighted ; held that the defendant was liable. Shoebottom v. Egerton, 
18 L. T. 364, 889. Where a gas-fitter sent his servant, the plaintiff, to 
fix some gas apparatus in the defendant's sugar refinery, at his request, 
and the plaintiff fell through anunfenced shaft in the floor of the refinery 
and was injured, it was held that the defendant vpas liable. Indermaur 
V. Dames, L. E. 1 C. P. 274; L. E. 2 C. P. 311. In this case the plaintiff 
was on the premises, in' the capacity of " a person on lawful business, in 
the course of fulfilling a contract, in which both the plaintiff and defendant 
had an interest, and not upon bare permission," and with respectto such a 
visitor at least, it is " settled law that he, using reasonable care on his part 
for his own safety, is entitled to expect that the occupier shall on his part 
use reasonable care to prevent damage from unusual danger, which he knows 
or ought to know; and that where there is evidence of neglect, the question 
whether such reasonable care has been taken by notice, lighting, guarding, 
■or otherwise, and whether there was contributory negligence in the sufferer, 

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Nuisance Occasioned by tlie Defendant. 647 

must be determined by n jury as a matter of fact." S. C, L. E. 1 C. P. 
285, 288; L. E. 2 C. P. 313. In Norman v. Great Western Ry., 84 L. J. 
K. B. 598; [1915] 1 K. B. 584, it was said that the duty of a railway 
company towards those coming on to their premises to do business with 
them is no higher than that of an occupier of private premises towards 
persons whom he invites to come upon them, the duty in both cases being 
to take reasonable care that the premises are reasonably safe for persons 
using them in the ordinary and customary manner, and with reasonable 
care. See a learned discussion of this decision in 32 Law Quarterly Review, 
p. 255. See also Elliott v. Roberts, 85 L. J. K. B. 1689; [1916] 2 K. B. 
518; Hayward v. Drury Lane Theatre, 87 L. J. K. B. 18; [1917] 2 K. B. 
899. By the Education Acts a statutory obligation is imposed upon the 
local education authority to keep the school premises in a state of repair, 
and the authority is liable to a scholar who is injured through the premises 
being out of repair. Ching v. Surrey County Council, 79 L. J. K. B. 481; 
[1910] 1 K. B. 736 ; Morris v. Carnarvon County Council, 79 L. J. K. B. 
670; [1910] 1 K. B. 840. So the owner, M., of a building let in flats, 
the staircase remaining under his control, is liable to the plaintiff who, 
after calling in the course of business on one of M.'s tenants on an upper 
flat, fell while descending the staircase, through its worn and defective 
condition, and was thereby injured. Miller v. Hancock, [1893] 2 Q. B. 
177. See also White v. France, 46 L. J. C. P. 823; 2 C. P. D. 308; 
Heaven v. Pender, 62 L. J. C. P. 702; 11 Q. B. D. 503; and Smith v. 
L. (£- S. Kathenne's Docks, 87 L. J. G. P. 217 ; L. B. 3 C. P. 326. Secus, 
where the accident arose from the darkness of the staircase, which the 
owner was under no obligation to light. Huggett v. Miers, 77 L. J. 
K. B. 710; [1908] 2 K. B. 278. Or where the defect in the premises, 
e.g., an unfenced flight of steps, was obvious, and was known to the 
plaintife. Lucy v. Bawden, 83 L. J. K. B. 523; [1914] 2 K. B. 318. A 
person is guilty of a public nuisaace if he place anything on his own land, 
near a highway, which is dangerous in consequence of causing horses passing 
along there to shy. Brown v. Eastern & Midland Ry., 58 L. J. Q. B. 
212 ; 22 Q. B. D. 391. In an action for damages caused thereby, evidence 
that other horses than those of the -plaintiff have shied thereat is admissible 
to prove that it is such nuisance. S. 0. As to injury caused by a defective 
fence of the defendants along a highway, see Harrold v. Watney, 67 L. J. 
Q. B. 771 ; [1898] 2 Q. B. 320. Where a statute empowered a local board 
to erect a landing stage in a navigable river, the board were held liable 
to the owner of a ship which was injured on anchors laid down by them 
in the river for the above purpose ; for by reason of the anchors being 
insufficiently marked with buoys, they formed a concealed danger. Jollifje 
Y. Wallasey Local Board, 43 L. J. C. P. 41; L. E. 9 C. P. 62. See also 
R. V. Williams, 53 L. J. P. C. 64 ; 9 App. Gas. 418. The owner of a market 
is bound, as against a person paying him . toll for its use, to keep the 
market-place in a safe condition. Lax v. Darlington Corp., 49 L. J. Ex. 
105 ; 5 Ex. D. 28. 

The nuisance occasioned by the defendant.] This action may be brought 
either against a person who originally occasioned the nuisance, or against 
his alienee who permits it to be continued ; but a request to the alienee to 
remove or abate the nuisance must be proved. Penruddock's Case, 5 Eep. 
101 a. Where a notice to remove the nuisance had been served upon the 
predecessor of the defendant, Abbott, G.J'., ruled that, being delivered on 
the premises to the occupier for the time being, it bound a subsequent 
occupier. Salmon v. Bensley, Ey. & M. 189. Where the defendants 
occupied one floor of an unfinished warehouse, by permission of the owner, 
and the plaintiff fell through an unfenced hoist hole adjoining the public 
way, and used by the defendants, it was held that the defendants were 
bound to fence the hoist hole, and were liable for injury occasioned by 
their neglecting to do f^tgiM^h^ ■l\/fi&^bvk(^- ^ ^- ^- ^^- ^° '"^^'' 



648 Action for Nuisance. 

the carmen of the defendant, for the purpose of delivering coals, removfid 
the plate in the footway and left it unfenced; held, that defendant was 
liable to a person injured in consequence. Whitely v. Pepper, 46 L. J. 
Q. B. 436; 2 Q. B. D. 276. Where a railway company, under their acts, 
construct their line across a highway on a level, they must keep the crossing 
in a proper state for carriages to cross the rails, or they will be liable for 
injury done to a passing carriage. Oliver v. N. E. Ry., 43 L. J. Q. B. 
198; L. E. 9 Q. B. 409. A contractor lawfully employed to construct a 
sewer under a road, is not liable for injury caused to an individual through 
a hole having formed in the road by the natural subsidence of the ground, 
the work having been properly completed by the defendant. Hyams v. 
Webster, 86 L. J. Q. B. 166; 38 L. J. Q. B. 21; L. E. 2 Q. B. 264; L. E. 

4 Q. B. 138; see also BaHlett v. Baker, 3 H. & C. 153; 34 L. J. Ex. 8. 
The defendant is liable for any obstruction to a highway which he is bound to 
remove, e.g., where his bank and retaining wall fall over the highway. See 
Gully V. Smith, 53 L. J. M. C. 35 ; 12 Q. B. D. 121. 

Where a contractor, employed to do a lawful act, causes a nuisance in the 
course of his work, the contractor alone, and not the employer, is responsible. 
The principle of Bu^h v. Steinman, 1 B. & P. 404, if it be understood to 
mean that the occnpier of fixed property must take care so to use and 
manage it as not to injure others, whether by his own servants or by other 
persons whom he brings on the premises, has not of late years been 
followed. See the judgment of Littledale, J., in Laugher v. Fainter, 

5 B. & C. 547; 4 L. J. (0. S.) K. B. 309; and Quarman v. Burnett, 

9 L. J. Ex. 308; 6 M. & W. 499. In Reedie v. L. S N. W. Ry. Co., 
20 L. J. -Ex. 65 ; 4 Ex. 244, where the defendants employed a contractor 
to build a bridge, and the contractor's workmen were so negligent as to 
cause a stone to fall upon the plaintiff, it was held that the defendants 
were not liable, although they had reserved a power to dismiss incompetent 
workmen. In such cases the action lies only against the person who, by 
himself or his servant, committed the injury ; and a sub-contractor, or 
other person, exercising an independent employment, is not a servant 
within the meaning of the rule, so as to render his employer liable. 
Rapson v. Cubitt, 11 L. J. Ex. 271; 9 M. & W. 710; Milligan v. Wedge, 

10 L. 3. Q. B. 19; 12 Ad. & E. 737; Allen v. Hayward, 15 L. J. Q. B. 99, 
102; 7 Q. B. 960, 975. The rule is, " that you must look to the wrongdoer 
himself, or to the first person in the ascending line, who is the employer 
and has control over the work ; you cannot go further back, and make the 
employer of that person liable." Murray v. Gurrie, 40 L. J. C. P. 26, 28; 
L. R. 6 C. P. 24, 27. Thus, where a contractor, employed by navigation 
commissioners, in the course of executing the works, flooded the plaintiff's 
land, by improperly, and without authority, introducing water into a drain 
insufficiently made by himself, the contractor, and not the commissioners, 
was held liable. Allen v. Hayward, supra. So, where >•■ person employed a 
contractor to build on his land, and the workmen excavated the ground so 
negligently as to cause injury to the next house, the contractor, and not the 
person who employed him, was held liable. Gayford v. Nicholls, 9 Ex. 
702; 23 L. J. Ex. 205. In this case the plaintiff had no right of support 
for his house, and the case is thus distinguishable from Dalton v. Angus, 
50 L. J. Q. B. 689 ; 6 App. Gas. 740. Where a, company contracted with A. 
to construct a railway, and A. subcontracted with B. to construct a bridge 
on it, and B. employed C. to erect the scaffold, under a special contract 
between him and C, a passenger, injured by the negligent construction of 
the scaffold, must sue C, and not B. Knight v. Fox, 20 L. J. Ex. 9; 
5 Ex. 721. On the same principle the subsequent cases of Overton v. Free- 
man, 11 C. B. 867 ; 21 L. J. C. P. 52, and Cuthbertson v. Parsons, 12 C. B. 
304; 21 Ij. J. C. P. 165, and Murphy v. CaralU, 3 H. & C. 462; 34 L. J. 
Ex. 14, were decided. See also Glover v. Er- London W. Works Co., VJ 
L. T. 475, and Pearson v. Cox, 2 C. P. D. 369. The nature of the work 
may be such as to raise a presumption in accordance with ordinary experience, 

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Nuisance Occasioned by the Defendant. 649 

that an independent contractor would be employed to do the work, e.g., 
to repair the roof of a house in a large town ; in such case the onus of 
showing that the person who created the nuisance was the servant of the 
defendant, and not an independent contractor, is thrown on the plaintiii. 
Welfare v. L. Brighton S S. G. Ry., 38 L. J. Q. B. 241; L. E. 4 Q. B. 693. 

Where defendant employed a contractor, A., to make a drain, and A.'s 
men left some of the rubbish in the highway, whereby an accident happened, 
and it further appeared that the defendant, on complaint made, had promised 
to remove the rubbish, and had paid for carting part of it away, and it did 
not appear that the contractor had undertaken to remove it; held, that there 
was evidence to fix the defendant. Burgess v. Gray, 14 L. J. C. P. 184; 
1 C. B. 578; see also Wiggett v. Pox, 25 L. J. Ex. 188; 11 Ex. 823. 

Where the nuisance directly results from the thing contracted to be done, 
the employer is liable. The defendants, a company without special powers 
for that purpose, directed W. to open trenches in the streets of Sheffield, 
and the servants of W., whilst engaged in the task, left a heap of stones 
on the footway, over which the plaintiff fell ; the defendant was held liable, 
as what he had ordered to be done was a public nuisance. Ellis v. Sheffield 
Oas Consumers' Co., 2 E. & B. 767; 23 L. J. Q. B. 42. So where the 
defendant has brought another person on the land in his occupation, and 
allowed him to commit a nuisance thereon, the defendant is liable. White 
V. Jameson, L. E. 18 Eq. 303. See Jenkins v. Jackson, 58 L. J. Ch. 124; 
40 Ch. D. 71. Where a person causes "something to be done, the doing 
of which casts on him a duty, he cannot escape from the responsibility 
attaching to him of seeing that duty performed by delegating it to a con- 
tractor." Dalton V. Angus, 60 L. J. Q. B. 689, 750; 6 App. Gas. 
740, 829; Bower v. Peate, 45 L. J. Q. B. 446; 1 Q. B. D. 321; 
Percival v. Hughes, 51 L. J. Q. B. 388; 52 L. J. Q. B. 719; 
9 Q. B. D. 441; 8 App. Gas. 443. Thus, where a person orders work 
to be done on his land which, though lawful in itself, would, in the 
natural course of things, cause injury to his neighbour, unless special pre- 
cautions are taken, e.g., causing interference with the right of support 
of adjacent buildings, he is bound to have reasonable skill used that proper 
precautions should be taken in order 'to prevent the mischief; S. GG. ; see 
also Black v. Ghnstchurch Finance Co., 63 L. J. P. G. 32; [1894] A. C. 48; 
Stewart v. Adams [1920] S. C. 129. In these cases the duty was imposed 
on the defendants by common law. The same principle applies when it 
arises under a statute. Hole v. Sittingbourne Ry., 6 H. & N. 488; 80 L. J. 
Ex. 81. The defendants, being authorized by statute to make an opening 
bridge over a navigable river, employed a contractor to construct it : held, 
that they were liable for damage caused by the defect of the bridge. S. G. ; 
see Glover v. E. London Waterworks Co., supra. See also Birmingham 
City Tramways Co. v. Law, 80 L, J. K. B. 80 ; [1910] 2 K. B. 965. So where 
dangerous work is done by statutory authority on a highway. Holliday v. 
National Telephone Co., 68 L. J. Q. B. 1016; [1899] 2 Q. B. 392. Where 
P. had employed H. to carry » drain across the footway of the public road, 
in accordance with the Metropolis Local Management Act, and the soil was 
so carelessly replaced- that it subsided, leaving a trench into which the 
plaintiff fell and was injured, it was held that P. was liable. Gray v. 
Pullen, 5 B. & S. 970; 34 L. J. Q. B. 265. Hardaket. v. Idle District 
Council, 65 L. J. Q. B. 363; [1896] 1 Q. B. 335, and Penny v. Wimbledm, 
dc. Council, 68 L. J. Q. B. 704; [1899] 2 Q. B. 72. But P. is not hable 
when the injury is caused by negligence merely casual or collateral to the 
work directed to be done. S. G. And where P., in pursuance of a statutory 
power, delegates the performance of a duty to another, his liability ceases. 
Alldred v. Metropolitan Trams Co., 60 L. J. Q. B. 631; [1891] 2 Q. B. 398. 
As where the duty of repairing the highway has, by a contract made under 
33 & 34 V. c. 78, s. 29, been transferred from the tramway company to the 
road authority E. S. G. In this case E. is liable for injury caused by 
non-repair. Barnett %)^lzeS(&y Wlbrds^^- ^^8 ; [1901] 2 K. B. 319. 



'650 Action for Nuisance. 

Although the owner of land, after letting it, is not liable for a nuisance, 
erected by the tenant, yet if he let or re-let the land with a nuisance upon 
it, or retain control over the repairs, he is liable, notwithstanding the 
tenancy. Where damage arose from the non-repair of a trap-door over 
a cellar, the lessor was held to be rightly sued, it being proved that, as 
between him and the lessee, it was the duty of the lessor to repair; Payne 
V. Roger's, 2 H. Bl. 349; but, unless this were proved, the landlord would 
not be liable. Gheetham v. Hampson, i T. E. 318 ; Russell v. Shenton, 
11 L. J. Q. B. 289; 3 Q. B. 449. In Rosewell v. Prior, 2 Salk. 460, the 
lessor was held liable for the continuance upon land, which he had leased, 
of a wall which obstructed the plaintiff's lights, because the wall existed 
at the time of the demise. In Rich v. Basterfield, 16 L. J. C. P. 273 ; 4 
C. B. 783, in an action against the owner of premises for a nuisance, arising 
from smoke issuing out of a chimney which he had erected, the court decided 
in favour of the defendant, as the chimney was not in itself a nuisance, but 
only the user of it in such a way as to cause smoke to issue. This case was 
explained in Harris v. James, 45 L. J. Q. B. 545, 546, where it was held 
that if A. let his land to B. to be used for works which, if carried on in the 
usual way, will be a nuisance to C, A. is liable for the nuisance created 
by such user by B. Baker v. Ot. N. Ry., Mar. 18, 1884, Q. B. D. ex rel. 
amici. See also Pwllbach Colliery Co. v. Woodman, 84 Ij. J. K. B. 874 ; 
[1915] A. C. 634. In Todd v. Flight, 9 C. B. (N. S.) 377 ; 30 L. J. C. P. 
21, the owner of a stack of chimneys, having demised them while in a 
ruinous condition, and kept and maintained them in that state, was held 
liable to an action at the suit of a person upon whose house they fell. 
The owner is only liable for an injury caused to a stranger by the defective 
repair of premises let by him, when he contracted with the occupier to do 
the repairs, or when he commits a misfeasance, as by letting the premises 
in a ruinous or dangerous condition. Nelson v. Liverpool Brewery Co., 
46 L. J. C. P. 675 ; 2 C. P. D. 311 ; Bowen v. Anderson, [1894] 1 Q. B. 164. 
This principle extends to ", weekly tenancy. S. C. If a house be let when 
in a dangerous condition, the landlord C. is not liable for injury caused to 
the tenant T. or to a person using the house, by reason of such condition, 
where, at any rate, C. had not contracted with T. to repair. Lane v. Cox, 
66 L.' J. Q. B. 193; [1897] 1 Q. B. 415; nor even if C. had so contracted 
would he be liable, except to T. under the contract. Cavalier v. Pope, 
75 L. J. K. B. 609; [1906] A. C. 428. It makes no difference that the 
contract with T. arises at common law — Cameron v. Young, 77 L. J. P. C. 
68 ; [1908] A. C. 176— or by statute— iJj/aH v. Kidwell, 83 L. J. K. B. 1140; 
[1913] 3 K. B. 125. See also Malone v. Laskey, 76 L. J. K. B. 1134; 
[1907] 2 K. B. 141. As to the liability of a defendant for a nuisance erected 
by a stranger on the defendant's land, see Saxby v. Manchester £ Sheffield 
Ry. Co., L. E. 4 C. P. 198. 

The acts of two or more persons may, taken together, be a nuisance for 
which each is liable, though it would be otherwise if taken separately. 
Lambton v. Hellish, 63 L. J. Ch. 929; [1894] 3 Ch. 163, following Thorpe 
V. Brumfltt, L. E. 8 Ch. 660. 

Trustees or commissioners, acting for public purposes, without salary or 
reward, are as responsible as private individuals. Mersey Docks Board v. 
Gibbs, 35 L. J. Ex. 225 ; L. E. 1 H, L. 93 ; Coe v. Wise, L. E. 1 Q. B. 711. 
See also Collins v. Middle Level Commissioners, 38 L. J. C. P. 236; L. E. 
4 C. P. 279; Winch v. Thames Conservators, 43 L. J. C. P. 167; L. E. 
9 C. P. 378. The liability of a body created by statute is governed by that 
statute; for mere nonfeasance it is not liable, except in respect of a duty 
to the plaintiff imposed by the statute and neglected. Gibraltar Sanitary 
Comrs. V. Orflla, 59 L. J. P. C. 95; 15 App. Cas. 400. Such body is not 
liable as a stranger and apart from such duty. Stretton's Brewery Co v. 
Derby (Mayor), 63 L. J. Ch. 135; [1894] 1 Ch. 431. "Where the statutory 
power given has not been exceeded, the body is not liable for injury. 
E. Freemantle Cor. v. Annois, 71 L. .J. P. C. 39; [1902] A. C. 213. In the 

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Nuisance Occasioned by the Defendant. 651 

I I 
Docks Case, supra, the trustees of docks receiving tolls from, 
vessels which used them, were held liable for damage caused by their keeping 
a dock open, when they knew, or had the means of knowing, of its dangerous 
condition, even though the tolls were devoted simply to the maintenance 
of the docks, and the reduction of tolls. The Beam, 75 L. J. P. C. 9; 
[1906] P. 48. See also R. v. Williams, 53 L. J. P. C. 64; 9 App. Gas. 418. 
So the Trinity House are liable for damage done by a buoy negligently kept 
by them in a dangerous state. Gilbert v. Trinity House, 56 L. J. Q. B. 85; 
17 Q. B. D. 795. 

So, even formerly, such trustees were held liable where their acts were of 
an arbitrary and oppressive character. Leader v. Moxton, 3 Wils. 461 ; 
Boulton V. Growther, 2 B. & C. 703. So also, where an injury arises from 
the neglect or careless discharge, by the trustees, of the duties personally 
imposed upon them; Buck v. Williams, 3 H. & N. 308; 27 L. J. Ex. 357; 
WMtehouse v. Fellmues, 10 C. B. (N. S.) 765; 30 L. J. G. P. 305; Ohrby v. 
Ryde Commissioners, 5 B. & S. 743 ; 33 L. J. Q. B. 296 ; or where they 
have personally interfered in the carrying out of works authorized by the 
Legislature. So^ithampton, Sc. Bridge Go. v. Southampton Local Board, 8 
B. & B. 801; 28 L. J. Q. B. 41. So, where the works which they were 
authorized to construct were for trading and other profitable purposes ; Scott 
V. Manchester (Mayor, dc), 2 H. & N. 204; 26 L. J. Ex. 406; or where 
the act, in the execution of which those whom they employed were guilty of 
negligence was itself unauthorized by the special Act. Brownlow v. Metro- 
politan Board of Works, 13 C. B. (N. S.) 768; 33 L. J. G. P. 233. But 
where the injury to the plaintiff arose from long detention in a canal, by 
reason of a fall of a lock from want of repair, the commissioners not being 
liable to repair, but having power to enforce repair by others, it was held 
that the commissioners were not liable, the cause of damage being too 
remote. Walker v. Goe, 4 H. & N. 350; 28 L. J. Ex. 184; and this decision 
would seem not to be affected by the Mersey Dock Case, supra. 

No action is maintainable against the inhabitants of the county, or of a 
parish, for the non-repair of a county bridge, or of a highway, which they 
are respectively bound to repair. Russell v. Men of Devon, 2 T. E. 667. 
Nor does the action lie against a county surveyor appointed under 43 G-. 3,. 
c. 59; M'Kinnon v. Penson, 9 Ex. 609; 23 L. J. M. G. 97; nor against the 
surveyor of highways appointed under 5 & 6 W. 4, c. 50. Young v. Davis,. 
7 H. & N. 760; 31 L. J. Ex., 250; 2 H. & G. 197; even. for the negligence 
of sub-contractors employed by him by order of the vestry. Taylor v. 
Greenhalgh, 43 L. J. Q. B. 168; L. B. 9 Q. B. 487; but see Pendlebury 
V. Greenhalgh, infra. Nor does the action lie against a local board of health, 
constituted under the Public Health Act, 1875, 38 &> 39 V. c. 55; Cowley 
V. Newmarket Local Board, 62 L. J. Q. B. 65 ; [1892] A. C. 345 ; nor against 
a metropolitan vestry under 18 & 19 V. c. 120; Parsons v. S. Matthew's 
Vestry, 37 L. J. G. P. 62; L. E. 3 C. P. 56; for these bodies are placed by 
those statutes in the position of the surveyors of highways, and are not 
liable for nonfeasance. And this is the rule where the obligation to repair- 
is transferred by statute to a public corporation, unless the statute shows 
that the liability is to be imposed thereon. Pictou Municipality v. Geldart,, 

63 L. J. P. C. 37; [1893] A. G. 524; Sydney Municipal Council v. Bourke,. 

64 L. J. P. C. 140; [1895] A. G. 433; Maguire v. Liverpool Cor., 74 L. J. 
K. B. 369 ; [1905] 1 K. B. 767. 

Local boards of health are, however, liable for misfeasance, and may he- 
sued for the negligent acts of their servants, as in leaving a heap of stones by 
the side of the road without a light at night. Foreman v. Canterbury Cor., 
40 L. J. Q. B. 138 ; L. E. 6 Q. B. 214. So, as the owners of a sewer, for 
not keeping a grid thereof in repair. White v. Hindley Local Board, 40' 
L. J. Q. B. 114; L. E. 10 Q. B. 219; Blackmore v. Mile End Old Town 
Vestry, 51 L. J. Q. B. 496; 9 Q. B. D. 451. See also Bathurst Borough 
V. Macpherson, 48 L. J. P. C. 61 ; 4 App. Gas. 256, and observations thereon 
in Sydney Municipal ^/gftH^ ff^^f^rdWift®^^^^^ ^ corporation S. 



662 Action for Nuisance. 

which is both sewer and highway authority breaks up a road, and before 
it has been restored to its normal state, an accident happens in the course of 
events which but for that alteration would not have happened, S. is liable 
for misfeasance. Shoreditch Borough v. Bull, 2 L. Gr. B. 756; McClelland 
V. Manchester Cor., 81 L. J. K. B. 98; [1912] 1 K. B. 118. But where 
the local authority have exercised due care in executing their statutory duty 
in placing a grating in a highway, and have not been negligent in not 
discovering its dangerous condition, they are not liable for injury caused 
thereby. Papworth v. Battersea Borough Council, 85 L. J. K. B. 746; 
[1916] 1 K. B. 583. A rural district council, which was the highway autho- 
rity removed a fence put up by its predecessors along the side of the highway, 
so that it thereby became dangerous during floods, and occasioned an acci- 
dent; held liable; Whyler v. Bingham, &c.. Council, 70 L. J. K. B. 207; 
[1901] 1 K. B. 45. The surveyor of highways is liable for injury caused 
by his personal negligence. Pendlebury v. Greenhalgh, 45 L. J. Q. B. 3 ; 
1 Q. B. D. 36. A water company which, under statutory power, places 
plugs in a highway, is not liable for injury caused by the projection of the 
plugs owing to the wearing away of the road. Moore v. Lamheth Water- 
works, 55 L. J. Q. B. 304; 17 Q. B. D. 462; Simpson v. Metropolitan Water 
Board, 15 L. G. E. 629. See also Babt v. Metropolitan Water Board, 80 
L. J. K. B. 1354; [1911] 2 K. B. 965; and Mist v. Metropolitan Water 
Board, 84 li. J. K. B. 2041; or for injury caused by a post placed on the 
highway and legalized by statute. Great Central By. v. Hewlett, 85 L. J. 
K. B. 1705; [1916] 2 A. C. 511; distinguished in Morrison v. Sheffield Cor., 
86 L. J. K. B. 1456 ; [1917] 2 K. B. 866. There it was held that a local 
authority which had planted trees in a highway and erected guards for their 
protection, was bound to take reasonable steps to protect the public from 
accidents arising therefrom in any abnormal circumstances. To the same 
effect, Baldoclt v. Westminster City Council, 88 L. J. K. B. 502 (unlighted 
street refuge), and Carpenter v. Finsbury Borough Council, 89 L. J. K. B. 
554; [1920] 2 K. B. 195 (low archway insufficiently lighted). So where a 
corporation, B., is both water authority and road authority, B. is not in 
such a case liable. Thompson v. Brighton Cor., 63 L. J". Q. B. 181; [1894] 
1 Q. B. 332. 

A highway authority is not liable for the misfeasance of a former highway 
authority not resulting in damage in their time ; and no such liability is 
passed on to them by the Local Government Act, 1894. Nash v. Rochford 
Rural Co-uncil, 86 L. J. K. B. 370; [1917] 1 K. B. 384. 

As to the non-liability of the head of a Government Department for wrong- 
ful acts of his subordinates, see Bainbridge v. Postmaster- Gen., 75 L. J. 
K. B. 366 ; [1906] 1 K. B. 178. 

In determining whether the non-performance of a statutory duty, which 
causes injury to A., gives A. a right of action, much depends "on the 
purview of the Legislature in the particular statute and the language which 
they there employed." Cowley v. Newmarket Local Board, 62 L. J". Q. B. 67 ; 
[1892] A. C. 352. Johnson, da. v. Consumers Gas Co. of Toronto, [1898] 
A. C. 447, 454. A London district board was not liable for special 
damage caused by its neglect to remove snow from the streets as required by 
54 & 55 V. c. 76, s. 29, under a penalty. Saunders v. Holbom District 
Board, 64 L. J. Q. B. 101; [1895] 1 Q. B. 64. But a district council is 
liable for nuisance caused to a landowner from its failing to cleanse a 
sewer vested in it, as required by the Public Health Act, 1875, s. 19. Baron 
V. Portslade District Council, 69 L. J. Q. B. 899; [1900] 2 Q. B. 688. A 
tramway company is liable for damage caused by its neglect to keep the 
roadway between the rails, &c., in good condition and repair to the satis- 
faction of the road authority, as required by the Tramways Act, 1870, 33 & 
34 V. c. 78, s. 28. Fitzgerald v. Dublin United Tramways Co., 72 L. J. 
P. C. 52; [1903] A. C. 99. As to the onus of proof in an action for damage 
caused by neglect of a statutory duty, see Britannic Merthyr Coal Co. v. 
David, 79 L. J. K. B. 153; [1910] A. C. 74. 

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Nuisance Occasioned by Defendant — Damages — Injunction. 653 

The injury must be the natural or ordinary consequence of the defendant's 
wrongful act. Sharp v. Powell, 41 L. J. C. P. 95; L. B. 7 C. P. 253. 
Where a water company caused a spout of water to shoot up on a public 
highway, and thereby frightened the plaintiff's horses, so that they swerved, 
and fell into a ditch insufficiently fenced, made in the middle of the road 
by the commissioners of sewers, and were injured, it was held that the com- 
pany were liable ; the spout of water being the causa causans of the injury. 
Hill V. New River Co., 9 B. & S. 303. See also Harris v. Mobbs, 3 Ex. D. 
268; Wilkins v. Day, 12 Q. B. D. 110. 

Damages — Injunction.'] Where the injury is by pulling down a house, in 
the possession of the plaintiff's tenant, the measure of damage is the diminu- 
tion in the saleable value of the premises, in consequence of the act done. 
Hashing v. Phillips, 18 L. J. Ex. 1 ; 3 Ex. 168. But where the nuisance 
is a continuing one, i.e., caused by repeated acts of the same nature, so that 
successive actions may be brought, the measure of damages is the amount 
of injury sustained, up to the time of the assessment of damages (see Eules, 
1883, 0. xxxvi. r. 58); Hole v. Chard Union, 63 L. J. Ch. 469; [1894] 1 
Ch. 293; and the jury may upon a further action, give substantial damages. 
Battishin v. Reed, 18 C. B. 696; 25 L. J. C. P. 290; see Shadwell v. 
Hutchinson, 2 B. & Ad. 97 ; 9 L. J. (0. S.) K. B. 142. The defendant's 
intention, in doing the act, is to be taken into consideration in assessing 
the damages. Emblem v. Myers, 6 H. & N. 54 ; 80 L. J. Ex. 71 ; Thompson 
V. Hill, 39 L. J. C. P. 264; L. E. 5 C. P. 54. When the action is for 
the wilful obstruction of the plaintiff's right of way, the jury may give 
exemplary damages. Bell v. Midland Ry., 10 C. B. (N. S.) 287; 30 L. J. 
C. P. 273. 

Where a nuisance is continuing in its nature, an injunction will be granted 
to abate it, and this is the most effective remedy. Metropolitan Asylum 
District v. Hill, 50 L. J. Q. B. 353; 6 App. Gas. 193. Sturges v. Bridgman, 
48 L. J. Ch. 785; 11 Ch. D. 852; Morrow v. Stepney Corporation, 18 
L. G. E. 468. An injunction will be granted, in an action by the Attorney- 
General, on behalf of the public, to restrain the illegal interference with a 
public right, e.g., that of passage along a navigable stream or highway; 
without proof of damage. Att.-Gen. v. Shrewsbury Bridge Co., 51 L. J. Ch. 
746; 21 Ch. D. 752. 

Where the action is brought for an injunction the Court may still, notwith- 
standing the repeal of Cairns' Act, 21 & 22 V. c. 27, s. 2, by 46 & 47 V. 
c 49, s. 3, grant damages in lieu thereof. Chapman v. Auckland Union, 58 
L. J. Q. B. 504; 23 Q. B. D. 294; see also Sayers v. Collyer, 54 L. J. Ch. 
1; 28 Ch. D. 103. Formerly the court did not adopt this alternative unless 
the injury to the plaintiff's legal rights was (1) small, (2) capable of being 
estimated in money, (3) could be adequately compensated for by a, small 
money payment, and, (4) the cause was one in which it would be oppressive 
to grant an injunction. Shelfer v. City of London Electric Lighting Co., 
64 L. J. Ch. 216, 229; [1895] 1 Ch. 287, 322. Since Colls v. Home and 
Colonial Stores, 73 L. J. Ch. 484; [1904] A. C. 179, "as a general rule 
the Court ought to be less free in granting mandatory injunctions than it 
was in years gone by." Kine v. Jolly, 74 L. J. Oh. 174, 188; [1905] 1 Ch. 
480, 504, see however Higgins v. Betts, 74 L. J. Ch. 621, 624; [1905] 2 Ch. 
210,217. 

A quia timet action to restrain an apprehended injury can be maintained 
only where the plaintiff proves that danger of a substantial kind is imminent, 
or that the apprehended injury, if it occur, will be irreparable. Fletcher v. 
Bealey, 54 L. J. Ch. 424; 28 Ch. D. 688; Att.-Gen. v. Manchester Co., 62 
L. J. Ch. 459; [1893] 2 Ch. 87; Att.-Gen. v. Nottingham Cor., 73 L. J. Ch. 
512; [1904] 1 Ch. 673. In such case damages cannot be granted in lieu of 
an injunction. Dreyfus v. Peruvian Guano Co., 43 Ch. D. 316; Cowper v. 
Laidler, 72 L. J. Ch. 578 ; [1903] 2 Ch. 837. 

As to the form of injunction against noxious vapours, see Shott's Iron Go. 
V. Inqlis, 7 App. Cas. j5l8: Fleming v. Hislop, 11 App. Cas. 686. 

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654' Action for Nuisance. 

Abatement.] A neighbour W. has no right to enter upon J.'s land in 
order to abate a nuisance of filth without previous notice or request to J. to 
remove it, unless J. was the original wrong-doer by placing it there, or it 
arises from default in the performance of some legal duty of J., or the 
nuisance is immediately dangerous to life or health. Jones v. Williams, 11 
M. & W. 176. But where W. can abate the nuisance without going on J.'s 
land, as where the boughs of J.'s trees overhang W.'s land, he may do so by 
lopping them without notice to J., even although they have so overhung for 
more than 20 years, for no right or easement can be acquired by J. in respect 
of the boughs. Lemmon v. Webb, 64 L. J. Ch. 205; [1895] A. C. 1. 
Semble, the same rule applies also to the roots of J.'s trees growing within 
W.'s land. S. C, 63 X>. J. Ch. 670; [1894] 3 Ch. 1. Commoners are not 
entitled to exercise the right of abatement unless, owing to the nuisance 
they are completely excluded from the enjoyment of their rights. Hope v. 
Osborne, 82 L. J. Ch. 457 ; [1913] 2 Ch. 349. 



Defence. 

By Eules, 1883, 0. xix. r. 17, a defendant cannot plead a general denial of 
the allegations, in the statement of claim ; and r. 15 requires him to state all 
such facts, on which he relies, as do not appear therein, and if not stated, 
would be likely to take the plaintiff by surprise. 

"Where an act which, if permanent, would constitute a nuisance, is tempo- 
rary only, and for a lawful object, no action lies. Harrison v. Southwark, 
d:c., Water Co., 60 L. J. Ch. 680; [1891] 2 Ch. 409. See also Bamford v. 
Tumletj, 3 B. & S. 83, 84; 31 L. J. Q. B. 293, 294. As to what act is 
temporary only, see Colwell v. S. Pancras Council, 73 L. J. Ch. 275; 
[1904] 1 Ch. 707. 

It is a good defence, to show, that what was prima facie, a nuisance, arose 
unavoidably, from the performance by the defendants, of acts expressly 
sanctioned by the Legislature, e.g., injury, caused by a railway company by 
working trains with locomotive engines; R. v. Pease, 2 L. J. M. C. 26; 4 
B. & Ad. 30 ; Hammersmith & City By. v. Brand, 88 L. J. Q. B. 265 ; L. E. 
4 H. L. 171 ; Att.-Gen. v. Metropolitan By., [1894] 1 Q. B. 384 or by making 
and using cattle yards; L. B. d S. C. By. v. Trum/in, 55 L. J. Ch. 354; 
11 App. Cas. 45, or caused by working trams by electricity; Nat. Telephone 
Co. V. Baker, 62 L. J. Ch. 699; [1893] 2 Ch. 186; and E. & S. African Tele- 
graph Co. V. Cape Town Tramways Co., 71 L. J. P. C. 122; [1902] A. C. 381; 
or by the carrying of electric current by overhead wires ; Dumphy v. Montreal 
Light &c., Co., 76 L. J. P. C. 71; [1907] A. C. 454. See also Cracknell v. 
Thetford (Mayor), 38 L. J. C. P. 353; L. E. 4 C. P. 629. But they must 
show that by express words or necessary implication the Legislature intended 
to take away the private rights of individuals. Metropolitan Asylum Dis- 
trict V. Hill, 50 L. J. Q. B. 353, 362; 6 App. Cas. 193, 208; Canadian Pacific 
By. V. Parke, 68 L. J. P. C. 89; [1899] A. C. 535. See Gaslight d Coke 
Co. V. St. Mary Abbotts, Kensington, 54 L. J. Q. B. 414; 15 Q. B. D. 1. 
And the defendants will be liable, if their acts cause needless injury, or if 
they do not take reasonable steps, within their powers, for averting such 
injury. Geddis v. Bann Beservoir Co., 3 App. Cas. 430. See Hawthorn 
Cor. V. Kannuluik, 75 L. J. P. C. 7 ; [1906] A. C. 105. A statutory power 
to the defendants to run tramcars by steam along a highway over the 
rails of another company, assumes that the rails are in proper condition : 
if they be defective so that damage is in consequence caused by the tramcar 
to the plaintiff standing on the highway, the defendants are liable. Sadler 
V. S. Staffordshire, dc. Tramways Co., 58 L. J. Q. B. 421; 23 Q. B. D. 17. 
A gas company under the Gasworks Clauses Acts, 1847, 1871, is expressly 
liable for private nuisances they may commit in making or supplying gas 
(11 & 12 V. 0. 15, s. 29 ; 84 & 85 V. c. 41, s. 9), Jordeson v. Sutton dc Gas 
Co., 68 L. J. Ch., 457; [1899] 2 Ch. 217. So where a corporation is 

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Action for Negligence. 65S 

empowered to supply electric energy, with a proviso that it shall not be 
exonerated irom proceedings for any nuisance caused by it, it is liable 
for nuisance apart from any question of negligence. Midwood v. Man- 
chester Cor., 74 L. J. K. B. 884; [1905] 2 K. B. 597; Charing Cross, dec, 
Co. V. London Hydraulic Power Co., 83 L. J. K. B. 1352; [1914] 3 K. B. 
772. Cf. Goodbody v. Poplar Borough Council, 84 L. J. K. B. 1230. 

No right can be acquired by user to carry on a nuisance, as a noisy trade, 
unless it has been carried on for 20 years, under such circumstances as to 
constitute an actionable nuisance. Sturges v. Bridgman, 48 L. J. Ch. 785. 
11 Ch. D. 862; see also Liverpool Cor. v. Coghill, 86 L. J. Ch. 186; [1918] 
1 Ch. 307. Nor is it any defence, that noises, complained of by the plaintiff, 
were no't greater than were necessary, and unavoidable in the defendant's 
business. Rush-mere v. Polsue, 75 L. J. Ch. 79 ; 76 L. J. Ch. 365 ; [1906] 
1 Ch. 234; [1907] A. C. 121; Elliotson v. Feetham, 2 Bing. N. C. 134. 

Where the nuisance is by a single act, as by letting water into the 
plaintiff's mine, through a hole wrongfully made by the defendant, accord 
and satisfaction, or recovery in a former action, is a bar, for only one action 
lies, notwithstanding the occurrence of subsequent consequential damage. 
Clegg v. Dearden, 12 Q. B. 576. "Where, however, the consequential damage 
is a necessary part of the cause of action, as in the case of disturbance 
of the right of support of the plaintiff's land, a fresh cause of action arises 
at each occasion of damage; Darley Main Colliery Co. v. Mitchell, 55 L. J. 
Q. B. 529 ; 11 App. Cas. 127 ; even although the damage has been accruing 
continuously from the time of the defendant's act; Crumbie v. Wallsend 
Local Board, 60 L. J. Q. B. 392; [1891] 1 Q. B. 503. See also Whitehouse 
V. Fellowes, 10 C. B. (N. S.) 765; 30 L. J. C. P. 306, and Brunsden v. 
Humphrey, 53 L. J. Q. B. 476 ; 14 Q. B. D. 141. The owner of minerals is 
not liable ior damage caused to adjacent land by subsidence caused by their 
working by his predecessor in title, although no damage occurred till after he 
came into possession. Greenwell v. Low Beechburn Goal Co., 66 L. J. 
Q. B. 643; [1897] 2 Q. B. 165; Hall v. Norfolk (Duke), 69 L, J. Ch. 571; 
[1900] 2 Ch. 493. Cf . Att.-Oen. v. Roe, 84 L. J. Ch. 322 ; [1915] 1 Ch. 235. 

Statute of Limitation.] By the Limitation Act, 1628, 21 J. 1, c. 16, s. 3, 
an action upon the case (other than for slander) must be brought within six 
years after the cause of such action. Where the gist of the action is the 
consequential damage, the time of limitation begins to run from the accruing 
of the consequential damage. Roberts v. Read, 16 East, 215; Cillon v. 
Boddingtcm, By. & M. 161; Howell v. Young, 5 B. & C. 69; 4 L. J. (O. S.) 
K. B. 160. Where a statute required an action to be brought within six 
months after the matter or act done, and the injury was caused by sinking 
a sewer, whereby the walls of the plaintiff's house cracked, it was held 
that the action must be brought within six months from the time of the 
walls cracking. Lloyd v. Wigney, 6 Bing. 489; 8 L. J, (0. S.) C. P. 161; 
WordswoHh v. Harley, 1 B. & Ad. 891; 9 L. J. (0. S.) M. C. 60. Where 
plaintiff's house had been injured, by the sinking of the subsoil within six 
years in consequence of the working of an adjacent mine by a neighbour 
more than six years before, the statute is no bar; Bonomi v. Backhous", 
9 H L C 503; 34 L. J. Q. B. 181; Darley Main Colliery Co. v. Mitchell, 
55 L J Q B '529; 11 App.Cas. 127; Grumble v. Wallsend Local Board, 
60 L.' J.' Q. B. 392 ; [1891] 1 Q. B. 503. 



ACTION FOE NEGLIGENCE. 

Nealisence is the omission to do something which a reasonable man 
euided bv those considerations which ordinarily regulate the conduct of 
Lman affairs, ^ouUf^jfj^^^f^g^^^rQ^^ng which a prudent and 

■n _-^r/-\T. TT 



-VOL. n. 



656 Action for Negligent Driving of Carriages and Trains. 

I I ] \ 

reaaonable man would not do ; and an action may be brought if thereby 

mischief is caused to another person, not intentionally. Blyth v. Birming- 
ham Waterworks Co., 11 Ex. 781, 784; 25 L. J. Ex. 212, 213. 

Negligence is therefore the absence of care, more or less, according to the 
circumstances. Vaughan v. Taff Vale Ry. Co., 29 L. S. Ex. 248. It 
cannot arise unless there is a duty to take care, for " a man may be as 
negligent as hs pleases towards the whole world if he owes no duty to them;" 
per Ld. Esher, M.E. Le Limre v. Gould, 62 L. J. Q. B. 353, 355 ; [1893] 
1 Q. B. 491, 496. See also the judgment of Bowen, L.J. S. C. ; Caledonian 
Ry. Co. V. Mulholland, 67 L. J. P. C. 1; [1898] A. C. 216; and Malone v. 
Laskey, 76 L. J. K. B. 1134; [1907] 2 K. B. 141. 



Negligent Driving of Carriages and Railway Trains. 

Negligence of the defendant.'] An allegation that the defendant so negli- 
gently drove, &c., is supported by evidence that his servant was the driver. 
Brucker v. Fromont, 6 T. E. 659. But a master is not answerable for the 
wilful and malicious act of his servant. M'Manus v. Grickett, 1 East, 106. 
Thus, where the defendant's servant wantonly, and not for the purpose of 
■executing his master's orders, strikes the plaintiff's horses, and thereby 
produces the accident, the master is not liable; but where the servant, in 
the course of his employment, and in order to extricate himself from a 
■difficulty, so strikes them, although injudiciously, his master is liable. Croft 
V. Alison, 4 B. & A. 590. In Linvpvs v. L. General Omnibus Co., 1 H. & C. 
■526 ; 82 L. J. Ex. 34 ; the defendants were held liable for the act 
of their driver, who pulled his horses across the road in front of the 
pilaintifE's omnibus, and so overturned it; for this was clearly done in 
the course of the driver's employment, although the act of the driver was 
•contrary to the regulations of the company. And see Whatman v. fearson, 
37 L. J. C. P. 156; L. E. 3 C. P. 422; Bums v. Paulson, 42 L. J. C. P. 
302; L. E. 8 C. P. 563; The Thetis, 38 L. J. Adm. 42: L. E. 2 Adm. 365. 
But where the conductor of an omnibus drives it, the owners are not primd 
facie liable for his negligence. Beard v. L. Gen. Omnibus Co., 69 L. J. Q. B. 
895 ; [1900] 2 Q. B. 530. And where the carman B. of the defendant A. 
was directed to deliver A.'s goods at a certain place, and B. drove A.'s cart, 
with the goods in it, in an opposite direction, it was held that A. was not 
liable for an injury done by the cart while it was being so driven by B. 
Storey v. Ashton, 38 L. J. Q. B. 223; L. E. 4 Q. B. 476 ; Rayner v. Mitchell 
2 C. P. D. 357; see also Williams v. Jones, 3 H. & C. 256; 33 L. J. Ex. 
297; and Tebbutt v. Bristol £ Exeter Ry. Co., 40 L. J. Q. B. 78; L. E. 
6 Q. B. 73. So where the cart had been lent for value by C. to A., and 
was, under similar circumstances, injured by B.'s negligence, A. is not liable 
to C. on his contract of bailment. Sanderson v. Collins, 73 L. J. K. B. 
358; [1904] 1 K. B. 628 distinguishing Ooupi Co. v. Maddick, 60 L. J. 
Q. B. 676; [1891] 2 Q. B. 413, on the ground that in that case 
B. was acting within his authority ; see further Cheshire v. Bailey, 74 
L. J. K. B. 176 ; [1905] 1 K. B. 237. A servant has no implied authority to 
authorise another person to act for him as servant on his master's behalf, 
unless there is a necessity for such employment. Gwilliam v. Twist, 64 
L. J. Q. B. 474; [1895] 2 Q. B. 84. And qucere? whether even if there be 
such necessity. Id. per Ld. Esher, M.E. But where the driver of an 
omnibus allowed the conductor to drive, the fact that the driver was sitting 
by the conductor, was held some evidence that he was exercising control, 
and the employer might therefore be liable for injury caused by the negligent 
driving. Ricketts v. Tilling, 84 L. J. K. B. 342; [1915] 1 K. B. 644. So 
too if the owner is himself riding in the vehicle, he is primA facie liable as 
principal for the consequences of the negligence of the actual driver. Samson 
V. Aitchison, 82 L. J. P. C. 1; [1912] A. C. 844. See further, Cox v. 
Midland Ry., 18 L. J. Ex. 65; 3 Ex. 268; and Houghton y. PilUngton, 

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Negligence of the Defendant. 657 

82 L. J. K. B. 79; [1912] 3 K. B. 308, as to the extent of a servant's 
authority to invite assistance from a third party. "Where A. contracted vpith 
the Postmaster-General for mail coaches, and B. contracted to supply horses 
and drivers, and hired W. to drive one of them, v7ho met with an accident 
occasioned by a defect in the coach, it was held that W. could not sue A. 
Winterbottom v. Wright, 11 L. J. Ex. 416; 10 M. & W. 109; nor could 
he sue C. who was employed by A. to repair the coach, and had done so 
negligently. Earl v. Lubbock, 74 L. J. K. B. 121; [1905] 1 K. B. 253. 
Where the negligence of P. 's servant M. gives opportunity for a third person 
to commit a wrongful or negligent act producing damage, it is a question of 
fact whether M.'s negligence was the effective cause of the damage; when 
it is so M.'s master, F., is liable. Engelhart v. Farrant, 66 L. J. Q. B. 
122; [1897] 1 Q. B. 240. But not otherwise, McDojvall v. Gt. W. Ry., 
72 L. J. K. B. 652 ; [1903] 2 K. B. 331. 

A master cannot maintain an action per quod servitium amisit, against a 
railway company for an injury to hia servant, whilst a passenger on the 
company's railway, caused by neglect of their duty to carry safely the 
servant, according to their contract with him as such passenger, unless 
the master was a party/ to the contract; Alton v. Midland Ry., 19 C. B. 
(N. 8.) 213; 34 L. J. C. P. 292; but the master may sue another company, 
whose negligence has caused the injury. Berringer v. Gt. E. Ry., 48 L. J. 
C. P. 400; 4 C. P. D. 163. See also Meux v. Gt. E. Ry., 64 L. J. Q. B. 
657 ;'[1895] 5 Q. B. 387. Where a child was received as a passenger, without 
his fare being paid, under the erroneous belief that he was entitled to go free, 
it was held that the company were bound to carry him without negligence. 
Austin V. Gt. W. Ry., 36 L. J. Q. B. 201; L. E. 2 Q. B.\ 442. And a 
company may be liable in tort, for not carrying safely, although the contract 
of carriage was entered into with another company. "Thus, where a passenger 
took a ticket of company A., for a journey over the lines of companies A., 
B. and C, and a collision occurred on the B. railway, by reason of the 
train in which the plaintiff was, running into trucks negligently left on the 
line; and it was held that the B. company were liable to the plaintiff, in 
an action of negligence. Reynolds v. N. E- Ry-, 1868, ex. rel. amid; cited 
in Foulkes v. Metropolitan District Ry., 49 L. J. C. P. 369; 5 C. P. D. 169 
by Thesiger, L.J. And where a railway company invite, or permit a pas 
eenger, to travel by their train, they are bound to act without negligence 
towards him, although he travel under a ticket issued by another company 
S. C. ; 48 L. J. C. P. 555 ; 49 L. J. C. P. 361 ; 4 C. P. D. 267 ; 5 C. P. D 
157. See also Skinner v. L. S Brighton Ry. Co., 5 Ex. 787. 

Where A. and B. were jointly interested in the profits of a common stage^ 
waggon, but, by a private agreement between themselves, each undertook 
the management of the waggon, with the driver and horses, for a specified 
distance, it was held that they were, notwithstanding this private agree- 
ment, jointly responsible to third persons for the negligence of their drivers 
thoughout the whole distance; and that an averment, that the negligence 
was occasioned by the driver of A. (against whom alone the action was 
brought), was supported by proof, that the driver was actually employed by 
B in conducting the waggon for his own stages. Waland v. Elkins, 1 Stark. 
272; Fromont v. Goupland, 2 Bing. 170; 3 L. J. (0. S.) C. P. 237. Where 
P. and Q. jointly hired a carriage and rode therein, P. driving ; Q. was held 
liable for P.'s negligence. Davey v. Chamberlain, 4 Esp. 229. So where 
A. borrowed a horse and chaise of B. and rode therein with C, who drove, 
A. was held liable for C.'e negligence. Wheatley v. Patrick, 6 L. J. Ex. 
193 ; 2 M. & W. 650. Where a stable-keeper let horses to a person, to draw 
his carriage, and the horses were driven by the servant of the stable-keeper, 
Ld. EUenborough, C.J., held that the latter was liable for any accidents 
occasioned by the post-boy's misconduct on the road. Dean v. Branthwaite, 
5 Esp. 35 ; Sammell v. Wright, Id. 263 ; Houghton's Case, cited 5 B. & C. 
550. So the owner oi-a boat aiid cre^y was Md liable for carelessness of 



668 Action for Negligent Driving of Carriages and Trains. 

the crew, though they had been hired for the day by a ferryman, to whom 
plaintiff had paid the fare. Dalyell v. Tj/rer, B. B. & E. 899; 28 L. J. 
Q. B. 52. 

Where a contractor employed to do a lawful act which would not, m the 
natural course of things, be likely to cause injury to others, does it negli- 
gently, the contractor alone, and not the employer, is responsible. Thus, 
where A., the owner of a carriage, hired of B., a stable-keeper, a pair of bis 
horses to draw it for the day, and B. provided a driver, C, who received 
no wages but a gratuity from A., and C. was guilty of negligent driving, it 
was held that A. was not liable to be sued for such negligence. Laugher v. 
Pointer, 5 B. & C. 547 ; 4 L. J., (0. S.) K. B. 309 (where, however, the 
court was equally divided) : Quarman v. Burnett, 9 L. J. Ex. 308; 6 M. & 
W. 499; Jones v. Liverpool Cor., 54 L. J. Q. B. 345; 14 Q. B. D. 890; 
The Quickstep, 59 L. J. P. 65 ; 15 P. D. 196 ; even though C. was provided, 
during the drive, with livery belonging to A., and the accident happened, 
owing to C.'s leaving the carriage, while returning the livery. Quarman v. 
Burnett, supra. In such cases it is a question of fact whether C. was acting 
as the servant of A. or of B. at the time of the accident, and on that fact 
depends the liability of A. or of B. Brady v. Giles, 1 M. & Bob. 494; 
Jones V. Scullard, 67 L. J. Q. B. 895, 899; [1898] 2 Q. B. 565, 571; 
Waldock V. Winfield, 70 L. J. K. B. 925 ; [1901] 2 K. B. 596. Where the 
defendant, the owner of the carriage, sat on the box, and did not interpose 
to prevent the postillions forcing their way amongst other carriages, whereby 
the injury was done, and he afterwards used expressions admitting his 
responsibility, this was held to be evidence, of a joint act of trespass, by 
the defendant and postillions. M'Laughlin v. Pryor, 11 L. J. C. P. 169; 
4 M. & Gr. 48. And where a servant uses his own horses and gig on his 
master's business, and with his knowledge, the master is liable, though the 
servant may, on the same occasion, do business of his own. Patten v. 
Bea, 2 C. B. (N. S.) 606; 26 L. J. C. P. 235. So too, where a servant, not 
knowing that he is not on his master's business, obeys the orders, though 
wrongful, of an authorized superior. Irwin v. Waterloo Taxicab Co., 81 
L. J. K. B. 998; [1912] 3 K. B. 588. Where A. lends his servant S. to.B. 
for a particular employment, S. must, for anything done in that particular 
employment, be dealt with as the servant of B., although he remains the 
general servant of A. Rourke v. While Moss Colliery, 46 L. J. C. P. 283; 
2 C. P. D. 205; Donovan v. Laing, Sc, Syndicate, 63 L. J. Q. B. 25; 
[1893] 1 Q. B. 629. Where a metropolitan cab proprietor, P., lets a horse 
and cab to a driver, D., on the usual terms, viz. : — that P. feeds the horse 
and exercises no control over D. after he leaves the yard, for which D. pays P. 
a fixed sum a day, retaining any surplus earnings for himself, it has been 
held that, under the Metropolitan Hackney Carriage Acts, so far as the 
public is concerned, P. is liable for the acts of D., within the scope of the 
purposes for which the cab was entrusted to him, as though the relation of 
master and servant existed between them. Venables v. Smith, 46 L. J. 
Q. B. 470; 2 Q. B. D. 279; King v. Improved Cab Co., 58 L. J. Q. B. 456; 
23 Q. B. D. 281 So where P. lets D. the cab alone by the week. Keen v. 
Henry, 63 L. J. Q. B. 211 ; [1894] 1 Q. B. 292. The same principle applies 
in the case of taxi-cabs similarly let out to the driver. Doggett v. Waterloo 
Taxicab Co., 79 L. J. K. B. 1085; [1910] 2 K. B. 836; Smith v. General 
Motor Cab Co., 80 L. J. K. B. 839; [1911] A. C. 188. In these cases P. 
is liable although he be not the licensed proprietor. Gates v. Bill, 71 L. J. 
K. B. 702; [1902] 2 K. B. 38. And where the name and address of P. 
was on the cab, he was held responsible for loss of luggage of the hirer 
carried. Powles v. Hider, 6 E. & P. 207 ; 25 L. J. Q. B. 331. 

Evidence of negligence.} In the case of an accident on a railway " it is 
not enough for the plaintiff to show that there has been an accident upon 
their line, and thence to argue that therefore the company are liable even 
primd facie. It is necessary for the plaintiff to establish by evidence cir- 

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Evidence of Negligence. 659 

cumstances from which it may fairly be inferred that there is reasonable 
probability that the accident resulted from the want of some precaution, 
which the defendants might and ought to have resorted to ; and I go further 
and say that the plaintiffs should also show with reasonable certainty what 
particular precaution should have been taken." Daniel v. Metropolitan By., 
37 L. J. C. P. 146, 148; L. E. 3 C. P. 216, 222, per Willes, J., approved in 
S. C, 37 L. J. 0. P. 280; L. E. 3 C. P. 691, and 40 L. J. C. P. 121; L. E. 
5 H. L. 45, though the judgment was reversed on the inferences of fact. 
Metropolitan Ry. v. Jackson, 47 L. J. C. P. 303; 6 App. Cas. 193. Setting 
*!, train suddenly and improperly in motion is evidence of negligence. Metro- 
politan Ry. V. Delaney, 90 L. J. K. B. 721. If there be no reasonable 
evidence of negligence, occasioning the injury, the judge is bound to direct a 
verdict for the defendant. Da-vey v. L. S S. W. Ry., 53 Lr. J. Q. B. 
58 ; 12 Q. B. D. 70 ; Wakelin v. L. S S. W. Ry. 56 L. J. Q. B. 229 ; 12 App. 
Cas. 41; Membery v. Gt. W. Ry., 58 L. J. Q. B. 563; 14 App. Cas. 179. 
But the accident may take place under such circumstances as to be primd 
facie evidence of negligence, for the happening of something that would not 
happen if ordinary skill and care were used, is evidence of negligence. Gee 
V. Metropolitan Ry.,4:2 L. J. Q. B. 105, 108 ; L. E. 8 Q. B. 161, 175. In Gt. 
W. Ry. of Canada v. Braid, 1 Moo. P. C. (N. S.) 101, where an embankment 
over which a railway was carried had given way in consequence of a fall of 
rain of unusual severity, the company were held responsible, as they ought 
to have constructed their works in such a manner as to be capable of resisting 
all the violence of weather which in the climate of Canada might be expected, 
though perhaps rarely, to occur. But this case has not been altogether 
approved; see per Willes, J., in Czech v. G. Steam Navigation Co., 37 L. J. 
C. P. 3, 4; Ij. E. 3 C. P. 14, 16; and where a railway was injured by an 
extraordinary flood, the state of the road being such that it was secure 
against ordinary floods, the company were held not liable for injury to a 
passenger from misplacement of the rails. Withers v. N. Kent Ry. 27 L. J. 
Ex. 417; and see also Blyth v. Birmingham Waterworks 11 Ex. 781; 25 
L. J. Ex. 212; and Nichols v. Marsland, 46 L. J. Ex. 174; 2 Ex. D. 1. 

Negligence is disproved by showing another sufficient cause, as a stone wil- 
fully put on the rail by a stranger. Latch v. Rumner Ry., 27 L. J. Ex. 155. 
So, if the accident is consistent with due care, as where the carriage runs off 
the rail, from some unexplained cause, this is at most only primd fmcie 
evidence of their negligence; Bird v. Gt. N. Ry., 28 L. J. Ex. 3; but a 
collision between trains, of the same company, is primd facie evidence of 
their negligence. Skinner v. L. d Brighton Ry., 5 Ex. 787. So is an 
accident to a train, where both train and railway are under the exclusive 
management of the same company. Garpue v. L. B. S S. C. Ry., 
18 L. J. Q. B. 133; 5 Q. B. 747. And a passenger may be 
alleged to be carried by the company, though he in fact bought his 
ticket of a society which had specially hired the train of the company, 
and sold the tickets. Skinner v. L. d Brighton Ry., 5 Ex. 787. Where a 
train of the defendant's, whilst stationary on their railway, was run into 
by another train, and the latter train was in fault, it was held, that in the 
absence of evidence to the contrary, it must be presumed that the train 
which caused the accident was under the control of the defendants, although 
it was shown that several other railway com.panies had running powers over 
that part of the line. Ayles v. S. E. Ry., 37 L. J. Ex. 104; L. E. 3 Ex. 
146. But where the collision is between two trains, or carriages, shown 
to be under independent control, the case would seem to fall within 
the ordinary rule, which requires special proof, of negligence of the party 
sued. 

Proof that a stage-coach broke down raises a presumption that the 
accident arose either from the unskilfulness of the driver or the insufficiency 
of the coach. Christie v. Griggs, 2 Camp. 79; Curtis v. Drinkwater, 
2 B. & Ad. 169. The owner had been held liable for the insufficiency of the 
coach, although the ^flfi/Z^e/ ©J* Mcffl^/?©^^ ^°^ discoverable upon 



660 Action for Negligent Driving of Carriages and Trains. 

ordinary examination. Sharp v. Oray, 9 Bing. 457. So, in Burns Y. Cork 
& Bandon By., 13 Ir. C. L. E. 543, where an accident had happened owing 
to the breaking of a crank-pin, it was held that the railway company did 
not exonerate themselves, by showing that they had duly and properly 
examined the pin, and had not at any time before the fracture, any notice of 
the defect in the pin, as this was consistent with negligence in purchasing 
and procuring it. So, where the accident has arisen, through the negligence 
of any person, who has been engaged in constructing the carriage, &c., that 
has broken down, the company are liable, and cannot shield themselves, on 
the ground that the person guilty of the negligence was an independent 
contractor. See Francis v. Cockrell, 39 L. J. Q. B. 113, 291; L. B. 5 Q. B. 
184, 501. But, although a carrier of persons is bound to use the utmost 
skill in everything concerning the safety of his passengers, yet he is not 
bound at his peril to provide a roadworthy carriage, and if the carriage turn 
out to be defective he is not liable to a passenger for the consequences if the 
defect could not be guarded against in the process of construction, nor 
discovered by subsequent examination. Readhead "V. Midland Ry., 36 L. J. 
Q. B. 181; 38 L. J. Q. B. 169; L. E. 2 Q. B. 412; L. B. 4 Q. B. 379; see 
also Grote v. Chester d Holyhead Ey., 2 Ex. 251; Newberry v. Bristol 
Tramways Co., 107 Ij. T. 801. The obligation of a jobmaster in respect 
of the roadworthiness of a carriage hired of him, is the same as that of a 
carrier of passengers. Hyman v. Nye, 6 Q. B. D. 685. Where the 
plaintiff was driven by B. in his carriage gratuitously, B. is not bound to 
use this amount of care. Moffat v. Bateman, L. E. 3 P. C. 115. B. would 
however be liable for damage arising from the want of due care under all 
the circumstances. Harris v. Perry, 72 L. J. K. B. 725 ; [1903] 2 K. B. 
219; Karavias v. Gallinicos, [1917] W. N. 323. Where a coach, which is 
overloaded, breaks down, the excess in the number of passengers has been 
held to be evidence that the accident arose from the overloading. Israel v. 
Clark, 4 Esp. 259. Where a passenger in an omnibus was injured by one 
of the horses kicking through the panel, and there were marks of previous 
kicks on the omnibus, and the horse had no kicking strap, it was held that 
there was evidence of negligence. Simson v. L. General Omnibus Co., 
42 L. J. C. P. 112; L. E. 8 C. P. 390. In Lilly v. Tilling, 57 S. J. 59, 
the fact that a wheel of an omnibus was wrenched off by a tramline, was held 
some evidence of negligent driving and that the onus lay on the omnibus 
owner to prove that the omnibus was sound. Where an accident results 
from defective condition of plant, the burden of disproving negligence lies 
on the person responsible for the defect. Coughlan v. Monks, [1918] 
2 I. E. 306. The fact that there had been default by a railway company 
in providing communication with the guard, as required by 31 & 32 V. 
c. 119, 3. 22, coupled with evidence that the accident might have been 
prevented if the communication had existed, must be left to the jury as 
evidence of negligence. Blamires v. Lancashire and Yorkshire Ry. Co., 
42 L. J. Ex. 182; L. E. 8 Ex. 283. 

Where the injury is the result of mere accident, no action lies ; thus where 
the coachman was driving in the middle of the road, and not on his own 
side, but there were no other coaches on the road, and the horses took fright 
and overturned the coach, it was held to afford no evidence of negligence. 
Aston V. Hea/oen, 2 Esp. 533; Wakeman v. Robinson, 1 Bing. 213. To 
maintain an action, the act must have been wilful, or the result of 
negligence. Holmes v. Mather, 44 L. J. Ex. 176 ; L. E. 10 Ex. 261. 
Therefore, where the evidence given is as consistent with there having been 
no negligence on the part of the defendant, as with there having been 
negligence, the judge is not warranted in leaving it to the jury, to find 
either alternative ; he is bound to direct a verdict for the defendant. Cotton 
V. Wood, 8 C. B. (N. S.) 568; 29 L. J. C. P. 333. So, where the accident 
arises from foggy weather, or the removal of accustomed landmarks. Crofts 
V. Waterhouse, 3 Bing. 319; 4 L. J. (0. S.) C. P. 75. So, where an injury 
was inflicted by a horse, which the defendant was riding or driving, and 

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Evidence of Negligence. 661 

there is no proof, that he omitted to do anything in his power to prevent 
the accident. Hammack v. White, 11 C. B. (N. S.) 588; 31 L. J. C. P- 
129; Manzoni v. Douglas, 50 L. J. Q. B. 289; 6 Q. B. D. 145. In the 
Scottish case of Snee v. Durkie, 6 F. 42, it was said that where a runaway 
horse and carriage runs down a person in broad daylight in a public street, 
the presumption is that the owner of the horse and carriage is in fault. 
In Wordsworth v. Willan, 5 Esp. 273, the rule, with regard to keeping the 
road, is said to be, that if a carriage, coming in any direction, leave suffi- 
cient room for any other carriage, horse, or passenger on its side of the 
way, it is enough; and in Wayde v. Oarr, 2 D. & Ey. 256, the court said 
that the " law of the road," was not to be considered as inflexible; since, 
in crowded streets, situations and circumstances might frequently arise, 
where a deviation from what is called the law of the road, would not only- 
be justifiable, but absolutely necessary. "Where the defendant was driving" 
on the wrong side of the road, which was of considerable breadth, and the 
plaintiff's servant, who was on horseback, without any reason, crossed over 
to the side on which the defendant was driving, and on endeavouring to 
pass, his horse was killed, Ld. Kenyon held, that it was putting himself 
voluntarily into danger, and that the injury was of his own seeking ; but the 
jury found a verdict for the plaintiff, which the K.B. refused to disturb. 
Cruden v. Fentham, 2 Esp. 685. And although a person is not bound to 
confine himself to his proper side of the road, yet, if he do not, he is bound 
to use a greater degree of caution, than if he kept the proper side. Pluck- 
well V. Wilson, 5 C. & P. 375. And, generally, disobedience to the rule is 
evidence against the driver, as between the two carriages, but in the case 
of an injury to a person crossing on foot, it is not evidence against the 
driver. Lloyd Y. Ogleby, 5 C. B. (N. S.) 667. Where two cars were 
closely approaching each other on the same side of the road and car A., 
which was on its proper side, believing a collision inevitable unless it gave 
way, deflected to the other side; at the same moment car B. deflected also 
and a collision occurred; it was held that the collision was due to car B. 
continuing so long on its wrong side, and that the action of car A., in 
leaving its proper side immediately before the collision, could not in the 
difficult position in which it was placed by car B., be deemed contributory 
negligence. Wallace v. Bergius, [1915] S. C. 205. It may be observed, 
that in the case of highways, not regulated by special Acts, the law of the 
road is a statutory enactment under 5 & 6 W. 4, c. 50, s. 78. The word 
"carriage" in that Act includes a bicycle, tricycle, velocipede, or other 
similar machine ; 51 & 52 V. c. 41, s. 85 (1). See also Taylor v. Goodwin, 
48 L. J. M. C. 104 ; 4 Q. B. D. 228. Eoot passengers, in crossing a highway, 
are bound to take due caution to avoid vehicles, and the drivers of vehicles, 
are bound to take due caution to avoid foot passengers. Cotton v. Wood, 
supra. 

In order to subject the master to damages, it must appear that there has 
been something to blame on the part of his servant ; and he is blameable if 
he have not exercised the best and soundest judgment on the subject ; per 
Ld. Bllenborough, C.J., Jackson v. Tollett, 2 Stark. 39. The coachman 
must have competent skill, and must use that skill with diligence ; he must 
be well acquainted with the road, on which he undertakes to drive ; he must 
be provided with steady horses, a coach and harness of sufficient strength, 
and properly made, and also with lights by night; per Best, C.J., Crofts v. 
Waterhouse, 3 Bing. 321. If the driver may adopt either of two courses, 
one of which is safe and the other hazardous, and he elect the latter, he is 
responsible for the mischief which ensues. Mayhew v. Boyce, 1 Stark. 423. 
If the driver of a stage-coach neglect to inform an outside passenger of his 
danger, where the way passes through a low archway, the owner of the 
coach is liable for the injury. Dudley v. Smith, 1 Camp. 167. A passenger, 
being, in consequence of the negligence of the defendant, placed in a 
situation, which obliges him to adopt the alternative of leaping from the 
coach or remaining at ceutamneml, leans and isiurt, the defendant is liable. 



662 Action for Negligent Driving of Carriages and Trains. 

if it appear that the leaping was on the whole a prudent precaution for the 
purpose of self-preservation. Mayhew v. Boyce, 1 Stark. 423. But if the 
defendant's negligence merely inflict a slight inconvenience on the plaintiff, 
and he choose to endeavour to escape the inconvenient, by exposing himself 
to considerable danger, he must do so at his own peril. Adams y. 
Lancashire, £c. Ry., 38 L. J. C. P. 277; L. E. 4 C. P. 739. The principle 
of this case was approved in Gee v. Metropolitan By. Co., 42 L. J. Q. B. 
105; L. E. 8 Q. B. 161. 

Where the plaintiff rests his case on the presumption of negligence, arising 
from the fact of the coach breaking down, the defendant may show, that the 
coach was examined a few days before the accident, and no flaw discovered ; 
and that the coachman, a skilful driver, was driving in the usual track, and 
at a moderate pace, though this, of course, is not conclusive evidence. 
Christie v. Origgs, 2 Camp. 81. 

The defendant may show that the immediate and proximate cause of the 
injury, was the unskilfulness or negligence of the plaintiff, or, as it is 
usually expressed, that the plaintiff has been guilty of contributory 
negligence. Flower v. Adam, 2 Taunt. 315 ; Williams v. Holland, 2 L. J. 
C. P. 190; 10 Bing. 112; Vennall v. Gamer, 1 Cr. & M. 21; Marriott v. 
Stanley, I'M. & Gr. 568; Adams v. Lancashire, Sc, Ry., supra; Holden v. 
Liverpool Gas Co., 15 L. J. C. P. 301; 3 C. B. 1. But, " although there 
may have been negligence on the part of the plaintiff, yet, unless he might, 
by the exercise of ordinary care, have avoided the consequences of the 
defendant's negligence, he is entitled to recover; if by ordinary care he 
might have avoided them, he is the author of his own wrong." Bridge v. 
Od. Junction Ry., 3 M. & W. 244, 248. Tuff v. Warman, 2 G. B. (N. S.) 
740; 26 L. J. C. P. 263; 5 C. B. (N. S.) 573; 27 L. J. C. P. 322; The Vera 
Cruz, 53 L. J. P. 33, 36, 37 ; 9 P. D. 88, 93, 94; The Monte Rosa, 
62 L. J. P. 20; [1893] P. 23; Paul v. G. E. Ry., 36 T. L. E. 344. So, the 
plaintiff is entitled to recover, if the defendant might, by the exercise of 
ordinary care and diligence, have avoided the consequences of the neglect 
or carelessness, of the plaintiff. S. CO.; Radley v. L. <£- N. W. Ry., 
46 L. J. Ex. 573 ; 1 App. Cas. 754 ; Rigby v. Hewitt, 19 L. J. Ex. 291 ; 
6 Ex. 240. Where the plaintiff had improperly left an ass on the high road, 
and the defendant, by negligently driving too fast, ran over and killed it, 
lie was hfld liable to the owner of the ass. Davies v. Mann, 12 L. J. Ex. 
10; 10 M. & W. 646. The defendant's negligence, although anterior in 
point of time to the plaintiff's negligence, may constitute ultimate 
negligence making the defendant liable notwithstanding the plaintiff's con- 
tributory negligence. British Columbia Electic Rly. v. Loach, 85 L. J. 
P. C. 23 ; [1916] 1 A. C. 719. See also Neenan v. Hosford, [1920] 2 I. E. 
258, where a person attempted to cross a level crossing without ( iking 
reasonable precautions to see that the line was clear and was knocked 
down and killed by an approaching car. The jury found that the car was 
running at an excessive speed, but could have been stopped in time to 
prevent the accident if the brake had been in proper working order. The 
railway company was held liable notwithstanding the contributory negli- 
gence of the deceased. S. C. Where the jury found that the accident was 
directly caused by the negligence of both plaintiff and defendant con- 
currently, and assessed a sum for damages it was held that the plaintiff 
was entitled to judgment. Gaffney v. Dublin United Tramways, [1916] 
2 I. E. 472. Where an object, as an oyster bed, or a jetty, are illegally 
situated in a navigable river, so as to obstruct it, and thereby create a public 
nuisance, a private person is liable to the owner of the object, if he 
negligently navigate his ships, so as unnecessarily to injure the object. 
Colchester (Mayor) v. Brooke, 15 L. J. Q. B. 59; 7 Q. B. 339; Dimes v. 
Petley, 15 Q. B. 276; 19 L. J. Q. B. 449. See also Spaight v. Tedcastle, 
6 App. Cas. 217; Child v. Beam, 43 L. J. Ex. 100; L. E. 9 Ex. 176. As 
to onus of proof, see Slattery v. Dublin, Wicklow, dc. Ry., 3 App. CarS. 
1155; Davey v. L. S S. W. By., 53 L. J. Q. B. 58; 12 Q. B. D. 70; Wakelin 

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Contributory Negligence. 663 

V. L. £ S. W. Ry., 56 L. J. Q. B. 229; 12 App. Caa. 41. Negligence, and 
want of care, on the part of the person, A., who drives the carriage, or 
conducts the vessel, in which the plaintiff is, is not equivalent, in respect 
of liability, to the pb- tiff's own negligence, unless A. is either the servant 
or agent of the plaintiff. The Bemina, 57 L. J. P. 65 ; 13 App. Cas. 1. 

A doubt has been expressed, whether the negligence of the plaintiff be 
a defence, except where the action is founded in tort, and not on contract. 
See Martin v. Gt. N. Ry., 16 C. B. 179; 24 L. J. C. P. 209; and Webb v. 
Page, 12 L. J. C. P. 327; 6 M. & Gr. 196. 

Where the defendant negligently left a cart and horse in a public street, 
and one of two children improperly playing with the cart, met with an 
accident, by falling from it, whilst the other was driving the horse on, it 
was held that the injured child might sue the defendant for the negligence. 
Lynch v. Nurdin, 10 L. J. Q. B. 78 ; 1 Q. B. 29. The liability turned on 
the tender age of the plaintiffs ; if they had been adults , the injury would 
have been ascribed to their own acts and the actions would have failed. 
See Lygo v. NewbM, 9 Ex. 802 ; 23 L. J. Ex. 108. Where a child between 
four and five years old was injured by a turntable, which a railway company 
kept unlocked, and therefore dangerous for children, on their land close to 
a public road, and the company's servants knew that children were in the 
habit of trespassing and playing with the turntable, to which easy access 
was obtained through a well-worn gap in a fence, which the compmy was 
bound by statute to maintain, it was held that there was evidence of action- 
able negligence on the part of the railway company. Cooke v. Midland 
Great Western Ry., 78 L. J. P. C. 76; [1909] A. C. 229. But where a 
child is, while trespassing on land, injured by something which is not in 
the nature of a trap the landowner is not liable. Latham y. Johnson, 
82 L. J. K. B. 258; [1913] 1 K. B. 898. The decision in Cooke v. Midland 
Great Western Ry., supra, was based on leave and licence to play with the 
turntable. Jenkins v. Great Western Ry., 81 L. J. K. B. 878; [1912] 

1 K. B. 525. Where a child strayed on to the main line of the company 
and was injured, the fact that the company knew that children were in 
the habit of playing on a, pile of sleepers on the company's land close to a 
Biding and not far from the main line, did not make the company liable, 
as their servants had no knowledge that children were in the habit of 
getting on to the main line. S. C. Contributory negligence will deprive a 
child of his right of action. Abbott v. Macfie and Hughes v. Id., 2 H. & C. 
744; 33 L. J. Ex. 177. See further Singleton v. E. Counties Ry., 7 C. B. 
(N. S.) 287. But where a highway was separated from the defendant's 
land by his fence, which was so defective as to be a nuisance, and a child, 
D., who was on the highway, put his foot on the fence which then fell 
over and injured him, it was held that the defendant was liable. Harrold 
V. Watney, 67 L. J. Q. B. 771; [1898] 2 Q. B. 820. Secus, where the 
defendant neither created the nuisance nor with knowledge of its existence 
permitted its continuance. Barker v. Herbert, 80 Lf. J. K. B. 1329; [1911] 

2 K. B. 683. A woman, with a child five years old in her care, after taking 
tickets for herself and child, crossed the rail, when a train was in sight, 
whereby she was killed and the child hurt ; the jury found that there was 
negligence of the company's servants, and also negligence of the deceased; 
it was held that the child was so identified with the deceased that it i.ould 
not recover compensation. Waite v. N. E. Ry., E. B. & E. 719; 27 L. J. 
Q. B. 417 ; B. B. & E. 728 ; 28 L. J. Q. B. 258. 

The obligation of railway companies, to carry mails and Post-of&ce 
servants in charge of them, is founded on statute and not contract, though 
the terms are settled by contract, between the Postmaster-General and the 
companies ; and they are bound to carry the servants with due care ; and if 
an injury happen to one, by negligence of the company, the servant may sue 
them ; and if the accident happen by the plaintiff's negligence it is a defence. 
Collett V. L. S N. W. Ry., 16 Q. B. 984; 20 L. J. Q. B. 411. 

It seems that it th^-j^ygrgg ^'^^Sp^^ff^)^ contributory wrong of a 



664 Action for Negligent Driving of Carriages and Trains. 

third person, this affords no defence. See Abbott v. Macfie, supra; Harrison 
V. Gt. N. By., 3 H. & C. 231; 33 L. J. Ex. 266; Hill v. New River Co., 
9 B. & S. 308 ; Clark v. Chambers, 47 L. J. Q. B. 427 ; 3 Q. B. D. 327. 

Where the defendants, while the plaintiff was driving his cattle across the 
defendants' line at a level crossing, negligently ran trucks down the line, 
and thereby separated and frightened the cattle, so that the plaintiff lost 
control of them, and the cattle, in consequence, and without the plaintiff's 
default, strayed, and were injured, it was held that the injury was the 
direct result of the defendants' act, and that they were liable for the damage 
thereby caused. Sneesby v. Lancashire d: Yorkshire Ry., 45 L. J. Q. B. 1 ; 
1 Q. B. D. 42. 

Where by one act of negligence, personal injury is caused to A., and also 
damage to his carriage, it has been held that he may bring successive actions 
for this damage, and for the personal injury ; and recovery for the former is no 
bar to a recovery for the latter. Brunsden v. Humphrey, 53 L. J. Q. B. 
476; 14 Q. B. D. 141; Darley Main Colliery Go. v. Mitchell, 55 L. J. Q. B. 
629, 537; 11 App. Gas. 144, per Ld. Bramwell. 

Damages.'] In estimating the damages recoverable for a personal injury 
caused by negligence, the jury " must not attempt to give damages, to the 
full amount of a perfect compensation, for the pecuniary injury, but must 
take a reasonable view of the case, and give what they consider under all the 
circumstances, a fair compensation." Rowley v. L. S N. W . Ry., 42 L. J. 
Ex. 153, 159; L. E. 8 Ex. 221, 231, adopted in Phillips v. L. ^ S. V/. Ry., 
48 L. J. Q. B. 693; 49 L. J. Q. B. 233; 4 Q. B. D. 406; 5 C. P. D. 280; 
and Johnston v. Gt. W. Ry., 73 L. J. K. B. 668; [1904] 2 K. B. 250. The 
jury may take into account, any reasonable prospect of increased income, 
which the plaintiff had, and of which he has been deprived by the injury. 
Fair v. L. S N. W. Ry., 18 W. E. 66. They are not to take into account 
any sum the plaintiff has received, under a policy of insurance against 
accidents. Bradburn v. Gt. W. Ry., 44 L. J. Ex. 9 ; L. E. 10 Ex. 1. 
Damages resulting from a nervous shock, caused by fright without actual 
impact, e.g., by the uttering of false words and threats, or some negligent 
act of the defendant, are recoverable if the plaintiff has sustained physical 
injury. Wilkinson v. Downton, 66 L. J. Q. B. 493 ; [1897] 2 Q. B. 57 ; 
Dulieu V. White, 70 L. J. K. B. 837; [1901] 2 K. B. 669; Janvier v. 
Sweeney, 88 L. J. K. B. 1231; [1919] 2 K. B. 316; Gilligan v. Robb, 
[1910] S. C. 856, not following Victorian Ry. Comrs. v. Goiiltas, 57 L. J. 
P. C. 69; 13 App. Gas. 222. Gf. Ross v. Glasgow Cor., [1919] S. C. 174. 
A person suffering from the effects of an accident in respect of which he 
claims damages, is not entitled to do everything that an ordinary person 
might reasonably do. While he need not act with perfect knowledge and 
ideal wisdom, he cannot claim damages for such injuries as are really 
due to wanton, needless or careless conduct on his part. If, however, what 
he does reasonably and carefully augments his injuries, that may be 
regarded as a natural consequence of the accident. Jmies v. Watney, 
Coomb, Reid S Co., 28 T. L. B. 399. 

Where a husband sued for an injury caused to his wife, by the defendant's 
wrongful act, and the wife died in consequence, Ld. EUenborough held, that 
the plaintiff could only recover damages for loss up to the time of the wife's 
death, on the ground that at common law, " in a civil court the death of a 
human being, could not be complained of as an injury." Baker v. Bolton, 
1 Gamp. 493; Osborn v. Gillett, 42 L. J. Ex. 53; L. E. 8 Ex. 88; Clark v. 
L. Gen. Omnibus Co., 75 L. J. K. B. 907; [1906] 2 K. B. 648. But this 
rule only applies where the death is an essential part of the cause of action ; 
it does not apply where there is a cause of action independently of the 
death. Jackson v. Watson, 78 L. J. K. B. 687 ; [1909] 2 K. B. 193. There 
the plaintiff sued the defendant for damages for breach of warranty on 
the sale of a tin of salmon which was unfit for human food and which 
caused the death of his wife. The jury found for the plaintiff and gave 

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Action for Negligent Navigation of Ships. 665 

him damages including ^200 for the loss of his wife's services. It was held 
that he was entitled to recover those damages. 

In an action against a stranger for loss of goods occasioned by his negli- 
gence, the bailee in possession can recover the value of the goods, although 
he would have had a good answer to an action by the bailor for damages for 
the loss of the thing bailed. The Winkfield, 71 L. J. P. 21 ; [1902] P. 42. 



Negligent Navigation of Ships. 

By sect. 419 (1) of the Merchant Shipping Act, 1894, ov/ners and masters 
of ships are bound to obey the collision regulations, and must not carry or 
exhibit any other lights, or use any other fog signals, than those required 
by those regulations. These regulations are set out in Marsden on Collisions 
at Sea (7th ed.). By sect. 419, sub-sect. 4, a ship infringing any of the 
collision regulations was to be deemed in fault unless it could be shown that 
departure from the regulation was necessary in the particular circumstances. 
This statutory presumption of fault has, however, been repealed by sect. 4 (1) 
of the Maritime Conventions Act, 1911. Formerly, compulsory pilotage was 
a defence in collision actions but this defence is no longer available (Pilotage 
Act, 1913, ». 15). 

The plaintiffs may sue for injury to cargo, although they have indorsed 
away their bills of lading to secure advances ; the money recovered is for 
the benefit of the persons proved to be entitled thereto. The Glamorgan- 
shire, 13 App. Cas. 454. 

By section 458 of the M. S. Act, 1894, in every contract of service between 
the owner and master or seamen or apprentice, there shall be implied, not- 
withstanding any agreement to the contrary, an obligation on the part of the 
owner, that he and the master, &c., shall use all reasonable means to insure 
the seaworthiness of the ship for the voyage when it commences, and to 
keep her in a seaworthy condition during the voyage. A ship properly 
equipped for encountering ordinary sea perils does not become unseaworthy 
within this section because the master neglected to use part of her equip- 
ment. Hedley v. Pinkney & Sons S.S. Co., 63 L. J. Q. B. 419; [1894] 
A. C. 222. 

Inevitable accident, that is where the party charged could not possibly 
prevent the accident " by the exercise of ordinary care, caution and maritime 
skill," is a good defence. The Marpesia, L. E. 4 P. C. 212. The onus 
of proving the defence, is only thrown on the defendant, when a primd facie 
case of negligence, and want of due seamanship, is shown against him; 
for the plaintiff is bound to prove the defendant's negligence, as part of 
his case. S. C. "Where there is a primd facie case of negligence the 
defendant must rebut it by showing that the cause of the accident was not 
produced by him, and that he could not avoid its results. The defendant 
is not liable for damages caused by the mere failure of machinery to act; 
but the use of it after a similar prior failure may be evidence of negligence. 
The European, 54 L. J. P. 61 ; 10 P. D. 99. See also The Merchant Prince, 
[1892] P. 9; Irf. 179. 

Where the plaintiff has, by his own culpable negligence, substantially 
contributed to the accident, he cannot recover. Vennall v. Gamer, 
1 Cr. & M. 21; Smith Y. Dobscm, 3 M. & Gr. 59. But, though the plaintiff 
might have avoided collision, yet he may recover, if, under the circum- 
stances, the plaintiff had a right to presume that the defendant would have 
given way, and so prevented the accident. Vennall v. Garner, supra; Tuff 
V. Warman, 5 C. B. (N. S.) 573; 27 L. J. C. P. 322. See also Ghadwick 
V. Dublin Packet Co., 6 B. & B. 771; Spaight v. Tedcastle, 6 App. Cas. 216. 
Where the plaintiff, in a steamboat, the S., was injured by the fall of an 
anchor of the S., caused by collision with the defendant's steamboat, the 
B., it is no defence that the anchor may have been improperly stowed in the 
S., or that the plaintigj/w^lfe^^jto^Vflife^fg)?^®^ the deck where he ought 



666 Action for Negligent Navigation of Ships. 

not to be. Greenland v. Chaplin, 19 L. J. Ex. 293; 5 Ex. 243. The 
defendant in such cases is not entitled to expect that the plaintiff shall be 
constantly on his guard against the consequences of another person's 
misconduct. So, where a ship, B., has, by wrong manoeuvres, placed 
another ship, A., in a position of extreme peril, the owners of A. will not 
be liable, if A. was then wrongly manoeuvred. The By well Castle, 4 P. D. 
219. Where ship A. is compelled by negligent navigation of ship B. to 
alter her course, and so does damage to ship C, B. is liable to C. The 
Sisters, 45 L. J. Ad. 39; 1 P. T>. 117. It is no defence that the vessel of the 
defendant became unmanageable by reason of " previous accident occasioned 
to it by the neglect of his crew. Secombe v. Wood, 2 M. & Kob. 290; 
Komney Marsh, Lds. of, v. Trinity House, 89 It. J. Ex. 163; 41 L. J. 
Ex. 106 ; L. E. Ex. 204 ; L. E. 7 Ex. 247 ; The George and Richard, L. B. 
3 Adm. 466. As to contributory negligence where servant is acting in dual 
capacity, see The Egyptian, 74 L. J. P. 57; [1910] A. C. 400. 

The master is not liable for the wilful act of the crew, though he was on 
board at the time. Bowcher v. Noidstrom, 1 Taunt. 568. Where a ship, 
A., runs against and damages a ship, B., at anchor, A. is prima facie to 
blame. The Annot Lyle, 55 L. J. P. 62; 11 P. D. 114. As to injury to 
submarine cables, see Submarine Telegraph Co. v. Dickson, 15 C. B. (N. S.) 
759; 33 L. J. C. P. 139. As to the liability of the owner of a ship sunk, 
in a public navigable river or harbour, for damage caused by her to other 
ships, see The Utopia, 62 L. J. P. C. 118; [1893] A. C. 492; The Snark, 
69 L. J. P. 41 ; [1900] P. 105. 

As to the liability of dock-owners for injury to ship caused by erroneous 
order for navigating or mooring her, given by their harbour master, see 
Reney v. Kirkcudbright, Magistrates of, 61 L. J. P. C. 23; [1892] A. C. 
264; East London Harbour Board v. Caledonian Shipping Co., 77 L. J. 
P. C. Ill ; [1908] A. C. 271. 

In an action against a shipowner for negligently leaving open a hatchway 
of a ship in dock, it was held that the register was primd, facie evidence that 
the persons in charge of the ship were the servants of the defendants. Hibbs 
V. Ross, 35 L. J. Q. B. 193; L. E. 1 Q. B. 634. 

Limitation of Actions.^ Actions to enforce any claim against a ship or 
her owners for damage or loss must be commenced within two years of the 
occurrence of the damage or loss, but the court may extend the time if there 
has been no reasonable opportunity of arresting the defendant vessel. 
Maritime Conventions Act, 1911, s. 8. 

Damages.~\ By sect. 503 of the M. Shipping Act, 1894, where loss of 
life, or personal injury, is caused to any person, or damage to any 
merchandise on board any ship, British or foreign, or where, from the 
improper navigation of such ship, the same injury or damage is (^used, 
in relation to any other vessel, the owner, where these events occur without 
his actual fault or privity, is not to be liable in damages, where there is 
loss of life, or personal injury, to an aggregate amount, exceeding j£15 for 
each ton of the ship's tonnage, or '£8 per ton, where there is damage to 
ships, goods, or merchandise. The limitation of liability fixed by sect. 503, 
is extended by 68 & 64 V. u. 32, s. 1, to where without the actual fault or 
privity of the owners " any loss or damage is caused to property or rights 
of any kind, whether on land or on water, or whether fixed or moveable by 
reason of the improper navigation or management of the ship." An 
' ' owner ' ' within these sections includes a charterer to whom the ship is 
demised. M. S. Act, 1906, sect. 71. 

Sect. 508 reserves the liability of a master or seaman, as such, though 
ha may also be an owner, and provides that the above limitation shall 
extend to such British ships only as are recognized as such, i.e., are 
registered [sect. 2 (2)] , except in the case of certain ships under 15 and 30 
tons respectively (sect. 3). 

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Action for Negligent Keeping of Animals. 667 

Where by the fault of two or more vessels, damage or loss is caused to 
one or more of those vessels, their cargoes or freight or any property on 
board, the liability is in proportion to the degree in which each vessel was 
in fault. But where it is impossible to establish different degrees of fault, 
the liability is to be apportioned equally. Maritime Conventions Act, 1911, 
3- 1- The liability for damages in respect of loss of life or personal 
injuries suffered by a person on board a vessel owing to the fault of that 
vessel and of any other vessel or vessels is joint and several, sect. 2. 

In the Admiralty Division, interest is always allowed on damages from the 
time they accrued until payment. The Gertrude and The Baron Aberdare, 
56 L. J. P. 106; affd. 13 P. D. 105. Even when the action has, after 
verdict, been transferred from the King's Bench to the Admiralty Division 
for the assessment of damages. S. C. The interest is not limited to six 
years. The Kong Magnus, [1891] P. 223. 

A defendant in a collision case is not entitled to deduct from the damages, 
money paid to the plaintiff by insurers, for the same damage, for the plaintiff 
is suing for the benefit of the insurers. Yates v. Whyte, 7 L. J. C. P. 116 ; 
4 Bing. N. C. 272; Simpson v. Thomson, 3 App. Cas. 279. 

Where "the collision caused the loss of the ship 's equipment for navigation , 
and by reason thereof, and without any default on the part of the master or 
crew, she subsequently grounded and was necessarily abandoned, the loss of 
the ship was held to be recoverable. The City of Lincoln, 59 L. J. P. 1 ; 
15 P. D. 15. Damages for loss of charterparty are not too remote, either 
in the case of a partial loss ; The Star of Indi-a, 45 L. J. Ad. 102 ; 1 P. D. 
466; The Consett, 5 P. D. 229; see also The Argentine, 59 L. J. P. 17; 
14 App. Cas. 519, or of a total loss; The Kate, 68 L. J. P. 41; [1899] P. 
165; The Racine, 75 L. J. P. 83; [1906] P. 273. Damages for loss of 
market by detention of ship A., by collision with ship B., are too remote 
to be recovered against B., by the owner of cargo in A. The Netting Hill, 
53 L. J. P. 66 ; 9 P. D. 105. So for loss of contingent profits which may 
accrue when the trade sought to be established shall have become 
remunerative. The Bodlewell, 76 L. J. P. 61; [1907] P. 286. Harbour 
trustees may recover substantial damages for loss of the use of their dredger ; 
The Greta Holme, 66 L. J. P. 166; [1897] A. C. 596; or lightship; The 
Mediana, 69 L. J. P. 35 ; [1900] A. C. 113, injured by collision. As to the 
measure of such damages see The Marpessa, 75 If. J. P. 18 ; 76 L. J. P. 128 ; 
[1906] P. 14, 95 ; [1907] A. C. 241. Damages may be recovered for the loss 
of the use of a warship. The Astrakhan, 79 L. J. P. 78; [1910] P. 172. 
Compensation under the Workmen's Compensation Act, 1906, paid to the 
dependants of the master of the plaintiff's ship who was killed owing to the 
defendant's negligence, were held not too remote to be recovered from the 
defendant. The Annie, 78 L. J. P. 81 ; [1909] P. 176. 

Costs.^ Costs are in the discretion of the court, but the general rule is 
that costs follow the event. Where it is found that each vessel has been to 
blame, although in different degrees, the court will, unless in special 
circumstances, apply in cases under the Maritime Conventions Act, 1911, 
the old practice of making each vessel pay her own costs. The Bravo, 
108 L. T. 430. 

Negligent keeping of Animals. 

The owner of an animal, which is ordinarily vicious, as a lion or a bear, is 
liable generally, for its acts of ferocity, for he is bound to keep it secure, at 
his peril; but the owner of a domestic animal, as a horse, an ox, a dog or a 
cat is only liable if he know that the animal is accustomed to do mischief. 
R. V. Muggins, 2 Ld. Raym. 1683; B. N. P. 76; Jenkins v. Turner, 1 Ld. 
Eaym. 110; Clinton v. Lyons, 81 L. J. K. B. 923; [1912] 3 K. B. 198; 
Btadley v. Wallace, 82 L. J. K. B. 1074 ; [1913], 3 K. B. 629. Unless the 
animal be shown to befj^j^l^g/ &^MiWd^7(& nature, or to belong to a 



668 Action for Negligent Kecfing of Animals 

class that has become eo by domestication, it is immaterial whether the 
individual animal, e.g., an elephant, which has done the injury was a 
dangerous one, or whether the defendants had any knowledge that it was 
so, for he is bound to keep it safe at his peril. Filburn v. People's Palace 
and Aquarium Co., 59 L. J. Q. B. 471; 25 Q. B. T>. 258. In the case of 
domestic animals, the owner must keep them safe if he have knowledge of 
their mischievous propensity, and negligence is presumed. May v. Burdett, 
16 L. J. Q. B. 64; 9 Q. B. 101; Jackson v. Smithson, 15 L. J. Ex. 311; 
15 M. & W. 563; Cox v. Burbidge, 32 L. J. C. P. 89; 18 C. B. (N. S.) 
430. Semble, the owner who keeps a savage dog with knowledge of its 
nature is responsible for any injury it may do to another person, notwith- 
etanding that it was caused by the intervening voluntary act of a third 
person. Baker v. Snell, 77 L. J. K. B. 1090; [1908] 2 K. B. 825. If a 
person lets out a horse of known vicious propensity he is under a duty to 
warn not only the person who hires it, but any person who he knows, or 
ought to contemplate, will use it; this duty exists independently of the 
contract. White v. Steadman, 82 L. J. K. B. 846; [1913] 3 K. B. 340. 
See also Fletcher v. Rylands, 35 L. J. Ex. 154, 157 ; L. E. 1 Ex. 265, 281. 

In an action for keeping a dog, which bit the plaintiff, it is sufficient to 
show that the dog was, to the defendant's knowledge, of a fierce and savage 
nature, and had on former occasions evinced an inclination to bite man- 
kind; Worth V. Gilling, L. R. 2 C. P. 1, 3; Barnes v. Lucile, 96 L. T. 680, 
under such circumstances as would not provoke a dog of good temper. 
Charlwood v. Greig, 3 Car. & K. 46. It is not necessary to prove that the 
dog had previously actually bitten any person. Worth v. Gilling and 
Barnes v. Lucile, supra. The defendant's knowledge would be 
evidenced by his having warned a person to beware of the dog lest he should 
be bitten. Judge v. Cox, 1 Stark. 285. It is not sufficient that the 
defendant knew that the dog had bitten a goat. Osborne v. Chocqueel, 
65 L. J. Q. B. 534 ; [1896] 2 Q. B. 109. In the Scottish case of Gordon 
V. Mackenzie, [1913] S. C. 109, the opinion was expressed that evidence of 
attacks made by the dog on other persons after the commencement of the 
plaintiff's action for damages for personal injuries caused by the dog is 
admissible to show that the dog was of a vicious disposition. An offer, to 
make satisfaction to the plaintiff, was held to be evidence of the defendant's 
knowledge of the habits of the animal, but slight only, " for the offer may 
have been made from motives of charity, without any admission of liability 
at all." Thomas v. Morgan, 2 C. M. & E. 496, 503. Where the defendants 
have done all that is reasonable to get rid of a stray dog which has come 
on their premises, they are not liable for injury it may do. Smith v. Gt. E. 
Ry., 36 L. J. C. P. 22; L. E. 2 C. P. 4. Where the defendant was a milk- 
man, and his wife occasionally attended to his business, carried on in the 
premises, where he kept the dog, it was held that a complaint that the dog 
had bitten a person, made to the wife on the premises, to be communicated 
to the husband, was evidence of scienter. Gladman v. Johnson, 36 L. J. 
C. P. 153. So, where complaint was made to two men, serving customers, 
behind the bar of the defendant's public-house, out of which the dog had 
come. Applebee v. Percy, 43 L. J. C. P. 365; L. E. 9 C. P. 647. Know- 
ledge by a servant, who has charge of a dog, of its mischievous propensities, 
is equivalent to knowledge of the master. Baldwin v. Gasella, 41 L. J. Ex. 
167 ; L. E. 7 Ex. 325. Where a person was bitten by a dog the fact that he 
had patted it, it being previously unknown to him, was held not to be 
contributory negligence on his part. Gordon v. Mackenzie, [1913] S. C. 
109. 

Where the plaintiff was injured by a bull, driven in a highway, and 
there was evidence that the owner knew this bull would run at anything 
red, and the plaintiff wore a red handkerchief, this was held evidence that 
the owner knew of the bull's mischievous nature. Hudson v. Roberts, 
6 Ex. 697; 20 L. J. Ex. 299. A horse, straying on the high road, kicked 
.a child; there was no proof that the horse was of a vicious temper, or how 

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Action for Negligent Keeping of Animals. 669 

he came to get loose ; it was held that the evidence was not sufficient to 
support an action for the injury to the child. Cox v. Burbidge, 13 C. B. 
(N. S.) 430; 32 L. J. C. P. 89. The court, in this case, seemed to think 
that whether the horse strayed on to the road, by reason of the negligence of 
the owner or not, was immaterial, because, even supposing that there was 
negligence in this respect, the owner would only be liable for the ordinary 
consequences of his neglect, and that the horse kicking the child, was not a 
consequence of that nature. See also Jones v. Lee, 106 L. T. 123; Hadwell 
Y. Righton, 76 L. J. K. B. 891; [1907] 2 K. B. 345 (fowls straying on 
highway). The owner of harmless domestic animals, e.g., sheep, is not 
under any duty at common law to prevent their straying on a highway. 
Heath's Oarage v. Hodges, 85 L. J. K. B. 1289; [1916] 2 K. B. 370. 
Secus, in the case of an unbroken colt, 86 L. J. K. B. 321; [1917] 1 K. B. 
670. There is no rule of law that to drive sheep along a highway at night 
without a light is a negligent act. Catchpole v. Minster, 109 L. T. 953. 
But, in Lee v. Riley, 18 C. B. (N. S.) 722; 34 L. J. C. P. 212, where, 
through the defect of a gate, which the defendant was bound to repair, the 
defendant's horse strayed into a field, belonging to the plaintiff, and kicked 
the plaintiff's horse, it was held, that the plaintiff was entitled to recover, 
as the damage resulted from a trespass for which the defendant was respon- 
sible. Ellis V. Lofttus Iron Co., 44 L. J. C. P. 24; L. R. 10 C. P. 10, and 
see Smith v. Cook, 45 L. J. Q. B. 122; 1 Q. B. D. 79; Holgate v. Bleazard, 
86 L. J. K. B. 270; [1917] 1 K. B. 443. The owner of land who knowing 
that persons are in the habit of crossing it and acquiescing in the practice, 
puts a savage horse on his ground without giving any warning of the danger, 
is liable in damages to a person crossing the field who is injured by the 
animal. Lowery v. Walker, 80 L. J. K. B. 138; [1911] A. C. 10. As to 
damage, caused by animals straying, through neglect of railway company 
to fence their line, as required by the 8 & 9 V. c. 20, s. 68, see Child v. 
Heam, L. E. 9 Ex. 176 ; Wiseman v. Booker, 3 C. P. D. 184. 

If a dog, accustomed to bite, be let loose at night, for the protection of the 
defendant's yard, and the injury arise from the plaintiff incautiously going 
ino the yard, after it has been shut up, no action will lie. Brock v. Cope- 
land, 1 Bsp. 203; Dearth v. Clayton, 1 B. Moo. 225, 245. But, though a 
person has a right to keep a fierce dog to protect his property, he must not 
place it in the open approaches to his house, so as to injure persons lawfully 
coming to his house ; Sarch v. Blackburn, M. & M. 505 ; see also Black- 
man V. Simmons, 3 C. & P. 138. The principle of these cases was discussed 
in Bird v. Holbrook, 4 Bing. 628; 6 li. J. (0. S.) C. P. 146; where it was 
held, that the defendant, who, for the protection of his property, had set a 
spring-gun, without notice, in a walled garden, was answerable in damages 
to a person who, having climbed over the wall, in search of a stray fowl, 
was injured by the gun. In Stiles v. Cardiff S. Navigation Co., 83 L. J. 
Q. B. 310, where the plaintiff entered a stable-yard, belonging to the 
defendants, to make inquiries from their servants, about his luggage, which 
was in the custody of the defendants, and was bitten by a dog, chained up 
in a corner of the yard, it was held that there was evidence of negligence. 
In Line v. Taylor, 3 P. & P. 731, the dog was allowed to be brought into 
court, and inspected by the jury, that they might judge of its disposition. 

In the case of injury by a dog, to cattle, the Dogs Act, 1906, 6 E. 7, c. 32, 
s. 1 (1), renders evidence of a previous mischievous propensity of the dog, 
or of the owner's knowledge thereof, or of negligence on his part, unneces- 
sary. By sect. 1 (2), the occupier of any house or premises, where the dog 
was kept, or permitted to live, or remain, at the time of the injury, shall 
be presumed to be the owner of the dog, and shall be liable for the injury, 
unless he proves that he was not the owner of the dog at that time : provided, 
that where there are more occupiers than one, in any house, &c., let in 
separate apartments, or lodgings, or otherwise, the occupier of that 
particular part of the house, &c., in which the dog has been kept, &c.j at the 
time of the injury, shall be presumed .to be the owner of the dog.. As to 

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670 Action for Negligent User of Land. 

liability for injury caused by a dog kept by an adult daughter living with 
her fat.her, see North v. Wood, 83 L. J. K. B. 587 ; [1914] 1 K. B. 629. By 
sect. 7, " the expression ' cattle ' includes horses, mules, asses, sheep, 
goats, and swine." 

As to the defendant's liability for the trespasses of his domestic animals 
on the land of another, vide sub tit., Trespass to land — Evidence of trespass 
committed by defendant, post. 



Negligent User of Land. 

The following are miscellaneous cases of injury, arising from the negligent 
user of land, which do not fall within the heads of Nuisance, ante, and 
Disturbance of support of land, post. 

As to the liability of contiguous mine owners, it has been held that the 
owner of a colliery, lying on a higher level than another, belonging to the 
plaiutifE, may, so long as he does not work in an unusual and negligent 
manner, remove coal from his mine, so that water flows into that of the 
plaintiff. Smith v. Kenrick, 18 L. J. G. P. 172; 7 C. B. 515; Wilson v. 
Waddell, 2 App. Gas. 95, and see Smith v. Musgrave, 47 L. J". Ex. 4; 

2 App. Gas. 781, and W. Cumberland Iron, dc. Go. v. Kenyan, 48 L. J. Gh. 
793; 11 Gh. D. 782. The owner of the upper, of two adjoining mines, is 
not liable for injury, by water flowing by gravitation, into the lower mine, 
from works conducted by him, in the usual and proper manner; but he has 
no right to take active measures, to discharge water from the upper, into 
the lower mine. Baird v. Williamson, 15 C. B. (N. S.) 376; 33 L. J. 
G. P. 101; Young v. Bankier Distillery Co., [1893] A. G. 691. See also 
Grompton v. Lea, 44 L. J. Gh. 69; L. E. 19 Eq. 115; Smith v. Musgrave, 
supra. So, if a landowner. A., bring water on to his land, by artificial 
means, he is bound at his peril to keep it from escaping, and causing injury 
on his neighbour's land. Bylands v. Fletcher, 37 L. J. Ex. 161 ; Ij. K. 

3 H. L. 330 ; or on to land of which he has a right of user. Gharingi Gross 
(fc. Electric Supply Co. v. London Hydraulic Power Co., 83 L. J. K. B. 
1352; [1914] 3 K. B. 772. And, even if it come there by natural causes, 
A. must not take active steps to transfer the injury to his neighbour, 
B., by discharging it on B.'s land. Whalley v. Lancashire and York By., 
53 L. J. Q. B. 285 ; 13 Q. B. D. 131. So, too, if a colliery company tip 
spoil on a hillside without draining the site and so cause a landslide. Att.- 
Gen. v. Gory, 90 L. J. Ch. 221 ; [1921] 1 A. G. 521. But the obligation of a 
landowner not actively to transfer to his neighbours a danger which he 
himself has created or increased is not inconsistent with the right of a 
landowner to repel some extraordinary misfortune which comes to him by 
way of his neighbour's land. Oreyvensteyn v. Hattingh, 80 L. J. P. G. 
168, 160; [1911] A. G. 355, 360. Thus A. may prevent the water from 
coming on his land, although the water goes in consequence on B.'s land, 
and causes injury to B. Nield v. L. * IV. W. Ry., 44 L. J. Ex. 15; L. E. 
10 Ex. 4. As to damages recoverable for flooding a mine, see Smith v. 
Fletcher, 41 L. J. Ex. 193, 197; L. E. 7 Ex. 305, 313. Where the 
defendant has used all reasonable care to prevent water stored on his land 
from escaping, he is not liable for damage, caused by an escape, the con- 
sequence of vis major. Nichols v. Marsland, 46 L. J. Ex. 174; 2 Ex. D. 
1 See also Box v. Jubb, 48 L. J. Ex. 417 ; 4 Ex. D. 76. The application 
of the above principles to the rights and liability of the occupiers of 
different floors, or flats in the same building, was considered in Garstairs v. 
Taylor, 40 L. J. Ex. 129; L. E. 6 Ex. 217, and Ross v. Fedden, 41 L. J. 
Q. B. 270 ; L. E. 7 Q. B. 661 ; and as between such occupiers and the owners 
of the whole house in Blake v. Woolf, 67 L. J. Q. B. 813; [1898] 2 Q. B. 
426, and Rickards v. Lothian, 82 L. J. P. C. 42; [1918] A. G. 263. In 
the latter case the landlord was held not liable for injury caused by the 
malicious act of a third person which the landlord Could not reasonably- 



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Negligent Keeping of Fire, or Inflammable Matter. 671 

have anticipated. See also Hargroves, iCc. v. Hartopp, 74 L. J. K. B. 233; 
[1905] 1 K. B. 472. As to defendant's liability, for injury caused by the 
flooding of his neighbour's land, by reason of defendant's negligence, in 
maintaining a river wall, see Nitrophosphate, d-c. Manure Co v. L. & S. 
Katherine's Dock Co., 9 Ch. D. 503, and Buckley v. Buckley, 67 L. J. Q. B. 
953 ; [1898] 2 Q. B. 608. The principle of Rylands v. Fletcher, 37 L. J. Ex. 
161 ; L. B. 3 H. L. 330, extends to the discharge into the earth of an electric 
current created by the defendant, causing injury to the plaintiff or the 
ordinary use of his property. See National Telephone Go. v. Baker, 
62 L. J. Ch. 699 ; [1893] 2 Ch. 1Q6; E. d S. African Telegraph Co. v. Cape 
Town Tramways Co., 71 L. J. P. C. 122; [1902] A. C. 381. 

No action lies, v^here the damage results, from carrying out works, &c., 
authorized by statute; Dixon v. Metropolitan Board of Works, 50 L. J. 
Q- B. 772; 7 Q. B. D. 418; nor where they are carried out under a pro- 
visional order of the Board of Trade, the granting of which is so authorized. 
National Telephone Co. v. Baker, supra. As to damages recoverable, for 
injury, caused by commissioners negligently carrying out works they are 
bound to do, Collins v. Middle Level Commissioners, 38 L. J. G. P. 236; 
Ii. E. 4 C. P. 279. See also Geddis v. Bann Reservoir Co., 3 App. Cas. 430. 

As to the liability of a wharf owner, for injury caused by the state of 
the river bed adjacent to his wharf, to a ship, which he invited to discharge 
there, see The Moorcock, 58 L. J. P. 73, 14 P. D. 64, and The Beam, 
75 L. J. P. 9 ; [1906] P. 48 ; The Calliope, 60 L. J. P. 28 ; [1891] A. C. 11 ; 
Wright v. Lethbridge, 63 L. T. 572. See also Bede S.S Co. v. R. Wear 
Gommrs., 76 L. J. K. B. 434; [1907] 1 K. B. 310. As to fitness of quay 
to receive goods, see Liebig's Extract of Meat Co. v. Mersey Docks & 
Harbour Board, 87 L. J. K. B. 1133; [1918] 2 K. B. 381. 



Negligent keeping of Fire, or Inflammable Matter. 

By the Building Act, 14 G. 3, c. 78, s. 86, " no action " will lie against 
" any person, in whose house, chamber, stable, barn, or other building, or 
on whose estate any fire shall" . " accidentally begin." This section 
is of general application, and not confined to the metropolis. Filliter v. 
Phippard, 17 L. J. Q. B. 89; 11 Q. B. 347. It does not apply to cases of 
negligence, or of fires intentionally lighted; and if a fire be negligently 
lighted or kept by a person, or his servant, on his premises, so that it sets 
fire to his neighbour's premises, he is liable to his neighbour. S. C, com- 
menting on 1 Bl. Com. 431. See also Canterbury {Viscount) v. Att.-Gen., 12 
L. J. Ch. 281 ; 1 Phil. 306. It seems that the effect of the statute, is to rebut 
the presumption, that the happening of the fire was the result of negli- 
gence. The defendant's servant was sent to clean a motor car; he turned 
the starting-handle, when the petrol in the carburettor caught fire, the 
cause being unexplained. The servant did not turn off the tap and so stop the 
flow of petrol which would have prevented the fire from spreading, and 
owing to this neglect the fire spread to the car and garage in which it 
was and damaged the plaintiff's premises, which were over the garage. 
The defendant pleaded the statute. It was held that he was not protected, 
as the fire which caused the damage was that which spread to the car, and 
that this fire was due to the servant's negligence and did not " accidentally 
begin." Musgrove V. Pandelis, 88 L. J. K. B. 915; [1919] 2 K. B. 43. 
See also Jefferson v. Derbyshire Farmers, [1921] 2 K. B. 281. There 
employers were held liable where their servant, in drawing motor spirit from 
a drum, struck a match to light a, cigarette and then threw the match on 
the floor, which set light to some oil and petrol lying about, which spread 
to the motor spirit flowing from the drum and then to the premises and so 
consumed them. 

In Vaughan v. Menlove, 7 C. & P. 625, where the defendant was held 
liable, for ctemage °crasia»^k^jflkH»tif£.Js jy-aM^ty, from the defendant's 

E. — VOL. II. 3 



672 Negligent Keeping of Fire, or Inflammable Matter. 

hayrick having ignited, by reason of its being carelessly put together, 
Patteson, J., directed the jury to consider, whether the defendant had acted, 
as a man of ordinary skill and prudence would have acted, or whether, 
through his negligence and carelessness, the plaintiff's property had been 
consumed. It was not enough that the defendant had acted bond fide; for 
if, by want of judgment or care, the injury had been occasioned, he was 
liable to the action. S. C, 6 L. J. C. P. 92 ; 3 Bing. N. G. 468. In an 
action against a railway company, for so negligently managing an engine, 
that the plaintiff's premises were burnt, by the sparks emitted from it, 
it appeared in evidence, that the danger, from emission of sparks, might be 
diminished, but it was not shown that the company had taken any precau- 
tions for that purpose. It was held that there was a primd facie case of 
negligence. Piggot v. E. Counties By., 15 L. J. C. P. 235; 3 C. B. 229. 
In such case, where it is a question whether the sparks could have reached 
the premises at a distance from the rail, evidence is admissible to show 
that sparks had been in fact thrown as far by other engines. S. C. It 
was also there held, that the mere act of ignition, by the sparks, was ■primA 
facie evidence of negligence, and called for proof of reasonable precautions. 
S. C. Where the defendants left heaps of hedge trimmings, near their line, 
in dry weather, so that they became ignited, by sparks from a passing 
engine, and did damage, this was held to be evidence of negligence. Smith 
V. L. it S. W. Ry., 40 L. J. C. P. 21 ; L. E. 6 C. P. 14. In one case it was 
said, that the defendants might show that the plaintiff negligently placed 
his stack, or rick, so as to expose it to danger. Semb. per Tindal, C.J., in 
Aldridge v. Gt. W. Ry. 3 M. & Gr. 515. 

A railway company is not, apart from 5 E. 7, c. 11, infra, responsible 
for these accidental fires if they have taken every precaution, that science 
can suggest, to prevent injury; they are only liable, if guilty of some 
negligence in fact, and negligence cannot be implied, from the mere employ- 
ment of locomotives, where the use of them has been expressly permitted 
by the legislature. Vaughan v. Taff Vale Ry., 5 H. & N. 679 ; 29 L. J. Ex. 
247, following R. v. Pease, 2 L. J. M. C. 26; 4 B. & Ad. 30. Hammersmith 
<£■ City Ry. v. Brand, 38 L. J. Q. B. 265 ; L. E. 4 H. L. 171 ; L. Brighton 
& S. C. Ry. V. Truman, 55 L. J. Ch. 354; 11 App. Gas. 45. Where the 
plaintiff proved that the engine was not provided with the ordinary 
appliances for preventing sparks issuing from the fire-box, but the defendants 
called scientific witnesses, to show that the engine was so constructed as to 
make it. unnecessary to provide any of these safeguards; it was held to have 
been rightly left to the jury, whether there had been negligence in the 
condition of the engine, or in the manner of working it. Freemantle v. 
L. S N. W. Ry., 10 C. B. (N. S.) 89; 31 L. J. C. P. 12. See also 
Dimmock v. N. Staffordshire Ry., 4 P. & P. 1058. 

By the Eailway Fires Act, 1905, 5 E. 7, u. 11, ss. 1 (1), 5, where, after 
Dec. 3l3t, 1907, damage is caused to agricultural land or to agricultural 
crops by fire arising from sparks or cinders emitted from any locomotive 
engine used on a railway, the fact that the engine was used under statutory 
powers shall not affect liability in an action for such damage, unless, 
sect. 1 (3), the claim for damages exceeds ^100. By sect. 1 (2), where the 
damage is caused through the use of an engine by one company on a rail- 
way worked by another company, either company is made liable; but if the 
action is brought against the company working the railway, that company 
is entitled to be indemnified in respect of their liability by the company by 
whom the engine was used. " Agricultural laud " includes arable and 
meadow land and ground used for pastoral purposes or for market or 
nursery gardens, and plantations and woods and orchards, and also includes 
any fences on such land, but does not include any moorland or buildings. 
" Agricultural crops " include any crops on agricultural land, whether 
growing or severed, which are not led or stacked. " Eailway " includes any 
light railway and any tramway worked by steam 'power. Under sect. 3 

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Action for Negligence of Railway Companies. 673 

(which requires notice in writing of the claim and particulars of damage to 
be sent to the railway company, the notice of claim within 7 days of the 
occurrence of the damage, and the particulars of damage within 14 days) it 
is a condition precedent to the action that the particulars of damage should 
state the amount in money claimed. Martin v. G. E. By., 81 L. J. K. B. 825 ; 
[1912] 2 K. B. 406. Where the Legislature has not authorized the company 
to use locomotive engines they are liable for accidental fires. Jones v. 
Festiniog Ry., 37 Tt. J. Q. B. 214; L. E. 3 Q. B. 733. See also Metrop. 
Asylum District v. Hill, 50 L. J. Q. B. 353 ; 6 App. Gas. 193. So, where 
locomotive engines are used on ordinary highways, the persons using them 
are liable for fires thereby caused, for the statutes which regulate their use 
expressly reserve the right of action for any injury such locomotives may 
cause; see 24 & 25 V. c. 70, s. 13; 28 & 29 V. c. 83, s. 12. Powell v. Fall, 
49 L. J. Q. B. 428; 5 Q. B. D. 597. These sections are not affected by 
61 & 62 V. c. 29. Att.-Gen. v. Scott, 73 L. J. K. B. 196 ; [1904] 1 K. B. 404 ; 
74 L. J. K. B. 803; [1905] 2 K. B. 160. 

Where an accident occurred by the escape of gas, supplied by a gas 
company, in a private house, and the only means of shutting off the gas was 
by a key to a stop-cock in the house, kept by the tenant; it was held, first, 
that there was no common law obligation on the company, to prevent the 
gas from escaping, by attaching an external stop-oock, even after the 
tenant had left the premises, and given notice that no further supply was 
wanted; secondly, that the negligence of the plaintiff, the owner of the 
house, in not shutting off the gas, was an answer to an action against the 
company. Holden v. Liverpool Gas Co., 15 L. J. C. P. 301; 3 C. B. 1. 
As to the liability of a gas company, for an explosion, caused by the escape 
of gas, from a defective service pipe supplied by them, see Burrows v. 
March Gas Co., 41 L. J. Ex. 46 ; L. E. 7 Ex. 96. See also Parry v. Smith, 
48 L. J. C. P. 731; 4 C. P. D. 325. 

Doing repairs involving the use of red-hot rivets on board ship while 
inflammable cargo is exposed requires special precautions to be taken, and 
if they are not taken and the cargo is damaged thereby, the repairers are 
liable. Grayson v. Ellerman Lines, 89 L. J. K. B. 924; [1920] A. C. 4«6; 
see also Nautilus S.S. Co. v. Henderson, [1919] S. C. 605. 

The defendant is not entitled to deduct from the damage sustained, money 
received by the plaintiff for the same damage, under a fire policy. 

An insurer has no right, apart from the assured A., to maintain an 
action for damage to the thing insured; he can enforce A.'s rights only in 
A.'s name; Simpson v. Thomson, 3 App. Gas. 279; Midland Insur. Co. 
V. Smith, 50 L. J. Q. B. 329 ; 6 Q. B. D. 661 ; and after admitting the claim 
on the policy. S. C. 



Negligence of Bailway Companies. 

The cases relating to accidents caused by the negligent driving of trains 
and those occasioned by fire from their locomotives have been already 
dealt with. Under the present head are collected cases, decided on the 
statutory obligation of railway companies to protect their line with fences, 
gates, &c. ; and on their duty to provide safe platforms, &c., on which their 
passengers may alight ; and also some other cases , with respect to the 
negligence of their servants. 

By the Railway Glauses Consolidation Act, 1845 (8 & 9 V. c. 20), s. 47, 
the duty is imposed on the company, where a public road crosses the line of 
railway at a level, of maintaining " sufficient gates of such dimensions and 
so constructed as when closed to fence in the railway and prevent cattle or 
horses passing along the road from entering upon the railway," and of 
keeping the gates closed, across the road, except when carriages, &c., have 
to cross the railway. Under this provision, tbe company are liable for 
injury even to stray ca^Jftf^^ JW^fe^^6^©* "P"" ^^^ railway, owing 



674 Action for Negligence of Railway Companies. 

to defect in the repair of swing foot gates at the side of the carriage gates 
closed across the road; Charman v. S. E. By., 57 L. J. Q. B. 597; 
21 Q. B. D. 524; or through gates improperly left open. Fawcett v. York, 
dc, By., 16 Q. B. 610; 20 L. J. Q. B. 222, decided on 5 & 6 V. c. 55, s. 10, 
which was to the same effect. The section obliges the company also to use 
due care in opening the gates, and allowing carriages to pass. Lunn or 
Lunt V. L. ce N. W. By., 35 L. J. Q. B. 105; L. E. 1 Q. B. 277. Where' 
the carriage gates are left open, this amounts to an intimation that the 
road across the line is safe; and the company are liable to a foot passenger, 
who is thereby induced to cross the line, and is hurt by a passing train. 
Stapley v. L. Brighton d S. C. By., 35 L. J. Ex. 7; L. E. 1 Ex. 21; 
^. E. By. V. Wanless, 43 L. J. Q. B. 185; L. E. 7 H. L. 12. If, however, 
there be no servant of the company at the gate to open it, and the person 
wishing to cross the railway open the gate himself, he does so at his peril. 
Wyatt V. Gt. W. By., 6 B. & S. 709; 34 L. J. Q. B. 204. See also on this 
section, Matson v. Baird, 3 App. Cas. 1082. The Highway Act, 1835 (5 & 6 
W. 4), c. 50, s. 71, contains a somewhat similar provision. 

A footpath, entered by swing gates, crossed a railway on a curve, at a 
short distance from a bridge, which partially obstructed the view of trains ; 
the plaintiff, who was deaf of one ear, was injured by a down train, while 
his attention was attracted by the passing of an up train ; it was held that 
there was evidence of negligence by the company. Bilbee v. L. & Brighton 
By., 18 C. B. (N. S.) 584; 34 L. J. C. P. 182. This case has been explained, 
on the ground that the company, having constructed a peculiarly dangerous 
crossing, were bound to take special precautions. Cliff v. Midland By., 
L. E. 5 Q. B. 258, 263 — 265. The position of a level crossing may involve 
special safeguards being provided. Jenner v. S. E. By., 105 L. T. 131; but 
there is no general duty on railway companies to place watchmen at public 
footways crossing the railway at a level ; it depends on the circumstances of 
each case, whether the omission of such a precaution amounts to negli- 
gence on the part of the company. Stubley v. L. d N. W. By., 35 
L. J. Ex. 3;Ij. E. 1 Ex. 13 ; Skelton Y . L. & N. W. By., 36 L. J. C. P. 249; 
L. E. 2 C. P. 631; James v. Gt. W. By., L. E. 2 C. P. 634, n. ; Ellis v. 
Gt. W. By., 43 L. J. C. P. 304; L. E. 9 C. P. 551; Davey v. L. £ S. W. 
By., 53 L. J. Q. B. 58; 12 Q. B. D. 70; Smith v. S. E. By., 65 L. J. Q. B. 
219; [1896] 1 Q. B. 178. Even where there is negligence on the part of 
the company the plaintiff must prove that it was the cause of the injury. 
Wakelin v. L. d S. W. By., 56 L. J. Q. B. 229; 12 App. Cas. 41; Grand 
Trunk By. v. M' Alpine, 83 L. J. P. G. 44; [1913] A. C. 838; McKenzie v. 
Chilliwack Cor., 82 L. J. P. C. 22; [1912] A. C. 888. It is no evidence of 
negligence, that the company has not exercised a statutory power, of divert- 
ing the way across the line. Cliff v. Midland By. Co., supra. Where an 
engine ran over the plaintiff, a child three years old, it not appearing how 
the child got on the line, or that there was negligence on the part of the 
company, the plaintiff was nonsuited. Singleton v. E. Counties By 7 
C. B. (N. S.) 287. See also Jenkins v. Gt. W. By., 81 L. J. K. B. 378; 
[1912] 1 K. B. 525. Where it appeared that the absence of a gate, or stile' 
where a road, or path, crossed the line, as required by sect. 61, might have 
been the cause of the accident, the plaintiij was held to be entitled to 
recover. Williams v. Gt. W. By., 43 L. J". Ex., 105; L. E. 9 Ex. 157. 
See also Parkinson v. Garstang, tic. By., 79 L. J. K. B. 380; [1910] 1 
K. B. 615, where a straying horse was killed by a train. 

A railway company is bound to maintain sufficient fences for separating 
the land, taken for the use of the railway, from adjoining lands not taken, 
and protecting the cattle of the owners and occupiers from straying thereout 
8 & 9 V. c. 20, s. 68. This obligation is absolute, and is not affected by 
sect. 73. Dixon v. Gt. W. By., 66 L. J. Q. B. 132; [1897] 1 Q. B. 300. 
If the company neglect to fence, neither it, nor its servants, can recover for 
injury caused by animals straying on its land; Child v. Hearn, 43 L. J. Ex. 
100 ; L. E. 9 Ex. 176 ; nor can the tenants of the land. Wiseman v. Booker 

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Action for Negligence of Railway Companies. 675 

3 C. P. D. 184. The plaintiff's sheep escaped into the field of A. from 
defect of fences, which the plaintiff was bound to repair, and thence into a 
railway, by reason of a defect in the railway fences : held, that the plaintiff 
could not sue the railway company for injury to his sheep by a train. 
Ricketts v. E. £ W. India Docks, &c., Ry., 12 C. B. 160; 21 L. J. C. P. 201. 
So, where the plaintiff's cattle strayed from his own field, into the highway, 
and thence, through a defective fence of the company, on to the railway, 
and were there killed by a train, it was held, that the section did not 
oblige the company to fence against any but persons lawfully on the 
highway, and that they were not liable. Manchester, dc, Ry. v. Wallis, 
14 C. B. 213; 23 L. J. C. P. 85; Luscombe v. Gt. W. Ry., 68 L. J. Q. B. 
711; [1899] 2 Q. B. 313. So, if the owner of lands, adjacent to a railway, 
have a key of a gate to a private crossing over it, and the gate be left open 
by him, the company is not liable for injury to his cattle straying on the 
rail, even if there be some negligence in the company ; and the owner cannot, 
under such circumstances, set up the objection, that the defendant ought to 
have made a bridge, and not a level crossing. Ellis v. L. & 8. W. Ry., 2 
H. & N. 424; 26 h. J. Ex. 349. The obligation to fence, created by the 
above section, applies only as between the railway company, and the 
adjoining landowner, or his licensee; as between the company and their 
passengers the company, under their common law liability, are only bound 
to take every reasonable care to prevent cattle straying on their line. Buxton 
v. N. E. Ry., 37 L. J. Q. B. 258; L. E. 3 Q. B. 549. A person using the 
lands of the adjoining owner, by his permission, is in the same position as 
he is, Dawson v. Midland Ry., 42 L. J. Ex. 49; L. B. 8 Ex. 8. As to the 
right of the occupier, under sect. 68, to have the land fenced by the railway 
company, when the owner has released his right, see Carry v. Ot. W. Ry., 
50 L. J. Q. B. 386; 7 Q. B. D. 322. 

" The company are bound to use reasonable care in providing accommoda- 
tion for passengers, and the passengers also are bound to use reasonable care 
in availing themselves of the accommodation provided for them." Per 
Cockburn, C.J., in Praeger v. Bristol d Exeter Ry., 24 L. T. 107. Where 
the company require a passenger to alight, without affording reasonable 
facilities for the purpose, they are liable if the passenger, through no default 
of his own, meet with an accident in alighting. Foy v. L. B. d S. C. Ry., 
18 C. B. (N. S.) 225. Where the carriage, in which the plaintiff is travelling, 
is drawn up beyond the platform owing to the length of the train, or other 
cause, and the danger is visible, and there has been no invitation to alight, 
the company are not liable for injury caused to the plaintiff by his jumping 
down. Siner v. Gt. W. Ry., 38 L. J. Ex. 67; K E. 4 Ex. 117; Abbot 
V. North British Ry., [1916] S. C. 306. But, if there were an invitation to 
alight, the company would be liable. Robson v. N. E. Ry., 46 L. J. Q. B. 
50; 2 Q. B. D. 85, and Rosey. N. E. Ry., 46 L. J. Ex. 374 ; 2 Ex. T>. 248. 
And where the danger is in the nature of a trap, not being visible from the 
darkness, or other cause, and unknown to the plaintiff, the company will be 
liable if he injure himself, in alighting at their invitation. Cockle v. 
S. E. Ry., 41 L. J. C. P. 140; L. E. 7 C. P. 321; Bridges v. N. London Ry., 
43 L. J. Q. B. 151 ; L. E. 7 H. L. 213. 'The invitation in Praeger v. Bristol 
d Exeter Ry., supra, was the opening the carriage door, and in Cockle v. 
5. E. Ry., and Robson v. N. E. Ry., supfa, the bringing the train to a final 
standstill, for the purpose of the passengers alighting. See also Petty v. 
Gt. W. Ry., L. E. 5 C. P. 461, n. ; and Whittaker v. Manchester d Sheffield 
Ry., L. E. 5 C. P. 464, n. Whether calling out the name of the station, 
by the defendants' servants, on the platform, amounts to an invitation, 
depends on the circumstances of each case; calling it out before the train 
arrives at a standstill at the station is not such an invitation ; Lewis v. 
L. Chatham d D. Ry., 43 L. J. Q. B. 8; L. E. 9 Q. B. 66; but it is other- 
wise, where the name is called out after the train has arrived at a final 
■ standstill. Weller v. L. Brighton d S. C. Ry., 43 L. J. C. P. 137; L. E. 
9 C. P. 126 ; Bridges %)}^tke&ybyWfl&rOSOft® 



676 Action for Negligence of Railway Companies. 

So, a railway company are responsible, if they invite their passengers 
to use an unsafe bridge over their line; Longmore v. Gt. W. Ry., 19 C. B. 
(N. S.) 183; 35 L. J. C. P. 135, n. ; cf. Brackley v. Midland Ry., 85 L. J. 
K. B. 1596, where the footbridge had been dedicated by the company and 
accepted by the public as a highway : there the company were held not 
liable for an accident to a person by slipping on some frozen snow while 
crossing the bridge. So, if the usual exit being blocked up, they assent 
to the passengers leaving a station, by a way across which is 
an obstruction, unseen, on account of the darkness. Nicholson v. Lan- 
cashire, dc, Ry., 3 H. & C. 534; 34 L. J. Ex. 84. So, where the 
company allow a person, for whom they carry goods by their line, to assist 
in unloading them, they are liable for negligence towards him. Holmes v. 
N. E. Ry., 40 L. J. Ex. 121; L. E. 6 Ex. 123; Wright v. L. d N. W. Ry., 
45 L. J. Q. B. 570; 1 Q. B. D. 252. See also Smith v. L. & S. Katherine's 
Dock Co., 37 L. J. C. P. 217; L. E. 3 C. P. 326; John v. Bacon, 39 L. J. 
C. P. 365 ; L. E. 5 C. P. 437. 

But there must be some evidence of negligence, on which the jury may 
reasonably and properly act, or the judge is bound to direct a verdict for 
the defendant ; and a railway company is not answerable for injury which 
may happen to a passenger from using a station or a staircase provided 
by them, if it be reasonably safe for the purpose. Toomey v. L. Brighton & 
S. C. Ry., 3 C. B. (N. S.) 146; 27 L. J. C. P. 39; Comman v. E. Counties 
Ry., 4 H. & N. 781; 29 L. J. Ex. 94; Crafter v. Metropolitan Ry., 85 L. J. 
C. P. 132; L. E. 1 C. P. 300; Longmore v. Gt. W. Ry., 35 L. J. C. P. 
135, n. ; 19 C. B. (N. S.) 183. Circumstances, e.g., a thick fog, precluding 
safe movement on the platform may involve the taking of special pre- 
cautions by the company. London, Tilbury S Southend Ry. v. Paterson, 
29 T. L. E. 413. See also Simkin v. L. S N. W. Ry., 21 Q. B. D. 453. 

Where the door of the defendants' railway carriage, in which the plaintiff 
was travelling, flew open, owing to some defect in the fastening, and the 
plaintiff, while the train was in motion, endeavoured to shut the door, and 
in so doing was thrown out and injured, it was held that the defendants were 
not liable. Adams v. Lancashire, Sc. Ry., 38 L. J. C. P. 277 ; L. E. 4 C. P. 
739. This case was decided on the ground that the plaintiff should have 
suffered the inconvenience, rather than expose himself to considerable peril 
(see also observations of Bramwell, L.J., in Lax Y. Darlington Cor., 
49 L. J. Ex. 105, 106; 5 Ex. D. 35, 36). In Gee v. Metropolitan Ry., 
42 L. J. Q. B. 105; L. E. 8 Q. B. 161, the court, while approving the 
principle, doubted whether it was correctly applied to the facts in Adams v. 
Lancashire, dc. Ry., supra. Where the plaintiff stood up against the door 
of the railway carriage, in order to look out, and the door flew open, whereby 
he was thrown out and injured ; this was held evidence of negligence on the 
part of the company. Gee v. Metropolitan Ry., supra. 

Where the guard of the defendants, a railway company, forcibly closed 
the door of one of their carriages, without previous warning, so as to crush 
the hand of the plaintiff, a passenger who was in the act of entering the 
carriage, between the door and the door-post, it was held, that the jury were 
justified in finding that the guard was guilty of negligence, and that there 
was no contributory negligence on the part of the plaintiff. Fordham v. 
L. Brighton d S. C. Ry., 38 L. J. C. P. 324; L. E. 4 C. P. 619; Coleman v. 
S. E. Ry., 4 H. & C. 699. But, in a similar case, where the plaintiff left 
his hand on the edge of the door, half a minute after entering the carriage, 
and the guard gave due warning, before shutting the door, the court beld that 
the accident was attributable solely to the plaintiff's want of caution, in 
leaving his hand, after he had entered the carriage, upon a door, that he 
must have known would be shut immediately. Richardson v. Metropolitan 
Ry., 37 L. J. C. P. 300; L. E. 3 C. P. 374, n. See also Delaney v. Metro- 
politan Ry., 90 L. J. K. B. 721 (door shutting automatically and crushing 
plaintiff's hand), Drury v. N. E. Ry., 70 L. J. K. B. 830; [1901] 2 K. B. 322, 
and Metropolitan Ry. v. Jackson, 47 L. J. Q. B. 303 ; 3 App. Cas. 193. A per- 

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Miscellaneous Cases of Negligence. 677 

Bou who had alighted from a train and was struck by an open door of a 
carriage of the train which had been restarted was held entitled to sue the 
company. Toal v. North British Ry., 77 L. J, P. C. 119; [1908] A. C. 352. 
So too, a person who had been permitted to go upon a railway platform to see 
friends off and was injured in the same way. Touqh v. North British Rv., 
[1914] S. C. 291. 

As to evidence of negligence, arising from insufficiency of the staff of 
porters, at the station, to regulate the crowd of passengers on the platform, or 
to remove those overcrowding the carriages, vide Met. By. v. Jackson, supra; 
M'Gallum y. North British Ry., [1908] S. C. 415; Buchanan v. Glasgow 
Gorpn., [1919] S. C. 515 (passenger thrown from tramway platform by crowd 
attempting to board car). The robbery of a passenger C. caused by the over- 
crowding of the carriage in which C. travelled, is too remote a damage to be. 
recoverable by him. Cobb v. Gt. W. Ry., 63 L. J. Q. B. 629; [1894] A. C- 
419. A railway company are not liable for an assault committed on a pas- 
senger, P., while travelling on their railway by his fellow-passengers, when 
the company, at the time P. took his ticket, did not know that, owing to ill- 
will incurred by P., the assault was probable. Pounder v. N. E. Ry., 61 L. J. 
Q. B. 136 ; [1892] 1 Q. B. 885 ; see also the preceding case. Nor for injury 
caused by dangerous goods brought into a railway carriage, unless the 
company were negligent in permitting them to be brought in. E. Indian By. 
V. Mukerjee, 70 L. J. P. C. 63 ; [1901] A. C. 396. Nor for injury sustained 
by a child trespassing on the company's premises, where the company had 
done all they reasonably could to warn off trespassers. Hardy v. Central 
London By., 89 L. J. K. B. 1187; [1920] 3 K. B. 459. 

The Regulation of Railways Act, 1868 (31 & 32 V. c. 119), s. 22, which 
requires that in every train carrying passengers, and travelling more than 
20 miles without stopping, the company shall provide means of communi- 
cation between the passengers, and servants in charge of the train, applies to 
every passenger train, intended to travel more than 20 miles without 
stopping; Blamires v. Lancashire S Yorkshire Ry., 42 L. J. Ex. 182; L. R. 
8 Ex. 283; and the omission to provide such communication, may be evidence 
of negligence. S. C. 

Miscellaneous Gases of Negligence. 

Although the mere happening of an accident is not in general primd facie 
evidence of negligence, and the plaintiff is bound to give some evidence in 
support of the defendant's negligence; Cotton v. Wood, 8 C. B. (N. S.) 568; 
29 L. J. C. P. 333; Hammock v. White, 11 C. B. (N. S.) 588; 31 L. J. 
C. P. 129; Smith v. Gt. E. Ry., 36 L. J. C. P. 22; L. E. 2 C. P. 4; Welfare 
V. L. Brighton S S. G. By., 38 L. J. Q. B. 241 ; L. E. 4 Q. B. 693 ; yet the 
accident may be of such a nature, that res ipsa loquitur, i.e., negligence must 
be assumed, from the unexplained fact of the accident happening. Thus, 
where the plaintiff, while walking in a street, in front of the house of the 
defendant, a flour dealer, was injured by a barrel of flour falling upon him 
from an upper window, it was held, that this was evidence to go to the jury. 
Byrne v. Boadle, 2 H. & C. 722 ; 33 L. J. Ex. 13. So, where a custom- 
house officer was struck by a bag of sugar, lowered by a crane overhead, while 
he was lawfully in the docks. Scott v. London Docks Co., 3 H. & G. 596; 
34 L. J. Ex. I'f, 220. So, where a brick fell from a railway bridge, which a 
train had just crossed, and injured the plaintiff, who was passing along the 
highway below the bridge, this was held to be primd facie evidence of 
negligence. Kearney v. L. Brighton S 8. C. By., 40 L. J. Q. B. 285; L. E. 
6 Q. B. 759. See also Briggs v. Oliver, 4 H. & C. 403; 35 L. J. Ex. 163. 
So where damage was caused by an explosion in the loading machine at 
which the plaintiff M. was working in the defendant's cartridge works, there 
being evidence that the machine worked imperfectly, and that M. was not 
negligent. McArthur v. Dominion Cartridge Co., 74 L. J. P. C. 30; [1905] 

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678 Action for Negligence. 

"Where, however, a person places himself voluntarily in a dangerous place, 
he is then subject to all the risks of his situation, for the maxim " Volenti 
non fit injuria " applies. See Membery v. Gt. W. Ry., 58 L. J. Q. B. 563; 
14 App. Cas. 179. Thus, where A., a stranger, while watching the 
defendant's workmen, so placed himself, that a loaded bucket used in the 
work, passed over his head, and the chain which carried it breaking, it fell 
and killed him, the defendant was held not liable. Batchelor v. Fortescue, 
11 Q. B. D. 474. A railway company was held not liable to the plaintiff, the 
servant of their contractor, for injury ficcasioned to him by their negligence 
in the course of his employment on their line, the plaintiff knowing the 
danger of the emijloyment. Woodley v. Metropolitan District Ry. 46 L. J. 
Ex. 621 ; 2 Ex. D. 384. This case has been explained on the ground that 
the plaintiff there had the means of avoiding the danger. See Thrussell v. 
Handyside, 57 L. J. Q. B. 347 ; 20 Q. B. D. 359. And where in a similar 
case the plaintiff had no such means, without giving up his employment, and 
continued it, in obedience to his master's orders, he was held not to be volens 
within the meaning of the maxim, and was entitled to recover. S. C. See 
Smith V. Baker, 60 L. J. Q. B. 683 ; [1891] A. C. 325. Where the extent 
of the danger is not known, the maxim does not apply. Osborne v. L. <£■ N. 
W. Ry., 57 L. J. Q. B. 618; 21 Q. B. D. 220; nor where injury arises from 
the breach of a statutory duty. Baddeley v. Granville (Earl), 56 L. J. 
Q. B. 601 ; 19 Q. B. D. 423. 

The defendant sent bales to a warehouse, where they were insecurely 
piled under the direction of the warehouse-keeper, so that the plaintiff, a 
servant of the owner of the warehouse, was injured, it was held that the 
defendant was not liable. Murphy v. Caralli, 3 H. & G. 462; 34 L. J. 
Ex. 14. So, where the defendant employs a stevedore to load his vessel, 
he is not liable for the negligence of one of his own crew, employed by the 
stevedore. Murray v. Currie, 40 L. J. C. P. 26 ; L. E. 6 C. P. 24 ; Manning 
V. Adams, W. N. 1883, p. 223. See Goslin v. Agricultural Hall Co., 45 L. J. 
C. P. 354 n. ; 1 C. P. D. 482, and Rourke v. White Moss Colliery Co., 
46 L. J. C. P. 283 ; 2 C. P. D. 205. Where the pauper inmate of a work- 
house in assisting, by order of the labour master, in work being carried out 
therein by the guardians, was injured through the negligence of the work- 
house of&cials engaged in the work, the guardians were held not liable. 
Tozeland v. W. Ham Guardians, 76 L. J. K. B. 514; [1907] 1 K. B. 920. 
As to injury caused to the plaintiff by the negligence of a nurse hired from 
a nursing association or hospital, see Hall v. Lees, 73 L. J. K. B. 819; 
[1904] 2 K. B. 602; Hillyer v. St. Bartholmnew' s Hospital, 78 L. J. K. B. 
968; [1909] 2 K. B. 820; Foote v. Greenock Hospital, [1912] 
S. C. 69 ; or by the want of reasonable care and skill of the 
visiting physician of a fever hospital in discharging a patient in an 
infectious state. Evans v. Liverpool Cor., 74 L. J. K. B. 742; [1906] 
1 K. B. 160. Where the plaintiff's child approached an isolation hospital 
by crawling under a wire fence and caught diphtheria, it was held that there 
was no evidence of negligence on the part of the hospital authority to go to 
the jury. Sherwell v. Alton District Council, 25 T. L. E. 417. 

Where the defendants, D., gratuitously let the consignee of heavy goods, 
use a crane, which broke, and let a stone fall on B., who had voluntarily 
assisted the consignee to unload, it was held that B. could not sue D., 
although they knew of the defective state of the crane ; for there was no 
fraud, nor was B. a party to any contract with D. Semb. the consignee 
might have sued defendants, if he had been injured by it. Blakemore v. 
Bristol dt Exeter By., 8 E. & B. 1035; 27 L. J. Q. B. 167. So, where the 
defendant A. having erected a scaffold, in order to pull down a house, 
employed B. to do some part of the work, and for that purpose gratuitously 
allowed him the use of the scaffold, which, owing to some defect not known 
to A., fell, and the plaintiff, one of B.'s workmen, was injured; held that A. 
was not liable. MacGarthy v. Young, 6 H. & N. 329; 30 L. J. Ex. 227. 
Coughlin v. Gillison, 68 L. J. Q. B. 147 ; [1899] 1 Q. B. 145. But where 

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Miscellaneous Cases of Negligence. 679 

a ship was received into A.'s dock, for repairs, and staging was provided by 
A. for immediate use, for work on the ship, A. was held to be under an 
obligation, to all persons, who should use the staging for work on the ship, to 
take reasonable care that at the time the staging was provided, it was in a 
fit state to be used; the obligation arises from an " invitation," by A., to 
such persons who use the staging, and for breach of the obligation they can 
sue A. Heaven v. Pender, 52 L. J. Q. B. 702; 11 Q. B. D. 503. See also 
Marney v. Scott, 68 L. J. Q. B. 736 ; [1899] 1 Q. B. 986. So, where a dock 
company provide gangways from the shore, to the ships lying in their dock, 
the gangways beihg under the control of their servants, the company are' 
bound, as against persons having business on board those ships, to keep the 
gangways reasonably safe. Smith v. L. S S. Katherine's Docks Co., 
37 L. J. C. P. 217; L. E. 3 C. P. 326. So, where a colliery owner, H., 
consigned coals to his vendee by rail, in a truck hired by H. of M., which H. 
had negligently allowed to leave the colliery in a defective state, and E., a 
servant of the vendee, was in consequence of the defect injured in unloading 
the coal, H. was held liable to B. Elliott v. Hall, 54 L. J. Q. B. 518; 
15 Q. B. D. 315. As to the liability of M., see Caledonian By. Co. v. 
Mulholland, 67 L. J. P. C. 1; [1898] A. C. 216. Where a horse of known 
vicious propensity is let out, the owner is under a duty to warn not only 
the person who hires it, but any person who he know's or contemplates will 
use it. White v. Steadman, 82 L. J. K. B. 846; [1913] 3 K. B. 340. 
Where a person erects a stand, to which he admits others, on payment, to 
view races, &c., the contract between him, and the person admitted, is 
analogous to the contract between a carrier and passengers, and there is an 
implied warranty, not only of due care on the part of himself and servants, 
but also on the part of any independent contractor, who may have been 
employed by him, to construct the means of conveyance or support. Francis 
V. Cockrell, 39 L. J. Q. B. 291 ; L. E. 5 Q. B. 501. See also Kiddle v. 
Lovett, 16 Q. B. D. 605. Where the defendant for valuable consideration 
allows a ship, for the purpose of unlading, to lie at his jetty in a tidal river, 
so that she grounds at each low tide, there is an implied undertaking that 
he has taken reasonable care to ascertain that the bottom of the river at the 
jetty was in such a condition as not to endanger the ship. The Moorcock, 
68 L. J. P. 73; 14 P. D. 64; The Beam, 75 L. J. P. 9; [1906] P. 48. The 
Calliope, 60 L. J. P. 28; [1891] A. C. 11. So, where a dockowner allows a 
ship to be grounded in his dock for repairs, it is implied that the bottom of 
the dock is fit for the purpose. The Apollo, 61 L. J. P. 25 ; [1891] A. C. 499 ; 
The Lancastrian, 32 T. L. E. 655. In such cases, 63 & 64 V. c. 32, s. 2, 
provides a limitation of liability in respect of the damage done to the ship. 
Where, however, a livery-stable keeper undertakes for reward to receive, and 
take care of, a carriage of the plaintiff, he is bound, only to take reasonable 
care, that any building in which it is deposited is in a proper state; he does 
not warrant that it is absolutely safe. Searle v. Laverick, 43 L. J. Q. B. 43; 
L. E. 9 Q. B. 122. The obligation of an innkeeper as to his premises is the 
same, viz., that they are as safe as reasonable care and skill can make them. 
Maclennan v. Segar, 86 L. J. K. B. 1113 ; [1917] 2 K. B. 325. 

In Warrant v. Barnes, 11 C. B. (N. S.) 553; 31 L. J. C. P. 137, the 
defendant sent a carboy of nitric acid to a railway carrier, to be carried ; the 
carboy, after passing through different hands, burst, and injured the plaintiff, 
who was carrying it; it was held that the defendant was liable, because he 
had not taken reasonable care, to make the carrier's servants aware of the 
dangerous character of the acid. Similarly when by the negligence of the 
defendants dangerous goods were wrongly delivered to the plaintiff and 
damage was occasioned to him thereby, the defendants were held liable. 
Macdonald v. Macbrayne, [1916] S. C. 716. See also British South Africa 
Go. V. Lennon, 85 L. J. P. C. 111. So, where a gasfitter. A., negligently 
fitted a gas-pipe, so that gas escaped, and an explosion occurred, which 
injured the plaintiff, A. was held liable, on the ground that he was guilty of 
It breach of duty, in degj/ggf;-^^ jfe^ M^^Sbf^f^^^^^ dangerous, without 



680 Action for Negligence of Fellow Servants. 

due care. Parry v. Smith, 48 L. J. C. P. 731 ; 4 C. P. D. 325. See also 
Dominion Natural Gas Go. v. Collins, 79 L. J. P. C. 13; [1909] A. C. 640. 
Where the plaintiff bought hairwash of the defendant, to be used by the 
plaintiff's wife, on the representation by the defendant that it was innocuous, 
and skilfully prepared by him, an action was held to be maintainable by the 
husband and wife, the wife having been injured by the hairwash, which was 
negligently prepared by the defendant. George v. Skivington, 39 L. J. Ex. 
8; L. E. 3 Ex. 1; and see judgment in Longmeid v. Holliday, 6 Ex. 761; 
20 L. J. Ex. 430; Blacker v. Lake, 106 L. T. 533; Bates v. Batey, 82 L. J. 
Q. B. 963; [1913] 3 K. B. 351. And on a contract of sale the vendor has 
" a duty, if there is some dangerous quality in the goods sold, of which he 
knows, but of which the purchaser cannot be expected to be aware, of taking 
reasonable precautions in the way of warning the purchaser that special care 
will be required." Clarke v. Army & Navy Co-operative Soc, 72 L. J. 
K. B. 153, 157 ; [1903] 1 K. B. 155, 164. As to damages for breach of duty 
to recommend a " good stockbroker," see De la Bere v. Pearson, 77 L. J. 
K. B. 380 ; [1908] 1 K. B. 280. The principle of the above cases cannot be 
extended to the giving by the surveyor, G., to a builder, B., of an erroneous 
certificate as to the progress of buildings being erected by B., so as to make 
G. liable to B.'s mortgagee, L., for damage sustained by advances being 
made by M. , on the faith of the certificate, there being no contract between 
L. and G., nor any duty owed by G. to L. to exercise due care in giving his 
certificate; Le Lievre v. Gould, 62 L. J. Q. B. 353; [1893] 1 Q. B. 4'91. As 
to the obligations of auditors and accountants employed to investigate the 
condition of a business, see Henry Squire Cash Chemist v. Ball, Baker d Co., 
27 T. L. R. 269; and Fox v. Morrish, Grant S Co., 35 T. L. E. 126. As to 
the damages recoverable by the employer against the architect for negligence 
in preparing plans for him, see Columbus Go. v. Clowes, 72 L. J. K. B. 330; 
[1903] 1 K. B. 244. 

Where a water company were bound to supply water to a house by a main 
and certain apparatus, andlpart of the apparatus became inoperative , by reason 
of a frost of unusual severity, whereby the water overflowed into the lower 
part of the house, no action was held to lie by the occupier, the apparatus 
having been sufficient in ordinary winters. Blyth v. Birmingham Water- 
works Co., 11 Ex. 781; 25 L. J. Ex. 212. See Harrison v. Gt. N. By., 
3 H. & C. 231 ; 33 L. J. Ex. 266 ; and Nichols v. Marsland, 46 L. J. Ex. 174 ; 
2 Ex. D. 1. If a person interferes with the course of a stream it is his duty 
to see that the works which he substitutes for the natural channel are adequate 
to carry off the water brought down even by an extraordinary rainfall, and if 
damage results from the deficiency of the substitution, he will be liable. 
Greenock Cor. v. Caledonian By., 86 L. J. P. C. 185; [1917] A. G. 556. 

As to an action by B. against a witness for negligently giving false 
evidence which caused B.'s conviction. See Bynoe v. Bank of England, 
71 L. J. K. B. 208; [1902] 1 K. B. 467. 



Negligence of Fellow Servants. 

A master, although liable for the negligence of a servant, acting in the 
course of his employment, is not, at common law, generally responsible for an 
injury sustained by that servant, owing to the negligence of a fellow servant 
engaged with him in a common employment, of whatever grade, provided the 
two are fellow servants. Cribb v. Kynoch, 76 L. J. K. B. 948 ; [1907] 
2 K. B. 548. This rule has been modified by the Employers' Liability Act, 
1880, which is dealt with later. 

Where one servant overloaded a cart, whereby it broke down, and injured 
the plaintiff, another servant, it was held that no action lay against the 
master. Priestly v. Fowler, 7 L. J. Ex. 42 ; 3 M. & W. 1. So, where a 
bricklayer's labourer, fell from a scaffold, insufficiently erected by his fellow 
labourers in the same employment. Wigmore v. Jay, 19 L. J. Ex. 300; 



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Negligence of Fellow Servants. 681 

5 Ex. 354. The defence is good although the plaintiff is an infant. Young v. 
Hoffman, dc. Co., 76 L. J. K. B. 993; [1907] 2 K. B. 646. If a stranger 
volunteer his services, to assist such servants or labourers, and thereby suffer 
injury from their negligence, the master cannot be sued. Degg v. Midland 
Ry., 1 H. & N. 778; 26 L. J. Ex. 171; Potter v. Faulkner, 1 B. & S. 800; 
31 L. J. Q. B. 30. But a person who, with the consent of a railway company, 
assists in unloading goods consigned to him by their line, is not a volunteer 
within this rule. Wnght v. L. S N. W. By., 45 L. J. Q. B. 570; 1 Q. B. D. 
252; Williams v. Linotype Co., 84 L. J. K. B. 1620; Hayward v. Drury 
Lane Theatre, 87 L. J. K. B. 18; [1917] 2 K. B. 899. The master is not 
liable to his servant, for an accident happening in the service, in consequence 
of the alleged inadequacy of the number of servants to assist him in his work. 
Skipp V. E. Counties Ry., 9 Ex. 223; 23 L. J. Ex. 23. Nor is he liable 
where the plaintiff, knowing the danger of the work, voluntarily encounters 
it; for " Volenti non fit injuria." Thomas v. Quartermaine , 56 L. J. Q. B. 
340 ; 18 Q. B. D. 685. Mere continuance at the work, with knowledge of 
the risk, is not conclusive evidence that it was voluntarily undertaken. 
Yarmouth v. France, 57 L. J. Q. B. 7 ; 19 Q. B. D. 647 ; Smith v. Baker, 
60 L. J. Q. B. 683 ; [1891] A. C. 325. Thus where the workman, S., engaged 
as B.'s servant, in an employment, not in itself dangerous, is exposed to 
danger, of which he knows, from other work of B., over which S. has no 
control, whether S. undertook the risk is a question of fact. S. C. In this " 
case the danger arose from the systematic neglect to give S. warning to get 
out of the way of stones hoisted over his head, one of the stones having fallen 
on and injured him. So, where the work was dangerous owing to the absence 
of proper means of access to an elevated tramway. Williams v. Birmingham, 
do. Co., 68 L. J. Q. B. 918; [1899] 2 Q. B. 338. See also Thrussell v. 
Handyside, 57 L. J. Q. B. 347; 20 Q. B. D.-359. As to knowledge of the 
extent of the danger, see Osborne v. L. d N. W. Ry., 57 L. J. Q. B. 618; 
21 Q. B. D. 220. 

To make a master liable to his servant or workman, there must be personal 
negligence, or interference of the master, or a special contract. Ormond v. 
Holland, E. B. & B. 102. The negligence of the vice-principal, or repre- 
sentative of the master, will not make the latter liable. Wilson v. Merry, 
li. E. 1 H. L. Sc. 326; Howells v. Landore Siemen's Steel Co., 44 L. J. 
Q. B. 25 ; L. E. 10 Q. B. 62. But one of the two co-proprietors of a mine was 
held liable for the personal negligence of the other. Ashworth v. Stanwix, 
3 B. & B. 701 ; 30 L. J. Q. B. 183 ; Mellors v. Shaw, 1 B. & S. 437 ; 30 L. J. 
Q. B. 333. 

The master is, however, bound to exercise due care and caution in the 
choice of his servants, otherwise he may become liable in respect of his own 
negligence, in this respect. Tarrant v. Webb, 18 C. B. 787; 25 L. J. C. P. 
261; see Allen v. New Gas Co., 45 L. J. Ex. 668; 1 Ex. D. 251. And he is 
bound to take all reasonable precautions, to secure the safety of his workmen. 
Brydm v. Stewart, 2 Macq. 30 ; Smith v. Baker, 60 L. J. Q. B. 683 ; [1891] 
A. C. 325, and Williams v. Birmingham, dc., Co., 68 L. J. Q. B. 918; [1899] 
2 Q. B. 338. Thus, if he provide bad timber for a scaffold, he may be liable. 
Roberts v. Smith, 26 L. J. Ex. 319 ; 2 H. & N. 213. So, if he allow the 
servant, to use a machine, he knowing it to be unsafe and unprotected. 
Watling v. Oastler, 40 L. J. Ex. 43; L. R. 6 Ex. 73. The master was held 
not liable, where he did not know it to be in an unsafe state. Griffiths v. 
L. d S. Kathenne's Dock Co., 53 L. J. Q. B. 504; 13 Q. B. D. 259; Canadian 
Pacific Ry. -v. Frichette, 84 L. J. P. C. 161 ; [1915] A. C. 871 ; but if after an 
accident he inquires about safety appliances which might prevent similar 
accidents, but does not adopt any of them, and subsequently a similar 
accident occurs, this is evidence entitling the jury to find an absence of 
reasonable care on his part. Toronto Power Co. v. Paskwan, 84 L. J. P. C. 
148 ; or where the master has seen an obviously dangerous thing substituted 
for a safe thing and dnes Bpt interfere he is liable. Monaghan v. Rhodes, 
89 L J K B 379 ; lim^ClZSMl)i^JQS01W^Mhe plaintiff has not under- 



682 Action for Negligence of Fellow Servants. 

taken or consented to take upon himself the risks arising from continuing to 
use the dangerous thing, the master is liable. Baker v. James, [1921] 
2 K. B. 674. In the last-cited case, Griffith v. London S St. Katherine's 
Dock Co., supra, was disapproved. In Senior v. Ward, 1 B. & E. 385; 
28 L. J. Q. B. 139, one of the defendant's colliers carelessly used a, damaged 
rope, to go down a mine, after being warned to try it first ; it was held that 
defendant, the owner, was not liable for injury caused by the breaking of the 
rope, although defendant had neglected to try it daily, as he was bound to 
do, by the rules of the mine; see also observations in Abraham v. Reynolds, 
5 H. & N. 143. Plaintiff, a stonemason, in the defendant's mill, which had 
been built a year before under the superintendence of their clerk, was injured 
by an accident, owing to the weakness of its foundations : it was held that in 
the absence of personal negligence of the defendants, or of some person acting 
as their servant, or by their orders, either in having given directions how 
the building should be constructed, or in having knowingly entrusted the 
execution of the work to an incompetent workman, the defendants were not 
liable. Brown v. Accrington Cotton Spinning Co., 3 H. & C. 511; 34 Iv. J. 
Ex. 208. See further, Dynen v. Leach, 26 L. J. Ex. 221. In consequence 
of the erection of a hoarding by a contractor, which projected too far, and 
was consequently knocked down by a passing carriage, one of the contractor's 
labourers, was injured inside the hoarding. It was held that no action lay by 
him against his master, the cause of injury being too remote, and the plaintiff 
being a voluntary workman with a full knowledge of the circumstances. 
Assop V. Yates, 2 H. & N. 768; S. C. suh nom. Alsop v. Yates, 27 L. J. 
Ex. 156; Searle v. Lindsay, 11 C. B. (N. S.) 429; 31 L. J. C. P. 106. 
Where the owner has machinery, which he is under a statutory liability to 
fence, in an unfenced state, he is responsible to a servant, who has, without 
negligence on his part, suffered injury through the machinery being unfenced. 
Groves v. Wimborne (Lord), 67 L. J. Q. B. 862; [1898] 2 Q. B. 402. In such 
case it is no defence that the machine, which was originally fenced, had 
become unfenced through the negligence of a fellow servant. S. C. ; or that 
h is impracticable in a commercial sense or mechanically impossible to fence 
it securely. Davies v. Owen, 88 L. J. K. B. 887 ; [1919] 2 K. B. 39. See 
also Holmes v. Clarke, 7 H. & N. 937; 31 L. J. Bx. 356. Where an 
employer has employed an unqualified person in breach of his statutory duty, 
or has not appointed competent persons, he cannot rely on the defence of 
common employment if an accident to a servant is caused or contributed to 
by the conduct of the unqualified person. Butler v. Fife Coal Co., 81 L. J. 
P. C. 97; [1912] A. C. 149; Jones v. Canadian Pacifio By., 83 L. J. P. C. 
13. 

The following cases illustrate the meaning of the term fellow servants 
engaged in a common employment : — A servant of a railway company 
travelling on their business, in one of their trains, was held to be the fellow 
servant of those who had charge of the train ; so the ganger of the platelayers, 
whose business it was to keep the permanent way in repair, and the guard of 
a train, were held to be fellow labourers, so as to exempt the company from 
liability for hurt received by one owing to the negligence of the other ; 
Hutchinson v. York, £c. By., 19 L. J. Bx. 296; 5 Bx. 343; Waller v. 5. E. 
Ry., 2 H. & C. 102; 32 L. J. Ex. 205; see also Lovegrove v. L. Brighton d 
S. C. Ry., 16 C. B. (N. S.) 669; 33 L. J. C. P. 329. The same principle 
applies although the accident occurs while the servant is on his way home 
after his work is done for the day in a train provided by the employers. 
Tunney v. Midland Ry., 1,. E. 1 C. P. 291; Coldrick v. Partridge, 79 L. J. 
K. B. 173; [1910] A. C. 77. So, a person in the employment of a railway 
company, engaged in painting a shed on their premises, is the fellow servant 
of a person who was employed to turn carriages on a turn-table. Morgan v. 
Vale of Neath Ry., 5 B. & S. 570; 33 L. J. Q. B. 260; L. K. 1 Q. B. 149. 
A foreman is a fellow labourer with the men whose work he superintends, 
for the purposes of this rule of non-liability of the master. Gallagher v. 
Piper, 16 C. B. (N. S.) 669; 33 L. J. C. P. 329. Feltham v. England, 

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Negligence of Fellow Servants— The Employers' Liability Act, 1880. 683 

li. E. 2 Q. B. 33. So is a manager. Wilson v. Merry, L. E. 1 H. L. Sc. 
326; Howells v Landore Siemen's Steel Co., 44 L. J. Q. B. 25; L. E. 
10 Q. B. 62. So ia the certificated manager of a coal mine, appointed as 
required by 35 & 36 V. u. 76, s. 26. S. C. So the master of a ship and her 
crew are engaged in a, common employment. Hedley v. Pinkney, 63 L. J. 
Q. B. 419; [1894] A. C. 222. So are an actor and a scene-shifter at the 
theatre. Burr v. Theatre Royal, Sc., 76 L. J. K. B. 4-59; [1907] 1 K. B. 
544; but an artiste who attends rehearsal, not under contract, but in the hope 
of obtaining a professional engagetaent, is not in common employment with 
a servant of the person producing the entertainment. Hayward v. Drury 
Lane Theatre, 87 L. J. K. B. 18 ; [1917] 2 K. B. 899. 

The immunity of the master A. from liability for injury caused to C. by 
the negligence of his servant B. extends only to cases in which C. is also his 
servant, and B. and C. are engaged in a common employment ; where C. 
is not A.'s servant A. is liable to him for B.'s negligence. Thus where two 
railway companies X. and Y. had the common use of a station : A., a 
servant of the X. Co., was crushed while working at the station, by a train 
of the Y. Co. ; the jury found no negligence on the part of A. , but only 
negligence of the Y. Co. , by reason of a want of better rules for the direction 
of their servants ; both companies used the same rules ; the plaintiff was held 
entitled to recover. Vose v. Lancashire, Sc. Ry., 2 H. & N. 728; 27 L. J. 
Ex. 249; see also Warburton v. Ot. W. Ry., 36 L. J. Ex. 9; L. E. 2 Ex. 
30 ; Swainson v. N. E. Ry., 47 L. J. Ex. 372 ; 3 Ex. D. 341. So where the 
plaintiff, who was a servant in the employment of a carter, was sent by 
the defendant to fetch cotton from a warehouse, and while loading his cart, 
was injured, by the carelessness of men in the defendant's service; it was 
held that the defendant was liable on the ground that the plaintiff was not 
a fellow servant of those who injured him. Abraham v. Reynolds, 5 H. & N. 
143. So where the injury was caused to the plaintiff, the servant of H. , who 
had contracted to build a house for L., by the negligence of a servant A. of 
the defendant, a person selected by L.'s architect and employed, under the 
terms of the contract, to lay the roof at a price to be paid by H., the 
defendant was held liable, on the same ground. Johnson v. Lindsay, 
'il L. J. Q. B. 90; [1891] A. C. 371. The defendant F., a contractor for a 
building, employed M. to do piecework under him, and M. employed W. on 
the work ; one of P.'s servants X. in the course of his work, dropped a heavy 
instrument on W. and thereby killed him ; it was held that no action lay by 
W.'s executors against E. on the ground that W. and X. were fellow 
servants. Wiggett v. Fox, 11 Ex. 832; 25 L. J. Ex. 188. In this case F. 
paid W.'s wages, and had control over him, and the right to dismiss him, see 
per Channell, B., 5 H. & N. 149, 150, but the case and this explanation were 
doubted by Cockburn, C.J., in Rourke v. White Moss Colliery Co., 46 L. J. 
C. P. 283 ; 2 C. P. D. 205. It is only, however, on this state of facts that 
the decision can be supported. See observations in Smith v. Baker, 60 L. J. 
Q. B. 683; [1891] A. C. 379, 383. A pilot, oompulsorily taken on board a 
ship, is not a fellow servant with the officers and crew of the ship. Smith v. 
Steele, 44 L. J. Q. B. 60; L. E. 10 Q. B. 125; nor are the latter fellow 
servants with the servants of the stevedore employed to discharge the ship. 
Cameron v. Nystrom, 62 L. J. P. C. 85 ; [1893] A. C. 308 ; Union S. Ship 
Co. V. Claridge, 63 L. J. P. C. 56 ; [1894] A. C. 185. So where a shipowner 
has two ships, A. and B., the seamen navigating A. are not fellow servants 
with those navigating B., when A. negligently runs down B. at anchor in 
an estuary; The Petrel, 62 L. J. P. 92; [1893] P. 320. The pauper inmate 
of a workhouse assisting by order of the labour master, in work being carried 
out by the guardians therein, is not a fellow servant with the workhouse 
officials engaged in the work. Tozeland Y. W. Ham Guardians, 76 L. J. 
K. B. 514; [1907] IK. B. 920. 

The Employers' Liability Act, 1880.] By this Act (43 & 44 V. u. 42), the 
liability of masters tcCto^'z^f^ta^sjU^gyO^jj/jS^Bustained in the course of 



684 Action for Negligence of Fellow Servants. 

their employment, has been considerably enlarged. The amount of compensa- 
tion recoverable, is limited by sects. 3, 5, and written, though not necessarily 
formal, notice of the injury must be given, within six weeks; and the action 
commenced within six months from its occurrence (sects, i, 7). By sect. 6, 
the action " shall be brought in the County Court," but it may be removed 
into a Superior Court, in the same way as other actions, and thus questions 
on the Act may arise at Nisi Prius. 

By sect. 8, " For the purposes of this act, unless the context otherwise 
requires , " — " the expression ' employer ' includes a body of persons corporate 
or unincorporate : the expression ' workman ' means a railway servant, and 
any person to whom the Employers and Workmen Act, 1875, applies." 

By the last-mentioned Act, 38 & 39 V. c. 90, s. 10, " the expression ' work- 
man,' does not include a domestic or menial servant, but, save as aforesaid, 
means any person, who, being a labourer, servant in husbandry, journeyman, 
artificer, handicraftsman, miner, or otherwise engaged in manual labour, 
whether under the age of 21 years or above that age, has entered into, or 
works under a contract with an employer, whether the contract be made 
before, or after the passing of this act, be express or implied, oral or in writ- 
ing, and be a contract of service or a contract personally to execute any work 
or labour." The Employers' Liability Act, 1880, does not extend to seamen 
and apprentices. Gorbett v. Pearee, 73 L. J. K. B. 885 ; [1904] 2 K. B. 422; 
Macbeth v. CUslett, 79 L. J. K. B. 376; [1910] A. C. 220. 

To ascertain if the plaintiff is a " workman " within the above definition, 
his real and substantial business must be considered, and not what he may 
do incidentally in the course of his employment. Bound v. Lawrence, 
61 L. J. M. C. 21 ; [1892] 1 Q. B. 226. The term includes a person whose 
duty it is to drive the defendant's carts, and load and unload goods therein 
in the course of the business of the defendant his master, a wharfinger. 
Yarmouth v. France, 57 L. J. Q. B. 7 ; 19 Q. B. D. 647. It does not include 
a grocer 's assistant whose duty is to serve customers in a shop and to perform 
other acts involving manual labour, as to make up parcels and carry them 
to the cart at the door and to bring up goods from the cellar. Bound v. 
Lawrence, supra. Nor the conductor of an omnibus; Morgan v. L. General 
Omnibus Co., 53 L. J. Q. B. 352 ; 13 Q. B. D. 832 ; nor the driver of a tram- 
car; Cook V. N. Metropolitan Tramways Co., 56 L. J. Q. B. 309; 18 Q. B. D. 
683 ; nor the guard of a goods train ; Hunt v. Gt. N. Ry., 60 L. J. Q. B. 216 ; 
[1891] 1 Q. B. 601; nor a person hired to develop mechanically his employer's 
inventions, and to originate inventions ; Jackson v. Hill, 13 Q. B. D. 618. 
The term, however, includes one who has contracted personally to execute 
manual work, although he is assisted by others, whom he selects and pays. 
Grainger v. Aynsley, and Bromley v. Tarns, 50 L. J. M. C. 48; 6 Q. B. D. 
482. See also Stuart v. Evans, infra. A sempstress who works at a sewing 
machine and heats irons on a stove and irons materials , is a person ' ' engaged 
in manual labour." Maynard v. Peter Robinson, Ltd., 89 L. T. 136. The 
driver of a motor omnibus who also repairs it. Smith v. Associated Omnibus 
Co., 76 L. J. K. B. 574; [1907] 1 K. B. 916. A workman employed by a 
sub-contractor B. to do work, which B. has contracted to do for F., does not 
work under a contract with F., under sect. 10. Marrow v. Flimby, dc. 
Brick Co., 67 L. J. Q. B. 976; [1898] 2 Q. B. 588; Fitzpatrick v. Evans, 
71 L. J. K. B. 302; [1902] 1 K. B. 505. 

Sect. 1. " Where after the commencement of this Act personal injury is 
caused to a workman. 

" (1.) By reason of any defect in the condition of the ways, works, 
machinery, or plant connected with or used in the business of the 
employer; or 

" (2.) By reason of the negligence of any person in the service of the 
employer, who has any superintendence entrusted to him, whilst in 
the exercise of such superintendence ; or 

"(3.) By reason of the negligence of any person in the service of the 
employer, to whose orders or directions, the workman, at the time of 

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The Employers' Liability Act, 1880. 685 

the injury waa bound to conform, and did conform, wliere sucli injury 
resulted from his having so conformed ; or 
(4.) By reason of the act, or omission of any person, in the service of the 
employer, done or made in obedience to the rules, or by-laws, of the 
employer, or in obedience to particular instructions, given by any 
person delegated with the authority of the employer in that behalf ; or 
" (5.) By reason of the negligence of any person in the service of the 
employer, who has the charge, or control of any signal, points, loco- 
motive engine, or train upon a railway, 
" the workman, or in case the injury results in death, the legkl personal 
representatives of the workman, and any persons entitled in case of death, 
shall have the same right of compensation, and remedies against the employer, 
as if the workman had not been a workman of, nor in the service of the 
employer, nor engaged in his work." 

The effect of this section is to negative the implied contract, that the 
employer shall not be liable for the negligence of a fellow workman ; it does 
not prevent the workman from making an express contract with his employer 
to that effect. Griffiths v. Dudley (Earl), 51 L. J. Q. B. 543; 9 Q. B. D. 
57. Where the workman has made such contract, his widow cannot sue 
for damages under the Fatal Accidents Act, 1846. S. C. Contributory 
negligence of the workman is a defence. See Stuart v. Evans, 49 L. T. 138 ; 
Wehlin v. Ballard, 55 Li. J. Q. B. 395 ; 17 Q. B. D. 122. So where, with 
full knowledge of the dangerous character of the work, he voluntarily under- 
takes it, he cannot sue -for resulting injury; for " Volenti non fit injuria;" 
Thomas v. Quartermaine, 56 L. J. Q. B. 340; 18 Q. B. D. 685; unless it 
arise from the master's neglect of a statutory precaution. Baddeley v. 
Granville (Earl), 56 L. J. Q. B. 501 ; 19 Q. B. D. 423. As to who is volens 
within this maxim, see Yarmouth v. France, 57 L. J. Q. B. 7 ; 19 Q. B. D. 
647, and Smith v. Baker, 60 L. J. Q. B. 683 ; [1891] A. C. 325, and Membery 
V. Gt. W. By., 58 L. J. Q. B. 563; 14 App. Gas. 179, and Thrussell v. 
Handyside, 57 L. J. Q. B. 347; 20 Q. B. D. 859. 

" Any defect in the condition of the ways," in sect. 1 (1), &c., means one 
of a permanent or quasi permanent nature. M'Giffin y. Palmer's Ship- 
building Co., 52 L. J. Q. B. 25; 10 Q. B. D. 5. An obstruction, caused by 
an object which has fallen on the way, and could be at once easily removed, 
is not such a defect. S. C. Nor is the temporary removal of the lid, covering 
a pit lying in the course of the way. Willetts v. Watt, 61 L. J. Q. B. 540; 
[1892] 2 Q. B. 92. But the improper removal of a guard to dangerous 
machinery, whereby an accident arose, is such defect. Tate v. Latham, 
66 L. J. Q. B. 349; [1897] 1 Q. B. 502. The sub-section includes a case 
where a machine, although in the state in which it was constructed and 
intended to be, is not fit for the purpose to which it was applied. Heske v. 
Samuelsm, 53 L. J. Q. B. 45; 12 Q. B. D. 30; Cripps v. Judge, 53 L. J. 
Q. B. 517; 13 Q. B. D. 583; Paley v. Gamett, 16 Q. B. D. 52. So also a 
machine which is broken down and not in use. Thompson v. City Glass 
Bottle Co., 71 L. J. K. B. 145; [1902] 1 K. B. 233. So also machinery 
which though safe for those working it, is dangerous to other workmen 
employed in the business. Smith v. Baker, 60 L. J. Q. B. 683, 694, 695; 
[1891] A. 0. 325, 354. The term " way " includes any part of a shop where 
workmen are employed, which it is their duty to traverse in the course of 
their work. Willetts v. Watt, supra. Works merely in the course of con- 
struction, for the employer's business, are not within sect. 1 (1). Howe v. 
Finch, 17 Q. B. D. 187; M'Gowan v. Smith, [1907] S. C. 648. But where 
the defendant was engaged in demolishing a building, and, when partly 
pulled down, one of its walls, owing to not having been shored up, fell and 
injured the plaintiff, who was employed by the defendant on the work, the 
dangerous condition of the wall was held to be a defect in the condition of 
the works within sect. 1 (1). Brannigan v. Robinson, 61 L. J. Q. B. 202; 
[1892] 1 Q. B. 344. " Plant " includes a horse employed in the defendant's 
business for drawing '^f^\^^^9Affy^^'f^/lihfcfW^(^ " defect " in such plant. 



686 Action for Negligence of Fellow Servants. 

Yarmouth v. France, 57 L. J. Q. B. 7 ; 19 Q. B. D. 647. It includes the 
improperly ventilated hold of a vessel. Carter v. Clarke, 78 L. T. 76. The 
employer is not liable merely because the machine is dangerous ; there must 
be a defect implying negligence of the employer, or of some one entrusted by 
him within sect. 2 (1). Walsh v. Whiteley, 57 L. J. Q. B. 686 ; 21 Q. B. D. 
371. See also Greenwood v. Greenwood, 97 L. T. 771. 

In order to come vpithin sect 1 (3), the injury must be the result of 
negligence of the person giving the orders, and of the plaintiff conforming 
to them. Wild v. Waygood, 61 L. J. Q. B. 391; [1892] 1 Q. B. 783. The 
direction in sect. 1 (3) may, without words, be inferred from the previous 
conduct of the parties. Millward v. Midland By., 54 L. J. Q. B. 202; 
14 Q. B. D. 68. Sect. 1 (3) does not include the negligence of a " ganger " 
or foreman of a gang of labourers while he is working with the gang. Kellard 
V. Rooke, 57 L. J. Q. B. 599; 21 Q. B. D. 367. Nor that of a person whose 
only duty is to tell the workmen what work to do, and not where or when 
to do it. Snowden v. Baynes, 59 L. J. Q. B. 325; 25 Q. B. D. 193. 

A man whose duty it is to oil the points of a railway, he with several 
others being under the control of an inspector of the company, has not " the 
charge or control of the points " within the meaning of sect. 1 (5). Gibbs v. 
Gt. W. By., 58 L. J. Q. B. 543; 12 Q. B. D. 208. A person in " charge or 
control of a train," within sect. 1 (5) does not necessarily cease to have such 
charge because part is uncoupled to be dealt with separately. McCord v. 
Cammell, 65 L. J. Q. B. 202; [1896] A. C. 57. Different persons having 
duties to perform to separate parts of the train are within it. S. C. Where 
a train of trucks is moved by A., by means of a fixed engine which he works, 
A. is in charge of a train within sect. 1 (5). Cox v. Gt. W. By., 9 Q. B. D. 
106. " Eailway " is not confined to that of a railway company subject to 
the Eailway Eegulation Acts, but extends to a temporary railroad, laid by a 
contractor, for the purpose of constructing works. Doughty v. Firbank, 
52 L. J. Q. B. 480; 10 Q. B. D. 358. 

Sect. 2, "A workman shall not be entitled under this act, to any right 
of compensation, or remedy against the employer, in any of the following 
cases ; that is to say, 

(1.) Under sect. 1 (1), " unless the defect therein mentioned arose from or 

had not been discovered, or remedied, owing to the negligence of the 

employer, or of some person in the service of the employer, and 

entrusted by him, with the duty of seeing that the ways, works, 

machinery, or plant were in proper condition." 

(2.) Under sect. 1 (4), " unless the injury resulted from some impropriety, 

or defect in the rules , bye-laws , or instructions therein mentioned ; 

provided that where a rule, or bye-law, has been approved, or has been 

accepted as a proper rule, or bye-law, by one of Her Majesty's 

Principal Secretaries of State, or by the Board of Trade or any other 

department of the Government, under or by virtue of any Act of 

Parliament, it shall not be deemed for the purposes of this Act, to 

be an improper or defective rule or bye-law." 

(3.) " In any case, where the workman knew of the defect, or negligence, 

which caused his injury, and failed within a reasonable time to give, 

or cause to be given, information thereof, to the employer or some 

person superior to himself in the service of the employer, unless he 

was aware that the employer, or such superior, already knew of the 

said defect or negligence." 

Where the employer, A., placed a ladder for a purpose for which it was 

insufificient, and injury to a workman resulted, therefrom, it was held there 

was negligence of A. within sect. 2 (1). Cripps Y. Judge, 53 L. J. Q. B. 517 ; 

13 Q. B. D. 583. See also Biddle v. Hart, 76 L. J. K. B. 418; [1907] 

1 K. B. 649. Where, however, A. has employed a competent contractor B., 

to supply plant, he is not liable for an accident caused to C. by B 's 

negligence in constructing it, neither A. nor his foreman knowing that the 

plant was unsafe. Kiddle v. Lovett, 16 Q. B. D. 605. 

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The Employers' Liability Act, 1880. 687 

It seems .that sect. 2 (3), will exonerate the employer from liability in 
some cases in which he would have been liable at common law. Stuart v 
Evans, 49 L. T. 138 ; Weblin v. Ballard, 55 L. J. Q. B. 395 ; 17 Q. B D 122 • 
Smith V. Baker, 60 L. J. Q. B. 694; [1891] A. G. 355, 356. It does not 
extend the master's liability beyond that imposed by sects. 1 and 2 (1). 
Thom.as v. Quartermaine, 56 L. J. Q. B. 340, 347 ; 18 Q. B. D. 685, 693. See 
Yarmouth \. France, 57 L. J. Q. B. 7, 12, 13; 19 Q. B. D. 647, 659. 

Sect. 8. " For the purposes of this act, unless the context otherwise 
requires, the expression ' person who has superintendence entrusted to him,' 
means a person, whose sole or principal duty is that of superintendence, 
and who is not ordinarily engaged in manual labour." If such person be 
guilty of negligence, when voluntarily assisting in manual labour, the 
employer is liable for injury, thereby caused to a fellow- workman. Osborne 
V. Jackson, 11 Q. B. D. 619. A man whose duty it is to guide the beam of 
a crane, by a guy rope, and to give directions when to lower or hoist the 
chains, is not within sect. 1 (2), as defined by sect. 8. Shaffers v. General 
Steam Navigation Co., 62 L. J. Q. B. 260; 10 Q. B. D. 356. Nor is the 
" ganger " or foreman of a gang of labourers while working with his gang. 
Kellard v. Rooke, 57 L. J. Q. B. 599; 21 Q. B. D. 367. 

By sect. 3, "The amount of compensation, recoverable under this act, 
shall not exceed such sum, as may be found to be equivalent to the estimated 
earnings, during the three years preceding the injury, of a person in the 
same grade, employed during those years in the like employment, and in the 
district, in which the workman is employed at the time of the injury." 
Sect. 6 provides that from any such compensa/tion, shall be deducted any 
penalty, paid to the workman, or his representatives, in pursuance of any 
other statute. Sect. 6 excludes prospective earnings. Noel v. Redruth 
Foundry Co., 65 L. J. Q. B. 330; [1896] 1 Q. B. 453. 

Sect. 4, " An action for the recovery under this act of compensation for 
an injury, shall not be maintainable, unless notice that injury has been 
sustained, is given within 6 weeks, and the action is commenced within 
6 months, from the occurrence of the accident causing the injury; or, in 
case of death, within 12 months from the time of death : Provided always 
that in case of death, the want of such notice shall be no bar, to the 
maintenance of such action, if the judge shall be of opinion that there was 
reasonable excuse for such want of notice." 

By sect. 7, " Notice in respect of an injury under this act, shall give the 
name and address of the person injured, and shall state in ordinary language, 
the cause of the injury, and the date at which it was sustained, and shall be 
served on the employer, or, if there is more than one employer, upon one of 
such employers. The notice may be served, by delivering the same to, or at 
the residence, or place of business, of the person on whom it is to be served. 
The notice may also be served by post, by a registered letter, addressed 
to the person, on whom it is to be served, at his last known place of 
residence, or place of business; and, if served by post, shall be deemed 
to have been served at the time, when a letter containing the same, would 
be delivered in the ordinary course of post ; and, in proving the service 
of such notice, it shall be sufficient to prove, that the notice was properly 
addressed and registered. Where the employer is a body of persons, corporate 
or unincorporate, the notice shall be served, by delivering the same at, or by 
sending it by post, in >' registered letter, addressed to the office, or, if there 
be more than one office, any one of the offices of such body. 

" A notice, under this section, shall not be deemed invalid by reason of any 
defect or inaccuracy therein, unless the judge who tries the action, arising 
from the injury mentioned in the notice, shall be of opinion that the 
defendant in the action, is prejudiced in his defence, by such defect or 
inaccuracy, and that the defect or inaccuracy was for the purpose of 
misleading. ' ' 

This notice must be in writing ; Moyle v. Jenkins, 51 L. J. Q. B. 112 ; 
8 Q. B. D. 116; Keen j^.^^u^^a^ g>ocf^C^o.^61^J . Q. B. 277; 8 Q B. D. 

E. — VOL. 11. 4 



688 Action for Negligence of Fellow Servants. 

482 ; and must contain all the particulars required by sect. 7. S. C. It 
seems sufficient if it refer to the particulars contained in another writing. 
S. C. The notice need not state the cause of action. Clarkson v. Musgrave, 
51 L. J. Q. B. 525 ; 9 Q. B. D. 386. A letter giving the date of the injury, 
and stating that the plaintiff had been under medical treatment, " for the 
injury to his leg," was held to be sufficient, being defective. only, within 
the last paragraph of sect. 7. Stone v. Hyde, 51 L. J. Q. B. 452; 
9 Q. B. D. 76. So a notice which omitted the date on which the injury 
was alleged to have been sustained. Carter v. Drysdale, 53 L. J. Q. B. 557; 
12 Q. B. D. 91. 

Workmen's Compensation Act, 1906.] — The Workmen's Compensation 
Act, 1906, 6 E. 7, c. 58 (replacing 60 & 61 V. u. 37), in general enables 
a workman (see sect. 13), by proceedings taken under that Act, to obtain 
compensation from his employers for personal injury by accident, arising 
out of or in the course of his employment, although the employer would 
not previously have been liable therefor. The procedure is by arbitration 
and in the County Court : sect. 1 and schedules. 

By sect. 1 (4) and 2 (1), where, within six months from the occurrence 
of an accident, causing injury, or in the case of death, within six months 
therefrom, an action is brought to recover damages, independently of that 
Act, for injury caused by such accident, and it is determined in such action 
that the employer is not liable therein, but that he would have been liable 
to pay compensation under the provisions of that Act, the action shall be 
dismissed, but the court in which the action is tried shall, if the plaintiff 
so choose, proceed to assess such compensation, and may deduct therefrom 
all the costs caused by the plaintiff bringing the action, instead of proceeding 
under that Act. The certificate of compensation awarded, and of costs 
deducted therefrom, shall have the effect of an award under that Act. An 
action under Lord Campbell's Act, is an action brought to recover damages 
" for injury caused by any accident " within sect. 1 (4) of this Act. Potter 
V. Welsh, 83 L. J. K. B. 1852; [1914] 3 K. B. 1020. The unsuccessful 
plaintiff must elect, at the trial, if he wish to proceed under the above 
proviso ; he cannot subsequently institute fresh proceedings under the Act. 
Edwards v. Godfrey, 68 L. J. Q. B. 666; [1899] 2 Q. B. 333. If he so 
elect, an award of compensation is a bar to an application for a new trial 
of the original action. Neale v. Electric, dtc. Co., 75 L. J. K. B. 974; 
[1906] 2 K. B. 558. Secus where compensation was refused on the ground 
that the Act did not apply. Isaacson v. New Grand {Clapham Junction), 
72 L. J. K. B. 227 ; [1903] 1 K. B. 539. 

Sect. 1 (26), "When the injury was caused by the personal negligence 
or wilful act of the employer or of some person for whose act or default the 
employer is responsible, nothing in this act shall affect any civil liability of 
the employer, but in that case the workman may at his option, either claim 
compensation under this act or take proceedings independently of this act, 
but the employer shall not be liable to pay compensation for injury to a 
workman by accident arising out of and in the course of the employment 
both independently of, and also under this act, and shall not be liable to 
any proceedings independently of this act, except in case of such personal 
negligence or wilful act as aforesaid." The contract by a workman for a 
scheme of compensation under sect. 3 (1), is an exercise of the option under 
sect. 1 (2b), and bars a claim by his representatives for damages under 
43 & 44 V. c. 42. Taylor v. Hamstead Colliery Co., 73 L. J. K. B. 469; 
[1904] 1 K. B. 838. The right of an infant apprentice to sue independently 
of the Act is not barred by the acceptance of such a scheme, where it is not 
for his benefit. Stephens v. Dudbridge Ironworks Co., 73 L. J. K. B. 739; 
[1904] 2 K. B. 225. The filing of a request for arbitration under the 
act, which was withdrawn after the defence had been filed, and before the 
hearing is no bar to such action for damages under 43 & 44 V c 42 Rouse 
V. Dixon, 73 L. J. K. B. 662; [1904] 2 K. B. 628. A claim by the widow 

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Workmen's Compensation Act, 1906— Wrongful Act, dc, causing Death. 689 

°^.a ^^ceased workman to sue under Lord Campbell's Act was barred where, 
with her knowledge and consent, the employers paid the maximum compensa- 
tion under the 1906 Act, and it was invested on behalf of her infant children 
Codling v. Mowlem, 83 L. J. K. B. 1727 ; [1914] 3 K. B. 1055. 

Sect. 6,. "Where the injury for which compensation is payable under 
this act was caused under circumstances creating a legal liability in some 
person other than the employer to pay damages in respect thereof— (1) the 
workman may take proceedings both against that person to recover damages, 
and against any person liable to pay compensation under this act, for such 
compensation, but shall not be entitled to recover both," see Wo'odcock v 
L. d N. W. By., 82 L. J. K. B. 921; [1913] 3 K. B. 139; and (2) the 
person paying such compensation, or who has been called on to pay an 
indemnity under seot. 4, relating to sub-contracting, shall be entitled to be 
indemnified by the person eo liable to pay damages, and the indemnity may 
be enforced by action in the High Court. Evans v. Cook, 74 Li. J. K. B. 95 ; 
[1905] 1 K. B. 58. Thus where a workman is injured by the negligence of a 
fellow workman and receives compensation from his employer, the latter 
has a right to indemnity from the workman who caused the injury. Lees v. 
Dunkerley, 80 L. J. K. B. 135; [1911] A. O. 5. There must be a legal 
liability on the third party before the right to indemnity can be 
invoked. Bradley v. Wallaces, 82 L. J. K. B. 1074; [1913] 3 K. B. 629. 
The right to indemnity applies where the compensation was paid under an 
agreement between the injured workman W. and the employer E., after 
notice of the accident and the claim for compensation had been given by 
W. to B., but without further proceedings. Thompson v. JV. E. Marine 
Engineering Co., 72 L. J. K. B. 222; [1903] 1 K. B. 428. The right to 
indemnity is available notwithstanding that the employer has not served 
notice of his claim upon the third party as required by rules 19 and 24 
of the Workmen's Compensation Rules, 1907 to 1911. Nettleingham v. 
Powell, 82 L. J. K. B. 911; [1913] 3 K. B. 209. As to indemnity on 
payment to dependant of deceased workman, see Smith's Dock Co. v. 
Beadhead, 81 L. J. K. B. 808; [1912] 2 K. B. 323. 



Wrongful Act, Default, or Neglect causing Death. 

By the Fatal Accidents Act, 1846 (usually known as Ld. Campbell's Aqt), 
9 & 10 V. c. 93, 8. 1, whenever the death of a person is caused by wrongful 
act, neglect, or default, which would, if death had not ensued, have entitled 
the party injured to maintain an action, then the person who would have been 
liable, if death had not ensued, shall be liable to an action for damages, 
though the death was caused by an act amounting to felony; and (sect. 2), 
the action shall lie for the benefit of the wife, husband, parent and child of 
the deceased, and in the name of the executor or administrator, and " the 
jury may give such damages as they may think proportioned to the injury, 
resulting from such death to the parties respectively, for whom, and for 
whose benefit, such action shall be brought," and the amount, after deducting 
costs not recovered from the defendant, shall be divided amongst the above 
" parties in such shares as the jury by their verdict shall find and direct." 
By sect. 3, only one action will lie for the same subject of complaint, and it 
must be commenced within 12 calendar months after the death. If the 
action is against a statutory body it must be commenced within the period of 
six months prescribed by seot. 1 (a) of the Public Authorities Protection Act, 
1893. Markey v. Tolworth Joint Hospital Board, 69 L. J. Q. B. 738 ; [1900] 
2 Q. B. 454. The injury or damage in respect of which an action lies under 
the Act of 1846 is the injury or damage to the deceased by the act, neglect or 
default which caused his death, and not the injury or damage resulting from 
his death to the plaintiff. S. C. See, however, this case criticised in British 
Columbia Electric By. v. Gentile, 83 L. J. P. C. 353; [1914] A. C. 1034. 
Sect. 4 requires the delivery to the defendant, of full particulars of the persons 

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690 Action for Wrongful Act, dc, causing Death. 

for whom, and on whose behalf, the action is brought, and the nature of the 
claim. By sect. 5, the word "person," includes corporations; the word 
"parent," includes father, mother, grandfather, grandmother, stepfather, 
and stepmother; and the word " child," includes eon, daughter, grandson, 
granddaughter, stepson, and stepdaughter. It includes a child en ventre 
sa mere; The George and Richard, L. E. 3 Adm. 466; but it does not include 
an illegitimate child, even where its mother is the person killed. Dickenson 
■V. N. E. By. Co., 2 H. & C. 735 ; 33 L. J. Ex. 91. 

By the Fatal Accidents Act, 1864, 27 & 28 V. u. 95, s. 1, where there is no 
executor, or administrator of the person killed, or there being such executor, 
&c., no action is brought within six rrionths by him, the action may be 
brought, by persons beneficially interested in the result of the action. See 
M'Gahe v. G. AT. Ry., [1899] 2 I. E. 123, where the court refused to stay an 
action by one of the next-of-kin before administration was taken out although 
administration was subsequently taken out by another of the next-of-kin and 
a second action brought by him. By sect. 2, money paid into court by the 
defendant may be paid in one sum, without regard to its division into 
shares, and if this sum is not accepted, and the jury think it sufficient, the 
defendant is entitled to a verdict. No provision is made for apportioning 
the amount paid into court, where it is accepted in full satisfaction of the 
claim ; but it would seem that in such case, the court will apportion the 
amounts. See Bulmer v. Bulmer, 53 L. J. Ch. 402; 25 Ch. D. 409, where a 
railway company compromised a claim without action. 

Loss of life, occasioned by collision of ships at sea may be sued for under 
these Acts, subject to the limitation of liability provided by 57 & 58 V. c. 60, 
0. 503. Glaholm v. Barker, 35 L. J. Ch. 259; L. E. 1 Ch. 223. The Acts 
apply to the death of an alien, caused beyond the jurisdiction by the negligence 
of a British subject. Davidson v. Hill, 70 L. J. K. B. 788; [1901] 2 K. B. 
606 dissenting from Adam v. British and Foreign S.S. Co., 67 L. J. Q. B. 844 ; 
[1898] 2 Q. B. 430. By sect. 5 of the Maritime Conventions Act, 1911, pro- 
ceedings in respect of claims for damages for loss of life may be in rem or 
in personam. 

The action is maintainable under these statutes after A.'s death," by his 
personal representative E., only when A. if alive could have sued the defen- 
dant in respect of his injury, for no fresh cause of action arises to E. on A.'s 
death. Hence, when A. had accepted compensation for his injury; Read v. 
Gt^ E. Ry., 37 L. J. Q. B. 278 ; L. E. 3 Q. B. 555, or had agreed to make no 
claim for any damage, if sustained, Griffiths y. Dudley, 51 L. J. Q. B. 
543 ; 9 Q. B. D. 357 ; The Stella, 69 L. J. P. 70 ; [1900] P. 161, or A.'s claim 
would have been barred by 56 & 57 V. c. 61, s. 1 ; Williams v. Mersey Docks 
Board, 74 L. J. K. B. 481; [1905] 1 K. B. 804; E. cannot maintain the 
action. The burden of proof of negligence is on the plaintiff. McKenzie 
V. Chilliwaok Cor., 82 L. J. P. C. 22; [1912] A. C. 888. The depositions 
before the coroner with the verdict and rider of the jury are not admissible 
in evidence in an action under this Act as proof of the defendant's negligence. 
Calmenson v. Merchants' Warehousing Co., [1921] W. N. 59; Bamett 
V. Cohen, [1921] 2 K. B. 461. 

Damages.] The jury, in estimating the damages to be recovered under 
this Act, cannot take into consideration the mental suffering of the survivors, 
or loss of society which they have sustained, but are to award them com- 
pensation for pecuniary loss alone. Blake v. Midland Ry., 18 Q. B. 93; 
21 L. J. Q. B. 233; Patterson v. Wallace, 1 Macq. 748. Therefore, mere 
proof of death and negligence, will give no right even to nominal damages. 
Duckworth v. Johnson, infra. But a reasonable expectation of pecuniary 
advantage, to the surviving relative who sues, may be considered by the 
jury ; as where a surviving parent (who sues as administrator) received 
habitual assistance from his son, who was killed by the accident. Franklin 
V. S. E. Ry., 3 H. & N. 211; Dalton v. Id., 4 C. B. (N. S.) 296; 27 L. J. 
C. P. 227. It is sufficient to prove a reasonable expectation of pecuniary 

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Damages. 691 

benefit if the child had lived. Taff Vale By. v. Jenkins, 82 L. J. K. B. 49; 
[1913] A. C. 1. It is not enough for the plaintiff to prove a mere 
speculative possibility of pecuniary benefit if the child had lived. 
Bamett v. Cohen, [1921] 2 K. B. 461. A husband was held entitled to 
recover damages for pecuniary loss in replacing services rendered 
gratuitously by his wife, who was killed by the defendants' servant's negli- 
gence, there being reasonable ground for believing that but for the death 
the services would have been rendered gratuitously in the future. Berry 
V. Humm, 84 L. J. K. B. 918; [1915] 1 K. B. 627. But the plaintiff 
cannot recover the expenses of the funeral or mourning. Clark v. L. Gen. 
Omnibus Co., 75 L. J. K. B. 907; [1906] 2 K. B. 648; see also Condon 
V. Gt. S. <£• W. Ry., 16 Ir. C. L. E. 418. Proof that the small weekly 
wages of the deceased were contributed towards the expenses of his parent's 
house, is evidence for the jury, though it is not shown whether the sum 
did more than cover the expense of the child's maintenance. Duckworth 
V. Johnson, 4 H. & N. 653; 29 L. J. Ex. 25. A parent can recover only 
where the pecuniary advantage he has lost by the death arose from his 
relationship to the deceased, and not where it was derived from a contract 
between them. Sykes v. N. E. Ry., 44 L. J. C. P. 191. Where a gentle- 
man of fortune was killed, and the only effect of his death was to cause 
his property to be distributed according to the terms of a settlement, the 
bulk of it passing 'to his eldest son, it was held, that though the estate 
survived for the benefit of the family as a whole, yet that if the death 
occasioned to any one of them the loss of future pecuniary benefit which 
might reasonably have been expected, the jury might award compensation 
in respect of such loss. Pym v. Gt. N. Ry., 4 B. & S. 396; 32 L. J. 
Q. B. 377. 

The expectation of life of the deceased, is an element to be considered by 
the jury, in assessing the damages. Rowley v. L. S N. W. Ry., 42 L. J. 
Ex. 153; L. B. 8 Ex. 221. So also is the expectation of life of the claimant. 
Price V. Glynea, dc, Co., 85 L. J. K. B. 1278. But the jury are to take 
a reasonable view of the case, and to give fair compensation, and not to 
treat the damages on the footing of the value of an annuity. Armsworth 
V. S. E. Ry., 11 Jur. 758; see also Phillips v. L. S S. W. Ry., 49 L. J. 
Q. B. 233; 5 Q. B. D. 78. 

Where an action was brought for the benefit of the mother, to whom the 
deceased had covenanted to pay an annuity of j6200 for their joint lives, and 
the deceased was in business, a direction to the jury that they might give as 
damages such a sum as would purchase an annuity of i£200 for the same 
period was held wrong, it being only secured by a personal covenant. Rowley 
V. L. d N. W. Ry., supra. An accountant conversant with the business 
cf life assurance offices, may prove the expectation of life, by reference to 
the Carlisle Tables used by the offices. S. C. A life is primd facie to be 
presumed to be of the average duration. S. C. ; see M' Donald v. M' Donald, 
5 App. Cas. 519. But evidence of the deceased's state of health is admissible 
to rebut this presumption, and to show his real expectation of life. S. C. 
By 8 Ed. 7, c. 7, the amounts received by the parties for whose benefit the 
action is brought, on policies, are not to be taken into account in assessing 
the damages ; nor can a pension which is dependent on the bounty of the 
Crown. Baker v. Dalgleish S.S. Co., [1921] W. N. 269. Where the depen- 
dant of a workman sues under Lord Campbell's Act instead of claiming 
compensation under the Workmen's Compensation Act, the judge in direct- 
ing the jury on the question of damages should not refer to the amount 
of compensation which, having regard to the deceased's earnings, might 
have been recovered under that Act. Price v. Glynea, d-c, Co., 85 L. J. 
K. B. 1278. 

Where money is paid into court under Lord Campbell's Act, and accepted 
in full satisfaction by the plaintiffs, one of whom is a minor, the court can 
apportion the money between the adult and the minor plaintiff, deary v. 
L. & N. W. Ry., H^m^tk^ ^-Microsoft® 



692 Action for Disturbance of Support of Land. 



ACTION FOE DISTURBANCE OF SUPPORT OF LAND. 

It has been laid down in several cases, that, apart from any question o£ 
negligence, no one has a right to deprive the soil of his neighbour, while in 
its original condition, of lateral support. Wilde v. MinsterUy, 2 Roll. Abr. 
664; Wyatt v. Harrison, infra; Hunt v. Peake, John. 705; 29 L. J. Ch. 
785. But the owner A., of land M., has only the right to the support of the 
land N., which is adjacent or neighbouring to M., i.e., of- the land which 
would in its natural state have afforded support to M. ^Birmingham Cor. v. 
Allen, 46 L. J. Ch. 673 ; 6 Ch. D. 284. If, therefore, the support which would 
have been given by N., is destroyed by excavation, by a third party, A. 
acquires no right of support against the land beyond N. S. C. See, hmvevei , 
Manley v. Bttm, 85 L. J. K. B. 505; [1916] 2 K. B. 121, as to subjacent 
support. 

Where the plaintiff has placed a house, or other additional weight upon 
his ground, he cannot, independently of any acquired right, insist upon its 
being supported by the adjoining land of the defendant. Thus where the 
defendant, digging in his own land, near the foundation of a newly-built 
house of the plaintiff, caused it to fall, and beyond this there was no proof 
of negligence : held, that the plaintiff had no remedy. . Wyatt v. Harrison, 

1 L. J. K. B. 237; 3 B. & Ad. 871; Partridge v. Scott, supra; also see Gay- 
ford Y. NichoUs, 9 Ex. 702; 23 L. J. Ex. 205; Caledonian By. Co. v. Sprot, 

2 Macq. 449. If, however, the defendant's excavation would have caused 
the plaintiff's land to sink, had there been no erection on it, an action will 
lie; Brown v. Robins, 4 H. & N. 186; 28 L. J. Ex. 250; unless the damage 
would in this case have been inappreciable; Smith v. Thacherah, 35 L. J. 
C. P. 276; L. R. 1 C. P. 564; for the right to lateral support is not an 
absolute right, and the infringement of it is not a cause of action without 
appreciable damage. S. C. ; Backhouse v. Bonomi, 9 H. L. C. 603 ; 34 I/. J. 
Q. B. 181. See, however, Att.-Gen. v. Conduit Colliery Co., 64 L. J. Q. B. 
207, 212; [1895] 1 Q. B. 301, 311. Where the defendant, by draining his 
land, drains away subterranean water from under the plaintiff's land, and 
thereby causes it to sink, no action is maintainable. Popplewell v. Hodkin- 
son, 38 L. J. Ex. 126; L. R. 4 Ex. 248; English v. Metropolitan Water 
Board, 76 L. J. K. B. 361 ; [1907] 1 K. B. 588 ; and see Elliott v. N. E. By., 
32 L. J. Ch. 402; 10 H. L. C. 383. Secus, where the subsidence has been 
caused by the defendant's pumping out water and silt from under the plain- 
tiff's land; Jordeson v. Sutton, Sc. Gas Co., 68 L. J. Oh. 457; [1899] 2 
Ch. 217 (on appeal the case was settled) ; or removing from his land part 
of a bed of natural pitch which extended under the plaintiff's land. Trinidad 
Asphalte Go. v. Ambard, 68 L. J. P. C. 114 ; [1899] A. C. 594. As to remedy 
for injury caused by brine pumping, see stat. 54 & 55 V. c. 40. See also Salt 
Union v. Brunner, 76 L. J. K. B. 55 ; [1906] 2 K. B. 822. 

The plaintiff may, however, acquire a right to the support of the defendant's 
soil, by grant express or implied. Partridge v. Scott, 7 L. J. Ex. 101, 104; 

3 M. & W. 220, 228. Thus, where the defendant sells part of his land to the 
plaintiff, for the purpose of the erection of buildings thereon, he impliedly 
grants sufficient lateral support, from his adjacent land, for such buildings. 
Elliott V. IV. E. By., 10 H. L. C. 333; 32 L. J. Ch. 402; Siddons v. Short, 
46 Ij. J. C. P. 796 ; 2 C. P. D. 572 ; Rigby v. Bennett, 28 Ch. D. 559 ; and see 
Richards v. Bose, 23 L. J. Ex. 3; 9 Ex. 218. Such a grant is to be pre- 
sumed by the lapse of 20 years during which the support has been enjoyed, 
where there is no concealment, and the enjoyment is so open, that the owner 
of the servient land must know that it gives some support to the dominant 
land. Daltcm v. Angus, 50 L. J. Q. B. 689; 6 App. Cas. 740. See Union 
Lighterage Co. v. L. Graving Dock Co., 71 L. J. Ch. 791; [1902] 2 Ch. 557. 
But if an old house be raised in height, so that the weight superincumbent 
on the soil is increased, the right of support cannot be claimed in respect 
of the increased weight; Murchie v. Black, 19 C. B. (N. S.) 190; 34 L. J. 

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Right to Support from Land or Building. 693 

C. P. 337; until the lapse of 20 years, from the time of the increase having 
been made. Dalton v. Angus, supra. 

With regard to the support given by one house to the adjoining one built 
against it, it has been held, that there is no obligation towards a neighbour, 
cast by law on the owner of a house, merely as such, to keep it repaired in a 
substantial manner; the only duty is to keep it in such a state, that his 
neighbour may not be injured by its fall. Ghantler v. Robinson, 19 L. J. Ex. 
170, 172; 4 Ex. 163, 170. In Peytmi v. London (Mayor), 9 B. & C. 725; 7 
L. J. (O. S.) K. B. 322 ; it was held, that the fact that the defendant in 
removing his house, had neglected to shore up that of the defendant, was no 
evidence of negligence. In Chadwick v. Trower, 8 L. J. Ex. 286; 6 Bing. 
N. 0. 1, it was laid down that there was no obligation upon the defendant, 
under similar circumstances, to give notice to the plaintiff of what he was 
about to do. See Kempston v. Butler, 12 Ir. C. L. E. 516. In Dodd v. 
Holme, 1 Ad. & E. 493, it was said that the question was, whether the 
damage complained of, was owing to the improper acts of the defendant, and 
that the jury, on inquiring into the alleged neglect, should consider the state 
of the building before it was injured. Walters v. Pfeil, M. & M. 365 ; Brown 
V. Windsor, 1 C. & J. 20. But this right of support from adjoining houses 
may be acquired by grant, express or implied. Thus, it may be proved by 
showing that the houses of the plaintiff, and of the defendant , were originally 
built BO as to depend upon one another, while the land whereon they stand 
was in the possession of the same owner ; Richards v. Rose, 9 Ex. 218 ; 23 
L. J. Ex. 3; and open enjoyment of the support for 20 years is sufficient. 
Hide V. Thomhorough, 2 Car. & K. 250 ; see also Dalton v. Angus, supra. 
In Solomcm v. Vintners' Co., 4 H. & N. 585; 28 L. J. Ex. 370, the right was 
held not to apply, as against the owner of the house next but one. The 
support must have been enjoyed as of right. Tone v. Preston, 53 L. J. Ch. 
50 ; 24 Ch. D. 739. The right is within the Prescription Act, 2 & 3 W. 4, 
c. 71. Lemaitre v. Davis, 51 L. J. Ch. 173; 19 Ch. D. 281. In 
assessing damages, for pulling down a house, so as to cause injury by 
its fall, to the adjoining house, the jury may consider quo animo the wrongful 
act was done. Emblen v. Myers, 6 H. & N. 54 ; 30 li. J. Ex. 71. 

With regard to the right to support, from subjacent strata, it has been 
held that when the surface and the underground minerals are vested in 
different owners, and nothing appears to show how they became separated, 
the superficial owner is entitled to adequate underground support, and the 
mine owner must so work the mines as to sustain the surface in its natural 
state. Humphries v. Brogden, 20 L. J. Q. B. 10; 12 Q. B. 739. The 
primd facie right of the owner of land, to support from his next neighbour's 
land, whether the support be lateral or underground, is of common right, 
and is not a mere easement, to be gained only by lapse of time, or by grant, 
reservation, or covenant, but is a restraint on the enjoyment of the adjacent 
property, in accordance with the maxim, "sic utere tuo ut alienum non 
Icedas." S. C. See also Davis v. Treharne, 50 L. J. Q. B. 665; 6 App. 
Cas. 460. The owner of land upon which a building has been erected, may 
maintain an action for an injury arising from underground workings, if the 
jury are of opinion that the weight of the building did not cause the injury ; 
Brown v. Robins, 4 H. & N. 186 ; 28 L. J. Ex. 250; Stroyan v. Knowles, 
6 H. & N. 454; 30 L. J. Ex. 102; and this notwithstanding that no sub- 
sidence would have occurred but for the previous excavation of the super- 
incumbent strata by former owners. Mardey v. Burn, 85 L. J". K. B. 505; 
[1916] 2 K. B. 121; and by 20 years' user, the right of support will be 
presumed to have been acquired, by grant, for buildings erected on the land ; 
Rogers v. Taylor, 2 H. & N. 828; 27 L. J. Ex. 173; even although the mine 
owner would otherwise have had the right to let down the surface ; Bell v. 
Love, 52 L. J. Q. B. 290, 301; 10 Q. B. D. 547, 571; but not, it would 
seem, where neither party was aware of the excavation under the plaintiff's 
buildings. Partridge v. Scott, 7 L. J. Ex. 101; 3 M. & W. 220. 

In the case of a mining lease granted .by an owner in fee, the rights of the. 

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694 Action for Disturbance of Support of Land. 

several parties are ascertained on the construction of the deed, and if it 
thereby appear to have been the intention of the parties, that the mine owner 
should be at liberty to let down the surface, the surface owner will have no 
remedy. Smith v. Darby, 42 L. J. Q. B. 140; L. B. 7 Q. B. 716; Eadon 
V. Jeffcoclc, 42 L. J. Ex. 36; L. E. 7 Ex. 379; Buchanan v. Andrew, L. E. 
2 H. L. Sc. 286; Beard v. Moira Colliery Co., 84 L. J. Ch. 155; [1915] 
1 Ch. 257. Such intention must, however, be expressed in plain terms, 
when the reservation of the right to let down the surface is in derogation 
of the grant thereof. Mundy v. Rutland (Duke), 23 Ch. D. 81. A reserva- 
tion of mines and minerals gives the right to take such constituent parts 
of the earth as have " a use and value of their own independent of their 
being constituents of the soil." Jersey \Earl) v. Neath Union, 58 L. J. 
Q. B. 573; 22 Q. B. D. 555, following Next v. Gill, 41 L. J. Ch. 761; 
L. E. 7 Ch. 699; Johnstone v. Crompton, 68 L. J. Ch. 559; [1899] 2 Ch. 
190. As to the construction of a conveyance in fee of the surface, reserving 
the minerals, with clause for compensation, for damage done to the grantee 
by the winning of the minerals by the grantor, see Mordue v. Durham 
(Dean), 42 L. J. C. P. 114; L. E. 8 C. P. 336; Aspden v. Seddon, 
44 L. J. Ch. 359 ; L. E. 10 Ch. 394. But a mere reservation of minerals 
does not carry the right to destroy the surface. Hext v. Gill, supra. And 
even although a mining lessee had liberty to work the mines in the most 
approved manner, and to enter the land and carry away minerals, and erect 
buildings, &c., necessary, making compensation, it was held he must not 
let down the surface. Davis v. Treharne, 50 L. J. Q. B. 665 ; 6 App. Cas. 
460. See also Smart v. Morton, 5 E. & B. 30; 24 L. J. Q. B. 260. The 
same principle applies where an inclosure Act has reserved the right of the 
lord of the manor to work mines, in the private allotments, making com- 
pensation for damage. Haines v. Roberts, 7 E. & B. 625; Love v. Bell, 
63 L. J. Q. B. 257; 9 App. Cas. 286; Butterknowle Colliery Co. v. Bishop 
Auckland,' Sc, Sac, 75 L. J. Ch. 541; af&rm. C. A., [1906] A. C. 305. 
See Benfieldside Local Board v. Consett Iron Co., 47 L. J. Ex. 491; 3 Ex. 
D. 54. In Rowbotham v. Wilson, 8 H. L. C. 348; 30 L. J. Q. B. 49, an 
inclosure Act had expressly taken away this protection from the allottees of 
the surface ; and it was held that the owner of the mines was not liable for 
injury to the surface, if such injury arose from working the mines in a 
reasonable manner, and was not the result of wilfulness or negligence. 
Where in the case of leases of an upper stratum and of a lower stratum of 
coal, it is common knowledge to the lessees of both that the lower stratum 
cannot be worked on the usual system without causing subsidence of the 
upper stratum, and provision is made for indemnity against physical damage 
caused by such working, an injunction will not be granted to prevent the 
working of the lower stratum. Butterley Go. v. New Hv^knall Colliery 
Co., 79 L. J. Ch. 411; [1910] A. C. 381; Jones v. Consolidated Anthracite 
Collieries, 85 L. J. K. B. 465 ; [1916] 1 K. B. 123 ; Davies v. Powell Duffryn, 
(0c., Co., 88 L. J. Ch. 298; [1917] 1 Ch. 488 (compromised in H. L. 87 
L. J. Ch. 629; [1918] A. C. 555); Welldon v. Butterley Co., 88 L. J. Ch. 
496. See also Thomsmi v. St. Catherine's College, Cambridge, 88 L. J. Ch. 
163; [1919] A. C. 468; and Aynsley v. Bedlington Coal Co., 87 L. J. K. B. 
1031. The common-law right to support is independent of the question 
whether the working has been careful or careless. Humphries v. Broaden, 
20 L. J. Q. B. 10; 12 Q. B. 739. 

The right of working mines, reserved to the vendor of lands to a railway 
or canal company, depends upon tlie construction to be put upon the special 
provisions of the Act. See Gt. W. Ry. v. Bennett, 36 L. J. Q. B. 133; 
Ij. R. 2 H. L. 27; Caledonian Ry. v. Sprot, 2 Macq. 442; Elliot V N e' 
Ry., 10 H. L. C. 333; 32 L. J. Ch. 402; R. v. Aire S Calder Navigation, 
80 L. J. Q. B. 337 ; Stourbridge Canal Go. v. Dudley, 3 E. & E. 409 ; 30 
L. J. Q. B. 108; Dunn v. Birmingham Canal Co., 42 L. J. Q. B. 34; l! E. 
8 Q. B. 42; Knowles v. Lancashire d Yorkshire Ry., 59 L. J. Q B 39- 
14 App. Cas. 248; L. <& N. W. Ry. v. Evans, 62 L. J. Ch. 1; [1893] 1 Ch'. 

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Action for Obstruction of Light and Air. 695 

16; Chamber Colliery Co. v. Rochdale Canal Co., 64 L. J. Q. B. 645; 
[1895] A. C. 564. If the company be regulated by the Eailwaye Clauses 
Consolidation Act, 1845 (8 & 9 V. e. 20), the company does not, under a 
statutory purchase of the land, acquire the right of an ordinary purchaser 
to subjacent and adjacent support from the lands within the forty yards or 
other prescribed limit ; and the owner of the mines underneath the railway 
may, after giving the notice provided by the Act, work them in a proper 
manner, according to the usual manner of working mines in the district ; 
sects. 77, 78, 79; Gt. W. Ry. v. Bennett, supra; even although this manner 
is by surface workings; Midlandi Ry. v. Robinscm, 59 L. J. Ch. 442; 15 
App. Cas. 19; Ruabmi Brick, Ac, Co. v. Gt. W. Ry., 62 L. J. Ch. 483; 
[1893] 1 Oh. 427 ; or the effect of the working is to let down the surface. 
Pountney v. Clayton, 52 L. J. Q. B. 566 ; 11 Q. B. D. 820. See also Smith 
V. Gt. W. Ry., 47 L. J. Oh. 97; 3 App. Cas. 165; In re Lord Gerard <£• 
L. (6 N. W. Ry., 64 L. J. Q. B. 260; [1895] 1 Q. B. 459. The railway 
company has, however, a common-law right of lateral support for its railway 
from min©s lying outside the forty yards or other prescribed limit. Howley 
Park Coal Co. v. L. d N. W. Ry., 82 L. J. Oh. 76; [1913] A. C. 11. As 
to the right of support from adjoining strata where the land has been bought 
under a voluntary agreement with the minerals under it, see New Moss 
Colliery v. Manchester Cor., 77 L. J. Ch. 392; [1908] A. C. 117. 

The statement of claim need not allege a right to support, and if the 
defendants have «, right to take minerals under the plaintiff's land, without 
leaving a sufficient support, this defence must be pleaded specially. Jeffries 
V. Williams, 20 L. J. Ex. 14; 5 Ex. 792; Bibby v. Carter, 4 H. & N. 153; 
28 L. J. Ex. 182. 

A mineral owner is not liable for damage resulting from the working by 
his predecessor in title. Greenwell v. Low Beschburn Coal Co., 66 L. J. 
Q. B. 643; [1897] 2 Q. B. 165; Hall v. Norfolk {Duke), 69 L. J. Ch. 571; 
[1900] 2 Ch. 493. 

Damages — Injunction.^ The damages recoverable are limited to those 
that have already accrued, from the interference with the plaintiff's right of 
support, for he can maintain a fresh action for each subsequent injury he 
may sustain by further subsidence; Darley Main Colliery Co. v. Mitchell, 
55 L. J. Q. B. 529;'ll App. Oas. 127; hence depreciation caused by risk of 
future subsidence must not be taken into account. W. Leigh Colliery Co. 
V. Tunnicliffe, 77 L. J. Ch. 102; [1908] A. C. 27. By Eules, 1883, 
O. xxxvi. r. 58, " Where damages are to be assessed in respect of any 
continuing cause of action they shall be assessed down to the time of 
assessment." Where the owner of a mine under a highway 
vested in the urban authority wrongfully let down the highway 
by working the mines, the measure of damages is the cost, not of restoring 
the old highway to its former level, but the cost of providing an equally 
commodious road. Lodge Holes Colliery Co. v. Wednesbury Cor., 77 L. J. 
K. B. 847; [1908] A. 0. 323. Where there is a reasonable probability of 
damage resulting from the disturbance of the support of land, the court 
will grant an injunction, before any actual damage occurs. Siddons v. 
Short, 46 L. J. 0. P. 795; 2 0. P. D. 572. 



ACTION FOR OBSTRUCTION OP LIGHT AND AIR. 

The statement of claim usually states the possession of a house, in which 
are certain windows, through which light and air ought of right to enter ; the 
obstruction of the light by the defendant ; and the consequent mjury to the 
house. The action ^^jSlti^&Sf^ iMidrdWSff^'^'^' ™ ^'^'"'^ ^^^^ further 



696 AcU(m for Obstruction of Light and Air. 

statements will be neceBsary in the statement of claim. Turner v. Sheffield 
Ry. Co., 10 M. & W. 425 ; Shadwell v. Hutchinson, M. & M. 350 ; 2 B. & Ad. 
97; 9 L. J. (0. S.) K. B. 142. 

The right to the light and air.'] The right to light and air is analogous to 
the right to use running water, and is enjoyed jure naturce. It is not strictly 
the subject of grant, because it is not in the power of any one to grant it ; but 
the privilege to have the use of light or air in a particular place, or on certain 
premises , free from the. right of obstructing them by another person in the 
like lawful enjoyment of his own property, is a right, which must depend on 
some covenant, or contract, between the parties, express or implied, or upon 
some prescription which presupposes such contract ; or by some other adequate 
authority binding on both parties, as a local custom, &c. ; see observations of 
Littledale, J., in Moore v. Rawscm, 3 B. & C. 332; 3 L. J. (0. S.) K. B. 32. 

For the purpose of facilitating the acquisition, and protection of the right 
of light to a building, where it is claimed by virtue only of long enjoyment, 
the Prescription Act, 1832 (2 & 3 W. 4, o. 71), was passed, which by sect. 3 
enacts, " that when the access and use of light to, and for, any dwelling- 
house, workshop, or other building, shall have been actually enjoyed there- 
with, for the full period of 20 years without interruption, the right thereto, 
shall be deemed absolute and indefeasible, any local usage or custom to the 
contrary notwithstanding, unless it shall appear that the same was enjoyed 
by some consent or agreement, expressly made, or given for that purpose, by 
deed or writing." 

Sect. 4, " Each of the respective periods of years, hereinbefore mentioned, 
shall be deemed and taken to be, the period next before some suit or action, 
wherein the claim, or matter to which such period may relate, shall have been, 
or shall be brought into question, and that no act or other matter, shall be 
deemed to be an interruption, within the meaning of this statute, unless the 
same shall have been or shall be submitted to, or acquiesced in, for one year 
after the party interrupted, shall have had, or shall have notice thereof, and 
of the person making or authorizing the same to be made." 

By sect. 5, if the right, as alleged generally in an action on the case, is 
denied, all matters in the Act mentioned and provided, which shall be applic- 
able to the case, shall be admissible in evidence to sustain or rebut such 
allegation . 

By sect. 6, no presumption shall be allowed, or made in favour, or support 
of any claim, upon proof of the exercise or enjoyment of the right, or matter 
claimed, for any less period or number of years than the period or number 
mentioned in the Act as applicable to the case. 

Sect. 7, which relates to the computation of time in cases of disability, is 
inapplicable to sect. 3. 

The statute has not altered the nature and extent of the right to light, but 
only the mode in which the right can be gained. Kelk v. Pearson, L/. E. 
6 Ch. 809; Colls v. Home S Golmial Stores, 73 L. J. Ch. 484; [1904] A. C. 
179. Nor does it take away any of the modes of claiming easements existing 
prior thereto. Gardner v. Hodgson's, dc. Brewery Co., 72 L. J. Ch. 558, 563 ; 
[1903] A. C. 229, 238, 239, per Ld. Lindley, citing Aynsley v. Glover, 
44 L. J. Ch. 523; L. E. 10 Ch. 283 (where a right to light by immemorial 
prescription was proved). Sects. 3 and 4 must be read together as explained 
by Ld. Macnaghten in Colls v. Home S Colonial Stores, supra, with the 
result that a right to access of light is not absolute and indefeasible, even 
after 20 years' enjoyment, unless and until some action is commenced in which 
the right is called in question ; till that occurs the right is inchoate only. 
Hyman v. Van den Bergh, 77 L. J. Ch. 154; [1908] 1 Ch. 167. A plaintiff 
claiming the right to light, cannot evade the defences given by sects. 3 and 4, 
by pleading lost grant instead of the Act. But in a case in which there is no 
express defence provided by the Act, the right may still be claimed on any 
ground available before the Act, as when unity of possession or title is the 
only bar to the plaintiff's claim under the Act. S. C. per Harwell, L.J. 
The right cannot be acquired under sect. 3 over Crown land, as the statute 

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The Right to Light and Air. 697 

does not bind the Crown. Perry v. Eames, 60 L. J. Ch. 345 ; [1891] 1 Ch. 
658. Even although the land is in the possession of a lessee from the Crown. 
Wheaton v. Maple, 62 L. J. Ch. 963 ; [1893] 8 Ch. 48. Sect. 2, does not 
affect the right to light. S. CO. 

The easement or servitude altius rum tollendi and ne luminibus officiatur 
may be established over the land, even as against the landlord, if the tenant 
chooses to submit to it. Simper v. Foley, 2 J. & H. 555. And where A. and 
B. occupy as lessees adjacent properties, P. and Q. respectively, under 
the same landlord, C. ; 20 years' user by A. over Q., gives A. and his 
successors an indefeasible right to the access of light, as against B. & C. 
and all succeeding owners of Q. Frewen v. Phillips, 11 C. B. (N. S.) 449; 
30 L. J. C. P. 356 ; Morgan v. Fear, 76 L. J. Ch. 660 ; [1907] A. C. 425. And 
this right is retained after a renewal of A.'s lease. S. C. ; Robson v. Edwards, 
62 L. J. Ch. 378 ; [1893] 2 Ch. 146. It is not extinguished by unity of seisin 
in fee without unity of possession and enjoyment. Richardson v. Graham, 
77 L. J. K. B. 27; [1908] 1 K. B. 39. An indefeasible right is acquired, 
although the lease contain a reservation of a right to the lessor to build 
notwithstanding lights were thereby obstructed. Mitchell v. Cantrill, 57 
L. J. Ch. 72; 37 Ch. D. 56. Secus, when there is an express contract in 
the lease that he might so build. Haynes v. King, 63 L. J. Ch. 21; [1893] 
3 Ch. 439. Sect. 3 was held by Chitty, J., in Harris v. De Pinna, 33 Ch. D. 
238, to apply only to a dwelling-house, workshop, or some other building 
of an analogous nature; the C. A. avoided expressing an opinion on the point, 
56 L. J. Ch. 344; 33 Ch. D. 238. In Clifford v. Holt, 68 L. J. Ch. 332; 
[1899] 1 Ch. 689, Kekewich, J., held it to apply to a greenhouse. 

As it is a principle of law, " that no man shall derogate from his own 
grant," a right to the access of light may be implied from a simple con- 
veyance of real property. Hence, the owner of a house and of land adjoining 
cannot after selling the house obstruct ita lights by building on the land. 
Palmer v. Fletcher, 1 Lev. 122. This restriction extends to those who claim 
under the grantor; Coutts v. Gorham, M. & M. 396; Swanshorough v. 
Coventry, 2 M. & Sc. 362; 9 Bing. 305; 2 L. J. C. P. 11; Wilson v. Queen's 
Club, 60 L. J. Ch. 698; [1891] 3 Ch. 522; unless they claim under a title 
legal or equitable prior to the grant. Beddington v. Attlee, 56 L. J. Ch. 
655 ; 35 Ch. D. 317 ; but it does not extend to land afterwards acquired by 
the grantor, even though he was lessee thereof for a term of years at the time 
of the grant. Booth v. Alcock, 42 L. J. Ch. 557; L. Ej 8 Ch. 663; see 
Davis v. Town Properties Investment Cor., 72 L. J. Ch. 389; [1903] 1 Ch. 
797. On the same principle, where the house and land belong to the same 
owner, if he sell the land unconditionally, he retains no right to access of 
light to the house. Tenant v. Goldwin, 2 Ld. Eaym. 1089, 1093; White 
V. Bass, 7 H. & N. 722 ; 31 L. J. Ex. 283 ; Ellis v. Manchester Carriage Co., 
2 C. P. D. 13. See also Teebay v. Manchester, Ac, Ry., 52 L. J. Ch. 
613; 24 Ch. D. 572. Nor has a subsequent purchaser of the house such a 
right. Wheeldon v. Burrows, 48 L. J. Ch. 853; 12 Ch. D. 31; Ray v. 
Hazeldine, 73 L. J. Ch. 537; [1904] 2 Ch. 17. But where P., the owner 
of a dwelling-house and the adjoining land, sells the house to A., and the 
land to B., under contemporaneous conveyances, of which both A. and B. 
have notice, B. cannot build on the land, so as to obstruct the lights of the 
house. Allen v. Taylor, 50 L. J. Ch. 178; 16 Ch. D. 365. So where A. 
and B. take the house and land respectively by devise under P. 'a will. 
Phillips V. Low, 61 L. J. Ch. 44; [1892] 1 Ch. 47. In the case of buildings, 
B. and E., let by the same lessor under contemporaneous leases, and 
separately mortgaged; a reasonable implication may arise from the leases, 
mortgages and plans, that the mortgagee of B. is precluded from interfering 
with the lights of B., although not ancient. Russell v. Watts, 55 L. J. 
Ch. 158; 10 App. Ca«. 590. So, where a row of unfinished buildings was 
put up for sale, by auction in lots, and a plan of the buildings was produced 
at the sale, which each purchaser was bound by written conditions to con- 
form to, in completing->aiaHL^i± svasiiteli,tbak^e purchaser of one could 



t398 Action for Obstruction of Light and Air. 

not afterwards make an addition to his house, eo as to obstruct the windows 
of an adjoining one; and this without reference to priority of completion. 
Gompton v. Richards, 1 Price, 27. But the mere grant of a house to A. 
does not confer on A. the right to mora light than is consistent with the 
intention to be implied from the circumstances at that time existing and 
known to A. Birmingham, dc, Bankingl Co. v. Ross, 57 L. J. Ch. 601; 
38 Ch. D. 295 (explained in Broomfield v. Williams, 66 L. J. Ch. 305; 
[1897] 1 Ch. 602); Quiche v. Chapman, 72 L. J. Ch. 373; [1903] 1 Ch. 
659. And this rule is not affected by the Conveyancing Act, 1881, s. 6 (2), 
by which the conveyance of land made after Dec. 81st, 1881, having houses 
or other buildings thereon, shall be deemed to include and operate to convey 
all lights, enjoyed with or reputed as appurtenant to the houses or other 
buildings conveyed. S. C. Burrows v. Lang, 70 L. J. Ch. 607; [1901] 
2 Ch. 502. See further as to implied grants and reservations of easements, 
Glave V. Harding, 27 L. J. Ex. 286. As to obstruction by a tenant, see 
Riviere v. Bower, By. & M. 24. Where a lease of buildings, B., mortgaged 
to P., is determined by surrender, forfeiture or otherwise, the lessor has the 
same rights to light in respect of B. as P. would have had if the lease had 
still subsisted. Russell v. Watts, supra. 

The words " actually enjoyed," in sect. 3, are satisfied, where a house is 
structurally complete, so that light and air pass through the window open- 
ings, although the window sashes are not filled, nor the floors laid till 
afterwards, so that there could not be personal occupation. Collis v. 
Laugher, 63 L. J. Ch. 851 ; [1894] 3 Ch. 659, following Cmrtauld v. Legh, 
38 L. J. Ex. 45 ; L. E. 4 Ex. 126. So, although the windows of a warehouse 
are ordinarily closed with shutters which are opened when the owner pleases 
to admit the light. Cooper v. Siraker, 58 L. J. Ch. 26; 40 Ch. D. 21. 
Sect. 3 applies only to windows or apertures of the like nature, and not to 
apertures with doors in them which were primarily constructed for the 
purpose of being closed and thus excluding light. Lovat v. Gas Light, 
Sc, Co., 88 L. J. Ch. 12; [1919] 1 Ch. 24. See also Smith v. Baxter, 
[1900] 2 Ch. 138. This section has been held to be retrospective. Simper 
V. Foley, 2 J. & H. 555. 

To acquire the right, the light must come for the prescribed period through 
the same definite access. Harris v. De Pinna, 56 L. J. Ch. 344; 33 Ch. D. 
238. The use of an open area, as al timber-yard, or sawpit, for 20 years, 
does not prevent the adjoining owner from building on his land, so as to 
obstruct the light and air. Roberts v. Macord, 1 M. & Eob. 230; Potts v. 
Smith, 38 L. J. Ch. 58; L. E. 6 Eq. 311. 

An enjoyment for 19 years and 330 days, followed by an interruption of 
35 days, just before the commencement of the suit, has been held sufficient 
to establish the right. Flight v. Thomas, 10 L. J. Ex. 529; 11 Ad. & E. 
688 ; 8 CI. & E. 231. The effect of this decision is, that an enjoyment for 

19 years and a fraction, and then an interruption, acquiesced in for the rest 
of the year, make up together 20 years' enjoyment, and that when an ease- 
ment has been once enjoyed as of right, such enjoyment must be taken for 
the purposes of the Act to continue, though interrupted, if the interruption 
be not acquiesced in for a year. Eaton v. Swansea Waterworks, 20 L. J. 
Q. B. 482, 484, 485; 17 Q. B. 267, 272. 

In Cooper v. Hubbuck, 12 C. B. (N. S.) 456 ; 31 L. J. C. P. 323, the lights, 
claimed by the plaintiff, were stated to have been enjoyed for the period of 

20 years next before a chancery suit, between the same parties and upon the 
same question, and also for the period of 20 years next before a previous 
action at common law, relating to the same question ; it was held that 
this enjoyment was sufficient, and that sect. 4 of the Act did not require 
that the 20 years should be those immediately preceding the pending suit. 
It is observable that the words " claiming right thereto," used in sects. 1 
and 2, are, perhaps designedly, omitted in sect. 3; see 11 Ad. & E. 695. 
An absolute right may be gained by the enjoyment of light for 20 years, 
under permission , orally granted, and an agreement to pay an annual 

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The Right to Light and Air. 699 

acknowledgment. London (Mayor) v. Pewterers' Co., 2 M. & Eob. 409. 
Payment of rent under an oral agreement for the enjoyment of the lights by 
the occupier is not an "interruption" within sect. 3; there mUst be a 
discontinuance of the enjoyment, by reason of some obstruction. Plasterers' 
Co. V. Parish Clerks' Co., 6 Ex. 630; 20 L. J. Ex. 362. But this does not 
decide that an enjoyment on those terms would be sufficient to confer a 
right, or that such payment is inadmissible to defeat the claim, for no such 
point was raised on the bill of exceptions. As to this, see Tickle v. Brown, 
5 L. J. K. B. 119; 4 Ad. & B. 369; and Gardner v. Hodgson's, dc. Brewery 
Co., 72 L. J. Gh. 558; [1903] A. C. 229. Where the plaintiff enjoyed the 
light to windows under a memorandum, signed by the plaintiff only, stating 
that he did so by the defendant's consent, that he would close them at the 
defendant's request, and pay 6d. a year in respect thereof : this was paid 
to within 20 years before action ; the enjoyment was held to be within the 
exception in sect. 3. Bewley v. Atkinson, 49 L. J. Ch. 6 ; 13 Ch. D. 283 ; 
Easton v. Isted, 72 L. J. Ch. 189; [1903] 1 Ch. 405. An agreement entered 
into bond, fide for the purpose of securing the access and use of light to 
windows is a sufficient agreement in writing within sect. 3, if signed by 
the tenant in possession of the property. Hyman v. Van den Bergh, 77 
L. J. Ch. 154; [1908] 1 Ch. 167. 

Such an interruption only as is described in sect. 4 will prevent the periods 
from running. Clover v. Coleman, 44 L. J. C. P. 66 ; L. E. 10 C. P. 108. 
It must be an adverse obstruction and not a mere discontinuance of user. 
Smith V. Baxter, 69 L. J. Ch. 437 ; [1900] 2 Ch. 138. An interruption which 
is from time to time removed is not within sect. 4. Presland v. Bingham, 
41 Ch. D. 268. Whether the interruption has been acquiesced in by the 
owner of the dominant tenement is a question for the jury ; complaints made 
by the plaintiff to the defendant of the obstruction, are evidence of the 
absence of acquiescence. Glover v. Coleman, supra. It seems, that if it 
appear from the plaintiff's evidence there has been an obstruction of a per- 
manent character, the plaintiff must prove that it did not last for a year, but 
if the obstruction were of a fluctuating and temporary character, the defen- 
dant must prove that it lasted for a year. Presland v. Bingham, supra. 
Non user which would not be sufficient to establish an abandonment of ai 
right acquired, may be sufficient to prevent the acquisition of that right 
under the Act. Smith v. Baxter, supra. As to the notice of the interruption 
required by sect. 4, see Seddon v. Bank of Bolton, 61 L. J. Ch. 542; 19' 
Ch. D. 462. 

The use of light is put by the Act on the footing of other easements, as to 
the effect of unity of possession, and is not established by 20 years' enjoyment 
unless enjoyed as an easement; the rii?ht therefore is not gained, where the 
owner of the house has also held the adjoining land, which it overlooks, under 
a yearly tenancy. Harbidge v. Warwick, 18 L. J. Ex. 245 ; 3 Ex. 552 ; 
Ladyman v. Grave, infra. The access of light during a verbal agreement 
for a tenancy is not " enjoyed by some consent or agreement expressly made 
or given for that purpose by deed or writing " within sect. 3, and the 
existence of such a tenancy agreement with a person who was also during 
the tenancy the occupier of the servient tenement, does not prevent the 
owner of the dominant tenement acquiring the right to the access of light. 
Mallam v. Rose, 84 L. J. Ch. 934; [1915] 2 Ch. 222. But the union of the 
ownership of dominant and servient tenements, for different estates, merely 
suspends the running of the 20 years, so long as the union of ownership 
continues. Ladyman v. Grave, L. E. 6 Ch. 763, 768. So, when the right 
has been once acquired, the like union does not extinguish the right, but 
merely suspends it, and upon a severance of the ownership the easement 
revives. Simper v. Foley, 2 J. & H. 555 ; Ivimey v. Stocker, 35 L. J. Ch. 
467; L. E. 1 Ch. 396; Aynsley v. Glover, 44 L. J. Ch. 523; L. E. 10 Ch. 
283. 

Sect. 101 of the London Building Act, 1894 (57 & 58 Vict. c. ccxin.), 
provides that nothing m.the.Act,shall,ajjthoriseiaterference with an easement 

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700 Action for Obstruction of Light and Air. 

of light or other easements in or relating to a party wall in case it is pulled 
down. 

The mere fact of there being windows in a house, overlooking and adjoining 
land bought by A., is not constructive notice to A., of an agreement giving 
a right to the access of light to them. Allen v. Seckhwm, 48 L. J. Ch. 
611; 11 Ch. D. 790. 

The right to access of air stands on a different footing to that of access of 
light, and such right over the general unlimited service of land cannot be 
acquired by mere enjoyment. Bryant v. Lefever, 48 L. J. C. P. 380, 384; 
4 0. P. D. 172, 174, 180. A right to the access of air, to a chimney of the 
plaintiff's house; S. C. ; or to the plaintiff's windmill, Webb v. Bird, 13 
C. B. (N. S.) 841; 31 L. J. C. P. 335; or to a structure substantially con- 
sisting only of floors and a roof, with open ends and sides, used for stacking 
and drying timber; Harris v. De Pinna., 56 L. J. Ch. 844; 33 Ch. D. 238; 
cannot) be acquired under 2 & 3 W. 4, c. 71, s. 2. It may, however, be 
acquired by grant. Aldin v. Latimer S Co., 63 L. J. Ch. 601; [1894] 

2 Ch. 437. Access of air to a building through a defined channel may be 
acquired by user, with knowledge of the owners of the channel, and the 
right be proved by lost grant. Bass v. Gregory, 59 L. J. Q. B. 574; 25 
Q. B. D. 481. 

Bight to light and air, how lost.^ An ancient window, bricked up for 
20 years, loses its privilege. Lawrence v. Obee, 3 Camp. 514. And the 
privilege may be released by disuse for even a less time ; nor is it eo much 
length of time, as the nature of the act done, or the acquiescence by the 
grantee of the easement, and his intention that is material in considering 
whether the right has been abandoned. B. v. Charley, 12 Q. B. 515; see 
Crossley, Sc. v. Lightowler, L. B. 3 Eq. 279; L. E. 2 Ch. 478; James v. 
Stevenson, 62 L. J. P. C. 51 ; [1893] A. C. 162. Thus, where the plaintiff 
pulled down a wall, with an ancient window in it, and rebuilt a blank wall, 
and 17 years afterwards re-opened a window in the old place, it was held 
that the window had lost the privilege, there being no apparent intention 
of resuming the old right when the wall was rebuilt. Moore v. Bawson, 

3 B. & C. 332; 3 L. J. (0. S.) K. B. 32. In this case the defendant had, 
in the meantime, erected a building which would have been an obstruction 
of the old light, but it does not appear that any such act was necessary in- 
order to prevent a resumption of the old right. A.'s house had ancient 
windows, which A.'s predecessor had kept blocked up for 20 years ; B. bought 
the next land for building; A. thereupon re-opened his windows, and B. 
obstructed them; in an action by A. against B., the jury were directed that 
the right to the light once gained, continued till lost, and that they should 
find for the plaintiff, unless they thought his predecessor had shown an 
intention of permanently abandoning his lights, or they had been so kept 
closed as to lead the defendant to alter his position in the reasonable belief 
that the right had been abandoned. Stokoe v. Singers, 8 E. & B. 31 ; 36 
L. J. Q. B. 257; see Cook v. Bath (Mayor), L. E. 6 Eq. 177, and Smith v. 
Baxter, 69 L. J. Ch. 437 ; [1900] 2 Ch. 138. The extent of the right is 
measured by the size and position of the window or aperture of the house 
through which the light has passed for 20 years, and is not affected by 
advancing or setting back the plane of the window. Scott v. Pope, 
65 L. J. Ch. 426 ; 31 Ch. D. 554. Although the plane was altered in the 
time during which the right was being acquired. Andrews v. Waite, 
76 L. J. Ch. 676 ;. [1907] 2 Ch. 500. So, if an old window be enlarged, 
no part of the space occupied by the old one can be obstructed ; Chandler v. 
Thompson, 3 Camp. 80 ; although the enlargement of the window creates 
no increased rights. Cooper v. Hubbuck, 30 Beav. 160; 31 L. J. Ch. 123. 
In Turner v. Spooner, 1 Dr. & Sm. 467; 30 L. J. Ch. 801, two ancient 
windows had been modernized, by removing the old casements and sub- 
stituting new ones of a lighter construction, without extending the aperture, 
occupied by their frames ; this was held to give the defendant no right to 

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Right, Iww Lost — Obstruction— Damages— lit,jimction. <-i^ 701 

S^ • 
obstruct them. So, where a dormer window was converteaninto~>"Skft 
National Prov., Ac, Iiuur. Co. v. Prudential Assur. Co., 46 L.J. GC 
6 Ch. D. 757. Or a new window ia constructed, outside an ancient#ne 
position of which is unchanged. Barnes v. Loach, 48 L. J. Q.fe^ 
4 Q. B. D. 494. The plaintiff opened several new windows, and'ffii 
ancient ones. The defendant built a wall which obstructed both the\<^ „„.> . 
new lights ; the plaintiff then restored his windows to their original staite^it 
was held, that the defendant was not at any time at liberty to obstruc'bil^-e^ 
old windows, although without so doing, he could not obstruct the new onW, V 
for the construction of the latter had not affected the plaintiff's rights in- 
respect of the old windows. Tapling v. Jones, 11 H. L. C. 290; 20 C. B. 
(N. S.) 166 ; 34 Ij. J. C. P. 342. No right is, however, preserved for any new 
window in the same plane as the ancient one, which does not substantially 
correspond with an ancient one. Hutchinson v. Copestake, 9 C. B. (N. S.) 
863; 31 L. J. C. P. 19; Newson v. Pender, 27 Ch. D. 43. The erection by 
the plaintiff of an obstruction, which partly blocks up his ancient light does 
not authorize the interference by the defendant with the remaining light. 
Staight v. Bum, 39 L. J. Ch. 289; L. E. 5 Ch. 163. The right may be 
lost by a change in the dominant tenement which increases the burthen on 
the servient tenement. Ankerson v. Connelly, 76 L. J. Ch. 402; [1907] 1 Ch. 
678; Bailey v. Holbom d Frascati, 83 L. J. Ch. 615; [1914] 1 Ch. 598. 

Proof of obstruction — Damages — Injunction.'] To constitute an action- 
able obstruction, there must be such a substantial diminution of light as to 
render the premises sensibly less fit for the purposes of business or occupa- 
tion, i.e., the obstruction must be a nuisance. Colls v. Home d Colcmial 
Stores, 73 L. J. Ch. 484; [1904] A. C. 179. See also Jolly v. Kine, 
76 L. J. Ch. 1; [1907] A. C. 1, and Paul v. Robson, 83 L. J. P. C. 304. 
The test in general is whether enough light is left for comfortable use and 
enjoyment of the house according to the ordinary requirements of mankind. 
Higgins v. BetU, 74 L. J. Ch. 621; [1905] 2 Ch. 210. The plaintiff is 
not entitled to any particular rays of light coming from any particular 
direction, but only to the same quantum of light that he enjoyed for 20 
years. Davis v. Marrable, 82 L. J. Ch. 510; [1913] 2 Ch. 421. The right 
to a special amount of light necessary for a particular business cannot be 
acquired by 20 years' enjoyment even with the knowledge of the owner of 
the servient tenement. Ambler v. Gordon, 74 L. J. K. B. 185 ; [1906] 

1 K. B. 417. As to the effect of clearances made in the neighbourhood by 
other parties shortly before the obstruction, by which the plaintiff acquired 
more light than the obstruction would cut off, see Dyers' Co. v. King, 
39 L. J. Ch. 339; L. E. 9 Eq. 438, and Colls v. Home S Colonial Stores, 
supra (per Lord Lindley). 

Where the obstruction is continuing, damages are now assessed down to 
the time of assessment. Eules, 1883, 0. xxxvi. r. 58. The plaintiff may 
bring fresh actions, as long as the obstruction lasts, and the previous 
recovery for the same obstruction is no bar. Shadwell v. Hutchinsons, 

2 B. & Ad. 9T; 9 L. J. (0. S.) K. B. 142. If the obstruction be not 
removed, the jury may in the second action give substantial damages. 
Battishill v. Reed, 18 C. B. 696 ; 25 L. J. C. P. 292. Not only may the 
injury done by the obstruction to the dominant tenement as it actually 
exists, be taken into consideration, but also the damage to it as it is cap- 
able of being developed in the future. Griffith v. Clay, 81 L. J. Ch. 809; 
[1912] 2 Ch. 291. 

In order to obtain an injunction, the plaintiff must prove substantial 
damage; Kino v. Rudkin, 46 L. J. Ch. 807; 6 Ch. D. 160; and it is, 
generally speaking, a fair working rule, that where the windows of a house, 
in the street of a town, are unobstructed, as to 45 deg., that the obstruction 
of light from them is not substantial, especially if there be a good light from 
other directions as well. City of London Brewery Co. v. Tennant, 43 L. J. 
Ch. 457 ; L. E. 9 Ch. 212 ; Colls v. Home & Colonial Stores, 73 L. J. Ch. 484 ; 

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702 Action for Disturbance of Common. 

[1904] A. C. 204. This is not, however, a rule of law, and the inference may- 
be rebutted by proving substantial damage. S.CC. ; Parker v. First Avenue 
Hotel Co., 24 Ch. D. 282 ; Ecclesiastical Commissioners v. Kino, 49 L. J. Ch. 
529; 14 Ch. D. 213. "Where both ancient and new lights are obstructed, the 
right to an injunction follows the rule laid down in Tapling v. Jones, 34 
L. J. C. P. 342; 11 H. L. C. 290; Staight v. Burn, 39 L. J. Ch. 289; L. E. 
6 Ch. 163; Aynsley v. Glover, 44 L. J. Ch. 523; L. R. 10 Ch. 283. Where 
the building in which the ancient lights were, has been pulled down, for the 
purpose of rebuilding, without any intention of abandonment, an injunction 
may be granted to prevent the erection of any structure that would obscure 
the light when restored. Ecclesiastical Commissioners v. Kino, supra. 
An injunction cannot be granted to prevent a railway company from obstruct- 
ing the windows of a new house, overlooking their land, so as to prevent 
their acquiring an easement over it. Bonner v. Gt. W. By., 24 Ch. D. 1. 
Where the plaintiff died before trial, it was held that his devisee could, on 
equitable principles, continue the proceedings and obtain an injunction. 
Janes v. Simes, 59 L. J. Ch. 351; 43 Ch. D. 607. 

An injunction will be granted on the ground of diminution of air " only in 
very rare and special cases involving danger to health, or at least something 
very nearly approaching it." City of Juondon Brewery Go. v. Tennant, 
supra. It will, however, be granted to restrain interference with the flow 
of air through a defined channel. Bass v. Gregory, 69 L. J. Q. B. 574 ; 
25 Q. B. D. 481 ; Cable v. Bryant, 77 L. J. Ch. 78 ; [1908] 1 Ch. 259. 

The decision in Colls v. Home & Colonial Stores, supra, has not abro- 
gated the jurisdiction of the court to entertain actions quia timet in cases of 
obstruction to ancient lights. Litchfield-Speer v. Queen Anne's Gate 
Syndicate, 88 L. J. Ch. 137 ; [1919] 1 Ch. 407. 

As to granting damages instead of an injunction, see Martin v. Price, 
63' L. J. Ch. 209; [1894] 1 Ch. 276; Jordeson v. Sutton, dc. Gas Co., 
68 L. J. Ch. 457 ; [1899] 2 Ch. 217. 



ACTION FOE DISTURBANCE OF COMMON. 

In this action the statement of claim states the plaintiff's right of common 
over the locus, either as appurtenant to a messuage of which the plaintiff 
is possessed, or in gross; the disturbance by the defendant; and the damage. 

Proof of right of common."] With regard to the evidence allowed by 
statute, the Prescription Act, 1832 (2 & 3 W. 4, c. 71), s. 1, provides 
that no claim which may be lawfully made at common law by custom, pre- 
scription, or grant, to any right of common, or other profit or benefit to be 
taken and enjoyed from or upon any land of another, except tithes, rent, and 
services, shall, where such right shall have been actually enjoyed by any 
person claiming right thereto, without inierruption for the full period of 30 
years, be defeated or destroyed by showing only that such right, &c., was 
first enjoyed at any time prior to such period ; but such claim may be 
defeated 'in any other way by which it is now liable to be defeated; and 
when such right, &c., shall have been so enjoyed for 60 years, it shall be 
deemed absolute and indefeasible, unless it shall appear that it was taken 
and enjoyed by some consent or agreement expressly made or given for that 
purpose, by deed or writing. The section applies to land of the Crown, and 
of the duchies of Lancaster and Cornwall. 

This Act does not apply to rights in gross. Shuttleworth v. Lee Fleming, 
19 C. B. (N. S.) 687; 34 L. J. C. P. 309. See also Mounsey v. Ismay, 
3 H. & C. 486; 34 L. J. Ex. 62. 

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Proof of Right of Common. 703 

There cannot be a grant of 'prof.t a prendre without a capable grantee. 
A series of residents in a house are not capable grantees. Westropp v. 
Congested Districts Board, [1919] 1 I. E. 224. 

The plaintiff may prove his claim, either at common law, or under 2 & 3 
W. i, c. 71. At common law the proof is by express grant, custom, or 
prescription. An ancient grant is, of course, admissible, if produced from 
the proper custody. A customary or prescriptive title is generally proved 
by usage. Instances of such a usage, although comparatively modern, 
are, if unopposed by other evidence, conclusive. R. v. Hoijte, 6 T. E. 430. 
Where this evidence cannot be procured, a right of common appurtenant 
may be proved by reputation. As to the presumption of a legal origin for 
the right, see Johnson v. Barnes, 42 L. J. C. P. 259; L. E. 8 C. P. 527. 

A right of common of pasture as appurtenant to a certain close may be for 
cattle without number, or for a certain number only; where without number, 
it is restrained to cattle levant and couchant upon the close. Morley v. 
Clifford, 51 L. J. Ch. 687; 20 Ch. D. 753. The expression "levant and 
couchant," is a measure of number, and implies that the number of cattle, 
which are alleged to have used the common, is such as the winter eatage of 
the close, together with the hay and other produce, obtained from it during 
the summer, is capable of maintaining. Carr v. Lambert, 3 H. & G. 499, 
506; 34 L. J. Ex. 66, 68; L. E. 1 Ex. 168, 176; Johnson v. Barnes, supra; 
1 Wms. Saund. 346 d, (2) and (I). See also Baylis v. Tyssen-Amhurst, 
46 L. J. Ch. 718; 6 Ch. D. 500, where a right of common was claimed over 
lammas lands. To prove a prescription for common by cause of vicinage, 
it is not enough to show the mere contiguity of the districts without any 
fence, and that cattle often strayed from one to the other, and were driven 
back; mutual acquiescence must be shown. Clarke v. Tinker, 15 L. J. 
Q. B. 19; 10 Q. B. 604; see also Sewers Commissioners v. Glasse, 44 L. J. 
Ch. 129 ; L. E. 19 Eq. 134. 

By sect. 7, the time during which a person, otherwise capable of resisting 
a claim, shall have been an infant, idiot, non-compos, covert, or tenant for 
life, or during which any action or suit shall have been pending and shall 
have been diligently prosecuted until abatement by death, shall be excluded 
in the computation of the above periods, except where the right is declared 
to be absolute and indefeasible. 

Where a profit a prendre has been enjoyed for 60 years, as of right, it is 
within sect. 1, if a claim thereto could arise by prescription, custom, or 
grant, and it is immaterial on what ground the claim was, in fact, made. 
Dei la Wart (Earl) v. Miles, 50 L. J. Ch. 754; 17 Ch. D. 535. There the 
acts upon which the claims were granted were acts showing a claim of right 
to a profit in alieno solo, although the claim was made under a mistaken 
belief. The words "claiming right thereto" in sect. 1 mean claiming 
right thereto as a common or profit, and not a claim to the soil upon which 
the right is to be exercised. Lyell v. Hothfield {Lord), 84 L. J. K. B. 
251; [1914] 8 K. B. 911. 

To prove a user under the statute, it is not necessary to show that it was 
exercised without any intermission whatever. In Carr v. Foster, 11 L. J. 
Q. B, 284; 3 Q. B. 581, proof that the tenant of a farm had exercised 
commonable rights, for nearly 40 years, was given; but it appeared that 
about 18 years back the owner had occupied the farm for two years, and 
having no cattle, made no use of the common : held, that there was good 
evidence of the 30 years' enjoyment required by the Act. In Carr v. 
Lambert, 34 L. J. Ex. 66; 3 H. & C. 499, a right of common of pasture 
for cattle levant and couchant, upon a certain close as appurtenant thereto, 
was held to have been proved, by evidence that cattle housed on the close 
had, for 30 years, been turned on the common, though they had not actually 
been fed from the produce of the close, which was not then cultivated in a 
manner suitable for the support of cattle. See De la Warr (Earl) v. Miles, 
supra. The plaintiff need not prove his title to the same extent as set out 
in the statement of claim j for the disturbance is the gist of the action, and 

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704 Action for Disturbance of Common. 

the title is only inducement. B. N. P. 75, 76 ; 1 Wms. Saund. 343, 346 (2). 
But though the right proved may be larger than the right alleged, it ought 
to be a right which includes the one alleged. Bailey v. Appleyard, 7 L. J. 
Q. B. 145; 8 Ad. & E. 161. An allegation of right of common for all the 
plaintiff's cattle levant and couchant is supported in evidence, although the 
common is not sufficient to feed all the cattle for any length of time. 
Willis V. Ward, 2 Chitty, 297. "Where the plaintiff claimed a right of 
common for all his commonable cattle, and the proof was that he had 
turned on all the cattle he had kept, but had never kept any sheep, it was 
held that this was evidence of a right for all commonable cattle to be left 
to the consideration of the jury. Manifold v. Pennington, 4 B. & C. 161 ; 

3 L. J. (0. S.) K. B. 182. 

A liberty to hunt, hawk, fish, and fowl, is within sect. 1 of the Prescrip- 
tion Act, and may be exercised by servants. Wickham v. Hawker, 
10 L. J. Ex. 153; 7 M. & W. 63. See Bland v. Lipscombe, 4 E. & B. 
713 (c) ; 24 L. J. Q. B. 155, n. ; Bruce v. Helliwell, 5 H. & N. 609; 29 L. J. 
Ex. 297; Ewa-rt v. Graham, 7 H. L. 0. 331; 29 L. J. Ex. 88; Leeonfield 
(Ld.) V. Dixon, 37 L. J. Ex. 33; L. E. 3 Ex. 30; Sowerby v. Smith, 
43 L. J. C. P. 290; L. R. 9 C. P. 524; Devonshire (Duke) v. O'Ccmnor, 
59 L. J. Q. B. 206; 24 Q. B. D. 468. 

The fact that some of the tenants of a manor have yielded to the lord's 
attempt to stop a user of a common, is not an interruption of the right 
within sect 4, so as to bar the rights of the freeholders, who, as a body, have 
not yielded to the lord's claim. Warrick v. Queen's College, Oxford, 
39 L. J. Ch. 636; 40 L. J. Ch. 780; L. E. 10 Eq. 105; L. E. 6 Ch. 716. 
See Glover v. Coleman, 44 L. J. C. P. 66 ; li. E. 10 C. P. 108. 

Proof of disturbance by the defendant.^ This evidence is proper on a 
defence which denies the wrongful act, and not the right. The action is 
maintainable against another commoner, as \pell as against a stranger ; 
Atkinson v. Teasdale, 2 W. Bl. 817; King v. Brown, Durrani d Co., 
82 L. J. Ch. 548; [1913] 2 Ch. 416; although the plaintiff himself has been 
guilty of a surcharge. Hobson v. Todd, 4 T. E. 71. But, in an action 
against the lord, the plaintiff, must allege a surcharge, and (if denied) prove 
it by showing that there is not a sufficiency of common left for him. Smith 
V. Feverel, 2 Mod. 6; 1 Wms. Saund. 346 b {in notis). Where the lord has ' 
licensed a third person to put cattle on the common, the plaintiff may declare 
against him as a stranger for a disturbance generally; Id. ; Hobson v. Todd, 

4 T. E. 73; and it will, it seems, lie upon the defendant to prove the licence, 
and that he has not exceeded it, and has left sufficient common for the 
plaintiff. 1 Wms. Saund., supra. But this defence must be pleaded 
specially. 

Damage.1 In an action against a stranger, the smallest damage, as 
carrying away the dung from the common, is sufficient to maintain the 
action. Pindar v. Wadsworth, 2 East, 154. And in an action against 
another commoner for surcharging , it is sufficient to prove that the defendant 
put on the common more cattle that he had a right to do, without proving 
any specific damage. Hobson v. Todd, 4 T. E. 71. 

Where the disturbance is continuing, damages are now assessed down to 
the time of assessment : Eules, 1883, 0. xxxvi., r. 58. 



Def&iu:e. 

The defendant may show, under a proper statement of defence, that the 
common has been enclosed and held in severalty, adversely, for upwards of 
20 years, which is a bar to the entry of the commoner. Hawke v. Bacon, 
2 Taunt. 156. Or he may show an extinction by unity of possession or by 
inclosure for over 20 years; Tapley v. Wainwright, 5 B. & Ad. 395; or by 

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Action for Disturbance of Way. 705 

approvement, leaving sufficient common to those entitled to it; Arlett v. 
Ellis, 7 B. & C. 346; 5 L. J. (0. S.) K. B. 301; Robinson v. Duleep Singh, 
48 Ij. J. Ch. 758; 11 Ch. D. 798. As to extinguishment by enfranchisement 
of the dominant tenement, see Baring v. Abingdon, 62 L. J. Ch. 105; 
[1892] 2 Ch. 374. The sufficiency is not measured by the present exercise 
by the commoners of their right. Robertson v. Hartopp, 69 L. J. Ch. 553; 
43 Ch. D. 484. The lord of the manor may take gravel, marl, loam and 
sub-soil of the waste for his own use, or for sale, if he do not infringe on 
the rights of the commoners, the onus of proving which lies on them. Hall 
V. Byron, 46 L. J. Ch. 297 ; 4 Ch. D. 667. Such matters must now in general 
be pleaded specially, as they would, if not so pleaded, be likely to take the 
plaintiff by surprise. See Rules, 1883, 0. xix., r. 15. Where the claim is 
founded on 30 years' user, the defendant may show that the dominaut tene- 
ment was land allotted and enclosed 40 years ago under an inclosure act, that 
the land over which the right was claimed was and is part of the Crown 
demesne, and that at that time, and ever since, the Crown was disabled by 
statute from making any such grant of common. And qucere vvhether the 
Prescription Act applies to land over which there was, during the time of 
enjoyment, a statutable prohibition to make any such grant? Mill v. New 
Forest Commissioners, 18 C. B. 60; 25 L. J. C. P. 212; and see Wingrove 
Cooke on Inclosures and Eights of Common, 4th ed. 92. 



ACTION FOE DI8TUEBANCE OP WAY. 

In an action for the disturbance of a private way, the statement of claim 
usually alleges the possession of certain premises, a right of way appurtenant 
thereto, and the disturbance of it by the defendant. It cannot, in general, 
be brought by a reversioner, unless the disturbance be of a permanent 
character, such as an obstruction of the way by a wall, posts, &c., so as to 
threaten an injury to the freehold. See Kidgill v. Moor, 9 C. B. 864; 
19 L. J. C. P. 177 ; Palk v. Shinner, 18 Q. B. 568; 22 L. J. Q. B. 27. As 
to obstruction of a churchway, see Batten v. Gedye, 58 L. J. Ch. 549; 
41 Ch. D. 507. 

Right of way, how pro'oed.~\ The modes of proving a right of way are 
(1) by express grant, (2) by user, (3) by necessity, (4) by the Act of 
Inclosure Commissioaers. 

When the user has not continued down to the commencement of the suit, 
then the right must be claimed by prescription at common law, or by a grant 
alleged to have existed, but now to be lost ; for in such a case the claim 
under the Prescription Act, 1832, 2 &; 3 W. 4, c. 71, could not be supported. 
See Bullen & Leake on Pleading, 3rd ed., p. 811 (b). 

The termini of the way, as stated in the claim, must be proved; but a 
variance in this respect would be at once amended if no injustice were 
thereby done. 

If the claim allege the way to be enjoyed " by reason " of a messuage, it 
will not be siSpported by proof of a right independent of it. Fentiman v. 
Smith, 4 East, 107 ; Barnes v. Ward, 19 L. J. C. P. 195 ; 9 C. B. 392. The 
allegation may generally be struck out, or otherwise amended. Hearsay 
evidence is not admissible to prove a private way. 

A right of way along the bank of a river may be appendant or appurtenant 
to a right of fishing therein. Hanbury v. Jenhins, 70 L. J. Ch. 730; [1901] 
2 Ch. 401, 422, 423. 

Right of way, how proved— by express grant.] The proof of a right of 
way by express grant is, of course, a question more of construction than of 
evidence. See Cliff ori^^;^^i^f,^chdbf^ ^25; L. E. 9 C. P. 362; 



706 Action for Disturbance of Way. 

Cannon v. Villars, 47 L. J. Oh. 597; 8 Ch. D. 415; Baxmdale v. JV. 
Lambeth, So. Club, 71 L. J. Ch. 806; [1902] 2 Ch. 427. As to the con- 
struction to be given to general words, see Brett v. Clowser, 5 C. P. D. 376. 
By the Conveyancing Act, 1881, conveyances of land made after Dec. 31, 
1881, are to be deemed to include certain general words, unless expressly 
excluded; see hereon Broomfield v. Williams, 66 L. J. Ch. 305; [1897] 

1 Ch. 602; Quicke v. Chapman, 72 L. J. Ch. 373; [1903] 1 Ch. 659; Inter- 
national Tea Stores v. Hobbs, 72 L. J. Ch. 503; [1903] 2 Ch. 165. The 
grant may arise by estoppel ; as where land demised is described as bounded 
by " newly-made streets," which are set out in an indorsed plan, and the 
lessee is bound to build houses on the land, and " to kerb the causeways 
adjoining the said land," the lessor and his assigns are estopped from deny- 
ing a right of way along the street. Espley v. Wilkes, 41 L. J. Ex. 241; 
L. E. 7 Ex. 298. See also Mellor v. Walmesley, 74 L. J. Ch. 475; [1906] 

2 Oh. 164. It is to be observed that a grant of a right of way in gross may 
be made good against subsequent assignees of the servient tenement 
although covenants to keep it in repair, &c. , cannot, as not running with 
the land. Spencer's Case, 1 Smith's Lead. Gas., in notis.' On a severance 
of the dominant tenement the right of way is also severable and apportion- 
able. Newcomen v. Goulson, 46 L. J. Ch. 459; 5 Ch. D. 133. The 
grantee of a private way must repair it, if necessary, himself, and the owner 
of the servient tenement is not bound to do so, unless he has expressly so 
bound himself. Pomfret v. Ricroft, 1 Wms. Saund. 322 b. ; Ingram v. 
Morecraft, 33 Beav. 49. But the grantee is not compellable to repair it. 
Duncan v. Louch, 14 L. J. Q. B. 185; 6 Q. B. 904. Where the agreement 
for sale of land A., which was between two other plots of the vendor's land, 
provided for the right of access over A., but the conveyance conveyed all 
rights, ways, easements, estates, &c., and contained no reservation of a 
right of way, any right of access stipulated for, was held to be extinguished. 
Teehay v. Manchester, ic. Ry., 52 L. J. Ch. 613; 24 Ch. D. 572. Where 
however the conveyance also reserved such right of access, the purchaser 
was held bound to allow it although he had not executed the conveyance. 
May V. Belleville, 74 L. J. Ch. 678 ; [1905] 2 Ch. 605. A grant of way over 
a bridge free of toll to the defendant company's predecessors in title, their 
heirs and assigns, and their servants, customers and workmen extends to 
licensees. Hammond v. Prentice, 89 L. J. Ch. 91; [1920] 1 Ch. 201. 

Right of way, how proved — by implied grant or by necessity.] A right of 
way by necessity, as it is sometimes called, is really a way by implied grant. 
If A. grant a tenement surrounded by his own land to B., B. is entitled to 
a right of way to it through the land of the grantor, if such way be absolutely 
necessary to the enjoyment of what is granted. 1 Wms. Saund. 323 o, (6) ; 
Palmer v. Fletcher, 1 Lev. 122; Staple v. Heydon, 6 Mod. 3; Gayford v. 
Moffatt, L. R. 4 Ch. 183; Polden v. Bastard, 35 L. J. Q. B. 92; L. E. 

1 Q. B. 156. And where the land conveyed encloses the reserved land there 
is an implied re-grant to the grantor of a way through it. Pinnington v. 
Galland, 9 Ex. 1 ; 22 L. J. Ex. 348. See also Davies v. Sear, 38 L. J. Ch. 
545; L. E. 7 Eq. 427. The extent of this right of way re-granted, is 
limited by the use made of the reserved land, at the time of the grant ; 
London Corporation v. Riggs, 49 L. J. Ch. 297; 13 Ch. D. 798; and it 
seems that the same rule applies where the land granted is 'surrounded by 
the grantor's land. S. C. This re-grant is an exception to the general 
principle, that in the case of a grant there is no re-grant of easements over 
the land granted : see Wheeldon v. Burrows, 48 L. J. Ch. 853; 12 Ch. D. 
31; Derry v. Sanders, 88 L. J. K. B. 410; [1919] 1 K. B. 223. But the 
re-grant only arises in those cases in which the easement is one " without 
which the property retained cannot be used at all, and not one merely 
necessary for the reasonable enjoyment of that property." Union 
Lighterage Co. v. L. Graving Dock Co., 71 L. J. Ch. 791, 799; [1902] 

2 Ch. 557, 573. As to the mode of ascertaining the way, see Pearson v. 
Spencer, 1 B. & S. 571 ; 3 B. & S. 761. 

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Right of Way, how Proved. 707 

Right of way, how proved — by prescription at common law, or non-existing 
grant. j^ Formerly a right of way not claimed by express grant must have 
been shown to have existed from time immemorial, that is, from the begin- 
mg of the reign of Eichard I. (a.d. 1189). This is called a claim by prescrip- 
tion at common law, to distinguish it from a different kind of prescription 
created by statute. 

But as it would, in almost all cases, be impossible to show the existence of 
the right for so long a period, evidence of user for a much shorter period, has 
been long considered sufficient to support a claim by prescription at common 
law, if not negatived by showing, as is sometimes possible, that the right 
came into existence at a later date. This period has been fixed by analogy 
to the limitation contained in the 21 J. 1, c. 16, at 20 years. 

And although the evidence fail to support a claim by prescription at 
common law, by reason of its appearing that the right originated at a date 
later than the reign of Eichard I. , it will be sufficient to support a claim of 
the same right by lost or non-existing grant. This means a modern express 
grant, of the existence of which, enjoyment for a period of 20 years is held 
to be evidence. The grant may now be pleaded without stating date or 
parties. Palmer v. Guadagni, 75 L. J. Ch. 721 ; [1906] 2 Ch. 494. 

The only reason for claiming a right of this kind by prescription at 
common law, and also by lost grant, would seem to be a doubt as to the 
conclusiveness of the presumption in the latter case; i.e., a doubt how far 
a jury would be at liberty to disregard the evidence of enjoyment and 
negative the grant. It is probable, however, that if they did so, the court 
would grant a new trial toties quoties. See Jenkins v. Harvey, 5 L. J. Ex 
17; 1 C. M. & E. 877. 

The doctrine of lost grant applies only where the enjoyment cannot other- 
wise be reasonably accounted for. Gardner v. Hodgson's Kingston 
Brewery Co., 72 L. J. Ch. 558, 564; [1903] A. C. 229, 240; Lyell v. Hoth- 
field (Lord), 84 L. J. K. B. 251; [1914] 3 K. B. 911. 

Where the disputed road was substituted in fact for an awarded road, 
see Hulbert v. Dale, 78 L. J. Ch. 457; 79 L. J. Oh. 48; [1909] 2 Ch. 570. 

The inhabitants of a parish may by custom have a churchway through the 
demesne of a manor within the parish. Brocklebank v. Thompson, 
72 L. J. Ch. 626 ; [1903] 2 Ch. 344. So, too, may a right of way be, by the 
custom of a particular manor, acquired over portions of land within that 
manor as appurtenant to other portions within the same manor, and where 
such a custom prevails it is immaterial that unity of title is in the lord of the 
manor in respect of both dominant and servient tenements. Derry v. 
Sanders, 88 L. J. K. B. 410; [1919] 1 K. B. 223 (Bankes, L.J.). 

Right of way, how proved — 2 tC- 3 W. 4, c. 71.] By the Prescription Act, 
1832, 2 & 3 W. 4, c. 71, s. 2, " no claim which may be lawfully made at the 
common law by custom, prescription, or grant to any way or other easement, 
or to any watercourse, or the use of any water, to be enjoyed, or derived 
upon, over, or from any land or water of our said lord the king, his heirs, or 
successors, or being parcel of the duchy of Lancaster, or of the duchy of Corn- 
wall, or being the property of any ecclesiastical or lay person, or body 
corporate, when such way or other matter as herein last before mentioned 
shall have been actually enjoyed by any person claiming right thereto 
without interruption for the full period of 20 years shall be defeated or 
destroyed by showing only that such way or other matter was first enjoyed 
at any time prior to such period of 20 years, but nevertheless such claim 
may be defeated in any other way by which the same is now liable to be 
defeated ; and where such way or other matter as herein last before mentioned 
shall have been so enjoyed as aforesaid for the full period of 40 years, the 
right thereto shall be deemed absolute and indefeasible, unless it shall appear 
that the same was enjoyed, by some consent or agreement, expressly given 
or made for that purpose, by deed or writing." Sect 5 : " in all actions upon 
the case, and other pleadings \rtierein. the part^idaiming, may now by law 



708 Action for Disturbance of Way. 

allege his right generally, without averring the existence of such right from 
time immemorial, such general allegation shall still be deemed sufficient, and 
if the same shall be denied, all and every the matters in this act rnentioned 
and provided, which shall be applicable to the case shall be admissible in 
evidence to sustain or rebut such allegation; and that in all pleadings to 
actions of trespass, and in all other pleadings, wherein before the passing of 
this act, it would have been necessary to allege the right to have existed 
from time immemorial, it shall be sufficient to allege the enjoyment thereof, 
as of right, by the occupiers of the tenement, in respect whereof the same is 
claimed, for and during such of the periods mentioned in this act as may be 
applicable to the ease, and without claiming in the name or right of the 
owner of the fee as is now usually done ; and if the other party shall intend 
to rely on any proviso, exception, incapacity, disability, contract, agreement, 
or other matter hereinbefore mentioned, or on any cause or matter of fact or 
of law not inconsistent with the simple fact of enjoyment, the same shall be 
specially alleged and set forth in answer to the allegation of the party 
claiming, and shall not be received in evidence on any general traverse or 
denial of such allegation." As to the word " hereinbefore " in this section, 
see observations in Pye v. Mumford, 17 L. J. Q. B. 138; 11 Q. B. 666. 

Sect. 8 provides that when land or water, upon, over, or from which any 
way or other convenient (sic. ; qy. easement, see Laird v. Briggs, 19 Ch. D. 
83, per Jessel, M.E.) watercourse or use of water shall have been enjoyed 
or derived, has been held under any term of life or years, exceeding three 
years, the time of enjoyment during such term shall be excluded in the 
computation of the period of 40 years, " in case the claim shall within 
3 years next after the end or sooner determination of such term be resisted 
by any person entitled to any reversion expectant on the determination 
thereof." 

The words " or other easement," in sect. 2, are, it seems, applicable to 
all easements, although not analogous to the contiguous words, " way " or 
" watercourse." Dalton v. Angus, 50 L. J. Q. B. 689, 734; 6 App. Cas. 
740, 798; Simpson) v. Godmanchester Cor., 66 L. J. Ch. 770, 777; [1897] 
A. C. 696, 709. No right can be acquired, under sect. 2, to send noise or 
vibration over the neighbouring land. Sturges v. Bridgman, 48 L. J. Ch. 
785 ; 11 Ch. D. 852. The Act does not apply to rights in gross. Shuttle- 
worth V. Le Fleming, 19 C. B. (N. S.) 687; 34 L. J. C. P. 309. 

To establish a right of way by enjoyment for 20 years the claimant must 
show that he has enjoyed it for the full period required, and that he has 
done so, "as of right." Therefore, if the way shall appear to have been 
enjoyed by the claimant, not openly, but by stealth, as a trespasser would 
have done, or if he shall have occasionally asked the permission of the 
occupier of the land, no title will be so acquired. So, if there has been unity 
of possession during all or part of the time, for then the claimant will not 
have enjoyed, as of right, the easement but the soil itself. So, the easement 
must have been enjoyed without interruption. Again, such claim may be 
defeated in any other way by which a similar claim by custom, prescription 
or grant, may be defeasible; and therefore it may be answered by proof of a 
grant, or of a licence, written or oral, for a limited period, comprising the 
whole or part of the 20 years, or by proof of the absence or ignorance of the 
parties interested in opposing the claims, and their agents, during the whole 
time that it was exercised. See Bright v. Walker, 3 L. J. Ex. 250, 253; 
1 C. M. & E. 211, 219. So, where in an action of trespass, the defendants 
pleaded that they had for 20 years as of right and without interruption used 
a right of way, Parke, B., observed : " The permission asked for and given 
shows that the occupiers of the closes did not enjoy the way ' as of right ' ; 
and also that they did not enjoy it uninterruptedly." Ld. Lyndhurst, C.B., 
also said : " The simple issue is, whether there has been a continued enjoy- 
ment of the way for 20 years ; and any evidence negativing the continuance 
is admissible. Every time that the occupiers ask for leave, they admit that 
the former licence had expired, and that the continuance of the enjoyment 

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Right of Way, how Proved, 709 

was broken." Monmouthshire Canal Co. v. Harford, i L. J. Ex. 43 47- 

1 C. M. & E. 614, 631. 

The enjoyment meant by the statute is, "an enjoyment had openly, 
notoriously, without particular leave at the time, by a person claiming to 
use it without danger of being treated as a trespasser, as a matter of right 
whether strictly legal by prescription and adverse user, or by deed conferring 
the right; or, though not strictly legal, yet lawful to the extent of excusing 
a trespass as by a consent or agreement in writing not under seal, in case of 
a, plea for 40 years, or by such writing, or parol consent, or agreement, 
contract, or licence, in case of a plea for 20 years." Tickle v. Brown 
4 Ad. & B. 369, 382, 383; 5 L. J. K. B. 119, 122. Thus an annual payment 
for the use of the way, paid under an agreement made within 40 years before 
action, will defeat an enjoyment for that period, by negativing its being " as 
of right." S. C. So will payment for the user of the way for more than 
40 years. Gardner v. Hodgson's, dc, Brewery Co., 72 L. J. Ch. 558; 
[1903] A. C. 229. So will proof of leave and licence, applied for and granted 
within the 40 years. Beasley v. Clarke, 5 L. J. C. P. 281; 2 Biug. N. C. 
705. The above principles are usually summarized in the phrase that the 
acts of enjoyment must be nee per vim, nee clam, nee precario. Co. Litt. 
114 a, citing Bracton 222 b; Burrows v. Lang, 70 L. J. Ch. 607; [1901] 

2 Ch. 502. See further, Eaton v. Swansea Waterworks, 17 Q. B. 267, 275; 
20 L. J. Q. B. 485; Oaved v. Martin, 19 C. B. (N. S.) 732, 748; 34 L. J. 
G. P. 353, 357. Proof that the plaintiff, before the commencement of the 
period, held the right under a lease, is evidence from which the jury may, 
if they think proper, infer a permissive enjoyment after its expiration. 
Clay V. Shackeray, 2 M. & Eob. 244. See also Chamber Colliery Co. v. 
Hopwood, 55 L. J. Ch. 869-; 32 Ch. D. 649, and Tone v. Preston, 53 L. J. 
Ch. 50; 24 Ch. D. 739. Unity of possession disproves the enjoyment of the 
easement as such. Olney (or Onley) v. Gardiner, 8 L. J. Ex. 102; 4 M. & 
W. 496; Clayton v. Corby, 11 L. J. Q. B. 239; 2 Q. B. 813; Winship v. 
Hudspeth, 10 Ex. 6 ; 23 Ij. J. Ex. 268 ; Damper v. Bassett, 70 L. J. Ch. 
657 ; [1901] 2 Ch. 350. For this reason a tenant of land cannot acquire, 
by prescription, an easement appurtenant to such land, over other land 
belonging to his landlord, for the occupation of the tenant is the occupation 
of the landlord. Gayford v. Moffatt, L. E. 4 Ch. 133. Where the easement 
has been enjoyed without the knowledge of either party, the user will not, 
as required by the statute, be under a claim of right. See Partridge v. 
Scott, 7 L. J. Ex. 101 ; 3 M. & W. 220. 

An enjoyment for 50 years down to within a few years before action 
brought, when it ceased, will not establish a right of way under this statute. 
Parker v. Mitchell, 9 L. J. Q. B. 194; 11 Ad. & E. 788; Lowe v. Carpenter, 
6 Ex. 825 ; 20 L. J. Ex. 374. So, where thel user was at intervals of 12 
years, and the last user, but one, was 12 years before action, the statute 
did not apply. Hollins v. Vemey, 53 L. J. Q. B. 430; 13 Q. B. D. 304. 
Although, however, non-user for more than a year is primd facie fatal to 
the right, yet it may be so explained as to warrant a jury in finding an 
actual enjoyment for the statutory period, at whatever part of that period 
the non-user may occur. S. C. Thus the non-user may be explained by 
the circumstance of the claimant not having any necessity for the enjoyment. 
Carr v. Foster, 11 L. J. Q. B. 284; 3 Q. B. 581. It has been ruled that, 
if there be 10 years' enjoyment of a right of way, and then a cessation under 
a temporary agreement for another 10 years, yet this may be a sufficient 
enjoyment of the old right for 20 years to make it indefeasible under the 
statute, for the agreement to suspend the enjoyment of the right does not 
extinguish, nor is it inconsistent with, the right. Thus, if, instead of a 
direct path from A. to B., another track over the plaintiff's land from A. to 
C. and thence to B., had been substituted by oral agreement of the parties 
for an indefinite time, yet the user of the substituted line may be considered 
as substantially an exercise of the old right, and evidence of the continued 
enjoyment of it. ^^^ g^ff^^^jj^ ^^^f^^Q^^^'^^"' ^ ^- '^ ^°^- ^^^' 



710 Action for Disturbance of Way. 

and see Hale v. OldroyU, 15 L. J. Ex. 4; 14 M. & W. 789; Hall v. Swift, 
7 L. J. C. P. 209; 4 Bing. N. C. 381. In order to prove 40 years' user, 
evidence may be given further back to raise a presumption of user at the 
beginning of the period of the 40 years. Lawson v. Langley, 6 L. J. K. B. 
271 ; 4 Ad. & E. 890. An interruption under this Act must be by the owner 
of the locus in quo (i.e., of the servient land). Per Parke, B., Onley v. 
Gardiner, 4 M. & W. 497. Where, pending negotiations for a compromise, 
there has been an interruption of the enjoyment for more than one year 
before action brought, it is for the jury to say whether the interruption has 
been acquiesced in or not. Bennison v. Cartwright, 5 B. & S. 1 ; 33 L. J. 
Q. B. 137; Glover v. Coleman, 44 L. J. C. P. 66; L. E. 10 C. P. 108. 
When non-user of a way for a year is proved by the defendant, he may also 
prove payment of an acknowledgment for the user just before the non-user, 
in order to rebut the inference of a mere voluntary forbearance on the part 
of the claimant. Tickle v. Brown, 5 L. J. K. B. 119; 4 Ad. & B. 369. A 
claim of way for cattle and carts may be proved by showing constant use 
for cattle, and a user for less than 20 years for carts, the claimant not having 
possessed carts for parts of the period. Dare v. Heathcote, 25 L. J. Ex. 245. 

A consent in writing by a party who could have objected, during any part 
of the period, will prevent the operation of the statute. Toynbee v. Brown, 
18 L. J. Ex. 99; 3 Ex. 117 (decided on the Tithe Prescription Act, 2 & 
3 W. 4, c. 100). Qucere, whether a consent contained in an answer in 
Chancery would be sufficient. S. G. 

By sect. 7, where the person who ought to resist the claim of right is 
under certain disabilities, or is tenant for life, the period of disability or 
of the life estate is to be excluded from the period of 20 or 30 years, as 
the case may be. If, therefore, any such disability occur during the 20 or 
30 years next before the suit, the claimant must make up the full period by 
proof of user before it began ; and the whole period of 20 or 30 years so 
made up will be deemed to be " next before the suit ' ' within the meaning 
of the Act. Thus, where the defendant pleaded enjoyment of a profit in 
alieno solo for 30 years, to which the plaintiff replied a tenancy for life 
for 25 years out of the 30, to which the defendant rejoined that the life 
estate did not continue during the 30 years, and defendant proved an enjoy- 
ment for 24 years next before, and six years next after the life estate till 
action brought, the defendant was held entitled to a verdict. Clayton v. 
Corby, 11 L. J. Q. B. 239; 2 Q. B. 813. But, in the absence of such special 
reply, 30 cons.ecutive years must be shoWn. S. C. The life estate must 
be specially replied, and cannot be shown on ,a traverse of the enjoyment; 
for it is a " matter not inconsistent with the simple fact of enjoyment." 
Pye V. Mumford, 17 L. J. Q. B. 138; 11 Q. B. 666; Kinloch v. Nevile, 
10 L. J. Ex. 248; 6 M. & W. 795. And it would seem that such disability 
will not prevent a legal interruption, submitted to while it lasted, from 
defeating the claim. Clayton v. Corby, supra. 

Under sect. 8 a tenancy of term of lite, or of years exceeding three, will 
be excluded from the computation of 40 years (applicable to ways and 
watercourses), only on condition that the claim is resisted by the reversioner 
within three years after the determination of the term. Wright v. Williams, 
5 L. J. Ex. 107 ; 1 M. & W. 77. But such tenancy for more than three years 
is not excluded from the computation where the claim is in respect of 
20 years' enjoyment. Palk v. Skinner, 18 Q. B. 568; 22 L. J. Q. B. 27. 
In sect. 8 the word " reversion " does not include a remainder. Laird v. 
Briggs, 19 Ch. D. 22. 

Where a way has been used adversely for 20 years over land in possession 
of a lessee. A., the dominant and servient tenements being both held under 
leases for lives granted by a bishop B., who held it in right of his see, this 
user did not affect the see and gave na right as against either B. or A., 
Bnght v. Walker, 3 L. J. Ex. 250 ; 1 C. M. & E. 211 ; Wheaton v Maple, 
62 L. J. Ch. 963; [1893] 3 Ch. 48;: for " the act has not created a class 
of easements which, could not be gained by prescription at common law, 

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Public Right of Way — Proof of Public Way. 711 

or in other words, has not created an easement for a limited time only, 
or available only against particular owners or occupiers of the servient 
tenement." S. C. So where there has, in a similar case, been adverse 
user for 40 years. Kilgour v. Gaddes, 73 L. J. K. B. 233; [1904] 
1 K. B. 457. 

Public right of way.l In an action for the disturbance of a public right 
of way, the statement of claim usually states the existence of a public 
highway, the plaintiff's possession of adjoining premises, and his disturbance 
in the use of the way. For an obstruction of a permanent character it would 
seem that an action may be brought by a reversioner. Kidgill v. Moor, 
9 C. B. 364; 19 L. J. C. P. 177; Simpson v. Savage, 1 C. B. (N. S.) 347; 
26 L. J. C. P. 50. It must be «hown that the plaintiff has sustained an 
inconvenience beyond that which is common to the public at large. 

Proof of public way.] Public ways, when not created and regulated by 
Acts of Parliament, are usually proved by notorious and uninterrupted user, 
from which a dedication to the public by the owner of the land over which 
the way extends may be implied. " If the owner of the soil throws open 
a. passage and neither marks by any visible distinction that he means to 
preserve all his rights over it, nor excludes persona from passing through it 
by positive prohibition, he shall be presumed to have dedicated it to the 
public." Per Ld. EUenborough , B. v. Lloyd, 1 Camp. 262; British Museum 
Trustees v. Finnis, 5 C. & P. 460. But proof of a bar having been placed 
across the street soon after the houses which form the street were finished 
will rebut the presumption of dedication, though the bar was soon afterwards 
knocked down, and the way used as a thoroughfare. Roberts v. Karr, 

1 Camp. 262, n. See also Healey v. Batley Corporation, 44 L. J. Ch. 642 
L/. E.. 19 Bq. 375. The question of dedication depends upon the time and 
nature of the enjoyment of the passage over the land ; therefore where the 
plaintiff erected a street leading out of a highway across his own close, 
and terminating at the edge of the defendant's adjoining close, which was 
separated by the defendant's fence from the end of the street, after 21 years 
(during 19 of which the houses were completed, and the street publicly 
watched, cleansed and lighted, and both footways, and half the horseway 
paved at the expense of the inhabitants), it was held that this street was 
not to be presumed to be so dedicated to the public, as that the defendant, 
pulling down his own wall, might enter it at the end adjoining to his land, 
and use it as a highway. Woodyer v. Hadden, 5 Taunt. 125. See Poole v. 
Huskinson, 11 M. & W. 827. A footway across a field may be a highway 
within sect. 72 of the Highway Act, 1835. Dennis v. Good, 88 L. J. K. B. 
388. A public right of way may exist over a place which is not a 
thoroughfare; Bateman v. Bluck, 18 Q. B. 870; 21 L. J. Q. B. 406; 
Vernon v. St. James' Vestry, 50 L. J. Ch. 81 ; 16 Ch. D. 449; provided 
expenditure has been incurred on it by the local authority. See Bourke v. 
Davis, 44 Ch. D. 110, 123; Att.-Gen. v. Antrobus, 74 L. J. Ch. 699, 608; 
[1905] 2 Ch. 188, 206, 207; Whitehmse v. Hugh, 75 L. J. Ch. 677; [1906] 

2 Ch. 283. So there may be a public right of way along an artificial 
structure, as a bridge. Gd. Surrey Canal Co. v. Hall, 9 L. J. C. P. 329; 
1 M. & Gr. 392. Or a sea wall. Greenwich Board of Works v. Maudslay, 
39 L. J. Q. B. 205 ; L. E. 5 Q. B. 897. A public right of way must primd 
facie lead from one public place to another; Att.-Gen. v. Antrobus, supra; 
it cannot be acquired by mere user of a way leading to an object of interest, 
e.g., Stonehenge, on private property. S. C. But a piece of land which is 
a cul de sac may be dedicated as a highway. Att.-Gen. v. Sewell, 88 L. J. 
K. B. 425. A way ceases to be public when access at both ends has become 
impossible by reason of the ways leading to it having been legally blocked 
up. Bailey v. Jamieson, 1 C. P. D. 329. The right of the public to go in 
boats along a ^°^-^'-^^jHMdd M^Mcfh^SM) '^"'^'^'■'^9 v. Colquhoun, 



712 Action for Disturbance of Way. 

2 App. Gas. 839; Bourke v. Davis, supra. The user of the way may have 
been imcler such circumstances that no right should be inferred therefrom. 
Behrens v. Richards, 74 L. J. Ch. 615, 618; [1905] 2 Ch. 614, 620, following 
Blount V. Layard, [1891] 2 Ch. 691 n, per Bowen, L.J. 

It seems that there may be a limited dedication of a highway to the 
public; as a way excluding carriages, &c. Staff crrd (Marquis) v. Coyney, 
7 B. & C. 257 ; 5 L. J. (0. S.) K. B. 286. But not a dedication to a limited 
portion of the public as to "■ parish. Bermondsey Vestry v. Brown, L. E. 
1 Eq. 204; 35 Beav. 226; Poole v. Huskinson, supra. If a way be dedicated, 
with a reservation which cannot take effect in law, the dedication is void. 
S. C. It is doubtful whether a private person can, mero motu, dedicate a 
public way, subject to the reservation of toll for the user thereof. Austerberry 
V. Oldham Cor., 55 L. J. Ch. 633; 29 Ch. D. 750. Trustees in whom land 
is vested for public purposes may lawfully dedicate the surface of it to the 
public as a highway if such use be not inconsistent with the purposes of 
their trust. R. v. Leake. 5 B. & Ad. 469; Gd. Surrey Canal Co. v. Hall, 
supra; Gd. Junction Canal Co. v. Petty, 57 L. J. Q. B. 572; 21 Q. B. D. 
273; Arnold v. M-organ, 80 L. J. K. B. 955; [1911] 2 K. B. 314. Though 
it is otherwise where such use would be inconsistent with those purposes. 
S. C; Mulliner v. Midland Ry. Co., 11 Ch. D. 611; Gt. Central Ry. v. 
Balby-with-Hexthorpe Urban Council, 81 E. J. Ch. 596; [1912] 2 Ch. 110. 
It was held in one case that six years may be sufficient to found the presump- 
tion of dedication; Rugby Charity Trustees v. Merryweather, 11 East, 
376, n. ; and where the locus in quo had been in lease for a long term down 
to 1780, and from that year till 1788 the public were permitted to have the 
free use of it as a way, this was held sufficient time for presuming a dedica- 
tion. S. C. Whether there be a dedication or not is always a question of 
intention, and may be disproved by the acts of the owner or the circumstances 
under which the use* has been permitted. Barraclough v. Johnson, 7 L. J. 
Q. B. 172 ; 8 Ad. & B. 99 ; see also Folkestone Cor. v. Brockman, 83 L. J. 
K. B. 745 ; [1914] A. C. 338; Rowley v. Tottenham Urban Council, 83 L. J. 
Ch. 411; [1914] A. C. 95. If the land be in the possession of a tenant, 
such tenant cannot dedicate it to the public so as to bind the owner of the 
fee. Wood v. Veal, 5 B. & A. 454; Bermondsey Vestry v. Brown, supra. 
Nor can the tenant dedicate it for his term. Corsellis v. L. County Council, 
77 L. J. Ch. 120; [1908] 1 Ch. 13. But, after a long lapse of time and a 
frequent change of tenants, Ld. Ellenborough held that, from the notorious 
and uninterrupted use of a way by the public, it might be presumed that 
the landlord had notice of the user, and that it was with his concurrence; 
R. V. Barr, 4 Camp. 16 ; or that the way had been dedicated by the landlord 
before the date of the lease. Winterbattom v. Derby (Lord), 36 L. J. Ex. 
194; L. E. 2 Ex. 316. And where public user alone, for six or seven years, 
was shown, the presumption was held not to be rebutted by proof that the 
land had been a short time before in strict settlement, but had been sold 
in fee under a power before the user began. It lies on those who deny the 
dedication to show that there was no one in esse at the time who was 
competent to dedicate. R. v. Petrie, 4 E. & B. 738; 24 L. J. Q. B. 857. 
Where a public footway over Crown land was extinguished by an inclosure 
Act, but for 20 years after the inclosure took place the public had continued 
to use the way, it was ruled that this user was no evidence of a dedication 
to the public, as it did not appear to have been with the knowledge of the 
Crown. Harper v. Charlesworth, 4 B. & G. 574; 3 L. J. (0. S.) K. B. 265. 
Yet there may be a dedication by the Crown ; and where the user has been 
uninterrupted for 40 or 50 years, and the land not under lease, the dedication 
ought to be presumed, whether the freehold be in the Crown or in an 
unknown jiarty. R. v. East Mark, 17 L. J. Q. B. 177 ; 11 Q. B. 877 ; Turner 
V. Walsh, 50 L. J. P. C. 55 ; 6 App. Gas. 636. A corporation can dedicate 
a public way, provided such way be not inconsistent with the objects for 
which they are incorporated. Gd. Surrey Canal Co. v. Hall, 9 L. J. C. P. 
329; 1 M. & Gr. 892; Greenwich Board of Workg v. Maudslay, 39 L. J. 

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Prooj of Public Way — Disturbance by Defendant. 713 

Q. B. 205; L. E. S Q. B. 397. See notes to Dovaston v. Payne, 2 Smith's 
L. Cases. 

The Highway Acts, 1835 and 1864 (5 & 6 W. 4, c. 50, and 27 & 28 V. 
c. 101), do not affect the mode by which a highway may be dedicated to the 
public, except where it is sought to make the parish liable to repairs. B. v. 
West Mark, 2 M. & Rob. 305; Gd. Surrey Canal Co. v. Hall, supra; 
Roberts v. Hunt, 15 Q. B. 17; Healey v. Batley Cor., 44 L. J. Ch. 642; 
L. R. 19 Eq. 375. A road set out by commissioners under the Inclosure 
(Consolidation) Act, 1801 (41 Q-. 3, c. 109), ss. 8, 9, does not become a 
highway until the requirements of the Act have been complied with. Cubitt 
Y. Maxse, 42 L. J. C. P. 278; L. E. 8 C. P. 704. 

Where an ordinary highway runs between fences upon both sides those are 
primA facie its boundaries, and the public are entitled to make use of the 
whole space, and are not confined to that part which is metalled or kept in 
order for traffic , and any practical obstruction which hinders any one from 
using the way in this manner will be an indictable nuisance even although 
the obstruction was sanctioned by the road authority. R. v. U. K. Tele- 
graph Co., 31 L. J. M. C. 166; imperfectly reported, 2 B. & S. 647, n. ; R. 
V. Train, 2 B. & S. 647; 31 L. J. M. C. 169; Turner v. Ringwood Highway 
Board, L. R. 9 Bq. 418; Harvey v. Truro Council, 72 L. J. Ch. 705; [1903] 
2 Ch. 638; Offin v. Rochford Rural Council, 75 L. J. Ch. 348; [1906] 1 Ch. 
342; Att.-Gen. v. Hemingway, 15 L. G. R. 161. The presumption may, 
however, be rebutted where the facts raise a counter-presumption that the 
fences were placed for a different purpose; Offin's Case, supra, per Warring- 
ton, J., following Neeld v. Hendon Urban Council, 81 D. T. 405 ; or that there 
had been user of the unmetalled part, inconsistent with its being a highway ; 
S. C. ; Belmore (Countess) v. Kent County Council, 70 L. J. Ch. 501; [1901] 1 
Ch. 873. See further as to dedication, Att.-Gen. v. Esher Linoleum Co., 70 
L. J. Ch. 808; [1901], 2 Ch. 647, and Charley Cor. v. Nightingale, 75 L. J. 
K. B. 793; 76 L. J. K. B. 1003; [1906] 2 K. B. 612; [1907] 2 K. B. 637. 
Unless the obstruction of the highway is appreciable the defendant will be 
entitled to a verdict. R. v. Lepille, 15 L. T. 158; R. v. Bartholomew, 77 
L. J. K. B. 275; [1908] 1 K. B. 554. A highway may be dedicated with an 
obstruction upon it, such as a flap-door opening into a vault, a stile, &c. 
Fisher v. Prowse, Cooper v. Walker, 2 B. & S. 770; 31 L. J. Q. B. 212; 
Bobbins v. Jones, 15 C. B. (N. S.) 221; 33 L. J. C. P. 1. So, a public 
footpath may be dedicated across a field, subject to the right of the owner 
of the field to plough it up at seasonable times ; and the proper inference to 
be drawn from the owner having always so ploughed up the field is, that it 
was only such qualified enjoyment that was dedicated to the public. Mercer 
V. Woodgate, 39 L. J. M. C. 21 ; L. R. 5 Q. B. 26 ; Arnold v. Blaker, 
40 L. J. K. B. 185; L. R. 6 Q. B. 433. So, a highway may be dedicated 
subject to the right to hold a market thereon. Att.-Gen. v. Horner, 55 L. J. 
Q. B. 193; 11 App. Cas. 66; Gingell, etc. v Stepney Borough Council, 
11 L. J. K. B. 347; 78 L. J. K. B. 673; [1908] 1 K. B. 115; [1909] A. C. 
245. Any presumption as to the extent of a public right of way ought to be 
drawn with reference to all the circumstances existing at the time when 
the question as to the extent of the public right arises. Copestake v. West 
Sussex C. C, 80 L. J. Ch. 673; [1911] 2 Oh. 331. 

Disturbance by the defendant — Special damage.] The plaintiff must prove 
some disturbance by the defendant when denied by him in his defence. The 
disturbance may be by ploughing up the way, &c. Com. Dig. Case for 
Disturbance (A. 2). For though the grantor is not generally bound to repair 
it, he cannot lawfully impair it by his own act. The obstruction may be 
caused by the successive acts of different persons, one of which alone would 
not create appreciable damage. Thorpe v. Brumfitt, L. R. 8 Ch. 650; 
Lambton v. Mellish, 63 L. J. Ch. 929; [1894] 3 Ch. 163. 

A gate is not necessarily an obstruction to a private right of way. Pettey 
Y. Parsons, 84 L. J. ^g^zd^^l^iBk)§b^®^^ ^^ ^^ obstruction if the 



714 Action for Disturbance. of Way. 

gate is kept locked, and it is no answer to the complaint of obstruction to 
say that keys for the gate will be supplied. Guest's Estates v. Milner's 
Safes, 28 T. L. E. 59. 

Where the action is for a nuisance in u public highway, the plaintiff must 
prove special damage when denied. Mere delay caused to the plaintiff as 
well as to other persons having occasion to use a road on which is an obstruc- 
tion complained of, is not such special damage. Winterbottom v. Derby 
(Lord), 36 L. J. Ex. 194; L. E. 2 Ex. 316. But the expense of conveying 
goods, &c., by a longer and less convenient way to the plaintiff's land, is 
sufficient damage to support an action for obstructing a public highway. 
Dobscm V. Blackmore, 16 L. J. Q. B. 233; 9 Q. B. 991; Blagrave v. Bristol 
Waterworks Co., 1 H. & N. 369; 26 L. J. Ex. 57. So, the injury done to a 
public-house or shop, by the obstruction of customers, who would otherwise 
have come to him. Rose v. Groves, 12 L. J. C. P. 261; 5 M. & Gr. 618; 
Benjamin v. Storr, 43 L. J. C. P. 162 ; L. E. 9 C. P. 400 ; Wilkes v. Hunger- 
ford Market Co., 5 L. J. C. P. 23; 2 Bing. N. C. 281; Fritz v. Hobsm, 
49 L. J. Ch. 321; 14 Ch. D. 542. It was indeed held that a temporary 
obstruction erected by the defendants on a highway, rendering access to a 
footway, whereon the plaintiff's public-house was situated, more difficult, 
and thereby causing a loss of trade to the plaintiff, gave him no right to 
compensation under the Lands or Eailways Clauses Consolidation Acts, 
1845, because he could not have maintained an action to recover damages for 
such loss. Ricket v. Metropolitan Ry., 36 L. J. Q. B. 205; L. E. 2 H. L. 
175; see also Martin v. London County Council, 80 L. T. 866. It is other- 
wise, however, where a similar claim has been substantiated in respect of 
injury to the selling or letting value of the public-house, treated as un- 
licensed; Wadham v. N. E. Ry., 55 L. J. Q. B. 272; 16 Q. B. D. 227; for 
where the obstruction directly diminishes the value of the plaintiff's house 
or land, it will give a right to compensation. Beckett v. Midland By., 
37 L. J. C. P. 11; L. E. 3 C. P. 82; M'Carthy v. Metropolitan B. of Works, 
43 L. J. C. P. 385; L. E. 7 H. L. 443; Caledonian Ry. v. Walker's 
Trustees, 7 App. Cas. 259; Ford v. Metropolitan Ry., 55 L. J. Q. B. 296; 
17 Q. B. D. 12. See also Buccleuch (Duke) v. Metrop. B. of Works, 
41 L. J. Ex. 137 ; L. E. 5 H. L. 418; Gowper Essex v. Acton Local Board, 
58 L. J. Q. B. 594; 14 App. Cas. 153; In re L., Tilbury d Southend By. 
and Gower's Walk Schools, 59 L. J. Q. B. 162; 24 Q. B. D. 326. Where 
the obstruction is caused by the discharge of the defendant's waggons, &c. , 
to his premises, the question of his liability depends on whether it is greater 
than is reasonable, in point of time and manner, having regard to the interest 
of all parties, and without unnecessary inconvenience. Benjamin v. Storr, 
supra; Fritz v. Hobson, supra. 

The owner of land adjoining a public highway has a right to go on the 
highway from any point on his own land. Marshall v. Ulleswater Naviga- 
tion Co., 41 L. J. Q. B. 41, 45 ; L. E. 7 Q. B. 166, 178. This right of access 
to his premises is a private right, but his right to transfer goods to them 
from the highway across the public footway, is only an individual interest 
in a public right, which he enjoys as one of the public. Chaplin v. West- 
minster Cor., 70 L. J. Ch. 679; [1901] 2 Ch. 329, following Att.-Gen. v. 
Thames Conservators, 1 H. & M. 1. 

As to disturbance of water-way in a navigable river, see Orr-Ewing Y. 
Colquhoun, 2 App. Cas. 839. 

Proof of way — by order of Inclosure Commissioners.} Under 41 G. 3, 
u. 109, s. 8, the Inclosure Commissioners have power to " set out and 
appoint the public carriage roads and highways " over the lands to be 
inclosed. And by sect. 10, the same power is given to set out private roads ; 
and by sect. 11, all roads, other than turnpike roads, not set out by the com- 
missioners, are extinguished. 

Damages.] Vide Nuisance — Damages, ante. 

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Defence — Extinguishment, dc, of Right of Way. 71S 

Injunction.'] As to right of injunction in lieu of damages, see Krehl v. 
Burrell, 47 L. J. Ch. 353; 48 L. J. Ch. 252; 7 Ch. D. 551; 10 Ch. D. 420. 

Defence. 

By Eules, 1883, 0. xix., r. 17, a defendant may not now plead a general 
denial of the allegations in the statement of claim ; and r. 15 requires him 
to state all such facts on which he relies aa do not appear therein, and if 
not stated would be likely to take the plaintiff by surprise. 

Denial of the right.] The defendant may, under this defence, prove that 
the way was only a- way by sufferance during the pleasure of himself and the 
plaintiff; Reignolds v. Edwards, Willes, 282; as evidence of which he may 
show that he has kept a gate across the road, or that the plaintiff has paid 
him a compensation for the use of the way. And though these cases were 
before the Prescription Act, they seem to be still law, for they show a pre- 
carious enjoyment. So proof of leave and licence is evidence under a traverse 
of the right. Beasley v. Clarke, 5 L. J. C. P. 281 ; 2 Bing. N. C. 705. 

No right of way is acquired by user, enjoyed over every part of a close, and 
not in any defined or visible path. Schwinge v. Dowell, 2 P. & P. 845; 
Robinson v. Gowpen Local Board, 63 L. J. Q. B. 235. But it seems that a 
right of way between two definite termini may be acquired, although the 
user has been in respect of various tracks between those termini. Wimbledon 
Conservators v. Dixon, 45 L. J. Ch. 353; 1 Ch. D. 362. 

Extinguishment or cesser of right of way.] If the way is claimed as a 
way of necessity, it has been held that the defendant may show that the 
plaintiff can approach the place to which it leads, over his own land, and 
that consequently the way of necessity has ceased. Holmes v. Goring, 
2 Bing. 76 ; Pearson v. Spencer, 3 B. & S. 761, 767. But see Proctor v. 
Hodgson, 10 Ex. 874 ; 24 L. J. Ex. 195. 

The defendant may also show that the right of way has been renounced 
and abandoned, by acquiescence in an obstruction for more than 20 years. 
Bower v. Hill, 4 L. J. C. P. 153, 155; 1 Bing. N. C. 549, 555. Or, where it 
is claimed under the Act, the defendant may show acquiescence in an inter- 
ruption, for one year of the 20 or 40 years, relied on by the plaintiff. See 
Glover v. Coleman, 44 L. J. C. P. 66; L. E. 10 C. P. 108. But, where a 
party was entitled to pass along a navigable drain from his land to the river, 
and the owner of the land lower down erected a permanent obstruction across 
the drain, it was held that the circumstance of part of the drain having been 
impassable for 16 years from an accumulation of mud, did not deprive the 
party of his right to sue for such obstruction. Bower v. Hill, 4 L. J. C. P. 
163; 1 Bing. N. C. 549. The mere non-user of a way does not, in the 
absence of the acquisition of rights by other parties in consequence of it, 
amount to an abandonment ; it only raises the inference that there has been 
no occasion to use it. Ward v. Ward, 7 Ex. 839; 21 L. J. Ex. 334. In this 
case there had been a temporary user of another way by reason of its greater 
convenience. In Cook v. Bath (Mayor), L. E. 6 Eq. 177, the right of way 
through the back-door of .a dwelling-house was held not to have been 
abandoned, although the occupier had built up the doorway, and kept it so 
blocked up for 40 years. 

The defendant may prove an extinguishment of the right, by a substan- 
tial alteration in the original object of the grant of the way; thus where 
a way is granted to an open piece of ground " now used as a wood-house," 
the grantee, though not bound to continue to use it as a wood-house, cannot 
use the way for a dwelling-house built thereupon. Allen v. Gomme, 9 L. J. 
Q. B. 258; 11 Ad. & E. 759. Or, he may show a use of the way for purposes 
not contemplated by the grant, as the misuse for merely agricultural purposes, 
of a way to a coach-house and stable. Henning v. Burnet, 8 Ex. 187 ; 
22 L. J Ex. 79. So_^a right p£wav,.to a famu for agricultural purposes 



716 Action for Disturbance of Watercourse. 

merely, cannot be enlarged by building houses on the farm. Wimbledon 
Conservators v. Dixon, 45 L. J. Ch. 353; 1 Ch. D. 362. See also Collins v. 
Slade, 9 W. N. 1874; Wood v. Saunders, L. E. 10 Ch. 582; and Milner's 
Safe Co. V. Gt. N. <£- City Ry., 75 L. J. Ch. 807; 76 L. J. Ch. 99; [1907] 

1 Ch. 208. This principle applies to the re-grant of a way of 
necessity. London Cor. v. Riggs, 49 L. J. Ch. 297; 13 Ch. D. 798. 
So, where there is a right of way to a close A., this will not justify a user of 
the way for conveying goods to A. for the express purpose of afterwards 
removing them to an adjoining close. Skull v. Glenister, 16 C. B. (N. S.) 
87 ; 33 L. J. C. P. 185 ; Williams v. James, 36 L. J. C. P. 256 ; L. E. 

2 C. P. 577. See also Harris v. Flower, 21 T. L. E. 13. But a way is not 
necessarily lost by an alteration, improvement, or enlargement of the premises 
to which it is annexed, nor by every change in the use or destination of 
them. The nature of the way depends upon the terms of the grant and 
expressed object of it, or on the prejudice arising to the grantor by the 
altered user, and the question for the jury will be whether it was a 
reasonable or merely colourable use of the way. See the cases last cited ; 
WatU V. Kelson, L. E. 6 Ch. 166, 169, n. ; Serff v. Acton Local Board, 
55 L. J. Ch. 569; 31 Ch. D. 679, and Gt. W. Ry. v. Talbot, 71 L. J. Ch. 
835; [1902] 2 Ch. 759, distinguishing United Land Co. v. Gt. E. Ry., 
44 L. J. Ch. 685; L. E. 10 Ch. 586; which case was followed in White v. 
Grand Hotel Eastbourne, 82 L. J. Ch. 57 ; [1913] 1 Ch. 113, affd. in H. L. 
84 L. J. Ch. 938. Where there is no substantial variance in the enjoyment, 
the right to an easement is not affected ; Luttrell's Case, 4 Eep. 86; Thomas 
V. Thomas, 4 L. J. Ex. 179; 2 C. M. & E. 34; Harvey v. Walters', 42 L. J. 
C. P. 105 ; L. E. 8 C. P. 162. As to grants of ways under enclosure awards, 
see Newcomen v. Coulson, 46 L. J. Ch. 459; 5 Ch. D. 133, and Finch v. 
Gt. W. Ry., 5 Ex. D. 254. 

Unity of possession extinguishes an easement. Clayton v. Corby, 11 L. J. 
Q. B. 239; 2 Q. B. 813. But where the party has different estates in the two 
pieces of land, as an estate in fee in the land over which, and a term of years 
in the land in respect of which, the easement exists, the easement is 
suspended only, and not extinguished. Thomas v. Thomas, supra. So, 
where a way has been extinguished by unity of possession, a grant of the 
former dominant tenement, together with all ways, &c., used or enjoyed 
therewith, will revive the right of way. James v. Plant, 6 L. J. Ex. 260; 
4 Ad. & E. 749; Thomson v. Waterlow, 37 L. J. Ch. 495; L. E. 6 Eq. 36; 
Langley v. Hammond, 37 L. J. Ex. 118; L. E. 3 Ex. 161. And even where 
a right of way had never previously existed as such, but was merely a user 
of one part of his property A., by the landowner for the more convenient 
enjoyment of the remaining part B., the general words in the grant of A., 
may pass a right of way over B. Kay v. Oxley, 44 L. J. Q. B. 210; L. E. 
10 Q. B. 360; Barkshire v. Grubb, 50 L. J. Ch. 731; 18 Ch. D. 616; Bayley 
V. Gt. W. Ry., 26 Ch. D. 434, and Brown v. Alabaster, 57 L. J. Ch. 255; 
37 Ch. D. 490. See also Thomas v. Owm, 57 L. J. Q. B. 198 ; 20 Q. B. D. 
225; May v. Belleville, 74 L. J. Ch. 678; [1905] 2 Ch. 605; and Hansford 
V. Jago, [1921] 1 Ch. 322. 

A prescriptive right, once acquired, is not lost by any subsequent act, not 
amounting to a surrender, although such act would, previous to the acquisi- 
tion of such right, have rendered the user precarious. French Hoek {Com- 
missioners) V. Hugo, 54 L. J. P. C. 17; 10 App. Cas. 336. 



ACTION FOE DISTUEBANCE . OP WATEECOUESE. 

The principal allegations in the statement of claim are usually (1) the 
possession of a mill, water-meadow, or other tenement in respect of which 
the right of water is enjoyed ; (2) the right to the water ; (3) the disturbance ; 
(4) the damage. 

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Right to the Water. Ill 

Proof of the right to the water.l The right to the use of water flowing in 
a natural stream upon the surface of the earth belongs of right to the 
proprietors of the adjoining land, and is not enjoyed by virtue of acquiescence, 
or a presumed grant. Ghasemore v. Biclj-ards, 7 H. L. C. 349; 29 L. J. 
Ex. 81; Wood v. Waud, 18 L. J. Ex. 305, 812; 3 Ex. 748, 775. A riparian 
proprietor has a right to a reasonable use of the water for his domestic 
purposes, and for his cattle, without regard, in case of a deficiency, to the 
interests of proprietors lower down the stream. He further has a right to 
the use of it for any purpose, provided he does not thereby interfere with 
the rights of other proprietors above or below him. Subject to this condition 
he may dam up the stream for a mill, or divert the water for irrigation. 
Miner v. Gilmour, 12 Moo. P. C. 131, 156; Orr Ewing v. Colguhoun, 
2 App. Gas. 839; White v. Whit^, 75 L. J. P. C. 14; [1906] A. C. 72. 
See Swindon Waterworks Co. v. Wilts S Berks Canal Co., 45 L. J. Ch. 
638; L. B. 7 H. L. 697. But the right to use it to the prejudice of any 
proprietor of land above or below, by throwing back, diverting, or polluting 
it, is a right for which the claimant must show a title by contract, prescrip- 
tion, or other adequate authority. Mason v. Hill, 2 L. J. K. B. 118; 
5 B. & Ad. 1; Embrey v. Cfben, 6 Ex. 363; 20 L. J. Ex. 212. See Mclntyre 
V. McGavin, [1893] A. C. 268. A riparian owner on a navigable tidal river 
has, subject to the public right of navigation, the same rights as an ordinary 
riparian owner. Lyon v. Fishmimgers' Co., 46 L. J. Ch. 68; 1 App. Gas. 
662. So has an owner on the sea-shore. Att.-Gen. of Straits Settlements 
V. Wemyss, 67 L. J. P. C. 62; 13 App. Gas. 192. The decisions on the 
Prescription Act, 1832, upon rights of way are generally also applicable to 
rights of water. If a riparian owner has no right to have the flow of 
water continued, he cannot claim as an easement the right to abstract water 
if and when it is flowing in the stream. Whitmores (Edenbridge) v. 
Stanford, 78 L. J. Ch. 144; [1909] 1 Ch. 427. The right to take water 
from a well for domestic purposes is an easement, and not a profit a prendre. 
Race V. Ward, 4 E. & B. 702; 24 Jj- J- Q. B. 153. A precarious licensee 
of the use of the water of a stream can perhaps sue a stranger for fouling it, 
if Jie have notice of the licence, and of the injurious effect the fouling will 
have to the plaintiff. Laing v. Whaley, 3 H. & N. 676, 681; 27 L. J. 
Ex. 422, 423. The grantee of an exclusive right of fishing can sue any 
one who wrongfully does any act prejudicial to his right. Fitzgerald v. 
Firbank, 66 L. J. Ch. 529 ; [1897] 2 Ch. 96. 

The owner of a riparian tenement has no right to divert the water to a 
place outside the tenement and there consume it for purposes foreign to the 
tenement. Swindon Waterworks Co. v. Wilts S Berks Canal Co., 45 L. J. 
Ch. 638; L. E. 7 H. L. 697; McCartney v. Londonderry By., 73 L. J. 
P. C. 73; [1904] A. C. 301; Stollmeyer v. Trinidad Lake Petroleum Co., 
87 L. J. P. C. 77; [1918] A. C. 485. Where a riparian owner. A., grants 
to B., land not abutting on the river, together with the right to take water 
from the river, B. acquires no water rights except as against A. ; for the 
rights of the occupier of the river bank cannot be severed and conveyed in 
gross. Stockport W. Works Co. v. Potter, 3 H. & C. 300 ; Ormerod v. Tod- 
morden Joint Stock Mill Co., 62 L. J. Q. B. 446 ; 11 Q. B. D. 156. But, if 
the stream be divided so that one section of it flpws by an artificial goitre 
through land A., then the grantee of A. becomes a riparian owner, and has 
all the rights of such owner in respect to that section of the stream. Nuttall 
V. Bracewell, 36 L. J. Ex. 1; L. E. 2 Ex. 1; Holker v. Poritt, 42 L. J. Ex. 
85; 44 L. J. Ex. 52; L. E. 8 Ex. 107; L. E. 10 Ex. 59; Baily v. Clark, 71 
L. J. Ch. 396; [1902] 1 Gh. 649; Whitmores (Edenbridge) v. Stanford, 
78 "L. J. Ch. 144 ; [1909] 1 Ch. 427. A grant by the higher landowner to the 
lower landowner "and his assigns" will justify an assignee in suing for 
disturbance of his use of the water, claiming it " by reason " of his possession 
of the land. Northam v. Hurley, 1 E. & B. 666; 22 L. J. Q. B. 183. See 
Hamelin v. Bannerman, 64 L. J. P. C. 66; [1895] A. G. 237. 

As to the <^'^^^^^''^^ffj^^i^^^h^?QrQSQ^^°^^^^'' ^^® Taylor w. Cor. 



718 Action for Disturbance of Watercourse. 

o; S. Helens, 46 L. J. Ch. 857 ; 6 Ch. D. 264. Where the grant is of the 
duct through which the water passes, the grantee cannot enlarge the duct. 
S. C. See also Lewis v. Meredith, 82 L. J. Ch. 255 ; [1913] 1 Ch. 571, where 
it was held that a right to the use of water although permissive at the date 
of the grant became a legal right by virtue of the general words of the 
Conveyancing Act, 1881, s. 6. See further Schwann v. Cotton, 85 L. J. Ch. 
689 ; [1916] 2 Ch. 459. 

As to implied grants and reservations of easements, see Nicholas v. 
Chamberlain, Cro. Jac. 121; Wardle v. Brocklehurst, 1 B. & B. 1058; 29 
L. J. Q. B. 145; Worthington v. Grinson, 2 E. & E. 618; 29 L. J. Q. B. 
116; Polden v. Bastard, 35 L. J. Q. B. 92; L. E. 1 Q. B. 156; Watts v. 
Kelson, 40 L. J. Ch. 126 ; L. K. 6 Ch. 166 ; Suffield v. Brown, 4 D. J. & S. 
185; 33 L. 3. Ch. 249; Kay v. Oxley, 44 L. J. Q. B. 210; L. E. 10 Q. B. 
360; Barnes v. Loach, 48 L. J. Q. B. 756; 4 Q. B. D. 494; Bayley v. 
Gt. W. Ry., 26 Ch. D. 484; and Union Lighterage Co. v. L. Graving Dock 
Co., 71 L. J. Ch. 791 ; [1902] 2 Ch. 557. The case of Pyer v. Carter, 1 H. & 
N. 916; 26 L. J. Ex. 258, was expressly overruled by Wheeldon v. Burrows, 
48 L. J. Ch. 853 ; 12 Ch. D. 31. 

Such rights as those previously mentioned may be acquired, though the 
channel for the water be wholly artificial, and made for a different purpose; 
as where the owners of a brewery had enjoyed the use of water issuing for 
20 years, out of the mouth of a disused adit, made to drain mines, it was 
held that the mine owners could not afterwards resume the working of the 
mine, so as to affect the water. Magor v. Ghadwick, 9 Ij. J. Q. B. 159; 11 
Ad. & E. 571. If, however, the adit water had been used with notice of the 
intention to resume the workings, or under circumstances from which such 
notice must necessarily be inferred, or if there had been a local custom to 
resume them at any time, it seems that no right would have been thereby 
gained. In the above case natural and artificial streams are treated as 
undistinguishable in point of law, so far as respects the acquisition of rights 
over them. But, in Arkwright v. Cell, 8 L. J. Ex. 201; 5 M. & W. 203, 
and Wood v. Waud, 18 L. J. Ex. 305; 3 Ex. 748, it was held that artificial 
streams came under a different rule, and that long enjoyment would not 
give a right to the unobstructed use of a sough or stream, obviously made 
for temporary purposes, as to drain a mine, at least as against any one 
claiming under the makers ; and the court further distinguished pollution 
from diversion, holding that the latter might be lawful in cases where the 
former was not. See also Hodgkinson v. Ennor, 4 B. & S. 229; 32 L. J. 
Q. B. 231; Mason v. Shrewsbury S Hereford By., 40 L. J. Q. B. 293; L. E. 
6 Q. B. 578. So where the artificial stream was made by a man entirely 
over his own land but in a course which makes the water accessible to his 
neighbour. Burrows v. Lang, 70 L. J. Ch. 607; [1901] 2 Ch. 502, as 
explained in Whitmores (Edenbridge) v. Stanford, 78 L. J. Ch. 144; [1909] 
1 Ch. 427. So, where neighbouring land is benefited by the water flowing 
through artificial drains, made by a farmer for draining his own land, it was 
held that the farmer, for the purposes of cultivation, might deepen the 
drain, and thereby draw off the water, though the plaintiff had enjoyed it 
for 50 years. Greatrex v. Hayward, 8 Ex. 291; 22 L. J. Bx. 137; Gaved v. 
Martyn, infra. But rights can be gained to water flowing through an arti- 
ficial cut, though such cuts are not to be treated as being necessarily on the 
same footing as natural streams, so far as regards ordinary riparian rights. 
Thus, a right may exist by user to divert water from a stream from time to 
time by an old artificial cut, to supply cattle with water when required. 
Beeston v. Weate, 5 E. & B. 986 ; 25 L. J. Q. B. 115. And an artificial 
watercourse may " have been originally made under such circumstances, and 
have been so used as to give all the rights that the riparian proprietors would 
have had, had it been a natural stream." Sutcliffe v. Booth, 32 L. J. Q. B. 
136, 139. There is a distinction between an artificial watercourse supplied 
by natural springs and another supplied by water brought to the surface by 
mining operations, for the former can, while the latter cannot, be the subject 

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Bight to Water— Proof of Disturbance by Defendant. 719 

of an easement. Gaved v. Martyn, 19 C. B. (N. S.) 732 ; 34 L. J. C. P. 363. 
See also Ivimey v. Stocker, 35 L. J. Ch. 467 ; L. B. 1 Ch. 396. 

Where a natural stream is partly fed by surface, drainage, as by an over- 
flow of ponds formed by land springs, and of wells and watering-places for 
cattle in wet seasons (such overflow not ruiming in a fixed and defined 
watercourse), the owner of a mill on the stream cannot sue the landowner, 
for a diversion or stoppage of such sources of supply. Broadbent v. Bams- 
botham, 11 Ex. 602; 25 L. J. Ex. 115; Bawstron v. Taylor, 11 Ex. 369; 
25 L. J. Ex. 33. But, where a stream flows in a defined channel from a 
spring head, a diversion and detention of the water, by pipes and tanks, at 
the head is actionable. Dudden v. Glutton Union, 1 H. & N. 627 ; 26 L. J. 
Ex. 146 ; Mostyn v. Atherton, 68 L. J. Ch. 629 ; [1899] 2 Ch. 360. So, 
interference with a stream flowing underground in a definite known channel 
or tunnel affords a right of action. Holker v. Poritt, 42 L. J. Ex. 85 ; 44 
L. J. Ex. 52 ; L. E. 8 Ex. 107 ; L. E. 10 Ex. 59. Secus, where the existence 
and course of the channel are not known, and cannot be ascertained without 
excavation. Bradford Cor. v. Ferrand, 71 L. J. Ch. 869; [1902] 2 Ch. 665. 
Unseen underground waters arising from percolation through the ground are 
distinguishable from open streams, and the doctrine of presumed grants is 
inapplicable to them. Hence, a millowner cannot complain if a neighbouring 
landowner digs a deep well in his land, and thereby sensibly diminishes the 
waters of the mill-stream, and the latter may apply or distribute the waters 
of the well as he pleases. Chasemore v. Bichards, 2 H. & N. 168; 26 L. J. 
Ex. 393; 7 H. L. C. 349; 29 L. J. Ex. 81; English v. Metrop. Water 
Board, 76 L. J. K. B. 361; [1907] 1 K. B. 588; see McNab v. Bobertson, 
66 L. J. P. C. 27; [1897] A. C. 129. It is immaterial that the well has 
been dug merely animo vicino nocendi, and not for bond fide use : Bradford 
(Mayor) v. Pickles, 64 L. J. Ch. 759 ; [1895] A. C. 587. See also Acton v. 
Blundell, 13 L. J. Ex. 289; 12 M. & W. 324; Hammond v. Hall, 10 Sim. 
551; S. Shields Waterworks Co. v. Cookson, 15 L. J. Ex. 315; B. v. 
Metropolitan B. of Works, 3 B. & S. 710; 32 L. J. Q. B. 105; Ballacorkish 
Silver Co. v. Harrison, 43 L. J. P. C. 19; L. E. 5 P. C. 49; and Popplewell 
V. Hodkinson, 38 L. J. Ex. 126 ; L. E. 4 Ex. 248. It is not actionable to 
pump up brine which is in part produced in the plaintiff's adjacent salt mine. 
Salt Union v. Brunner A Co., 76 L. J. K. B. 56; [1906] 2 K. B. 883. But to 
discharge muddy water _ created by works newly erected on the def en- 
dant's land, through underground passages, into the plaintiff's pond, is a 
good cause of action. Hodgkinson v. Ennor, 4 B. & S. 229; 32 L. J. Q. B. 
231. So does the pollution of unseen percolating waters, injuriously affecting 
the plaintiff's well. Ballard v. Tomlinson, 64 L. J. Ch. 454; 29 Ch. D. 115. 

A right to cast, into a river or strea-m, the rubble and refuse of mine 
works may be claimed by prescription, and therefore by stat. 2 & 3 W. 4, 
c. 71 ; or it may exist by local custom ; and it seems that this is a claim 
of a, "watercourse" under sect. 2 of the Act. Carlyon v. Lovering, 1 
H. & N. 784; 26 L. J. Ex. 251; Wright v. Williams, 5 L. J. Ex. 107; 
1 M. & W. 77. See the arguments in Murgatroyd v. Bobinson, 7 E. & B. 
391 ; 26 L. J. Q. B. 233 ; Bastard v. Smith, 2 M. & Eob. 129. So, a right to 
discharge the refuse of dyeworks or of paper mills. Crossley v. Lightowler, 
36 L. J, Ch. 584; L. B. 2 Ch. 478; Baxendale v. M; Murray, L. E. 2 Ch. 
790. As to the abandonment of such a right, see Crossley v. Lightowler, 
supra. So, the right to have water intercepted is within sect. 2. Mason v. 
Shrewsbury £ Hereford By., 40 L. J. Q. B. 293; L. E. 6 Q. B. 578. 

Water passing from the opening of the lock of a canal, is not a water- 
course within the section. Staffordshire Canal Co. v. Birmingham Canal 
Co., 36 L. J. Ch. 767; L. E. 1 H. L. 254. 

Proof of disturbance by defendant.} If the defendant take water out of 
a stream running through his land to the pond of B., whereby B.'s pond is 
not so full, this is not actionable, unless there be a permanent diversion of 
the stream. Smart '^ ■[^Hffl^(f'm- l^}§i'(^}jff^°^ Nuisance (C) ; Embrey 

E. — VOL. II. ^ 



720 Action for Disturbance of Watercovrse. 

V. Owen, 6 Ex. 353; 20 L. J. Ex. 212. But any abstraction or detentitai 
of water, so as to produce sensible inconvenience, is actionable. Wood v. 
Waud, 18 L. J. Ex. 305; 3 Ex. 748. And diversion -without actual 
damage, is actiouable, where a right, injurious to the plaintiff's right, 
might be acquired against him by such diversion. Swindon Waterworks Co. 
V. Wilts d Berks Canal Co., 45 L. J. Ch. 638 ; L. E. 7 H. L. 697 ; McCartney 
V. Londonderry Ry., 73 L. J. P. C. 73; [1904] A. C. 301. It is actionable by 
artificial means to discharge into a stream foreign matter which sensibly 
changes the character of the natural water of the stream. Young v. Bankier 
Distillery Co., [1898] A. C. 691. If the defendant have caused the water 
to be foul, there is a damage in law, although the existence of other 
causes of foulness, occasioned by other riparian landowners, may make the 
particular damage done by the defendant undistinguishable. Wood v. 
Waud, 18 L. J. Ex. 305; 3 Ex. 748. Any user by a stranger is actionable 
if it sensibly affect the flow of the water ; Ormerod v. Todmorden Joint Stock 
Mill Co., 52 L. J. Q. B. 445; 11 Q. B. D. 155; but not otherwise, where 
no right of the plaintiff has been infringed. Kensit v. Gt. E. Ry., 54 L. J. 
Ch. 19; 27 Ch. D. 122; see McCartney v. Londonderry Ry., 73 L. J. P. C. 
73 ; [1904] A. C. 801. As to the mode in which water may be diverted and 
removed by the owners of adjoining mines, see Smith v. Kenrick, 18 L. J. 
C. P. 172; 7 C. B. 515; Baird v. Willi^amsm, 15 C. B. (N. S.) 876; 33 
L. J. C. P. 101. A person who interferes with the course of a stream is 
under a dxity to see that the works which he substitutes for the natural 
channel are adequate to carry off the water brought down even by an extra- 
ordinary rainfall, and he will be liable if damage results from the deficiency 
of the substitute. Greenock Cor. v. Caledonian Ry., 86 L. J. P. C. 185; 
[1917] A. C. 556. As to the liability of a sanitary authority for allowing foul 
matter to pass through their sewers, into the plaintiff's stream, see Att.-Gen. 
•V. Dorking Guardians, 51 L. J. Ch. 585 ; 20 Ch. D. 595; Brown v. Dunstable 
Cor., 68 li. J. Ch. 498; [1899] 2 Ch. 878; Harrington (Earl) v. Derby Cor., 
74 L. J. Ch. 219; [1905] 1 Ch. 205. Where A., by pumping, brings unseen 
underground percolating water, polluted by B., into A.'s well, B. is liable for 
the pollution of the well. Ballard v Tomlinson, 54 L. J. Ch. 454; 29 
Ch. D. 115. 

A riparian owner may moor a floating wharf to his bank, if he do not 
obstruct the navigation of the river, and may sue for damages occasioned by 
interference with the flow or purity of the river. Booth v. Ratte, 59 L. J. 
P. C. 41 ; 15 App. Cas. 1«8. 

Damages — Injunction .2 Actual damage or loss, occasioned by the dis- 
turbance or pollution, need not be shown, if it be against the right. 1 Wms. 
Saund. 346 b, (2); Embrey v. Owen, 6 Ex. 353; 20 L. J. Ex. 212; 
Dickinson v. Gd. Junction Canal Co., 7 Ex. 282; 21 L. J. Ex. 241; 
Northam v. Hurley, 1 E. & B. 665; 22 L. J. Q. B. 183; Sampson v. 
Hoddinott, 1 C. B. (N. S.) 590; 26 L. J. C. P. 148; Harrop v. Hirst, 
38 L. J. Ex. 1; L. E,. 4 Ex. 43; Crossley v. Lightowler, supra; McCartney 
V. Londonderry Ry., supra. So, if a riparian owner encroach on the alveus 
of the stream the owner on the opposite side of the stream may maintain an 
action without showing special damage; Bickett v. Morris, L. E. 1 H. L. 
Sc. 47 ; and in like manner an encroachment made on a tidal river, may be 
restrained at the suit of the Crown, without showing damage. Att.-Gen. v. 
Lonsdale (Earl), 38 Ii. J. Ch. 336; L. E. 7 Eq. 377; Id. v. Terry, L. E. 9 
Ch. 423. See, on these cases, Orr Ewing v. Colguhoun, 2 App. Cas. 839. As 
the injury, that may be caused by pollution of the stream, cannot be measure4 
by damages, an injunction is usually the proper remedy. Pennington V. 
Brinsop Hall Coal Co., 46 L. J. Ch. 773; 5 Ch. D. 769. But an injunction 
will only be granted, where the plaintiff has thereby sustained substantial 
injury entitling him to damages. Ehnhirsi v. Spencer, 2 Mac. & G. 45. If 
the loss to the upper proprietor by the enforcement of an injunction will be 
out of all proportion to the gain of the lower proprietor, the injunction should 

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Defence— Dmial of the Right— Extinguishment. 721 

be suspended for a period sufficient to enable the upper proprietor to remove 
the cause of complaint upon his undertaking to pay from time to time such 
pecuniary damages as the court finds to have been caused to the lower 
proprietor. StoUmeyer v. Petroleum Development Co., 87 L. J. P. C. 83; 
[1918] A. C. 498 n. As to the damages where the pollution or disturbance 
is continuing in its nature, see Hole v. Chard Union, 63 L. J. Ch. 469; 
[1894] 1 Ch. 293. 

Where A. is entitled to the flow of water through his pipes, laid in B.'s 
land, B. will be restrained from so building thereon, as materially to inter- 
fere with A.'s access to the pipes, .to cleanse and repair them. Goodhart v. 
Hyett, 53 L. J. Ch. 219; 25 Ch. D. 182. 



Defence. 

It is no defence that the stream is fouled by others besides the defendant. 
Crossley v. Lightowler, 36 L. J. Ch. 584; L. R. 2 Ch. 478. 

If a stranger enter the defendant's land, and wrongfully obstruct or divert 
a watercourse flowing through it, the defendant is not liable to be sued for 
this diversion, if it be made against his will, and he has not subsequently 
recognized it ; nor is the defendant bound to remove the obstruction. Saxby 
V. Manchester d Sheffield Ry., 38 L. J. C. P. 163; L. E. 4 C. P. 198. 

Denial of the right.^ This traverse does not put in issue the possession of 
the dominant tenement by reason whereof the right is claimed. Dukes v. 
GostUng, 4 L. J. C. P. 211; 1 Bing. N. C. 588. Interruptions not acquiesced 
in for a year are evidence, as where the claimant of the use of water for 
irrigation, had drawn it off from the defendant's watercourse for 20 years, 
but had always been resisted, and had once been fined and paid the tine on 
a conviction for wilfully taking it, the conviction was held admissible to prove 
a contentious enjoyment throughout, insufficient to gain a right under the 
statute. Eaton v. Swansea Waterworks Co., 17 Q. B. 267 ; 20 L. J. Q. B. 482. 
Where the plaintiff states a right to keep water flowing to a mill, by a weir 
of a certain height, the defendant may under a special defence show a grant 
or prescription enabling him to reduce its height. Ward v. Robins, 15 M. & 
W. 237. 

Extinguishment or cesser of the right.^ A right to water is not destroyed 
by a partial alteration in the direction of the stream by the claimant ; Hall 
V. Swift, 7 L. J. C. P. 209; 4 Bing. N. C. 381; nor by an interruption 
occasioned by a dry season ; S. C. ;. nor by an alteration in the machinery 
of the mill turned by it, if not prejudicial to others entitled to the same 
water. Saunders v. Newman, 1 B. & A. 258. Where the plaintiff has, by 
oral licence, permitted the defendant to erect a permanent work which 
has necessarily lessened the supply of water, he cannot afterwards revoke the 
licence or sue for the injury. Liggins v. Inge, 7 Bing. 682 ; 9 L. J. (0. S.) 
C. P. 202. The declaration stated an immemorial right to a flow of water, 
out of the defendant's well, for supplying three ponds in three closes of the 
plaintiff ; the plea traversed the right ; it appeared that 30 years ago the plain- 
tiff had diverted the flow of water from an ancient pond in one of the closes, 
and had carried it into three other ponds, and discontinued the use of the old 
pond, which had since become filled with rubbish : held, that he had not 
thereby lost his old right, but might recover for such a diversion of the 
water, as prevented it from flowing out of the well into the old pond; and 
this, although the case opened and attempted to be proved at the trial 
was that of a right to the supply of the three new ponds. And per Cur. 
S. C, if the claim had been under the Prescription Act, the right would 
have been equally unaffected by the substitution of the new mode of 
distributing the overflow from the well. Hale v. Oldroyd, 15 L. J. Ex. 4; 

14 M. & w. 789. Digitized by Microsoft® 



722 Action for Disturbance of Pew. 



ACTION FOR DISTURBANCE OP PEW. 

The statement of claim states the possession of a messuage ; the right 
by reason thereof to use a pew in the parish church during service; and 
the disturbance of the right by the defendant. 

Proof of the right to u. pew.} The freehold of the church is in the 
persona ecclesice, whether rector or vicar. Com. Dig. Bceles. Persons (C. 9), 
(C. 14). Hence the right of others to occupy seats in it is in the nature 
of an easement, and is usually claimed by prescription or faculty. A pew 
in the chancel may legally belong to a person in respect of the ownership 
of a house, or may belong to a lay rector, but a pew in the body of the 
church can only be acquired by virtue of a faculty, or by virtue of imme- 
morial possession, i.e., by prescription, which is founded on the notion of 
there having originally been a faculty. Parker v. Leach, 36 L. J. P. C. 26; . 
L. R. 1 P. C. 312. The right to a pew must, except in the case of the 
rector or vicar, be annexed to a particular messuage or dwelling-house, and 
not to land. Co. Lit.. 121 b, 122 a. Mere use of a pew, however long, if 
■unconnected with a particular house, is not sufficient evidence of a right. 
Stocks V. Booth, 1 T. R. 428; Mainwaring v. Giles, 5 B. & A. 366. Nor 
can the right be severed from the house and claimed in gross. Pettman v. 
Bridges, 1 Phill. 235; and see Clifford v. Wicks, 1 B. & A. 498. And 
even where the occupiers of a certain house have used a pew for many 
years, the jury are not hound to presume a faculty; Morgan v. Curtis, 8 
M. & Ry. 389 ; but they will be justified in presuming one ; and long 
possession, without proof of the actual origin of it, will be evidence of a 
prescriptive right as against a wrongdoer. Griffith v. Matthews, 5 T. R. 
296; Rogers v. Brooks, 1 T. R. 431, n. Repairs done to the pew by the 
owner of the house are evidence of a prescriptive annexation to the house ; 
but as against strangers , such proof is not indispensable ; for it may have 
required none within living memory. Kenrick v. Taylor, 1 Wils. 326 ; 
Churton v. Frewen, 35 L. J. Ch. 692; L. R. 2 Eq. 634. See Crisp v. Martin, 
2 P. D. 15. And long exclusive possession, and repairs done by the occupier, 
are evidence, even against the parson and churchwardens, of a faculty, 
although the origin of the possession gave no right. Phillips v. Halliday, 
61 L. J. Q. B. 210 ; [1891] A. C. 228. But the right may be proved by other 
acts of user, besides repair. Stileman-Gihbard v. Wilkinson, 66 L. J. Q. B. 
215 ; [1897] 1 Q. B. 749. See also Proud v. Price, 63 L. J. Q. B. 61. The 
right may be apportioned by the subdivision of the house, and the occupier 
of the apportioned part of the pew may then sue for disturbance. Harris v. 
Drewe, 2 B. & Ad. 164. 

There may be a legal prescriptive right to a pew in the body of a 
church enjoyed in respect of a house out of the parish ; for the parochial 
limits may have been contracted or varied within time of memory. Lousley 
V. Hayward, 1 Y. & J. 583 ; but see Byerley v. Windus, 5 B. & C. 1 ; 4 L. J. 
(0. S.) K. B. 102 ; and the law generally, as to seats in churches, in Walter 
V. Gunner, 1 Hagg. Consist. Eep. 317. 

Where the right is enjoyed only under the usual allotment of seats by 
the churchwardens, no action lies at common law for mere disturbance of 
the seat. Mainwaring v. Giles, 5 B. & A. 356. 

Where some attached chapel or aisle belongs to a parishioner or stranger 
as his private freehold (as may happen, Fuller v. Lane, 2 Add. 433; Hall's 
Case, cited 2 Bulst. 240; Gibs. Cod. 221; Chapman v. Jones, 38 L. J. Ex. 
169; L. R. 4 Ex. 273; Norfolk (Duke) v. Arbuthnot 49 L. J. C. P. 782; 5 
C. P. D. 390) the remedy is by action of trespass. In such a case the chapel 
cannot be held as appendant or appurtenant to a house or land. Chapman 
V. Jones, supra. 

The freehold of pews in a church, built under a private Act, is not con- 
ferred on the owners of the pews unless there are express words in the 

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Action for Deceit and Misrepresentation. 723 

act to that effect, otherwise they take a mere easement. Brumfitt v. 
Roberts, 39 L. J. C. P. 95 ; L. E. 5 C. P. 224; Greenway v. Hockin. 39 L. J. 
C. P. 103; L. R. 5 C. P. 235. 

It seems that the Prescription Act, 2 & 3 W. 4, i;. 71, does not apply 
to pews. See Crisp v. Martin, 2 P. D. 15. 

It must be borne in mind that the cases above cited re£er to pews in 
parish churches built before the year 1818. Seats and pews in churches 
built after that year are let and assigned according to the provisions of 
58 &. 3, c. 45, BS. 75, 76 ; 3 G. 4, c. 72, ss. 23—25; 1 & 2 W. 4, c. 38, ss. 4, 
21, 22; 14 & 15 V. c. 97, s. 1; and 19 & 20 V. c. 104, ss. 5—8. 



ACTION FOB DECEIT AND MISRBPEESENTATION. 

An action will lie, in respect of a false and fraudulent representation, 
made by the defendant to the plaintiff, intended to be acted on by him, 
and on which he has acted, and thereby suffered damage. Pasley v. Free- 
man, 3 T. B. 51. See S. C. 2 Smith's L. Cas. in notis ; Wells v. Smith, 
83 L. J. K. B. 1614; [1914] 3 K. B. 722. The maker of the false representa- 
tion cannot in such a case protect himself by proving that the agent of the 
other knew of the untruth, as the knowledge of the agent, not acquired in 
the course of his employment, cannot be imputed to his principal. S. C. 
The representation must be as to an existing fact, and not a mere expres- 
sion of opinion. Bellairs v. Tucker, 13 Q. B. D. 662. A statement, 
however, by A. of his opinion to B., where the facts are known better to 
A. than to B., may involve an implied statement that A. knows facts to 
justify his opinion. Smith v. Land and House Property Cor., 28 Ch. D. 
7. And a misstatement of the intention of the defendant in doing a par- 
ticular act may be a misstatement of fact; Edgington v. Fitzmaurice, 
55 L. J. Ch. 650; 29 Ch. D. 459; for "the state of a man's mind is as 
much a fact as the state of his digestion;" Id. per Bowen, L.J. See also 
Levitt V. Hamblet, 70 L. J. K. B. 520, 531; ri901] 2 K. B. 53, 72. 

It is now settled that in order, apart from statute, to maintain this 
action there must be proof of fraud : a false statement made in the honest 
belief that it is true is not sufficient : Derry v. Peek, 58 L. J. Ch. 864; 
14 App. Cas. 337 ; for there is no such thing as legal fraud in the absence 
of moral fraud. S. C. " And making a false statement through want of 
care, falls far short of, and is a very different thing from fraud, and the 
same may be said of a false representation believed in, but on insufficient 
grounds." S. C. ; per Ld. Herschell ; Angus v. Clifford, 60 D. J. Ch. 443; 
[1891] 2 Ch. 449; Low v. Bouverie, 60 L. J. Ch. 594; [1891] 3 Ch. 83. 
But where there is a legal obligation on the part of the defendant to the 
plaintiff to give him correct information, as where there is a warranty, or 
an estoppel arises, the defendant may be liable on his innocent misstate- 
ments. S. C. And a false statement made through carelessness, and with- 
out reasonable belief that it is true, though not amounting to fraud, may 
be evidence of it; and fraud is proved where it is shown that a false 
representation has been made (1) knowingly, or (2) without belief in its 
truth, or (3) recklessly, careless whether it be true or false; and if fraud 
be proved the defendant's motive is immaterial, — it matters not that there 
was no intention to injure the person to whom the statement was made. 
Derry v. Peek, 58 L. J. Ch. 864; 14 App. Cas. 369. See also judgments in 
Le Lievret v. Gould, 62 L. J. Q. B. 353; [1893] 1 Q. B. 491. To succeed 
in an action of deceit the plaintiff must prove that the untrue statement 
founded on was made with a fraudulent intent. Tackey v. McBain, 81 L. J. 
P. C. 130; [1912] A. C. 186 ; Nocton v. Ashhurton {Lord), 83 L. J. Ch. 784 ; 
[1914] A. 0. 932. 

A misconception oO^gf/ztey fi»^ /P?ft^l&#®"°g *° misrepresentation 



724 Action for Deceit and Misrepresealation. 

thereof by the defendants, will give no right of action; Eagles jusld v. 
Ltmdonderry (Ma-rquis), 4 Ch. D. 693 ; 38 I/. T. 303 ; unless the misrepresenta- 
tion be fraudulent; see Hirschfeld Y. L. Brighton S S. C. Ry., 46 L. J. 
Q. B. 94; 2 Q. B. D. 1. Misrepresentation by directors of the powers 
conferred on them by the private Act of Parliament urider which their 
company is incorporated, made knowingly, is actionable if damage result 
therefrom. W. London Commercial Bank v. Kitson, 53 L. J. Q. B. 345 ; 
13 Q. B. D. 360. 

Where the proprietor of a house instructed an agent to obtain a tenant 
for it, without telling him of a nuisance which lowered the value of the 
premises ; the agent, in answer to a question from the person to whom the 
house was let, said there were no objections to it ; it was held that there 
was no evidence of fraud on the part either of the landlord or his agent. 
Comfoot V. Fowke, 9 L. J. Ex. 297 ; 6 M. & W. 358. But where a contract 
is based on a material statement made by the defendant, innocently, but 
which is in fact untrue, the contract will be set aside; and the defendant will 
be ordered to return money paid him thereunder by the plaintiff A., with 
interest thereon, Karberg's Case, 61 L. J. Ch. 741; [1892] 3 Ch. 1 ; New- 
bigging v. Adam, 56 L. J. Ch. 275 ; 34 Ch. D. 682, and further to indemnify 
A. against obligations which A. has contracted under the contract set aside, 
as in the case of a partnership contract. S. C. On appeal, 57 L. J. Ch- 
1066 ; 13 App. Cas. 308, a more limited indemnity was prayed for and 
decreed. It is no answer to such rescission that the business restored js 
worse than worthless. S. C. And the contract being rescinded, the 
defendant cannot recover against the plaintiff for goods sold or money 
lent to the partnership. S. C. See further as to indemnity, WhittingUm v. 
Scale Hayne, 82 L. T. 49. As to election to confirm the sale see Law v. 
Law, 74 L. J. Ch. 169; [1905] 1 Ch. 140. In the absence of fraud, how- 
ever, a contract will not be set aside for misrepresentation where there 
cannot be restitutio in integrum. Lagunas 'Nitrate Co. v. Lagunas 
Syndicate, 68 L. J. Ch. 699; [1899] 2 Ch. 392. Nor where the contract has 
been executed, whether it be for the sale of land, Wilde v. Gibson, 1 H. L. 

C. 605; Brownlie v. Campbell, 5 App. Cas. 936, 937; or shares; Seddon v. 
N. E. Salt Co., 74 L. J. Ch. 199; [1905] 1 Ch. 326; Lecky v. Walte^r, 
[1914] 1 I. E. 378; or for a lease. Angel v. Jay, 80 L. J. K. B. 458; 
[1911] 1 K. B. 666, unless there has been such misdescription as is sufficient 
to annul the whole contract. Debenham v. Sawbridge, 70 L. J. Ch. 525 ; 
[1901] 2 Ch. 98, see also Att.-Gen. y."Ray, 43 L. J. Ch. 478; L. R. 9 Ch. 
397 ; or unless there is a fiduciary relationship between the parties. Armstrong 
V. Jackson, 86 L. J. K. B. 1375 ; [1917] 2 K. B. 822. In such a case mere 
lapse of time is no answer to the claim for rescission so long as the party 
defrauded remains ignorant of the fraud or misrepresentation; but if, with 
knowledge, he delays his action for rescission for more than six years, the 
court will refuse relief. S. C. As to how far it is the duty of the defendant 
tu disclose facts known to him affecting the subject-matter of the contract, 
see Turner v. Green, 64 L. J. Ch. 539; [1895] 2 Ch. 205. As to the duty of 
a partner A. to his co-partner B., on the sale by B. to A. of B.'s share of 
the partnership business, to disclose all he knows as to the partnership 
accounts, see Law v. Law, [1905] 1 Ch. 140. 

As to the rights of a party entitled to rescind a partnership contract on 
the ground of the fraud or misrepresentation of one of the parties thereto ; 
see sect. 41 of the Partnership Act, 1890. 

In the case of fraud, there is joint and several liability to restore money 
fraudulently taken. Ex pte. Adamson, 8 Ch. D. 807, 815. 

Where fraud is relied on, it must be distinctly alleged and proved, 
although it is not necessary to use the word fraud. Davy v. Garrett, 7 Ch. 

D. 473, 489. And the words " falsely and fraudulently," may be struck out 
of the statement of claim, provided there is a good cause of action left. 
Thom V. Bigland, 8 Ex. 725, 730; 22 L. J. Ex. 243, 245; Swinfen v. 
Chelmsford, 5 H. & N. 890, 921; 29 L. J. Ex. 382, 397. 

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Liability for Misrepresentatimi. 725 

Where E., by fraudulent misrepresentation, induced B. to do an act, which 
in consequence of such misrepresentation B. believed to be innocent, but 
which was in fact criminal, B. may sue A. for such damages as he has 
sustained by so acting. Burrows v. Rhodes, [1899] 1 Q. B. 816. See also 
Dixon V. Fawcus, 30 L. J. Q. B. 137. Where evidence has been given, that 
a representation was made by the defendant, false to his knowledge, he may, 
of course, as in other cases, be called as a witness to rebut the evidence, not- 
withstanding the decision imputed to Jessel, M.E., in Hine v. Campion,. 
7 Ch. D. 344, to the contrary. See observations of Ld. Bramwell, ia 
Derry v. Peek, 58 L. J. Ch. 864; 14 App. Cas. 347. 

As to the liability of the executors of the person who made the misrepre- 
sentation, vide Part. III. Actions against Executors, post. 

A principal is liable for the fraud of his agent acting within the scope of 
his authority, whether the fraud is committed for the benefit of the principal 
or for the benefit of the agent. Lloyd v. Grace, Smith d Co., 81 L. J. K. B. 
1140; [1912] A. C. 716, where Barwick v. English Joint Stock Bank, 
36 L. J. Ex. 147; L. E. 2 Ex. 259, and the other authorities are fully 
discussed. 

As' to the liability of partners for the representation of their co-partner, see 
the Partnership Act, 1890, 53 & 54 V. c. 39, ss. 10—12. By sect. 15, " an 
admission or representation made by any partner concerning the partnership 
affairs, and in the ordinary course of its business, is evidence against the 
firm." 

A false statement published in a prospectus, advertisement, &c., with the 
fraudulent intention, that it should be read and acted upon by the plaintiff, 
will, if so read and acted on by him, entitle him to sue for the damages he 
has sustained, which naturally result from his so acting; Gerhard v. Bates, 
2 E. & B. 476; 22 L. J. Q. B. 364; Richardson v. Silvester, 43 L. J. Q. B. 
1; L. E. 9 Q. B. 34. Thus the manager, and assistant manager, of a joint- 
stock banking company, were held liable for fraudulent statements, con- 
tained in reports presented by the directors, at the annual meetings, to the 
shareholders, whereby a, shareholder was induced to purchase more shares 
in the bank. Cullen v. Thomson's Trustees, 4 Macq. 424. Where the 
directors of a mining company caused "■ prospectus to be circulated, grossly 
misrepresenting the real purchase-money paid for the sett, so as to convey 
an impression of great value, they were held liable to a shareholder, who had 
taken up shares in the company on the faith of the false statements, 
although he might have had other inducements to buy. Clarke v. Dickson, 
6 C. B. (N. S.) 453; 28 L. J. C. P. 22^ ; Edgington v. Fitzmaurice, 55 L. J. 
Q. B. 650 ; 29 Ch. D. 459. But the misrepresentation must be shown to 
have materially influenced the plaintiff. S. CC. ; Moore v. Burke, 4 F. & F. 
258; Smith v. Chadwiek, 53 L. J. Ch. 873; 9 App. Cas. 187; Smith v. Land 
and House Property Co., 28 Ch. D. 7; and see Amison v. Smith, 41 Ch. D. 
848, 368. As to the effect of a subsequent circular correcting the misrepre- 
sentation, vide, S. C. Where a prospectus contains several misstatements, 
it is sufficient that it influenced the plaintiff as a whole. Aaron's Reefs v. 
Twiss, 65 L.. J. P. C. 54, 58; [1896] A. C. 273, 280; McConnel v. Wright, 
[1903] 1 Ch. 546, 551. As to the advertisements which injure the plaintiff's 
trade, see Ajello v. Worsley, 67 L. J. Ch. 172; [1898] 1 Ch. 274. The con- 
struction of the written representation is, as in other cases, for the judge. 
Bellairs v. Tucker, 13 Q. B. D. 562. 

In the case of a prospectus or notice issued by the promoters, directors, 
&c. , of a company, registered under the Companies Acts, inviting subscrip- 
tions to shares or debentures in the company, which prospectus contains 
statements in fact untrue, the Directors' Liability Act, 1890 (53 & 64 V. 
c. 64), in general provided and now the Companies (Consolidation) Act, 
1908 (8 Ed. 7, c. 69), s. 84, provides that the promoters, &c., shall be liable 
to pav compensation to all persons who shall subscribe for any shares, &c., 
on the faith of such prospectus, &c., for the loss or damage they may have 
sustained by reason off5Mf^^^?J^^08*S^g?°' "^^^^ provisos enabling 



726 Action for Deceit and Misrepresentation. 

the promoters, &c., in certain cases to discharge themselves from liability 
by proof of reasonable belief in its truth. As to what may be a reasonable 
ground for believing an untrue statement in a prospectus, see Adams v. 
Thrift, 84 L. J. Ch. 729 ; [1915] 2 Ch. 21. An indemnity is provided for a 
person vphose name has been published as a director, not being such, against 
damages, costs, &c., to which he has been liable in consequence of such 
publication. Provision is also made for contribution from a co-director, as 
to payments to which one of them may become liable under this Act, unless 
the director who has paid was, and the co-director was not, guilty of 
fraudulent misrepresentation. As to what contribution is recoverable, and 
the evidence in support of it, see Shepheard v. Bray, 75 L. J. Ch. 633; 
[1906] 2 Ch. 235; reversed by consent, 76 L. J. Ch. 692; [1907] 2 Ch. 571. 
It may be obtained by third-party proceedings in the original action ; see 
Person v. Simpson, 72 L. J. K. B. 603; [1903] 2 K. B. 197. The 
liability of a director under sect. 84 to pay compensation is founded on 
tort, and therefore where the defendant dies no right of action will smrvive 
against his executor in the absence of proof that the director's estate has 
benefited by his tortious act. Geipel v. Peach, 86 L. J. Ch. 745 ; [1917] 
2 Ch. 108. 

Under this section, directors will be liable to a person who has suffered 
damage by taking shares on the faith of a prospectus which contains untrue 
statements, where they do not prove that they had reasonable grounds for 
believing the truth of such statements ; Greenwood v. Leather Shod Wheel 
Co., 69 L. J. Ch. 131; [1900] 1 Ch. 421; so where it omits a statement of 
material facts known to them, but which they believe not to be material. 
Shepherd v. Broome, 73 L. J. Ch. 608; [1904] A. C. 342. Primd facie a 
company which issues a prospectus embodying a report made by a director 
is responsible for the truth of, as well as for the absence of fraud in, the 
statements of fact in the report. Mair v. Rio Grande Rubber Estates, 
;83 L. J. P. C. 35 ; [1918] A. C. 853 {per Lord Shaw) ; see also In re Pacaya 
Rubber, dc. Co., 83 L. J. Ch. 432; [1914] 1 Ch. 542. Withdrawal after 
-action brought, by the director of his consent to the issue of the prospectuses, 
Is too late. Drincqbier v. Wood, 68 L. J. Ch. 181; [1899] 1 Ch. 393. 
'The damages must be connected with the misrepresentation. Broome v. 
.Speak, [1903] 1 Ch. 586, 610. They are limited to the amount paid for the 
:8hares ; that amount is primd facie taken to be the equal value, at the date 
of allotment, of the shares having the advantages stated in the prospectus ; 
the damages are the diminution of that value owing to those advantages 
being absent. McConnel v. Wright, 72 L. J. Ch. 347; [1903] 1 Ch. 546; 
Broome v. Speak, supra; if therefore the shares are valueless the damages 
are the whole price paid for them. See Twycross v. Grant, 2 C. P. D. 469. 
The action is for compensation, not for a penalty, and is not therefore barred 
by the lapse of two years. Thomson v. Ld. Glanmorris, 69 L. J. Ch. 337; 
[1900] 1 Ch. 718. It seems that the action is under 21 J. 1, c. 16, s. 3, 
barred after six years from the date of the plaintiff's application for shares. 
S. C. 

Section 81 of the Companies (Consolidation) Act, 1908, prescribes what 
must be stated in every prospectus. In an action against a director, pro- 
moter, or officer of a company, for non-disclosure of a contract in the pros- 
pectus the plaintiff must prove that if he had known of it he would not have 
taken shares ; that he has suffered damage from the non-disclosure ; and 
that the defendant knew of the existence of the undisclosed contract. 
Calthorpe v. Trechman; Macleay v. Tait, 75 L. J. Ch. 90; [1906] A. C. 
24. The mere non-disclosure does not in itself entitle a shareholder to be 
■relieved of his shares. In re Wimbledon Olympia, 79 L. J. Ch. 481 ; [1910] 
1 Ch. 630; the remedy (it any) is an action for damages against those 
responsible for the prospectus. In re South of England Natural Gas, &c. 
Co., 80 L. J. Ch. 358; [1911] 1 Ch. .573. See also In re Christineville 
Jiubber Estates,. SI L. J. Ch. 63. 

With reference to fraudulent misrepresentations, made to persons other 

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Companies (Consolidation) Act, 1908. 727 

than the plaintiff, whereby the plaintiff has been deceived, the rule is, that 
a person is responsible for the consequences of a false representation, made 
by him to another, on which a third person acts, provided that the repre- 
sentation was made with the direct intent that it should be acted on hj such 
third person, in the manner that occasions the injury, and that the injury 
be the immediate consequence of the representation : Peek v. Gurney, 
43 L. J. Ch. 19, 45 ; L. E. 6 H. L. 377, 412, 413, following Barry v. Croskey, 
2 J. & H. 1, 23. Thus, where the defendant sold a gun to A. " for the 
use of himself and his sons , ' ' and ' ' falsely and fraudulently ' ' warranted its 
soundness, knowing it to be unsound ; the defendant was held liable to an 
action by A.'s son, for an injury done to him by its bursting, though the 
contract of sale was between A. and the defendant only. Levy v. Lang- 
ridge, 7 li. J. Ex. 387; 4 M. & W. 337. So, where the directors of a bank 
issued a report known by them to be false, in form addressed to the share- 
holders, but intended for the information of any person desiring to deal in 
the shares of the bank, and the plaintiff, through a broker, obtained a copy, 
and was thereby induced to purchase shares ; it was held, he was entitled to 
sue for the loss he had thereby suffered; Scott v. Dixon, 29 L. J. Ex. 62 n. 
Where, however, the act of the plaintiff, which had caused him the injury, is 
not directly induced by the representation of the defendant, although it was 
made by him with the intent that it should be so acted on, no action will lie. 
Peek V. Gurney, 43 L. J. Ch. 19; L. K. 6 H. L. 377. Thus, where the pros- 
pectus of a company was issued, containing representations intentionally 
false, and all the shares were thereupon taken up, and the plaintiff, relying 
on those representations, afterwards bought shares in the market, and 
thereby suffered loss, it was held, that the plaintiff could not sue on the 
false representations, for as he had not received the prospectus from those 
who were answerable for it, he could not treat them as made personally to 
himself ; S. C. See also, Barry v. Croskey, 2 J. & H. 1. It is otherwise, 
however, if such prospectus was issued for the purpose of influencing the 
purchase, by the plaintiff, to whom it was sent, of shares in the market, and 
it had that effect. Andrews v. Mockford, 65 L. J. Q. B. 302; [1896] 1 Q. B. 
372. So, where it was afterwards supplemented by false statements to the 
same effect on which the plaintiff took action. S. C. 

A municipal corporation is liable to an action for the fraudulent mis- 
representation of their agent acting in the course of the business with which 
the company has entrusted him, and for their benefit; Pearson v. Dublin 
Cor., 77 L. J. P. C. 1; [1907] A. C. 351. So an incorporated company; 
Barwick v. English Joint-Stock Bank, L. E. 2 Ex. 259; Mackay v. Com- 
mercial Bank of New Brunswick, 48 L. J. P. C. 31; L. B. 5 P. C. 394; 
Swift Y Jewsbury, 43 L. J. Q. B. 56 ; L. E. 9 Q. B. 301, 312 ; Kettlewell v. 
Refuge Assur. Co., 77 L. J. K. B. 421; 78 L. J. K. B. 519; [1908] 1 K. B. 
546; [1909] A. C. 243, and is liable in damages, at any rate, to the extent 
to which the company has profited, by the fraudulent representation of the 
agent. Weir v. Bell, 47 L. J. Ex. 704, 708; 3 Ex. D. 238, 244. In Swift 
V. Jewsbury, supra, the dicta of Lds. Chelmsford and Cranworth in Addie 
y. W. Bank of Scotland, L. E. 1 H. L. Sc. 145, 158, 167, to the effect, 
that the action could be brought only against the directors, or other agents, 
who had made the false statements, and not against the company, were 
dissented from, and it was pointed out that they were not material to the 
decision of the case. These dicta were further explained in Houldsworth 
V. City of Glasgow Bank, 5 App. Cas. 317. See further National Exchange 
Co, of Glasgow v. Drew, 2 Macq. 103; McGowan v. Dyer, L. E. 8 Q. B. 
141 ; and cases cited Part III. , sub tit. Actions by and against companies — 
Special defences in actions for calls — Fraud and misrepresentation. 
Evidence pf similar frauds, committed on other persons, by the same agent 
of the defendant company, in the same manner, with the knowledge and for 
the benefit of the company, is admissible to prove fraud. Blake v. Albion 
Life Assur. Co., 48 L. J. G. P. 169 ; 4 C. P. D. 94. In like manner, on the 
question of fraud, otlgjg^^^^te^^QgJjy|^ same business, made by 



728 Action for Deceit and Misrepresentation. 

defendant, may be submitted to the jury, but not as distinct causes of action- 
Huntingford v. Massey, 1 F. & P. 690. And the defendant may show repre- 
sentations made by him to others, with the view of proving his own hona 
fides. Shrewsbury v. Blount, 2 M. & Gr. 475. In an action for a false 
representation as to the trustworthiness of W., the defendant having been 
proved at about the time of the representation, to have bought goods from W. 
under cost price, was allowed to ask his shopman, and other tradesmen of the 
town, in which W. carried on business, as to their belief in W.'s trust- 
worthiness at the time the representation was made. Sheen v. Bumpstead, 
2 H. & C. 193; 32 L. J. Ex. 271. A principal is liable for the fraud of his 
agent acting within the scope of his authority, whether the fraud is com- 
mitted for the benefit of the principal or for the benefit of the agent. 
Lloyd V. Grace, Smith S Co., 81 L. J. K. B. 1140; [1912], A. C. 716. Cf. 
Russo-Ohinese Bank v. Li Yau Sam, 79 L. J. P. C. 60; [1910] A. C. 174. 
' The plaintiff must prove actual damage to himself, in order to maintain 
the action. Hyde v. Bulmer, 18 L. T. 293. 

Damages.~\ Costs incurred upon the discovery of the falsehood of a repre- 
sentation, in order to reverse the consequences thereof, are too remote an 
injury to be included in an action of fraud. S. C. 

Where the plaintiff was induced by the fraud of the defendant to take up 
shares, the damages recoverable are the difference between the price paid for 
them, and their real value on allotment; this value is not the market value; 
it may be ascertained by the light of subsequent events, e.g., the estimated 
dividend on a liquidation of the company. Peek v. Derry, 57 L. J. Ch. 347 ; 
37 Ch. D. 541 (the judgment in this case was reversed in H. L. on the 
ground that there was no fraud; 68 L. J. Ch. 864; 14 App. Cas. 337). Thus, 
where the shares were really worthless, the plaintiff recovers the full amount 
he paid for them, although they had, when he took them, a market value. 
Twycross. v. Grant, 2 C. P. D. 469. The plaintiff is not, in such cases, 
bound to realize his shares in order to ascertain his damage. S. C. ; Peek 
V. Derry, supra. Where, however, the fraud of the defendant was, that he 
induced L. to believe that the rupee paper, which L. had directed him to 
buy, was bought from third persons, whereas the defendant sold Ij. rupee 
paper of hie own, the damages were held to be the difference only, between 
the price L. had paid, and what he would have received, if he had resold 
it in the market, forthwith after purchasing it. Waddell v. Blockey, 
48 L. J. Q. B. 517 ; 4 Q. B. D. 678. The plaintiff may recover damages 
for any injury which is the direct and natural consequence of his acting on 
the faith of the defendant's fraudulent representations. Mullett v. Mason, 
35 L. J. C. P. 299; L. E. 1 C. P. 559. A cattle dealer sold the plaintiff a 
cow, and fraudulently represented it was free from infectious disease; the 
plaintiff placed it with five others, and they caught the disease and died; it 
was held that the plaintiff was entitled to recover, as damages, the value 
of all the cows. S. C. 

As to the defendant's liability for the costs of an abortive action the 
plaintiff was induced to bring by reason of the defendant's misrepresentation, 
see Richardson v. Dunn, 8 C. B. (N. S.) 655 ; 30 L. J. C. P. 44. 

The causes of action under this head are various. The cases which most 
commonly occur in practice are misrepresentation of the value of property, 
and misrepresentation of solvency or character. 

A clause in a contract by which the employer disclaims responsibility 
for the accuracy of the statements, &c. , supplied to the contractor, and as 
to which the contractor is to satisfy himself, does not confer exemption on 
the employer for statements fraudulently or recklessly made by him or his 
agent. Pearson v. Dublin Cor., 77 Li, J. P. C. 1; [1907] A. C. 351. 

Where C. bribes A. to induce his principal P. to buy T.'s goods on dis- 
advantageous terms, and A. does so successfully, P. may recover the bribe 
from A., and also sue C. alone, or A. and C. jointly, for the loss he has 
sustained, without allowing any deduction in respect of the amount recovered 

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Misrepresentation of Value of Property— Of Solvency, &c. 729 

from A. Salford (Mayor) v. Lever, 60 L. J. Q. B. 39; [1891] 1 Q. B. 168. 
See Grant v. Gold Exploration, dc. Syndicate, 69 L. J. Q. B. 150; [1900] 

1 Q. B. 233. 

Perjury causing damage to the plaintiff gives no ground of action, whether 
it be committed by a witness; Damport y. Sympson, Cro. Eliz. 520; or a 
deponent in an affidavit. Eyres v. Sedgewicke, Cro. Jac. 601. 

A false statement calculated to cause, uttered with the knowledge that it 
is likely to cause, and actually causing, physical injury to the person to 
whom it is uttered, is actionable. Wilkinson v. Downton, 66 L. J. Q. B. 
493; [1897] 2 Q. B. 67; Dulieu v. White, 70 L. J. K. B. 837, 843; [1901] 

2 K. B. 669, 683; Janvier v. Sweeney, 88 L. J. K. B. 1231 ; [1919] 2 K. B. 
316. 

Misrepresentation of the value of property.] Where the vendor of a 
public-house, fraudulently misrepresents the amount of business done in it, 
whereby the plaintiff isi induced to buy the house, an action will lie, 
although such statement was not contained in the conveyance or memo- 
randum of the bargain. Dobell v. Stevens, 3 B. & C. 623; 3 L. J. (0. S.) 
K. B. 89; Pilmore v. Hood, 8 L. J. C. P. 11 ; 6 Bing. N. C. 97. Where A. 
agreed to sell a brewery to B. or his nominee, on the basis that the profits had 
been of a certain amount, and B. agreed to sell it to C. at an enhanced price 
without any stipulation as to the profits, and A. by B.'s direction conveyed it 
to C, it was held that B. and C. could not join in suing A. to set aside the 
original contract on the ground that the profits were insufficient, on the 
terms of returning the brewery, for B. had no interest in the brewery, and 
C. had no right as against A. Edinburgh United Breweries v. Molleson, 
[1894] A. C. 96. Where the promoter P. of a company is liable for the 
fraudulent resale to it of property bought by P. for the purpose of such 
resale, the measure of damages is the profit so obtained by P. In re Leeds 
and Hanley Theatres, 72 L. J. Ch. 1; [1902] 2 Ch. 809. 

Where a chattel is sold with all faults, the seller is not liable to an action 
in respect of latent defects, which he knew of, without disclosing at the time 
of sale; Baglehole v. Walters, 3 Camp. 154; Ward v. Hobbs, 47 L. J. 
Q. B. 90; 3 Q. B. D. 150; 4 App. Cas. 13; unless he misrepresented the 
condition of the chattel, so as intentionally to deceive the purchaser, as an 
individual, or as one of a class, or one of the public; S. C. ; 47 L. J. Q. B. 
93; 3 Q. B. D. 157; Schneider v. Morris, 3 Camp. 606, or unless he used 
means to prevent the purchaser from discovering its condition ; S. C. ; in 
either of which cases the vendor would be liable. 

Misrepresentation of solvency, dc] An action lies for making a false 
and fraudulent representation of the character, or solvency of another (under 
circumstances from which it may be assumed, that the party making the 
representation, intended it to be acted upon), whereby the plaintiff had been 
induced to give credit to him, and has suffered loss. Pasley v. Freeman, 

3 T. E. 51; 2 Smith's L. C. ; Pontifex V. Bignold, 10 L. J. C. P. 269; 3 M. 
& Gr. 63. 

By Ld. Tenterden's Act (9 Q. 4, u. 14), s. 6, " no action shall be brought, 
whereby to charge any person upon, or by reason of any representation, or 
assurance, made or given, concerning or relating to the character, conduct, 
credit, ability, trade, or dealings of any other person, to the intent or pur- 
pose, that such other person may obtain credit, money, or goods upon,* 

* Sic. It is evident that some mistake has here crept into the parliament 
roll. See Lt/de V. Borraard, 6 K J. Ex. 117; IM. &W. 101,115,123. Ld. 
Abinger, C.B., thought that the word "upon" should be rejected as sur- 
plusage; Id. pp. 123, 124; while Parke, B., suggested that words should be 
transposed, so as to read thus : — " to the intent or purpose that some other 
person may obtain money or goods upon credit ; " or that othf.rs should be 
interpolated, so as to read thus : — " to the intent or purpose to obtain credit, 
money, or goods on iu^dlf1>^m^<fPmfomMyM ' ^^^- 



730 Action for Defamation. 

unless such representation or assurance be made in writing, signed by the 
party to be charged therewith." This section applies to fraudulent repre- 
sentations only. Banbury v. Bank of Montreal, 87 L. J. K. B. 1168 ; 
[1918] A. C. 626. An action may therefore be maintained on a parol repre- 
sentation as to the credit of another person if made negligently and in 
breach of a duty owing to the plaintiff. 8. C. The word " person " in the 
section includes a corporation. S. C. Hirst v. W. Biding Union Banking 
Co., 70 L. J. K. B. 828; [1901] 2 K. B. 560. A defence under this section 
must be pleaded specially. See Bules, 1833, 0. xix., r. 15. 

When the defendant fraudulently stated that the plaintiff might safely 
trust A. B., because the defendant had the title-deeds of an estate of A. B., 
this was held to be within the above section. Swann v. Phillips, 7 L. J. Q. B. 
200; 8 Ad. & B. 457. A representation fraudulently made respecting the 
credit of a firm, of which the defendant is a partner, is within the Act. 
Devaux v. Steinkeller, 9 L. J. C. P. 30; 6 Bing. N. C. 84. In Lyde v. 
Barnard, 5 L. J. Ex. 117; 1 M. & W. 101, the court were divided on the 
point, whether a representation that the life estate of A. B. was charged 
with only three annuities, was a representation relating to the credit and 
ability of A. B., within the Act. See further Clydesdale Bank v. Paton, 
65 L. J. P. C. 73; [1896] A. C. 381. If the false representation, signed by 
the defendant, substantially conduced to the obtaining of the credit, he is 
liable, although the plaintiff might possibly have been influenced by other 
representations, which are inadmissible, through not being in writing. 
Tatton V. Wade, 18 C. B. 371; 25 L. J. C. P. 240. The plaintiff may sue, 
on a, fraudulent misrepresentation made to his bankers, in answer to ques- 
tions put by them at his request, and acted on by him. Swift v. Jewsbury, 
43 L. J. Q. B. 56; L. E. 9 Q. B. 301. 

The signature of an agent will not satisfy the section; S. C. ; nor will 
that of the manager of a banking co-partnership, registered under 7 G. 4, 
c. 46; S. C. ; nor of a company under the Companies Act, 1862. Hirst v. 
W. Riding Union Banking Co., 70 L. J. K. B. 828; [1901] 2 K. B. 560. 
And, one partner signing in the name of, and by the express authority of his 
firm, will make himself only, liable. Mason v. Williams, 28 L. T. 232. 



ACTION POE DEFAMATION. 



There is a well-known legal distinction between written and spoken 
slander. Slanderous words spoken and published, but not committed to 
writing, are actionable only when they charge the plaintiff with a criminal 
offence, or allege that he has a disease rendering him unfit for society, 
or attack him in relation to his trade or calling, or when, besides being 
clearly defamatory, they have caused to the plaintiff some particular damage, 
or by the Slander of Women Act, 1891 (54 & 55 V. c. 51), in the case 
of a woman, that they impute unchastity or adultery. But in the case of 
words, published by writing, it is only necessary that they should be 
calculated to degrade or disparage the plaintiff, and hold him up to hatred, 
ridicule, or contempt, in order to make them actionable. As, however, the 
pleadings in cases both of written or spoken slander are often very similar, 
it will be most convenient to consider the evidence of defamation, written 
or spoken, under one general heading. 

Words imputing to the plaintiff a criminal offence, for which he was liable 
to imprisonment, are actionable, even although the offence is not indictable. 
Webb V. Beavan, 52 L. J. Q. B. 544 ; 11 Q. B. D. 609 ; but to impute to the 
plaintiff the commission of an offence which is punishable by fine only, 
although on default of payment of the fine the offence may be punishable by 
imprisonment, is not actionable without proof of special damage. Hellwig 

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Proof of Introductory Averment, dc. 731 

V. Mitchell, 79 L. J. K. B. 270; [1910] 1 K. B. 609; Ormiston v. Gt W. 
Ry., 86 L. J. K. B. 759; [1917] 1 K. B. 598. 

As to joinder of plaintiffs in this action, see Booth v. Briscoe, 2 Q. B. D. 
496. 

Judgment for the defendant in an action on part of one connected libel 
IS a bar to another action brought in respect of another part. Macdouqall v. 
Knight, 59 L. J. Q. B: 517 ; 25 Q. B. D. 1. 

Proof of introductory averment, rfc] All introductory averments essen- 
tial to the plaintiff's case, must be proved if denied upon the pleadings. 
Where the words are alleged to have been spoken of, and concerning, the 
plaintiff, in a particular character, and are only actionable as having been 
spoken of the plaintiff in that character, such character must, if denied, be 
proved; but if the character be immaterial, or be not traversed, no evidence 
need be given of it. Lewis v. Walter, 3 B. & C. 138, n. ; Cox v. Thomason, 

I L. J. Ex. 128; 2 C. & J. 361; Bules, 1883, 0. xix., rr. 15, 17. 
As to interrogatory, whether words complained of refer to the plaintiffs, see 
Spiers d Pond v. John Bull, Ltd., 86 L. J. K. B. 992. Where the 
words themselves admit the plaintiff's character, evidence of it is unneces- 
sary. Yriaarri v. Clement, 3 Bing. 432. Where the plaintiff was described 
as assistant overseer, proof that he is acting in that capacity was held 
sufficient. Gannell v. Curtis, 5 L. J. C. P. 43; 2 Bing. N. C. 228. Where 
the words are spoken of several plaintiffs in trade, their joint trading must 
be proved. See Le Fanu v. MaUolmson, 1 H. L. C. 637. 

21 & 22 V. c. 90, s. 27, provides means of proving the plaintiff's medical 
qualification. The books of a university (duly authenticated), conferring 
the degree of doctor of laws, are evidence to prove that fact. Moises v. 
Thornton, 8 T. B. 303, 306, 307. See also Collins v. Carnegie, 3 L. J. K. B. 
196; 1 Ad. & E. 695. 

To prove that the plaintiff is a solicitor (where the libel does not admit 
it), an examined copy of the roll of solicitors is sufficient. So, the book 
from the master's office, containing the names of all the solicitors, produced 
by the officer in whose custody it is kept, is good evidence, together with 
proof that the plaintiff practised as a solicitor at the time of the libel. R. v. 
Grossley, 2 Esp. 526 ; Lewis v. Walter, 3 B. & C. 138, n. The certificate 
need not be produced, if the libel do not relate to it. Jones v. Stevens, 

II Price, 235. The stamp office certificate, countersigned by the master 
of the court, was held sufficient primA facie evidence of the party being an 
attorney. Sparling v. Haddon, 1 L. J. C. P. 142 ; 9 Bing. 11. Since 6 & 7 
V. c. 73, the stamp office certificate is not countersigned; but the registrar's 
certificate, indorsed by the stamp office, or a copy of the register of solicitors 
or the Law List would seem to be now evidence. 

Where the title to the particular situation is not the subject of any 
express documentary appointment, the acting in the situation, is of course 
the proper evidence. 2 Stark. Ev. , 3rd ed., 627. And when the plaintiff 
averred, that he was employed by " The New England Company," and that 
the libel was published of him, in such employment, it was held sufficient to 
prove that the company was commonly so called, though that was not its 
legal name. Rutherford v. Evans, 8 L. J. (0. S.) C. P. 86; 6 Bing. 451. 

Whether the words are spoken of the plaintiff in a particular character is 
for the jury; Jones v. Littler, 7 M. & W. 423; and if the words be such as 
must be injurious to the plaintiff as a trader (e.g., words imputing insol- 
vency), it is then needless to prove them spoken of him as such. S. C. In 
an action for saying of the plaintiff in his trade of a brewer that he had 
been bankrupt at C, it was proved that he had been a brewer at 0. ; held, 
the place where the bankrupt became bankrupt was immaterial ; he might 
have become a bankrupt whilst a brewer at 0. by an act of bankruptcy 
committed at C. Hall v. Smith, 1 M. & S. 287; Figgins v. Cogswell, 3 M. & 
S. 369; Rutherford v. Evans, supra. 

Words spoken in refeyemajg Jhfi^kintiff',S,^aSge, trade, or business must. 



732 Action for Defamation, 

in order to be actionable per se, either show the want of some general 
requisite, as honesty, capacity, fidelity, &c., or connect the imputation with 
the of&ce, &c. Lumby (or Lumley) v. Allday, 1 Cr. & J. 301 ; 9 L. J. (0. S.) 
62; Dauncey v. Holloway, 70 L. J. K. B. 695; [1901] 2 K. B. 441; Bendle 
T. United Kingdom Alliance, 31 T. L. E. 403 ; Myroft v. Sleight, 37 
T. L. E. 646. Thus, words imputing incontinence to a physician, Ayre Y. 
Craven, 4 L. J. K. B. 35; 2 Ad. & E. 2; or a clergyman, unless holding a 
benefice or some clerical office, &c., producing temporal profit; Gallwey v. 
Marshall, 9 Ex. 294; 23 L. J. Ex. 78; or a shoolmaster, with no reference 
to the fact that he is a schoolmaster; Jones v. Jones, 85 L. J. K. B. 1519; 
[1916] 2 A. C. 481 ; are not actionable per se. Nor before stat. 64 & 55 V. 
c. 51, were words imputing incontinence to a schoolmistress; Wharton v. 
Brook, 1 Ventr. 21. And where the office is one of honour or credit only, 
and not of profit, words showing unfitness are not actionable, unless it be 
such as to render the holder liable to be deprived of the of&ce. Alexander v. 
Jenkins, 61 L. J. Q. B. 634; [1892] 1 Q. B. 797. To say of a solicitor, 
although he is in the habit of receiving moneys in trust for and on behalf 
of clients for investment, that "he has lost thousands " or that "he has 
gone for thousands instead of hundreds this time " has been held not action- 
able without proof of special damage. Dauncey v. Holloway, 70 L. J. K. B. 
695; [1901] 2 K. B. 441. In the Scottish case of A.B. v. CD:, 7 Eraser 
(Ct. of Sess.) 22, an action was however held maintainable where the words, 
referring to a solicitor holding several appointments of trust, were that he 
has been " cleaned out and lost his all." On the other hand, words imput- 
ing dishonesty or malversation in such an office are actionable. Booth v. 
Arnold, 64 L. J. Q. B. 443; [1896] 1 Q. B. 571. To say of the superinten- 
dent of a lunatic asylum that he was " just a quack "was held to be capable 
of meaning that he was unfit for his duties. Chisholm v. Grant, [1914] 
S. C. 289. So, to say of the master of a foreign-going ship, possessed of a 
certificate under the Merchant Shipping Act, 1894, that during his stay at a 
port he was drunk, and had to be carried to his boat to reach his vessel; 
Irwin V. Brandwood, 2 H. & C. 960 ; 33 L. J. Ex. 257 ; or, of a gamekeeper, 
whose duty it is not to kill foxes, and who is employed on the terms that 
he should not kill foxes, that he killed foxes; Foulger v. Newcomb, 36 L. J. 
Ex. 169; L. E. 2 Ex. 327; is actionable without special damage. Alleging 
(during the War) that a British incorporated company was a German com- 
pany was held to be defamatory. Slazengers v. Gibbs, 33 T. L. E. 35. 

Proof of the libel.^ The plaintiff must set out the actual words of the 
libel; it is not sufficient to state merely their substance. Harris v. Warre, 
48 L. J. C. P. 310; 4 C. P. D. 125. A mere omission in setting out part 
of a libel is not fatal, unless the sense of that which is set out is thereby 
varied; Tabart v. Tipper, 1 Camp. 353; but where the words alleged are 
materially qualified by the context, although the whole is libellous, there is, 
subject to amendment, a fatal variance. Rainy v. Bravo, L. E. 4 P. C. 287 ; 
Cartwright v. Wright, 5 B. & A. 615; Stace v. Griffith, L. E. 2 P. C. 420; 
Brembridge v. Latimer, 12 W. E. 878. 

Where the original libel has been lost or destroyed, secondary evidence 
may be given of it; Rainy v. Bravo, supra; unless it is contained in a 
letter, or official document, which is privileged from production on the 
ground of public policy, in which case, the plaintiff is precluded from pro- 
ducing secondary evidence of contents of that document. Dawkins v. 
Bokeby, L. E. 8 Q. B. 266. As to the use of an affidavit of defendant filed 
in the cause, in reply to an application for inspection, as an admission of the 
libel, see Rainy v. Bravo, supra. 

Whether a writing is a libel or not, is a question for the jury, and the 
judge is not bound to give an opinion on it ; Baylis v. Lawrence, 9 L. J. Q. B. 
196; 11 Ad. & E. 920; but the proper course (and the usual practice), is for 
the judge to define what is a libel in point of law. Parmiter v. CouplanJt, 
9 L. J. Ex. 202; 6 M. & W. 105. It may be defined to be a publication. 

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Proof of the Libel. 733 

1 
■without justification or lawful excuse, calculated to injure the reputation of 
another, by exposing him to hatred, contempt, or ridicule. Per Parke, B. ; 
S. G. A writing may be a libel on a private person, which would not be so 
on a person in a public character or office ; for the acts of public men which 
concern the subject, may be lawfully commented upon, without malice ; but to 
impute bad or corrupt motives is a libel in either case. Id., and see Camp- 
bell V. Spottiswoode, 32 L. J. Q. B. 185; 3 B. & S. 769; and Merivale v. 
Carson, 20 Q. B. D. 275. The test whether a waiting is a libel is " whether 
under the circumstances in which the writing was published, reasonable men, 
to whom the publication was made, would be likely to understand it in a 
libellous sense," and " not what was the intention with which " it was 
published. Capital and Counties Bank v. Henty, 52 L. J. Q. B. 232; 
7 App. Gas. 741. If it is not likely so to be understood, there is no evidence 
for the jury. S. G. ; Nevill v. Fine Art, do. Co., 66 L. J. Q. B. 195 ; [1897] 
A. C. 68. If, however, the words sued on are reasonably susceptible of a 
libellous construction, they should be left to the jury. Hart v. Wall, 46 
L. J. C. P. 227; 2 C. P. D. 146; Simmons v. Mitchell, 50 L. J. P. G. 11; 
6 App. Gas. 156. Words imputing suspicions only that the plaintiff has 
committed murder are not actionable. S. G. It is no defence to show that 
the defendant did not intend to defame the plaintiff, if reasonable people 
would think the language to be defamatory of him. Hulton v. Jones, 79 
Ij. J. K. B. 198; [1910] A. C. 20. The publisher of a newspaper may be liable 
for a statement published with regard to a private individual, which although 
not ex facie defamatory is in the circumstances in fact defamatory, as e.g., 
to publish as an advertisement that A.B. had given birth to a child on a 
certain date, when the fact was she had only been married two months, and 
had not given birth to a child. Morrison v. Ritchie, 4 Fraser (Ct. of Sess.) 
645. Cf. Wood V. Edinburgh Evening News, [1910] S. G. 895. A libel 
is not confined to writing or print, but may be expressed by pictures or signs. 
5 Eep. 125 b. See Carr v. Hood, 1 Gamp. 354, n. ; Du Bost v. Beresford, 2 
Gamp. 512; Jefferies v. Duncombe, 11 East, 226; Monson v. Tussauds, 63 
L. J. Q. B. 4S4; [1894] 1 Q. B. 671. Fox's Act (32 G-. 3, v. 60) applies 
only to criminal trials. Baylis v. Lawrence, 9 L. J. Q. B. 196; 11 Ad. & E. 
920. 

In Fray v. Fray, 17 C. B. (N. S.) 603; 34 L. J. G. P. 45, the defendant, 
the plaintiff's brother, wrote a letter in which he charged her with having 
unnecessarily made him a party to a chancery suit, and said that it was a 
pleasure to her to put him to all the expense she could ; it was held that 
there was evidence of a libel for the jury. It is not per se actionable to say of 
a woman that she wanted delicacy. A.B. v. Blackwood, 5 Eraser (Gt. of Sess.) 
25. To write of a clergyman that he came to the performance of divine ser- 
vice " in a towering passion," and that " his conduct is calculated to make 
infidels of his congregation," is libellous. Walter v. Brogden, 19 G. B. 
(N. S.) 65. So to charge a man with ingratitude is libellous; Cox v. Lee, 
38 L. J. Ex. 219; L. E. 4 Ex. 284; or to write that a person was at a 
past time in pecuniary difficulties, although it be also stated that those 
difficulties have been surmounted. Id., per Kelly, C.B. A charge may be 
libellous, notwithstanding the facts upon which it is founded, are also stated, 
and they do not support the charge. Id. The ordinary slang expression of 
calling a person a " fraud " does not mean that that person has committed 
a fraud in the legal sense of the term, and to call a man a " liar and fraud " 
has been held to be mere abusive language and not slanderous. Agnew v. 
British Legal Life Assurance Co., 8 Eraser (Gt. of Sess.) 422. It is a libel 
to publish in a newspaper a story of the plaintiff, calculated to make him 
ludicrous, though he may have previously told the same story himself. Cook 
V. Ward, 8 I/. J. (0. S.) C. P. 126 ; 6 Bing. 409. A newspaper, referring to 
certain persons who had been summoned to appear and had appeared before a 
police court, for a breach of the licensing law, said the " prisoners [were] 
acquitted "; held not libellous. Leon v. Edinburgh Evening News, [1909] 

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734 Action for Defamation. 

In Evans v. Harlow, 13 L. J. Q. B. 120; 5 Q. B. 624, the^eclaration 
alleged that the plaintiff carried on the trade of an engineer, and sold, in the 
way of his trade, goods called " self-acting tallow syphons or lubricators," 
and the defendant published of the plaintiff in his said trade and as such 
inventor as follows : — " This is to caution parties employing steam power 
from a person offering what he calls self-acting tallow syphons or lubricators, 
stating that he is the sole inventor, manufacturer, and patentee, thereby 
monopolizing high prices at the expense of the public. E. Harlow " (the 
defendant) ..." takes this opporunity of saying that such a patent does not 
exist, and that he has to offer an improved lubricator," &c. ..." Those who 
have already adopted the lubricators against which E. H. would caution, 
will find that the tallow is wasted instead of being effectually employed as 
professed ; ' ' these expressions being explained by appropriate innuendoes ; 
it was held that the words were, not a libel on the plaintiff, either generally, 
or in the way of his trade, but were only a reflection on the goods sold by 
him, which was not actionable without special damage. See also White v. 
Mellin, 64 L. J. Ch. 308; [1895] A. C. 154, and Hubhock v. Wilkins<m, 
68 L. J. Q. B. 34 ; [1899] 1 Q. B. 86. But where the defendant wrote of a 
bag, introduced under the title of the "Bag of Bags," by the plaintiffs, 
" the title we think very silly, very slangy, and very vulgar; and which 
has been forced on the notice of the public ad nauseam," it was held to be a 
question for the jury whether this language was not libellous, as casting an 
imputation on the plaintiffs' conduct in their business. Jenner v. A'Beckett, 
41 L. J. Q. B. 14; L. E. 7 Q. B. 11. It is a question for the jury 
whether the term "Ananias" applied to a newspaper, was intended to 
impute wilful falsehood to the manager and proprietor, or was used merely 
in an extravagant sense. Australian Newspaper Co. v. Bennett, 63 L. J. 
P. C. 105 ; [1894] A. 0. 284. In Dakhyl v. Lahouchere, 77 L. J. K. B. 728 ; 
[1908] 2 K. B. 325, n, where the defendant charged the plaintiff with 
being a "quack," it was said that it was for the jury to affix the true 
meaning of the word and to say whether or not it fitted the plaintiff. See 
Ratcliffe v. Evans, 61 L. J. Q. B. 535; [1892] 2 Q. B. 524. 

Where in an action by an author for an alleged libel in a criticism of his 
book, there is nothing in the libel which does not relate to the book, and the 
only question is whether the criticism is fair, the book must be put in by 
the party who desires to comment on it, and it seems that unless the criticism 
ii necessarily on the face of it unfair, the book is part of the plaintiff's case. 
Strauss v. Francis, 4 P. & F. 939, per Erie, C.J. ; S. C, Id., 1107, per 
Cockburn, C.J. 

A corporation {e.g., railway company) may be guilty of publishing a libel, 
and malice in law is presumed. Whitfield v. S. E. Ry., E. B. & E. 115; 
27 L. J. Q. B. 229; Gwynn v. Id., 18 L. T. 738. The libel may be pub- 
lished by its servant, acting in the course of his employment. Citizen's Life 
Assur. Go. V. Brown, 73 L. J. P. 0. 102; [1904] A. C. 423. The company 
is not liable where the defamatory statement is made by its servant to 
gratify his personal malice, and in no way connected with the company's 
busmess. Aiken v. Caledonian Ry., [1913] S. C. 66; Glasgow Cor. v. 
Larimer, 80 L. J. P. C. 175 ; [1911] A. C. 209. An incorporated trading 
company may sue in respect of a libel calculated to injure it in the way of 
its business, without showing special damage; S. Hetton Coal Co. Y. N. E. 
News Assoc., 63 L. J. Q. B. 293; [1894] 1 Q. B. 138; even though the 
defendant is a member of the company. Metropolitan Omnibus Co. v. 
Hawkins, 4 H. & N. 87 ; 28 L. J. Ex. 201. But a corporation cannot sue for 
an alleged libel merely affecting the personal reputation of the corporators. 
Manchester (Mayor) v. Williams, 60 L. J. Q. B. 23; [1891] 1 Q. B. 94. 

Proof of publication of libel by defendant.] A written libel is published 
when it is maliciously repeated or sung in the presence of others, or when 
the libel or any part thereof is delivered over to scandalize the party. 5 Eep. 
125 a. Proof that the libel produced is in the defendant's handwriting. 

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Proof of Publication of Libel by Defendant. 735 

IS said to be presumptive evidence of publication, so as to tbrovir proof of 
non-pubhcation upon him; R. v. Beare, 1 Ld. Eaym. 417; Lam's Case, 
9 Eep; 59 b. But see the arguments in R. v. Burdett, 3 B. & Aid. 717 ; 
and 4 B. & Aid. 95; and a liljel may be found under circumstances vphich 
preclude such presumption. There is publication of a libel where defamatory 
matter is dictated by the defendant to his clerk, who takes it down in short- 
hand, and makes a full copy. Pullman v. Hill, [1891] 1 Q. B. 524. So, 
where a clerk takes a press copy thereof. S. C. Secus, where the defendant 
dictates the letter in the reasonable • and ordinary course of his business. 
Boxsius V. Goblet, 63 L. J. Q. B. 401; [1894] 1 Q. B. 842; Edmondson 
V. Birch, 76 L. J. Q. B. 346 ; [1907] 1 K. B. 371 ; Roff v. British and French 
Chemical, dc, Co., 87 L. J. K. B. 996; [1918] 2 K. B. 677. Printing 
a libel, unless qualified by circumstances, is said to be, primd facie, a publish- 
ing, for it must be delivered to the compositors, and the other subordinate 
workmen ; Baldwin v. Elphinstone, 2 W. Bl. 1038 ; but this proposition is 
denied in Watts v. Eraser, 6 L. J. K. B. 226 ; 7 Ad. & B. 223. Indeed the 
mechanical work of compositors, and the division of labour among them, 
almost precludes the presumption, that any of them have obtained any know- 
ledge of the sense of what they are composing, and it has been held, that 
where a document has to be circulated among a great number of persons, the 
fact of the document being printed for this purpose only, does not amount 
to a publication of it. Lawless v. Anglo-Egyptian, dc, Co., 38 L. J. Q. B. 
129 ; L. E. 4 Q. B. 262. As to publication by a telegraphic message or post 
card, see Williamscm v. Freer, 43 L. J. C. P. 161; L. E. 9 C. P. 393, and 
Sadgrove v. Hole, 70 L. J. K. B. 455 ; [1901] 2 K. B. 1. A libel may be 
published in a letter to a third person; but the publication of a libellous 
letter to the plaintiff alone, though it may be the subject of an indictment, is 
not a publication to support an action. Phillips v. Jansen, 2 Esp. 624. 
Nor is there a publication to a servant who, out of curiosity and without 
authority, opens and reads a letter contained in an unclosed envelope, such 
an occurrence not being reasonably anticipated by the sender. Huth v. 
Huth, 84 L. J. K. B. 1307; [1915] 3 K. B. 32. So where the alleged 
defamatory letter was opened by the addressee's father when the defendant 
had no reason to think that it would be opened by anyone other than the 
addressee. Powell v. Gelston, 85 L. J". K. B. 1783; [1916] 2 K. B. 615. 
Although in the case of letters sent through the post in open envelopes 
the postal authorities have the right to examine the contents, there 
is no presumption that they have done so, and evidence to show 
that they have done so in fact, is necessary to show publication to them. 
Huth V. Huth, supra. Where, however, the libel was contained in a letter sent 
by the defendant to the plaintiff, and opened by his clerk, and the defen- 
dant knew that the plaintiff's letters were usually opened by his clerk, this 
is evidence of a publication. Delacroix v. Thevenot, 2 Stark. 63 ; Pullman 
V. Hill, supra; Gomersall v. Davies, 14 T. L. E. 430. Cf. Boff v. British 
and Erench Chemical Co., supra. In Fox v. Broderick, 14 Ir. C. L. E. 
453, the defendant by mistake misdirected a letter intended for the plaintiff, 
and containing the libel, so that it reached one K. : it was held that there 
was sufficient evidence of publication, and that it did not avail the defendant 
that he had no intention of giving the plaintiff a cause of action. So, where 
the libel was delivered to an agent of the plaintiff, sent by him to buy it. 
Brunswick {Duke) v. Harmer, 19 L. J. Q. B. 20; 14 Q. B. 185. Sending the 
libel in a letter addressed to the wife of the person libelled is a sufficient 
publication. Wenman v. Ash, 13 C. B. 836 ; 22 L. J. C. P. 190. But show- 
ing it by the defendant to his own wife is not publication. Wennhak v. 
Morgan, 57 L. J. Q. B. 241; 20 Q. B. D. 635. 

A letter containing a libel was proved to be in the handwriting of the 
defendant ; to have been addressed to a third party in Scotland ; to have been 
received at an intermediate post-office, on the passage to Scotland, to be 
forwarded thither, and was produced at the trial with the proper postmarks, 
and the seal broken ; tmf^'5JSliJ^l^,5i^?/i,^o?yMW^ °^ ^ publication to the 

B. — VOL. II. 



736 Action for Defamation. 

person to whom it was addressed. Warren v. Warren, 1 C. M. & E. 250. 
Showing a copy of a libellous caricature to another, at his request, is said to 
have been held not sufficient evidence of publication to support an action, 
though the decision has been doubted. Smith v. Wood, 3 Camp. 323. The 
delivery of a libellous pamphlet, by the governor of a colony, to his attorney- 
general, not for any of&cial purpose is a publication. Wyatt v. Gore, Holt, 
N. P. 299. The sale of a libel in a defendant's shop, by his servant or agent 
there, for the defendant's benefit, is a publication by the defendant, though 
he was not privy to the contents or sale. Com. Dig. Libel (B. 1). So is the 
circulation, by the proprietor of a circulating library, of a book containing a 
libel. Vizetelly v. Mudie's Select Library, 69 L. J. Q. B. 645; [1900] 
2 Q. B. 170. But it is otherwise where the defendant's ignorance of its con- 
tents was not due to negligence on his part, and he did not know, and had 
no grounds for supposing that the publication was likely to contain libellous 
matter. Emmens v. Pottle, 55 L. J. Q. B. 51; 16 Q. B. D. 354. Welion 
v. Times Book Club, 28 T. L. E. 143. "While as to some books there may 
"be a duty on distributing agents to examine them carefully because of their 
titles or the recognised propensity of their authors to scatter libels abroad, 
there is no general obligation on distributing agents to read every book they 
sell to ascertain whether or not it contains any libellous statements. S. C. 
The delivery of a newspaper to an officer at the stamp of&ce, was a suffi- 
cient publication to sustain an indictment. R. v. Amphlit, 4 B. & 0. 35. 
Proof that the defendant accounted with the officer of stamps, for the duty 
on advertisements in the paper in question, was evidence of publication. 
Cook V. Ward, 6 Bing. 409 ; 8 L. J. (0. S.) C. P. 126. Evidence that the 
libel was written by the defendant's daughter, who was authorized to make 
out his bills and write his general letters of business, is not sufficient to 
charge the defendant ; unless it can be shown that such libel was written 
with the knowledge, or by the procurement of the defendant. Harding v. 
Greening, 1 B. Moore, 47'7. 

To show that the defendant had caused a libel to be inserted in a news- 
paper, 3/ witness was called who proved that he had given a written state- 
ment to the editor, which had been communicated by the defendant for 
the purpose of such publication; and that the statement in the newspaper 
produced was exactly the same, with the exception of one or two slight 
alterations not affecting the sense ; it was held that what the witness so 
published, might be considered as published by the defendant, but that the 
newspaper could not be read in evidence, without producing the written 
statement delivered by the witness to the editor. Adams v. Kelly, Ey. & M. 
157. So, where a man makes a request to another to publish defamatory 
matter, of which for that purpose he gives him a statement, whether in 
full or in outline, and the agent publishes the language to some extent as 
his own, the man making the request is liable to an action as the publisher. 
Parkes v. Prescott, 38 L. J. Ex. 105; L. E. 4 Ex. 169, and R. v. Cooper, 
15 L. J. Q. B. 206 ; 8 Q. B. 533. In Parkes v. Prescott, supra, the libel con- 
sisted in the publication by the local newspapers, of defamatory speeches 
spoken at a meeting of the board of guardians, where reporters for those 
newspapers were present. During the discussion the defendant E., who was 
present at the meeting, said, " He hoped the local press would take notice 
of this very scandalous case," and requested the defendant P., who was 
chairman, to give an outline of it ; this P. did, and in the course of his 
statement remarked, " I am glad gentlemen of the press are in the room, 
and I hope they will take notice of it." Upon which E. said, " And so do I " ; 
P. also said, " He hoped publicity would be given to the matter." It was 
proved that the libel was a correct but a condensed report of what was said 
at the meeting and taken down by the reporters. This was held to be 
evidence of a publication of the libel by both E. and P. See Parsons v. 
Surgey, 4 E. & P. 247. A paper in the defendant's handwriting, found in 
the house of the editor of the newspaper, in which the libel appeared, is 
evidence against the defendant, though partially erased and altered (in 

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Proof of Publication of Libel — In Newspapirs. 737 

immaterial parts) in the printed paper. Tarpley v. Blabey, 2 Bing. N. C. 437. 
When a, libel has been printed by the defendant's order, and he has taken 
away some of the impressions, one of those left by him, with the printer, may 
be read m evidence against him without notice to produce the impressions 
he took away, as they are all equally originals. R. v. Watson, 2 Stark. 129. 
The sale of each copy of a printed libel is a distinct publication. B. v. 
Carhle, 1 Chitty, 451; Brunswick (Duke) v. Harmer, 19 L. J. O. B. 20; 
14 Q. B. 185. -< . 

Where the defendant admitted that he was the author of a printed libel, 
■■ errors of the press and some small variance only excepted," Pratt, C.J., 
received this as evidence of publication, and put it to the defendant to prove 
material variances. R. v. Hall, Str. 416. 

Proof of publication in newspapers.'] Under 6 & 7 W. 4, c. 76, s. 19, 
re-enacted by 32 & 38 V. c. 24, s. 1, and sched. 2, discovery can for the pur- 
poses of this action be obtained by interrogatories " of the name of any 
person concerned as printer, publisher, or proprietor of any newspaper, or 
of any matters relative to the printing or publishing of any newspaper." 
Fisher v. Owen, 47 L. J. Ch. 477, 681.; 8 Ch. D. 645 ; Allhusen v. Labouchere, 
48 L. J. Q. B. 34; 3 Q. B. D. 654; for the above section will prevent the 
defendant from objecting to answer, on the ground that the answer might 
criminate him. 

The proprietorship of a newspaper may also be proved under the News- 
paper Libel and Eegistration Act, 1881 (44 & 45 V. c. 60). Sect. 8 establishes 
a register of the proprietors of newspapers. Eeturns must be made on or 
before July 31 in each year of the title of the newspaper, and the names 
of all its proprietors, their respective occupations, places of business, if any 
and places of residence : sect. 9. Sect. 11 provides for a return showing any 
change of interest. By sect. 13, these returns the registrar is to register, in 
"the register ^f newspaper proprietors." Copies of entries in, or extracts 
from, the register, purporting to be certified by the registrar, or his deputy 
for the time being or under the official seal of the registrar, are made con- 
clusive evidence of the contents of the register, so far as the same appear 
in such copy or extract, without proof of the signature thereto, or of the 
seal of office, af&xed thereto, and every such certified copy or extract, are 
in all proceedings, civil or criminal, to be accepted as sufficient primd, facie 
evidence of all the matters and things thereby appearing, unless and until 
the contrary thereof be shown. Sect. 7 authorises the Board of Trade to 
authorize the registration in the name of some one or more responsible repre- 
sentative proprietors. These provisions do not apply to the case of any 
newspaper belonging to a company incorporated under the Companies Acts : 
s. 18. The "word 'newspaper' shall mean any paper containing public 
news, intelligence, or occurrences, or any remarks, or observations therein, 
printed for sale, and published in England or Ireland periodically, or in 
parts or numbers at intervals not exceeding 26 days, between the publication 
of any two such papers, parts, or numbers, also any paper printed in order to 
be dispersed, and made public, weekly, or oftener, or at intervals not 
exceeding 26 days, containing only, or principally advertisements " : sect. 1. 

In the absence of a certificate of proprietorship of the defendant or of dis- 
covery or admission, it will be necessary to prove that the newspaper " was 
purchased of the defendant, or at any house, shop, or office belonging to or 
occupied by the defendant, or by his servants or workmen, or where he may 
usually carry on the business of printing or publishing such newspaper, or 
where the same may be usually sold." See 6 & 7 W. 4, u. 76, ti. 8. 

Proof of the speaking of the slander.] Though the plaintiff need not prove 
the speaking of all the words laid in the statement of claim, it is necessary to 
prove some material part of them, and it is not sufficient to prove merely 
equivalent words; Maitland v. Goldney, 2 East, 434. 

Words laid as spoken in English are not proved by evidence of words 
spoken in a foreign lai)S%^&?*Q3'teP)iJ£4?Ai,J?P£fe™ ^^ stated, and then 



738 Action for Defamation. 

the meaning explained in English; Zenobio v. Axtell, 6 T. E. 162; Jenkins 
V. Phillips, 9 C. & P. 766; but an amendment may be allowed, where the 
defendant would not be prejudiced. S. C. It must be averred in the claim 
that some person, in whose hearing the words were spoken, understood the 
foreign language : 1 Wms. Saund. 242, (1), cited by Williams, J., in Amann 
V. Damm, 8 C. B. (N. S.) 597, 600; 29 L. J. C. P. 313; and this allegation 
must be proved. Bac. Abr. Slander (D. 3). 

Proof of innuendo.'] The plaintiff must in general prove the innuendoes 
as laid, if traversed. It is the duty of the court to decide, whether or not a 
libel is capable of bearing the meaning assigned by the innuendo, and 
whether such meaning is actionable; leaving to the jury the question as to 
whether the words did, upon the particular occasion, bear the meaning 
assigned. BZagig v. Start, 16 L. J. Q. B. 39; 10 Q. B. 899. See Copita; ond 
Counties Bank v. Henty, 52 L. J. Q. B. 232; 7 App. Gas. 741. "Where the 
words are not libellous in their natural meaning, and the inference suggested 
by the innuendo is not such as reasonable people would draw, the plaintiff 
must prove that, under the circumstances of publication, the inference is a 
reasonable one, and if he fail to do so, the judge must direct a verdict for the 
defendant. S. C. The facts from which the innuendo is to be inferred, 
must be known, both to the defendant, and to the persons to whom the 
writing is published. S. C. 49 L. J. C. P. 830, 840; 5 C. P. D. 514, 539; 
see also Stubhs v. Russell, 82 L. J. P. C. 98; [1913] A. C. 386 ; and Stuhhs 
V. Mazure, 88 L. J. P. C. 185 ; [1920] A. C. 66. 

The court as well as the jury may notice the meaning of expressions which 
have passed into common use, however figuratively ; and allusions to 
historical names and events, as a " frozen snake," will be taken to imply an 
imputation of treachery and ingratitude; and to act like "Judas," requires 
no explanation. Hoare v. Silverlock, 17 L. J. Q. B. 306 ; 12 Q. B. 624. In 
Bamett v. Allen, 3 H. & N. 376; 27 L. J. Ex. 412, the coutt were divided 
in opinion as to whether the word " blackleg " was actionable per se, and 
whether it could be explained by evidence. Words imputing that the 
plaintiff has brought a "blackmailing action " are actionable per se, Marks 
V. Samuel, 73 L. J. K. B. 587; [1904] 2 K. B. 287. 

Where B. held bills accepted by the plaintiffs, and the defendant said 
' ' you must look out sharp that those bills are met by them , " it was held that 
witnesses could not be asked what they understood by the words, until it 
was proved that there was something to prevent those words from conveying 
the meaning which they ordinarily would convey. Daines v. Hartley, 18 
L. J. Ex. 200 ; 3 Ex. 200 ; Brunswick (Duke) v. Harmer, 3 Car. & K. 10. 
The declarations of spectators, whilst viewing a libellous picture publicly 
exhibited, were admitted by Ld. Ellenborough, as evidence that the picture 
was intended to represent the parties libelled. Du Bost v. Beresford, 2 
Camp. 512. 

An imputation upon no named person, but on a class of persons (as owners 
of factories, &c.), may be applied by innuendo to - particular person, and it 
is for the jury to say whether the plaintiff was the person intended. Le Fanu 
V. Malcomson, 1 H. L. C. 637 ; Turner v. Merryweather, 18 L. J. C. P 155 ; 
7 C. B. 251. See also Browne v. Thomsm, [1912] S. C. 359. 

It was formerly held that the whole of an innuendo, which was not, on the 
face of the declaration, a bad one, must be proved where it gave a specific 
character to the libel or slander. Williams v. Stott, 1 Cr. & M. 675. But 
the power of amendment is sufficient to relieve the plaintiff from the restraint 
of his innuendo, where the ends of justice require it. Where there are 
several innuendos, some of which are proved, and are sufficient to maintain 
the action, the plaintiff may confine his verdict to those which are proved. 
Prudhomme v. Fraser, 4 L. J. K. B. 87; 2 Ad. & E. 645. 

Proof of malice.] Where the publication is defamatory the law infers 
malice, unless the circumstances attending the publication rebut that infer- 
ence; R. V. Creevy, 1 M. & 8. 282; and hence no evidence of malice beyond 

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Proof of Malice. 739 

the defamation itself need be given. But, in certain cases, when the occasion 
is privileged — such as where the statement is made in giving the character 
of a servant, or confidential advice, or in the course of official proceedings, or 
by way of answer to pertinent questions from interested persons — a qualified 
bar is raised to the action, and malice in law is rebutted, rendering it then 
necessary to prove that there was malice in fact in making the statement ; 
Bromage v. Prosser, 4 B. & C. 247, 256; Taylor v. Hawkim, 20 L. J. Q. B. 
313 ; 16 Q. B. 308 ; Harnscm v. Bush, 5 E. & B. 344 ; 25 L. J. Q. B. 25 ; and 
that the defendant, by reason thereof, misused the privileged occasion. 
Capital and Counties Bank v. Henty, 49 L. J. C. P. 830, 841 ; 5 C. P. D. 514, 
542. The onus of proving malice in fact is on the plaintiff. Clark v. 
Molyneux, 47 -L. J. Q. B. 230 ; 3 Q. B. D. 237 ; Jenoure v. Delmege, 60 L. J. 
P. C. 11 ; [1891] A. C. 73. The mere fact of the language used on a 
privileged occasion being stronger than necessary, is not evidence of malice. 
Where the statement of claim alleges that the publication was malicious, 
and the defendant pleads privilege, the plaintiff need not reply alleging 
express malice. Smith y. Lewis, 33 T. L. E. 195. 

In Jackson v. Hopperton, 16 C. B. (N. 8.) 829, the defendant when applied 
to respecting the character of the plaintiff, who had been his saleswoman, 
charged her with dishonesty ; the plaintiff proved that after quitting the 
defendant's service he accused her of theft, but said that if she would return, 
nothing should be said about it, and that afterwards, when she asked if he 
would give her a character, he refused unless she would admit that she had 
stolen his money; it was held, that there was evidence of express malice for 
the jury. In proving such express malice, evidence that the character given 
was false, is admissible; Rogers v. Clifton, 3 B. & P. 587; King v. Waring, 
5 Esp. 13; Pattison v. Jones, 8 B. & C. 578; Harriso^i v. Bush, supra; 
or, that part of the imputation is false; Blagg v. Sturt, 16 L. J. Q. B. 39; 
10 Q. B. 899. Mere untruth, however, is not evidence of malice, unless 
coupled with proof that the defendant knew that what he published was 
untrue. Fountain v. Boodle, 3 Q. B. 5. Thus, where the words charged a 
governess with bad temper and ill manners, the plaintiff was allowed to give 
a general proof of good manners and temper, and the fact that no contrary 
evidence was given by the defendant, was held worthy of consideration by 
the jury, as tending to show that the defendant did not believe in the truth 
of the charge. S. C. So, the uttering as of the defendant's own knowledge 
of serious charges, proved to be untrue, affords evidence of express malice. 
Perry v. East, Feb. 5, 1873, cor. Brett, J., ex relat. amici. So where the 
defendant, from some indirect motive such as anger or prejudice with regard 
to a particular subject-matter, reckless whether what he states is true or 
false, utters such charges. R. Aquarium, dc. Soc. v. Parkinson, 61 L. J. 
Q. B. 409; [1892] 1 Q. B. 431. On a charge of want of skill in particular 
work done by the defendant for the plaintiff, the plaintiff cannot prove his 
general skill and competency, in order to show malice. Brine v. Bazalgette, 
18 L. J. Ex. 348; 3 Ex. 692. And if the defendant made the defamatory 
statements, believing them to be true, it is immaterial that he had no 
reasonable grounds for that belief. Clark v. Molyneux, 47 L. J. Q. B. 230; 
3 Q. B. D. 237. Where the defendant had pleaded only the general issue, 
but the plaintiff proposed nevertheless to give proof of the falsehood of the 
charge, Ld. BUenborough said that if he did so, it would allow the defendant 
to give evidence of its truth. Brown v. Croome, 2 Stark. 297. Express 
malice need not always be proved by extrinsic evidence, but may be collected 
from the libel itself by the jury. Wright v. Woodgate, 2 C. M. & B. 573. 
A defence of justification, abandoned at the trial, is not available as evidence 
of express malice so as to negative the defence of a privileged communication. 
Wilsmi V. Robimmi, 14 L. J. Q. B. 196; 7 Q. B. 68. But, where such a 
defence is neither proved nor abandoned, nor its substance retracted at the 
trial, though plaintiff offers to accept nominal damages, if retracted, this is 
legitimate evidence of malice. Simpson v. Robinson, 18 L. J. Q. B. 73; 
12 Q. B. 511. So, tl©,^jggg mJM}m)^M& ^""^ ^^^ defendant were 



740 Action for Defamation. 

on ill terms, as that he had occasion to impute fraud to the defendant 
before the words were spoken ; and he may prove this by evidence of an 
examination of the plaintiil, in the defendant's presence, in the Insolvent 
Debtors' Court, since the words spoken, on which occasion the defendant, 
though called upon, did not contradict the statement. S. C. See Melen v. 
Andrews, M. & M. 336. 

A corporation is liable for a malicious libel published by its servant provided 
he was acting in the course of his employment although " he had no actual 
authority express or implied, to write libels , nor to do anything legally wrong." 
Citizen's Life Assur. Go. v. Brown, 78 L. J. P. C. 102; [1904] A. C. 423. 
But not otherwise. Glasgow Cor. v. Lorimer, 80 L. J, P. C. 175 ; [1911] 

A. C. 209. 

Evidence of other words or lihels.l Evidence of other libels or words is 
sometimes given to show the malevolence of the defendant. Thus it may be 
proved that the defendant spoke the same words at different times. Charlter 
V. Barret, Peake, 22; Camfield v. Bird, 3 Car. & K. 56. Publications going 
back more than six years before the libel complained of, were allowed to be 
given in evidence. Barret y. Long, 3 B.. Jj. C. 395. So, words spoken a/ter 
those for which the action is brought, whether actionable or not, are admis- 
sible to show quo animo, the words which were the subject of the action were 
spoken ; Rustell v. Macquister, 1 Camp. 48, u. ; Tate v. Humphrey , 2 Camp. 
73, n. ; Lee v. Huson, Peake, 166 ; and to show express malice, when the 
words sued on formed a privileged communication; Hemmings v. Gasson, 

B. B. & E. 346 ; 27 L. J. Q. B. 252 ; but, if the words were spoken long after 
those sued on, the attention of the jury should be directed to that fact, and 
that the words might have been applied to something else. Id. So, evidence 
of previous slander may be given to show malice, though damages have 
already been recovered in respect of it. Symmons v. Blake, 1 M. & Eob. 477. 
So, in an action against the editor of a periodical work, articles published 
from time to time alluding to the action and attacking the plaintiff, are admis- 
sible to show quo animo the libel was nublished and that it was published 
concerning the plaintiff. Chubb v. Westley, 6 C. & P. 436; see Mead v. 
Dauhigny, Peake, 125. Evidence of subsequent words of the same import 
with the alleged slander has been refused, when the words declared on were 
sufficient to show the intention of the defendant. Pearce v. Ornsby, 1 M. & 
Rob. 455 ; StuaH v. Lovell, 2 Stark. 93 ; Defries v. Davis, 7 C. & P. 112. In 
an action for a libel published in a weekly paper, evidence was admitted that 
other papers of the same title had been since purchased at the defendant's 
shop, to show that the papers which pumorted to be weekly publications of 
public transactions, were sold deliberately in the regular course of public 
circulation, but Ld. Ellenborough added that he should direct the jury not to 
take it into consideration in damages. Plunkett v. Cobbett, 5 Bsp. 136 ; 
Barwell v. Adkins, 1 M. & Gr. 807. The rule appears now to be that where 
there is no pretence of privilege nor ambiguity in the libel, evidence is admis- 
sible on either side to prove or disprove actual malice, and for that purpose 
repetitions of the same imputation, either before or since the libel complained 
of, may be shown; and if they establish another cause of action, the jury 
should be cautioned not to give damages in respect of it. Pearson v. 
Lemaitre, 12 L. J. C. P. 253; 5 M. & Gr. 700. This caution is one which a 
jury might find it difficult to act upon. It se'ems that it is not always neces- 
sary for the judge to give this caution. Darby v. Ouseley, 1 H. & N. 1; 25 
L. J. Ex. 227. Evidence of other libels, is not generally admissible, unless 
they relate to the libel set out in the statement of claim. Finnerty v. Tipper, 
2 Camp. 72. 

Where other words besides those inserted in the statement of claim are 
thus given in evidence, the defendant may prove such words to be true, 
because he has had no opportunity of justifying them. Warne v. Chadwell, 
2 Stark. 457. But, not where the words amount to a mere repetition of 
the slander alleged in the claim. Per Park, J., in Higgs v. Snell, Exeter Sp. 
Ass. 1827. 

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Evidence of Plaintiff's Good Character — Proof of Damage. 741 

Evidence of plaintiff's good character.] The plaintiff could not go into 
general evidence of his good character, either where the general issue alone 
was pleaded, or where there were pleas of justification on the record, unless 
the issue involved the question of general character. 

Proof of damage.^ Where the words are actionable in themselves or with 
reference to the plaintiff's trade, it is not necessary to give any evidence of 
damage. Tripp v. Thomas, 3 B. & C. 427 ; 3 L. J. (0. S.) K. B. 42 ; Ingram 
V. Lawson, 9 ij. J. C. P. 145 ; 6 Bing. N. C. 112. Words are not actionable, 
though special damage has ensued, unless they are defamatory or injurious 
in their nature; Kelly v. Partington, 3 L. J. K. B. 104; 6 B. & Ad. 645; 
even though such damage would under some circumstances and at the hands 
of some persons, probably arise from the speaking of the words. Miller v. 
David, 43 L. J. C. P. 84; L. E. 9 C. P. 118. 

The plaintiff will not be allowed under a general allegation of damage, to 
give in evidence particular instances. B. N. P. 7 ; 1 Wms. Saund. 243 d, (5). 
Generally the names of persons, who have ceased to deal with the plaintiff in 
consequence of the libel, must be mentioned in the statement of claim. But 
where the names of such persons are not within the plaintiff's knowledge, 
the allegation may be general : thus, where the declaration, in an action 
for slander imputing incontinence to the plaintiff, stated that he was 
a preacher to a dissenting congregation in a certain chapel, and derived 
considerable profit from his preaching, and that by reason of the slander, 
" the said persons frequenting his chapel," had refused to permit him to 
preach there, and had discontinued his salary, &c., it was held sufficient with- 
out saying who those persons were. Hartley v. Herring, 8 T. E. 130. But 
there must be some evidence that the diminished attendance was owing to the 
slander, and that the plaintiff suffered by it. Hopwood v. Thorn, 
19 L. J. C. P. 94 ; 8 C. B. 293. In an action for words spoken of the plain- 
tiff in his trade or in his business with a general allegation of loss of business, 
it is competent to the plaintiff to prove, and the jury to assess damages for a 
general loss or decrease of trade, without showing who are the particular 
customers he has lost. Evans v. Harries, 1 H. & N. 251 ; 26 L/. J. Ex. 31 ; 
see Riding v. Smith, 45 L. J. Ex. 281; 1 Ex. D. 91. Where the declaration 
stated that in consequence of the libel, the plaintiff lost the profits of certain 
performances at the theatre, it was held that a witness might be asked 
" whether the receipts of the house had not diminished," but " not whether 
particular persons had not in consequence given up their boxes." Ashley v. 
Harrison, 1 Esp. 48. The persons specified in the statement of claim as 
having left off dealing, &c. , are the proper witnesses to prove the fact : 
1 Wms. Saund. 243 g. (5) ; and it cannot be proved from their declarations. 
Tilk V. Parsons, 2 C. & P. 201; and see 1 Esp. 50. 

It may be pleaded and proved that when the defendant A. wrote the libel 
to B. he knew that B. would publish and circulate it, for A. is then liable for 
the consequences of such repetition. Whitney v. Moignard, 59 L. J. Q. B. 
824; 24 Q. B. D. 630. But an allegation that, by reason of the speaking of 
slanderous words by the defendant, one D. refused to trust the- plaintiff, is 
not proved by evidence that the defendant spoke the words to E., who 
voluntarily, and without the privity of the defendant, repeated them to D. 
Ward V. Weeks, 7 Bing. 211; 9 L. J. (0. S.) C. P. 6 ; Tunnicliffe v. Moss, 
3 Car. & K. 83. Parkins v. Scott, 1 H. & C. 153; 31 L. J. Ex. 331, was an 
action brought by husband and wife ; the slander proved imputed adultery to 
the wife, the husband declared that he left his wife in consequence of the 
charge after she had informed him of it ; it was held that the action was not 
maintainable, as there was no obligation upon the wife to repeat what she 
had heard. Lynch v. Knight, irvfra, and Speight v. Gosney, 60 L. J. 
Q. B. D. 231, are to the same effect. But, where there is moral obligation to 
repeat the slander, then such repetition is privileged, and the original speaker 
is liable for the resulting damage. Derry v. Handley, 16 L. T. 263. The 
special damage ™"st ^^yj^ Jj^h ^ ^^^r^^consequence of the words. 



'742 Action for Defamation. 

spoken, and not the mere wrongful act of a third person : so laid down in 
Vicars v. Wilcocks, 8 East, 1; Ward v. Weeks, supra; Haddan v. Lott, 15 
C. B. 411 ; 24 L. J. C. P. 49. But the correctness of this proposition has been 
doubted. Green v. Buttm, 2 C. M. & R., 713, 715; Lynch v. Knight, 9 
H. L. C. 577, 590, 600. And it seems at variance with Newman v. Zachary, 
Aleyn, 3, where it was held that it a stranger wrongfully disturbs the 
plaintiff's possession, in consequence of the defendant's slander, an action lies 
against the defendant, though the stranger may also be sued. And see 
Lumley v. Gye, 2 E. & B. 116, 239; 22 L. J. Q. B. 463, 474. "Where, in 
consequence of defamatory words spoken by the defendant, the person to 
whom they were spoken turns the plaintiff out of his service, the defendant is 
liable, though the words were not believed to be true by the person to whom 
they were spoken. Knight v. Gibbs, 3 L. J. K. B. 136; 1 Ad. & E. 48. 
See notes to Vicars v. Wilcocks, 2 Smith's L. C. 

The damage must be a natural and reasonable consequence of the slander. 
Lynch v. Knight, supra; Chamberlain- v. Boyd, 52 L. J. Q. B. 277; 11 
Q. B. D. 407. Where the defendant libelled a public performer, in conse- 
quence of which she refused to sing, and the party who had engaged her to 
sing brought an action, the injury was held too remote. Ashley v. Harrison, 
1 Esp. 48. So where the defendant told the employers of the plaintiff, S., 
that S. had left a house owing its rent, in consequence of which they dismissed 
S. Speake v. Hughes, 73 L. J. K. B. 172; [1904] 1 K. B. 138. Illness 
alleged to have been caused to the plaintiff by reason of the words spoken is 
too remote. Allsop v. Allsop, 5 H. & N. 534; 29 L. J. Ex. 315. See this 
case explained in Janvier v. Sweeney, [1919] 2 K. B. 316, 323. The loss of 
the substantial benefit arising from the hospitality of friends is sufficient 
special damage. Davies v. Solomon, 41 L. J. Q. B. 10; L. E. 7 Q. B. 112. 
But mere loss of consortium vicinorum is not sufficient. Com. Dig. Action 
on the Case for Defamation (D. 30); Allsop v. Allsop, 29 L. J. Ex. 315; 
5 H. & N. 534 ; nor the loss of the chance of being elected by ballot, to the 
" Reform Club." Chamberlain v. Boyd, 62 L. J. Q. B. 277 ; 11 Q. B. D. 407. 
It is unsettled whether the loss by a wife, of her husband's consortium, is 
sufficient damage. Lynch v. Knight, 9 H. L. C. 877. 

In the case of words actionable by reason of special damage only the 
damages should be confined to the actual pecuniary loss alleged and proved. 
Dixon V. Smith, 6 H. & N. 460; 29 L. J. Ex. 126. This rule is, however, 
frequently neglected in practice, and general damages are given when any 
damage has been proved. Thus in Knott v. Jeffrey, Times, June 2, 1883, 
where the only damage proved was that the plaintiff was not invited to dinner 
by a witness, who would have invited her but for the slander, a verdict was 
given and retained for £400. 

Where the libel consists of an incorrect statement of a, conviction of 
the plaintiff by a magistrate, the plaintiff may, with a view to the assessment 
of damages, enter into all the circumstances which led to the conviction, 
although such evidence tends to show that the conviction was erroneous. 
Gwynn v. S. E. Ry. Co., 18 L. T. 738. 

Where the libel consists of comments in a newspaper on a criminal trial in 
which the plaintiff was acquitted, a course of cross-examination of him by 
the defendant's counsel, tending to show that he has been guilty of the crime 
for which he was acquitted, will seriously aggravate the libel. Risk Allah 
Bey V. Whitehurst, Id. 615. 

" The jury in assessing damages are entitled to look at the whole conduct 
of the defendant, from the time the libel was published, down to the time 
they give their verdict." Praed v. Graham, 69 L. J. Q. B. 230 ; 24 Q. B. D. 
63. 

Where two or more persons, not jointly interested, bring as co-plaintiffs an 
action for libel under Rules, 1883, 0. xvi., r. 1, the damages should, it seems, 
be separately assessed. Booth v. Briscoe, 2 Q. B. D. 496. But where an 
action is brought against the author, publisher, and printer of a libel jointly, 
if the jury find them all guilty there must be damages against all jointly. 

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Injunction — Costs — Consolidated Actions — Defence. 743 

Dawson v. McClelland, [1899] 2 I. R. 486; Greenlands v. Wilmshurst, 
83 L. J. K. B. 1 ; [1913] 3 K. B. 507. Even if the printers are not actuated 
by malice they are affected by the malice of the author and are jointly liable 
with him. Smith v. Streatfield, 82 L. J". K. B. 1237 ; [1913] 3 K. B. 764. 

Injunction.^ An injunction may be granted to restrain a defendant from 
publishing libellous statements of the plaintiff to the injury of his trade. 
Thorley's Cattle Food Co. v. Massam, 46 L. J. Ch. 713; 14 Ch. D. 763; 
Hayward v. Hayward, 56 L. J. Ch. 287 ; 34 Ch. D. 198. See also Quartz 
Hill, lie. Mining Go. v. Beall, 51 L. J. Ch. 874; 20 Ch. D. 601; Liverpool 
Household Stores Assoc, v. Smith, 57 L. J. Ch. 85 ; 37 Ch. D. 170. So, to 
restrain the utterance of slanderous statements, of the plaintiff, to the like 
effect. Loog v. Bean, 53 L. J. Ch. 1128 ; 26 Ch. D. 306. In such cases it 
is not necessary to prove actual damage, if the libel be calculated to injure 
the plaintiff's trade. Thomas v. Williams, 49 L. J". Ch. 605 ; 14 Ch. D. 864. 
An injunction may now be granted to restrain a libel other than a trade libel ; 
see 51 L. J. Ch. 878; 20 Ch. D. 511; and also to restrain the further utter- 
ance of slanders of the plaintiff; Clarke v. Main, Times, March 24, 1904, 
in which case the defendant had made charges of gross immorality against a 
female plaintiff to different persons on different occasions. See further Bon- 
nard v. Ferryman, 60 L. J. Ch. 617; [1891] 2 Ch. 269; Monson v. Tussauds, 
63 L. J. Q. B. 454; [1894] 1 Q. B. 671. 

Costs.} In an action brought under 54 & 55 V. c. 51, by a woman for words 
imputing unohastity, without special damage, she " shall not recover more 
costs than damages unless the judge shall certify that there was reasonable 
ground for bringing the action." 

Consolidated actions. ~\ By the Law of Libel Amendment Act, 1888, 51 & 
52- V. o. 64, s. 5, a judge or the court, upon an application by or on behalf of 
two or more defendants in actions in respect to the same, or substantially the 
same, libel brought by One and the same person, may make an order for the 
consolidation of such actions , so that they shall be tried together ; and " in a 
consolidated action under this section the jury shall assess the whole amount 
of the damages (if any) in one sum, but a separate verdict shall be taken for 
or against each defendant in the same way as if the actions consolidated had 
been tried separately ; and if the jury shall have found a, verdict against the 
defendant or defendants in more than one of the actions so consolidated, they 
shall proceed to apportion the amount of damages which they shall have so 
found between and against the said last-mentioned defendants ; and the judge 
at the trial, if he awards to the plaintiff the costs of the action, shall there- 
upon make such order as he shall deem just for the apportionment of such 
costs between and against such defendants." 

Defence. 

All defences which raise new matter, or would be likely to take the 
plaintiff by surprise, must be pleaded specially. Eules, 1883, 0. xix., rr. 15, 
17. Thus, denial of the publication of the libel, or of its being published 
in a defamatory sense, or in the sense laid in the innuendo, or of 
its being published maliciously, must be now raised by special defence : so 
the defence that it is a privileged communication, must be pleaded specially. 
So, in the case of slander, where the words are spoken of the plaintiff in his 
profession, &c. ; a denial that he carried on the profession, &c., must be 
pleaded specially. 

In action for words, primd facie imputing a criminal offence against 
the plaintiff, the defendant may contend that they were not so meant. 
Where the plaintiff brought an action against the defendant for saying he 
had heard that the plaintiff was hanged for stealing a horse, but it appeared 
upon the evidence tha£))^jf;2^t)j^MC^9te)'?fe 8"^'^* '^^^ sorrow for the 



744 Acticm for Defamation. 

news, the plaintiff was non-suited, there being no proof of malice. Anon., 
coram, Ho'bart, J., cited 1 Lev. 82. But it seems to be no defence that 
the words were spoken, carelessly or in jest. Hawk. P. C. 8th ed., p. 546. 

The defendant, in an action for a libel, is entitled to have the whole 
publication read from which the libellous passages are extracted. Cooke v. 
Hughes, Ey. & M. 112; Mullett v. Hulton, 4 Esp. 248. But where a libel is 
unambiguous in itself and does not refer to any other writing, the defendant 
cannot use any other writing for the purpose of explaining its meaning. 
Leyman v. Latimer, 47 L. J. Ex. 470 ; 3 Ex. D. 352. 

By Eules, 1883, 0. xxii., r. 1, money cannot be paid into court in this 
action, together with a defence denying liability. 

Privileged communication. 1 The defence that the words were written or 
spoken on a privileged occasion must now be pleaded specially. The 
privilege is either an absolute, or a qualified bar to the action. 

Privileged communication — Absolute privilege.'] There are certain occasions 
absolutely privileged, on which the publication of defamatory matter, even 
though false and malicious, affords no ground of action ; this is on the ground 
of public policy; Dawkins v. Rokeby (Lord), 45 L. J. Q. B. 8; L. E. 7 H. L. 
744. In cases falling under this head, no question of intention, in speaking 
or writing the words, can arise ; the privilege is to be exempt from all enquiry 
as to malice. Bottomley v. Brougham, 77 Iv. J. K. B. 311; [1908] 1 K. B. 
584. Thus, no action lies against one ofiicer of State in respect of a com- 
munication to another, relating to State matters in the course of his official 
duty. Chatterton v. India {Sec. of State), 64 L. J. Q. B. 676; [1895] 2 
Q. B. 189. Nor against a Member of Parliament for words spoken in his 
place. B. V. Abingdon (Lord), 1 Esp. 228; and see Davison v. Duncan, 7 
E. & B. 229, 233; 26 L. J. Q. B. 104, 107. See also Bradlaugh v. Gossett, 
53 li. J. Q. B. 209; 12 Q. B. D. 271. So, no action lies for a libel contained 
in a petition to Parliament. Lake v. King, 1 Wms. Saund. 131 b. 

There is absolute privilege where the words are spoken in the course of 
a legal proceeding. "Words used by a judge of a court of record, in his 
judicial capacity, are not actionable, although they were irrelevant to the 
matter before him, and were uttered maliciously, and not bcmd fide; Scott 
V. Stansfield, 37 L. J. Ex. 155; L. R. 3 Ex. 220. A county court judge or a 
recorder is within the privilege. Tughan v. Craig, [1918] 1 I. E. 245. So 
it would seem in the case of the judge of a consular court, having plenary 
jurisdiction over British subjects. Haggard v. Pelicier Fr&res, 61 L. J. P. C. 
19; [1892] A. C. 61. So, the report of an official referee to the court under 
sect. 8 (2) of the Companies (Winding-up) Act, 1890, is absolutely privileged. 
Bottomley v. Brougham, supra. Similarly the report of the same official 
under clause 3 of the First Schedule to the same Act. Burr v. Smith, 78 
L. J. K. B. 889 ; [1909] 2 K. B. 306. So, no action lies for observations 
made, without reasonable and probable cause and maliciously, by a magistrate 
in the course of his judicial duties, even in giving leave for the withdrawal 
of a summons obtained on information. Law v. Llewellyn, 75 L. J. K. B. 
320; [1906] 1 K. B. 487. So no action lies for words addressed by a coroner 
in the course of his duty to ^ jury empanelled before him ; Thomas v. 
Churton, 2 B. & S. 475; 31 L. J. Q. B. 139; nor, for words spoken by the 
president of a court-martial; Jekyll v. Moore, 2 Bos. & P. N. E. 341; nor, 
for words used either by the party; Ram. v. Lamley, Hutt. 113; Weston v. 
Dobinet, Cro. Jac. 432; Astley v. Younge, 2 Burr. 807; Johnson v. Evans, 
3 Esp. 32; or, by a witness; Brode's Case, cited Palmer, 144; Harding v. 
Bulman, 1 Brownl. 2 ; Seaman v. Netherclift, 46 L. -J. C. P. 128 ; 2 C. P. D. 
53, in the course of legal proceeding. The privilege extends to a witness as 
regards his statements made to the client and solicitor in preparing his proof 
for the trial. Watson v. M'Ewan, 74 L. J. P. C. 151; [1905] A. C. 480. 
Proceedings under the Lunacy Act, 1890, to obtain from a magistrate an 
order for the reception and detention of a lunatic, are within this rule. 
Hodson V. Pare, 68 L. J. Q. B. 309; [1899] 1 Q. B. 455. No action will lie 

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Defence — Privileged Communication. 745 

for words in an affidavit made in the course of a legal proceeding, although 
tmtrue to the deponent's knowledge, and introduced maliciously ; Bevis v. 
Smith, 18 C. B. 126 ; 26 L. J. C. P. 195 ; Henderson v. Broomhead, 4 H. & N. 
569 ; 28 L. J. Ex. 360, Ex. Ch. ; nor, for words spoken by a witness, in giving 
evidence, before a select committee of the House of Commons. Goffin v. 
Donnelly, 50 L. J. Q. B. 303; 6 Q. B. D. 307; nor, it would seem, for oral 
or written statements made by an officer summoned to give evidence before 
a court of enquiry, instituted under the articles of war. Dawkins v. Rokeby 
(Lord), supra. So, where it was the duty of the defendant, an officer, to 
present to the proper military authorities reports concerning other officers, 
and he accordingly presented one concerning the plaintiff which was libellous ; 
it was held that the plaintiff could maintain no action, though the report 
was published by the defendant maliciously, and without probable cause, 
and not in the bond fide discharge of his duty. Dawkins v. Paulet, 39 L. J. 
Q. B. 53; L. E. 5 Q. B. 94. So a commission issued by a bishop under 
1 & 2 V. c. 106, B. 77, and 48 & 49 V. c. 54, o. 3, to enquire into the inade- 
quate performance of the ecclesiastical duties of a, benefice, creates a judicial 
tribunal, and no action lies for words spoken by a witness in giving evidence 
before it. Barratt v. Reams, 74 L. J. K. B. 318 ; [1905] 1 K. B. 504 ; even 
■although the evidence was not given on oath as required by sect. 7. S. C. 

No action lies for words spoken by counsel in a court of justice with 
reference to, and in the course of, a judicial enquiry going on, and in which 
he is engaged, although the words are irrelevant to the questions in issue, 
and are uttered maliciously. Wood v. Gunston, Styles, 462; B. v. Skinner, 
Lofft, 55, 56; Munster v. Lamb, 52 L. J. Q. B. 726; 11 Q. B. T>. 588. A 
solicitor acting as advocate has the same privilege as counsel. S. C. ; Mackay 
V. Ford, 5 H. & N. 792 ; 29 L. J. Ex. 404. 

There is no absolute privilege to the members of a county council, at a 
meeting of the council for hearing applications for music and dancing licences 
under 25 G. 2, c. 36, the duties being administrative and not judicial. 
R. Aquarium, So. Soc. v. Parkinson, 61 L. J. Q. B. 409; [1892] 1 Q. B. 
431. The same principle applies to an ordinary meeting of the council. S. C. 

Licensing justices while dealing with an objection to the renewal of an 
old on-licence are not a court within the meaning of the rule by which 
defamatory statements made in a court are absolutely privileged. Attwood 
V. Chapman, 83 L. J. K. B. 1666 ; [1914] 3 K. -B. 275. The Law of Libel 
Amendment Act, 1888, 51 & 52 V. c. 64, s. 3 provides that " a fair and 
accurate report in any newspaper of proceedings publicly heard before any 
court exercising judicial authority shall, if published contemporaneously 
with such proceedings, be privileged : Provided that nothing in this section 
shall authorize the publication of any blasphemous or indecent matter." 

A letter to the Privy Council defaming the plaintiff, a public officer 
removable by them, is not absolutely privileged. Proctor v. Webster, 55 
L. J. Q. B. 150; 16 Q. B. D. 112. 

Privileged communication — Qualified privilege — Evidence to rebut malice.'] 
It more frequently happens that the occasion only affords a qualified bar to 
the action , the bar being dependent on the real motive and intention of the 
speaker or writer. In these cases only the primd facie inference of malice is 
rebutted, and it becomes necessary for the plaintiff to prove malice in fact. 
Bromage v. Prosser, 4 B. & C. 247, 256 ; Taylor v. Hawkins, 20 L. J. Q. B. 
313 ; 16 Q. B. 308 ; Harrison v. Bush, 5 E. & B. 344 ; 25 L. J. Q. B. 25. 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. Harrison v. Bush, supra. See Toogood v. 
Spyring, 3 L. J. Ex. 347; 1 C. M. & E. 181; Somerville v. Hawkins, 10 
C. B 583 ; 20 L. J. C. P. 131 ; Cowles v. Potts, 34 L. J. Q. B. 247 ; Henwood 
V. Harrison, 41 L. J. C. P. 206; L. E. 7 C. P. 606; A. B. v. X. Y., [1917] 
S. C. 15. The wor®;^;ff2^'J!)j(nfl)j^^SOfi!i®al and social duties of 



746 Action for Defamation . 

imperfect obligation"; Harrison v. Bush, supra; and, "where a person is 
«o situated, that it becomes right, in the interests of society, that he should 
tell a third person," then the occasion is privileged. Davies v. Snead, 39 L. J. 
Q. B. 202, 204 ; L. E. 5 Q. B. 608, 611 ; Waller v. Lock, 51 L. J. Q. B. 274; 
7 Q. B. D. 619; StuaH v. Bell, 60 L. J. Q. B. 577; [1891] 2 Q. B. 341. 
It is not, however, sufficient that the person giving the information, should 
bond fide think that he is discharging a moral or social duty; Id. ; or that he 
should think that the person to whom he makes the communication has a 
corresporiding interest or duty. Hebditch v. Macllwaine, 63 L. J. Q. B. 587 ; 
[1894] 2 Q. B. 54. So, if he bond fide address a wrong person, who has no 
such duty or interest, he is liable. S. C. There is no privilege as between 
H., the writer of a libel on P., and the clerks whom H. ordinarily employed to 
copy his letters; Pullman v. Hill, 60 Ir. J. Q. B. 299; [1891] 1 Q. B. 524; 
nor, as between H. & P.'s clerks, who usually read P.'s letters. S. C. ; 
Gomersall v. Davies, 14 T. L. E. 430. It is, however, otherwise where H. 
has acted in the reasonable and ordinary course of business as to his letters. 
See Boxsius v. Goblet, 63 L. J". Q. B. 401 ; [1894] 1 Q. B. 842 ; Edmondson v. 
Birch, 76 L. J. K. B. 346 ; [1907] 1 K. B. 371 ; Morgan v. Wallis, 33 T. L. E. 
495. The privilege attaching to a communication made between parties 
having a common interest and without malice is not lost by publication to 
persons such as clerks in the addressee's employment, provided the communi- 
cation is made in a reasonable manner and in the usual course of business. 
Roff V. British and French Chemical, dc, Co., 87 L. J. K. B. 996; [1918] 2 
K. B. 677. Libellous matter which would have been privileged if sent in a 
sealed letter, is not privileged if sent unnecessarily by a post telegram. 
Williamson v. Freer, 43 L. J. C. P. 161 ; L. E. 9 C. P. 393. Secus, if the 
telegram did not disclose the plaintiff's name, or indicate that it referred to 
him, and there is no proof that the statements therein made were understood 
by any person through whose hands it passed, to refer to the plaintiff, except 
the person to whom it was sent. See Sadgroue v. Hole, 70 L. J. K. B. 455; 
[1901] 2 K. B. 1, where the alleged libel was on a post card. 

When the defendant insists that the publication is privileged, it is for the 
judge to say whether the occasion creates the privilege. Adam v. Ward, 
86 L. J. K. B. 849 ; [1917] A. C. 309. If the occasion creates such privilege, 
but there is evidence of express malice, either from extrinsic circumstances, 
or from the language of the libel itself, the question of express malice should 
be left to the jurv. Cooke v. Wildes, 5 E. & B. 328; 24 L. J. Q. B. 367; 
Oilpin V. Fowler, '9 Ex. 615 ; 23 L. J. Ex. 153 ; Wright v. Woodgate, 2 C. M. 
& E. 573; Spill v. Maule, 38 L. J. Ex. 138; L. E. 4 Ex. 232; Stace v. 
Griffith, L. E. 2 P. C. 420. 

If there be no evidence of express malice, the judge is bound to direct 
a verdict for the defendant. Somerville v. Hawkins, 20 L. J. C. P. 131 ; 
10 C. B. 583; and Henwood v. Harrison, 41 L. J. C. P. 206; L. E. 7 C. P. 
606 ; Cooke v. Wildes, supra; Caulfield v. Whitworth, 18 L. T. 527 ; Lawless 
V. Anglo-Egyptian, dc. Co., 38 L. J. Q. B. 129; L. E. 4 Q. B. 262. So, 
if words used in a privileged communication, taken in connection with 
admitted facts, are such as might have been used honestly and bond fide by 
the defendant, the judge may direct a verdict for the defendant. Spill v. 
Maule, supra. When words, imputing misconduct of which A and B. are 
alleged to have been jointly guilty, are spoken to A. on an occasion which is 
privileged as to him, the occasion is privileged as to B. also. Davies v. 
Snead, 39 L. J. Q. B. 202 ; L. E. 4 Q. B. 608. 

In actions for libel, other than those against newspapers, where the defence 
id publication on a privileged occasion, an interrogatory asking for the names 
of the persons on whose information the defendant acted in publishing the 
words complained of will, in general, be permitted, and the defendant 
ordered to disclose the names. Fitzgerald v. Watson, [1918] 2 I. E. 411 ; 
see also Chapman v. Leach, 89 L. J. K. B. 155 ; [1920] 1 K. B. 336. 

The following are instances of privileged statements, in which the primd 
facie inference of malice is rebutted : — 

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Qualified Privilege — Evidence to Rebut Malice. 747 

" A member of Parliament, who publishes an amended version of his 
speech, is liable for that, although he might have spoken the same words 
in his place with impunity ; but if a member were to repeat bond fi,de to 
his constituents what he said in the house, for the purpose of explaining 
his conduct to them, I think he would be protected." Davison v. Duncan, 
26 L. J. Q. B. 104, 107; 7 B. & B. 229, 233. See Wason v. Walter, 38 
L. J. Q. B. 34; L. E. 4 Q. B. 73. 

Words spoken bond fide, for the purpose of obtaining redress, or of for- 
warding the ends of justice, though not spoken in the course of a legal 
proceeding, are privileged. Lake v. King, 1 Wms. Saund. 131 b; R. v. 
Baillie, 21 How. St. Tr. 10; Fairman v. Ives, 5 B. & A. 642. Where the 
libel complained of is a representation made bond fide to a public officer 
(as the Postmaster-General) by the defendant, respecting the conduct of 
a person under him, it is not actionable. Blake v. Pilfold, 1 M. & Bob. 
198; Woodward v. Lander, 6 C. & P. 548; Sta-ce v. Griffith, supra. So a 
statement made to a chief constable regarding the official conduct of a police 
sergeant. Cassidy v. Connochie, [1907] 8. C. 1112 ; and a complaint by a 
doctor to a chemist that he has not dispensed a medicine in accordance with 
the doctor's prescription. Gall v. Slessor, [1907] S. C. 708. A letter pub- 
lished by the Secretary of the Army Council in obedience to their orders, 
stating, as the result of their investigation into a charge made against an 
officer by the appellant, that it was unfounded, is published on a privileged 
occasion. Adam v. Ward, 86 L. J. K. B. 849; [1917] A. C. 309. In 
Beatson v. Skene, 5 H. & N. 838; 29 L. J. Ex. 430, the defendant was the 
civil commissioner, attached to a corps formerly commanded by the plaintiff; 
the officer succeeding the plaintiff was directed to inquire into, and report 
upon the condition of the corps, and was referred to the defendant for 
information ; he accordingly made inquiries of the defendant ; it was held 
that the defendant's reply was privileged. See also Dawkins v. Paulet, 
39 L. J. Q. B. 53 ; L. E. 5 Q. B. 94. A memorial addressed to the Secretary 
of State for the removal of the plaintiff from the commission of the peace 
was held to be privileged. Harrison v. Bush, 5 B. & B. 344; 25 L. J. 
Q. B. 25. Words spoken by a member of a county council at a meeting 
of that body for granting music and dancing licenses under 25 G. 2, c. 36, 
are privileged. R. Aquarium Socy. v. Parkinson, 61 L. J. Q. B. 409 ; [1892] 
1 Q. B. 431, and the principle seems to apply to its other meetings. Where 
the defendant attacked the character of a Eoman Catholic priest, by attribut- 
ing to him improper conduct as a priest, it was held to be no excuse that the 
libel was published at a meeting, to petition Parliament against making 
a grant to a Eoman Catholic College. Hearne v. Stowell, 12 Ad. & B. 719. 
See Dickeson v. Milliard, 43 L. J. Ex. 37 ; L. E. 9 Ex. 79. 

Where the words are spoken in confidence, by way of advice or otherwise, 
they are privileged. Thus, where the party is applied to for the character 
of a servant, and in giving it makes use of defamatory words, they are 
not actionable. Edmondson v. Stevenson, B. N. P. 8; Weatherston v. 
Hawkins, 1 T. E. 110. But, if the supposed libel be not communicated 
bond fide, it does not fall within the protection of privileged communi- 
cations. Pattison v. Jones, 8 B. & C. 578, 584 ; 7 L. J. (0. S.) K. B. 26, 29; 
Kelly V. Partington, 5 B. & Ad. 645. Whether the master made the com- 
munication voluntarily or not, is a circumstance which the jury are to con- 
sider, in forming an opinion on the bond fides. " I do not mean to intimate," 
says Ld. Alvanley, C.J., in Rogers v. Clifton, 3 B. & P. 592, " that if a 
servant were strongly suspected of having committed a felony while in 
his master's service, that master is not at liberty to warn others from 
taking him into their service; for it is the duty of every person to guard 
the public against admitting such servants into their houses." " A master," 
says Bayley, J., in Pattison v. Jones, supra, "may, when he thinks that 
another is about to take into his service one whom he knows ought not 
to be taken, set himself in motion and do some act to induce that other 
to seek information frfljn..andjput questions tai,im. The answers to such 



748 Action for Defamation. 

questions given bond fide, with the intention of communicating such 
facts as the other party ought to know, will, although they contain 
slanderous matter, come within the scope of a privileged communication. 
But in such a case it will be a question for the jury whether the defendant 
has acted bond fide, intending honestly to discharge a duty, or whether 
he has acted maliciously, intending to do an injury to the servant." See 
also Child v. Affleck, 9 B. & C. 403; 7 L. J. (0. S.) K. B. 272. When » 
person, after he has given a good character, discovers something to the pre- 
judice of the servant, unknown to him at the time he gave the character, he 
may and ought to disclose it to the party who engaged the servant, on the 
faith of the character so given, and he may make the communication volun- 
tarily, and the whole is privileged. Gardner v. Slade, 18 L. J. Q. B. 334 ; 
13 Q. B. 796. 

Defamatory words spoken by way of confidential advice to persons who 
ask it, or have a right to expect it, are privileged. Thus in an action for 
saying of a tradesman, "he will be a bankrupt soon," it appeared that the 
words were not spoken maliciously, but in confidence and friendship, and 
by way of warning. Pratt, C.J., directed the jury to find the defendant 
not guilty. Hewer v. Dowson, B. N. P. 8 ; M'Dougall v. Glaridge, 1 Camp. 
267; Dunman v. Bigg, Id. 269, n. The defendant, the tenant of a farm, 
required some repairs to be done at the farmhouse, and B., the agent of 
the landlord, directed the plaintiff to do them; the plaintiff did them, but 
in a negligent manner, and while they were proceeding got drunk; and 
circumstances occurred which induced the defendant to believe that the 
plaintiff had broken open his cellar door and got drunk, and spoiled the 
work; and the defendant told D., a stranger, in the presence of the plaintiff, 
and afterwards repeated to D., in the absence of the plaintiff, that the 
plaintiff had broken open the door ; on the same day he made the same 
complaint to B. : it was held that the complaint to B. was a privileged 
communication if made bond fide, and without any malicious intention; 
that the statement made to the plaintiff, in the presence of D., was also 
privileged , if done honestly and bond fide; that the circumstance of its 
being made in the presence of a third person did not of itself make it 
unauthorized; and that it wa« a question for the jury to determine, from 
the circumstances, whether the defendant acted bond fide, or was influenced 
by malicious motives : but that the statement to D., in the absence of 
the plaintiff, was unauthorized and of&cious, and therefore not protected, 
though made in the belief of its truth, if it were false in fact. Toogood 
V. Spyring, 3 L. J. Ex. 347 ; 1 C. M. & E. 181 ; see also Brooks v. Blanshard, 
2 L. J. Ex. 275; 1 Cr. & M. 779; Bennett v. Deacon, 16 L. J. C. P. 289; 
2 C. B. 628. The defendant having given notice of dismissal to his footman 
and cook, they separately went to him and asked him his reasons for dis- 
charging them, when he told each (in the absence of the other) that he or she 
was discharged because both had been robbing him ; it was held a privileged 
communication. Manby v. Witt, 18 C. B. 244; 25 L. J. C. P. 294. See also 
Davies v. Snead, 39 L. J. Q. B. 202 ; L. K. 5 Q. B. 608. If a person about 
to dismiss his servant for dishonesty calls in a friend to hear what passes, 
the presence of such third person does not take away the privilege from words 
which the master then uses imputing the dishonesty. Taylor v. Hawkins 
20 L. J. Q. B. 313; 16 Q. B. 308. A charge of theft made against the plain- 
tiff, in the presence of a stranger is privileged, if the defendant believed it to 
be true and acted bond fide, and did not make it before more persons, or in 
stronger language than necessary ; and it is for the jury, not for the judge, 
to say whether the facts bring the case within the privilege. Padmore v. 
Lawrence, 9 L. J. Q. B. 137; 11 Ad. & B. 380. Cf., the Scottish case of 
Suzor V. Buckingham, [1914] S. C. 299, where an accusation by a manager 
against the defendant in the presence of the latter's wife was held not 
privileged. The plaintiff, a clerk, called at the defendant's shop, for 
two boxes , and was desired to fetch them from an inner room ; a box of 
some value was missed from this room, upon which the defendant went 

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Qualified Privilege — Evidence to Rebut Malice. 749 

to the plaintiff's employers and said, in the presence of a witness, " there 
was no one else in the room, and he (the plaintiff) must have taken it;" 
it was held that the communication was privileged, being made for the 
purpose of protecting the interest of the person by whom, or to whom, 
ii was made. Amann v. Damm, 8 G. B. (N. S.) S97; 22 L. J. C. P. 313. 
"Where the slander is spoken at a meeting on a privileged occasion, the presence 
there of reporters, whom the defendant cannot exclude, will not affect the 
privilege. Pittard v. Oliver, 60 L. J. Q. B. 219 ; [1891] 1 Q. B. 474. 

Where a person, having originated false reports prejudicial to a tradesman, 
was afterwards called on by the employers of the latter, to examine the 
matters complained of, and then repeated to them the false statement; it 
was held that this communication was not privileged. Smith v. Mathews, 
1 M. & Bob. 151; Griffiths v. Lewis, 14 L. J. Q. B. 197; 7 Q. B. 61. The 
mate of a ship sent a private letter to the defendant, imputing gross miscon- 
duct and unfitness to the plaintiff, the captain of it, which defendant showed 
to the shipowner, who thereupon dismissed the plaintiff. The court were 
divided as to whether this communication by the defendant to the owner was 
privileged. In this case the defendant was a stranger to the owner, and not 
interested in this matter, and he showed it to the owner by the advice of some 
friends, and appears to have acted in the belief that the owner ought to be 
informed of the misconduct. Goxhead v. Richards, 15 L. J. C. P. 278; 2 
C. B. 569. But, where P., a creditor of the plaintiff, B., believing that B. 
had committed an act of bankruptcy, and having reason to believe it, gave 
notice to a person whom B. had commissioned to sell his goods by auction, 
not to pay over the proceeds to him, " he having committed an act of bank- 
x-uptcy," it was held that the communication was privileged. Blackham v. 
Pugh, 15 L. J. C. P. 290; 2 C. B. 611. So where C, a solicitor, acting in the 
ordinary course of his duty to his client P., gave such notice on P.'s behalf ; 
Baker v. Garrick, 63 L. J. Q. B. 399 ; [1894] 1 Q. B. 838 ; even although 
given by a letter which was dictated to and written by one clerk, and after 
signature by C, copied into a letter book by another, in accordance with the 
ordinary course of business of C.'s office. Boxsius v. Goblet, 63 L. J. Q. B. 
401; [1894] 1 Q. B. 842; Edmondson v. Birch, 76 L. J. K. B. 346; [1907] 
1 K. B. 371, where the defendant was not a solicitor. In Macintosh v. Dun, 
77 L. J. P. C. 113; [1908] A. C. 390, statements by the defendants, who 
carried on business as "The Mercantile Agency," in reply to the request 
of a subscriber as to the character of the plaintiff, were held not privileged. 
That case was distinguished in London Association for Protection of Trade 
v. Greenlands, 85 L. J. K. B. 698; [1916] 2 A. C. 15, where it was held 
that in the case of an unincorporated association of traders, not carried on 
for profit, but for mutual protection, a communication made bond fide and 
without malice by the secretary to a member in answer to an inquiry as to 
the financial standing of a particular firm, was held privileged, the secretary 
being in the position of an agent for the member making the inquiry. 

The plaintiff and defendant were jointly interested in property of which 
C. was manager, and the defendant wrote to C. a letter principally about the 
property and the conduct of the plaintiff with regard thereto, but containing 
also a distinct charge against the plaintiff with reference to his conduct to his 
mother : it was held, that though the part of the letter respecting the 
plaintiff's conduct as to the property, was oonfi'dential and privileged, such 
privilege could not extend to the part relating to his mother. Warren v. 
Warren, 3 L. J. Ex. 294 ; 1 C. M. & E. 250. The defendant claimed rent of 
the plaintiff; the plaintiff denied his liability, whereupon the defendant wrote 
to the plaintiff's agent (who was in con-espondence on the subject) a letter in 
which he insisted on his claim, and further charged the plaintiff with " a 
mean and dishonest attempt to defraud;" it was held, that such an imputa- 
tion, being wholly unnecessary, was not privileged. Tuson v. Evans, 12 Ad. 
& E. 733; see Cooke v. Wildes, 5 E. & B. 328; 24 L. J. Q. B. 367; and 
Fryer v. Kinnersley, 15 C. B. (N. S.) 422; 33 L. J. C. P. 96. But, where 
the plaintiff requested iG, to .aWMagimatursfiw against the plaintiff 



750 Action for Defamation. 

being compelled to resign a charitable trust held by him, the defendant, 
when requested by C. to sign, said he would not keep a big rogue like the 
plaintiff in the trust; on being pressed to give his reasons, he said that 
the plaintiff had left the parish under discreditable circumstances, without 
settling with his creditors : it was held that the words were spoken on a 
privileged occasion. Cowles v. Potts, 34 Zt. J. Q. B. 247. So, where the 
defendant was requested by C, a clergyman and friend of the plaintiff, to act 
as arbitrator between one of his parishioners and the plaintiff; this office he 
refused in a letter to C, which was one of the libels in question. The other 
was contained in the answer to a letter from a lady, whereby she sought to 
clear the plaintiff from certain charges brought against him. Both com- 
munications were held to be privileged. Whiteley v. Adams, 15 C. B. 
(N. S.) 392 ; 33 L. J. C. P. 89. See also Stuart v. Bell, 60 L. J. Q. B. 577 ; 
[1891] 2 Q. B. 341. Statements made by the secretary of a society, .for the 
purpose (inter alia) of investigating the cases of applicants for charitable 
relief, in answer to inquiries, as to such applicants, by persons whom he 
believes to be willing to relieve them, if deserving of relief, are privileged. 
Waller v. Lock, 51 L. J. Q. B. 274; 7 Q. B. D. 619. 

It is the duty of the directors of a joint-stock company to communicate 
to their shareholders the reports of the auditors ; and as it is for the interest 
of all the shareholders to be informed of the report, the printing and publica- 
tion of the reports is primd facie privileged. Lawless v. Anglo-Egyptian, 
dc, Co., 38 L. J. Q. B. 129; L. E. 4 Q. B. 262. See also Edmondsm. v. 
Birch, supra. Though, if the report were circulated among other than share- 
holders the privilege would cease. Parsons v. Surgey, 4 P. & !P. 247. 
Where the defendants, a railway company, dismissed the plaintiff, one of 
their guards, for neglect of duty, the publication of his name and the cause 
of his dismissal in a printed monthly circular addressed to the defendants' 
servants, was held to be privileged. Hunt v. Gt. N. Ry., 60 L. J. Q. B. 498 ; 
[1891] 2 Q. B. 189. Where the plaintiff, a barrister, in a speech made to 
the Manx House of Keys had violently attacked the defendant, the bishop 
of the Isle of Man, and the defendant replied to the attack in the House of 
Convocation ; the occasion was held privileged , and the publication of his 
reply in the local press was also held privileged, that being the medium by 
which the plaintiff's speech had been circulated. Laughton v. Sodor and 
Man (Bishop), 42 L. J. P. C. 11 ; L. E. 4 P. C. 495. The mere fact that the 
language used was stronger than the occasion required is not evidence of 
malice; S. C, following Spill v. Maule, 38 L. J. Ex. 138; K E. 4 Ex. 232; 
T<!emll v. Fine Arts, &c. Insur. Co., 66 L. J. Q. B. 195; [1897] A. C. 68. 

Words spoken bond fide, by way of moral advice, are privileged, as if a 
man writes to a father, advising him to have better regard to his children, and 
using scandalous words, it is only reformatory, and shall not be intended to 
be a libel. Peacock v. Raynell, 2 Brownl. 151. But, if in such case the 
publication should be in a newspaper, though the pretence should be reforma- 
tion, it would be libellous. R. v. Knight, Bac. Abr., Libel (A. 2). 

Where defamatory words are spoken or written bond fide, with the view of 
investigating a fact in which the party is interested, they are privileged. 
Thus, where the defendant inserted an advertisement in a newspaper to 
ascertain whether, previously to a certain time, the plaintiff had been 
married, intending, as the innuendo stated, to insinuate that the plaintiff 
had been guilty of bigamy, but it appeared that the advertisement was 
inserted by the authority of the plaintiff's wife, from anxiety to know whether 
she was legally the wife of the plaintiff, it was justifiable. Delany v. Jones, 
4 Esp. 191; Finden v. Westlake, M. & M. 461. So, where the libel was an 
advertisement for the discovery of the plaintiff, an absconded debtor, and 
published at the request of a party who had sued out a capias , for the purpose 
of enabling the sheriff to take him. Lay v. Lawson, 4 Ad. & E. 796. But 
if the publication of the libel is more extensive than necessary for the purpose 
of obtaining information, it may become actionable. Browne v. Croome, 
2 Stark. 297. So, althoug-h a customer may use words of reasonable 

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Qualified Privilege — Evidence to Rebut Malice. 751 

remonstrance to a tradesman, yet from the manner, time or place of speak- 
ing, there may be evidence of express malice, which takes away the privilege. 
Oddy V. Paulet, 4 F. & F. 1009. 

No action will lie, without express malice, for libellous matter contained 
in a notice forming part of a legal proceeding. Bank of British N. America 
V. Strong, 1 App. Cas. 307. 

The publication, even though not a verbatim report, of the proceedings of 
a court of justice, containing defamatory matter, is privileged, if sub- 
stantially fair and correct. Currey v Walter, 1 B. & P. 525 ; Delegal v, 
Highley, 6 L. J. C. P. 337; 3 Bing. N. C. 950; Hoare v. Siherlock, 9 C. B. 
20 ; 19 L. J. C. P. 215. Proceedings before the registrar under the Bank- 
ruptcy Act, 1861, SB. 101, 102, fell within this rule. Ryalls v. Leader, 
35 L. J. Ex. 185; L. R. 1 Ex. 296. So, the report of a debate in Parlia- 
ment ; Wason v. Walter, 38 L. J. Q. B. 34 ; L. R. 4 Q. B. 73 ; or, of proceed- 
ings before a committee of the House of Lords ; Kane v. Mulvany, I. R. 

2 C. L. 402, is privileged. A correct and impartial report of the preliminary 
inquiries held before magistrates respecting indictable offences, pursuant to 
11 & 12 V. c. 42, is privileged if the inquiry be carried on publicly, and the 
charge be dismissed. Lewis v. Lei}y, E. B. & E. 537 ; 27 L. J. Q. B. 282. 
So, also, of the proceedings before magistrates duly acting within their juris- 
diction where, after parties are heard, a final judgment is given pursuant to 
the 11 & 12 V. c. 43; see S. C. ; or the proceedings are of such a nature that 
they must end in a final decision. Kimber v. Press Assoc, infra. But if 
the inquiry is carried on privately, or if the magistrates have no jurisdiction, 
a report of the proceedings would be unlawful. Lewis v. Levy, supra; 
M'Gregor v. Thwaites, 3 B. & C. 24; 2 L. J. (0. S.) K. B. 217. Where, 
however, an application is made to a magistrate in a matter in which 
supposing the facts to bear out the application, he would have jurisdiction, 
then he has jurisdiction to consider whether the facts make out the jurisdic- 
tion, and a report is privileged. Usill v. Hales, 47 L. J. C. P. 323; 

3 C. P. D. 319. A report of proceedings in open court before magistrates, 
upon an ex parte application for a summons for perjury is privileged. 
Kimber v. Press Assoc, 62 L. J. Q. B. 152; [1893] 1 Q. B. 65; see also 
R. V. Gray, 10 Cox C. C. 184. 

The true criterion of the privilege in the case of a report of legal proceed- 
ings is, probably, whether it is a fair and honest report of what had taken 
place, published simply with a view to the information of the. public, and 
innocent of all intention to do injury to the reputation of the party affected. 
Wason Y. Walter, 88 L. J. Q. B. 34, 44; L. R. 4 Q. B. 73, 94; Usill v. 
Hales, 47 L. J. C. P. 323, 327; 3 C. P. D. 319, 326; Macdougall v. Knight, 
55 L. J. Q. B. 464; 17 Q. B. D. 636. But, if the report, although sub- 
stantially correct, be published maliciously, with intent to injure the plaintiff, 
there is no privilege. Salmon v. Isaac, 20 L. T. 885; Stevens v. Sampson, 
49 L. J. Q. B. 120; 5 Ex. D. 53. In these cases the publication was by 
volunteers, who were not reporters for the public press. 

Where a trial or inquiry lasts several days, a report of each day's proceed- 
ings is privileged. Lewis v. Levy, 27 L. J. Q. B. 282; E. B. & E. 537. 
A repprt of the judgment, without the evidence, in an action tried without 
a jury, was held to be privileged. Macdougall v. Knight, supra. The 
judgment in this case was affirmed on another ground, 58 L. J. Q. B. 537 ; 
14 App. Cas. 194 ; but Ld. Halsbury, C, there intimated that this proposition 
would not be correct, unless the judgment afforded the reader a reasonable 
opportunity of judging what conclusion to draw from the evidence at the 
trial. The principle laid down by the C. A. was, however, followed by them 
in Id. V. Id., No. 2, 59 L. J. Q. B. 517 ; 25 Q. B. D. 1. 

Contemporaneous reports in newspapers of proceedings publicly heard in 
Court are now privileged, by 51 & 52 V. c. 64, s. 8. 

The publication of a copy of a register of judgments kept under statutory 
authority and which the public have a right to inspect is privileged. Searles 
V. Scarlett, 61 L. J. '^j^if^^clW^i^r'SsSftS- ^"' ''''^''^ *^^ P'*'°" 

B. — VOL. II. 8 



752 Action for Defamation. 

tiff's name appeared in a list of county court judgments to whicli was appended 
a note that no distinction was made between debt or damages or properly 
disputed cases, and it was probable that a large portion of the judgments had 
been settled or paid, it was held that no action lay in the absence of malice. 
S. C. A similar list without the note was held to be a libel in Williams v. 
Smith, 58 L. J. Q. B. 21; 22 Q. B. D. 134. Sed. vide per Ld. Bsher, M.E., 
in Searles v. Scarlett, supra. As to effect of publication that a decree in 
absence in a Scottish Small Debt Court had been pronounced against a trader, 
see Stubbs v. Mazure, 88 L. J. P. C. 135; [1920] A. C. 66. As to a report 
as to the conduct of publicans, for use at Brewster sessions, see Andrews v. 
Nott-Bow&r, 64 L. J. Q. B. 536; [1895] 1 Q. B. 888. 

A report by the General Medical Council, constituted under 21 & 22 Vict. 
c. 90, that they had (as they in fact had, under sect. 29) removed the name 
of the plaintiff, a medical practitioner, from the register, and that he had 
been guilty of infamous conduct in a professional respect, is privileged. 
Allbutt V. General Council of Medical Education, 58 L. J. Q. B. 606; 
23 Q. B. D. 400. 

The defendant may contend that the writing is not injurious ; as where 
the editor of a newspaper reported a former trial for libel, in which the 
plaintiff had recovered a verdict, although the report contained some injurious 
allegations, yet the judge left it to the jury to say whether, taken altogether, 
the report was injurious, and the court held that it was rightly so left. 
Chalmers v. Payne, 4 L. J. Ex. 151 ; 2 C. M. & E. 156. 

Fair comment.l Fair comment on the plaintiff's conduct or literary work 
■falls within the rule of qualified privilege. Thomas v. Bradbury, 75 L. J. 
K. B. 726 ; [1906] 2 K. B. 627, explaining Merivale v. Carson, 20 Q. B. D. 
■275, and Henwood v. Harrison, 41 L. J. 0. P. 206 ; L. E. 7 C. P. 606. See 
also Dakhyl v. Labouchere, 77 L. J. K. B. 728; [1908] 2 K. B. 325 n. 
Before leaving the question of fair comment to the jury, the judge must be 
satisfied that the defamatory inference alleged can reasonably be drawn 
from the stated facts : if it can it is for the jury to say whether it ought to 
be drawn. Homing Pigeon Publishing Co. v. Boeing Pigeon Publishing Co., 
29 T. li. E. 389. A ' ' fair comment " is a relevant comment which is the 
expression of honest opinion, and is criticism and not mere invective; such 
comment is no libel. McQuire v. W. Morning News Co., 72 L. J. K. B. 
612; [1903] 2 K. B. 100. The jury may not "substitute their own opinion 
of the literary merits of the work for that of the critic, or try the ' fairness ' 
of the criticism by any such standard." S. C. See also Digby v. Financial 
News, 76 L. J. K. B. 321 ; [1907] 1 K. B. 502. A comment actuated by 
malice is not fair. Thomas v. Bradbury, supra. Comment which tends to 
prejudice may still be fair ; it may convey an imputation of bad motive eo 
far as the facts truly stated justify such an imputation. It is for the jury 
to say whether the facts justify the imputation or not. Hunt v. Star News- 
paper Co., 77 L. J. K. B. 732 ; [1908] 2 K. B. 309. And although the writer 
of a published article bond fide believe that what it stated is true, it goes 
beyond the range of fair criticism if it impute base and sordid motives to 
the plaintiff. Campbell v. Spottiswoode, infra; Joynt v. Cycle Trade Pub- 
lishing Co., 73 L. J. K. B. 752; [1904] 2 K. B. 292. See also Ryan v. Wood, 
4 P. & P. 735. The right to publish a fair criticism is not a peculiar right of 
the public press, but may be exercised by any private individual. Kane v. 
Mulvany, Ir. E. 2 C. L. 402; Henwood v. Harrison, supra; Campbell v. 
Spottiswoode, 3 B. & S. 769, 781; 32 L. J. Q. B. 185, 201, 202. "Where a 
newspaper pleads fair comment on matters of public interest it will not, 
in the absence of special circumstances, be compelled to disclose its sources 
of information. Lyle-Samuel v. Odhams, 88 L. J. K. B. 1161; [1920] 
1 K. B. 136. 

A public writer may discUas the conduct of magistrates, who dismissed a 
charge made against the plaintiff, without hearing the whole of the evidence, 
and also in commenting on the evidence adduced, in support of the view that 

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Fair Comment. 753 

the decision of the magistrates was erroneous ; but he is not entitled to argue 
in favour of his view from extrinsic facts, not in evidence. Hibbins v. Lee, 
4 P. & F. 243; and see Hedley v. Barlow, Id. 224. So, comments on the 
proceedings in, or evidence given before, a court of justice are allowable if 
made fairly and honestly; Woodgate v. Ridout, Id. 202; and even 
though the inference which the writer draws is incorrect, provided he has 
acted reasonably, the privilege still continues. Risk Allah Bey v. White- 
hurst, 18 L. T. 615. So, fair comments may be made on the proceedings 
in Parliament. Wason v. Walter, 38 L. J. Q. B. 34; L. B. 4 Q. B. 73; 
Kane v. Midvany, supra. So may a fair criticism on a matter of public and 
national interest and importance. Henwood v. Harrison, supra; so the 
sanitary condition of a large number of cottages let by the proprietors of a 
colliery to their workmen, may be criticized. S. Hetton Goal Co. v. N. E. 
News Assoc, 63 L. J. Q. B. 293; [1894] 1 Q. B. 133; so too, the way in 
which the employment and the method of remuneration of an architect by a 
school board was carried out. Leng v. Langlands , 114 L. T. 665. But it is 
not lawful to make false charges against a public officer, nor, on the assump- 
tion of their truth, to comment on his proceedings in offensive and injurious 
language. Davis v. Shepstone, 55 L. J. P. C. 51; 11 App. Cas. 187. In 
commenting on or referring to legal proceedings, a text- writer must take 
reasonable care that his statements are accurate, or he will be liable it the 
misstatement is injurious to another. Blake v. Stevens, 4 F. & P. 232. 

The defendant may show that the libel is a fair comment, however severe, 
on a literary work of the plaintiff ; but if it contain observations unconnected 
with the work, and personally slanderous, it is actionable; Carr v. Hood, 
1 Camp. 355, n. ; Soane v. Knight, M. & M. 74; Thompson v. Sh-aekell, Id. 
187 ; Fraser v. Berkeley, 7 C. & P. 621; Strauss v. Francis, 4 P. & P. 1107 ; 
Campbell v. Spottiswoode ; Joynt v. Cycle Trade Publishing Co., and 
Merivale v. Carson, supra; so if it misdescribe the work criticised, S. C. 
A publication is not a libel which has for its object, not to injure the reputa- 
tion of any individual but to correct misrepresentations of fact, to refute 
sophistical reasoning, to expose a vicious taste in literature, or to censure 
what is hostile to morality; Tabart v. Tipper, 1 Camp. 352; Strauss v. 
Francis, supra. Nor, if the intention is to expose a system of quackery and 
puffery; per Cockburn, C.J., Hunter v. Sharpe, 4 P. & P. 983. See also 
Dakhyl v. Labovxihere, supra. 

Handbills or placards are subject to the same freedom of criticism, oral or 
in writing, as books. Paris v. Levy, 9 C. B. (N. S.) 342 ; 30 L. J. C. P. 11. 
;So, the editor of a newspaper may comment on any place of public entertain- 
ment, if the comment be made fairly, and without malice, or a view to injure 
or prejudice the proprietor in the eyes of the public. Dibdin v. Swan, 1 Esp. 
28; McQuire v. W. Morning News Co., 72 L. J. K. B. 612; [1903] 2 K. B. 
100. And see Gregory v. Brunswick (Duke), 1 Car. & K. 24, as to criticisms 
on actors. And, it is not libellous fairly to comment upon a petition relating 
to matters of general interest, which has been presented to Parliament and 
published. Dunne v. Anderson, Ey. & M. 287 ; 3 Bing. 88. So, comments 
on the conduct of persons at h, public meeting for the purpose of promoting 
the election of a candidate for Parliament are privileged. Davis v. Duncan, 
43 L. J. C. P. 185 ; L. E. 9 C. P. 396. So, comments on the conduct of a 
clergyman in relation to the manner in which he conducts public worship, 
or uses the church or vestry, are privileged: Kelly v. Tinling, 35 L. J. 
Q. B. 231; L. E. 1 Q. B. 699; but comments in relation to hisj conduct, in 
the management of a private charity which he dispenses, are not privileged, 
but must, if at all, be specially justified by showing their truth; at least 
•where the comments are published by a mere stranger, and in a newspaper. 
Gathercole v. Miall, 15 L. J. Ex. 179; 15 M. & W. 319; see Walter v. 
Brogden, 19 C. B. (N. S.) 65. And it has been doubted whether sermons, 
published only by being preached in church, are the lawful subjects of such 
public comments. Gathercole v. Miall, supra. See, however, Caird v. 
Sime, 57 L. J. P. C. ^i^fj^.^<^j^^soft® 



754 Action for Defamation. 

To justify the criticism the plaintiff must be a person whose position and 
character are of general interest to the whole country, or the subject-matter 
must be of such interest ; it is insufficient if the interest is limited. Purcell 
V. Sowler, 1 C. P. D. 781. This judgment was affirmed (46 L. J. C. P. 
308 ; 2 C. P. D. 215) on another ground, the C. A. holding the matter was, in 
that case, of general interest to the whole country. 

A letter which is a libel per se, cannot be justifiable, as being a fair and 
bond fide comment on the matter contained in a preceding letter. Walter v. 
Brogden, supra. 

Where an allegation is made against a person in a privileged document, 
e.g., a parliamentary paper, a comment upon that allegation by a person, 
other than the person making the allegation, may be fair comment, even 
though the allegation be untrue. Mangena v. Wright, 78 L. J-. K. B. 879; 
[1909] 2 K. B. 958. 

Publication in newspapers of reports of public meetings .^ At common law 
there was no privilege for the publication in a newspaper, of ex parte 
defamatory statements made at a meeting of a metropolitan vestry, but, by 
the Law of Libel Amendment Act, 1888 (51 & 52 V. c. 64), s. 4, " A fair and 
accurate report published in any newspaper of the proceedings of a public 
meeting, or (except where neither the public nor any newspaper reporter is 
admitted) of any meeting of a vestry, town council, school board, board of 
guardians, board or local authority formed or constituted under the provisions 
of any Act of Parliament, or of any committee appointed by any of the 
above-mentioned bodies, or of any meeting of any commissioners authorized 
to act by letters patent. Act of Parliament, warrant under the royal sign 
manual, or other lawful warrant or authority, select committees of either 
house of parliament, justices of the peace in quarter sessions assembled for 
administrative or deliberative purposes, and the publication at the request 
of any government office or department, officer of state, commissioner of 
police, or chief constable of any notice or report issued by them for the 
information of the public, shall be privileged, unless it shall be proved that 
such report or publication was published or made maliciously ; provided 
that nothing in this section shall authorize the publication of any blas- 
phemous or indecent matter; provided also, that the protection intended to 
be afforded by this section shall not be available as a defence in any proceed- 
ings if it shall be proved that the defendant has been requested to insert 
in the newspaper, in which the report or other publication complained of 
appeared, a reasonable letter or statement by way of contradiction or explana- 
tion of such report or other publication, and has refused or neglected to insert 
the same ; provided further, that nothing in this section contained shall be 
deemed or construed to limit or abridge any privilege now by law existing, 
or to protect the publication of any matter not of public concern and the 
publication of which is not for the public benefit. 

' ' For the purposes of this section ' public meeting ' shall mean any meeting 
bond fide and lawfully held for a lawful purpose and for the furtherance or 
discussion of any matter of public concern, whether the admission thereto be 
general or restricted." See Sharman v. Merritt & Hatcher, 32 T. L. E. 360. 

By sect. 1, in the construction of this Act the word " newspaper " has the 
same meaning as in the stat. 44 & 45 V. c. 60, s. 1. 

Publication of parliamentary papers.1 The publication of a defamatory 
libel on a private person could not at common law be justified by merely 
showing that it was part of the printed proceedings of the House of Commons, 
published by order of the House. Stockdale v. Hansard, 8 L. J. Q. B. 294; 
9 Ad. & B. 1. But by 3 & 4 V. v;. 9, s. 1, all proceedings taken against 
persons acting under the authority of either house, for the publication of 
reports, papers, votes or proceedings of either house, shall be stayed on pro- 
duction of a certificate of the lord chancellor, speaker, clerk of the parliament, 
or clerk of the House of Commons as to the authority for their publication. 
And, by sect. 2, in case of any proceedings for publishing a copy of such 

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Truth of Libel, Sc. — Accord and Satisfaction. 755 

report, paper, &c., the defendant may, at any stage of the proceeding, lay 
before the court the report, paper, &c., and the copy; and upon verifying the 
report, &c., and the correctness of the copy by affidavit, the proceedings shall 
be stayed. By sect. 3, in any proceedings commenced for printing any extract 
or abstract of such report, &c. , the defendant may under the general issue, 
give in evidence the report, &c., and show that the extract or abstract was 
published bond- fide, and without malice : and if such be the opinion of the 
jury, a verdict of not guilty shall be entered. Mangena v. Wright, 
78 L. J. K. B. 879; [1909] 2 K. B. 958. 

Evidence of the truth of the libel or words.] "Where the defendant admits 
the publishing or speaking of the libel or words, he cannot without pleading 
their truth, give evidence of it even in mitigation of damages, for the matter 
might have been pleaded as a defence to the action. Smith v. Richardson, 
Willes, 20; 1 Wms. Saund. 120 (1). But evidence admissible and pertinent 
under another issue, cannot be excluded, merely because it happens incident- 
ally to prove the truth of the libel. Manning v. Clement, 7 Bing. 362; 
9 L. J. (0. S.) C. P. 60. In support of a defence alleging the truth of the 
libel, the defendant cannot prove that the same charges were previously 
published in another publication, and that the plaintiff took no steps in con- 
sequence thereof. R. v. Newman, 1 B. & B. 268 ; 22 L. J. Q. B. 156. When 
the libel imputes to the plaintiff the commission of a murder under aggravat- 
ing circumstances, it is necessary to justify the aggravating portion as well 
as the substantial charge of crime. Helsham v. Blackwood, 11 C. B. Ill; 
20 L. J. C. P. 187. Where a felon has undergone the sentence passed on him 
for the felony, this operates, under 9 G-. 4, c. 32, s. 3, as a pardon, and a 
libel calling him a felon cannot then be justified. Leyman v. Latimer, 
47 L. J. Ex. 470; 3 Ex. D. 353. Such a libel could be proved only by proof 
that the plaintiff had actually committed the felony ; proof of conviction only 
is insufficient. S. C. Where a railway company stated in a notice, that 
the plaintiff had been fined, with an alternative of three weeks' imprison- 
ment, when the period was really 14 days, it was held that it was a question 
for the jury, whether the libel was substantially true. Alexander v. N. E. 
Ry., 6 B. & S. 240; 34 L. J. Q. B. 152. See also Gwynn v. S. E. By., 
18 L. T. 738. 

Where the plaintiff gives evidence of actual malice, by showing that the 
words or matter charged were false to the knowledge of the defendant, the 
defendant may, under a denial of the publication being malicious, give 
evidence to rebut the plaintiff's proofs in this respect, by showing that, to 
the defendant's knowledge, the words or matter charged are true. Starkie on 
Libel, 6th ed. 557. See Fountain v. Boodle, 3 Q. B. 5. 

Where the claim alleges that the libel means that the plaintiff acted 
dishonestly in a certain matter, and further, that he is of dishonest character 
and not fit to hold a position of trust, the defendant who pleads justification 
will be allowed to give particulars of other dishonest acts by the plaintiff 
besides those referred to in connection with the special matter mentioned. 
Maisel v. Financial Times (No. 1), 84 L. J. K. B. 2145. Particulars in 
support of a plea of justification of a libel upon character and reputation, 
which allege acts occurring after the publication of the libel may be 
admissible, if the acts have occurred within a reasonable time after its 
publication. Maisel v. Financial Times {No. 2), 84 L. J. K. B. 2148 ; [1915] 
3 K. B. 336. 

Accord and satisfaction.^ Accord and satisfaction is a good defence to this 
action, if pleaded. Lane v. Applegate, 1 Stark. 97. In Boosey v. Wood, 
3 H. & C. 484; 34 L. J. Ex. 65, a defence that, after the commencement of 
the suit, the plaintiff and the defendant agreed together to accept inutual 
apologies, to be published by them in their weekly journal, in satisfaction of 
the right of action, and that these apologies were published accordingly, was 

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756 Action for Defamation. 

Statute of Limitations.^ By the Limitation Act, 1623, 21 J. 1, u. 16, o. 3, 
actions upon the case (other than slander) must be brought within six years 
after the cause of such action ; and actions upon the case for words , within 
two years after the words spoken. Hence the period of limitation in an 
action of libel is six years. The sale of each copy of a libel being a separate 
publication, proof of the sale of a single copy within six years rebuts the 
defence. Brunswick (Duke) v. Harmer, 19 L. J. Q. B. 20; 14 Q. B. 185. 
The same period applies to an action for words actionable only by reason of 
special damage; Saunders v. Edwards, 1 Sid. 95; but in the case of words 
actionable per se, or by reason of their having been spoken of the plaintiff 
in his trade or business, the period is two years ; S. C. ; even though special 
damage is alleged in the etatement of claim. See Turner v. Horton, Willes, 
438 ; Grenfell v. Pierson, 1 Dowl. 406 ; decided on sect. 6. 

Evidence that the words were first spoken by anotlier.^ It is no defence 
to an action for slander, for the defendant to show that he heard it from 
another person, whom he named at the time, or that he heard it as a 
rumour, without showing that the defendant believed it to be true, and 
that he spoke the words on a justifiable occasion. M'Pherson v. Daniels, 
10 B. & C. 263; 8 L. J. (0. S.) K. B. 14; Watkin v. Hall, 37 L. J. Q. B. 
125 ; L. K. 3 Q. B. 396 ; otherwise this evidence is admissible, if at all, only 
where the defendant , at the time of speaking the words , gave the name of the 
person from whom he heard_ the slander, when it may perhaps be used in 
mitigation of damages. Bennett v. Bennett, 6 C. & P. 588; see also De 
Crespigny v. Wellesley, 5 Bing. 392; 7 L. J. (0. S.) C. P. 100; and Tidman 
Y. Ainslie, 10 Ex. 63. 

Evidence in mitigation of damages.^ By Eules, 1883, 0. xxi, r. 4, " No 
denial or defence shall be necessary as to damages claimed or their amoimt ; 
but they shall be deemed to be put in issue in all cases, unless expressly 
admitted." Hence any legal evidence may be given in mitigation of 
damages, although its effect has not been raised by the defence. But by 
0. xxxvi., r. 37, " In actions for libel or slander, in which the defendant 
does not, by his defence, assert the truth of the statement complained of, the 
defendant shall not be entitled, on the trial, to give evidence in chief, with a 
view to mitigation of damages, as to the circumstances under which the libel 
or slander was published, or as to the character of the plaintiff, without the 
leave of the judge, unless seven days at least before the trial, he furnishes 
particulars to the plaintiff of the matters as to which he intends to give 
evidence." This rule has not altered the common law rule as laid down in 
Scott V. Sampson, 51 L. J. Q. B. 380; 8 Q. B. D. 491; so held in Mangena 
V. Wright, 78 L. J. K. B. 879; [1909] 2 K. B. 958. 

The following cases decided prior to the above rules are cited as illustrating 
what evidence is admissible in mitigation of damages : — 

It was formerly held, that where the defendant pleaded the general issue 
without a justification, he might prove that the plaintiff had been generally 
suspected of the offence imputed to him by the defendant. Leicester (Earl) 

V. Walter, 2 Camp. 261; v. Moor, 1 M. & S. 284. But Abbott, C.J., 

refused to admit proof of rumours in Waithman v. Weaver, D. & Ey., N. P. 
10; 11 Price, 257, u. ; and it was afterwards decided that general evidence 
of the plaintiff's bad character was not admissible in action for a libel. 
■Jones Y. Stevens, 11 Price, 235. Such evidence was, however (see 2 Starkie, 
Evid. 3rd ed., 642, n (e)), admitted by M. Tenterden in Mawhy v. Barber, 
and by Ld. Denman, C.J., after consulting Parke, B., at York Spring 
Assizes, 1836, in Moore v. Ostler, where the defendant was allowed to give 
such general evidence, but not to go into particulars; and by the Q. B. in 
Duncombe v. Daniel, cited 7 Dowl. 472. So, in Richards v. Richards, 
2 M. & Bob. 557, where the slander imputed to the plaintiff that he had been 
notoriously guilty of an offence, Cresswell, J., after conferring with Wight- 
man, J., admitted proof of rumours, current in the plaintiff's neighbourhood 
before the uttering of the words, in mitigation under the general issue. The 

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Evidence in Mitigaiicm, of Damages. 757 

defendant cannot, however, ask as to rumours after the slander complained 
of, as these rumours may have been occasioned by the slander. Thompson 
V. Nye, 16 Q. B. 175; 20 L. J. Q. B. 85. In Bell v. Parke, 11 Ir. C. L. E. 
413, in an action by an of&cer for slander, in charging him with stealing a 
watch, the statement of an officer of the same regiment, that he had heard 
rumours that the plaintiff had committed the particular offence imputed to 
him by the slander, was rejected : as it was said by the court that the cases 
show that evidence of reputation, as to the plaintiff being guilty of some 
vicious or criminal habit, can alone be admitted to disprove malice on the 
part of the defendant, but that he cannot rely upon rumours charging the 
plaintiff with some particular offence. The above cases were reviewed in- 
Scott T. Sampson, 51 L. J. Q. B. 380 ; 8 Q. B. D. 491, in which case a 
justification was pleaded, and it was there held that evidence of rumours 
before the publication of the libel, that the plaintiff had done what was 
charged in it, or of facts showing the misconduct of the plaintiff, were not 
admissible, though general reputation would have been admissible. The 
defendant may in mitigation rely on the plaintiff's conduct in provoking 
the libel. Kelly v. Sherlock, L. R. 1 Q. B. 686. 

Though the defendant could not show in justification that the libel is a 
correct report of a preliminary or ex parte proceeding, yet he might, under 
the general issue, give in evidence the correctness of the report, in mitigation 
of damages. East v. Chapman, M. & M. 46 ; Charlton v. Watton, 6 C. & P. 
385. So, where the defendant published an imperfect account of a trial, 
which was libellous, he was allowed in mitigation, under the general issue, to 
show that he had copied the statement from another newspaper, but not that 
it had appeared in other newspapers, which he did not appear to have 
followed. Saunders v. Mills, 6 Bing. 213; 8 L. J. (0. S.) 0. P. 24. This 
last case was said by Ld. Denman in Talbutt v. Clark, 2 M. & Eob. 312, 
to have been questioned, and he refused to allow the defendant, the editor 
of a newspaper, to show that the libel had been taken from a letter written 
and signed by the newspaper correspondent. Accordingly in Greevy v. Carr, 
7 C. & P. 64, G-umey, B., after conferring with six other judges, sitting in 
the Ex. Ch. , rejected evidence to the effect that the libel had appeared in a 
newspaper, against which the plaintiff had proceeded and recovered damages, 
but allowed the defendant to show that he had taken his report from that 
newspaper. 

By the Libel Act, 1843 (6 & 7 V. c. 96), s. 1, the defendant may (after 
notice in writing given at the time of delivering the defence) show, in 
mitigation, that he made or offered an apology before action brought, or as 
soon after as he had an opportunity, in case the action was commenced before 
he had an opportunity. Sect. 2 permitted, in the case of libels in newspapers 
and other periodical publications, a special defence that the libel was inserted 
without actual malice, or gross negligence, the publication of a full apology, 
and payment of money into court. See Ghadwick v. Herapath, 16 L. J. 
C. P. 104; 3 C. B. 885; O'Brien v. Clement, 15 L. J. Ex. 285; 
15 M. & W. 435. So much of the section as allowed payment into court was 
repealed by 42 & 43 V. c. 59 and 46 & 47! V. u. 49, s. 4, and payment into 
court is now made under Eules, 1883, 0. xxii., r. 1, which will operate as an 
admission of liability. The apology must be not only sufficient in its terms, 
but also inserted in a sufficiently conspicuous part of the paper, and in 
suitable type : if on issue joined the jury find the apology to be in any of 
these respects insufficient, there must be a verdict for the plaintiff. Lafone 
V, Smith, 3 H. & N. 735; 28 L. J. Ex. 33; Risk Allah Bey v. Johnstone, 
18 L. T. 650. In such a case, where the defence is negatived by the jury, 
damages should be assessed irrespectively of the money paid into court. 
See Lafone v. Smith, 4 H. & N. 158; Jones v. Mackie, 37 L. J. Ex. 1; 
L. E. 3 Ex. 1, and Eules 0. xxii., r. 6 (c). In such case the defendant 
cannot rely on the payment into court as having been made apart from the 
statute. Oxley v. Wilkes, 67 L. J. Q. B. 678; [1898] 2 Q. B. 56; Slay v. 

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768 Acting for Slander of Title. 

The Law of Libel Amendment Act, 1888 (51 & 52 V. c. 64), s. 6, provides 
that, " At the trial of an action for a libel contained in any newspaper the 
defendant shall be at liberty to give in evidence in mitigation of damages 
_that the plaintiff has already recovered (or has brought actions for) damages 
or has received or agreed to receive compensation in respect of a libel or 
libels to the same purport or effect as the libel for which such action has been 
brought. ' ' 



ACTION FOE SLANDER OP TITLE. 

This is not strictly an action for defamation, but an action for special 
damage to the plaintiff by a false and malicious statement affecting his title 
to property. Malachy v. Soper, 6 L. J. C. P. 32; 3 Bing. N. C. 371. It is 
immaterial whether the words be written or spoken. S. C. To support it, 
the statement must be false; Pater v. Baker, 16 L. J. C. P. 124; 3 C. B. 
831; and Rowe v. Roach, 1 M. & S. 405, is not law; and must be made 
maliciously; Brook v. Bawl, 19 L. J. Ex. 114; 4 Ex. 521; and the damage 
must have arisen from the words so uttered. S. C. ; Dicks v. Brooks, 
49 L. J". Ch. 812; 15 Ch. D. 22. If the defendant, being interested and 
not a mere stranger, make the statement, though untrue, bond fide and 
on reasonable grounds, he is not liable. Pitt v. Donovan, 1 M. & S. 639; 
Watson V. Reynolds, M. & M. 1 ; Wren v. Weild, 38 L. J. Q. B. 327 ; 10 B. 
& S. 51; Steward v. Young, 39 L. J. C. P. 85 ; L. E. 5 C. P. 122. See R. 
Baking Powder Go. v. Wright, Grossley dc Co., 18 Eep. Pat. Gas. 95, 99. The 
action lies at the suit of the legal or equitable owners of the property. 
Dunlop Pneumatic Tyre Co. v. Maison Talbot, 20 T. L. E. 88 ; 
reversed on the facts. Id. 579. The actual words used must be set out 
in the claim, it is not sufficient merely to state their effect. Gutsole v. 
Mathers, 5 L. J. Ex. 274; 1 M. & "W. 495. This action is not an action on 
the case for words within 21 J. 1, c. 16, o. 3, and the period of limitation is 
therefore six and not two years. See Law v. Harwood, Cro. Car. 141. 

Where the plaintiff sued the defendant for falsely and maliciously writing 
to manufacturers, and warning them against using the plaintiff's machine, 
on the ground that it was an infringement of the defendant's patent; it was 
held that " the action could not lie, unless the plaintiff affirmatively proved 
that the defendant's claim was not a bond fide claim, in support of a right 
which, with or without cause, he fancied he had, but a maid fide and 
malicious attempt to injure the plaintiff, by asserting a claim of right, 
against his own knowledge that it was without any foundation." Wren v. 
Weild, 38 L. J. Q. B. 327; L. E. 4 Q. B. 730; Halsey v. Brotherhood, 
61 L. J. Ch. 233; 19 Ch. D. 386. In such case, where it was shown that the 
defendant had a subsisting patent, the plaintiff could not adduce evidence at 
the trial, to show that the patent was void, by reason of want of novelty. 
Wrm, V. Weild, supra. Now by the Patents and Designs Act, 1907, 7 E. 7, 
c. 29, s. 36, as amended by the schedule to the Patents and Designs Act, 
1919 (9 & 10 G-eo. 5, c. 80) " Where any person claiming to have an interest 
in a patent by circulars, advertisements, or otherwise, threatens any other 
person with any legal proceedings or liability in respect of any alleged 
infringement of the patent, any person aggrieved thereby may bring an 
action against him, and may obtain an injunction against the continuance 
of such threats, and may recover such damage (if any) as he has sustained 
thereby, if the alleged infringement to which the threats related was not in 
fact an infringement of the patent : Provided that this section shall not apply 
if an action for infringement of the patent is commenced and prosecuted 
with due diligence." An action brought under this section is known as a 
" threats action." A threat by private letter is within this section. 
Driffield Cake Go. v. Waterloo Mills Co., 55 L. J. Ch. 391; 31 Ch. D. 638; 

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Injunction. 759 

even although it is addressed to a third person, and in answer to an inquiry. 
Skinner v. Shew, 62 L. J. Ch. 196; [1893] 1 Ch. 413. So is a solicitor's 
letter before action. Combined Weighing Co. v. Automatic Weighing Co., 
58 L. J. Ch. 709 ; 42 Ch. D. 665. It may be contained in a circular addressed 
to the plaintiff's customers, and not being a mere general warning. Johnson 
V, Edge, 61 L. J. Ch. 262; [1892] 2 Oh. 1. And the plaintiff in such case is 
entitled to an inquiry as to damages. S. C. It is no defence that what the 
defendant did was done bond fide, or on a privileged occasion. Skinner v. 
Shew, supra. In an action under this section the plaintiff must show that 
there has been no infringement by him ; Barney v. United Telephone Co., 28 
Ch. D, 394 ; he may impeach the validity of the defendant's patent. Kurtz v. 
Spmce, 36 Ch. D. 770; Challender v. Royle, 56 L. J. Ch. 995; 36 Ch. D. 425. 
An action, to satisfy the proviso, may be brought against any of the persons 
threatened. S. C. The time within which it must be brought has reference to 
the date of the threats; S. C. ; having regard to all the circumstances. 
Galley v. Hart, 59 L. J. Ch. 308 ; 44 Ch. D. 179. The action need not be 
successful, the plaintiff therein may discontinue it on finding there has been 
no infringement. S. C. It may have been commenced before the threats 
action. Barrett v. Day, 59 L. J. Ch. 464 ; 43 Ch. E. 435. To be within the 
proviso, the action for infringement must be brought by the person making 
the threats, against the person whom he has threatened. Kensington 
Electric Lighting Go. v. Lane Fox Electrical Co., [1891] 2 Ch. 573; Com- 
bined Weighing Co. v. Automatic Weighing Co., supra. 

A letter from S. to the plaintiff, stating that by reason of the threats 
S. could not enter into a contract then in the course of negotiation between 
them, is admissible to prove the reason. Skinner v. Shew, 63 L. J. Ch. 826; 
[1894] 2 Ch. 581. In such case the- measure of damages is the loss occasioned 
to the plaintiff by the contract not having been carried out. S. C. 

Analogous to the action for slander of title, is an action on the case, for 
publishing, without lawful occasion, an untrue statement disparaging a 
man's goods, and thereby causing him special damage. W. Counties Manure 
Co. V. Lawes Chemical Manure Co., 43 L. J. Ex. 171; L. E. 9 Ex. 218; 
Alcott V. Millar's Karri, dc, Co., 91 L. T. 722. In such case special 
damage is essential. White v. Mellin, 64 L. J. Ch. 308; [1895] A. C. 154; 
R. Baking Powder Go. v. Wright, Crossley S Co., 18 Eep. Pat. Gas. 95; 
Lyne v. Nicholls, 23 T. L. E.. 86. And the statement by one trader W. that 
his goods are better than those of another trader H., though untrue, and 
causing loss to H. , is not actionable. Hubbock v. Wilkinson, 68 L. J. Q. B. 
34; [1899] 1 Q. B. 86. See further White v. Mellin, supra. A false and 
malicious statement made by the defendant relating to the plain- 
tiff's business the natural consequence of which was to cause a 
general loss of business as distinguished from the loss ■ of particular 
known customers, and has produced that effect, is actionable. Ratcliffe v. 
Evans, 61 L. J. Q. B. 535 ; [1892] 2 Q. B. 524; the damage may be proved 
by general evidence of the falling off of the business. S. C. The decision in 
Riding v. Smith, 45 L. J. Ex. 281; 1 Ex. D. 91, was to the same effect, 
sed gucere^ whether in that case the damage was the natural consequence of 
the words, see 61 L. J. Q. B. 540; [1892] 2 Q. B. 634. See also Evans v. 
Harries, 1 H. & N. 251; 26 L. J. Ex. 31; and Helmore v. Smith, 35 Ch. D. 
449. 

Injunction.} An injunction may be granted to restrain the publication of 
statements, likely to injure the plaintiff's trade, when they have been proved 
tu be false, and the defendant intends to repeat them. See Halsey v. Brother- 
hood, 51 L. J. Ch. 233; 19 Ch. D. 386 ; Thorley's Cattle Food Go. v. Massam, 
14 Ch. D. 763 ; Saxby v. Easterbrook, 3 C. P. D. 839. It cannot be granted 
where damages would not be recoverable. White v. Mellin; R. Baking 
Powder Co. v. Wright, Crossley S Co., supra; Dunlop Pneumatic Tyre Co. 
V. Maism Talbot, 20 T. L. E. 579. 

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760 Action for Malicious Prosecution. 



ACTION FOR MALICIOUS PBOSECUTION. 

In an action for malicious prosecution the plaintiff may, by proper defences, 
be put to the proof of — 1, the prosecution of the plaintiff ; 2, its determination ; 
3, that the defendant was the prosecutor; 4, his malice and want of probable 
cause ; and 6, the damages sustained. 

Damage necessary to support action.^ To support an action for malicious 
prosecution the plaintiff must prove one or other of the three kinds of special 
damage enumerated by Lord Holt, C.J., in Savile v. Roberts, 1 Ld. Eaym. 
374, 378, viz. : (1) damage to his fame, as if the matter whereof he is accused 
be scandalous ; (2) damage to his person, as where he is put in danger of 
losing his life or liberty; (3) damage to his property, whereby he is forced 
to expend money in necessary charges to acquit himself of the crime of which 
he is accused. A complaint under the Public Health Act against the occupier 
of a house for non-compliance with a notice to abate a nuisance in the house, 
is not in itself a proceeding calculated to involve damage against his fair 
fame, or putting him in peril of losing his liberty, sufficient' to support an 
action for malicious prosecution, even if the complaint has been preferred 
maliciously and without reasonable and probable cause. Wijfen v. Bailey, 
84 L. J. K. B. 688; [1915] 1 K. B. 600, distinguishing Bayson v. South 
London Tramways, 62 L. J. Q. B. 593; [1893] 2 Q. B. 304; where the 
allegation in the prosecution of the plaintiff was that he had travelled in a 
tramcar with intent to avoid payment of his fare. There it was held that an 
action for malicious prosecution would lie. Semble, costs incurred by the 
plaintiff in defending himself on a complaint under the Public Health Act, 
in respect of an alleged nuisance, over and above those allowed him on the 
dismissal of the complaint, do not constitute damage to his property within 
Lord Holt's third category of special damage. See per Horridge, J., in 
Wiffen V. Bailey, [1914] 2 K. B. 5, 12; and admission by counsel in S. C, in 
C. A., 84 L. J. K. B. 688, 692; [1915] 1 K. B. 600, 605. 

Evidence of prosecution.^ The fact of the prosecution, where instituted in 
the superior court or quarter sessions, is usually proved by the production of 
the record, or of an examined copy; B. N. P. 13; which is admissible in 
evidence, without inquiry into the mode by which the plaintiff became 
possessed of it. Per Ld. Tenterden, C.J., Caddy v. Barlow, 1 M. & Ey. 
277; Leggatt v. Tollervey, 14 East, 302. 14 & 15 V. u. 99, s. 13, allows 
proof to be given of the record by means of a certified copy. In an action 
for malicious prosecution by indicting the plaintiff, it is not sufficient to 
produce the original bill of indictment (unless it was ignored) , a record should 
be made up and regularly proved. Some proof of the identity of the plaintiff 
and the party prosecuted should be given. 

The Eules, 1883, 0. xxviii., r. 1, have made a variance in the charge 
made, and that stated in the claim, of comparatively small importance. 
Where the statement of claim stated a malicious charge of having feloniously 
stolen certain articles, and the proof was, that the defendant laid an informa- 
tion, in which he deposed that the articles had been stolen, and that he 
suspected and believed that they had been stolen by the plaintiff, it was held 
no variance. Davis v. Noalce, 6 M. & S. 29. See Byne v. Mome, 5 Taunt. 
187. An allegation that the defendant, maliciously and without probable 
cause, preferred an indictment, is proved, if som-e of the charges in the 
indictment were malicious, and without nrobable cause. Reed v. Taylor, 
4 Taunt. 617; Palmer v. Birmingham Manufacturing Co., 18 T. L. R. 562. 

If the proceedings were by preferring a charge before a magistrate, the 
magistrate's clerk should be served with a subpcend, duces tecum to produce 
the proceedings. When the information was laid by the defendant, his 
oath and handwriting should be proved, as also the issuing of the warrant 
to the constable, &c. The warrant must also be produced and proved, and 

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Evideruie of Determination of Prosecution. 761 

evidence must be given of the apprehension and detention of the plaintiff 
under it. 2 Stark. Bv., 3rd. ed. 679; and see Freeman v. Arkell, 2 B. & C. 
494 ; 2 L. J. (0. S.) K. B. 64. If the action be for maliciously procuring the 
plaintiff to be arrested upon a warrant on a charge of felony, and it does not 
appear that any information has been taken, evidence may be given of the 
warrant without proving any information. Newsam v. Carr, 2 Stark. 69. 
See also Clarke v. Postan, 6 C. & P. 423. 

Evidence of determination of prosecution.] It must appear that the 
prosecution is determined in the plaintiff's favour, where from their nature 
the proceedings are capable of such a termination. Arundell v. Tregono, 
Yelv. 116; B. N. P. 13; Basebi v. Matthews, 36 L. J. M. C. 93; L. E. 2 
C. P. 684; and see Castrique v. Behrens, 3 E. & E. 709, 721 ; 30 L. J. Q. B. 
163, 168. But this rule does not apply when, as in the case of exhibiting 
articles of peace against the plaintiff, the proceedings are ex parte, and 
must of necessity terminate unfavourably to the plaintiff. Steward v. 
Gromett, 7 G. B. (N. S.) 181 ; 29 L. J. C. P. 170. The return of no bill 
by the grand jury, or the verdict of acquittal, is evidence of the determination 
of the prosecution in the plaintiff's favour. An action lies, though the plain- 
tiff was acquitted on a mere defect in the indictment. Wicks v. Fentham, 
4 T. K. 247; Pippet v. Hearn, 5 B. & A. 634. If the plaintiff were sum- 
marily convicted, the action is not maintainable, even though no appeal lay 
from the conviction. Baseb6 v. Matthews, supra. See also Bynoe v. Bank 
of England, 71 L. J. K. B. 208; [1902] 1 K. B. 467, where it was held 
that no action lies against a witness for negligently giving false evidence 
which caused the plaintiff to be wrongfully convicted of a crime, while the 
conviction stands. 

Evidence that the defendant was prosecutor.] The proper evidence to 
establish this fact is, that the defendant employed a solicitor or agent to 
conduct the prosecution ; that he gave instructions concerning it ; paid 
the expenses ; procured the attendance of witnesses, or was otherwise 
active in forwarding the prosecution. 2 Stark. Bv. , 3rd. ed., 678. Proof 
of the information of the defendant taken by the magistrate is sufficient 
for this purpose. See 2 Selw. N. P., 18th ed., 1014. Or of the recognizance 
to prosecute entered into by the defendant, though this is by no means 
conclusive, as the recognizances are often hurriedly filled up. Eagar v. 
Dyott, 5 0. & P. 4. The indorsement of the defendant's name on the bill 
is evidence that he was sworn as witness, but not of his being prosecutor. 
B. N. P. 14. One of the grand jury before whom the bill was preferred 
may be called to prove that the defendant was the prosecutor ; Sykes v, 
Dunbar, 2 Selw. N. P., 18th ed. 1015; but this has been questioned. 
Stark. Bv. 4th ed. 193, 194. Where the proceeding as before a magistrate, 
he may be called to prove it. Freeman v. Arkell, 2 B. & C. 494; 2 L. J. 
(0. S.) K. B. 64. Merely giving information to the police and leaving it (o 
them to exercise their discretion does not make the person- giving the 
information the prosecutor. Cherry v. Burton, Times, Beb. 18, 1920. In 
Sewell V. National Telephone Co., 76 L. J. K. B. 196; [1907] 1 K. B. 557, 
it was decided that the signing of a charge sheet, standing alone, is not 
evidence of anything directly causing the imprisonment of the person charged, 
and will not support an action for false imprisonment against the person 
who signs. It does not appear to have been decided what is its effect 
standing alone, in an action for malicious prosecution. Where the defen- 
dant's son, aged 17, had caused the plaintiff to be taken before a magistrate, 
by whom he was remanded, and the defendant upon hearing of the matter, 
said that as his son had begun it he would not interfere, this was held to be 
no evidence of authority or subsequent ratification by the father. Moon v. 
Towers, 8 C. B. (N. S.) 611. And where a summons was issued by the 
servant of the defendants without their knowledge, and they were merely 
informed of it, and attended the hearing, it must be proved that the prosecu- 
tion was proceeded \£%;fee®^ Al^JPO*0#@o°able or probable cause. 



762 Action for Malicious Prosecution. 

Weston V. Beeman, 27 L. J. Ex. 57. As to the authority o£ a Eervant to 
prosecute so as to make his master liable, see Bank of New S. Wales v. 
Owston, 48 L. J. P. C. 2S ; 4 App. Cas. 270. 

Evidence of Malice.] It is essential that the plaintiff should give gome 
evidence of the defendant's malice, where it is denied. Porter v. Weston, 
8 L. J. C. P. 349; 6 Bing. N. C. 715; Watsrni v. Smith, 15 T. !>. E. 473. 
Personal enmity is evidence of malice, but any indirect motive is sufficient. 
Proof of an acquittal for want of prosecution is not even priniA facie evidence 
of malice. Purcell v. Macnamara, 9 Bast, 361. If the plaintiff prove want 
of probable cause, malice may be inferred. Burley v. Bethune, 5 Taunt. 583 ; 
Heath v. Heape, 26 L. J. M. C. 49. But for this purpose, the want of prob- 
able cause must be proved to the satisfaction of the jury. Hicks v. Faulkner, 
51 L. J. Q. B. 268, 273 ; 8 Q. B. D. 167, 175 ; Quartz Hill Gold Mining Co. v. 
Eyre, 62 L. J. Q. B. 488, 492; 11 Q. B. D. 674, 687. The want of probable 
cause is not conclusive evidence of malice. Mitchell v. Jenkins, 3 L. J. K. B. 
35 ; 5 B. & Ad. 688; but is only evidence for the jury together with the other 
facts of the case. Brown v. Hawkes, 61 L. J. Q. B. 151 ; [1891] 2 Q. B. 
718. See also Meering v. Grahame-White Aviatimi Co., 122 L. T. 44. A 
finding that the defendant honestly believed in the guilt of the plaintiff 
negatives malice. Watson v. Smith, supra. But where this finding was 
accompanied by another that the defendant was actuated by malice in 
prosecuting the plaintiff it was held that the defendant's honest belief not 
being in the circumstances reasonable, the finding of malice was sufficient 
to entitle the plaintiff to succeed. Cruise v. Burke, [1919] 2 I. E. 182. 
Where an agent of the defendant, in his absence and without his knowledge, 
summoned the plaintiff on a charge of felony, which was dismissed, the defen- 
dant being present at the hearing only, the want of probable cause was held to 
be no evidence of malice against him. Weston v. Beeman, supra. Proof that 
the defendant published an advertisement of the finding of the indictment, 
with other scandalous matter, is evidence of malice. Chambers v. Robinson, 
Str. 691. See Caddy v. Barlow, 1 M. & Ey. 275; Haddrick v. Heslop, 17 
L. J. Q. B. 313; 12 Q. B. 267. The question of malice must in terms be left 
to the jury. Payne v. Bevans, 9 W. E. 693. 

It «,eems that a corporation can be guilty of malice, so as to be liable to 
this action. Edwards v. Midland By., 50 L. J. Ex. 281; 6 Q. B. D. 287; 
Comford V. Carlton Bank, 68 L. J. Q. B. 196 ; [1899] 1 Q. B. 392, affirmed 
(the defendant's counsel not arguing the point), 68 L. J. Q. B. 1020; [1900] 

I Q. B. 22; see also Bank of New S. Wales v. Owston, supra; and Citizens 
Life Assur. Co. v. Brown, 73 L. J. P. C. 102; [1904] A. C. 423; Pratt v. 
British Medical Association, 88 L. J. K. B. 628; [1919] 1 K. B. 244. The 
authorities secus, are Stevens v. Midland Counties By., 10 Ex. 352; 23 L. J. 
Ex. 328; Abrath v. N. E. By., 56 L. J. Q. B. 457, 458; 11 App. Cas. 247, 
250. 

Evidence of want of reasonable and probable cause — Question, how 
determined.] The onus of proving the want of reasonable and probable 
cause, and of proving the existence of such facts as are evidence of such 
want, lies on the plaintiff. Abrath v. N. E. By., 55 L. J. Q. B. 457; 

II App. Cas. 247; Walker v. S. E. By., 39 L. J. C. P. 346; L. E. 5 C. P. 
640; Cox V. English, Scottish and Australian Bank, 74 L. J. P. C. 62; [1905] 
A. C. 168. Where the prosecution was before a magistrate, this proof is 
frequently given, by putting the depositions taken before him, in evidence. 
S. C. A certified copy may be obtained from the magistrate's clerk, by aid 
of a fiat of the Att.-Gen., if necessary. In Lea v. Charrington, 5 T. L. E. 
218, 219, Grantham, J., after consultation with Cave, J., said that in su<'h 
actions, unless the plaintiff put in the depositions he would be nonsuited, 
and that it. had been so decided in an unreported case tried by Hawkins, J., 
and affirmed in C. A. 

Where there are no facts, nor any inference from facts, in dispute, 
" reasonable and probable cause " was always held to be a question tn 'oe 

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Evidence of Want of Reasonable and Probable Cause. 763 

determined by the judge alone. Panton v. Williams, 10 L. J. Ex. 545; 
2 Q. B. 169; Michell v. Williams, 12 L. J. Ex. 193; 11 M. & W. 205; 
Bradshaw v. Waterlow, 85 L. J. K. B. 318; [1915] 3 K. B. 527, where it 
was eaid that the question whether the defendant took reasonable care to 
inform himself of the facta before he instituted the prosecution ought not to 
be left to the jury unless there is some evidence of his not having made proper 
inquiries. Where, however, the question of reasonable and probable cause 
depends on numerous and complicated facts, and inferences to be derived from 
them the question must be decided by the judge in this case also; it is his 
duty to inform the jury, if they find the facts proved, and the inferences to 
be warranted by such facts, that the same do, or do not, amount to reasonable 
and probable cause, so as thereby to leave the question of fact to the jury, 
and the abstract question of law to the judge. Panton v. Williams, supra; 
Lister v. Perryman, 39 L. J. Ex. 177 ; L. E. 4 H. L. 521 ; Brown v. Hawkes, 
61 L. J. Q. B. 151; [1891] 2 Q. B. 718; Hilliar v. Dade, 14 T. L. E. 584. 
In a case in which the defendant had preferred an indictment for an assault, 
committed in removing him from the plaintiff's house, the judge told the jury 
that if the defendant knew he was in the wrong when he preferred the indict- 
ment, then there was no probable cause : held, that this must be taken to have 
meant, was the assault committed under circumstances, that no reasonable 
man could have supposed that it was excessive? and that therefore the direc- 
tion was substantially correct. Hinton v. Heather, 15 L. J. Ex. 39; 
14 M. & W. 131. It is the practice for the judges at Nisi Priua to give 
hypothetical directions to the jury, or to submit to them certain facts, 
and then upon receiving their finding upon them, to decide as to reason- 
able and probable cause. As, however, as has been before stated, the 
decisions of questions of disputed fact, the motive and malice of the 
defendant, his knowledge of those facts, and belief in the plaintiff's guilt, 
and in the existence of probable cause, are all questions for the jury. 
See Turner v. Ambler, 16 Xj. J. Q. B. 158; 10 Q. B. 252; Chapman v. 
Heslop, 23 L. J. Q. B. 49; Douglas v. Corbett, 6 E. & B. 611; Shrosbery v. 
Osmaston, 37 L. T. 792; Hicks v. Faulkner, 51 L. J. Q. B. 268; 8 Q. B. D. 
167. Where there is a defence stating certain facts, as constituting reason- 
able and probable cause, it is sufficient to prove so much of the defence as, 
in the opinion of the judge, constitutes reasonable and probable cause. 
Hailes v. Marks, 7 H. & N. 56 ; 30 L. J. Ex. 389. If the Attorney-General 
has granted his fiat for the prosecution, and the facts have been fairly laid 
before him, it cannot be said that there was an absence of reasonable and 
probable cause. Bradshaw v. Waterlow, supra. 

No definite rule can be laid down as to what amounts to reasonable and 
probable cause ; the judge must determine the question on the facts of each 
case. Lister v. Perryman, supra. " In order to justify a defendant there 
must be a reasonable cause — such as would operate on the mind of a discreet 
man ; there must also be a probable cause — such as would operate on the 
mind of a reasonable man; at all events such as would operate on the mind 
of the party making the charge ; otherwise there is no probable cause for 
him." Broad v. Ham, 5 Bing. N. C. 722, 725; 8 L. J. C. P. 357, 358; 
Lister v. Perryman, supra; Shrosbery v. Osmaston, supra. If a man act 
bond fide,-n-pon the honest belief of the truth of statements made to him by 
others, whom he believes to be credible persons, he is justified in acting 
upon such statements, if he believe there is reasonable and probable cause 
for so doing. Ghatfield v. Cornford, 4 P. & F. 1008. See also Abrath v. 
N. E. By., 55 L. J. Q. B. 457; 11 App. Cas. 247; and Walker v. S. E. By., 
39 L. J. C. P. 346; L. E. 5 C. P. 640. So, where the defendant, acting on 
the faith of information given to him by his own coachnian, the most material 
part of which was derived from E., gave the plaintiff into custody, without 
making any personal inquiry of E. : it was held that the mere absence of 
such inquiry, did not show the absence of reasonable and probable cause. 
Lister v. Perryman, 39 L. J. Ex. 177 ; L. E. 4 H. L. 521. See also Brown 
V. Hawkes, 61 L. J. Bi^^^t^mhrhSoM^^' '""^ ^"""^ "■ ^''"^' 



764 Actum for Malicious Prosecution. 

79 L. J. P. C. 25; [1909] A. C. 549. And if a man's recollection be 
ordinarily trustworthy, he is justified in honestly acting on it, although he 
is mistaken in the particular instance, in which he so acts. Hicks v. 
Faulkner, 51 L. J. Q. B. 268 ; 8 Q. B. D. 167. The question whether the 
defendant honestly believed in the charge which he made ought not to be left 
to the jury unless there is some evidence of the absence of that belief. Brad- 
shaw V. Waterlow, 85 L. J. K. B. 318; [1915] 3 K. B. 527. 

Proof of the strongest malice is no evidence of want of probable cause, 
if it be proved that the defendant was cognizant of circumstances which 
led to a legal and reasonable suspicion that the plaintiff was guilty of an 
offence against the law, and upon which he might have acted. Johnstone 
V. Sutton, 1 T. E. 545; Turner v. Turner, Gow, 20. But, if it can clearly 
be proved that the defendant, under such circumstances, did not believe 
that he had a legal right to prosecute, this is evidence of want of reasonable 
cause. Turner v. Ambler, 16 L. J. Q. B. 158; 10 Q. B. 252. Therefore in 
Delegal v. Highley, 6 L. J. C. P. 337 ; 3 Bing. N. C. 950, the defendant was 
required to show that, at the time of the prosecution, he knew of the facts 
upon which he relied as a defence. And the belief or disbelief of the defen- 
dant, is a question for the jury; Taylor v. Willans, 2 B. & Ad. 845 ; 1 L. J. 
K. B. 17, where also it is said that slight evidence of the defendant's know- 
ledge of the insufficiency of his charge, is all that is required, as it is 
difficult to prove a negative. Abandoning the prosecution is not, of itself, 
sufficient evidence of want of probable cause. Incledon v. Berry, 1 Camp. 
203, n. Nor, neglecting to prefer an indictment after a charge laid. Wallis 
V. Alpine, Id., 204, n. ; Willans v. Taylor, 6 Bing. 183; 7 L. J. (0. S.) C. P. 
250. So, proof that the bill was thrown out by the grand jury has been held 
no evidence of the want of probable cause; Byne \. Moore, 5 Taunt. 187 ; but 
in Nicholson v. Goghill, 4 B. & C. 21, 23, it was said obiter by the court, that 
evidence of the bill having been thrown out by the grand jury is sufficient to 
warrant an inference of the absence of probable cause ; at least where the facts 
are wholly within the defendant's knowledge. Where the defendant charged 
the plaintifl! with felony, the taking being under a claim of lien, an^* defendant, 
after the apprehension of the plaintiff, admitted to him, " that he knew that 
he (plaintiff) did not intend to steal the article taken," it was held evidence 
of want of probable cause. Huntley v. Simson, 2 H. & N. 600; 27 L. J. 
Ex. 134; and see Venafra v. Johnson, 10 Bing. 301; 3 L. J. C. P. 51; 
Musgrave v. Newall, 5 L. J. Ex. 227 ; 1 M. & W. 582. 

If the defendant have laid all the facts of the case fully and fairly before 
counsel, and acted bond fide upon the opinion given (however erroneous it 
may be) it will be evidence to prove probable cause. Per Bayley, J., Bavenga 
V. Mackintosh, 2 B. & C. 697 ; Hewlett v. Crutchley, 5 Taunt. 277 ; Abrath 
V. N. E. By., supra. See also Bostock v. Ramsey, 16 T. L. E. 18. There 
an urban council, acting on the advice of counsel, indicted the plaintiff, whose 
servant in his absence obstructed a highway. The plaintiff was acquitted. 
It was held that there was evidence of reasonable and probable cause and no 
evidence of malice. It has been said that where the facts lie in the 
knowledge of the defendant himself, he must show probable cause, though 
the indictment was found by the grand jury ; otherwise the plaintiff shall 
recover without proving express malice. Parrott v. Fishwick, B. N. P. 14. 
But, this position is not supported by another report of the same case, 
y Bast, 362, n., from which it appears that the plaintiff having been acquitted 
upon the indictment, Ld. Mansfield said, " it was not necessary to prove 
express malice, for if it appeared that there was no probable cause, that was 
sufficient to prove an implied malice, which was all that was necessary to be 
proved to support this action ; for in this case all the facts lay in the 
defendant's own knowledge, and if there was the least foundation for the 
prosecution, it was in his power and incumbent on him to prove it." It 
seems therefore from this last report that some evidence of want of probable 
cause had been given, from which malice was inferred, and that the question 
was, whether it was incumbent upon the plaintiff to go further. Where the 

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Evidence of Want of Reascmable and Prohahle Cause. 765 

defendant was the only witness upon the indictment, Ld. Kenyon held that 
the proof of malice lay upon the plaintiff. Sykes v. 'Dunbar, 1 Camp. 202, n. 
But, it would eeem that by the word malice in this case, absence of belief 
on the part of the defendant, that he had acted legally, was meant. 

Where the defendant presented two bills for perjury against the plaintiff, 
but did not himself appear before the grand jury, and the bills were ignored; 
he then presented a third bill, and upon his own testimony it was found. 
The prosecution was kept suspended by the defendant for three years, till the 
plaintiff took the record down to trial, when the defendant declined to appear 
as » witness, although in court and called; the plaintiff was acquitted. It 
was held that this was primd facie evidence of want of probable cause. 
Willans v. Taylor, 6 Bing. 183; 7 L. J. (0. S.) C. P. 250; 2 B. & Ad. 845; 
1 L. J. K. B. 17. 

Proof of circumstances attending a felony, which might have justified the 
defendant in making inquiries concerning the plaintiff, do not amount to 
evidence of reasonable and probable cause. Busst y. Gibbons, 30 L. J. Ex. 
75. And where it appeared that the plaintiff refused to give up a forged 
note, which he had taken in the course of business, to the defendant, a bank 
inspector; and the defendant, in the absence of all circumstances of suspicion, 
charged the plaintiff before a magistrate with feloniously having the note in 
his possession : this was held to be evidence of want of probable cause. 
Brooks V. Warwick, 3 Stark. 389. 

Where an action is for a malicious indictment for perjury, in which there 
are several assignments of perjury, the plaintiff is entitled to recover, if he 
show that as to one of them there was no probable cause. R. v. Prosser, 
cited 1 T. B. 533 ; Delisser v. Towne, 1 Q. B. 333. Where the plaintiff's 
counsel offers no evidence as to the want of probable cause, for one of the 
several assignments of perjury in the indictment, it is not competent for 
the defendant to show probable cause as to that. Ellis v. Abrahams, 15 
Ij. J. Q. B. 221 ; 8 Q. B. 709. 

The observations of the judge on the trial of the indictment, tending to 
cast censure on the mode in which the prosecution had been conducted, were 
admitted for the plaintiff, by Littledale, J., in Warne v. Terry, Winton Sum. 
Ass. 1836, on the same principle on which the hesitation of the jury had been 
held by Lord Kenyon to be evidence by the defendant of probable cause (see 
Smith V. Macdonald, 3 Esp. 7) ; but in Barker v. Angell, 2 M. & Bob. 
371, Ld. Denman, C.J., refused to admit such proof, and in Wetzlar v. 
Zachariah, 16 L. T., 432, Mellor, J., refused to admit evidence of what a 
magistrate said in dismissing the charge against the plaintiff, on the ground 
that, although it was said in the defendant's presence, the defendant had no 
opportunity of replying to it. And upon this ground it would seem that 
such evidence is not admissible in either case. At most, it only shows the 
opinion of the judge or jury (or some of the jury) on the evidence at the 
trial of the indictment ; the evidence in the action may be very different. 

As to reasonable cause for issuing a search warrant for a woman under 48 
& 49 V. u. 69, o. 10, see Hope v. Evered, 55 L. J. M. C. 146 ; 17 Q. B. D. 
338. 

Damages.'] The jury may give damages for the loss of reputation, the 
imprisonment, if any has taken place, and the expenses incurred by the 
plaintiff in making his defence. B. N. P. 13. Loss of a chance of engage- 
ment in a situation, by reason of the imprisonment, is too remote to be 
recovered as damages. Hoey v. Feltmi, 11 C. B. (N. S.) 143; 31 L. J. C. P. 
105. In the case of an indictment of several persons for a conspiracy, where 
all rely on the same matter of defence, any one may be liable for and pay, 
and subsequently recover, all the costs ; but if different grounds of defence 
are relied on, the same rule does not apply. Rowlands v. Samuel, 17 L. J. 
Q. B. 65 ; 11 Q. B. 39. 

A remand is the act of a magistrate, and it seems that it may be sued for 
in this form of ^tion. ^^f^j^g^ gy/j^^^^J . Q. B. 76; 12 Q. B. 871. 



766 Action for Malicious Arrest, ic. 



Defence. 

In order to show probable cause for the prosecution, the defendant was 
allowed to prove that the jury deliberated long on the trial of the indictment. 
Smith V. Macdonald, 3 Bsp. 7. Ld. Kenyon ruled that the defendant might 
give evidence of the plaintiff's bad character ; Rodriguez v. Tadmire, 2 Esp. 
721 ; but in later cases such evidence has been refused, on the ground that it 
affords no proof of probable cause to justify the defendant. Newsam v. 
Carr, 2 Stark. 70 ; Cornwall v. Richardson, Ey. & M. 305 ; see also Downing 
V. Butcher, 2 M. & Kob. 374. The defendant cannot give evidence of 
matters collateral to the subject of the action, with a view of showing what 
was passing in his mind at the time of doing the act complained of. Wetzlar 
V. Zachariah, 16 L. T. 432. It is no answer that the defendant was bound 
over to prosecute, if the jury think that he maliciously caused himself to be 
so bound, by making an unfounded charge. Dubois v. Keats, 9 L. J. Q. B. 
66; 11 Ad. & B. 329. Where the defendant falsely swore a fact at a trial, 
. and the plaintiff on swearing the contrary was committed by the judge for 
perjury, and the defendant bound over to prosecute ; the defendant prosecuted, 
and repeated his false evidence to the grand jury, he was held liable to an 
action for malicious prosecution. Fitzjohn v. Mackinder, 9 C. B. (N. S.) 
305; 30 L. J. C. P. 257. 

Where a magistrate has issued a search warrant under 48 & 49 V. o. 69, 
s. 10, to search for a woman who is, it is suspected, detained for immoral 
purposes, his decision that there is reasonable cause for euch suspicion is a 
protection to a person who honi fide applied for such warrant. Hope v. 
Evered, 55 L. J. M. C. 146; 17 Q. B. D. 338. So where the warrant was 
also to arrest a person alleged to be unlawfully detaining her. Lea v. Char- 
rington, 58 L. J. Q. B. 461 ; 23 Q. B. D. 45 ; affirm. 23 Q. B. D. 272, on 
the ground that there was no evidence of want of reasonable and probable 



ACTION FOE MALICIOUS AEEEST AND ABUSE OE 
CIVIL PEOCESS. 

After the passing of the Act abolishing arrest for debt on mesne process 
(1 & 2 V. c. 110), actions for malicious arrest became infrequent. Now, by 
the Debtors Act, 1869 (32 & 33 V. c. 62), Part. I., imprisonment for debt on 
mesne process has been entirely, and on final process practically, abolished. 

Sect. 4 (amended by 41 & 42 V. c. 54, s. 1), provides that no person 
shall be arrested or imprisoned for making default in payment of a sum 
of money, with certain exceptions therein mentioned, in which case the 
imprisonment shall not exceed one year. 

By sect. 5, a person making default in payment of any debt, or instalment 
of any debt, due from him in pursuance of any order or judgment, may be 
committed to prison for any time not exceeding six weeks, or till the debt is 
paid, provided he be shown to have had the means of payment since the order 
or judgment, and has refused or neglected to pay the same. See Nesom v. 
Metcalfe, 90 L. J. K. B. 273; [1921] 1 K. B. 400. 

Sect. 6, "Where the plaintiff in any action in any of her Majesty's 
superior courts of law at Westminster, in which, if brought before the com- 
mencement of this act, the defendant would have been liable to arrest, proves 
at any time before final judgment by evidence on oath, to the satisfaction of 
a judge of one of those courts, that the plaintiff has good cause of action 
against the defendant to the amount of ^650 or upwards, and that there is 
probable cause for believing that the defendant is about to quit England, 
unless he be apprehended, and that the absence of the defendant from Eng- 

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The Debtors Act, 1869. 76T 

land will materially prejudice the plaintiff in the prosecution of his action, 
such judge may, in the prescribed manner, order such defendant to be 
arrested and imprisoned for " period not exceeding six months, unless and 
until he has sooner given the prescribed security, jiot exceeding the amount 
claimed in the action, that he will not go out of England without the leave of 
the court. 

" Where the action is for a penalty or sum in the nature of a penalty, other 
than a penalty in respect of any contract, it shall not be necessary to prove 
that the absence of the defendant from England will materially prejudice the 
plaintiff in the prosecution of his action, and the security given (instead of 
being that the defendant will not go out of England) shall be to the effect, 
that any sum recovered against the defendant in the action shall be paid, or 
that the defendant shall be rendered to prison." 

The jurisdiction of the High Court under sect. 5 is now vested in the 
bankruptcy registrars. 

An order may be made under sect. 6 when the plaintiff has any cause 
of action to the extent of i£50 ; but, in other than penal actions, only where 
the plaintiff requires the presence of the defendant for the purpose of 
evidence : see Yorkshire Engine Go. v. Wright, 21 W. E. 15; and, on final 
judgment, the defendant is entitled to be released. S. C. ; Hume v. 
Druyff, 42 L. J. Ex. 145 ; L. E. 8 Ex. 214. The section does not interfere 
with the issue of- the writ of ne exeat regno. Sobey v. Sobey, 42 L. J. Ch. 
271 ; L. E. 15 Eq. 200. As to an action for the improper issue thereof, see 
Lees V. Pattersm, 47 L. J. Ch. 616 ; 7 Ch. D. 866. 

An action may still be maintained for falsely or fraudulently, and mali- 
ciously, and without reasonable or probable cause, making or procuring an 
affidavit under sect. 6, supra, and thereby obtaining a judge's order for 
the plaintiff's arrest. See Daniels v. Fielding, 16 L. J. Ex. 158 ; 16 M. & W. 
200. An action may also be maintained when it appears that proceedings 
have been taken against the plaintiff, in order to effect some object not within 
the scope of the process. See Grainger v. Hill, 7 L. J. C. P. 85 ; 4 Bing. 
N. C. 212. 

Under the old Bankruptcy Acts, under which the proceedings were ex 
parte, an action was maintainable for falsely and maliciously, and without 
reasonable and probable cause, procuring a man to be made a bankrupt ; 
Farley v. Danks, 4 E,^ & B. 498; 24 L. J. Q. B. 244; even although the 
affidavit on which the adjudication was granted did not allege an act of 
bankruptcy, and the adjudication was therefore erroneous. S. C. And it 
seema, notwithstanding the doubts expressed by Martin, B., in Johnson v. 
Emerson, 40 L. J. Ex. 201; It. E. 6 Ex. 829, that such action will lie in 
respect of a receiving order, made under the present Bankruptcy Act, 
although the proceedings are not ex parte. See Wyatt v. Palmer, 68 L. J. 
Q. B. 709; [1899] 2 Q. B. 106; Quartz Hill, dc. Gold Mining Co. v. Eyre, 
52 L. J. Q. B. 488; 11 Q. B. D. 674. 

So an action will lie, for falsely and maliciously, and without reasonable 
and probable cause, presenting a petition under the Companies Acts, to wind 
up a trading company. S. C. In such case, special damage need not be 
proved, as the presentation of the petition, from its nature, is likely to injure 
the credit of the company. 8. C. As to what is reasonable and probable 
cause in such case, see King v. Henderson, 67 L. J. P. C. 134; [1898] A. C. 
720. 

It has been said that the bringing of an action maliciously, and without 
reasonable and probable cause, by A. against B., whereby B. sustains legal 
damage, gives B. a right of action against A. See judgnient in Wren v. 
Weild, 38 L. J. Q. B. 827; L. E. 4 Q. B. 730, and Coiterell v. Jones, 
11 C. B. 718; 21 L. J. C. P. 2. The liability to pay extra costs is not, how- 
ever, legal damage. S. C. ; Quartz Hill, dc. Gold Mining Co. v. Eyre, 
supra. In this case the court intimated that the action would not lie, because 
no legal damage could ensue. 

Proceedings under i^^i&0 ^^M^bMf^^ V. c. 5, are protected if 

B. — VOL. II. 9 



768 Action for Conspiracy. 

taken in good faith and with reasonable care; sect 330; Skackleton v. Swift, 
82 L. J. K. B. 607 ; [1913] 2 K. B. 304. 

It seems that an action will lie for the wrongful and malicious arrest of a 
ship under Admiralty process, although there be no actual damage. The 
Walter D. Wallett, 62 L. J. P. 88; [1893] P. 202. 

In an action for malicious arrest the plaintiff may have to prove the 
affidavit for the judge's order to arrest; its falsehood; the order for the 
arrest ; the arrest under it ; the rescission of the order, or the determination 
of the suit; the defendant's malice and want of reasonable or probable cause; 
and the damage. 



ACTION EOE CONSPIRACY. 

A conspiracy consists of a combination of two or more persons to do that 
which is contrary to law or to carry out an object not in itself unlawful by 
unlawful means. Where such conspiracy is to do that which is wrongful 
towards another person, and has occasioned him damage, he has at common 
law a right of action against the conspirators. Quinn v. Leathern, 70 L. J. 
P. C. 76; [1901] A. C. 495; S. Wales Miners' Federation v. Glamorgan 
Coal Co., 74 L. J. K. B. S25; [1905] A. C. 239. Thus a combination of two 
or more persons to induce A.'s customers or servants to break their contracts 
with him or not to deal with him or to continue in his employment, thereby 
causing him damage is actionable ; unless there be justification or excuse 
for the combination. S.CC. " In sudh a proceeding it is necessary for 
the plaintiff to prove a design, common to the defendant, and to others, to 
damage the plaintiff without just cause or excuse. ... It may, like other 
conclusions, be established as a matter of inference from proved facts, but 
the point is not whether you can draw that particular inference, but whether 
the facts are such that they cannot fairly admit of any other inference being 
drawn from them." Per Ld. Loreburn, L.C., in Sweeney v. Coote, 76 L. J. 
P. C. 49; [1907] A. C. 221. A single person or body of persons 
commits an actionable wrong if he or they inflict actual pecuniary damage 
upon another by the intentional employment of unlawful means, e.g., 
coercive threats to injure that person's business, even though the unlawful 
means may not comprise any specific act which is per se actionable, and 
actual malice is not proved. The element of conspiracy in a case of 
this kind is important only in considering the weight of the acts alleged and 
the extent of the damage resulting therefrom. Pratt v. British Medical 
Assocn., 88 L. J. K. B. 628; [1919] 1 K. B. 244. By the Trade Disputes 
Act, 1906 (6 E. 7, c. 47), «. 1, " An act done in pursuance of an agreement 
or combination by two or more persons shall, if done in contemplation or 
furtherance of a trade dispute, not be actionable, unless the act if done without 
any such agreement or combination would be actionable." Sect. 8 : " An 
act done by a person in contemplation or furtherance of a trade dispute shall 
not be actionable on the ground only that it induces some other person to 
break a contract of employment or that it is an interference with the trade, 
business, or employment of some other person, or with»the right of some 
other person to dispose of his capital or his labour as he wills." See Hodges 
■V. Webb, 89 L. J. Ch. 273; [1920] 2 Ch. 70. Sect. 5 (3) : " The expression 
' trade dispute ' means any dispute between employers and workmen, or 
between workmen and workmen, which is connected with the employment 
or non-employment or the terms of the employment, or with the conditions 
of labour, of any person, and the expression ' workmen ' means all persons 
employed in trade or industry, whether or not in the employment of the 
employer with whom a trade dispute arises." See Conway v. Wade, 
78 L. J. X. B. 1025; [1909] A. C. 506; Valentine v. Hyde, 88 L. J. Ch. 
326; [1919] 2 Ch. 129; White v. Riley, 89 L. J. Ch. 628; [1921] 1 Ch. 1. 

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Action for Wrongful Distress. 769 

A dispute between an employer and other employers in the same line of 
business is not a " trade dispute " within this sub-section, and does not 
become so merely because the officials of a workmen's trade union choose to 
assist one side or the other. Larkin v. Lonq, 84 L. J. P. C. 201: [1915] 
A. C. 814. " . L J 

A person who procures another to do an act not wrongful so far as that 
other is concerned can only be made legally responsible if he procures his 
object by illegal means ; the same applies where the inducers are a combina- 
tion of persons, at all events where the combination is formed for the protec- 
tion of their common trade interests and the act complained of is incident to 
that purpose. Davies v. Thomas, 89 L. J. Ch. 338; [1920] 2 Ch. 189. " A 
body of traders whose motive object is to promote their own trade can combine 
to acquire, and thereby in so far to injure the trade of competitors, provided 
they do no more than is incident to such motive object, and use no unlawful 
means." Mogul S.S. Co. v. McGregor Gow db Co., 61 L. J. Q. B. 295, 306; 
[1892] A. C. 25, 50. In this case and Quinn v. Leathern, 70 L. J. P. C. 
76 ; [1901] A. C. 495, most of the earlier cases on the subject of civil remedy 
for conspiracy are collected. See also Att.-Gen. for Australia v. Adelaide 
S.S. Co., 83 L. J. P. C. 84; [1913] A. 0. 781. Where workmen have struck 
in breach of their contracts, those who help to maintain the strike by money 
and counsel, are not liable to the employer, merely because he thereby 
incurs loss. Dendby, dec. Collieries v. Yorkshire Miners Assoc, 75 L. J. 
K. B. 961; [1906] A. C. 384. By stat. 6 E. 7, c. 45, s. 4 (1), " an action 
against a trade union whether of workmen or masters, or against any members 
or officials thereof on behalf of themselves and all other members of the trade 
union in respect of any tortious act alleged to have been committed by or on 
behalf of the trade union, shall not be entertained by any Court." This 
section renders nugatory the decisions in Taff Vale Ry. Go. v. Amalgamated 
Soc. of Ry Servants, 70 L. J. K. B. 905; [1901] A. C. 426. Now therefore 
no action in respect of any tortious act alleged to have been committed by or 
on behalf of a trade union can be entertained by the court, whether such act 
was or was not committed in contemplation or furtherance of a trade dispute, 
and under Order 24, r. 4, such an action may be summarily dismissed. 
Vacher v. London Society of Compositors, 82 L. J. K. B. 232; [1913] A. C. 
107. 



ACTION FOR WRONGFUL DISTRESS. 

The cases on this subject have, for convenience of reference, been collected 
under the three heads of Excessive, Irregular, and Illegal Distress. 

ACTION FOB EXCESSIVE DISTRESS. 

The action for an excessive distress is founded on the statute of Marlbridge 
(52 H. 3), c. 4, which enacts that " distresses shall be reasonable and not too 
great ; and he that taketh great and unreasonable distresses shall be 
grievously amerced for the excess of such distresses." An action for trespass 
or for conversion will not lie where rent is in fact due, 11 G. 2, c. 19, o. 19. 
The statement of claim states the tenancy of the defendant at a certain 
rent; the rent claimed to be due; the taking a distress of goods of much 
greater value than the rent in arrear, and charges of the distress : and the 



The simple fact of making a distress, accompanied by an untrue claim of 
more rent than is due, and selling the goods under such claim, is not action- 
able, unless some special damage be proved, or unless it be shown that a 
larger quantity of goods has been sold than was sufficient to satisfy the rent 
actually in arrear; T(1^02&cfj^af^cPd§gfff^Q. B. 316; 16 Q. B. 669 ; 



770 Action for Excessive Distress. 

even though the distress is alleged to have been made " maliciously," for an 
act vphich does not amount to a legal injury cannot be actionable because it 
is done with bad intent. Stevenson v. Newnham, 13 C. B. 285 ; 22 L. J. 
C. P. 110. These cases overrule Taylor v. Henniker, 12 Ad. & B. 488 ; 
9 L. J. Q. B. 383; and in Glynn v. Thomas, 18 Ex. 870; 25 L. J. Ex. 125, 
where it appeared that the tenant, after the seizure of goods under an exces- 
sive claim, had discharged it without previously tendering what was really 
due, it was held that the detention if bond, fide was lawful, and that there 
was no cause of action; and see French v. Phillips, 1 H. & N. 664; 26 L. J. 
Ex. 82; Lucas v. Tarleton, 3 H. & N. 116 ; 27 L. J. Ex. 246. Where, how- 
ever, a tender of the rent due has been made before impounding the distress, 
the court held that an action could be brought, Crompton, J., saying that 
the case of Glynn v. Thomas, supra, had gone quite far enough. Loring v. 
Warburton, B. B. & E. 507; 28 L. J. Q. B. 31; and see Crowdef. v. Self, 
2 M. & Bob. 190; Chandler v. Doulton, 34 L. J. Ex. 89; 3 H. & C. 553, and 
Fell V. Whittaker, 41 L. J. Q. B. 78 ; L. B. 7 Q. B. 120. 

By 3 & 4 W. 4, c. 27, s. 42, no more than 6 years' arrears of rent or 
interest in respect of any sum charged on or payable out of any land or 
rent, shall be recoverable by distress, whether the demise, &c., be by deed 
or parol. By the Agricultural Holdings Act, 1908 (8 Ed. 7, c. 28), s. 28, the 
right of distress for the rent of a holding is limited to rent, which became 
due not " more than one year before the making of the distress " provided 
that where by the course of dealing between the landlord and tenant, the 
payment of the rent has been deferred until the expiration of a quarter or 
half-year after the due date, then the year shall run from the expiration of 
that quarter or half-year, and not from the legal date of payment. A distress 
may be made for rent the payment of which has been so deferred, and also 
for rent, legally due, although the usual time for payment thereof has not 
arrived, and the amounts together exceed a year's rent. Ex parte Bull, 
56 L. J. Q. B. 270; 18 Q. B. D. 642. 

Evidence of the tenancy and rent due.~\ The usual allegation in the state- 
ment of claim is general, that the plaintiff held and enjoyed certain premises 
as tenant thereof to the defendant, which must be proved in the usual 
manner; that is by production and proof of the lease or its counterpart or 
by the defendant's receipts for rent, of notices to quit, or other admissions by 
him of the terms . or by oral evidence of the contract when there is none in 
writing. These preliminary statements are, however, usually admitted by 
the broker's notice of distress or other proceedings. The tenancy must be 
proved as laid; and where the rent was stated to be due to A., and it 
appeared that the distress warrant was signed by A., as only agent to B. , 
the real lessor, it was a fatal variance. Ireland v. Johnson, 3 L. J. C. P. 
303 ; 1 Bing. N. C. 162. Such variances would now readily be amended. 
An action for an excessive distress, lies at the suit, of a lodger against the 
la,ndlord of the person under whom he occupies. Fisher v. Algar, 2 C. & P. 
374. 

Proof of the distress-J The plaintiff must prove that his goods were dis- 
trained, but it is not necessary to prove that they were sold or taken away; 
the seizure as a distress is sufficient. Baylis v. Usher, 4 Moo. & P. 790; 
9 L._ J. (0. S.) C. P. 43; Sells v. Hoare, 8 B. Moore, 453. Where the land- 
lord's agent went upon the tenant's premises, walked round them, gave a 
written notice that he had distrained certain goods lying there for arrears of 
rent, and then went away without leaving any person in possession, it was 
held that this was a sufficient seizure to give the tenant a right of action for 
an excessive distress; for 11 G. 2, c. 19, s. 10, gives the landlord power to 
impound or secure on the premises, goods distrained for rent. Swann v. 
Falmouth (Earl), 8 B. & C. 466; 6 L. J. (0. S.) K. B. 374. Where a land- 
lord to whom rent is in arrears, refuses to allow goods to be taken away from 
the demised premises, this amounts to a distress, whether he actually seizes 

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Action for Excessive Distress. 771 

them or not. Wood v. Nunn, 6 L. J. (0. S.) C. P. 198; 5 Bing. 10; Cramer 
V. Mott, 39 L. J. Q. B. 172; L. R. 5 Q. B. 357. So, where the broker 
demanded, and tenant paid the expenses of levy, under protest, and before 
any seizure or inventory made. Hutching v. Scott, 6 L. J. Ex. 186; 2 M. 
& W. 809. As to what is an impounding, see Action of replevin — Tender, 
post. 

The plaintiff need not show a legal or equitable title to the goods seized, a 
special property from the mere enjoyment of them will support the action. 
Fell V. Whittaker, 41 L. J. Q. B. 78 ; L. E. 7 Q. B. 120. 

The fact of the distress may be proved by calling the bailiff, broker, or 
other person who made the distress, who will also prove his authority from 
the defendant. If this evidence cannot be procured, the plaintiff should 
serve the defendant with notice to produce the warrant of distress, and give 
secondary evidence of it, or should connect the act of the bailiff with the 
defendant by some other evidence. 

Proof of the excess.] When a landlord is about to make a distress, he is 
not bound to calculate very nicely the value of the property seized, but he 
must take care that some proportion is kept between that, and the sum for 
which he is entitled to take it. Per Bayley, J., Willoughby v. Backhouse, 
2 B. & C. 823; 2 L. J. (0. S.) K. B. 174; Field v. Mitchell, 6 Bsp. 71. A 
landlord is liable to damages in an action for an excessive distress, where 
the excess consists wholly of seizing growing crops, the probable produce 
of which is capable of being estimated at the time of the seizure ; the 
measure of damages is not, however, the value of the crops, but the incon- 
venience and expense which the tenant sustains in being deprived of the 
ownership and control of them, or to which he is put in procuring sureties 
to a larger amount than he would otherwise have been, on replevying the 
crops. Piggott v. Birtles, 5 L. J. Ex. 193; 1 M. & W. 441. See Ridgway 
V. Stafford, 20 L. J. Ex. 226 ; 6 Ex. 404. Where the defendant distrained 
goods worth ^30 or ^640 for the rent of £\.Q, after a tender of the latter 
sum, the plaintiff was held entitled to waive the trespass and to sue for 
an excessive distress. Branscombe (Lady) v. Bridges, 3 Stark. 171 ; 1 B. & 
C. 145. In order to establish the excess, the plaintiff must be prepared with 
proof of the value of the goods seized. In an action for an excessive distress, 
the counsel for the plaintiff proposed to ask a witness what he thought might 
have been obtained for the goods distrained, from an incoming tenant in the 
same line of business as the plaintiff; but per Parke, B., "To determine 
whether the distress was excessive, you must ascertain what the goods seized 
would have sold for at a broker's sale." Wells v. Moody, 7 C. & P. 59. 
But, it has since been held that the question of excess is for the jury; 
Smith V. Ashforth, 29 L. J. Ex. 259; and the sale under the distress 
cannot be made the test of value, as, if so, probably no distress could be 
deemed excessive. Id. 260. In this case the action was held maintainable, 
although the net proceeds of the sale did not amount to the rent due ; 
there being strong evidence that the value of the goods seized was ten times 
the amount. 

Damages.] In Grace v. Morgan, 5 L. J. C. P. 180 ; 2 Bing. N. G. 534, it 
was held that the plaintiff could not recover in this action the costs as 
between attorney and client, of a replevin suit (in respect of the same 
distress) of which he had received the taxed costs. As to the measure of 
damages for excessive distress of growing crops, see Piggott v. Birtles, 
5 L. J. Ex. 193; 1 M. & W. 441. In Chandler v. Doulton, 3 H. & C. 553; 
34 L. J. Ex. 89, the defendant distrained goods in the plaintiff's mill of 
more than double the value of the rent due, and kept possession of them for 
five days. At the trial the plaintiff proved no actual damage. It was held 
that he was entitled at any rate to a verdict for nominal damages. Sale of the 
goods at an under-value cannot be shown unless alleged in the statement of 
claim. ' Thompson v. WtQBlTmtby .h^CBOSOft,® Cl. B. 493. It seems that 



772 Action for Irregular Distress. 

the appraised value will be assumed to be the best value; Walter v. Rumbal, 
i Ld. Baym. 53; unless the contrary be shown, which may always be done. 
Clarke v. Holford, 2 Car. & K. 640. So the sale under the distress is not the 
test of value. Smith v. Ashforth, 29 L. J. Ex. 259. Where the plaintiff has 
no title, but is merely allowed to use the goods, the measure of damages is the 
sum he is obliged to pay in excess of the rent, plus any damage arising from 
the inconvenience of being deprived of the possession and enjoyment of the 
goods. Fell V. Whittaker, 41 L. J. Q. B. 78 ; L. B. 7 Q. B. 120, 124. 

Defence. 

The defence of not guilty by stat. 11 G. 2, c. 19, ss. 19, 21, puts the 
plaintiff to the proof of the whole of his statement of claim when the action 
relates to any distress on premises chargeable with a rent to which the dia- 
trainor is entitled, and the defendant may show under it any defence. 
Williams v. Jones, 11 Ad. & B. 643. The defendant may give evidence that 
the distress was not excessive, or that the chattel distrained was entire, 
and that there was no other distress. Field v. Mitchell, 6 Esp. 71. Where 
the plaintiff had previously recovered in replevin for the same taking, such 
recovery was held to be a bar to this action in Phillips v. Berryman, 3 Doug. 
286, but the contrary seems to be assumed in Grace v. Morgan, 5 L. J. C. P. 
180; 2 Bing. N. C. 584. Where there has been an excessive distress, it is 
no defence that the plaintiff, after the distress authorized the defendant to 
sell, and gave him other powers with regard to the goods seized. Willoughby 
V. Backhouse, 2 B. & G. 821; 2 L. J. (0. S.) K. B. 174; Sells v. Hoare, 
8 B. Moore, 451 ; 1 Bing. 401. The defendant is not bound by his notice of 
distress, but may abandon it, and show that more rent was due than is there 
stated, subject to any special damage that may have thereby been caused to 
the plaintiff. Gwinnet v. Phillips, 3 T. B. 645; Growther v. Ramshottom, 
7 T. E. 654. In an action where the pleadings merely raised the question 
of the amount of rent due, it was held that the landlord might distrain for 
rent really due before a previous distress, although such previous distress 
purported to be for all rent due at that time, and though the second distress 
purported to be for rent due since the first. Gambrell v. Falmouth, 4 Ad. & 
E. 73. In this case the question did not arise as to whether the landlord 
could distrain twice for the same rent. 



ACTION FOR lEBEQULAB DISTBBSS. 

At common law, goods distrained for rent were merely a pledge, and could 
not be sold. But 2 W. & M. sess. 1, e. 5, empowered the landlord to sell 
the goods, subject to the provisions of that Act, which must be strictly 
complied with. Sect. 1 (sect. 2, Buff.) : " That where any goods or chattels 
shall be distrained for any rent reserved and due upon any demise, lease, or 
contract whatsoever, and the tenant or owner of the goods so distrained shall 
not, within five days next after such distress taken, and notice thereof (with 
the cause of such taking), left at the chief mansion house or other most 
notorious place on the premises charged with the rent distrained for, replevy 
the same, with sufficient security to be given to the sheriff according to law; 
that then in such case, after such distress and notice as aforesaid, and expira- 
tion of the said five days, the person distraining shall and may, with the 
sheriff or under-sheriff of the county, or with the constable of the hundred, 
parish, or place, where such distress shall be taken (who are hereby required 
to be aiding and assisting therein), cause the goods and chattels so distrained 
to be appraised by two sworn appraisers (whom such sheriff, under-sheriff , 
or constable are hereby empowered to swear) to appraise the same truly, 
according to the best of their understandings ; and after such appraisement 
shall and may lawfully sell the goods and chattels so distrained for the 
best price can be gotten for the same towards satisfaction of the rent for 

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Action for Irregular Distress. 773 

which the said goods and chattels shall be distrained, and of the charges 
of such distress, appraisement, and sale, leaving the overplus {if any) in the 
hands of the said sheriff, under-sheriff, or constable, for the owner's use." 
By the Parish Constables Act, 1872 (35 & 36 V. c. 92), s. 13, so much of the 
above Act " as requires any sheriff, or under-sheriff, or constable to be aiding' 
and assisting at any distress for rent, or to swear any appraiser thereat, shall 
be repealed, and no oath shall, ... be required from such appraiser."" 
This statute, however, makes no provision as to any overplus arising from- 
the sale : and it would seem that the landlord must now hold it for the use 
of the owner. 

Under the Law of Distress Amendment Act, 1888 (61 & 52 V. c. 21) 
[which, by sect. 9, repeals the Agricultural Holdings (England) Act, 1883, 
(46 & 47 V. c. 61), ss. 49, 50], certain modifications are made in the pro- 
visions of etat. 2 W. & M. sess. 1, c. 5, supra. By sect. 5, appraisement of 
the goods is no longer required, unless required in writing by the tenant or 
Owner of the goods, and, at the written request of the tenant, the goods 
distrained shall, for the purposes of sale, and at his cost, be removed to a 
public auction, or to some other proper place, specified in such request, and 
there sold ; the expenses of appraisement, when required, and of removal, and 
any damage to the goods caused by the removal, shall be borne by the person 
requesting the same respectively. By sect. 6, the period of 5 days shall be 
extended for a period of not more than 15 days, if the tenant or owner of the 
goods make a request in writing in that behalf to the landlord, or other 
persons levying the distress, and also give security for any additional costs 
occasioned by such extension. 

By sect. 8, the L. C. may make and alter rules (2) "for regulating the 
fees, charges, and expenses in and incidental to distresses : and (3) for carry- 
ing into effect the objects of this Act." Under this power the Distress for 
Bent Eules, 1888 (W. N. 1888, Pt. ii., p. 489), amended by Bule of Dec. 7, 
1888 (Id., p. 568), have been issued. The table of fees, &c., is given in 
App. II. (Id., p. 440). The bailiff, and not the landlord, is entitled to the 
percentage thereby allowed on levying a distress. Phillips v. Bees, 
59 L. J. Q. B. 1; 24 Q. B. D. 17. The landlord may agree to allow the 
bailiff extra remuneration. Rohson v. Biggar, 76 L. J. K. B. 248; [1907] 

I K. B. 690. 

If there were any irregularity in making or treating the distress, the land- 
lord was, at common law, liable as a trespasser ah initio. Gargrave v. 
Smith, 1 Salk. 221; Dye v. Leatherdale, 3 Wils. 20; and see notes to Six 
Carpenters' Case, 1 Smith's L. C. The harshness of this rule has been altered 
in the case of a distress for rent due, by the Distress for Rent Act, 1737, 

II Gr. 2, c. 19, s. 19, which enacted that " Where any distress shall be 
made for any kind of rent justly due, and any irregularity or unlawful act 
shall be afterwards done by the party or parties distraining, or by his, her, 
or their agents, the distress itself shall not be therefore deemed to be unlawful 
nor the party or parties making it be deemed a trespasser or trespassers ab 
initio ; but the party or parties aggrieved by such unlawful act or irregularity 
shall or may recover full satisfaction for the special damage, he, she, or they 
shall have sustained thereby, and no more, in an action of trespass, or on the 
case at the election of the plaintiff or plaintiffs." 17 G-. 2, c. 38, s. 8, 
contains similar provisions with respect to a distress for poor-rate due, and 
the Summary Jurisdiction Act, 1879 (42 & 43 V. c. 49), o. 39 (4), with 
respect to a distress generally under a magistrate's warrant. 

In consequence of this provision, trespass qu. cl. fr. or trover will not 
lie against the landlord for irregularities in making the distress, when any 
rent is in fact due, but the remedy is by a special action of trespass, or 
on the case, for the specific irregularity committed. Wallace v. King, 1 
H. Bl. 13; Messing v. Kemble, 2 Camp. 115; Winterbourne v. Morgan, 
11 East, 395. The plaintiff cannot, in general, recover in such action, 
without proof of special damage. Rodgers v. Parker, 18 C. B. 112; 25 
L. J. C. P. 220 ; Luca^yinmkfPlb^md^nW^ 27 L. J. Ex. 246. 



774 Action for Irregular Distress. 

The notice required by 2 W. & M. must be in writing. Wilson v. 
Nightingale, 15 L. J. Q. B. 309; 8 Q. B. 1034. But it is sufficient if it be 
given personally to the distrainee. Walter v. Rumhal, 1 Ld. Eaym. 53. It 
should mention the goods which are taken, and should state the amount of 
rent in arrear. Kerby v. Harding, 6 Ex. 234, 241; 20 L. J. Ex. 163, 166; 
Wakeman v. Lindsey, 19 L. J. Q. B. 166 ; 14 .Q. B. 625. The want of notice 
is, however, only an irregularity. Trent v. Hunt, 9 Ex. 14; 22 L. J. Ex. 
318. A special action lies for selling within the [fifteen] days. See Wallace 
V. King, 1 H. Bl. 13, and Pitt v. Shew, 4 B. & A. 206. But, not where the 
sale is void, as in the case of growing crops, not ripe, for the property does 
not pass to the purchaser, and the mere sale gives no right of action. Owen 
V. Legh, 3 B. & A. 470. The days must be reckoned exclusively of the day 
of taking. Robinson v. Waddington, 18 L. J. Q. B. 250; 13 Q. B. 753, 
overruling on this point Wallace v. King, supra. As to the liability of the 
superior landlord, to a lodger whose goods he has seized, for selling prema- 
turely, see Sharp v. Fowle, 53 L. J. Q. B. 309; 12 Q. B. D. 385. Neither 
the common law nor 2 W. & M. sess. 1, c. 5, empowered the landlord to 
impound the goods on the premises ; but, by 11 G. 2, c. 19, s. 10, the distrainor 
may impound or otherwise secure the distress in such place or on such part 
of the premises, chargeable with the rent, as shall be most fit and convenient 
and may appraise, sell, and dispose of the same upon the premises, in like 
manner as be might do off the premises. The distrainor ought to put the 
.goods distrained all in one room, and keep possession of that only, and not 
intrude into the other part of the house, or he should remove the goods out of 
the house; Washbom v. Black, 11 East, 405, n. ; but very slight evidence 
that the distrainee consented to the goods being left as they were previously, 
will suffice. S. C. The distrainor ought not, it would seem, to lock up the 
premises, so as entirely to exclude the tenant ; Smith v. Ashforth, 29 L. J. Ex. 
259; unless that course is necessary in order to secure the distress. Cox v. 
Painter, 7 C. & P. 767; see also Woods v. Durrant, 16 L. J. Ex. 313; 16 
M. & W. 149. See further as to what constitutes an impounding, sub tit. 
Replevin — Tender, post. The distrainor is bound, at his peril, to take care 
that the pound or place in which he impounds the distress, is in a fit and 
proper state, and he is liable for the consequences if it be not. Wilder v. 
Speer, 8 Ad. & B. 547; 7 L. J. Q. B. 249; Bignell v. Clarke, 5 H. & N. 485; 
29 L. J. Ex. 257. 

Trespass lies if the landlord suffer the goods to remain on the premises 
an unreasonable time after the [fifteen] days. Griffin v. Scott, 2 Ld. Eaym. 
1424 ; Winterbourne v. Morgan, 11 East, 395 ; see also Cox v. Painter, 7 
C. & P. 767. Bat the landlord may remain longer on the premises, for the 
purpose of selling the goods distrained, for he cannot sell till the days have 
expired, and it is for the jury to say what is a. reasonable time, after that 
period, within which to sell the goods. Pitt v. Shew, 4 B. & A. 206. Where 
an appraisement is required, there should be two appraisers ; Allen v. Flicker, 
10 Ad. & E. 640 ; 9 L. J. Q. B. 42 ; reasonably competent, but not necessarily 
professional appraisers. Roden v. Eyton, 18 L. J. C. P. 1 ; 6 C. B. 427. 
Neither of them must have made the distress. See Westwood v. Cowne, 
1 Stark. 172 ; and Lyon v. Weldon, 2 Bing. 336. 

The statute only authorizes a sale, therefore the landlord cannot take 
the goods at the appraised valuation. King v. England, 4 B. & S. 782; 33 
L. J. Q. B. 145; Plasycoed Collieries Co. v. Partridge, Jones S Co., 81 L. J. 
K. B. 723; [1912] 2 K. B. 345; nor can he pm-chase the goods himself at 
the auction ; Moore Nettlefold d Co. v. Singer Co., 73.L. J. K. B. 457 ; [1904] 
1 K. B. 820, in neither case does the property in the goods pass to him ; nor is 
he protected by 11 G. 2, c. 19, s. 19, against an action for conversion of the 
goods. Plasycoed Collieries Co. v. Partridge, Jones i4 Co., supra. The landlord 
must sell at the best price, and cannot stipulate for consumption of hay, 
&c. , on the premises in accordance with a covenant in the lease Hawkins 
V. Walrond, 45 L. J. C. P. 772; 1 C. P. D. 280. 56 G. 3, c. 50, b. 11, pro- 
hibiting the removal by a purchaser of any crops, manure, &c., from a farm 

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Defence — Illegal Distress. 775 

which the tenant ought not to have removed, does not apply to the sale by a 
landlord of a distress. ~ S. C. It would seem that an action for money had 
and received is the proper remedy against the landlord for any overplus. In 
euch action the plaintiff may dispute the reasonableness of the charges for 
making the distress. Lyon v. Tomkies, 1 M. & W. 603 ; 5 L. J. Ex. 260. 
Where the rent distrained for does not exceed ^620, these charges were limited 
by 57 G. 3, u. 93, s. 1, to the amount set out in the schedule to the Act, 
and no charge is allowed to be made for any act unless such act 
shall have really been done. Thus the charge of 23. 6d. a day 
for man in possession can only be made when he is in real possession, 
unless the distrainee agrees to pay the charge. Lumsden v. Burnett, 
67 L. J. Q. B. 661; [1898] 2 Q. B. 177. See also Ex pie. Arnism, 
37 L. J. Ex. 57 ; L. B. 8 Ex. 56. The section does not preclude the bailiff 
making a special arrangement with the landlord for extra remuneration. 
Robson V. Biggar, 76 L. J. K. B. 248 ; [1907] 1 K. B. 690. It seems that if 
the distress is made for more than £20, though the distress sell for less 
than £20, it is not within the provision. Child y. Chamberlain, 5 B. & Ad. 
1049. The Act is in force, but the scale of charges is now in the case of 
distress for rent fixed by the Distress for Eent Bules, 1888, App. II., Scale 
II. ; W. N. 1888, Pt. II. 440; Walker v. Better, 80 L. J. K. B. 628; [1911] 

1 K. B. 1108. It still, however, applies to a, distress for poor rates. Coster 
V. Headland, 75 L. J. K. B. 488 ; [1906] A. C. 286. See also Scott v. Den- 
ton, 76 L. J. K. B. 330; [1907] 1 K. B. 456. An action will lie for repay- 
ment of so much of the charge for a distress to recover an amount not exceed- 
ing £20, as is unreasonable. Ex pte. Edwards, 74 L. J. K. B. 464; [1905] 

2 K. B. 108. 

Damages.'] In an action for selling goods, distrained for rent, without 
appraisement where a,ppraisement is required, the measure of damages is the 
real value of the goods sold, minus the rent due ; for the distress is lawful, 
but the sale without appraisement is not so, and the plaintiff retains, not- 
withstanding the sale, the same interest in the goods which he had while 
they were in the landlord's hands before the sale, viz., to the amount of the 
real value of the goods, subject to the landlord's right for the rent due. 
Knight v. Egertcm, 7 Ex. 407, 408. 

Defence, 

The defence of not guilty (by 11 Gr. 2, c. 19, ss. 19, 21) seems not 
to be affected by 66 & 57 V. c. 61, where the action is against a person other 
than a public authority. If this construction of the Act be correct this defence 
puts the plaintiff to prove the whole of his statement of claim, and lets in any 
defence the defendant may have. Williams v. Jones, 11 Ad. & E. 643. See 
Eagleton v. Gutteridge, 12 L. J. Ex. 859; 11 M. & W. 466 ; for Eules, 1888, 
0. xix., r. 12, reserves the right to plead this defence, and provides that it 
shall have the same effect as heretofore. As to how it is to be pleaded, see 0. 
xxi., r. 19. If on the other hand the action be within 56 & 57 V. c. 61, this 
defence is inadmissible, and the defendant must plead his defences specially; 
in this case Id. s. 1 (c, d,), introduces special provisions as to tender of 
amends, and sect. 1 (a) fixes six months as the period of limitation. 

By 11 G. 2, c. 19, s. 20, the tenant shall not recover for any unlawful 
act or irregularity if tender of amends have been made by the party distrain- 
ing before action brought. 



ACTION FOR ILLEGAL DISTRESS. 



Where a distress is made by a, stranger, or by a person who has no 

ight to distrain (as t - - . - 

action of trespass, or : 



right to distrain (as tcL which vide Reylevin — Temncy of plaintiff, post), an 



776 Action for Illegal Distress. 

So again, where a distress is made by a landlord, no rent being due, or 
after a tender of the rent, or after a former distress, or if the distress be 
illegal owing to the time, place, or manner of making it, or from the 
nature of the goods taken, the proceeding is illegal ab initio, and an 
action of trespass and for conversion, or of replevin may be maintained. 
The cases of illegal distresses by landlords will be found below, classed 
under the heads above enumerated ; but many of the cases bearing on the 
subject will be found sub tit. Replevin, post. 

As to illegal distresses for damage feasant, vide Replevin — Avowry for 
damage feasant, post. 

No rent due.'] 2 W. & M. sess. 1, c. 5, s. 4 (e. 5, Eu£E.), enacts that 
where a landlord distrains and sells when no rent is due, the plaintiff shall, 
by action of trespass, or on the case, recover double the value of the goods 
distrained. The action may be one of trespass or for conversion, just as if 
the distress were by a mere stranger ; or the tenant may bring a special 
action on the case founded on the statute. 

After tender of the rent.] A tender before distress makes the taking 
unlawful ; after distress and before impounding it makes the detention 
unlawful. Six Carpenters' Case, 8 Eep. 147 a; Gulliver v. Cosens, 14 L. J. 
C. P. 215 ; 1 C. B. 788 ; Loring v. Warburton, E. B. & B. 607 ; 28 L. J. Q. B. 
31. In the former case, trespass qu. cl. fr., and in the latter, detinue is the 
proper remedy. Gulliver v. Cosens, supra; Singleton v. Williamson, 7 H. & 
N; 750 ; 28 L. J. Ex. 289. Where a tender of the rent is made after distress, 
but before impounding, the tenant may maintain trespass qu. cl. fr. for a 
subsequent removal of the distress. Vertue v. Beasley, 1 M. & Eob. 21. 
Ld. Denman, C.J., said in Ladd v. Tlw-mas, 9 L. J. Q. B. 345 ; 12 Ad. & E. 
117, 127, that trespass might be maintained for wrongfully maintaining pos- 
session of the distress; but it has since been held that a landlord, who, 
after the impounding, accepted the rent and expenses, could not be treated 
as a trespasser, merely because he retained possession of the goods dis- 
trained, although his refusal to deliver possession of the goods might 
render him liable in trover. West v. Nibbs, 17 L. J. C. P. 150 ; 4 C. B. 172 ; 
Vertue v. Beasley, 1 M. & Eob. 21, 22. In the case of a distress of growing 
crops a tender may be made at any time before they are ripe. Owen v. Legh, 
3 B. & A. 470. Tender after impounding is too late. Six Carpenters' Case, 
Ladd V. Thomas, Singleton v. Williamson, supra. 

After a former distress for the same rent.] A second distress for rent 
for which the landlord has already distrained is unlawful, if the first was 
abandoned voluntarily, or might have been sufficient to satisfy the rent, 
but for the landlord's default in not taking enough. Anon., Cro. Eliz. 
13; Dawson v. Gropp, 14 L. J. C. P. 281; 1 C. B. 961; Bagge v. Mawby, 8 
Ex. 641 ; 22 L. J. Ex. 236. " If there has been some misliike as to the value 
of the goods , and the landlord fairly supposed the distress to be of "the proper 
value at the time of levying the first distress, and he afterwards finds it to 
be insufficient , he may then distrain for the remainder ; or if the tenant 
has done anything equivalent to saying ' forbear to distrain now, and post- 
pone your distress to some other time.' In such cases the landlord may 
distrain a second time. But, if there is fair opportunity and there is no 
lawful or legal cause why he should not work out the payment of the 
rent, by reason of the first distress, his duty is to work it out by the first 
distress and he cannot distrain again." Bagge v. Mawby, 8 Ex. 641, 649; 
22 L. J. Ex. 236, 238. Where the tenant by his misconduct prevents the 
first distress being realized, a second is lawful. Lee v. Cooke, 2 H. & N. 
584; 3 H. & N. 203; 27 L. J. Ex. 337. So where the landlord has with- 
drawn, in pursuance of an agreement with the tenant to pay the rent by 
instalments, the landlord may distrain again, on the failure of the tenant to 
pay the instalments. Thwaiies v. Wilding, 53 L. J. Q. B. 1; 12 Q. B. D. 4. 

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Illegality owing to Time and Place of Distress. Ill 

Where a distress is void owing to the illegal manner of the bailiff's entry, 
and after seizure is not carried out, the landlord may put in a fresh distress 
for the same rent by a fresh warrant to another bailiff. Grunnell v. Welch, 
75 L. J. K. B. 657 ; [1906] 2 K. B. 555. 

A person entitled to distrain for an entire demand cannot split it. Wallis 
V. Savill, 2 Lutw. 1532; Hutchins v. Ohambers, 1 Burr. 579, 589; Owens v. 
Wynne, 4 E. & B. 579. 

The action for an illegal second distress is usually in the form of a special 
action on the case, but there seems no reason why an action of trespass or 
for conversion should not equally lie. Where the action is for an excessive 
distress, the plaintiff cannot rely on a prior distress having been made for the 
same rent, where this ground of action does not appear on the record. 
Gambrell v. Falmouth (Lord), i Ad. & B. 73. 

Illegality by reason of bailiff being uncertified.~\ By the Law of Distress 
Amendment Act, 1888 (51 & 52 V. c. 21), s. 7, "no person shall act as 
a bailiff to levy any distress for rent unless he shall be authorized to act as 
a bailiff, by a certificate in writing under the hand of a county court judge," 
which may be either general or special. 

" If any person not holding a certificate under this section shall levy a 
distress contrary to the provisions of this Act, the person so levying, and 
any person who has authorized him so to levy, shall be deemed to have 
committed a trespass." 

By the Distress for Eent Eules, 1888, rr. 1—4 (W. N., 1888, Pt. II., 
p. 389), a general certificate can be granted by the judge only. It autho- 
rizes the bailiff named in it to levy at any place in England or Wales. A 
special certificate, which can be granted by the judge or registrar, specifies 
the particular distress or distresses to which it applies. Forms of the certi- 
ficates are given in App. I. 

A distress levied by the landlord himself, or, ut semble, by any person 
having a statutory authority to distrain, is not affected by sect. 7. Hogarth 
v. Jennings, 61 L. J. Q. B. 601; [1892] 1 Q. B. 907. Secus, where levied by 
the managing director of a company which is the landlord. S. C. The land- 
lord who has authorized a distress by an uncertificated bailiff B., is liable to 
a third person P., for the seizure by B. of P.'s goods on the premises. 
Perring v. Emerson, 75 L. J. K. B. 12 ; [1906] 1 K. B. 1. 

Illegality owing to the time of making distress.} A distress may be levied 
on Monday for rent payable on Sunday. Child v. Edwards, 78 L. J. K. B. 
1061 ; [1909] 2 K. B. 753. Except for damage feasant, it must be made 
between sunrise and sunset. Co. Litt. 142 a; Aldenburgh v. Peaple, 6 C. & 
P. 212. It will be illegal if made at any other time, even though there be 
light. Tutton v. Darke, and Nixon v. Freeman, 5 H. & N. 647 ; 29 L. J. Ex. 
271. It would seem that apparent sunrise and sunset is what is meant, as 
the rule was established before the invention of clocks. See S. C, 29 L. J. 
Ex. 272, per Pollock, C.B. For trespass damage feasant, a distress may be 
taken in the night. Co. Litt. 142 a. At common law a distress could not be 
made after the expiration of the tenancy, and hence the last instalment of 
rent could never be distrained for. Co. Litt. 47 b. This is remedied by 
stat. 8 A. u. 18 (c. 14, Buff.), ss. 6, 7, which allows a landlord to distrain 
within six calendar months after the determination of the tenancy, provided 
his reversion remain, and it be during the possession of the tenant from whom 
the rent became due; and the power is extended by 3 & 4 W. 4, c. 42, s. 38, 
to the executors of a deceased landlord, in respect of arrears of rent due in his 
lifetime. For the cases decided on these sections, see sub tit. Replevin — 
Avowry for distress after the end of lease, post. 

Illegality owing to the place of making distress.} As a general rule a 
distress can only, except in the case of the Crown, be taken on the demised 
premises. Gapel v. Buzzard, 6 Bine. 160; Co. Litt. 161 a; Com. Dig. 
Distress (A. 3), (B. l)0/gS(2St4ib)6ffVfeB[ffi£a(|®(52 H. 3), c. 15, enacted 



778 Action for Illegal Distress. 

that no one, aave the king, should distrain out of his fee, nor in the king's 
highway, nor in the common street ; and this was in affirmance of the common 
law. 2 Inst. 131. But, if the landlord come to take a, distress, and see the 
tenant's cattle on the land, and then the tenant drive them off the land to 
avoid distress , the landlord may follow them ; but he cannot do so if he had 
not seen the cattle, or if the tenant drove them off for any other purpose. 
Co. Litt. 161 a. Where goods are standing on the part of a highway which 
adjoins the demised premises, and is included in the demise they may be 
distrained there. Hodges v. Lawrance, 18 J. P. 347, cited in Gillingham v. 
Gwyer, 16 L. T. 640. But it would be otherwise if the goods were merely 
passing over that part of the highway. 

11 G. 2, c. 19, ss. 1 — 7, contains provisions allowing a landlord, within 
thirty days and under certain conditions, to follow goods fraudulently removed 
from the premises to avoid a distress, and to break into barns, houses, 
&c., to recover the same; the provisions of this Act and the cases decided 
thereon will be found sub tit. Replevin — Avowry for distress on goods fraudu- 
lently removed, post. The defence must be specially pleaded. 

By 11 Gr. 2, c. 19, a. 8, landlords or their agents may " take and seize, 
as a distress for arrears of rent, any cattle or stock of their respective 
tenant or tenants feeding or depasturing upon any common appendant or 
appurtenant, or any ways belonging to all or any part of the premises demised 
or holden." 

Illegality from the manner of entering to make distress.'\ The landlord 
must enter the premises for the purpose of distraining in the usual manner 
adopted by persons having access to the building, as by turning the key, 
lifting the latch, or drawing back the bolt. Ryan v. Shilcock, 7 Ex. 72; 
21 L. J. Ex. 55. If he break open the outer door or gate; Brown v. Glenn, 
16 Q. B. 254; 20 IJ. J. Q, B. 205; Attack v. Bramwell, 3 B. & S. 520; 32 
L. J. Q. B. 146 ; Grunnell v. Welch, 75 L. J. K. B. 657 ; [1906] 2 K. B. 555 ; 
or, if he open a closed window, whether fastened or not, and enter thereby; 
Hancock v. Austin, 14 C. B. (N. S.) 634 ; 32 L. J. C. P. 252 ; Nash Y. Lucas, 
Lt. E. 2 Q. B. 590 ; he becomes a trespasser ah initio. But, where a window is 
open, entry for distress may be made by further opening it. Crabtree v. 
Robinson, 54 L. J. Q. B. 544; 15 Q. B. t). 312. See further Boll. Abr. tit. 
Distress (M.) 7, and Id. pi. 2, cited 2 Wms. Saund. 284 c. (2). Access to an 
open door or window may be obtained by climbing over a fence or wall. 
Eldridge v. Stacey, 15 C. B. (N. S.) 458; Long v. Clarke, 63 L. J. Q. B. 108; 
[1894] 1 Q. B. 119. These principles apply equally to any building. Brown 
V. Glenn, supra; American Concentrated Must Co. v. Hendry, 62 L. J. Q. B. 
388. 

As to forcible entry upon premises to which goods have been fraudulently 
removed, see 11 G. 2, c. 19. 

Where a broker is in possession of goods as a distress for rent, and he has 
by force or fraud been expelled from the premises, he may, provided there has 
been no abandonment of the distress, forcibly regain possession of the 
goods, and for this purpose break open the outer door of the premises. 
Eagletm v. Gutteridge, 12 L. J. Ex. 359; 11 M. & W. 465. So where he has 
voluntarily left the premises, intending to return, for, after impounding, the 
goods are in cu^todid, legis. Bannister v. Hyde, 2 E. & E. 627; 29 L. J. 
Q. B. 141; Jmies v. Biemstein, 69 L. J. Q. B. 1; [1900] 1 Q. B. 100; 
Eldridge v. Stacey, supra. This defence is admissible under the plea of not 
guilty by statute. Eagleton v. Gutteridge, supra. Whether the distress has 
been abandoned is a question of fact. Eldridge v. Stacey, supra; and the 
jury may negative abandonment although the broker was expelled and did not 
return for three weeks. S. C. But, there must have been peaceable posses- 
sion, previously obtained, to enable the broker to re-enter by force; merely 
putting the foot between the door and lintel is not a sufficient possession. Boyd 
V. Profane, 16 L. T. 432. 

If the distress have been abandoned, the property revests in the owner 

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Goods privileged from Distress. 779 

and the landlord's power over it is then gone. See Swarm v. Falmouth 
(Earl), 8 B. & C. 456. 

Illegality from nature of goods taken — Goods privileged from distress.'\ 
There are certain goods which are privileged from distress, and a landlord 
who enters and distrains those goods, makes himself a trespasser ab initio. 
But where some only of the goods he takes are privileged, he becomes a 
trespasser ah initio qua those goods only. Harvey v. Pocock, 12 L. J. Ex. 
434 ; 11 M. & W. 740. 

The goods which are privileged from distress are enumerated in the 
judgment in Simpson v. Hartopp, Willes, 512, and in the notes thereto in 
1 Smith's L. C, and are there arranged under the following heads : — 

1. Things annexed to the freehold. Fixtures are not distrainable even 
though they could have been removed by the tenant during the term. Darby 
V. Harris, 10 L. J. Q. B. 294; 1 Q. B. 895; Provincial Billposting Co. v. 
Low Moor Iron Co., 78 L. J. K. B. 702; [1909] 2 K. B. 344. The question 
as to whether a fixed machine is distrainable depends chiefly on two con- 
siderations : 1st, the mode of annexation to the soil or building, whether it 
can be easily removed integre, salve, et commode, or not without injury to 
itself or the building; and 2ndly, the object of such annexation, whether it 
was so annexed for the permanent improvement of the building (pur un profit 
del inheritance), or merely for a temporary purpose, or the more complete 
enjoyment and use of it, as a chattel. Hellawell v. Eastwood, 6 Ex. 295, 
312 ; 20 L. J. Ex. 154, 160. The law so stated is correct, provided the words 
'■ merely for a temporary purpose," are understood to apply to such cases as a 
'■ carpet tacked to the floor for the purpose of keeping it stretched, whilst 
it was there used, and not to a case such as that of a tenant, who, e.g., fixes 
a shop counter for the purpose (in one sense temporary) of more effectually 
enjoying the shop, while he continues to sell his wares there ;" but it is doubt- 
ful if the law was, in the last-cited case, correctly applied to the facts. 
Holland v. Hodgson, 41 L. J. C. P. 146, 149-50; L. E. 7 C. P. 328, 337. In 
Crossley v. Lee, 77 L. J. K. B. 199; [1906] 1 K. B. 86, a gas engine screwed 
to bolts sunk in concrete, was held not distrainable. So, too, in the case of a 
temporary tramway. Turner v. Cameron, 39 L. J. Q. B. 125 ; L. E. 5 Q. B. 
306. Where the landlord severs fixtures for a distress, the tenant may bring 
trover for them. Dalton v. Whitthem, 12 L. J. Q. B. 65 ; 3 Q. B. 961. But 
the mere inclusion of fixtures in a notice of distress, without seizure or sever- 
ance is not actionable. Beck v. Denbigh, 29 L. J. C. P. 273. 

2. Things delivered to a person exercising a public trade, to be carried, 
wrought, worked up, or managed in the way of his trade or employ. 
Gisbourne v. Hurst, 1 Salk. 249. Thus, materials sent to be made into cloth, 
or cloth sent to a tailor to be made into a coat, or a horse sent to a farrier to 
be shod, or a horse at an inn or corn sent to a miller to be ground, are 
privileged. Co. Litt. 47 a; Read v. Burley, Cro. Eliz. 596 ; Gibson v. Ireson, 
3 Q. B. 39. So, goods delivered, in the ordinary course of business, to a 
carrier to be carried ; Gisbourne v. Hurst, supra ; or, to an auctioneer for sale. 
Adams v. Grane, 2 L. J. Ex. 105; 1 Cr. & M. 380; Williams v. Holmes, 
8 Ex. 861 ; 22 L. J. Ex. 283 ; Brown v. Arundell, 10 C. B. 54 ; 20 L. J. C. P. 
30. But only while on premises occupied by him. Lyons v. Elliott, 45 L. J. 
Q. B. 159; 1 Q. B. D. 210. So goods delivered to a factor or commission 
agent for sale, whether the goods are in his own warehouses or premises ,- 
Gilman v. Elton, 3 B. & B. 75; Findon v. M'Laren, 14 L. J. Q. B. 183; 
6 Q. B. 891; or, are deposited by him in the warehouse of a granary keeper 
or wharfinger, in the ordinary course of business ; Thompson v. Mashiter, 
1 Bing. 283 ; 1 L. J. (0. 8.) 0. P. 104 ; Matthias v. Mesnard, 2 C. & P. 352 ; 
are privileged from seizure as a distress for the rent of the respective pre- 
mises, where they are deposited by the persons in whose custody they are. 
So, goods delivered in pledge to a pawnbroker; Swire v. Leach, 18 C. B. 
(N. S.) 479 ; 34 L. J. C. P. 150 ; or, furniture deposited at a depository ware- 
house to be taken caregf^^i^^jf ^gf0^5^(^. Q. B. 41 ; L. E. 8 Q. B 



780 Action for Illegal Distress. 

77; are privileged. But, horses and carriages standing at livery are not 
BO privileged. Parsons v. Gingell, 16 L. J. C. P. 227; 4 C. B. 545. This case 
is, however, inconsistent with Swire v. Leach, supra, see 42 L. J. Q. B. 44; 
L. B. 8 Q. B. 82, per Cockburn, C.J. Nor are pictures sent for exhibition in 
a proprietary club. Ghalloner v. Robinson', 77 L. J. Ch. 72 ; [1908] 1 Ch. 49. 
The things must have been delivered or sent by their owner. Clarke v. Mill- 
wall Dock Co., 55 L. J. Q. B. 378; 17 Q. B. D. 494. By 6 & 7 V. c. 40, 
s. 18, looms, materials, tools, &c., intrusted in order to be used or worked 
in the woollen, linen, cotton, silk, &c., manufactures, cannot be seized for 
rent, unless due from the owner of them. Gaa meters and fittings for gas, 
including gas stoves, let by a gas company, are privileged in those cases in 
which the Gasworks Clauses Act, 1847 (10 & 11 V. c. 15), s. 14, is still in 
force. Gaslight and Coke Co. v. Hardy, 56 L. J. Q. B. 168; 17 Q. B. D. 
619. 

By the Eailway Boiling Stock Protection Act, 1872 (35 & 36 V. c. 50), 
ss. 3, 5, rolling stock in a work is not liable to a distress for rent payable by 
the tenant of the work, to an extent beyond the interest of the tenant 
therein, if the actual owner is sufficiently indicated by a distinguishing mark 
on the stock. By sect. 2, " ' rolling stock ' includes waggons, trucks, 
carriages of all kinds, and locomotive engines used on railways ; ' rent ' 
includes royalty, or other reservation in the nature of rent ; ' work ' 
includes any colliery, quarry, mine, manufactory, warehouse, wharf, pier, or 
jetty, in or on which is any railway siding." 

In tenancies to which the Agricultural Holdings Act, 1908 (8 Ed. 7, c. 28) 
applies, agricultural or other machinery, which is the property of a person, 
other than the tenant, and is on the holding under an agreement with the 
tenant, for the hire or use thereof, in the conduct of his business, and live 
stock, which is the property of a person, other than the tenant, and is on the 
holding solely for breeding purposes, are not distrainable for rent. 
Sect. 29 (4). 

Somewhat analogous to this class of cases is the protection which was given 
by the Lodgers' Goods Protection Act, 1871, 34 & 35 V. c. 79. That Act is 
now superseded by the Law of Distress Amendment Act, 1908 (8 Ed. 7, 
c. 63), which provides : — 

Sect. 1. If any superior landlord shall levy, or authorise to be levied, a 
distress on any furniture, goods, or chattels of — (a) any under tenant liable to 
pay by equal instalments not less often than every actual or customary 
quarter of a year a rent which would return in any whole year the full annual 
value of the premises or of such part thereof as is comprised in the under 
tenancy, or (b) any lodger, or (c) any other person whatsoever not being a 
tenant of the premises or of any part thereof, and not having any beneficial 
interest in any tenancy of the premises or of any part thereof, for arrears of 
rent due to such superior landlord by his immediate tenant, such under 
tenant, lodger, or other person aforesaid may serve such superior landlord, 
or the bailiff or other agent employed by him to levy such distress, with a 
declaration in writing made by such under tenant, lodger, &o., setting forth 
that such immediate tenant has no right of property or beneficial interest in 
the furniture, &c., eo distrained or threatened to be distrained upon, and that 
such furniture, &c., are the property or in the lawful possession of such under 
tenant, &c., and are not goods or live stock to which this Act is expressed 
not to apply; and also, in the case of an under tenant or lodger, setting 
forth the amount of rent (if any) then due to his immediate landlord, and 
the times at which future instalments of rent will become due, and the 
amount thereof, and containing an undertaking to pay to the superior land- 
lord any rent so due or to become due to his immediate landlord, until the 
arrears of rent in respect of which the distress was levied or authorised to be 
levied have been paid off, and to such declaration shall be annexed a correct 
inventory, subscribed by the under tenant, &c., of the furniture, &c., referred 
to in the declaration; and, if any under tenant, &c., shall make or subscribe 
such declaration and inventory knowing the same or either of them to be 

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Goods privileged from Distress — Lodgers' Goods. 781 

untrue in any material particular, he shall be deemed guilty of a miede- 
meanour. 

Sect. 2. If any superior landlord, or any bailiff or other agent employed 
by him, shall, after being served with the before-mentioned declaration 
and inventory, and in the case of an under tenant or lodger after such 
undertaking as aforesaid has been given, and the amount of rent (if any) 
then due has been paid or tendered in accordance with that undertaking, levy 
or proceed with a distress on the furniture, goods, or chattels of the under 
tenant, lodger, or other person aforesaid, such superior landlord, bailiff, or 
other agent, shall be deemed guilty of an illegal distress, and the under- 
tenant, &c., may apply to a justice of the peace for an order for the 
restoration to him of such goods, . . . and the superior landlord shall also be 
liable to an action at law at the suit of the under tenant, &c., in which action 
the truth of the declaration and inventory may likewise be inquired into. 

Sect. 3. For the purposes of the recovery of any sums payable by an under 
tenant or lodger to a superior landlord under such an undertaking as afore- 
said, or under a notice served in accordance with section 6 (infra), the 
under tenant or lodger is deemed to be the immediate tenant of the superior 
landlord, and the sums payable are deemed to be rent; but where the 
under tenant or lodger has, in pursuance of such an undertaking or notice, 
paid any sums to the superior landlord, he may deduct the amount thereof 
from any rent due or which may become due from him to his immediate 
landlord, and any person (other than the tenant for whose rent the distress is 
levied or authorised to be levied) from whose rent a deduction has been 
made in respect of such a payment may make the like deductions from any 
rent due or which may become due from him to his immediate landlord. 

Sect. 4. The Act shall not apply (1) to goods belonging to the husband 
or wife of the tenant whose rent is in arrear, nor to goods comprised in any 
bill of sale, hire purchase agreement, or settlement made by such tenant, 
nor to goods in the possession, order, or disposition of such tenant by the 
consent and permission of the true owner under such circumstances that such 
tenant is the reputed owner thereof, nor to any live stock to which section 
twenty-nine of the Agricultural Holdings Act, 1908, applies; (2) (o) to 
goods of a partner of the immediate tenant ; (b) to goods (not being goods 
of a lodger) upon premises where any trade or business is carried on in 
which both the immediate tenant and the under tenant have an interest ; 
(c) to goods (not being goods of a lodger) on premises used as oflGices or ware- 
houses where the owner of the goods neglects for one calendar month after 
notice (which shall be given in like manner as a notice to quit) to remove 
the goods and vacate the premises ; (d) to goods belonging to and in the 
offices of any company or corporation on premises the immediate tenant 
whereof is a director or officer, or in the employment of such company or 
corporation : Provided that it shall be competent for a stipendiary magistrate, 
or two justices, upon application by the superior landlord or any under 
tenant or other such person as aforesaid, upon hearing the parties to 
determine whether any goods are in fact goods covered by sub-section (2) of 
this sect. 

Sect. 5. The Act does not apply to an vmder tenant where the under 
tenancy has been created in breach of a covenant or agreement in writing 
between the landlord and his immediate tenant, or where the under tenancy 
has been created under a lease existing at the date of the passing of the Act 
contrary to the wish of the landlord in that behalf, expressed in writing and 
delivered at the premises within a reasonable time after the circumstances 
have come, or with due diligence would have come, to his knowledge. 

Sect. 6. In cases where the rent of the immediate tenant of the superior 
landlord is in arrear it shall be lawful for such superior landlord to serve 
upon any under tenant or lodger a notice (by registered post addressed to 
such under tenant or lodger upon the premises) stating the amount of such 
arrears of rent, and requiring all future payments of rent, whether the same 
has already accrued ^'J^/Pfi^JViwbK^'JfibpW.^fi^/i^a'nt or lodger to be made 



782 Action for Illegal Distress. 

direct to the superior landlord giving such notice until such arrears shall have 
been duly paid, and such notice shall operate to transfer to the superior 
landlord the right to recover, receive, and give a discharge for such rent. 

Sect. 8. The Lodgers' Goods Protection Act, 1871, shall, wherever and 
so far as this Act applies, be repealed as from the commencement of this 
Act. 

Sect. 9. The words " superior landlord " are deemed to include a land- 
lord in cases where the goods seized are not those of an under tenant or 
lodger ; and the words ' ' tenant ' ' and ' ' under tenant ' ' do not include a 
lodger. 

In order that a person, occupying part of a house, should be a lodger, the 
landlord must retain such control and dominion over the house, as is usually 
retained by landlords letting lodgings; Morton v. Palmer, 51 L. J. Q. B. 7; 
the landlord need not reside in the house ; S. C. ; Ness v. Stephenson, 
9 Q. B. D. 245, and the lodger may have the right of exclusive occupation 
of the greater part of the house and uncontrolled right of ingress and 
egress. S. C. ; Phillips v. Hemmi, 47 L. J. C. P. 273; 3 C. P. D. 26. In 
order that a person should be a lodger, within the act, he must sleep on 
the premises. Heawood v. Bone, 13 Q. B. D. 179. 

The declaration under sect. 1 need not be a statutory declaration in the 
form prescribed by the Statutory Declarations Act, 1835. Rogers v. Martin, 
80 li. J. K. B. 208; [1911] 1 K. B. 19. It may properly be made on behalf 
of a firm by one partner signing in his own name. S. C. It is a protection 
against the particular distress only, in respect of which it was given. 
Thwaites v. Wilding, S3 L. J. Q. B. 1; 12 Q. B. D. 4. It need not state 
that the declarant is a lodger, nor that no rent is due to his immediate land- 
lord, if none is in fact due. Ex pte. Harris, 65 L. J. M. C. 24; 16 Q. B. D. 
130. The inventory is sufficiently subscribed by the lodger where the declara- 
tion signed by him refers to a list of articles annexed, as being a correct 
inventory, which list was written on a subsequent part of the same paper, 
but not otherwise signed by him. Godlonton v. Fulham, dc. Property Co., 

74 L. J. K. B. 242; [1905] 1 K. B. 431. The bailiff who has levied a 
distress made illegal by sect. 2, is liable to an action; Lowe v. Darling, 

75 L. J. K. B. 1019; [1906] 2 K. B. 772; and semble the landlord is also 
liable even although he had not authorized the seizure of the lodger's goods. 
S. C. ; 74 L. J. K. B. 794 ; [1905] 2 K. B. 501. In the absence of evidence 
of a custom, the court will not assume as a matter of law that the lessee of 
a theatre is not th& true owner of a piano which is in the theatre ; in such 
a case the piano is not exempt from distress. Chappell v. JSarrison, 
103 L. T. 594. Goods are comprised in a hire purchase agreement within 
sect. 4, notwithstanding a demand for possession by the owner. Hackney 
Furnishing Go. v. WatU, 81 L. J. K. B. 993; [1912] 3 K. B. 225, not 
following London Furnishing Co. v. Solomon, 106 L. T. 371. See also 
Jay's Furnishing Go. v. Brand, 84 L. J. K. B. 867 ; [1915] 1 K. B. 458. 
The words " made by such tenant " in sect. 4, s.-sect. 1, are not limited to 
'' settlement " but apply also to " bill of sale " and " hire purchase agree- 
ment." Rogers v. Martin, supra. The words " goods comprised in 
any . . . hire purchase agreement" in the same sub-section apply only 
to goods comprised in such an agreement to which the tenant was a party. 
ShensUme v. Freeman, 79 L. J. K. B. 982; [1910] 2 K. B. 84; Rogers v. 
Martin, supra. 

3. Cocks or sheaves of corn, and other things which cannot be restored in 
the same plight. Butcher's meat falls within the exception. Morley v. 
Pincombe, 18 L. J. Ex. 272; 2 Ex. 101. The rule has, however, been, 
altered by 2 W. & M. sess. 1, c. 5, s. 2 (s. 3, EufE.), which gives the right 
to distrain " sheaves or cocks of com, or corn loose or in the straw, or hay;" 
and by 11 G. 2, c. 19, s. 8, which allows distresses of " all sorts of corn and 
grass, hops, roots, fruits, pulse, or other product whatsoever," growing on 
the land demised. The words " other product " in the latter Act are confined 
to products of a nature similar to those specified in the section, to all of 

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Goods privileged from Distress. 783 

which the process of becoming ripe, and of being cut, and gathered, made, 
and laid up when ripe, are incidental. Clark v. Gaskarth, 8 Taunt. 431; 
2 B. Moore, 491. Thus, the section does not include trees and shrubs grow- 
ing in a nursery ground. S. C. But this provision, unlike the former one 
(Johnson v. Faulkner, 14 L. J. Q. B. 193; 2 Q. B. 925), applies only to 
distresses made by landlord, and not by grantee of a rent-charge. Miller 
V. Green, 1 L. J. Ex. 51; 2 C. & J. 142. If growing crops are seized and 
sold before they are ripe the sale is wholly void. Owen v. Leigh, 3 B. & A. 
470. But, where they were sold before they were cut, and were cut 
immediately afterwards, it was held to be a mere irregularity, and that 
no action lay without proof of special damage. Rodgers v. Parker, 18 C. B. 
112; 25 L. J. C. P. 220. In Proudlove v. Twemlow, 2 L. J. Ex. Ill; 

I Cr. & M. 326, where the facts much resembled those in Rodgers v. Parker, 
supra, the plaintiff obtained nominal damages ; but this arose from the form 
of the rule argued, it being one to reduce the damages merely. Per Jervis, 
G.J., in Rodgers v. Parker, supra. 

4. Things in actual use. The tools a man is using, or the horse he is 
riding, cannot be distrained, on account of the great danger that a breach 
of the peace would be committed if these goods were, seized. Read v. Burley, 
Cro. Eliz. 596; Simpson v. Hartopp, Willes, 512; Go. Litt. 47 a. The same 
rule applies to distress for trespass damage feasant. Field v. Adams, 
10 L. J. Q. B. 2;' 12 Ad. & E. 649. 

By the Law of Distress Amendment Act, 1888 (51 & 52 V. c. 21), s. 4, 
" The following goods and chattels shall be exempt from distress for rent, 
namely, any goods or chattels of the tenant or his family which would be 
protected from seizure in execution under section 96 of the County Courts 
Act, 1846, or any enactment amending or substituted for the same. Pro- 
vided that this enactment shall not extend to any case where the lease, term, 
or interest of the tenant has expired, and where possession of the premises 
in respect of which the rent is claimed has been demanded, and where the 
distress is made not earlier than seven days after such demand." 

The County Courts Act, 1888 (51 & 52 V. c. 43), s. 147, which has 
replaced the County Courts Act, 1846, s. 96, by identical words protects from 
seizure " the wearing apparel and bedding " of the person against whose 
goods the execution has issued, " or his family, and the tools and implements 
of his trade, to the value of £&." " Bedding " here includes bedstead. 
Davis V. Harris, 69 L. J. Q. B. 232; [1900] 1 Q B. 729. Where the only 
chattel on the premises is an implement of the tenant's trade, e.g. a cab, 
it is protected, although its value exceeds £5. Lavell v. Richings, 75 L. J. 
K. B. 287; [1906] 1 K. B. 480. "Where wearing apparel and bedding together 
of the value of i£5 , are left on the demised premises , implements of trade are 
liable to seizure. Boyd v. Bilham, 78 L. J. K. B. 50; [1909] 1 K. B. 14. 
A typewriter carried as a sample of his employer's machines by a com- 
mercial traveller, is not a tool or implement of trade within section 147, and 
is, therefore, not exempt from liability to seizure. Addison v. Shepherd, 
77 L. J. K. B. 534; [1908] 2 K. B. 118. The onus lies upon the plaintiff 
to prove that ^65 worth of wearing apparel, bedding and tools and imple- 
ments of trade was not left by the distrainor upon the premises. The 
common law protection cannot be relied upon in an action framed only on 
the statute. Gonsky v. Durrell, 87 L. J. K. B. 836 ; [1918] 2 K. B. 71. 

5. Animals ferce naturte are privileged; Co. Litt. 47 a; and so, it is there 
said, are dogs; but this is doubtful, see 1 Smith's L. C. 12th ed. 503 et seq. 

6. Goods in the custody of the law, e.g. goods distrained damage feasant 
or taken in execution. Co. Litt. 47 a; Peacock v. Purvis, 2 B. & B. 362; 
Wright v. Dewes, 3 L. J. K. B. 181; 1 Ad. & E. 641. But now by 14 & 15 
V. c. 25, s. 2, growing crops seized and sold under an execution may, while 
remaining on the premises, be distrained for rent accruing due after seizure 
and sale, if there be no other sufficient distress on the premises. Goods in 
the possession of a bankruptcy messenger are not privileged. Briggs v. Sowry, 

II L. J. Ex. 193; 8 M^-A W. 729 But- the Bankruptcy Act, 1914, s. 35 (1), 

E. — VOL. II. y y 10 



784 Action for Illegal Distress. 

provides that " the landlord or other person to whom any rent is due from the 
bankrupt may at any time, either before or after the commencement of the 
bankruptcy, distrain upon the goods or effects of the bankrupt for the rent 
due to him from the bankrupt, with this limitation, that if such distress for 
rent be levied after the commencement of the bankruptcy, it shall be avail- 
able only for six months' rent accrued due prior to the date of the order of 
adjudication and shall not be available for rent payable in respect of any 
period subsequent to the date when the distress was levied, but the landlord 
or other person to whom the rent may be due from the bankrupt may prove 
under the bankruptcy for the surplus due for which the distress may not 
have been available." By the Companies (Consolidation) Act, 1908, (8 Ed. 7, 
c. 69j, B. 211, " where any company ... is being wound up " under that 
Act " by or subject to the supervision of the court, any attachment, sequestra- 
tion, distress, or execution put in force against the estate or effects of the 
company after the commencement of the winding-up shall be void to all 
intents." 

Chattels belonging to the Crown while on the land of a subject are 
privileged. Sec. of State for War v. Wynne, 75 L. J. K. B. 25; [1905] 
2 K. B. 845. 

In the cases above enumerated, there is an absolute privilege from distress, 
though in the case of an under-tenant's or lodger's goods, the lodger must 
take the steps provided by the Act in order to claim the privilege; but there 
are other things privileged, provided there be other sufficient distress on the 
premises ; these are — 

1. Beasts that gain the land, and sheep. 51 H. 3, st. 4, Euffhead 
■{Gapitula Itineris, 1 Stat, of the Eealm, p. 238); Co. Litt. 47 a, b. The 
statute applies in every case, whether there is an intermediate tenancy 
between the occupier and distrainor or not. Keen v. Priest, 28 L. J. Ex. 157 ; 

4 H. & N. 236, 289. Cart colts and young steers not broken in or used for 
harness or the plough, are not beasts which gain the land. S. C. 

2. Instruments of husbandry. 

3. The instrument of a man's profession or occupation. Simpson v. 
Hartopp, Willes, 512; Nargett v. Nias, 1 E. & E. 439; 28 L. J. Q. B. 143; 
Co. Litt. 47 a, b. See also the Law of Distress Amendment Act, 1888, 
s. 4, which gives absolute protection to a limited amount. 

4. Growing crops seized and sold under an execution, distrained under 
14 & 15 V. c. 25, s. 2. 

5. By the Agricultural Holdings Act, 1908, in the case of tenancies to 
which the Act applies, sect. 29 (1), provides that live stock taken on the land 
by the tenant, on a contract with the owner for feeding at a fair price, shall 
not be distrained, if there is other sufficient distress, and if there is not, then 
only to the amount of the price due, or to be paid, for the feeding. The " fair 
price " need not be in money. L. S Yorkshire Bank v. Belton, 64 L. J. 
Q. B. 568 ; 15 Q. B. D. 457. Cattle on land under an agreement allowing 
the owner " the exclusive right to feed the grass on the land for four weeks," 
are not within the section. Masters v. Green, 20 Q. B. D. 807. 

Where conditionally privileged goods are taken when there are sufficient 
unprivileged goods to satisfy the distress, it is wholly void, and the dis- 
trainor is liable in an action of trespass or for conversion to the full value of 
goods. Nargett v. Nias, supra; Keen v. Priest, supra. But if privileged 
goods are taken, along with others not privileged, he is' a trespasser ah 
initio qui the privileged goods only. Harvey v. Pocock, 12 L. J. Ex. 434; 
11 M. & W. 740. It should be observed that the distrainor is only bound to 
satisfy his claim primarily, with goods that were distrainable at common law, 
and need not seize growing crops or other things made distrainable by 
statute, in preference to goods conditionally privileged. Piaaott v Birtles 

5 L. J. Ex. 193; 1 M. & W. 441. ^ & un- 
it the landlord agree that certain goods placed on the land demised shall 

not be liable to distress, or that he will not distrain till a certain condition 
has been fulfilled, he will be liable in an action of trespass or for conversion, 

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Goods privileged from Distress. 785 

i£ he take them in breach of the agreement. Horsford v Webster, i L. J. 
Ex. 100; 1 C. M. & E. 696; Giles v. Spencer, 3 C. B. (N. S.) 253; 26 L. J. 
C. P. 237. Where goods have been left in a depository warehouse, which is 
in the apparent possession of the landlord, he cannot seize them for rent due 
to a tenant to whom he has in fact let the premises. Miles v. Furber, 
42 L. J. Q. B. 41 ; L. E. 8 Q. B. 77. As to the effect of sale following seizure 
for a distress, of a patented article on the premises of the person licensed to 
use it, see British Mutoseope Go. v. Horner, 70 L. J. Ch. 279; [1901] 1 Ch. 
671. 

Damages.] In the case of an illegal distress, the measure of damages is 
usually the value of the goods seized, and no deduction can be allowed for 
any rent due. Attack v. Bramwell, 3 B. & S. 520; 32 L. J. Q. B. 146; 
Nargett v. Nias, 28 L. J. Q. B. 143; 1 E. & E. 439. So a stranger, whose 
sheep' are on a tenant's land, may bring trespass against the landlord for 
distraining them, when there are other distrainable goods or cattle on the 
land, and may recover the full value of the sheep. Keen v. Priest, 
4 H. & N. 236 ; 28 L. J. Ex. 157. The plaintiff is entitled to recover the 
full value of the goods, although he has only a special property in them. 
Swire v. Leach, 18 C. B. (N. S.) 479; 34 L. J. C. P. 150. Where there has 
been a wrongful seizure, and a man has been placed in possession for some 
days, the plaintiff may recover substantial damages though he has had the 
use of the goods all the time. Bayliss v. Usher (or Fisher), 9 L. J. (0. S.), 
C. P. 43; 7 Bing. 153; see also Doss v. Doss, 14 L. T. 646. In the case of 
distress and sale by a landlord where no rent is due, the jury ought under 
stat. 2 W. & M. sess. 1, o. 5, «. 4, in an action on that statute, to be directed 
to give as damages double the value of the goods seized. Masters v. Farris, 

I C. B. 715. 

Defence. 

The defence must, of course, in each case depend on the form of the state- 
ment of claim and subsequent pleadings. It will be easily gathered from 
what is stated with regard to the right of action in each class of illegality 
what defences can be raised. 

The defence of not guilty (by stat. 11 G-. 2, c. 19, ss. 12, 21) admits evidence 
of everything that might lawfully be done in order to make the distress. 
Maine v. Davey, 4 Ad. & E. 892 ; Williams v. Jones, 11 Ad. & B. 643 ; follow- 
ing Ross V. Clifton, Id. 631; Eagletan v. Guttendge, 12 L. J. Ex. 359; 

II M. & W. 465. Where some privileged goods are taken, the defendant 
may justify under that defence as to the taking of goods not privileged. 
Harvey v. Pocock, 12 L. J. Ex. 434; 11 M. & W. 740. 

The defence arising under 11 G. 2, c. 19, where the goods have been 
fraudulently removed, must be specially pleaded; for 11 G. 2, c. 19, s. 21, 
by which the landlord is enabled to plead the general issue, relates only to 
distresses made upon premises in respect of which the rent is due. Furneaux 
V. Fotherby, 4 Camp. 136 ; Postman v. Harrel, 6 C. & P. 225, 226 ; and other 
cases cited 2 Wms. Saund. 284, c, (2), (d). 

A landlord whose bailiff has wrongfully distrained fixtures is not liable in 
trespass, although he has received the proceeds, but in ignorance of the 
illegal act. Freeman v. Rosher, 18 L. J. Q. B. 340; 13 Q. B. 780. .Secus, 
where, knowing that it is alleged that the distress is illegal, the landlord 
retains the proceeds of the sale. Becker v. Riebold, 30 T. L. B. 142. 
Where the broker takes goods which it was intended that he should take, 
the landlord is liable for any irregularity in the conduct of the distress. 
Haselor v. Lemoyne, 5 C. B. (N. S.) 530; 28 L. J. G. P. 103. Where a 
distress warrant was signed by defendant as agent of the landlord, and rent 
was tendered to the defendant before actual distress, the defendant was held 
liable in trespass for damages, including an illegal exaction by the broker 
employed by him oO;gS&^Jbj|?QiWCA?JSCift®ess. Bennett v. Bayes, 



786 Action for Seduction. 

5 H. & N. 391 ; 29 L. J. Ex. 224. The landlord is not liable for an assault 
committed by the broker in executing the warrant. See Richards v. W. 
Middlesex Waterworks Co., 54 L. J. Q. B. 551 ; 15 Q. B. D. 660. A pound- 
keeper is not liable for goods wrongfully distrained, unless he exceeds his 
duty or assents to the trespass. Bodkin v. Powell, Cowp. 478. And where 
a servant, authorized to distrain cattle damage feasant, drives cattle off 
the plaintiff's land into his master's, and then distrains them, the master 
is not liable in trespass. Lyons v. Martin, 7 L. J. Q. B. 214; 8 Ad. & E. 
512. Where overseers obtained a distress warrant for rates, and handed it 
to the assistant overseer W. for execution, they were held not liable for 
illegalities committed by W. in making the distress, as he acted under his 
independent statutory authority. Baker v. Wicks, 73 L. J. K. B. 410; 
[1904] 1 K. B. 743. 

The Metropolis Management Amendment Act, 1862 (25 & 26 V. c. 102), 
s. 96, enacts that the owner shall allow the occupier of premises to deduct 
out of the rent from time to time becoming due, the sums of money which 
the occupier pays the vestry for works done by them under the Act. The 
occupier can only avail himself of the provision when he has actually paid 
the money ; and therefore a distress for rent due after service of a demand 
for payment from the vestry, but before payment, is legal. Ryan v. 
Thompson, 37 L. J. C. P. 134 ; L. B. 3 C. P. 144. If before sale of the 
distress the payment be made to the vestry by the tenant, the landlord may, 
nevertheless, go on and sell enough of the distress to defray the expenses 
of the distress. Id. See on this case Skinner v. Hunt, 73 L. J. K. B. 680; 
[1904] 2 K. B. 460, 461. And where the occupier has expressly agreed with 
the owner to pay for such works, his payment to the vestry affords no answer 
to a distress. S. C. A bailiff who has been withdrawn by the landlord 
cannot go on and sell for this purpose; if he do so the sale is void, and no 
property passes to the purchaser. Harding v. Hall, 14 Jj. T. 410. 



ACTION FOE SEDUCTION. 

This action is founded, not upon any wrong done to the woman seduced, 
but upon that done to the person who has a right to her services, and who 
is always the plaintiff. The origin and principle of actions for seducing or 
enticing away servants, or those who have entered into contracts for personal 
service, are discussed in Lumley v. Gye, 2 E. & B. 216 ; 22 L. J. Q. B. 463. 
Even although the relation of master and servant do not strictly exist 
between A. and B., A. can sue C, for inducing B. wrongfully to break his 
contract of exclusive personal service with A., of which C. had notice, thereby 
in fact and naturally causing injury to A. S. C. ; Bowen v. Hall, 60 L. J. 
Q. B. 305; 6 Q. B. D. 333; S. Wales Miners' Federation v. Glamorgan 
Coal Co., 74 L. J. K. B. 525; [1905] A. C. 239; unless there be justification 
for interfering with the legal right. S. C. The same principle applies to 
business contracts. Temperton v. Russell, 62 L. J. Q. B. 412; [1893] 
1 Q. B. 715; Quinn v. Leathern, 70 L. J. P. C. 76; [1901] A. C. 495; 
Hamlyn v. Houston, T2, L. J. K. B. 72; [1903] 1 K. B. 81; Exchange Tele- 
graph Co. M. Central News, 66 L. J. Ch. 672; [1897] 2 Ch. 48; Id. v. 
Gregory, 65 L. J. Q. B. 262; [1896] 1 Q. B. 147; Wilkins v. Weaver, 
84 L. J. Ch. 929; [1915] 2 Ch. 322; and it is sufBcient to prove facts from 
which it may be inferred that some damage must result to A., and the 
damages are then at large. S. CC. In all such cases, however, there must 
be a valid contract between A. and B. De Francesco v. Bamum, 60 L. J. 
Ch. 63 ; 45 Ch. D. 430. It is not actionable for A. to induce a master lawfully 
to discharge his servant P. and not to employ him again, although damage 
is thereby caused to P., whatever A.'s motive may be. Allen v. Flood, 
67 L. J. Q. B. 119; [1898] A. C. 1. It is otherwise, however, where A. acts 
in concert with others with intent to injure F. See Action for Conspiracy,. 

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Evidence of the Service. 787 

ante, and Conway v. Wade, 78 L. J. K. B. 1025; [1909] A. C. 506. It 
must be observed that by the Trade Disputes Act, 1906, 6 E. 7, c. 47, s. 3, 
" an act done by a person in contemplation or furtherance of a trade dispute 
shall not be actionable on the ground only that it induces some other person 
to break a contract of employment, or that it is an interference with the 
trade, business, or employment of some other person, or with the right of 
some other person to dispose of his capital or his labour as he wills." See 
Conway v. Wade, supra. 

As to enticing away a wife, see Smith v. Kay, 20 T. L. E. 261. 

In an action for seduction, the plaintiff may have to prove (1), that the 
party seduced was in the plaintiff's service; and (2), the seduction and (3), 
the subsequent loss of service. 

Evidence of the service.] Although this action cannot be maintained with- 
out some proof of the service, or liability to service, and it is not sufficient 
merely to show that the plaintiff has incurred an expense in consequence of 
the confinement of the party seduced; Satterthwaite v. Dewhurst, i Dong. 
315 ;-5 East, 47, n. ; Orinnell v. Wells, 14 L. J. C. P. 19 ; 7 M. & Gr. 1033; 
yet it is not necessary to prove an actual contract of service, or that wages 
have been paid. Evans v. Walton, 36 L. J. C. P. 307; L. E. 2 C. B. 615. 
What is adequate evidence of service in such cases was considered in the 
Irish case of Murray v. Fitzgerald, [1906] 2 I. E. 254. There a man who 
was rated as the occupier of a farm was held entitled to claim for the 
seduction of his sister, who did the work of an indoor servant. Where the 
daughter is a minor, living at her father's house, the service may be pre- 
sumed; Harris v. Butler, 6 L. J. Ex. 133; 2 M. & W. 542; Maunder v. 
Venn, M. & M. 324; R. v. Ghillesford, 4 B. & C. 94, 102; 3 L. J. (0. S.) 
K. B. 148, 152; so, where a minor has been away from home in domestic 
service and that service is determined, the father's right to her services 
instantly revives, and he can maintain an action if she be seduced while 
returning home. Terry v. Hutchinson, 37 L. E. Q. B. 257; L. E. 3 Q. B. 
599. And where the daughter is of age (in which case also the action is 
maintainable. Booth v. Charlton, cited 6 East, 47; Tullidge v. Wade, 3 Wils. 
18), the slightest evidence of service, such as milking cows, has been held 
sufficient. Bennett v. Allcott, 2 T. E. 168. Even making tea has been said 
to be an act of service. Per Abbott, C.J., Carr v. Clarke, 2 Chitty, 261; 
Mann v. Barrett, 6 Esp. 32. Where a daughter has been seduced, the 
parents may maintain an action on the supposed relation, though the rank 
and circumstances of the parties make it improbable that she should be 
treated as a menial servant. Fores v. Wilson, Peake, 55. 

It must in general appear that the daughter was residing with the father 
at the time of the seduction, or at least, that though absent from home, she 
was still constructively in his service. Thus, where the plaintiff put a 
daughter out to board and reside with the defendant as an apprentice for two 
years, no action was held to lie against the defendant for seducing her, 
whereby she became ill, and was obliged to remove to the plaintiff's house 
again, and to be supplied by him with medicines, &c. Harris v. Butler, 
supra. Where the daughter at the time of the seduction was acting as 
housekeeper to her brother-in-law, and though she might have left him when 
she pleased , had no intention of so doing ; it was held that the action could 
not be maintained. Dean v. Peel, 5 Bast, 45. Where the daughter, though 
in the service of a relation, or keeping a separate establishment of her own, 
was in the habit of paying to her father part of her wages ; held that this 
circumstance gave him no right of action. Carr v. Clarke, 2 Chitty, 260; 
Manley v. Field, 7 C. B. (N. S.) 96; 29 L. J". C. P". 79. So, although the 
daughter intended to return to her father's when she quitted her service; 
Blaymire v. Haley, 9 L. J. Ex. 147 ; 6 M. & W. 55 ; or where the daughter 
was spending a few days' holiday with the plaintiff, her mother. Hedges v. 
Tagg, 41 L. J. Ex. 169; L. E. 7 Ex. 283. So, where the daughter, by 
permission of the mi#^fji/^d/ ijyrlft^ejrdSDA^her after the usual day's 



788 Action for Seduction. 

work was done. Thompson v. Ross, 5 H. & N. 86; 29 L. J. Ex. 1; WUt- 
bourne v. Williams, 70 L. J. K. B. 933; [1901] 2 K. B. 722. But see 
Dent V. Magiiire, [1917] 2 I. E. 59, when the daughter who was in service 
returned to her mother's house for treatment in respect of an ailment, and 
was seduced during that time, being subsequently confined in the union 
infirmary, the mother was held entitled to maintain the action. 

But where the daughter lived at her father's house from 6 p.m. to 7 a.m. 
daily, and during the rest of her time was occupied in the service of the 
defendant as a labourer in husbandry : held that there was sufficient evidence 
of service under the father. Rist v. Faux, 4 B. & S. 409; 32 L. J. Q. B. 
383. So, where by permission of her parents she attended to the defendant's 
shop for a few days, during the temporary absence- of his wife, the action was 
held maintainable. Griffiths v. Teetgen, 15 C. B. 344 ; 24 L. J. C. P. 35. 
So, where the daughter was on a visit animo revertendi. Johnson v. 
M'Adam, cited 5 East, 47; see Terry v. Hutchinson, 37 L. J. Q. B. 257; 
L. E. 3 Q. B. 699. 

Where the daughter was a married woman, separated from her husband, 
and living as servant with her father, it was held that the latter might 
tfiaintain this action, as he had a right as against a wrongdoer to her services. 
Harper v. Luffkin, 7 B. & C. 387 ; 6 L. J. (0. S.) K. B. 23. Where the 
action was brought by the aunt of the party seiluced, with whom she resided, 
it was held that she stood in loco parentis, and was entitled to recover, 
though the mother was living. Edmondson v. Machell, 2 T. B. 4. So, 
where the plaintiff, an officer in the army, had adopted the daughter of a 
deceased soldier, he was held entitled to maintain this action. Irwin v. 
Dearman, 11 East, 20. A master, not related to his servant, may recover 
damages against the defendant for debauching her. Fores v. Wilson, 
Peake, 55; see Hall v. Hollander, 4 B. & C. 660; 4 L. J. (0. S.) K. B. 39. 
But, the action cannot be supported by the trustee of the bankrupt master. 
Howard v. Growther, 10 L. J. Ex. 355 ; 8 M. & W. 601. 

The relation of master and servant must exist at the time of the seduction : 
Davies v. Williams, 16 L. J. Q. B. 369; 10 Q. B. 725; Hedges v. Tagg, 
41 L. J. Ex. 169; L. E. 7 Ex. 283; and also at the time of the confinement 
where that is relied on as the occasion of loss of service. S. C, Id. See also 
Harris v. Butler, 6 L. J. Ex. 133; 2 M. & W. 542. Where therefore the 
seduction took place during the lifetime of the woman's father, but the con- 
finement took place after the father's death, an action was held not maintain- 
able by the mokher. Hamilton v. Long, [1903] 2 I. E. 407; [1905] 2 I. E. 
552; approved and followed in Peter v. Jcmes, 83 L. J. K. B. 1115; [1914] 
2 K. B. 781. See further Barnes v. Fox, [1914] 2 I. E. 276. 

Where the defendant hired a young woman with the object of seduction 
as well as for domestic service, the contract of service was, as against the 
father of the young woman, held invalid. Flynn v. Gonnell, [1919] 2 I. E. 
427, applying the principle of Speight v. Oliviera, 2 Stark. 493. 

Evidence of the seduction and loss of service.'] Loss of service consequent 
on the seduction is necessary to support the action whether framed in 
trespass : Eager v. Grimwood, 16 L. J. Ex. 236 ; 1 Ex. 61 ; or, in case : 
Orinnell v. Wells, 14 L. J. G. P. 19; 7 M. & Gr. 1033; see Hedges v. Tagg, 
supra. The action is commonly brought against the defendant for debauch- 
ing the plaintiff's daughter or female servant, and in this case the illness, 
consequent on her pregnancy and confinement, is usually relied on as 
evidence of loss of service : but the action was held to lie, though the 
daughter had not been actually confined before action brought, and though 
the plaintiff had voluntarily turned her out of his house upon discovery of 
her pregnancy. Per Ld. Denman, C.J., Joseph v. Gorvander, Winton Sum. 
Ass. 1834. In Manville v. Thomson, 2 C. & P. 303, the action was main- 
tained, although it did not appear that the daughter had become pregnant. 

The action is also maintainable for enticing or keeping a servant away 
from her master's service without debauching her, the actual removal of the 

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Damages — Evidence in Aggravation — Defence. 789 

servant constituting the loss of servifte. Evans v. Walton, 36 L. J. C. P. 
307; L. R. 2 C. P. 615. See also Lumley v. Gye, 22 L. J. Q. B. 463 1 
2 E. & B. 216 ; and Bowm. v. HaU, 50 Li. J. Q. B. 305; 6 Q. B. D. 333. 

Damages — Evidence in aggravation.] Although the loss of service is the- 
legal foundation of this action, and though it is difficult to reconcile with 
principle the giving of greater damages on another ground, the practice has- 
become inveterate, and cannot now be shaken. Per Ld. EUenborough , C.J.,, 
in Irwin v. Dearman, 11 East, 24. Damages may therefore be given for the 
loss which the plaintiff has sustained by being deprived of the society and 
comfort of his child, and by the dishonour which he suffers. Southernwood. 
V. Bamsden, 2 Selw. N. P. 13th ed. 1066 ; Chambers v. Irwin, Id. ; Bedford 
V. McKnowl, 3 Esp. 119; Tullidge v. Wade, 3 Wils, 19; Andrews v. Askey, 
8 C. & P. 9, 10. The jury are to take into consideration the situation in life 
of the parties; but evidence of the defendant's means is irrelevant to the 
issue, and therefore not admissible. Hodsoll v. Taylor, 43 L. J. Q. B. 14 ; 
L. E. 9 Q. B. 79. 

The plaintiff may prove that the defendant was addressing his daughter as 
an honourable suitor. Dodd v. Norris, 3 Camp. 519; Elliott v. Nicklin, 5 
Price, 641. It has been held that neither in chief nor in cross-examination 
can the plaintiff show that the defendant had previously made a promise of 
marriage to the daxighter; for this is a distinct cause of action by the 
daughter. Dodd v. Norris, supra; Tullidge v. Wade, 3 Wils. 19. But 
several cases are mentioned in 2 Stark. Evid. 3rd. ed. 990, where such 
evidence has been admitted, not with the view of augmenting the damages, 
but to vindicate the character of the person seduced, and to show the means 
used by the defendant to effect the injury; and in Capron v. Balmond, 
Exeter Sp. Ass. 1831, Park, J., not only allowed proof of a promise, but 
also that the defendant had persuaded the daughter to take measures to 
destroy her offspring, and had spoken to her about hiring a nurse, and other 
arrangements in contemplation of marriage, these facts being all immediately 
connected with the act complained of. 

The plaintiff is allowed to prove the amount of the expenses sustained by 
him in consequence of his daughter's confinement, &c. The expenses of 
medical attendance, though not paid, may be recovered. Dixon v. Bell, 
1 Stark. 289. Declarations of the defendant's wife, tending to prove a con- 
federacy between them to seduce the plaintiff's daughter, have been admitted 
in aggravation. Knowles v. Compigne, Winton Sum. Ass. 1835. 

Where the master was not the parent of, or related, or in loco parentis to 
the servant, he can only recover out-of-pocket expenses owing to his being 
deprived of her services. McKenzie v. Hardinge, 23 T. L. E. 15. 

Evidence of character. 1 The plaintiff cannot give evidence of the 
daughter's good character, except in answer to evidence of general bad 
character given on the other side; Bamfield v. Massey, 1 Camp. 460; and 
even where the daughter had been cross-examined as to circumstances of 
extreme indelicacy and levity in her conduct, Ld. EUenborough ruled that 
the plaintiff was not at liberty to call witnesses to character, for there was 
an opportunity of explaining on re-examination, the questions put on the 
cross-examination. S. C. But, in another case, where the cross-examination 
of the party seduced went to show that she had conducted herself immodestly 
towards the defendant before the seduction, and had kept improper company, 
the plaintiff was allowed, without objection, to prove the general good 
character and modest deportment of his daughter, and the general respect- 
ability of the family. Bate v. Hill, 1 C. & P. 100. 

Defence. 

The defendant may show that he is not the father of the child, though 
he admits the criminal intercourse, for this negatives the loss of service. 
Eager v. Grimwood, 16/ijQj(;^|w 33fi ;/UjE!ig 6k«^s to the effect of quashing^ 



790 Action for Assault and Battery. 

au affiliation order see Anderson v. Gollinson, 70 L. J. K. B. 620; [1901] 2 
K. B. 107. 

Damages. — Evidence in mitigation.] Where the plaintiff has been guilty 
of gross misconduct in suifering the defendant to continue his visits as 'i. 
suitor to his daughter, knowing that he was a married man, on an alleged 
probability of divorce, Ld. Kenyon non-suited the plaintifl. Reddie v. 
Scolt, Peake, 240. But it may be doubted whether this was not rather 
matter in reduction of damages. In mitigation of damages the defendant 
may show the loose character of the girl; but if she be asked whether, before 
her acquaintance with the defendapt, she had not been criminally connected 
with other men, she is not bound to answer the question. Dodd v. Norris, 
3 Camp. 519. Where, however, the evidence would tend to show that the 
defendant is not the father of the child, it may be otherwise. Garhutt 
V. Simpson, 32 L. J. M. C. 186. He may prove expressions of the daughter 
tending to show the levity of her character; but if the expressions also tend 
to contradict her evidence, they cannot be proved without previously asking 
her, on cross-examination, whether she used them. Carpenter Y. Wall, 11 
Ad. & E. 803; 9 L. J. Q. B. 217. 



ACTION FOE ASSAULT AND BATTERY. 

Evidence of the assault.] An attempt to do a corporal injury to anotherj 
coupled with a present ability, or any act or gesture from which an intention 
to commit a battery may be implied, is an assault. Genner v. Sparkes, 
1 Salk. 79; Read v. Coker, 13 C. B. 850; 22 L. J. C. P. 201. Riding 
after a person and obliging him to run away to avoid being beaten, is an 
assault. Martin v. Shoppee, 8 C. & P. 373. To upset a chair or carriage in 
which a person is sitting is an assault. Hopper v. Reeve, 7 Taunt. 700. To 
throw a lighted squib at A., who, in self-defence, throws it from him, so that 
it accidentally falls on B., ia an assault by the first thrower on B. Scott v. 
Shepherd, 2 W. Bl. 892; 1 Smith's L. C. Where parish officers cut 
off the hair of a pauper against her will, it was held to be an assault. Forde 
V. Skinner, 4 C. & P. 289. 

A battery, which always includes an assault, is the actual doing an injury, 
be it ever so small, in an angry or revengeful, or rude or insolent manner, as 
by spitting in a man's face, or violently jostling him out of the way. B. N. P. 
15. To" throw water upon a person is a battery. Pursell v. Horn, 7 L. J. 
Q. B. 228 ; 8 Ad. & E. 602. An assault or battery must be an act done 
against the will of the party assaulted ; Ghristopherson v. Bare, 17 L. J. 
Q. B. 109 ; 11 Q. B. 473. Therefore a touch or stroke in jest is no assault. 
Williams v. Jones, Cas. temp. Hardw. 301. So, a touching to engage 
attention. Coward v. Baddeley, 4 H. & N. 478; 28 L. J. Ex. 260. It is 
not essential that the act should appear to be wilful, it is enough if it be 
negligent ; for no man shall be excused of a trespass except it may be judged 
utterly without his fault. Weaver v. Ward, Hob. 134; Com. Dig. Pleader, 
Trespass (3 M. 20, 30, 31). But it has been held by Denman, J., after 
reviewing the previous cases, that where the act was accidental in the sense 
of being unintentional, and there was no negligence, trespass will not lie, 
Stanley v. Powell, 60 L. J. Q. B. 52; [1891] 1 Q. B. 86. Thus, where shot 
from the defendant's gun glanced from a tree and struck the plaintiff, the 
defendant was held not liable in the absence of negligence. S. C. 

Liability of the defendant.] Where " in course of carrying out his employ- 
ment the servant commits an excess beyond the scope of his authority the 
master is liable," even though the servant be thereby guilty of a criminal act. 

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Damages — Defence — Self-defence. 791 

Dyer v. Munday, 64 L. J. Q. B. 448; [1895] 1 Q. B. 742, 746, following 
Greenwood v. Seymour, 7 H. & N. 355 ; 30 L. J. Ex. 327. As to the forcible 
feeding of prisoners, see Leigh v. Gladstone, 26 T. L. E. 139. 

Damages.] The eircumstanoes of time and place, when and where the 
insult was given, require different damages ; thus it is a greater insult to be 
beaten upon the Eoyal Exchange than in a private room; Tullidge v. Wade, 
3 Wils. 19; and see Bracegirdle v. Orford, 2 M. & S. 77 ; Merest v. Harvey, 
5 Taunt. 442, 444. See further sub tit. Action for false imprisonment, post. 
Damages must be assessed jointly against co-trespassers. Id. As to remote- 
ness of consequential damage, see Glover v. L. d: 8. W. Ry., 37 L. J. Q. B. 
57;L. E. 3Q. B. 25. 

Defence. 

There is no assault if the plaintiff consented to the defendant's act. 
Ghristopherson v. Bare, 17 L. J. Q. B. 109; 11 Q. B. 473. Nor if the injury 
is the result entirely of a superior agency, and is unavoidable, and the 
conduct of the defendant entirely without fault. Gibbons Y. Pepper, 1 Ld. 
Eaym. 38; Wakeman v. Robinson, 1 Bing. 213; Hall v. Feamley, 12 L. J. 
Q. B. 22; 8 Q. B. 919; B. N. P. 15. See Holmes v. Matlier, 44 L. J. Ex. 
176; L. E. 10 Ex. 261. And "it is believed that all the cases in which 
inevitable accident has been held an excuse for what primd facie was a tres- 
pass, can be explained on the " principle " that the circumstances were such 
as to show that the plaintiff had taken the risk upon himself." Fletcher v. 
Rylands, 35 L. J. Ex. 154; L. E. 1 Ex. 287. Where the assault amounts 
to a felony, for which the defendant has not been prosecuted, and no reason- 
able excuse shown for his not having been prosecuted, the court will stay 
further proceedings until the defendant has been prosecuted. Smith v. 
Selwyn, 83 L. J. K. B. 1339; [1914] 3 K. B. 98; where Wells v. Abraham, 
41 L. J. Q. B. 306 ; L. E. 7 Q. B. 554, was considered. In the Irish case 
of Carlisle v. Orr, [1918] 2 I. E. 442, it was said that in its modern 
application the rule that the defendant should be prosecuted in respect of 
the felony before the civil action is heard, is merely suspensory of the civil 
rights, and is subject to the exercise of judicial discretion. See further 
Ex pte. Ball, 48 L. J. Bk. 57; 10 Ch. D. 667; Midland Insur. Co. v. Smith, 
60 L. J. Q. B. 329 ; 6 Q. B. D. 561 ; Roope v. D'Avigdor, 10 Q. B. D. 412 ; and 
Appleby v. Franklin, 55 L. J. Q. B. 129; 17 Q. B. D. 93. 

Mitigation of damages.] The defendant may prove any circumstances in 
mitigation which tend to reduce the quantum of damages, and which could 
not have been pleaded as a defence to the action. See Eules, 1883, 0. xxi., 
r. 4. He may for this purpose give evidence of a prior assault on him by 
the plaintiff. Syers v. Chapman, 2 C. B. (N. S.) 438. See further sub tit. 
Action for false imprisonment, post. 

Evidence under defence of self-defence — Excess.'} A common defence 
in this action is that the plaintiff made the first assault, and that the 
defendant's battery was in self-defence. Co. Litt. 212 b. If the plaintiff 
take issue on this defence, he puts the whole defence in issue, and the defen- 
dant will have to prove the prior assault by the plaintiff, which occasioned 
the defendant's assault. Timothy v. Simpson, 1 C. M. & E. 757 ; 4 L. J. Ex. 
81. If he prove that the plaintiff lifted up his stick and offered to strike 
him, it may be a sufficient assault to justify his striking the plaintiff, and 
he need not stay till the plaintiff has actually struck him. B. N. P. 18. 
But it is not every assault that will justify every battery ; and it is matter 
of evidence whether the assault was proportionable to the battery. Thus, if 
A. strikes B., B. cannot justify drawing his sword and cutting off A.'s hand. 
Cook V. Beal, 1 Ld. Eaym. 177. However, in such case, the plaintiff was 
not, in general, alloweg)to;j'Afed^'iypVWfi9'0fetJ#®''^*** ^^ *^8 violence of the 



792 Action for Assault and Battery. 

defendant's assault under a general replication denying the facts relied upon 
as a defence, but should have replied the excess. Dale v. Wood, 7 B. Moore, 
33; Oakes v. Wood, 3 M. & W. 150; 6 L. J. Ex. 200. And now, by Bules, 
1883, 0. xix., r. 15, each party must allege all those facts not appearing in 
the previous pleadings, on which he means to rely, as if not raised would be 
likely to take the opposite party by surprise. Matters that were formerly 
pleaded by way of new assignment, may now be introduced by amendment, 
or reply. Where the plaintiff alleges and proves an assault and battery, and 
the defence alleges matter to justify both, the defendant must prove enough 
of his defence to justify both. Lamb v. Burnett, 1 C. & J. 294. So, when 
the declaration alleged an assault, a turning out of plaintiff's house, and 
imprisonment, and the plea (besides not guilty) justified the assault and 
removal by a molliter manus, &c., and that because the plaintiff assaulted 
him, the defendant gave him in charge to a constable; it was held, that if 
the plaintiff proved the imprisonment, the defendant must prove the prior 
assault by the plaintiff. Reece v. Taylor, i Nev. & M. 469; 4 L. J. K. B. 
74; Phillips v. Howgate, 5 B. & A. 220. 

When the plaintiff could justify his first assault, he must have replied such 
matter of justification specially ; for it could not be given in evidence under 
a general replication. King v. Phippard, Carth. 281; B. N. P. 18. Thus, 
he could not show that the first assault was lawfully committed by him in 
enforcing a public right of way which the defendant prevented him from 
using. Bird v. Jones, 15 L. J. Q. B. 82, 85 ; 7 Q. B. 742, 750. And the rule 
would be the same under Eules, 1883, 0. xix., i. 15. 

Evidence on defence of justification in defence of possession.'] If the 
defendant pleaded that he was possessed of a house, &c., and that the 
plaintiff, without his licence, entered and disturbed him, whereupon he 
requested the plaintiff to depart, and, on refusal, gently laid hands upon him 
to turn him out ; and the plaintiff joined issue ; the defendant must have 
shown his possession, the plaintiff's entry and disturbance, the request to 
depart, and his refusal. If, in fact, the defendant was guilty of an excess of 
violence in resisting the plaintiff, the latter should formerly have new assigned 
or replied such excess. Weaver v. Bush, 8 T. B. 78. Kules, 1883, 0. xxiii., 
r. 6, abolished new assignments and matters that would formerly have 
been new assigned may now be introduced by amendment of the statement 
of claim, or by way of reply. If the plaintiff enter forcibly into the defen- 
dant's house, the latter may resist force by force without any previous 
request to depart, but the justification in such case should be that the 
plaintiff, with a strong hand, endeavoured forcibly to break and enter the 
defendant's close, whereupon the defendant resisted and opposed such 
entrance, &c., and that if any damage happened to the plaintiff, it was in 
defence of the possession of the close. Com. Dig. Pleader Trespass (3 M. 
16, 17) ; Bush v. Parker, 3 L. J. C. P. 232 ; 1 Bing. N. C. 72 ; Oakes v. Wood, 
6 L. J. Ex. 200; 2 M. & W. 791; 3 M. & W. 150. Where a defendant 
pleads and proves a good cause of justification, it is no answer upon a general 
reply, that he, in fact, alleged and actgd upon another, and a bad one at 
the time of the trespass ; semb. in Baillie v. Kell, 7 L. J. C. P. 249, 256 ; 
4 Bing. N. C. 638, 650, 651. 

The occupier of a public house, not being an inn, may eject any person 
therefrom who does not leave it on request. Sealey v. Tandy, 71 L. J. K. B. 
41; [1902] 1 K. B. 296. A tramway authority may lawfully eject a tres- 
passer from one of its cars and can delegate this power to a conductor. 
Whittaker v. London County Council, 84 L. J. K. B. 1146; [1915] 2 K. B. 
676. The tramway authority is liable if the conductor, by mistake, ejects a 
person who is not in fact a trespasser. S. C. Whether a car conductor 
in removing a passenger is acting in the supposed exercise of his powers 
under by-laws, or is actuated by personal malice, is a question which should 
be left to the jury. Hutchins v. London County Council, 85 L. J. K. B. 1177. 
A defence justifying the removal of the plaintiff from a boat in defen- 

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Defence — Reasonable Chastisement — Process of Law. 793 

dant's ■possession, is not supported by proof that the boat had been engaged 
for one day by the defendant on a pleasure eacursion, the crew employed by 
the owner still remaining upon it. Dean "V. Hogg, 3 L. J. C. P. 113; 10 
Bing. 345. Under a replication traversing generally a defence justifying in 
defence of his dwelling-house, it was not enough for the defendant to show 
possession of a room as a lodger. Monks v. Dykes, 8 L. J. Ex. 73; 4 M. & 
W. 567. A defence justifying the battery in defence of the carriage of the 
defendant, which the plaintiff was endeavouring to take, is not supported 
by proof that the plaintiff stopped the carriage in order to obtain the 
defendant's name and address. Oaylard v. Morris, 18 L. J. Ex. 297; 3 Ex. 
695. 

Where the plaintiff wrongfully holds possession of land against the will of 
the freeholder, who assaults him while endeavouring to regain possession, no 
action will lie. Harvey v. Bridges, 14 L. J. Ex. 272; 14 M. & W. 437. 
See further, as to justification for assault committed in defence of possession 
of land, Hayling v. Okey, 22 L. J. Ex. 139; 8 Ex. 531. It is a good 
defence to an action for assault, that it was committed in an attempt to take 
from the plaintiff dead rabbits of the defendant's master, which he bad 
refused to give up ; Blades v. Higgs, 10 C. B. (N. S.) 713 ; 30 L. J. C. P. 347 ; 
11 H. L. C. 621; 34 L. J. C. P. 286; or committed by forcibly preventing 
the plaintiff, who was on a highway, which crossed the defendant's moor, for 
the purpose solely of interfering with the defendant's right of shooting there- 
on, from so conducting himself as to interfere with that right. Harrison v. 
Rutland (Duke), 62 L. J. Q. B. 117; [1893] 1 Q. B. 142. Except, possibly, 
in cases of fraud, the tortious act of a servant is not within the scope of any 
implied authority, unless the servant's act is one which the master might 
legally have done. M'Namara v. Brown, [1918] 2 I. E. 215. In that 
case a " watcher to prevent poaching " fired at and killed the plaintiff's 
sou, who, with two other men, was poaching. The watcher's master had not 
supplied him with arms or ammunition, or money for their purchase. ■ It 
was held that the watcher was not acting within the scope of his authority, 
and that his master was not liable. See further, Badley v. London County 
Council, 109 L. T. 162. 

Evidence on defence of reasonable chastisement.] The master of a mer- 
chant ship has power on board his ship to inflict on A., a mariner of the ship, 
for an offence committed thereon, reasonable chastisement commensurate with 
such offence; The Lowther Castle, 1 Hagg. Adm. 384; Lamb v. Burnett, 1 
C. & J. 294; although the ship lay near the shore, and, owing to the master's 
absence, the punishment was not inflicted until four days after the offence 
was committed. S. C. So a master may inflict reasonable chastisement 
on his scholar, Cleary v. Booth, 62 L. J. M. C. 87; [1893] 1 Q. B. 465; 
Mansell v. Griffin, 77 L. J. K. B. 676 ; [1908] 1 K. B. 947 ; or apprentice. 
Penn v. Ward, 4 L. J. Ex. 304 ; 2 C. M. & E. 338. If the plaintiff rely on 
the chastisement being excessive he rhust reply the excess. S. C. 

Evidence of justification under process of law.} — Where process is irregular 
merely, no action <;an be maintained until that process is set aside. Per' 
Parke, B., Riddell v. Pakeman, 2 C. M. & E. 30. And the party at whose 
suit it is issued, and his solicitor, may justify under it until it has been set 
aside. Prentice v. Harrison, 12 L. J. Q. B. 315 ; 4 Q. B. 852. But it would 
seem that they cannot justify under void process, as where the court has no 
jurisdiction. Parsons v. Loyd, 3 Wils. 341. After process has been set 
aside for the irregularity, the client and his solicitor are liable in trespass for 
afi arrest or the like made under it. Codrington v. Lloyd, 7 L. J. Q. B. 196 ; 
8 Ad. & E. 449. A ca. so., set aside on the ground that it issued on a judg- 
ment for a debt under ^20, did not justify either solicitor or client; Collett v. 
Foster, 2 H. & N. 356 ; 26 L. J. Ex. 412 ; though the client had no knowledge 
of the issuing of the writ. See Bates v. Pilling, 9 B. & C. 38 ; 5 L. J. (0. S.) 
K. B. 40, and JarmainfJlg^^<^^f^^f^^Q§Q^(^Z; 6 M. & G. 827. And 



794 Action for Assault and Battery. 

they were liable, even though the writ be not set aside, for the stat. 7 & 
8 V. c. 96, s. 57, made the writ< absolutely unlawful. Brooks "V. Hodgkinson, 
4 H. & N. 712; 29 L. J. Ex. 93. "Whether set aside or not, the sheriff and 
his officer, and all persons acting under the sheriff, were in general protected 
by it, however irregular; Woolley v. Clarke, 5 B. & A. 746; provided it be 
not void on the face of it, or did not issue from a court without jurisdiction, 
and provided he or they did not join in the same defence with the party. 
Phillips V. Biron, Str. 509. Generally a solicitor who, as such, deliberately 
directs the execution of a void warrant, is liable in trespass. Green v. Elgie, 
14 L. J. Q. B. 162 ; 5 Q. B. 99. If the writ be only erroneous, a party may 
justify under it, after it has been set aside, for an act under it before it 
has been set aside. Prentice v. Harrison, supra. A judgment signed 
regularly and in good faith, although for an amount greater than is actually 
due, and afterwards set aside, furnishes a defence to an action of trespass, 
for an arrest on a ca. sa. issued thereunder. Smith v. Sydney, 39 L; J. 
Q. B. 144; L. E. 5 Q. B. 203. As it would be otherwise, if the judgment 
had been signed irregularly, or in bad faith, the court will examine on what 
grounds the judgment was eet aside. S. C> Where the writ has been 
issued after the judgment was satisfied by payment, it affords no defence 
to an action for trespass. Clissold v. Gratchley, 79 L. J. K. B. 635 ; [1910] 
2 K. B. 244. Where the defendant justified under a ca. sa., and the plaintiff, 
admitting the writ, replied de injurid absque residuo, Sc, he might ehow 
that the defendant did not, in fact, act under the writ at all, but he could not 
show the arrest to be a trespass ab initio, in consequence of antecedent 
matter, without a special replication. Price v. Peek, 4 L. J. P. 0. 76 ; 1 Bing. 
N. C. 380. A touching by an officer through a broken pane of glass is an 
arrest, and justifies forcible entry and seizure of the person so arrested. 
Sandon v. Jervis, 28 L. J. Ex. 166. Where the justification is under the 
process of an inferior court, its jurisdiction must appear on the face of the 
warrant. Doyle v. Falconer, 36 L. J. P. C. 33; L. E. 1 P. C. 328, and 
see 1 Wms. Saund. 75. 

Conviction or certificate of dismissal under 24 S 25 V. c. 100, ss. 43 — 45, 
c6c.] A summary conviction or a certificate of dismissal, by two justices, 
on a complaint, in respect of the same assault or battery, must be specially 
pleaded. It can only be given where there has been a hearing of the 
complaint " on the merits." Reed v. Nutt, 59 L. J. Q. B. 311; 24 Q. B. D. 
669. Thus where the defendant was summoned for an assault before a 
magistrate, and attended before him accordingly, although he had previously 
received notice that the plaintiff would not attend or offer any evidence on 
the summons, it was held that a certificate granted him by the magistrate 
in the absence of the complainant was no bar to a subsequent action to 
recover damages in respect of the same assault. S. C. In the action the 
question may be raised as to the jurisdiction of the magistrates to give the 
certificate. S. C. The certificate of dismissal is to be granted " forthwith, 
after the application for it by the person entitled to it," not " forthwith on 
the dismissal of the complaint." Costar v. Hetherington, 28 L. J. M. C. 
* 196 ; 1 B. & E. 795, and Hancock v. Somes, 1 E.- & E. 802 ; 28 L. J. M. C. 
198, overruling R. v. Robinson, 10 L. J. M. C. 9; 12 Ad. & E. 672. The 
dismissal of the complaint, as not proved, is not in itself an answer, 
independently of the certificate. S. C. Where the magistrate convicted the 
defendant, but only ordered him to enter into recognizances and pay the 
recognizance fee, this was held to be no bar to an action. Hartley v. Hind- 
marsh, 35 L. J. M. C. 255; L. E. 1 C. P. 553. It would seem, however, 
that since the Summary Jurisdiction Act, 1879 (42 & 43 V. c. 49), s. 16 (2), 
this would be otherwise. R. v. Miles, 59 L. J. M. C. 56, 58; 24 Q. B. D. 
423, 429, 430. But a conviction of the defendant for unlawfully wounding 
is no bar to the action. Lowe v. Howarth, 13 L. T. 297. A conviction for 
assault on a wife is a bar to an action by her and her husband. Masper v. 
Brown, 45 L. J. C. P. 203 ; 1 C. P. D. 97. A conviction of a servant for 

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Action for False Imprisonment. 795 

assault committed in the course of the business of his master is no defence to 
an action against the latter. Dyer v. Munday, 64 L. J. Q. B. 448; [1895] 
1 Q. B. 742. As to proof of a conviction, see Proof of records, ante. 

Statute of Limitations.^ By the Limitation Act, 1623, an action for 
assault or battery must be brought within four years after such cause of 
action. 



ACTION FOR FALSE IMPRISONMENT. 

In the action of trespass for false imprisonment the plaintiff may be 
required by suitable defences to prove the fact of imprisonment, that it was 
caused by the defendant, and the special damage, if any. Most of the cases 
under the last head of trespass for assault and battery are applicable to 
this action. 

Actions against judges, magistrates, die.] An action does not lie against a 
judge of a superior court for an act done judicially; Hamond v. Howell, 
2 Mod. 218; Dicas v. Brougham (Lord), 1 M. & Rob. 309; even though he 
acted oppressively and maliciously to the prejudice of the plaintiff and the 
perversion of justice. Anderson v. Gorrie, [1895] 1 Q. B. 668. " The 
general rule of law as to actions of trespass against persons having a limited 
authority, is plain and clear. If they do any act beyond the limit of their 
authority, . . . they thereby subject themselves to an action of trespass ; but 
if the act done be within the limit of their authority, although it may be 
done through an erroneous or mistaken judgment, they are not thereby 
liable to such action " ; Doswell v. Impey, 1 B. & C. 163, 169 ; 1 L. J. (0. S.) 
K. B. 99, 100 ; Lowther v. Radnor, 8 East, 113 ; Mills v. Gollett, 6 Bing. 85 ; 
7 L. J. (0. S.) M. C. 97. Even where they exceed the jurisdiction, they are 
not liable unless they know, or have the means of knowing, the defect of 
jurisdiction. Galder v. Halket, 3 Moo. P. C. 28. For harsh, undue, or 
oppressive exercise of a legal authority, the remedy is not by action of 
trespass; Willes v. Bridger, 2 B. & A. 286. When a magistrate acts with- 
out those circumstances which must concur to give him jurisdiction, as where 
he grants a warrant without information upon a supposed charge of felony, he 
is liable in trespass. Morgan v. Hughes, 2 T. R. 225. But, if there be an 
information, it matters not that it is, or purports to be, founded on 
inadmissible evidence. Cave v. Mountain, 1 M. & Gr. 257 ; 9 L. J. M. C. 90. 
As to what information is necessary to justify the issuing of a search 
warrant see Jones v. German, 66 L. J. Q. B. 281; [1897] 1 Q. B. 374. 
Where a magistrate commits a person for re-examination for an unreasonable 
time, he is answerable in trespass ; the continuance of a person in custody 
after a reasonable time being a new trespass ; Davis v. Gapper, 10 B. & C. 
28 ; 8 L. J. (0. S.) M. C. 67 ; and whether reasonable or not is a question for 
a jury. Gave v. Mountain, supra. The period of remand, in the case of a 
charge of an indictable offence, must not exceed eight clear days (11 & 12 V. 
c. 42, a. 21), except in cases falling within 42 & 43 V. c. 49, 
s. 24 (2). Sect. 36 of the Metropolitan Police Courts Act, 1839, which 
empowers a police magistrate to remand on bail, without any limit of time, 
a person charged before him with felony or misdemeanour remains, however, 
unaffected. Rex v. Garrett, 87 L. J. K. B. 129; [1918] 1 K. B. 6. Actions 
against justices of the peace for acts done by them in the execution of their 
office are regulated by stat. 11 & 12 V. c. 44, noticed sub tit. Actions against 
justices, post. Where an of&cer detains a person under process after bail 
tendered, or other ground of discharge, he is (at least where he has no notice 
of the facts affording ground of discharge) not liable in trespass. Smith v. 
Egginton, 7 Ad. & E.^Jy^^Jj^^JE^H^^gJ^y^^ if a person who has been 



796 Action for False Imprisonment. 

acquitted is detained by the prison warders to take a note of his physical 
and other characteristics, the gaoler is liable. Mee v. Cruikshank, 86 L. T. 
708. " Olliett V. Bessey, Sir T. Jones' Eeps. 214, 215; Butt v. Newman, 
Gow. 97; Countess of Rutland's Case, 6 Eep. 54 a; Henderson v. Preston, 
57 L. J. Q. B. 607 ; 21 Q. B. D. 362, and Greaves v. Keene, 4 Ex. D. 73, 
are, in my opinion, conclusive to show that where a gaoler receives a prisoner 
under a warrant which is correct in form, no action will lie against him if 
it should turn out that the warrant was improperly issued or that the court 
had no jurisdiction to issue it." Demer v. Cook, 88 L. T. 629, 631. But 
where the plaintiff was taken to prison under a warrant following a con- 
viction, and on appeal (the plaintiff being released pending the appeal) the 
conviction was affirmed, but the sentence altered and no fresh warrant of 
commitment was made out, the plaintiff being taken to prison and the only 
documents handed to the governor being a copy of the original conviction as 
altered and the original warrant of commitment,- it was held that the 
governor was not justified in receiving the plaintiff into custody and detain- 
ing him without a fresh warrant of commitment, the documents received by 
the governor not being equivalent to such warrant of commitment. S. C. 
" To contend that the gaoler would be justified in relying upon other docu- 
ments which are not in his possession and which are not handed to him, and 
which are not referred to in the document that is given to him, would be to 
lay down a most dangerous principle and to infringe the rule . . that the 
warrant and nothing else is the protection to the gaoler, and he is not entitled 
to question it or go behind it." S. 0., p. 631. A sheriff is not liable in 
trespass if, in obedience to a ca. so,., he arrest or detain a person who is 
privileged from arrest, although he had notice of the privilege. Tarlton v. 
Fisher, 2 Doug. 671; Magnay v. Burt, 5 Q. B. 381; 12 L. J. Q. B. 225; 
Ames V. Waterlow, 39 L. J. C. P. 41; L. R. 5 C. P. 53. He may take a 
"judgment debtor D. arrested under a commitment issued under the Debtors 
Act, 1869, s. 5, to prison within 24 hours of his arrest, for D. is not arrested 
by virtue of an " attachment for debt," within the meaning of the Sheriffs 
Act, 1887 (50 & 51 V. c. 55), s. 14 (1). Mitchell v. Simpscm, 59 L. J. Q. B. 
355; 25 Q. B. D. 183. It has been stated to be a trespass to remove a 
prisoner to a wrong class in a prison ; see Cobhett v. Grey, 19 L. J. Ex. 137 ; 
4 Ex. 729; but, although imprisonment in a part of the prison in which the 
plaintiff cannot legally be confined, is primd facie a trespass, the case hardly 
shows that every irregular distribution of prisoners, under lawful commit- 
ment, is a trespass by the gaoler. Kemp v. Neville, 31 L. J. C. P. 158 ; 
10 C. B. (N. S.) 523. In Osborne v. Milman, 17 Q. B. D. 514, it was 
assumed that trespass lay for placing a first-class misdemeanant on the 
criminal side of the prison and treating him as a convicted criminal : the 
judgment was reversed (56 L. J. Q. B. 263; 18 Q. B. D. 471), on the ground 
that the plaintiff was a criminal. The plaintiff had been arrested, and 
carried before the defendant, the Vice-Chancellor of the University of Cam- 
bridge, and by him she was sentenced to imprisonment in a private gaol 
called the Spinning House. No witnesses were examined at the hearing of 
the charge against the plaintiff, nor was any warrant of commitment pre- 
pared at the time. The defendant acted bond fide, and to the best of his 
judgment and discretion, but, as the jury found, had not made due inquiry 
into the character of the plaintiff. It was held, that as the charter of the 
university expressly gave authority to the defendant to punish by imprison- 
ment or otherwise, he thereby became a judge of a court of record, the pro- 
ceedings of which court could be proved or disproved by the record only, to 
be made up whenever required ; and as no form of proceeding was defined by 
the charter, either for the hearing, or the determination, or the committal, an 
action of trespass could not be sustained for any of the judicial acts com- 
plained of ; and that as the place of confinement appeared to be the 
accustomed place used for that purpose by the university, it must be taken 
to be a lawful gaol. Kemp v. Neville, 10 C. B. (N. S.) 523 ; 31 L. J. C. P. 
158. The powers so granted by the charter were repealed by stat. 67 & 58 V. 

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Actions Against Judges, &c. — With regard to Private Persons. 797 

c. Ix., 3. 5. The judge of a consular court having plenary civil jurisdiction 
over British subjects within its limits has the same immunities as the judge 
of a court of record. Haggard v. Pelicier Frires, 61 L. J. P. C. 19; 
[1892] A. C. 61. In the case of imprisonment of A. for a defined number of 
days, under a vfarrant, the time begins to run from the day A. is lodged 
in gaol. Ex pte. Foulkes, 15 L. J. Ex. 300 ; 15 M. & W. 612. See also 
Henderson v. Preston, 57 L. J. Q. B. 607 ; 21 Q. B. D. 362. To maintain 
an action here, in respect of a wrong committed abroad in M., the wrong 
must be such as would have been actionable if committed here, and was 
not legal in M. ■Philli'ps v. Eyre, 40 L. J. Q. B. 28, 40; L. B. 6 Q. B. 1, 
28, 29; Machado v. Pontes, 66 L. J. Q. B. 542; [1897] 2 Q. B. 231; Garr 
V. Fracis Times S Co., 71 L. J. K. B. 361; [1902] A. C. 176. 

An action of trespass cannot be maintained against a judicial officer, as 
against the steward of a court baron, where his bailiff by mistake takes the 
goods of A. under a precept against B. Holroyd v. Breare, 2 B. & A. 473. 
But, if the steward of a court baron, or hundred court, instead of leaving 
process to be executed by the usual officer, directs it to persons named by the 
party from whom he takes an indemnity, he is then liable in trespass for their 
acta. Bradley v. Garr, 3 M. & Gr. 221. In Kelly v. Lawrence, 3 H. & C. 1 ; 
33 L. J. Ex. 197, M. K., the plaintiff, was served by mistake with a writ 
against I. W. K., another person. He told the process-server his name, and 
that he was not the man named in the writ. As the plaintiff did not appear, 
a judgment was obtained, and a ca. sa. issued, under which he was arrested 
by virtue of a warrant from the sheriff to his officer directing him to take 
I. W. K. It was held (on the authority of W alley v. M'Gonnell, 19 L/. J. 
Q. B. 162; 13 Q. B. 903), that the sheriff was liable to an action for false 
imprisonment. See Straiten v. Lawless, 14 Ir. C. L. E. 432, and De Mesnil 
V. Dakin, 37 L. J. Q. B. 42; L. B. 3 Q. B. 18. Where a county court judge 
issues a warrant of commitment against a person not within his jurisdiction, 
but whom he bon& fide believes to be within it , not by reason of any erroneous 
statement of facts made before him, but in misapprehension of the law, he 
is liable in trespass. Houlden v. Smith, 19 L. J. Q. B. 170; 14 Q. B. 841. 
The clerk of a county court, acting under 9 & 10 V. c. 95, s. 102, was a 
mere ministerial officer, and was not liable in trespass for imprisonment 
under a warrant reciting a bad order; Dews v. Riley, 11 C. B. 435; 20 L. J. 
C. P. 264; and a registrar acting under the County Courts Act, 1888, ss. 26, 
161, seems to be protected in the same way. So too is the clerk of the 
peace. Demer v. Cook, 88 L. T. 629. 

See further, as to the liability of magistrates and officers, sub tit. Actions 
against constables, justices, dc, post. 

Form of action with regard to private persons.'] If a party act himself 
in apprehending another, he is liable in trespass ; but if he falsely and 
maliciously, and without any probable cause, put the law in motion, it is 
properly the subject of an action for malicious prosecution. Morgan v. 
Hughes, 2 T. B. 225, 231 ; Elsee v. Smith, 1 D. & By. 103. But by the mere 
fact that 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 is not liable in trespass for that imprisonment, even although 
the magistrate had no jurisdiction. Brown v. Chapman, 17 L. J. C. P. 
329; 6 C. B. 365. An arrest by the police, which follows the placing of the 
case in their hands to do their duty, is not an arrest by a private prosecutor, 
but is an arrest by the police. Meering v. Grahame-White Aviation Co., 
122 L. T. 44. 

Where a constable had arrested the plaintiff in consequence of information 
received from the defendant, the fact of the defendant having, at the 
constable's request, signed the charge sheet, did not render him liable to an 
action of trespass. Grinham v. Willey, 4 H. & N. 496; 28 L. J. Ex. 242; 
Sewell V. Nat. Telephone Co., 76 L. J. K. B. 196 ; [1907] 1 K. B. 557. But, 
it was held otherwise j^h^y^^lj^ j^sgn^J^^J^ j^j^j^ to keep the plaintiff in 



798 Action for False Imprisonment. 

custody unless the defendant signed the charge sheet, which he then did. 
Austin V. Bowling, 39 L. J. C. P. 260; L. E. 5 C. P. 534. 

A solicitor who places a writ of execution in the hands of an officer is 
not guilty of trespass, though he may be persuaded that the officer will 
execute it in a place which turns out, upon inquiry, to be out of his jurisdic- 
tion. Sowell V. Champion, 6 Ad. & B. 407, 417; 7 L. J. Q. B. 197, 199. 
But, if he direct it to be executed there, or if the officer tell the solicitor of his 
intention, and the solicitor, knowing it to be illegal, acquiesce in it, it may 
make him a trespasser. See 1 Wms. Saund. 75, (h). An attorney who 
obtained a warrant from a commissioner of bankrupt to arrest a party 
summoned for examination, was not liable in trespass, though it proved 
invalid, and though he urged the issuing of it, and gave it to the messenger 
to be executed. Cooper v. Harding, 7 Q. B. 928. And in an action of 
trespass, though the plaintiff's counsel opens the case as an arrest upon an 
illegal warrant, the plaintiff is not bound to produce the warrant, but the 
defendant, if he rely upon it, must produce it. Holroyd v. Doncaster, 
3 Bing. 492; 4 L. J. (0. S.) C. P. 178. Though an arrest under a ca. sa. 
on a judgment for a debt under £20 is illegal, yet the sheriff may justify 
under it. Brooks v. Hodgkinson, 29 L. J. Ex. 93 ; 4 H. & N. 712. Where a 
sheriff's officer arrested a person under two writs, and detained him after he 
had a right to discharge under one, until he had given a bailbond in both, 
yet trespass did not lie, if in fact his imprisonment was justifiable under the 
other. Blessley v. Slaman, 7 L. J. Ex. 33; 3 M. & W. 40. The plaintiff, 
solicitor in a Chancery suit, was succeeded by S., who obtained a writ of 
attachment against him for refusing to deliver up certain papers. The 
plaintiff was detained under the attachment, and unsuccessfully applied to 
the M. K. to set it aside. This decision was reversed by the L.JJ., who 
discharged the plaintiff from custody. It was held that neither S., nor his 
client, was liable in trespass. Williams v. Smith, 14 C. B. (N. S.) 596. 
If the defendant authorized his servant to arrest the plaintiff, it is no 
defence that the servant is a sworn constable. Mahoney v. Besley, 4 E. & F. 
544. 

As to the implied authority of a servant to arrest a person on behalf of his 
master, see Abrahams v. Deakin, 60 L. J. Q. B. 238; [1891] 1 Q. B. 516 
(following Allen v. L. d S. W. By., 40 L. J. Q. B. 65; L. E. 6 Q. B. 65); 
Knight v. North Metropolitan Tramways, 78 L. T. 227; Hanson v. Waller, 
70 L. J. K. B. 231; [1901] 1 K. B. 390; Lambert v. G. E. By., 79 L. J. 
K. B. 32; [1909] 2 K. B. 776 (arrest by railway police constables) see also 
cases cited sub tit. Actions by and against companies — Torts by corporations, 
post. As to the liability of the chairman of a meeting for the arrest of 
persons present, see Lucas v. Mason, 44 L. J. Ex. 145 ; L. E. 10 Ex. 251. 

Proof of the imprisonment.'] A total restraint of the liberty of the person 
for however short a time, " even by forcibly detaining the party in the streets 
against his will," will amount in law to an imprisonment. Bird v. Jones, 
16 L. J. Q. B. 82; 7 Q. B. 742, 752, citing 2 Selw. N. P. 11th ed. 915 (13th 
ed. 846), and 22 Ass. f. 104, pi. 35, per Thorp, C.J. See also Warner v. 
Riddiford, 4 C. B. (N. S.) 180; and Meering v. Grahame-White Aviation Co., 
122 Jj. T. 44. But it is no imprisonment to prevent a person from walking in 
any but one particular direction along a highway. Bird v. Jones, supra. 
See Wright v. Wilson, 1 Ld. Eaym. 739; Innes v. Wylie, 1 Car. & K. 257; 
and Robertson (or Robinson) v. Balmain New Ferry Co., 79 L. J. P. C. 84; 
[1910] A. C. 295. Where a miner under agreement for a seven hours' shift, 
refused to do certain work, and the employers declined to send him up in 
the lift, it was held that there was no false imprisonment, as he had no 
contractual right to be sent up before the end of the shift. Herd v. Weardale 
Steel Co., 84 L. J. K. B. 121; [1916] A. C. 67. To the same effect : Bums 
V. Johnston, [1916] 2 I. E. 444; [1917] 2 I. E. 137. 

An arrest is not confined to corporal seizure. Where an officer entered 
the room in which the defendant was, and locked the door, telling him at 

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Proof of the Imprisonment — Damages. 799 

the same time that he arrested him, the court held it to be a good arrest, 
though not a battery. Williams v. Jones, Gas. temp. Hardw. 300. Placing 
a party under arrest by a sheriff's officer, who held a writ of capias, without 
proceeding to actual contact, amounted to an arrest. Grainger v. Hill, 
7 L. J. C. P. 85 ; 4, Bing. N. C. 212. If a bailiff who has process against 
any one says to him (whether on foot or riding), " You are my prisoner; I 
have a writ against you," upon which he submits, and goes with him, though 
the bailiff never touches him, yet this is an arrest, because he had submitted 
to the process ; but if instead of going with the bailiff he runs away or 
escapes, it is no arrest unless the bailiff had actually laid his hand on him. 
Horner v. Battyn, B. N. P. 62. Where the constable said to the plaintiff, 
" You must go with me," on which the plaintiff said, " he was ready to go," 
and went with the constable towards a police office without being seized or 
touched, this was ruled to be an imprisonment; and per Abbott, C.J., " If 
«. person send for a constable, and give another in charge for felony, and the 
constable tell the party charged that he must go with him, on which the 
other, in order to prevent the necessity of actual force being used, expresses 
his readiness to go, and does actually go, this is an imprisonment." Pocock 
V. Moore, By. & M. 321; Ghinn v. Morris, 2 C. & P. 361. The law on this 
point was thus laid down by Eyre, C.J., in Simpson v. Hill, 1 Esp. 431 : " If 
the constable, in consequence of the defendant's charge, had for cue moment 
taken possession of the plaintiff's person, it would be in point of law an 
imprisonment; as, for example, if he had tapped her on the shoulder, and 
said, ' You are my prisoner,' or if she had submitted herself into his custody, 
such would be an imprisonment ; but the merely giving her in charge without 
any taking possession of the person, where nothing more passes than merely 
the charge, is not by law a false imprisonment." In the following case the 
circumstances were held to constitute an imprisonment. The plaintiff 
appeared before the defendant, a magistrate, to answer the complaint of A. 
for unlawfully selling bis dog. The defendant advised the plaintiff to settle 
the matter by paying a sum of money, which the plaintiff declined. The 
defendant then said, he would convict the plaintiff in a penalty under the 
Trespass Act, in which case he would be committed to prison. The plaintiff 
still declined paying, and said he would appeal. The defendant then called 
in a constable, and said, " Take this man out, and see if they can agree to 
settle the matter; and if not, bring him in again, as I must proceed to com- 
mit him under the Act." The plaintiff then went out with the constable, and 
settled the matter by paying a sum of money. It was held, that this was an 
assault and false imprisonment, for which trespass would lie; and which, 
as no conviction had been drawn up, the defendant could not jusitfy. 
Bridgett v. Coyney, 1 M. & Ey. 211. Where a sheriff's officer, having a 
warrant to arrest A., sent a message to him to fix a time to call and give a 
bailbond, and A. fixed a time, attended and gave bail : held (in an action 
for malicious arrest), that this was no arrest. Berry v. Adamson, 6 B. & C. 
528; 5 L. J. (0. S.) K. B. 215; George v. Radford, 3 C. & P. 464. See also 
Bieten v. Burridge, 3 Camp. 139. Proof of detainer satisfies the allegation 
of an arrest. Whalley v. Pepper, 7 C. & P. 506. 

Damages.^ If the plaintiff have been compelled by arrest under a void 
warrant to pay more money than is due, he is entitled to recover back the 
whole, and not only the over-payment. Clarlc v. Woods, 17 L. J. M. C. 189 ; 
2 Ex. 395. The plaintiff H. D. M., was arrested under a capias issued 
against 0. D. M. at the suit of X. ; the plaintiff protested that he was not the 
defendant in that action, but in order to obtain his release, lodged the debt, 
£4f) and £10 for costs, under the stat. 43 Gr. 3, c. 46, s. 2, in the hands of 
the sheriff's officer, who thereupon paid the sum into court, and it was taken 
out by X. : it was held, that in an action against the sheriff, the plaintiff was 
entitled to recover the JE50 he had paid, in addition to general damages for 
the arrest. De Mesnil v. Dakin, 37 L. J. Q. B. 42; L. E. 3 Q. B. 18. 

Where the plaintiff, i^'gf|i|/z@(j^jt)3^^|ife/a8ie5@#®o° * charge of felony, was 
B. — VOL. II. 11 



800 Action for False Imprisonment. 

remanded by the magistrate, the defendant who made the charge is not liable 
for damages for the imprisonment under the remand, for that is not his act. 
Lock V. Ashton, 18 L. J. Q. B. 76 ; 12 Q. B. 871. In an action for malicious 
prosecution the case would, it seems, have been different. Defendant, a 
coroner, by a warrant of commitment on his inquisition, without jurisdiction, 
caused the plaintiff to be imprisoned : he was bailed, and afterwards, while 
on bail, procured the inquisition to be quashed; held, that in an action for 
false imprisonment, plaintiff was entitled, under an allegation that he had 
incurred expense in procuring his discharge from custody, to recover damages 
for the expense of quashing the inquisition, in order to recover his state of 
freedom. Foxall v. Bamett, 2 E. & B. 928; 23 L. J. Q. B. 7. Secus, if he 
had previously recovered it. S. C, following Holloway v. Turner, 14 L. J. 
Q. B. 143 ; 6 Q. B. 928. Where the defendant gave the plaintiff in charge 
to a policeman, and she was taken to a police station, evidence that she was 
there stripped and searched was held admissible as a part of the injury 
suffered, such being the usual course of dealing with persons taken to the 
station. Dunphy v. Moore, 13 L. T. 179. The act of putting on the record a 
special defence imputing felony, which is abandoned at the trial, may be 
•urged in aggravation. Warwick v. Foulkes, 13 L. J. Ex. 109; 12 M. & W. 
.507. 

Damages must be assessed jointly against co- trespassers, although the 
motives of all may not be equally culpable. Eliot v. Allen, 1 C. B. 18; 
Smith V. Streatfeild, 82 L. J. K. B. 1237 ; [1913] 3 K. B. 764. The criterion 
of damage is the injury sustained, and not the act or motives of the most 
guilty, or the least guilty of the defendants. Clark v. Newsam, 16 L. J. Ex. 
396 ; 1 Ex. 181. See also Dawson v. McClelland, [1899] 2 I. R. 486. 



Defence. 

All matters in justification must now be pleaded specially; Eules, 1883, 
0. xix. rr. 15, 17 : except where certain Acts of Parliament enable the party 
to plead generally; vide, Not guilty by statute, post. 

Justification on the ground of felony, ifc] A private person is justified in 
arresting, or ordering the arrest of, the plaintiff on suspicion of having com- 
mitted a felony if, and only if, he can show that the particular felony for 
which he arrested the plaintiff was in fact committed, and he had reasonable 
and probable cause to suspect that the plaintiff committed it. Beckwith v. 
Philby, 5 L. J. (0. S.) M. C. 132; 6 B. & C. 635; Walters v. Smith, 
83 L. J. K. B. 335 ; [1914] 1 K. B. 595. A private person has not the same 
power as to a misdemeanour committed; Mathews v. Biddulph, 11 L. J. 
M. C. 13 ; 3 M. & G. 390 ; except in cases of breach of the peace committed 
in the defendant's presence, with a danger of a renewal of the breach. 
Timothy v. Simpson, 1 C. M. & E. 757 ; 4 L. J. Ex. 81 ; Ingle v. Bell, 1 
M. & W. 516 ; 5 L. J. M. C. 85. 

As to justification, under the Army Act, 1881, of the arrest on a charge 
of felony of a volunteer who had been training in a camp, see Marks v. 
Frogley, 67 L. J. Q. B. 605 ; [1898] 1 Q. B. 888. 

Under the provisions of several statutes, it is made lawful to arrest 
persons ' ' found committing ' ' certain offences against those Acts respectively. 
By the Larceny Act, 1916 (6 & 7 Geo. 5, i;. 50), ». 41, and the Act relating 
to the coin, 24 & 25 V. u. 99, s. 31, the arrest may be made by any person; 
by the Act relating to malicious injuries to property, 24 & 25 V. u. 97, 
s. 61, the arrest may be made by the owner of the property injured or his 
servant, or by any person authorized by him. By the Metropolitan Police 
Act, 2 & 3 V. c. 47, s. 66, the arrest may be made by any constable, or 
the owner of the property, on or with respect to which, the offence shall 
be committed, or by his servant or any person authorized by him. Where 
the charge was " that the plaintiff had embezzled various sums within the 



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Justification on Ground of Felony — Not Guilty by Statute. 801 

last fortnight," it was held that the defendant was not within the protec- 
tion of the Act. Field v. Musgrove, 16 L. T. 536. See also Griffith v. 
Taylor, 46 L. J. C. P. 152 ; 2 C. P. D. 194. "Where the statute (24 & 25 V. 
c. 96, s. 103) allows the offender to be "immediately" apprehended, it 
was decided that this meant immediately after the commission of the 
offence, and not after its discovery. Downing v. Capet, 36 L. J. M. C. 97 ; 
L. R. 2 C. P. 461; see also Griffith v. Taylor, supra. 

In the case of the offences against the Pawnbrokers Act, 1872 (35 & 36 
V. c. 93), defined by sect. 34, and also " where on an article being offered 
in pawn to a pawnbroker, he reasonably suspects that it has been stolen 
or otherwise illegally or clandestinely obtained, the pawnbroker may seize 
and detain the person and the article or either of them, and shall deliver " 
them or either of them into the custody of a constable. The question of 
reasonable suspicion is for the judge and not the jury. Howard v. Clarke, 
20 Q. B. D. 558. 

The power of arrest given by sect. 12 of the Licensing Act, 1872, extends 
to authorize the apprehension of persons honestly and upon reasonable 
grounds believed to be committing the offence at the time they are arrested. 
Where, therefore, a police sergeant arrested a person while in charge on a 
highway of a motor, honestly and upon reasonable grounds, although 
mistakenly, believing him to be drunk, the sergeant was held not liable for 
damages for false imprisonment. Trebeck v. Crcmdace, 87 L. J. K. B. 272 ; 
[1918] 1 K. B. 158. 

As to when a constable is justified in arresting a person, see Part III. 
sub tit. Actions against constables. — Defence, post. 

Not guilty by statute."] The justification must, as above stated, be in 
general pleaded specially, but by certain statutes a justification for acts 
done in pursuance of these statutes was allowed to be given in evidence 
under " not guilty "; this defence is retained by 0. six., r. 12; the right to 
plead it, however, given by any public general Act passed prior to Dec. 5, 
1898, has as regards any proceeding to which 56 & 57 V. c. 61 applies, been 
abolished by sect. 2 (e) ; and the defendant must in euch case plead his 
defences specially. Sect. 1 (c, d), however, introduces special provisions as 
to tender of amends, and sect. 1 (a) fixes 6 months as the period of limitation 
of action. 

As to how the defence is to be pleaded, see 0. xxi., r. 19. 

In an action for giving the plaintiff into custody on a charge of stealing 
oysters from an oyster bed, it was held that the defendant could not, for 
the purpose of proving bond fides on his part (which he wished to prove, in 
order to show that he was entitled to notice of action) give evidence of a 
prior conviction of a third party for stealing oysters from the same bed, 
such conviction not having come to the knowledge of the defendant, at the 
time of his giving the plaintiff into custody. Thomas v. Russell, 9 Ex. 764; 
23 L. J. Ex. 233. 

Statute of Limitations .1 By the Limitation Act, 1623, 21 J. 1, c. 21, s. 3, 
an action for false imprisonment must be brought within four years after 
such cause of action. See Syed Mohamad Yusuf-ud-Din v. Secretary of 
State for India, 19 T. L. E. 496. 

Euidence in mitigation.] The defendant may prove in mitigation any 
circumstances which tend to reduce the quantum of damages and which 
could not have been pleaded as a defence to the action. See Rules, 0. xxi., 
r. 4. Where the defendant had given the plaintiff in charge of a constable 
tor felony, he was allowed to show reasonable ground of suspicion in mitiga- 
tion of damages. Chinn v. Morris, Ey. & M. 424. So, in trespass for false 
imprisonment against the captain of a ship, Buller, J., admitted under the 
plea of Not guilty evidence of expressions used by the plaintiff at the time 
tending to create mutiny, and dkobediance : for„prerything which passed at 



802 Action for Trespass to Personal Property. 

the time is part of the transaction on which tlie plaintiff's action is founded, 
and he cannot therefore be surprised by the evidence. Bingham v. 
GarnauH, 1 Bsp. Dig. N. P. 337; B. N. P. 17. But, in trespass for assault 
and battery, plea Not guilty, where evidence was offered that the beating 
was given by way of punishment for misbehaviour on board the ship of 
which defendant was captain, and it was insisted that the conduct of the 
plaintiff at the time of the assault, being necessarily in evidence, proved 
the misbehaviour, it was held that as no justification was pleaded, the jury 
should give damages to the amount of the injury suffered, without lessening 
them on account of the circumstances under which it was inflicted. Watson 
V. Christie, 2 B. & P. 224. 

In trespass for imprisonment on a charge of obtaining goods by false 
pretences, where the only plea was Not guilty, the plaintiff's witnesses 
could not be cross-examined on the plaintiff's character, or on previous 
charges against him. Downing v. Butcher, 2 M. & Eob. 374. Nor where 
the charge was of stealing money could the defendant, under Not guilty, 
give evidence of apparent losses of money on his part, though offered for the 
purpose of explaining the circumstances which induced in his mind a 
belief in the plaintiff's guilt. Yardley v. Hine, 17 L. T. 264. 



ACTION FOE TRESPASS TO PEESONAL PEOPBETY. 

This action is founded on the plaintiff's possession of goods, and it includes 
every direct forcible injury or act disturbing the possession without the 
consent of the owner, however slight or temporary the act may be.. Fouldes 
V. Willoughby, 8 M. & W. 540; 10 L. J. Ex. 364; BuUen & Leake, Prec. 
of Plead. 3rd ed. 291, n. ; 7th ed., 419 u. Thus, moving jewellery of a 
deceased person from one room to another is a trespass. Kirk v. Gregory, 
45 L. J. Bx. 186 ; 1 Ex. D. 55. Locking up the plaintiff's goods in a room 
which he has occupied, and refusing to let him have them till the rent is paid, 
is not an act for which trespass for taking and removing goods lies. Hartley 
V. Moxham, 12 L. J. Q. B. 41 ; 3 Q. B. 701. See also West v. Nibbs, 
4 C. B. 172; 17 L. J. C. P. 150. 

What possession of the plaintiff is sufficient.] Any possession is sufficient 
property as against a third person who- has no title at all. Com. Dig. Tresp. 
(B. 4); Nelson v. Cherrill, 8 Bing. 316; 1 L. J. C. P. 95; Oughton v. Sep- 
pings, 1 B. & Ad. 241 ; 8 L. J. (0. S.) K. B. 394 ; Elliott v. Kemp, 7 M. & W. 
306, 312 ; 10 L. J. Ex. 321, 323 ; 2 Wms. Saund. 47 /, (1). Therefore a mere 
wrong-doer cannot set up the title of the real owner unless he justify under 
him. Carter v. Johnson, 2 M. & Eob. 263. The master of a ship or boat 
may bring trespass for an injury to it, though not his property. Moore v. 
Robinson, 2 B. & Ad. 817 ; 1 L. J. K. B. 4. And property is sufficient with- 
out possession, for the right of property draws to it the possession. Balme v 
Huttan, 9 Bing. 471, 477; 2 L. J. Ex. 116, 120; 2 "Wms. Saund. 47 6, (1). 
Therefore, where goods are taken after the owner's death and before probate 
granted to his executor, the latter, after probate granted, may maintain 
trespass. Com. Dig. Tresp. (B. 4) ; Smith v. Milles, 1 T. E. 480. See Kirk 
V. Gregory, 46 L. J. Ex. 186 ; 1 Ex. D. 55. So, an administrator, after he 
has taken out letters of administration, can sue for a trespass committed 
before the letters were taken out. Tharpe v. Stallwood, 5 M. & Gr. 760; 
12 L. J. C. P. 241. So, the lord of a manor may maintain trespass for an 
estray or wreck before seizure by him. Smith v. Milles, supra; Dunwich 
(Bailiffs) V. Sterry, 1 B. & Ad. 831; 9 L. J. (0. S.) K. B. 167. So, the 
vendee of goods, when the property passes, may bring it, though he never 
had possession. Thomas v. Phillips, 7 C. & P. 573. 

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Possession of the Plaintijf — Evidence to Connect Dejendant. 803 

As to a bailor maintaining an action against a vendee to whom the bailee 
has sold the goods, see Cooyer v. Willomatt, 1 C. B. 672 ; 14 L. J. C. P. 219. 
Oenerally, if the owner of a chattel gratuitously permit another to use 
it, he may maintain trespass for injury done to it by a third person while 
so used. Lotan v. Cross, 2 Camp. 464 ; see White v. Morris, 11 C. B. 1015 ; 
21 L. J. C. P. 186. Where a mortgagee of chattels is not to enter till default, 
he cannot bring trespass against a third party before such entry. Wheeler 
V. Montefiore, 2 Q. B. 133; 11 L. J. Q. B. 34. An auctioneer, in possession 
of a house for the purpose of selling fixtures, which are to be removed by the 
buyer and paid for on removal, cannot bring trespass de bonis asportatis 
against the buyer if he take them without payment. Davis v. Banks, 18 
L. J. Ex. 213; 3 Ex. 435. 

A freeholder who has leased his land for years without any reservation 
of the timber, may have, during the continuance of the term, trespass for 
taking and removing goods against a third person who wrongfully cuts 
down the timber, and carries it away. Ward v. Andrews, 2 Chitty, 636. 
But the lessee cannot maintain an action for timber severed from the 
freehold. Evans v. Evans, 2 Camp. 491. Fixtures easily removable with- 
out injury to the freehold do not necessarily become part of the freehold, 
but the jury may find that they are the property of a person other than the 
freeholder ; as in the case of hatches put into a stream by his consent for the 
use of another ; Wood v. Hewett, 8 Q. B. 913 ; 15 L. J. Q. B. 247 ; or a door 
hung on hooks; Mant v. Collins, 8 Q. B. 916, n. ; or a pile driven ioto the 
bed of a public navigable river for the private convenience of the owner 
of a wharf ; Lancaster v. Eve, 5 C. B. (N. S.) 717 ; 28 L. J. C. P. 235 ; 
or a signboard; Moody v. Steggles, 48 L. J. Ch. 639; 12 Ch. T>. 261; or a 
fascia; Francis v. Hayward, 52 L. J. Ch. 291; 22 Ch. D. 177; or tapestry 
fastened to the walls of a house; Leigh v. Taylor, 71 L. J. Ch. 272; [1902] 
A. G. 157. 

Trespass does not lie for taking animals feree natures, unless reclaimed or 
privileged ratione loci; Bac. Ab. Tresp. (E.). Nor, will it lie for fish which 
the plaintiff had nearly secured in his net at sea, but was prevented by the 
defendant from wholly enclosing. Young v. Hichens, 6 Q. B. 606. When 
animals ferce natures are killed by a trespasser they become the absolute 
property of the owner of the land where they are killed. Blades v. Higgs, 
11 H. L. C. 621; 34 L. J. C. P. 286. An action will lie for beating the 
plaintiff's horse or dog, whereby he lost the use of it. Wright v. Ramscot, 

1 Wms. Saund. 84 ;• Slater v. Swann, Str. 872. See Dand v. Sexton, 
3 T. E. 37. 

Where two persons are apparently in possession of goods, the legal posses- 
sion follows the title. Ramsay v. Margrett, 63 L. J. Q. B. 513; [1894] 

2 Q. B. 18. 

Evidence to connect the defendant with trespass. — Relation.] A party is 
not liable for the act of a stranger, as for the act of a postilion driving him in 
a hired carriage, &c. So, where a man, during a procession held in his 
honour, imprudently, but lawfully and without any intention on his part 
so to do, acts in such a way as to incite others to commit damage, he is 
not liable for that damage. Peacock v. Young, 21 L. T. 527. But where 
the defendant sat on the box of a hired carriage, and was heard to give 
the postilion directions, this was held evidence of a joint trespass in a case 
of collision. M' Laughlin v. Pryor, 4 M. & G-r. 48; 11 L. J. C. P. 169. And 
trespass will lie though the injury be unintentional; Covell v. Laming, 
1 Camp. 497; but not in such case, unless it be negligent. Stanley v. 
Powell, 60 L. J. Q. B. 52 ; [1891] 1 Q. B. 86. Trespass against A. and B. 
for taking plaintiff's gun. Plaintiff proved that A. took it, and afterwards 
delivered it to B., who refused to give it up to the plaintiff : held that this did 
not make B. a joint trespasser by relation, unless it was at first taken for 
B.'s use or benefit. Wilson v. Barker, 4 B. & Ad. 614; see Wilson v. Turn- 
man, 6 M. & Gr. W6 Di§iSz^ Gy^^l^Se}ili<S^eighley Maxsted & Go. v. 



804 Action for Trespass to Personal Property. 

Durant, 70 L. J. K. B. 662 ; [1901] A. C. 240. The solicitor of a judgment 
creditor, iasuing a ji. fa., has no implied authority to direct the sheriff to 
seize particular goods thereunder. Smith v. Keal, 9 Q. B. D. 340. It is a 
question of fact whether the seizure by the sheriff, of particular goods, was 
directed by the execution creditor, so as to make him liable therefor. S. C. 
If the sheriff seize the goods of a stranger, the execution creditor does not 
make himself liable by accepting an interpleader issue to try the title to the 
goods. Woollen v. Wright, 1 H. & C. 554 ; 31 L. J. Ex. 513. The principle 
that a person who issues execution for a debt after payment is liable for 
trespass applies also where, instead of payment, there has been an effective 
and valid tender of the amount of the debt. Gubitt v. Gamble, 35 T. L. E. 
223. 

Trespass lies against a corporation for the act of an agent in the course of 
his duty; as where he distrains barges for toll claimed to be due. Maund v. 
Monmouth Canal Co., 4 M. & Gr. 452; 11 L. J. C. P. 317; vide Part in., 
Actions by and against companies — Torts by corporations, post. 

Damages.] The owner of a chattel who is wrongfully deprived of its use 
may recover substantial damages for the deprivation, though he may have 
incurred no out-of-pocket expenses consequent thereon. The Mediana, 69 
L. J. P. 35; [1900] A. C. 113. In trespass for taking goods, under process, 
in a place out of the jurisdiction of the court, the plaintiff is entitled to the 
value of the goods, and not merely to the damage sustained by reason of the 
taking in a wrong place. Sowell v. Champion, 6 Ad. & E. 407 ; 7 L. J. Q. B. 
197. In an action for taking goods under a legal process wrongfully issued, 
the plaintiff is entitled at least to nominal damages, or to such substantial 
damages as the jury think adequate, although special damage is alleged but 
not proved. Doss v. Doss, 14 L. T. 646. In an action for maliciously 
damaging a, written statement of a servant's character, damages may be 
substantial. Wennhdk v. Morgan, 57 L. J. Q. B. 241 ; 20 Q. B. D. 635. 

In trespass for destroying a picture, the defendant may show that it was a 
scandalous libel ; and the plaintiff shall only recover the value of the canvas 
and paint ; Du Bost v. Beresford, 2 Camp. 511 ; and qutere, if he be entitled to 
recover at all? Fordes v. Johnes, 4 Esp. 97. In trespass for taking the 
plaintiff's goods under colour of a judgment, the plaintiff cannot recover as 
special damage (though specially claimed) the costs of setting aside the 
judgment. Holloway v. Turner, 6 Q. B. 928; 14 L. J. Q. B. 143; explained 
in Foxall v. Bamett, 23 L. J. Q. B. 7; 2 B. & B. 928. Eepayment of the 
proceeds of goods wrongfully taken, after action brought, is not evidence in 
mitigation unless specially pleaded. Bundle v. Little, 6 Q. B. 174; 13 L. J. 
Q. B. 311. A vendor who retakes goods sold by him to the plaintiff is liable 
to the full value, and cannot reduce the damages by setting off the unpaid 
price. Gillard v. Brittan, 8 M. & W. 575; 11 L. J. Ex. 133; Page v. 
Cowasjee, L. E. 1 P. C. 127, 147. The sheriff wrongfully seized the goods of 
the plaintiff on a writ against A. ; after seizure, a water company distrainfed 
them for rates due from A., and the plaintiff thereupon paid the rates to get 
back the goods : held, that A. could recover, as special damage, in trespass 
against the sheriff, the money paid to get them back. Keene v. Dilke, 
18 L. J. Ex. 440 ; 4 Ex. 388. In Walker v. Olding, 1 H. & C. 621 ; 32 L. J. 
Ex. 142, the defendant, as execution creditor, wrongfully took in execution 
the plaintiff's goods, and they were sold under a sheriff's interpleader order, 
and the proceeds paid into court. The interpleader issue was decided in the 
plaintiff's favour. Held, that he could not recover from the defendant 
damages incurred since the date of the order. In Brierly v. Kendall, 17 
Q. B. 937 ; 21 L. J. Q. B. 161, where an assignment had been made to secure 
a debt, and the assignees prematurely took possession of the goods; it was 
held that the assignor was only entitled to recover the value of his limited 
interest in the goods ; and see Toms v. Wilson, 4 B. & S. 442 ; 32 L. J. Q. B. 
33; 4 B. & S. 445; 32 L. J. Q. B. 382; Massey v. Sladen, 38 L. J. Ex. 34; 
L. E. 4 Ex. 13. 

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Action for Trespass to Land. 805 

By the Civil Procedure Act, 1833, 3 & 4 W. 4, c. 42, a. 29, the jury may in 
this action, give damages in the nature of interest over and above the value of 
the goods. It would seem, however, that this enactment was unnecessary, 
as the damages are unlimited in this form of action. Balme v. Hutton, 
2 L. J. Ex. 120; 9 Bing. 477. 

Damages must be assessed jointly against co-trespassers. 

Defence. 

Any matters relied on in justification must be pleaded specially. Eules, 
1883, 0. xix., rr. 15, 17. 

As to what amounts to justification for killing the plaintiff's dog, see 
Wright v. Bamscot, 1 Wms. Sauud. 84, and notes. 

It is a defence that the goods have been previously recovered in an action 
of replevin brought for the same taking. Gibbs v. Gruikshank, 42 L. J. 
C. P. 273;L. E. 8 0. P. 454. 

As to the defence of a judicial determination between the filing of an 
insufficient affidavit in obtaining a writ of extent and the issue of the writ, 
see Pridgecm v. Mellor, 28 T. L. E. 261. 

As to defence on the ground of the goods having been seized as a distress 
for trespass damage feasant, vide sub tit. Replevin — Avowry for damage 
feasant, post. 



ACTION FOE TEESPASS TO LAND. 

This action does not lie in respect of land situated abroad. Doulton v. 
Matthews, 4 T. E. 503; British S. Africa Go. v. Gompanhia de Mozambique, 
63 L. J. Q. B. 70; [1893] A. C. 602. 

Evidence of possession.l In order to maintain this action the plaintiff 
ought to have possession, actual or constructive. Topham v. Dent, 6 Bing. 
515; 8 L. J. (0. S.) C. P. 172. Any possession is a legal possession as 
against a wrongdoer. Graham v. Peat, 1 East, 246 ; Foster v. Warblington 
Urban Gouncil, 75 L. J. K. B. 514; [1906] 1 K. B. 648; Glenwood Lumber 
Go. V. Phillips, 73 L. J. P. C. 62; [1904] A. C. 405. A possession by the 
incumbent of a chapel and vestry erected under a Church Building Act, and 
vested in trustees, is sufficient to justify him in removing a trespasser from 
them. Jackson v. Courtenay, 8 B. & B. 8; 27 L. J. Q. B. 37. But a person 
who obtains possession by a trespass cannot maintain this action against the 
person whom he has dispossessed, and who forcibly reinstates himself. 
Browne v. Dawson, 10 L. J. Q. B. 7; 12 Ad. & B. 624. A person occupying 
Crown lands under a parol licence has such a possession as entitles him to 
maintain trespass against a wrong-doer. Harper v. Gharlesworth, 4 B. & C. 
574; 4 L. J. (0. S.) K. B. 22. Persons exercising possessory rights over 
foreshore, have a title sufficient against a trespasser without producing 
evidence to displace the title of the Crown. Hastirigs Cor. v. Ivall, L. E. 
19 Bq. 558. So where overseers enclose waste land without consent of the 
lord of the manor, they may bring trespass against a mere stranger. Matson 
V. Cooke, 4 Bing. N. C. 392. So, if a tenant hold over after the expiration 
of his lease, or incur a forfeiture by committing waste or otherwise, yet if 
the landlord permit him to continue in actual possession, he may maintain 
trespass against any person entering upon him, and not having a better 
title than himself. Harper v. Gharlesworth, supra; Com. Dig. Trespass 
(B. 1). So, the outgoing tenant, who is entitled by custom to have, and 
to cut certain growing crops, and is obliged to keep up the fences until the 
cutting, has such a Tpofaeaaiwia^f A9/''l(Mflpp^firlW(?^^^^^ "'^ action of trespass 



'806 Acticm for Trespass to Land. 

qu. cl. fr. Griffiths v. Puleston, 13 M. & W. 358; 14 L. J. Ex. 33. PoBses- 
sion by a servant is possession by the master, although the servant receives 
less wages by reason of being allovred to occupy the premises, and the master 
can maintain trespass; Bertie v. Beaumont, 16 East, 33; but it seems that 
the servant cannot. See White v. Bailey, 30 L. J. C. P. 253; 10 C. B. 
(N. S.) 227. So a lodger cannot maintain trespass, for the possession is in the 
landlord. Allan v. Liverpool, 43 L. J. M. C. 69 ; L. R. 9 Q. B. 180. See also 
Monks V. Dykes, 8 L. J. Ex. 73 ; 4 M. & W. 567 ; Bradley v. Baylis, 61 L. J. 
Q. B. 183 ; 8 Q. B. D. 196 ; and Smith v. St. Michael, Cambridge, 3 E. & E. 
383. The only remedy the lodger has against the landlord for disturbance 
of his occupation is for breach of contract in not allowing him to occupy his 
lodgings. R. v. St. George's Union, 41 L. J. M. C. 30, 34; L. E. 7 Q. B. 
90, 97. • 

Persons who have merely a right to enter upon the locus in quo for the 
purpose of doing certain acts, cannot maintain trespass. So persons, who are 
merely authorized by parliament to make navigable a certain river, have no 
interest in the soil of a bank formed of the earth excavated from the channel 
of the river, so as to entitle them to support trespass for an injury to such 
bank. Hollis v. Goldfinch, 1 B. & C. 205; 1 L. J. (0. S.) K. B. 91. 
But, where certain private individuals contracted with the proprietors 
of a navigation to form a canal, and erected a dam of earth and 
wood upon a close, with the permission of the owner, for the purpose of com- 
pleting their work, it was held that they had a suf&cient possession to 
support trespass against a wrong-doer. Dyson v. Oollick, 5 B. & A. 603. An 
auctioner who enters into possession of a house for the purpose of selling 
fixtures, cannot maintain trespass qu. cl. fr. ; Davis v. Danks, 18 L. J. Ex. 
213 ; 3 Ex. 435. Plaintiff held a close by lease under tenant for life. Before 
the expiration of it by lapse of time, the tenant for life died. The plaintiff 
bad before then locked the close up and left it unoccupied, but did not sur- 
render it. Afterwards he took a fresh lease from the remainderman ; but 
before he had entered under it the defendant committed a trespass : held, that 
ihe plaintiff could not bring an action of trespass ; for his possession , in the 
absence of some act on his part, could not be presumed after it had ceased to 
.be lawful, and he had not actually entered under the new lease. Brown v. 
Notley, 18 L. J. Ex. 39; 3 Ex. 219. The plaintiff. A., being owner of a 
iouse, agreed to a partnership with defendant B., to be carrieid on in part 
lof A.'s house. The firm was to be charged with rent. The partnership con- 
tinued from August to December, when it was ended by notice from A. to B. : 
held, that A. then had such an exclusive possession as entitled him to sue 
B. in trespass for entering afterwards; for B.'s interest ended with his 
partnership. Benham v. Gray, 17 L. J. C. P. 60; 6 C. B. 838. The 
plaintiff, as the manager, storekeeper, and agent of the defendants, a 
Swedenborgian society, became the occupier of a house of which the defen- 
dants were lessees ; the defendants gave the plaintiff notice to quit the 
premises, and took possession of them : in an fiction of trespass brought by 
the plaintiff it was held that he occupied the premises merely as the servant 
of the defendants, and that the action was not maintainable. White v. 
Bailey, 10 C. B. (N. S.) 227; 30 L. J. C. P. 263. A mortgagor in 
possession, or A. to whom he let the land after the mortgage, cannot after 
the mortgage has become absolute, maintain trespass against the mortgagee, 
if the latter have not recognized them as his tenants. Gibbs v. Cruikshank, 
42 L. J. C. P. 273; L. R. 8 C. P. 454. Though it would be otherwise where 
the lease was made under a power, e.g., that given by 44 & 45 V. c. 41, s. 18 
(1, 13). 

The occasional possession of the key of a chapel in order to preach there is 
not suf&cient to support trespass qu. cl. fr. ; Revett v. Brown, 5 Bing. 7 ; 
6 L. J. (0. S.) C. P. 194. The lay rector of a church cannot maintain tres- 
pass against the vicar, for removing a lock placed by the rector upon a door 
leading into the chancel. Griffin v. Dighton, 6 B. & S. 108; 33 L. J. Q. B. 
181. But the owner of the freehold of a chapel aisle, or private or lesser 

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Evidence of Possession — Property in the Soil not necessary. 807 

chancel, though annexed to a church, may maintain trespass against the 
vicar, who has committed a similar act. Chapman v. Jones, 38 L. J. Ex. 
169; L. R. i Ex. 273; Norfolk (Duke) v. Arbuthnot, 49 L. J. C. P. 782; 
5 C. P. D. 390. See Greenslade v. Darby, 37 L. J. Q. B. 137; L. R. 3 Q. B. 
421. Immemorial repair and user of a lesser chancel, is evidence that a 
freehold of inheritance in it, is vested in those vifho have executed the repairs 
and exercised the acts of ownership. Chapman v. Jones, Norfolk (Duke) v. 
Arbuthnot, supra. Proof of the ownership of a several fishery on the fore- 
ehore is, even against the Crown, evidence of the ownership of the soil. 
Att.-Gen. v. Emerson, 61 L. J. Q. B. 79; [1891] A. C. 649. 

Where the owner of the soil has divested himself of the exclusive possession 
of it, he may still bring this action. Thus, the owner of the soil of a street 
dedicated to the public, may maintain trespass for an injury to the freehold. 
Lade v. Shepherd, Str. 1004 ; Dovaston v. Payne, 2 H. Bl. 527 ; 2 Smith's 
L. C. ; see Goodtitle d. Chester v. Alker, 1 Burr. 133; Every v. Smith, 
26 L. J. Ex. 344; so also the owner of a market; Northampton 
(Mayor) v. Ward, 1 Wils. 107. And even where another party has 
exclusive possession of the surface for certain months for the purpose of 
pasture, or («t semble) has prima vestura, yet the freeholder retains sufficient 
possession of the undersoil to support trespass for digging holes ; but not for 
riding over it. Cox v. Glue, 17 L. J. C. P. 162; 5 C. B. 533. Where a 
lease reserves mines, and the right to work them, giving satisfaction for 
damage, the lessor has an absolute ownership of the mines, and not a mere 
easement, and the surface and minerals become separate estates, severed in 
title. Hamilton (Duke) v. Graham, L. R. 2 H. L. Sc. 166. In Lonsdale 
(Earl) V. Rigg, 1 H. & N. 924 ; 26 L. J. Ex. 196, it was held that the lord 
of a manor might bring an action of trespass against the owner of a cattle- 
gate for taking and killing grouse; the "cattle-gate" there appearing to be 
an hereditary, customary tenement, holden of the lord by fines for admittance, 
quit rents, and suits of court, but entitling to rights only in the nature of 
commonable rights. 

Where A. brought an action of ejectment against B., he thereby admitted 
B.'s possession of the land. Stanford v. Hurlstone, L. R. 9 Ch. 116. 

Evidence of possession — property in the soil not necessary .} We have seen 
that an interest in the soil , without an exclusive use of it , is enough to support 
trespass. On the other hand, exclusive possession, without property or 
interest in the soil, is also sufficient for this action. Thus, one who has the 
herbage, Co. Litt. 4 b. ; Welden v. Bridgewater, Cro. Eliz. 421; Vin. Ab. 
Tres. (H. 1); or, the vesture or pasture of a close, Co. Litt. 4 b; Parker v. 
Staniland, 11 East, 366; Evans v. Roberts, 5 B. & C. 829, 837; 4 L. J. 
(0. S.) K. B. 313; Vin. Ab. Tres. (H. 2); may maintain trespass: but 
it is otherwise, if the right be not an exclusive one, Coverdale v. 
Charlton, 4 Q. B. D. 104. A person entitled to the exclusive enjoyment 
of a crop, growing on larid, during the proper period of its full growth, 
and until it be cut and carried away, may in respect of such exclusive 
possession, maintain trespass. Crosby v. Wadsworih, 6 East, 609; Tompkin- 
srni V. Russel, 9 Price, 287; Wellaway v. Courtier, 87 L. J. K. B. 299; 
[1918] 1 K. B. 200. So, where a person has an exclusive right of digging 
turves : Wilson v. Macreth, 3 Burr. 1824 ; or, a grant of underwood. Hoe v. 
Taylor, Cro. Eliz. 413. So, the owner of a free warren in alieno solo, for 
breaking his free warren; Dacre (Lord) v. Tebb, 2 W. Bl. 1151; Carnarvon 
(Earl) V. Villebois, 14 L. J. Ex. 233 ; 13 M. & W. 313 ; but not for breaking 
his close; 5 H. 7, f. 10, pi. 2, cited Welden v. Bridgewater, supra. The 
owner of a " several " fishery, even in the soil of another, may maintain 
trespass, though no fish are taken. Holford v. Bailey, 16 L. J. Q. B. 68; 
8 Q. B. 1000. But, not the owner of a "sole and exclusive" fishery, 
except in cases where those words import a several fishery, which after 
verdict they will be assumed to do. S. C, 18 L. J. Q. B. 109 ; 13 Q. B. 426. 
And see Marshall v. Ifyif^m^H S^iNlWPMM'^lfi'^ ' 3 B. & S. 732; 32 L. J. 



808 Action for Trespass to Land. 

Q. B. 139. Where a meadow is divided annually amongst certain persons by 
lot, after their several portions are allotted, each has an exclusive possession 
and may maintain trespass. Welden v. Bridgewater, supra; Co. Litt. 4 a, 
48 b; Cox v. Glue, supra. A copyholder has such a possession of the mines 
;mdor his land, as to maintain trespass against a stranger for taking coals 
though there be no entry on, or injury to, the surface. Lewis v. Branthwaite , 
2 B. & Ad. 437; 9 L. J. (0. S.) K. B. 263. See Eardley v. Granville, 
45 L. J. Ch. 669 ; 3 Ch. D. 826. 

If the possession be not an exclusive one, as of common of turbary; Wilson 
V. Macreth, 3 Burr. 1826 ; or, a mere easement arising from the ownership of 
land; Mainwaring v. Giles, 5 B. & A. 361; case, and not trespass qu. cl. jr., 
is the proper remedy. 

Evidence of possession — actual and immediate.], It must appear that the 
plaintiff was in the actual and immediate possession of the locus in quo when 
the trespass was committed. Therefore an heir before entry who has only a 
seisin in law, cannot maintain trespass. Com. Dig. Trespass (B. 3). Nor, a 
bargainee before entry; Id.; Barker v. Keat, 2 Mod. 251; but see Anon., 
Cro. Bliz. 46. Neither, the conusee of a fine; Berry v. Goodman, 2 Leon. 
147, arg.; nor, a devisee. Anon., 2 Mod. 7; Geary v. Bearcroft, Bridgm. 
Judgm. 495; nor, a. surrenderee, Bro. Abr. Surr. 50; nor, a reversioner after 
the expiration of an estate for life or years, Keilw. 163 a ; Com. Dig. Trespass 
(B. 3) ; nor, a lessee for years, Keilw. 163 a ; Bac. Ab. Leasee (M.) ; Ryan 
V. Clark, 18 L. J. Q. B. 267 ; 14 Q. B. 65 ; Wallis v. Hands, 62 L. J. Ch. 586 ; 
[1893] 2 Ch. 75; nor, the assignee of a term; Harrison v. Blackburn, 17 
C. B. (N. S.) 678; 34 L. J. C. P. 109; can bring trespass before entry. 
Therefore, a mortgagee, by demise for years, cannot bring trespass against 
a stranger before entry; Wheeler v. Montefiore, 2 Q. B. 133; 11 L. J. Q. B. 
34; Turner v. Cameron's Coalbrook Co., 20 L. J. Ex. 71; 5 Ex. 932; nor, a 
parson before induction. Hare v. Bickley, Plowd. 528. But, after induction, 
he may maintain trespass for an injury to the glebe lands, although he has 
not made an actual entry upon the part on which the trespass was 
committed ; for the act of induction puts him into possession of part for the 
whole. Bulwer v. Bulwer, 2 B. & A. 470. By the J. Act, 1873, s. 25 (5), 
a mortgagor entitled to the possession of land may maintain trespass in his 
own name, if his mortgagee has not given notice of his intention to enter 
into possession of the land, or of the receipts and profits thereof. But, this 
enactment does not apparently alter the previous law. On the determination 
of a lease at will, by the death of the lessee, the lessor may maintain trespass 
before entry. Co. Litt. 62 b; Geary v. Bearcroft, 1 Lev. 202. And, 
there are authorities to show that, where land is let at will and a tres- 
pass is done on the land, both the lessor and lessee may main- 
tain trespass. Harper v. Gharlesworth, 4 B. & C. 574, 583 ; 4 
L. J. (0. S.) K. B. 22; 2 Eoll. Ab. 551, 1. 49; Com. Dig. Tresp. 
(B. 2); Geary v. Bearcroft, Bridgman's Judgm. 496, n. If a lessee at will 
commit voluntary waste, the lessor may immediately maintain trespass 
against him ; for the committing of waste amounts to a determination of the 
will. Shrewsbury's Case, 5 Rep. 13 b; Co. Litt. 57 a. Where trees are 
excepted in a lease the lessor may maintain trespass qu. cl. fr. against any 
one who cuts them down ; for by the exception of the trees , the close on which 
they grow is excepted also. Ashmead v. Hanger, 1 Ld. Raym. 552; Rolls v. 
Rock, 2 Selw. N. P. 13th ed., 1244. Actual possession at the time of the 
trespass done is sufficient ; it is not necessary that the plaintiff should be in 
possession at the time of action brought. 2 Roll. Ab. 569, 1. 20. A rever- 
sioner cannot obtain an injunction, to restrain a trespass, which is not an 
injury to the reversion. Cooper v. Crabtree, 51 L. J. Ch. 544; 20 Ch. D. 589. 

Evidence of possession by relation.^ Although to maintain this action the 
plaintiff must have the immediate possession at the time of the injury, yet 
there are some cases in which, by the doctrine of relation, he is allowed to 
recover for trespasses committed at a period when he was not in fact in 

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Possession by Relation — Ownership of Roads, Sc. 809 

possession. Thus, a disseisee who re-entered, revested the possession in 
himself ah initio, and might have trespass against the disseisor, or a 
stranger, for any act of trespass committed between the disseisin and the 
re-entry; 2 Eoll. Abr. 550, 1. 7, 554, 1. 39; Co. Litt. 257 a; or, against the 
disseisor for continuing in possession. Butcher v. Butcher, 7 B. & C. 399 ; 
6 L. J. (O. S.) K. B. 51; Litchfield v. Ready, 20 L. J. Ex. 51; 5 Ex. 939; 
see also Hegan v. Oarolan, [1916] 2 I. E. 27. The entry of an heir relates 
back to the time of the right of entry, so as to support an action against a 
wrongdoer for a trespass committed, after the accrual of the right, and before 
actual entry; Bamett v. Guildford (Earl), 11 Ex. 19; 24 L. J. Ex. 281; 
so does the entry of the assignee of a lease ; Anderson v. RadcUffe, E. B. & E. 
806 ; 29 L. J. Q. B. 128, Ex. Ch. ; or of a mortgagee ; Ocean Accident Cor. v. 
Ilford Gas Co., 74 L. J. K. B. 799; [1905] 2 K. B. 493; even in the case of 
a second mortgage where the first mortgagee has not intervened. 

By 6 A., c. 72 (c. 18 in Euff.), s. 5, guardians, trustees, husbands 
seised jure uxoris, and tenants pur autre vie, holding over without consent, 
are declared trespassers, and made liable to the parties entitled, for the 
profits from the expiration of their interests. 

Evidence of the ownership of roads, wastes, rivers, walls, ditches, ifc] The 
soil of a highway or occupation road is presumed to belong to the owner of 
the adjoining inclosed land, usque ad medium filum; but the presumption 
may be rebutted by acts of ownership, &c. Holmes v. Bellingham, 7 C. B. 
(N. S.) 329; 29 L. J. C. P. 132; Beckett v. Leeds Cor., L. E. 7 Ch. 421; 
Harrison v. Rutland (Duke), 62 L. J. Q. B. 117 ; [1893] 1 Q. B. 142. The 
presumption applies although the close conveyed, is set out by admeasure- 
ment, and referred to as " all the land coloured red " on a plan annexed to 
the conveyance. Berridge v. Ward, 10 C. B. (N. S.) 400 ; 30 L. J. C. P. 218. 
The. rule is the same whether the adjoining land be freehold, copyhold, or 
leasehold. Doe d. Pring v. Pearsey, 7 B. & C. 304 ; Doe d. Barrett v. Kemp, 
2 Bing. N. C. 102; 4 L. J. Ex. 331; Haynes v. King, 63 L. J. Ch. 21; 
[1893] 3 Ch. 439. It applies ±o streets in a town. S. C. ; In re White's 
Charities, 67 L. J. Ch. 430; [1898] 1 Ch. 659; L. d N. W. Ry. Y. West- 
minster Cor., 71 L. J. Ch. 34 ; [1902] 1 Ch. 269. See S. C, 73 L. J. Ch. 386 ; 
[1904] 1 Ch. 759; 74 L. J. Ch. 629 ; [1905] A. C. 426, 428, 440. The 
presumption does not apply to adjoining land, intended to be used as a high- 
way, but not yet dedicated to the public. Leigh v. Jack, 49 L. J. Ex. 220; 
5 Ex. D. 264; nor in the case of a railway. Thompson v. Hickman, 76 
L. J. Ch. 254; [1907] 1 Ch. 550. And. the soil will not pass where it 
appears from the circumstances at the time of the grant that such was not the 
intention. See Micklethwait Y. Newlay Bridge Co., 33 Ch. D. 133; Beckett 
v. Leeds Cor., L. E. 7 Oh. 424. Thus, where after a turnpike road and two 
pieces of land adjoining had been separately numbered in certain deposited 
plans, a conveyance of the two pieces of land specified their numbers, but 
omitted all mention of the number which had been applied to the road ; it 
was held, that there was a presumption that the latter had not been included 
in the conveyance. Salisbury v. Gt. N. Ry., 5 C. B. (N. S.) 164; 
28 L. J. C. P. 40; Plunistead B. of Works v. British Land Co., 44 L. J. 
Q. B. 38 ; L. R. 10 Q. B. 16 (no opinion given on this point in Ex. Ch.) ; 
Pryor v. Petre, 63 L. J. Ch. 531; [1894] 2 Ch. 11. See Mappin v. Liberty, 
72 L. J. Ch. 63; [1903] 1 Ch. 118. The presumption as to the ownership 
of strips of waste land adjoining the highway is the same as that in respect of 
the highway itself. Steel Y. Prickett, 2 Stark. 468. If the strip be contiguous 
to, or communicate with, open commons or larger portions of open land, the 
presumption is either rebutted or considerably narrowed ; for then the evidence 
of ownership, which applies to the larger portions, applies also to the narrow 
strip which communicates with them. Grose Y. West, 7 Taunt. 39; Headlam 
Y. Hedley, Holt, N. P. 463. And, where the strip was claimed as part of the 
adjacent glebe, proof of inclosure of other portions of the same strip under 
titles adverse to the reqOyg/fjgg^JiJj^^'jS^sj^fifigBbut the presumption. Doe 



810 Action for Trespass to Land. 

d. Harrison v. Hampson, 17 L. J. C. P. 226 ; 4 C. B. 267. Upon a question 
whether a piece of waste land lying between a highway and the plaintiff's 
enclosed land, belonged to the plaintiff, or to the lord of the manor, it was 
held, that grants by the lord of other slips of waste land on either side of the 
same road, abutting on inclosed lands of the lord himself, and of other 
persons, were admissible for the purpose of showing that the locus in quo 
was part of the waste of the manor, without showing continuity. Dendy v. 
Simpson, 18 C. B. 831. "Where the lord of the manor claimed a roadside 
strip as part of the waste of the manor, but did not prove acts of ownership 
over it, it was held that evidence of acts of ownership over contiguous 
land was not admissible in the absence of proof that the disputed land was 
within the manor. Leeke v. Portsmouth Cor., 107 L. T. 260. If two lessees 
of the same lord of the manor lay claim to the strip as included in their 
respective demises, no presumption is said to exist in favour of the lessee 
whose land it adjoins. White v. Hill, 14 L. J. Q. B. 79 ; 6 Q. B. 487. Where 
a road through common land is set out by commissioners under an inclosure 
act , it is doubtful whether the usual presumption as to the right of the owners 
of the adjoining land applies. R. v. Edmonton, 1 M. & Rob. 32; see also 
B. Y. Wright, 3 B. & Ad. 681. And, it seems that where the herbage of a 
road is vested by the Inclosure (Consolidation) Act, 1801 (41 G. 3, c. 109), in 
the owners of the adjacent allotments, no presumption arises that the soil 
itself belongs to them. R. v. Hatfield, 4 Ad. & E. 156. See also 2 Smith's 
L. C, 12th ed., pp. 162 et seq. 

Presh rivers of common right belong to the owners of the soil adjacent, so 
that the owners of each side are presumed to have the property of the soil 
and the right of fishing usque ad medium filum aqucB. Bickett v. Morris, 
L. B. 1 H. L. Sc. 47 ; Edleston v. Crossley, 18 L. T. 15. A crown grant 
of land describing it as bounded by a (fresh-water) creek or river, presumably 
includes half, the soil of it, ad medium filum aqiue. Lord v. Sydney City, 
12 Moo. P. C. 473. So in the case of a private grant, even although the land 
which is expressed to be granted is described as coloured pink, and its 
acreage stated. Micklethmait v. Newlay Bridge Co., 33 Ch. D. 133. And 
whether its tenure be freehold, copyhold, or leasehold. Tilbury v. Siha, 
45 Ch. D. 98, 109; Dwyer v. Rich, Ir. E. 6 C. L. 144. It may, however, be 
shown from the surrounding circumstances that the soil of the river did not 
pass by the grant. Devonshire (Duke) v. Pattinson, 57 L. J. Q. B. 189; 
20 Q. B. D. 263. The presumption does not extend to the ownership of half 
an ancient island in the middle of the river. Gt. Torrington Conservators 
V. Moore Stevens, 73 L. J. Ch. 124; [1904] 1 Ch. 347. If a man is owner 
of the land on both sides, by common presumption he is owner of the whole 
river. Hale, de Jure Maris. Harg. Law Tracts, 5. Where two parishes 
are separated by a river, the medium filum is the presumptive boundary 
between them. R. v. Landulph, 1 M. & Rob. 393. The shore is presumably 
extra-parochial. R. v. Musson, 8 E. & B. 900 ; 27 L. J. M. C. 100 ; so is the 
shore of a tidal river. Bridgwater Trustees v. Bootle-cum-Linacre, 36 L. J. 
Q. B. 41 ; L. E. 2 Q. B. 4. But for civil parochial purposes this is now 
altered by 31 & 32 V. c. 122, s. 27. Proof that the annual parish perambula- 
tions proceeded along the banks and shore of a public navigable river, the 
neighbouring parishes along the same shore having always included the 
medium filum in their perambulations, is evidence that the medium filum is 
the boundary throughout. M'Cannon v. Sinclair, 2 E. & E. 53; 28 L. J. 
M. C. 247. As to the effect of a grant of land " bounded by the seashore," 
see Mellor v. Walmesley, 74 L. J. Ch. 475 ; [1905] 2 Ch. 164. 

A wall has been said to differ in point of ownership from a bank ; being an 
artificial edifice, the property is presumed to be in him who is bound to repair 
it ; while the property in a bank follows that of the soil from which it 
is constructed. Callis on Sewers, 4th ed. 74; see Newcastle (Duke) v. Clark, 
8 Taunt. 602. Where no such liability or act of ownership is shown, a 
wall, as well as a bank, presumably follows the property of the soil. If two 
tenants in severalty build a party- wall, one-half of the thickness of which 

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Ownership of Roads, So. — Acts of Ownership. 811 

stands on the land of each (contributed under the old Metropolitan Building 
Act, 14 G. 3, u. 78), the property in the wall follows the property in the land, 
and the owners of the land are not tenants in common of the wall, but 
tenants of divided moieties. Matts v. Hawkins, 5 Taunt. 20; see Murly v. 
M'Dermott, 8 Ad. & E. 138; 7 L. J. Q. B. 242. But, in a case to which 
the Building Act does not apply, and where there is no distinct proof of 
exclusive property as to the whole or part, the common user of a wall separat- 
ing adjoining lands belonging to different owners is primd facie evidence 
that the wall, and the land on which it stands, belongs to the owners of the 
adjoining land in equal undivided moieties as tenants in common. Cubitt v. 
Porter, 8 B. & C. 257 ; 6 L. J. (0. S.) K. B. 306 ; see Standard Bank of British 
S. America v. Stokes, 47 L. J. Ch. 564; 9 Ch. D. 69; Watson v. Gray, 
49 L. J. Ch. 243 ; 14 Oh. D. 192. A wall may be a party-wall for such part 
of its height or length as belongs in common to two buildings, and not for 
the remainder of it. Weston v. Arnold, 43 L. J. Ch. 123; L. E. 8 Ch. 1084; 
Knight v. Pursell, 48 L. J. Ch. 395 ; 11 Oh. D. 412. As to the dividing 
line of a house, granted as being " in the occupation of A. B.," see Fox v. 
Clarke, 43 L. J. Q. B. 178; L. E. 9 Q. B. 565. As to ownership of the 
column of air over a room belonging to A. which projects over the land of 
B., see Gorbett v. Hill, 39 1>. J. Ch. 547 ; L. E. 9 Bq. 671. 

Where A. licensed B. to build a bridge on his (A.'s) land, and B. 
covenanted to repair it, it was held that the property in the materials 
of the bridge, when built and dedicated to the public, continued in B., 
subject to the right of passage by the public ; and, that when severed and 
taken away by a wrong-doer, B. might obtain trespass for the asportation. 
Harrison v. Parker, 6 East, 154; see Spooner v. Brewster, 3 Bing. 136; 
3 L. J. (0. S.) C. P. 203. 

The rule with regard to the presumptive ownership of hedges and ditches 
has been thus stated : where two adjacent fields are separated by a hedge and 
ditch, the hedge primd facie belongs to the owner of the field in which the 
ditch is not. If there be two ditches, one on each side of the hedge, then the 
ownership of the hedge must be shown by proving acts of ownership. Guy 
V. West, 2 Selw. N. P. 13th ed. 1244. No man making a ditch can cut into 
his neighbour's soil, but usually he cuts to the extremity of his own land ; he 
is, of course, bound to throw the soil which he digs out upon his own land; 
therefore, if he afterwards cut beyond the edge of the ditch, he cuts into his 
neighbour's land, and is a trespasser. Vowles v. Miller, 3 i'aunt. 138. The 
land which constitutes the ditch is therefore part of the close on the other side 
of the bank. Per Holroyd, J., Doe d. Pring v. Pearsey, 7 B. & 0. 308. It 
is doubtful if this presumption extends to a natural watercourse ; see Marshall 
V. Taylor, 64 L. J. Ch. 416; [1895] 1 Ch. 641. 

It is said that if A. plant a tree at the extreme limit of his own land, and 
it extend its roots into the land of B., A. and B. are tenants in common of 
the tree; but if all the roots grow in A.'s land, though the boughs shadow 
the land of B., the property is in A. Per Holt, C.J., Waterman v. Soper, 

1 Ld. Eaym. 737 ; B. N. P. 85 ; 2 Eoll. Eep. 255. According to another 
authority, if a tree grows in A.'s close, and its roots in B.'s, yet the body or 
the main part of the tree being in the soil of A., all the residue of the tree 
belongs to him. Masters v. Pollie, 2 Eoll. Eep. 141. In a like case. Little- 
dale, J., ruled, that the tree belongs to him in whose soil it was first sown 
or planted. Holder v. Goates, M. & M. 112; and see Id. n. The property 
in trees is in the landlord ; the property in bushes even where they have been 
cut down by a stranger, in the tenant. Berriman v. Peacock, 9 Bing. 384; 

2 L. J. C. P. 23. 

Acts of ownership.} Cutting down or planting trees is evidence of right 
to the soil. Vin. Ab. Ev. (T. b. 102) ; 5. Leonards (Lord) v. Ashbumer, 
21 L. T. 595. So are the erection and maintenance on the foreshore of fixed 
nets, called kiddells. Att.-Gen. v. Emerson, 61 L. J. Q. B. 79; [1891] 
A. C. 649. A peraml^^ji^gQEi^lJJiyy^^^j^g evidence of the limits of 



812 Action for Trespass to Land. 

a manor, and it is not necessary that any person against whom it operates 
should be present at or know of it. Woolway v. Rowe, 1 Ad. & B. 114; 
3 L. J. K. B. 121. Generally any act done upon the land is admissible 
evidence. Id. Such acts are not evidence on the ground of acquiescence, 
but as showing possession. Per Parke, B., in Jones v. Williams, 6 L. J. Ex. 
107 ; 2 M. & W. 326. The acts of tenants may be evidence against their 
reversioners, where their declarations are not. Tickle v. Brown, i Ad. & E. 
369 ; 5 li. J. K. B. 119. Acts in one place may be evidence of ownership in 
another, where there is a common character of locality : thus, cutting timber 
in a wood or close, is evidence of title to the whole wood or close; so of a 
continuous hedge, or different parts of the bed of a river, &c. Jones v. 
Williams, supra; Neill v. Devonshire (Duke), 8 App. Gas. 135; Hanbury v. 
Jenkins, 70 L. J. Ch. 730, 734-5; [1901] 2 Ch. 401, 417. 

Where the surface and the minerals are several inheritances (ae is common 
in mining districts), the user or ownership of one is no evidence of property 
in the other. Rowe v. Grenfel, Ey. & M. 396; Rich. d. Cullen (Lord) v< 
Johnson, Str. 1142 ; Hodgkinson v. Fletcher, 8 Doug. 31. Working in 
one part of a mine is possession of the whole. Wild v. Holt, 11 L. J. Ex. 
285 ; 9 M. & W. 672. Working under part of a demised tract of land is 
evidence of the possession of minee under the whole tract. Taylor v. Parry, 
1 M. & Gr. 604. 

Situation of the premises. "i The close on which it is alleged that the 
trespass was committed should be described with reasonable certainty by 
name, abuttals or other description, eo that the defendant may know what 
close is intended. The close should be described as it stood at the time of 
the trespass. Humfrey v. L. <t N. W. Ry., 22 L, J. Ex. 149; 7 Ex. 325. 
But, in case of a misdescription, an amendment will be allowed at N. P. on 
the merits. 

Evidence of trespass committed by defendant."] If the landlord, who has 
let apartments to the plaintiff, exclude him from the house and remove his 
name from the outer door, this is evidence of a trespass committed by 
breaking and entering the apartments. Lane v. Dixon, 16 L. J. C. P. 129; 
3 C. B. 776. In this case no objection was taken as to the possession of the 
plaintiff being insufficient to maintain trespass. 

It is a trespass to place anything against the plaintiff's wall ; Gregory v. 
Piper, 9 B. & C. 591; or, to shoot into the plaintiff's land. Pickering v. 
Rudd, 1 Stark. 56, 58. Ld. EUenborough, C.J., seems to have regarded it as 
uncertain how far trespass would lie for shooting over, or placing anything so 
as to overhang the plaintiff's land; S. C. But trespass will lie for carrying 
minerals through a tunnel, 500 yards below the surface of the plaintiff's land, 
and not used by him. Eardley v. Granville, 45 L. J. Oh. 669 ; 3 Ch. D. 826. 

Trespass lies against a tenant in common with the plaintiff for destroying 
a common wall; Cubitt v. Porter, 8 B. & C. 257 ; 6 L. J. (0. S.) K. B. 306 : 
or, for using it so as to exclude the plaintiff; Stedman v. Smith, 8 E. & B. 
1 ; 26 L. J. Q. B. 314 ; but, not for pulling it down with intent to rebuild it, 
or for raising its height. Cubitt v. Porter, supra. See also Watson v. Gray, 
49 Ii. J. Ch. 243; 14 Ch. D. 192. And it lies against him or his licensee for 
digging peat or turf, and carrying it away for his own use. Wilkinson v. 
Haygarth, 16 L. J. Q. B. 103; 12 Q. B. 837. And, for actual expulsion. 
Murray v. Hall, 18 L. J. C. P. 161 ; 7 C. B. 441. But, it does not lie if he 
take away the whole profits of the land. Jacobs v. Seward, 41 L. J. C. P. 
221 ; L. B. 5 H. Ii. 464. The rights of the owners of a party wall in the 
metropolis are regulated by the London Building Act, 1894, 57 & 58 V. 
cap. ccxiii. 

Trespass lies against the party who did the trespass and all aiding him ; 
Com. Dig. Tresp. (C. 1) ; and, a person may become a trespasser by previous 
command, or, where the trespass has been committed for his use and benefit, 
by subsequent assent. Barker v. Braham, 3 Wils. 377. But, in cases of 

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Trespass committed by Defendant. 813 

subsequent assent, it must appear that the trespass was for his use. Wilson 
V. Barker, 4 B. & Ad. 614. An infant cannot make himself a trespasser, 
either by prior command or subsequent assent. Co. Litt. 180 b (4) ; Id. 
357 b. The same rule formerly prevailed as to a feme covert; Id.; but 
under the Married Women's Property Act, 1882, s. 1 (2), she may, it seems, 
to the extent of her separate property, render herself liable by ratification. 

A master is not liable for the wilful trespass of his servant. 2 EoU. Ab. 
553, 1. 25; Chandler v. Broughton, 2 L. J. Ex. 25; 1 Cr. & M. 29. But, 
where he orders his servant to do an act, the natural consequence of which is 
a trespass, and the servant uses ordinary care in the execution of the order, 
the master is liable, though he direct the servant not to trespass. Gregory 
V. Piper, supra. A party is liable for the acts of his solicitor on proof of 
retainer; thus, A. employed B., an attorney, to enforce payment of a debt; 
B. directed his agent to sue out a justicies in the county court; before the 
return of the justicies the debtor paid the debt, and costs, to B. ; his agent, 
not knowing of such payment, afterwards entered up judgment and sued out 
execution, under which the trespass was committed : held, that both A. and 
B. were liable as trespassers. Bates v. Pilling, 5 L. J. (0. S.) K. B. 40; 
6 B. & C. 38; Glissold v. Gratchley, 79 L. J. K. B. 635; [1910] 2 K. B. 
244. See also Crook v. Wright, Ey. & M. 278. A solicitor who, as such, 
misleads the sheriff, by indorsing on a writ of execution a direction, by which 
the sheriff is induced to seize the goods of a wrong party, is liable in trespass. 
Bowles V. Seni-or, 15 L. J. Q. B. 231; 8 Q. B. 677; Stratten v. Lawless, 
14 Ir. C. L. B. 432. And the judgment creditor is also liable. Jarmain v. 
Hooper, 13 L. J. C. P. 63 ; 6 M. & G. 827 ; Morris v. Salberg, 58 L. J. Q. B. 
275; 22 Q. B. D. 614. But, where the solicitor delivers a writ of execution 
to an officer, who executes it by entering a house out of the jurisdiction, the 
solicitor is not liable, though he may have had reason to believe it would be 
60 executed. Sowell v. Champion, 7 L. J. Q. B. 197; 6 Ad. & E. 407. 
Where a highway board ordered their surveyor. A., to remove an obstruction 
to an alleged highway across the plaintiff's laud, such order not being within 
the powers conferred on them by the 25 & 26 V. c. 61, under which they weri 
incorporated, it was held that A. and all the members of the board, wan 
voted in favour of the order, were liable to an action of trespass for the entry 
by A. in consequence of the order; Mill v. Hawker, 43 L. J. Ex. 129; L. E. 
9 Ex. 309 ; on appeal, however, the Ex. Ch. held that the surveyor A. was 
liable, but gave no decision as to the liability of the members of the board. 
S. C. ; 44 L. J. Ex. 49 ; L. B. 10 Ex. 92. 

The head, G., of an executive department of the government, is not liable 
for the wrongful acts of the officials under him, unless the act was substanti- 
ally that of G. himself ; those only who commit or authorize the acts are 
liable, and the authority of the department affords them no justification. 
Raleigh v. Goschen, 67 L. J. Ch. 59 ; [1898] 1 Ch. 73 ; Bainbridge v. Post- 
master-Gen., 75 L. J. K. B. 366 ; [1906] 1 K. B. 178. 

The owner of animals mansuetiB natura, such as oxen, &c., is liable for 
trespasses committed by them in the land of another. Keilw. 3 b ; Com. 
Dig. Tresp. (C.) ; Ellis v. Loftus Iron Co., 44 L. J. C. P. 24; L. E. 10 C. P. 
10; see also, Lee v. Riley, 18 C. B. (N. S.) 722; 34 L. J. C. P. 212; Holgate 
V. Bleazard, 86 L. J. K. B. 270 : [1917] 1 K. B. 443 ; Wellaway v. Courtier, 
87 L. J. K. B. 299 ; [1918] 1 K. B. 200. But where such animals, while 
being driven along a highway, stray on adjoining land, through defect of 
fences, their owner is not liable, if he remove them within a time that is 
reasonable, under all the circumstances. Goodwyn v. Cheveley, 28 L. J". Ex. 
298. If without negligence of the owner they stray into a shop adjoining the 
street, along which they are driven, he is not liable. Tillett v. Ward, 
52 L. J. Q. B. 61; 10 Q. B. D. 17. As to unauthorized entries of domestic 
cats and dogs, see Read v. Edwards, 17 C. B. (N. S.) 245; 34 L. J. C. P. 
31. The distress of an animal damage feasant is, so long as the distress is 
retained, a defence to an action of trespass for the same damage. Vaspor 
V. Edwards, 12 Uod.SSB.i.Bodjm v £oscoe, 63 L. J. Q. B. 767; [1894] 



814 Actiwi for Trespass to Land. 

1 Q. B. 608. A person, from whose land animals fertB natures, a.a rabbits, 
&o., escape, is not liable for such injury. Boulston's Case, 5 Bep. Wib; 
Cooper V. Marshall, 1 Burr. 259; Beckwith v. Shordike, 4 Burr 2093; 
Steam v. Pre,itice, 88 L. J. K. B. 422; [1919] 1 K. B. 394. The plaintiff, 
who, while in the defendants' service, was required by them to live m a 
certain cottage as part of his service and for the performance of his duties, 
having left the defendants' service, refused to give up the cottage, 
whereupon by command of the defendants, several persons entered the 
cottage and removed the plaintiff and his furniture, using no more force 
than was necessary. In an action by the plaintiff for assault, battery and 
trespass, held, that the defendants were not liable, their right of entry being 
a defence to civil proceedings for the acts complained of. Hemmings v. 
Stoke Pages Golf Club, 89 L. J. K. B. 744 ; [1920] 1 K. B. 720. 

Trespass ab initio.] Where the defendant enters under an authority in 
law, the plaintiff may show that he has abused such authority and so become 
a trespasser ab initio ; but a mere non-feasance will not be such an abuse ; nor 
does the subsequent abuse of an authority in fact (as a licence) make a 
trespass ab initio. Six Carpenters' Case, 8 Eep. 146 a. The distinction is 
said to be founded on a presumed intention, ab initio, to abuse the authority 
given by the law, and not by the act of the party ; but, it seems to be founded 
rather on the necessity of a more stringent protection against the abuse of 
powers given by law ; whereas , those, who voluntarily give powers can limit 
or recall them as they please. A lessor who enters to view waste, and does 
damage, or, stays all night; a commoner who enters to view his cattle, and 
cuts down a tree; a man who enters ■- tavern, and continues there all night 
against the will of the landlord ; — are all trespassers ab initio. Com. Dig. 
Tresp. (C. 2). So is an officer of a court who neglects to remove goods 
attached, within a reasonable time, and continues on the premises in posses- 
sion. Reed v. Harrison, 2 W. Bl. 1218 ; Aitkenhead v. Blades, 5 Taunt. 198. 
See also Ladd v. Thomas, 12 A. & E. 117 ; 9 L. J. Q. B. 345. So the abuse 
of a distress made a trespass ab initio at common law; but 11 G. 2, c. 19, 
B. 19, provides that no "unlawful act " afterwards done by the distrainor 
shall make the distress for rent actually due unlawful, or the distrainor' 
a trespasser ab initio. 17 G-. 2, c. 38, s. 8, contains similar provisions in 
the case of a distress for poor rate due. In the case of an illegal distress, 
however, the statute affords no defence, and the distrainor is a trespasser oi> 
initio. See further. Action for illegal distress, ante. 

The authority of process is, it seems, an authority in law within the rule. 
See Reed v. Harrison, supra, which was the case of a bailiff of an inferior 
court, who was in the nature of a sheriff. Com. Dig. Tresp. (C. 2). But an 
irregularity of the sheriff or officer of a superior court will not necessarily 
make his act a trespass ab initio. Thus, if he illegally break a door, or 
execute a writ on Sunday, yet the execution may be valid. Percival v. 
Stamp, 9 Ex. 167; 23 L. J. Ex. 25. A detention under an attachment 
beyond the proper time does not make the attachment by the sheriff wholly 
illegal. Smith v. Egginton, 6 L. J. K. B. 206; 7 Ad. & B. 167. 

When the plaintiff relies on an act which makes the defendant a trespasser 
ab initio, he must reply to it specially; but where the abuse is a substantive 
trespass, but not one which makes a trespass ab initio, it must formerly have 
been newly assigned; 1 Wms. Saund. 300 h, (g) ; Smith v. Egginton, supra; 
and may now be raised by way of amendment of the claim, or by reply. 

Damages — Injunction.] In trespass for breaking and entering the 
plaintiff's house, evidence that the defendant at the same time debauched the 
plaintiff's daughter has been allowed, under alia enormia; per Holt, C.J., 
Russel V. Com, 6 Mod. 127; Cas. temp. Holt, 699; B. N. P. 89. And as 
such an act cannot be treated as special damage, and is not necessarily 
actionable in itself, it seems properly matter of aggravation, and was so 
treated in Cock v. Wortham, 2 Selw. N. P. 2nd ed. 1085. But it seems clear 

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Damages — Injunction. 815 

that such matters must now be specially pleaded. Eulea, 1883, 0. xix., 
IT. 15, 17. The plaintiff may prove that his wife was so terrified at the 
trespass that she was immediately taken ill, and soon afterwards died; but 
this evidence was held admissible for the purpose only of showing how 
outrageous and violent the trespass was, and not as a substantive ground of 
damage. Huxley v. Berg, 1 Stark. 98. Where the plaintiff declared for 
breaking and entering her house, and, under a false charge that she had 
stolen property in it, ransacking and searching, &c. ; whereby she was injured 
in her credit, it was held that the jury might give damages for the trespass 
as aggravated by the false charge. Bracegirdle v. Orford, 2 M. & S. 77. 
The jury may consider not only the pecuniary damage sustained, but also 
the intention with which the act has been done, whether for insult or injury. 
Sears v. Lyons, 2 Stark. 318; Merest v. Harvey, 5 Taunt. 442; see also 
Emblen v. Myers, 6 H. & N. 54; 30 L. J. Ex. 71; Bell v. Midland By. Co., 
10 G. B. (N. S.) 287; 30 L. J. C. P. 273; Davis v. Bromley Urban Council, 
1 L. G. E. 668. For the continuance of an obstruction placed by the defen- 
dant on the plaintiff's land, a fresh action of trespass may be brought de die 
in diem, and to such actions recovery in a former action is no defence. 
Holmes v. Wilson, 10 Ad. & E. 503; Bowyer v. Cook, 16 L. J. C. P. 177; 

4 C. B. 236. By 0. xxxvi., r. 58, " Where damages are to be assessed in 
respect of any continuing cause of action, they shall be assessed down to the 
time of the assessment." 

In trespass for cutting away part of the plaintiff's land, the defendant 
is bound to pay the value of the land so cut away, but not the expense of 
reinstating it ; for this may be more than the land was ever worth. Jones 
V. Gooday, 10 L. J. Ex. 275 ; 8 M. & W. 146 ; see also Whitham v. Kershaw, 
16 Q. B. D. 613; Riley v. Halifax Corpn., 97 L. T. 278; and Kirby v. 
Chessum, 12 L. G. R. 1136. If a house is pulled down by the defendant, 
the damages are measured by the reduction in the selling value of the land. 
Hashing v. Phillips, 3 Ex. 168. In trespass for breaking a mine and taking 
the plaintiff's coal, the plaintiff is entitled as against a mere wrong-doer, to 
the value of the coal when it first existed as a chattel, without deducting the 
expense of getting it. Wild v. Holt, 11 L. J. Ex. 285 ; 9 M. & W. 672. 
But, the expense of afterwards bringing it to the pit's mouth must be allowed ; 
for the plaintiff cannot profit by the increased value caused by the removal. 
Morgan v. Powell, 11 L. J. Q. B. 263; 3 Q. B. 278 ; Jegon v. Vivian, 40 L. J. ' 
Ch. 389; L. R. 6 Ch. 742; Phillips v. Homfray, L. E. 6 Gh. 770. See also 
Att.-Gen. v. Tomline, 46 L. J. Gh. 654; 5 Gh. D. 750; 15 Ch. D. 150. And 
where there is a bond fide disputed title, and no fraud, the jury should give 
only the fair value per acre, as if the defendant had bought the coal-field of 
the plaintiff. Wood v. Morewood, 3 Q. B. 440, n. ; Hilton v. Woods, 
36 L. J. Gh. 941; L. E. 4 Eq. 432; Livingstone v. Rawyards Coal Co., 

5 App. Gas. 25. See further Trotter v. Maclean, 49 L. J. Ch. 256 ; 13 Ch. D. 
574, and McArthur v. Comwell, 61 L. J. P. C. 1; [1892] A. C. 75. Where 
the defendant has drawn coal from his own mine over the plaintiff's adjacent 
mine, the plaintiff is entitled to damages for way-leave. Jegon v. Vivian 
and Phillips v. Homfray, supra. So where the defendant has tipped spoil 
from his colliery on to the plaintiff's land, in estimating the damages, as to 
the value of the land so covered, the use to which it has been applied must be 
taken into account, as well as the diminution of the value of the rest of the 
plaintiff's land. Whitwham v. Westminster Coke Co., 65 L. J. Ch. 741; 
[1896] 2 Ch. 538. 

The defendant may in mitigation of damages, show circumstances which 
he could not have pleaded in justification. See Eules, 0. xxi., r. 4. Secus, 
as to matters which could have been so pleaded. Simmons v. Norton, 
7 Bing. 640; 9 L. J. (0. S.) C. P. 186. A recovery against a co-trespasser 
not joined is not admissible in mitigation, but should be specially pleaded in 
bar. Day v. Porter, 2 M. & Eob. 151. 

In an action of trespass scienter need not be proved. Therefore where 
sheep belonging to they-defaodant ^re^asMd ojwto the plaintiff's land and 
B.— VOL. II. y y -j^g 



816 Action for Trespass to Land. 

developed scab, in consequence whereof they were interned on the plaintiff's 
premises by a detention notice, the plaintiff's sheep also being included in the 
notice, it was held that the plaintiff could recover all damages that were the 
natural consequence of the trespass, both before and after the date of the 
detention notice. Theyer v. Purnell, 88 L. J. K. B. 263 ; [1918] 2 K. B. 333. 

Damages must be assessed jointly against co-trespassers. An injunction 
will be granted to restrain the defendant from laying or keeping pipes on 
the plaintiff's land under the highway. Goodson v: Richardson, 43 L. J. Ch. 
790; L. E. 9 Ch. 221. See also Ramsden v. Manchester Ry. Co., 1 Ex. 
723. Or from being on the highway for purposes other than its use as a 
highway. Hickman v. Maisey, 69 L. J. Q. B. 511; [1900] 1 Q. B. 752. 
In such case instead of an injunction a declaration may be granted that the 
defendant was committing a trespass. Harrison v. Rutland (Duke), 
62 L. J. Q. B. 117; [1893] 1 Q. B. U2; Llandudno Urban Council v. Woods, 
m L. J. Ch. 623; [1899] 2 Ch. 706. And where the plaintiff is not injured 
by the trespass an injunction may be refused. S. C. And so even where 
damages have been awarded. Behrens v. Richards, 74 L. J. Ch. 615 ; [1905] 
2 Ch. 614. 

In Waterhouse v. Waterhouse, 94 L. T. 133, the court refused to grant 
an injunction restraining a son from staying in his father's house contrary to 
the father's wishes. 



Defence. 

All matters relied on in justification must be pleaded specially, except 
where there is a statutory power to give them in evidence under the defence 
of " not guilty." 

Where the trespass was an entry to make an unlawful distress, recovery 
by the plaintiff in an action of replevin, is no defence. Gibbs v. Cruikshank, 
42 L. J. C. P. 273; L. E. 8 C. P. 454. 

Wot guilty by statute.l By various statutes particular persons were 
enabled to give special matter in evidence under the general issue. This 
defence is reserved by Eules, 1883, 0. xix., r. 12. By stat. 56 & 57 V. c. 61, 
s. 2 (c), however, the right so to plead has in many cases been abolished, 
and in such cases the defence must be pleaded specially. 

Defence denying property or possession.} Under this defence the defen- 
dant might formerly have shown lawful title to possession in himself or in 
anothet under whom he claims. Jones v. Chapman, 18 L. J. Ex. 456; 
2 Ex. 803; and see Burling v. Read, 19 L. J. Q. B. 291; 11 Q. B. 904. 
The defence put in issue mere possession where the defendant was a wrong- 
doer, and title where title was in dispute. It is, however, perhaps doubtful 
whether the defendant must not now plead specially title in himself, in 
order to raise that defence. 

Defence of title in the defendant, cfc] Where the defendant pleads title 
in himself or a third person by whose command he entered, on which issue 
is joined, the issue is upon him. Pearson v. Coles, 1 M. & Eob. 206. It 
puts the defendant on proof of his title, and denies the plaintiff's right of 
possession, but has been said to admit the fact of his possession, and to assert 
the defendant's right to the possession. I Wms. Saund. 300 o, (i) ; Doe v. 
Wright, 10 Ad. & E. 763; but see Ewer v. Jones, 16 L. J. Q. B. 42; 
9 Q. B. 623. The right of a landlord to re-enter and take possession of 
premises on the determination of a tenancy is not affected by a justice's 
warrant for delivery of possession having been obtained under 1 & 2 V. c. 74, 
and the 21 days thereby limited not having expired. Jones v. Foley, 60 L. J. 
Q. B. 464; [1891] 1 Q. B. 730. The defendant pleaded title in A. and 
entry by his authority; held that, on proof that the defendant was receiver 



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Co-tenancy with Plaintiff — Disclaimer and Tender — Justification. 817 

and general agent of A., a minor in Chancery, the authority ought to be found. 
Ewer V. Jones, supra. Where the plaintiff and the person under whose 
authority the defendant justifies are tenants in common, the defendant is 
entitled to judgment. Benington v. Benington, Cro. Eliz. 157 ; Jacobs v. 
Seward, 41 L. J. C. P. 221; L. E. 5 H. L. 464. The declarations of the 
owner, after the trespass, are not evidence for the defendant of his authority. 
Garr v. Fletcher, 2 Stark. 71. 

Cotenancy with the plaintiff.} Co-tenancy with the plaintiff is no defence 
if the trespass by the co-tenant amount to an ouster. Wilkinson v. Hay garth, 
16 L. J. Q. B. 103; 12 Q. B. 837; Murray v. Hall, 18 L. J. C. P. 161; 
7 C. B. 441; Stedman v. Smith, 8 E. & B. 1; 26 L. J. Q. B. 314. To 
remove the surface of the land or exclude him from the use of it, or to expel 
a person put in by the plaintiff, is such ouster. S. CC. A tenant in common 
is not liable in an action of trespass or for conversion at the suit of his 
co-tenant, if he take away the whole produce of the land. Jacobs v. Seward, 
supra. In this case the court refused to amend the frame of the action Into 
one for an account under 4 & 5 A. c. 3 (4 A. c. 16, Euff.), s. 27, and on 
appeal, the refusal was held to be right. It is no defence, but only ground 
for reduction of damages, that there is a co-tenant with the plaintiff not 
joined. Wilkinson v. Haygarth, 16 L. J. Q. B. 103; 12 Q. B. 837. 

Disclaimer and tender of amends.} 21 J. 1, o. 16, s. 5, enacts that, 
in all actions of trespass qu. cl. fr., wherein the defendant shall disclaim 
in his plea to make any title or claim, to the land in which the trespass is, 
by the declaration, supposed to be done, and the trespass be by negligence 
or involuntary, the defendant shall be admitted to plead a disclaimer, and 
that the trespass was by negligence or involuntary, and a tender or offer 
of sufficient amends for such trespass, before the action brought, whereupon 
or upon some of them the plaintiff shall be enforced to join issue ; and if the 
said issue be found for the defendant, or the plaintiff shall be non-suited, 
the plaintiff shall be clearly barred from the said action, and all other 
suit concerning the same. 

The trespass must be involuntary, it is not sufficient for it to have been 
committed by mistake, if it was voluntary. Baseley v. Glarkson, 3 Lev. 37. 
The statute does not extend to trespass de bonis asportatis ; Bailee v. Vivash, 
Stra. 549; and see 1 M. & Gr. 245, n. ; nor to replevin. Allen v. Bayley, 
2 Lutw. 1594. 

Justification.^ Where the plaintiff has joined issue on a defence of 
justification, the whole matter is put in issue, and must be proved so far 
as it is material to constitute a justification. Phillips v. Howgate, 5 B. & A. 
220; Atkinson v. Wame, 1 C. M. & E. 827. It is enough to prove a 
justification which covers the trespass, although it do not cover mere matter 
of aggravation. In an action for breaking, entering, and expelling, if 
the defendant justify only the breaking and entering, it is sufficient ; for 
the breaking and entering are the gist of the action, and the expulsion is 
only matter of aggravation. Taylor v. Gole, 3 T. E. 292; 1 H. Bl. 555. 
This case was decided on demurrer to the plea, and has been cited to show 
that expulsion alone is not a trespass on the land, though it may make an 
entry a trespass ab initio. See Cubitt v. Porter, 8 B. & C. 257, 259; 
6 L. J. (0. S.) K. B. 306. But, in Meriton v. Goombes, 9 C. B. 787; 
19 L. J. C. P. 336', it was held that expelling from a house is an injury 
in respect of the house. As to when a sheriff can justify an entry under 
process, see Seymayne's Gase, 5 Eep. 91, and notes thereto in Smith's L. C. ; 
Harvey v. Harvey, 26 Ch. D. 644, and Hodder v. Williams, 65 L. J. 
Q. B. 70; [1895] 2 Q. B. 663. See as to justification of entry to abate 
nuisances, Jones v. Williams, 12 L. J. Ex. 249; 11 M. & W. 176, or to 
extinguish fire, Gope v. Sharpe, 81 L. J. K. B. 346; [1912] 1 K. B. 496; or 
to divert some threate£j^^^^g|tjjft/g/\^;j;^ggjj^@ locusts, Greyvensteyn v. 



818 Action for Trespass to Land. 

Hattingh, 80 L. J. P. C. 158; [1911] A. C. 355; or to embank against floods, 
Gerrard v. Crowe, 90 L. J. P. C. 42; [1921] 1 A. C. 395. 

Where a railway act authorizes the company to "enter upon, take and 
use " land under a highway for the purpose of making a tunnel therein, 
they cannot enter on the land without paying the owner of the soil compensa- 
tion therefor under the Lands Clauses Consolidation Act, 1845. Ramsden v. 
Manchester, Sc. By., 1 Ex. 723; Souch v. E. London By., 22 W. R. 566. 
So where the company were authorized to " appropriate and use the sub-soil 
and under-Burface " of land. Farmer v. Waterloo S City By., 64 L. J. Oh. 
338; [1895] 1 Ch. 527. 

Right of way.] The defendant cannot justify under a right of way, 
where the alleged trespass has been committed in assertion of a claim of 
property. Cubitt v. Maxse, L. E. 8 C. P. 704, 707, per Cockbum, C.J., 
at N. P. 

A defence of footway is supported by proof of carriage way ; for the 
latter includes the former. Dames v. Stephens, 7 C. & P. 570. But a right 
to lead manure is not supported by proof of a footway and cattleway ; for 
' leading " implies the use of a carriage. Brunton V. Hall, 10 L. J. 
Q. B. 258; 1 Q. B. 792. The extent of the right is in all cases for the jury; 
proof of user for farming purposes is evidence of a right for all purposes. 
Cowling v. Higginson, 7 L. J. Ex. 265; 4 M. & W. 245 ; Dare y. Heathcote, 
25 L. J. Ex. 245. The grant of a way may be explained by evidence of the 
state of the premises, at the time of the grant; but not by the acts or 
declarations of the parties before or after, unless there be a doubt which 
of two ways was intended. Oshorn v. Wise, 7 G. & P. 761. Proof of a 
public way is not inconsistent with the fact that it is also a private way. 
Brownlow v. Tomlinson, 1 M. & Gr. 484. Where the defendant attempted 
to prove a public way over the plaintiff's close, by showing repairs done 
by the surveyor of the township, evidence was held admissible that they 
were done by agreement between the surveyor and plaintiff's steward, and 
were to be paid for by the steward ; and the plaintiff needed not to show 
the steward's authority. Ferrand v. Milligan, 15 L. J. Q. B. 103; 
7 Q. B. 730. 

The time of prescription with regard to rights of way is now altered by 
2 & 3 W. 4, u. 71. 

Neither the grantor nor the grantee of a private way is, in the absence 
of express agreement, bound to repair the way granted; but if the way 
become foundrous, the grantee may not deviate extra viam. Taylor v. 
Whitehead, 2 Doug. 744; Patterson v. Bitchie, 1 M. & S. 393; 1 Wms. 
Sauud. 322 c, (3). The right to deviate cannot be presumed to exist, as an 
incident to a limited dedication of a highway, as, where a path crosses 
a field and the landowner has reserved the right to plough up the path with 
the field ; Arnold v. Holbrook, 42 L. J. Q. B. 80 ; L. E. 8 Q. B. 96 ; the right 
to deviate may, however, be annexed by prescriptive enjoyment to a high- 
way where the dedication is unlimited. Id.; 2 Wms. Saund. 160 b, (12). 
If a private way have been obstructed by the grantor. A., the grantee may 
deviate over A.'s land. Selby v. Nettlefold, 43 L. J. Ch. 359; L. E. 9 
Ch. 111. As to the effect of obstruction by a stranger, see Dawes v. 
Hawkins, 8 C. B. (N. S.) 848; 29 L. J. C. P. 343. 

A person is entitled to go on a highway only for the purpose of using it 
as such; if he use it for any other purpose he is liable in trespass to the 
owner of the soil. Thus a person was held liable, where he went on the 
highway for the sole purpose of disturbing a right of sport on adjoining 
lands. Harrison v. Butland (Duke), 62 L. J. Q. B. 117 ; [1893] 1 Q. B. 142; 
or of watching trials of horses on those lands. Hickman v. Maisey, 69 L. J. 
Q. B. 511; [1900] 1 Q. B. 752. In such cases it is material with what 
mtention H. was using the highway. S. C. There is no right at common 
law in the public to bathe in the sea from a foreshore belonging to a 
private owner. Blundell v. Catterall, 5 B. & Aid. 268; or to cross such a 

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Right of Common — Licence. 819 

foreshore for this purpose. Brinckman v. Matley, 73 L. J. Ch. 642 ; [1904] 
2 Ch. 313. 

Right of Common.^ On a right of common being set up the plaintiff 
may either deny the right stated, or he may traverse the measure of the 
common, viz., that the cattle were the defendant's own cattle, and that 
they were levant and couchant upon the premises, and commonable cattle. 
Robinson v. Rayley, 1 Burr. 316; B. N. P. 23. But, under the last reply 
the plaintiff would fail if it appear that some of the cattle were the 
defendant's commonable cattle levant and couchant ; for the number is 
not material. 1 Wms. Saund. 346 /, (2); Ellis v. Rowles, Willes, 638. 
The plaintiff in such case should formerly have new assigned ; now his proper 
course is to amend his statement of claim, or reply sjjecially. 

The plaintiff may reply an approvement of the common, if it be common 
of pasture; Glover v. Lane, 3 T. E. 445; Robinson v. Duleep Singh, 
48 L. J. Ch. 758; 11 Ch. D. 798; 1 Wms. Saund. 363 b, (n), and by 
custom there may be approvement in the case of common rights, other than 
the right of common of pasture. Lascelles v. Onslow (Lord), 46 L. J. 
Q. B. 333; 2 Q. B. D. 433. See also Arlett v. Ellis, 7 B. & C. 346; 
6 L. J. (0. S.) K. B. 301. The plaintiff may reply that the common has 
been enclosed for upwards of 20 years; and if issue be taken on this reply, 
and it appear in evidence that -part of the common has been inclosed for 
20 years, and that the trespasses were in fact committed in that part, the 
plaintiff is entitled to recover for such trespasses, though the rest of the 
common is uninclosed. Tapley v. Wainwright, 5 B. & Ad. 395. 

Eights in gross are not within the Prescription Act, 1882. Shuttleworth 
V. Fleming, 19 C. B. (N. S.) 687; 34 L. J. C. P. 309. Therefore, a 
prescriptive right of common in gross in the defendant and his ancestors 
cannot be proved under that act, and is disproved by showing a grant 80 
years ago to an ancestor. Weloome v. Upton, 5 M. & W. 398 ; Davies v. 
Williams, 16 Q. B. 546; 20 L. J. Q. B. 830. This would now be a case for 
amendment at the trial. But an ancient grant, without date, is not 
necessarily at variance with prescription ; for it may be anterior to legal 
memory, or only confirmatory; Addington v. Clode, 2 W. Bl. 989; and this 
is a question for the jury. S. 0. 

Where the plaintiff's house had been wrongfully erected on a common, 
the defendant, a commoner, cannot justify pulling down the house while the 
plaintiff's family are in it, without notice or a request to move ; Perry v. 
Fitzhowe, 15 L. J. Q. B. 239; 8 Q. B. 757; Jones v. Jones, 1 H. & C. 1; 
31 L. J. Ex. 506; but, if he pull it down after such notice and request, the 
defendant may justify under his right of common. Davies v. Williams, 
supra. 

Licence.] The licence proved may be either an express one, or one 
implied from circumstances. The keeping open of a house, in which there 
is a public billiard- table, is a licence in fact to all persons to enter for the 
purpose of playing. Ditcham v. Bond, 3 Camp. 525. A defence of licence 
may be proved by showing an entry against the plaintiff's will under a 
provision in a lease that the defendant might enter for non-payment of rent, 
and plead leave and licence in bar of an action for such entry. Kavanagh v. 
Gudge, 7 M. & Gr. 316 ; 13 L. J. 0. P. 99. A mere licence is in general 
revocable. Wood v. Leadbitter, 14 L. J. Ex. 161; 18 M. & W. 838. But 
a person who buys a ticket to see a particular spectacle has a licence 
coupled with a grant, and has a right to stay and witness the whole 
spectacle, provided he behaves properly and complies with the rules of 
those producing the spectacle. Hurst v. Picture Theatres, 83 L. J. K. B. 
1837; [1915] 1 K. B. 1 (not following Wood v. Leadbitter, supra, on this 
point). The licence granted by the sale of the ticket in such a case includes 
a contract not to revoke the licence arbitrarily during the performance. Id. 
An action will lie for Qi§^&a:&jfiMiCM}£^i^g the licence ; Kerrison v. 



820 Action for Trespass to Land. 

Smith, 66 L. J. Q. B. 762; [1897] 2 Q. B. 445; Hurst v. Picture Theatres, 
supra, or to enforce the licence by epecific performance or injunction, 
unless in either case the Stat, of Frauds, s. 4, were a bar to the action, 
by reason of the licence amounting to an interest in land. Even in such 
case, however, where there had been part performance, specific performance 
was sometimes decreed ; and equitable rights are now enforced by all courts. 
J. Act, 1873, s. 24. A licensee, under a revocable licence, is entitled to 
reasonable notice of revocation of the licence. Mellor v. Watkins, L. E. 
6 Q. B. 400; Aldin v. Latimer, Ac. Co., 63 L. J. Ch. 601; [1894] 2 Ch. 437. 
As to what is in such case a reasonable notice, see Wilson "V. Tavemer, 
70 L. J. Ch. 268; [1901] 1 Ch. 578; Lowe v. Adams, 70 L. J. Ch. 783; 
[1901] 2 Ch. 698. 

Although a mere licence is revocable, yet, that which is called a licence 
is often something more than a licence, it often comprises or is connected 
with a grant, and then the party who has given it cannot in general revoke 
it, so as to defeat his grant to which it was incident. Wood v. Leadbitter, 
supra. See Liford's case, 11 Eep. 46 b. So, a licence coupled with an 
interest is not revocable. Thus, where goods on the plaintiff's land were 
sold to the defendant upon conditions of sale, to which the plaintiff was a 
party, one of them being that the buyer should be allowed to enter and 
take the goods; it was held that this licence was irrevocable, and that 
although the plaintiff had, between the sale and entry, locked the gates 
and forbidden the defendant to enter, yet the defendant was justified in 
breaking down the gates and entering to take the goods. Wood v. Manley, 
11 Ad. & E. 34 ; 9 L. J. Q. B. 27. See further Liggins v. Inge, 7 Bing. 
682; 9 L. J. (0. S.) C. P. 202, and Gaussen v. Morton, 10 B. & C. 731; 
9 L. J. (0. S.) K. B. 313, in which last case it was held that an authority 
coupled with an interest was irrevocable. This is explained in Smart v. 
Sandars, 5 C. B. 895; 17 L. J. C. P. 268. It has been held that there is 
no implied licence to enter a house and take goods sold by the plaintiff, 
the owner of the house, to the defendant, and left there by the plaintiff's 
consent. Williams v. Morris; 11 L. J. Ex. 126; 8 M. & W. 488. Nor, 
has an auctioneer who has been employed to sell goods on the premises 
of the proprietor such an interest in the goods as will make the licence to 
enter on the premises irrevocable. Taplin v. Florence, 10 C. B. 744 ; 20 L. J. 
C. P. 137. See also Roffey v. Henderson, 17 Q. B. 574; 21 L. J. Q. B. 49. 
A licence to enter premises and seize goods thereon cannot be assigned. 
Ex pte. Rawlings, 22 Q. B. D. 193. 

An acquiescence by the plaintiff, in the trespass upon an erroneous 
representation (to which the defendant was a party) of the legal obligation 
of the plaintiff to submit to it, will not support a defence of licence. Semb. 
Roper V. Harper, 4 Bing. N. C. 20; Gregson v. Ruck, 4 Q. B. 737. It 
is not sufficient to show a licence by a servant; Holdringshaw v. Rag, 
Cro. Eliz. 876; nor, by a wife; Tayler v. Fisher, Id. 246; nor, by a 
daughter; Cock v. Wortham, 2 Selw. N. P. 2nd ed., 1085; unless the 
circumstances of the case show that the servant or wife or daughter 
respectively, was the agent of the party for granting such licence, so as 
tc make it the licence of the master. A licence includes, as incident to 
it, a power to do everything without which the act licensed cannot be done. 
Thus, if A. license B. to enter his house to sell goods, B. may take necessary 
assistance for the purpose of selling the goods. Dennett v. Grover, Willes, 
195. But an authority from -■ tenant to his landlord, in the absence of the 
former, to let the premises, will not justify the landlord in entering the 
premises (the key being lost) through a window by means of a ladder in 
order to show the house. Ancaster v. Milling, 2 D. & Ey. 714. 

If a man abuse an authority or licence which the law gives him by 
which he becomes a trespasser ab initio, if the defendant plead such licence 
or authority, the plaintiff must reply the ajjuse speciallv. 1 Wms 
Saund. 300, h, (q). 

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Action for Mesne Profits. 821 

Statute of Limitation.] By 21 J. 1, c. 16, b. 3, an action of trespass 
must be brought within six years of the cause of action. Where, however, 
the cause of action has been fraudulently concealed, the statute runs from 
the discovery only. Bulli Coal Mining Co. v. Oshorne, 68 L. J. P. C. 49; 
[1899] A. C. 351 ; and even although the defendant took no active steps to 
prevent detection, where he intentionally abstracted the coal of a neighbour- 
ing mine. S. C. Where minerals have been wrongfully, but inadvertently 
abstracted, the statute has been held to apply to such only as the defendant 
can prove to have been worked more than six years before action. Trotter v. 
Maclean, 49 L. J. Ch. 266 ; 13 Oh. D. 574. 



ACTION FOE MESNE PEOFITS. 

In an action of trespass for mesne profits, the plaintiff may, by proper 
defences, be called upon to prove — 1, his title; 2, his re-entry; 3, the 
defendant's liability by reason of possession; and 4, the amount of damages. 
Pearse v. Goaker, 38 L. J. Ex. 82; L. E. 4 Ex. 92. 

Plaintiff's title.} Under a denial of title, the judgment in a prior action 
of ejectment is proof of title for the plaintiff, against all who are parties or 
privies to the judgment, and whether the judgment in ejectment be upon 
verdict or by default, but from, the date of the writ only, as there is now no 
claim therein from an earlier date. See Aslin v. Parkin, 2 Burr. 665 ; Doe 
v. Whitcomh, 8 Bing. 46; Wilkinson v. Kirby, 15 C. B. 430; 23 L. J. C. P. 
224; Pearse v. Cooker, supra. If the plaintiff seek to recover mesne profits 
anterior to the date in the writ in that action, it will be necessary for him to 
give further evidence of his title ; B. N. P. 87 ; Aslin v. Parkin, 2 Burr. 
668; Barnett v. Guildford (Earl), 11 Ex. 19; 24 L. J. Ex. 281; and the 
judgment therein is in no case conclusive as evidence on an issue joined on 
the title to the close. To be conclusive it must be replied. Doe v. Huddart, 
2 C. M. & E. 316 ; Matthew v. Osborne, 13 C. B. 919 ; 22 L. J. C. P. 241 ; 
see also Vooght v. Winch, 2 B. & A. 662. A county court order under 
19 & 20 V. c. 108, ss. 50, 51, for giving up possession of premises, made 
against a person holding under the tenant, and complied with by him, was 
not conclusive evidence of title in a subsequent action against such person 
for mesne profits. Campbell v. Loader, 3 H. & C. 520; 34 L. J. Ex. 60. 
But it would be otherwise in an action of ejectment under 61 & 52 
V. 0. 43, s. 59. 

Before the C. L. P. Act, 1852, it was held that a judgment in ejectment on 
the several demises of two or more persons was evidence of title for them in 
a joint action of trespass brought by them ; for they may be tenants in 
common. Ghamier v. Clingo, 5 M. & S. 64. The judgment will not be 
evidence against a stranger; and therefore a judgment in ejectment against 
a wife cannot be given in evidence against her husband. Denn v. White, 

7 T. E. 112. But, it is evidence against a person who comes into possession 
after the judgment under the defendant in ejectment; Doe v. Whitcomb, 

8 Bing. 46 ; though not against a person merely shown to be in possession 
without further proof of privity to the judgment ; Doe v. Harvey, 8 Bing. 
239; and, it cannot be shown by oral evidence that the defendant came 
in under the defendant in the former action, where it appears he came in 
under a written agreement. S. C. In a case before the C. L. P. Act, 
1852, where, after judgment by default against the casual ejector, an action 
for the mesne profits was brought against the landlord, who had been in 
the receipt of the rents and profits from the day of the demise, Ld, 
EUenborough ruled that the judgment was not evidence against him,, 
without notice of thei-eifidameni 'f-,k°li/ljpf-?ft;Af^P^^'i^^^^ promise by him 



.•822 Action for Mesne Profits. 

to pay the rent and costs amounted to an admission that he was a trespasser, 
and that the plaintiff was entitled to the possession. Hunter v. Britts, 
S Camp. 4S5. By the C. L. P. Act, 1852, s. 209, every tenant to whom 
a writ for the recovery of possession of land is delivered, or to whose 
knowledge it comes, is bound to give notice thereof to the landlord of the land. 

Plaintiff's re-entry.] The plaintiff should be prepared to show entry into 
the premises before bringing the action, and this may be proved by showing 
an actual entry, or by producing an examined or office copy of the writ of 
possession and of the sheriff's return. It is, however, very questionable 
whether the judgment in ejectment is not, per se, sufficient proof of such 
possession, as to maintain this action as from the date of recovery, or of 
the writ, without further proof of entry. See Wilkinson v. Kirby, 15 C. B. 
430; 23 L. J. C. P. 224. The entry has relation to the first accruer of the 
title, so as to entitle the plaintiff to mesne profits from that time. Bamett v. 
Guildford (Earl), 11 Ex. 19; 24 L. J. Ex. 281; Litchfield v. Ready, 5 Ex. 
939; B. N. P. 87, 88. 

Defendant's possession.] The duration of possession must, it seems, be 
proved, where the defendant lets judgment go by default. Ive v. Scott, 
9 Dowl. 193; see Pearse v. Goaker, 38 L. J. Ex. 82, 84; L. B. 4 Ex. 92, 98. 
The action has been said to lie only against the person who is actually in 
possession and trespassing, and therefore does not lie against a lessee, whose 
under-tenant holds over, after the expiration of the lessee's interest. Burne 
V. Richardson, 4 Taunt. 720. But this doctrine must be qualified; for, 
where defendant in ejectment, K. , had previously demised to A., who 
underlet to B., and B. wrongfully held over, paying rent to A., who accepted 
it under his title from K., it was held that all three might be joined in 
trespass for the mesne profits, and that the record in the ejectment against 
K. was evidence against A. and B. Doe v. Harlow, 12 Ad. & B. 40. 
And, it makes no difference that the under-tenant held over against the will 
of his lessor; Henderson v. Squire, 38 L. J. Q. B. 73; L. R. 4 Q. B. 170; 
though in Doe v. Harlow, supra, Ld. Denman, O.J. , intimated a different 
opinion. The defendant cannot defeat the action by showing that he 
entered only as agent for, and under the licence of, the defendant in 
ejectment. Girdlestone v. Porter, Woodf. Land. & Ten. 7th ed. 653 (y). 
Where the defendant was shown to have a lease of the premises, which was 
not produced, and to have paid a yearly rent under that lease, this was held 
by Kelly, C.B., to be evidence of possession. Pearse v. Goaker, 38 L. J. Ex. 
82, 84; L. E. 4 Ex. 92, 99. 

The effect of the judgment in ejectment as evidence of the defendant's 
possession seems to be hardly settled. In Pearse v. Goaker, supra, there was 
some evidence, aliunde, of the defendant's possession ; but Ohannell and 
Cleaaby, BB., held that a judgment by default in ejectment was evidence 
that the defendant named in the judgment which embodied the writ, was 
at the date of that writ tenant in actual possession, although the defendant 
Ti-as not thereby estopped from showing that he never was in possession ; 
Kelly, C.B., however, relying on Ive v. 5'cotf, 9 Dowl. 193, held that the 
judgment was no evidence of the defendant's possession at all. 

Damages.] The plaintiff must be prepared to prove the value of the mesne 
profits. In Pearse v. Goaker, supra, the yearly rent paid was allowed to be 
used to measure the value. The jury are not, however, in estimating the 
damages, confined to give the mere rent, or annual value of the premises, but 
may give such extra damages as they may think fit, as a compensation for 
plaintiff's trouble, &c. Goodtitle v. Toombs, 3 Wils. 121; Doe d. Levi v. 
Rose, 6 C. B. 275, per Cresswell, J. The plaintiff may also recover, as 
damages, the costs of the action of ejectment; but, if that action were 
defended and the costs taxed, he cannot recover more than such taxed costs. 
Doe V. Filliter, 13 M. & W. 47. The costs must be laid as special damage, 

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Action for Conversion of Goods. 823 

and proved on the trial. Where the damage laid, was that the plaintiff 
" incurred great expense in recovering possession of the said land and 
messuage," it was held that this was sufficient to include the costs of the 
ejectment. Pearse v. Croaker, supra. The plaintiff was also entitled to 
recover, by^ way of damages, the costs incurred by him in a court of error, 
in reversing the judgment in ejectment erroneously obtained by the 
defendant. Nowell v. Roake, 7 B. & C. 404; 6 L. J. (0. S.) K. B. 26. 
The plaintiff is not restricted to the date of the writ, as the time from which 
he was entitled in possession,' but may also recover the profits which accrued 
previously, if he had title to the premises at the time, and the defendant 
was in possession. See B. N. P. 87. The jury, however, are to give 
damages only for the time the defendant is proved to have been in possession, 
and since the plaintiff's title accrued. Stanynought v. Cosins, Barnes, 456. 
Ground-rent and other outgoings, which plaintiff himself must have paid 
if in possession, should be deducted by the jury from the damages. Doe v. 
Hare, 2 Cr. & M. 145 ; 3 L. J. Ex. 17 : see also McArthur v. Cornwell, 
61 L. J. P. C. 1; [1892] A. C. 75. 

Other special damage may be recovered if laid in the statement ; as , 
deterioration of the premises by waste or mismanagement of the defen- 
dant, &c. See Cole on Ejectment, p. 830, Form No. 391; Dunn v. Large, 
3 Doug. 335. 

Statute of Ldmitation.J Unless the statute is pleaded, profits for a 
longer period than six years may be recovered. B. N. P. 88. 



ACTION EOE CONVBESION OF GOODS. 

The action for converting the plaintiff's goods to the defendant's use, or 
wrongfully depriving him of the use and possession of them, is equivalent to 
the old action of trover, by which name it is still commonly called. 

To maintain the action there must be an act of conversion, such as must 
amount to a deprivation of the possession, to such an extent as to be incon- 
sistent with the right of the owner, arid evidence an intention to deprive him 
of that right. Fouldes v. Willoughby, 8 M. & W. 540; 10 L. J. Ex. 364; 
Burroughes v. Bayne, 5 H. & N. 296; 29 L. J. Ex. 185; Lancashire and 
Yorkshire By. v. MacNicoll, 88 L. J. K. B. 601. " Any person who, however 
innocently, obtains the possession of the goods of a person who has been 
fraudulently deprived of them, and disposes of them, whether for his own 
benefit or that of any other person, is guilty of a conversion." Per Ld. 
Chelmsford, Rollins v. Fowler, L. E. 7 H. L. 757, 795; 44 I.. J. Q. B. 169, 
190 ; Winter v. Bancks, 84 L. T. 504 (delivery by police officer on instructions 
of superior officer of goods which had been stolen to a person other than the 
true owner) . In these oases the defendant was in possession of the goods ; 
but, where the plaintiff is left in possession of the goods, he must prove 
that his dominion over them has been interfered with, not in some particular 
way, but altogether; that he has been entirely deprived of the use of them. 
England v. Cowley, 42 L. J. Ex. 80, 81 ; L. E. 8 Ex. 126, 130. 

The evidence in an action for conversion will depend upon the issue joined. 
The facts which constitute a complete title for the plaintiff in this action, 
and which must be proved if denied by the pleadings, are — 1, a general or 
special property in the goods ; or, as against a wrong-doer, a mere possession 
of them; 2, an actual or constructive possession or right of possession; and, 
3, a wrongful conversion by the defendant. In addition to this, the plaintiff 
must prove, 4, the value or damages. 

Evidence of general property.] The defence of no property in the plaintiff, 
means no property as against the defendant. Nicolls v. Bastard, 2 C. M. & 
E. 659; 5 L. J. Ex. T niMfmS^\eWm^Mh^ 6°°'^^ i^ Pi* ^^ ^^^^^' ^^^ 



824 Action for Conversion of Goods. 

evidence for the plaintiff will depend upon the nature of his particular title. 
Where there is both a general and a special owner, but the general owner 
has not transferred his right to the possession, he may still maintain this 
action; thus, where he has delivered the goods to a carrier or other bailee, 
and so parted with the actual possession, he may still maintain trover for a 
conversion by a stranger; for the owner retains the possession in law, as 
against a wrong-doer, and the carrier or other bailee is only his servant. 
Gordon v. Harper, 7 T. E. 42; 2 Wms. Saund. 47, b, c. (1); Nicolls v. 
Bastard, supra. Plaintiff sold porter in casks to A., and the casks, when 
empty, were to be returned or kept at invoice price, at the plaintiff's option : 
it was held, that, when empty, the plaintiffs had such a property and right 
of possession as to support trover against the sheriff who seized and sold 
under a fi. fa. against A. Manders v. Williams, 4 Ex. 339 ; 18 L. J. Ex. 437 ; 
Jelks V. Hayward, 74 L. J. K. B. 717 ; [1905] 2 K. B. 460. But see now 
section 15 of the IBankruptcy and Deeds of Arrangement Act, 1913 (3 & 4 
Geo. 5. c. 34). And, if the bailee of goods for a special purpose transfer 
them to another in contravention of that purpose, the general owner may 
maintain trover against the transferee, though he be a bond fide vendee, 
unless the goods have been sold in market overt. Wilkinson v. King, 

2 Camp. 335; Loeschman v. Machin, 2 Stark. 311; but see 2 Wms. Saund. 
47 d (/). Where railway waggons have been hired from the plaintiffs for a 
certain time, it was held that the sheriff was not liable to an action for 
merely selling them under a fi. fa., but that he became liable, when it 
appeared that these waggons had been used by the persons who bought them , 
and worn by such user. Lancashire Waggon Co. v. Fitzhugh, 6 H. & N. 
502; 30 L. J. Ex. 231. The defendant may be liable for a conversion 
committed by him before the plaintiff's property accrued. See Bristol Bank 
V. Midland By., 61 L. J. Q. B. 115; [1891] 2 Q. B. 652. 

It is laid down in the old authorities that trover lies for money, the 
property in which is in the plaintiff, and to the possession of which he is 
entitled in specie, though the money be not in a bag. The difficulty therein 
suggested of recovering the specific coins by an action of detinue does not 
arise in trover, which is an action to recover damages for the conversion 
merely. Kinaston v. Moor, Cro. Car. 89; Davis v. Dagos, Aleyn, 91; 
Jenkins Cent. 207 ; 3 Salk. 365; Orton v. Butler, 5 B. & A. 652. In Hall v. 
Wood, Dyer, 22, in marg. ; S. C, Cro. Eliz. 841, trover was held main- 
tainable for money given by the plaintiff to the defendant to keep, though 
not in bags. See also Haris' Case, Noy, 128, and Hanberries' Case, cited in 
Holiday v. Hicks, Cro. Eliz. 661. In S. C, in error, Id. 746, it was held 
that the action did not lie by a master against his servant, for money 
received by the servant, for corn sold by him for his master, for the 
property in the money was in the servant. 

Trover lies for a lost bank-note which the defendant has converted, though 
part of the proceeds have been paid by him to the plaintiff ; nor does the 
acceptance of such part waive the tort. Burn v. Morris, 2 Cr. & M. 579; 

3 L. J. Ex. 193. 

This action does not lie for anything savouring of the realty, as for fixtures 
attached to the freehold. Minshall v. Lloyd, 2 M. & W. 450 ; 6 L. J. Ex. 115. 
But an action will lie for wrongfully depriving the plaintiff of his right to 
remove fixtures. London d Westminster Loan Co. v. Drake, 6 C. B. 
(N. S.) 798; 28 L. J. C. P. 297. Where two persons are apparently in 
possession of goods, the legal possession follows the title. Ramsay v. 
Margrett, 63 L. J. Q. B. 513; [1894] 2 Q. B. 18. 

Vesting of the property — Sale of goods.1 The transfer of property in goods 
on a sale thereof is now governed by the Sale of Goods Act, 1893, which 
provides as follows : — 

Sect. 16. — " Where there is a contract for the sale of unascertained goods 
no property in the goods is transferred to the buyer unless and until the 
goods are ascertained." 

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Vesting of the Property — Sale of Goods. 825 

Sect. 17. — (1.) " Where there is a contract for the sale of specific, or 
aiscertained goods the property in them is transferred to the buyer at such 
time as the parties to the contract intend it to be transferred. (2) For the 
purpose of ascertaining the intention of the parties regard shall be had to 
the terms of the contract j the conduct of the parties, and the circumstances 
of the case." See Varley v. WUpp, 69 L. J. Q. B. 333; [1900] 1 Q. B. 513. 
Sect. 18. — " Unless a different intention -appears, the following are rules 
for ascertaining the intention of the parties as to the "time at which the 
property in the goods is to pass to the buyer. 

" Bule 1. — Where there is an unconditional contract for the sale of specific 
goods, in a deliverable state, the property in the goods passes to the 
buyer when the contract is made, and it is immaterial whether the 
time of payment or the time of delivery, or both, be postponed. 
" Bule 2. — Where there is a contract for the sale of specific goods and the 
seller is bound to do something to the goods, for the purpose of putting 
them into a deliverable state, the property does not pass until such 
thing be done, and the buyer has notice thereof. 
" Bule 3. — Where there is a contract for the sale of specific goods in a 
deliverable state, but the seller is bound to weigh, measure, test, or do 
some other act or thing with reference to the goods for the purpose of 
ascertaining the price, the property does not pass until such act or 
thing be done, and the buyer has notice thereof. 
" Bule 4. — When goods are delivered to the buyer on approval or " on 
sale or return ' or other similar terms the property therein passes to 
the buyer : — 

" (a.) When he signifies his approval or acceptance to the seller or 

does any other act adopting the transaction : 
" (6.) If he does not signify his approval or acceptance to the seller 
but retains the goods without giving notice of rejection, then, 
if a time has been fixed for the return of the goods, on the 
expiration of such time, and, if no time has been fixed, on the 
expiration of a reasonable time. What is a reasonable time 
ia a question of fact. 
" Bule 5. — (1.) Where there is a contract for the sale of unascertained or 
future goods by description, and goods of that description and in a 
deliverable state are unconditionally appropriated to the contract, 
either by the seller with the assent of the buyer, or by the buyer with 
the assent of the seller, the property in the goods thereupon passes to 
the buyer. Such assent may be express or implied, and may be given 
either before or after the appropriation is made : 
■ (2.) Where, in pursuance of the contract, the seller delivers the goods to 
the buyer or to a carrier or other bailee or custodier (whether named 
by the buyer or not) for the purpose of transmission to the buyer, and 
does not reserve the right of disposal, he is deemed to have uncon- 
ditionally appropriated the goods to the contract." 
Sect. 19. — (1.) " Where there is a contract for the sale of specific goods or 
where goods are subsequently appropriated to the contract, the seller may, by 
the terms of the contract or appropriation, reserve the right of disposal of 
the goods until certain conditions are fulfilled. In such case, notwithstanding 
the delivery of the goods to the buyer, or to a carrier or other bailee or 
custodier for the purpose of transmission to the buyer, the property in the 
goods does not pass to the buyer until the conditions imposed by the seller 
are fulfilled." See Mirabita v. Imperial Ottoman Bank, 47 L. J. Ex. 418; 
S Ex. D. 164; Karberg v. Blythe, Oreen, Jourdain /i Co., 84 L. J. K. B. 
1673, 1676 ; [1915] 2 K. B. 379, 387. 

If the contract of sale be within the S. of G. Act, 1893, s. 4, and there be 
no note or memorandum, acceptance, or earnest, the contract cannot be 
enforced, but it Seems that it is not thereby avoided, and that the properly 
passes. Taylor v. Gt. E. Ry., 70 L. J. K. B. 499; [1901] 1 K. B. 774. 
In the case of the ^^fnf^z§^f9§^)W!^^S6ft<S^^^^^ goods, where an 



826 Action for Conversion of Goods. 

appropriation has been made by one party, in pursuance of an authority to 
make the election conferred by agreement, then by rule 5 (1), supra, the 
property passes. Thus, where the plaintiff agreed to purchase 100 quarters of 
barley from K., part of a larger quantity which he saw and approved, and of 
which he took away a sample; it was also agreed that the plaintiff should 
send his sacks to K., who was to fill them with the barley, and take them to 
the railway for conveyance to the plaintiff ; the plaintiff sent 200 sacks, and 
K. filled 155 of them ; it was held that as soon as each sack was filled with 
barley, the property in the barley in the sacks vested in the plaintiff. 
Aldridga v. Johnson, 7 E. & B. 885, 900; 26 L. J. Q. B. 296. So, where 
plaintiff contracted in writing with a farmer for the purchase of the whole of 
his next crop of oil of peppermint, after the oil was made it was bottled and 
weighed by the farmer in bottles supplied by the plaintiff, who had also 
made advances to the farmer on account, it was held that trover lay by the 
plaintiff against a subsequent vendee of the oil, to whom the farmer had 
improperly sold it. Langton v. Higgins, 4 H. & N. 402; 28 L. J. Ex. 252. 
So, where the charterers of a ship contract for the supply of a cargo of wheat 
for it, at 4s. 7d. f. o. b., the property passes as delivery is made on board. 
Colonial Insur. Co. of New Zealand v. Adelaide Marine Insur. Co., 56 L. J. 
P. C. 19 ; 12 App. Gas. 128. But, where the charterers sell a cargo which is 
to be loaded on board a ship for a sum " per cwt. c. & f.," no property passes 
until the cargo is complete ; the part shipped remains the property of the 
seller. Anderson v. Morice, 46 L. J. C. P. 11; 1 App. Gas. 713. The assent 
of the buyer to the appropriation of particular goods may be given by an 
agent, such as a wharfinger or warehouseman, and may be either expressed 
or implied. Campbell v. Mersey Docks and Harbour Board, 14 G. B. (N. S.) 
412. 

Under sect. 18, rule 4 (a), where W. received goods from K. " on sale or 
return " and pledged them with A., W. thereby did an act adopting the 
transaction, and the property passed to A. Kirkham v. Attenborough, 
66 L. J. Q. B. 149 ; [1897] 1 Q. B. 201 ; Germ v. Winkel, 107 L. T. 434. See 
also Bradley v. Ramsay, 106 L. T. 771. It is otherwise, however, where 
the goods are delivered " On approbation. On sale for cash only or return. 
Goods had on approbation or on sale or return remain the property of K. until 
such goods are settled for or charged." Weiner v. Gill, 75 L. J. K. B. 916; 
[1906] 2 K. B. 674. 

By sect. 21 (1). " Subject to the provisions of this act, where goods are 
sold by a person who is not the owner thereof, and who does not sell them 
under the authority or with the consent of the owner, the buyer acquires no 
better title to the goods than the seller had, unless the owner of the goods is 
by his conduct precluded from denying the seller's authority to sell. (2.) 
Provided also that nothing in this act shall affect — (a.) The provisions of the 
Factors Acts, or any enactment enabling the apparent owner of goods to 
dispose of them as if he were the true owner thereof; (b.) The validity of 
any contract of sale under any special common law or statutory power of 
sale or under the order of a court of competent jurisdiction." Where F., the 
owner of goods, has given C. a limited power of selling them, and G. sells 
them fraudulently to K., an innocent buyer, P. is not by his conduct pre- 
cluded from denying C.'s authority to sell, unless he held out G. as his agent 
to sell the goods to K. Farquharson v. King, 71 L. J. K. B. 667; [1902] 
A. C. 325. See Weiner v. Gill, supra. 

Where a seller has recognized the right of his buyer to dispose of goods 
remaining in the actual possession of the seller, he cannot defeat the right of 
a person claiming under the buyer, on the ground that no property passed to 
the latter, by reason of the want of a specific appropriation of the goods. 
Woodley v. Coventry, 2 H. & G. 164; 32 L. J. Ex. 185; Knights v. Wiffen, 
40 L. J. Q. B. 51; L. E. 5 Q. B. 660; see also Henderson v. Williams, 
64 L. J. Q. B. 308; [1895] 1 Q. B. 521. But an undertaking by seller, A., 
to deliver to B.'s order, a specific quantity of unascertained goods, does not 
prevent A. from setting up his lien for unpaid purchase-money against B.'s 

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Vesting of the Property— Sale of Goods— Sale of Goods Act, 1893. 827 

buyer. Farmeloe v. Bain, 45 L. J. C. P. 264 ; 1 C. P. D. 445. As to the 
seller's right of lien in case of sub-sale under sect. 47, see Mordaunt v. 
British Oil S Cake Mills, 79 L. J. K. B. 967; [1910] 2 K. B. 502. 

The property in goods passes on a sale by auction, though they are not 
paid for; Scott v. England, 2 D. & L. 620; Sweeting v. Turner, 41 L. J. 
Q. B. 58 ; L. E. 7 Q. B. 310. A quantity of iron was to be delivered under a 
contract that certain bills outstanding against the seller should be taken out 
of circulation : a part of the iron had been delivered, but no bills had been 
taken out of circulation, and the seller brought trover for the part delivered : 
held that, it being only a conditional delivery, and the condition being 
broken, the action might be maintained; and per Bayley, J., " if a tradesman 
Bold goods to be paid for on delivery, and his servant, by mistake, delivers 
them without receiving the money, he may, after demand and refusal to 
deliver or pay, bring trover for his goods against the purchaser." Bishop v. 
Shillito, 2 B. & A. 329, n. ; Brandt v. Bowlby, 2 B. & Ad. 932 ; 1 L. J. K. B. 
14; see Bateman v. Green, I. E. 2 C. Ij. 166. But, there may be a contract 
for the sale of goods whereby the property in them passes at once, subject to 
a right in the seller to retain possession of them until a bill is paid. Ex pte. 
Middletm, 3 D. J. & S. 201 ; 33 L. J. Bky. 36. In such case, however, the 
buyer cannot maintain trover against a third person who converts the goods, 
for the buyer is not entitled to the present possession of them. Lord v. Price, 
43 L. J. Ex. 49 ; L. E. 9 Ex. 64. The property which passes by the sale 
may be divested by rescinding the contract. Thus, where A. sold goods to 
B., and afterwards and before the delivery to B., C. became possessed of the 
goods, and, on being informed of the circumstances, declared that he would 
not deliver them to any person whatever, it was held that A., having repaid 
B., might ijiaintain trover against C. ; the contract between A. and B. being 
rescinded, and B. being remitted to his former position. Pattison v. 
Robinson, 5 M. & S. 105. Where A. is indebted to C, and B. to A., and 
it is agreed between them that B. shall deliver goods to C. in satisfaction of 
A.'s debt, and B. converts them to his own use, C. may maintain trover for 
the goods, though he never had possession; for by the agreement the right 
is in him. B. N. P. 36. As to the effect on a ready-money sale of goods, 
of the dishonour, after the delivery of the goods, of a cheque taken for their 
price, see Loughnan v. Barry, I. E. 6 C. L. 467. 

In general, where goods are ordered to be made, so long as the order is not 
executed, but only in course of execution, no property passes to the person 
for whom they are to be made. Mucklow v. Mangles, 1 Taunt. 318; see 
Bellamy v. Davey, 60 L. J. Ch. 778; [1891] 3 Ch. 640 (discussed and dis- 
tinguished in Pritchett v. Gurrie, 85 L. J. Ch. 753; [1916] 2 Ch. 516) and 
Laing v. Barclay, 77 L. J. P. C. 33; [1908] A. C. 35. To pass the property 
there must in such cases be a completion and an acceptance, or at least an 
approval, by the buyer. Atkinson v. Bell, 8 B. & C. 277, 282, 283; 6 L. J. 
(0. S.) K. B. 258. See also Girardot v. Fitzpatrich, 21 L. T. 470. In some 
cases, however, the property passes before the order is executed. Thus, it has 
been held that where A. agreed to build a ship for B., and it was part of the 
terms of the contract, that given portions of the price should be paid accord- 
ing to the progress of the work, the court considered that the payment of 
these instalments appropriated specifically to B. the very ship in progress, 
and vested in him a property in that ship. It was, however, part of the 
facts in this case that A. by assenting to the registration of the ship as B.'s 
property, appropriated the ship to B., though not complete. Woods v. 
Russell, 5 B. & A. 942. A shipbuilder contracted with P. to build him a 
ship for a certain sum, to be paid by instalments as the work proceeded ; 
the first instalment when the vessel was rammed, the second when she was 
timbered, &c. An agent for P. was to superintend the building. The 
vessel was built under such superintendence, all the materials being approved 
by the agent before they were used. The builder became bankrupt before 
the ship was completed; afterwards his assignees completed the ship All 
the instalments were V^jfj^^fffMiSl'cf^bff^" °^ *'^°^«'" ^7 ?■ against 



828 Action for Conversion of Goods. 

the assignee for the ship, the court held, that, on the first instalment being 
paid, the property in the portion then finished became by virtue of the con- 
tract, vested in P., subject to the right of the builder to retain such portion 
for the purpose of completing the work, and earning the rest of the price, 
and that each material subsequently added became, as it was added, the 
property of P. as the general owner. The judgment of the court was given 
with much doubt, and the approval of P.'s agent during the building was 
regarded as an acceptance of the ship in each stage of the work. Clarke v. 
Spence, 4 Ad. & E. 448; 6 L. J. K. B. 161. So, where the shipbuilder gives 
the plaintiff a bill of sale of the ship, while incomplete, as a security for 
advances made from time to time, it was held that the property in the ship 
vests during the progress. Read v. Fairbanks, 13 C. B. 692; 22 L. J. C. P. 
206. In the above case the bill of sale was relied upon as evidence of the 
intention of both parties; and, generally, it appears that these decisions as 
to ship-building are not exceptions to the rule of law, but depend on the 
intention of the parties as shown by the contract, and their acts done under it. 
See also Laidler v. Burlinson, 2 M. & W. 602; 6 L. J. Ex. 160; Goss v. 
Quintan, 3 M. & Gr. 825; 12 L. J. C. P. 173; Wilkins v. Bromhead, 
6 M. & Gr. 963; 13 L. J. C. P. 74; Wood v. Bell, 6 E. & B. 355 ; 25 L. J. 
Q. B. 321; S&ath v. Moore, 55 L. J. P. C. 54; 11 App. Gas. 350; Anglo- 
Egyptian Navigation Co. v. Rennie, 44 L. J. C. P. 130; L. E. 10 C. P. 271, 
571. The property in a ship passes, as between the vendor, his trustee in 
bankruptcy, and the vendee, by a bill of sale, although the transfer be not 
registered as required by the Merchant Shipping Act, 1894. See Stapleton 
V. Hayman, 2 H. & C. 918; 33 L. J. Ex. 170. See also as to such unregis- 
tered bills of sale. Union Bank of London v. Lenanton, 47 L. J. C. P. 
409; 3 C. P. D. 243. 

Where the buyer selected timber from felled trees, and marked the parts 
purchased, which the seller was to cut and deliver, and the seller became 
bankrupt before the cutting, it was held that the whole passed to his 
assignees. Acraman v. Morrice, 19 L. J. C. P. 57 ; 8 C. B. 449 ; Baker v. 
Gray, 17 C. B. 462 ; 25 L. J. C. P. 161. See Cooper v. Bill, 3 H. & C. 722; 
34 L. J. Ex. 161. 

Whenever there is a delivery of property, on a contract for an equivalent 
in money, or some other valuable commodity, not for the return of the 
identical subject-matter in its original or an altered form, this is a transfer 
of property for value, a sale and not a bailment. S. Australian Insur. Co. v. 
Randell, L. B. 3 P. C. 101, 108. 

Gift and grant.] By a gift of goods the property does not pass, unless the 
gift be by deed or instrument [sem.b., under seal, 2 Wms. Saund. 47 c, (d), or 
testamentary, 25 Q. B. D. 61], of gift, or be executed by an actual delivery 
of the thing given to the donee ; Irons v. Smallpiece, 2 B. & A. 551 ; Cochrane 
V. Moore, 25 Q. B. D. 57; Valier v. Wright and Bull, 33 T. L. E. 366; see 
Douglas v. Douglas, 22 L. T. 127. An attempted but imperfect gift by a 
testator may be perfected by the subsequent appointment of the donee as 
executor of the testator. Strong v. Bird, 43 L. J. Ch. 814 ; L. B. 18 Eq. 315 ; 
In re Stewart, 77 L. J. Ch. 625; [1908] 2 Ch. 251; In re Stoneham, infra. 
But this rule is not to be extended to a case where the gift was merely a 
promise to give in the future a sum of money not identified or separated 
from the rest of the testator's estate. In re Innes, 79 L. J. Ch. 174; [1910] 
1 Ch. 188. But an antecedent delivery of the thing alio intuitu to the donee 
is sufiicient ; see Cain v. Moon, 65 L. J. Q. B. 587 ; [1896] 2 Q. B. 283. 
And manual delivery seems not to be always necessary, as where P. 's furni- 
ture, being in K.'s house, P. went to the house, and in a room where some 
of it was, gave, per verba de prcesenti, all the furniture to his daughter, K.'s 
wife, and then left; this was held to amount to a sufficient change of posses- 
sion from K. to his wife, consequent on the gift to effectuate it. Kilpin v. 
Ratley, [1892] 1 Q. B. 582; In re Stoneham, 88 L. J. Ch. 77; [1919] 1 Gb. 
149. And it has been said that if A. in London give J. S. his 

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Gift and Grant. 829 

at York, and another take them away before J. S. obtains actual possession, 
J. S. may maintain trover or trespass for them. Br. Abr. Trespass, 303; 
Hudson V. Hudson, Latch. 214; 2 Wms. Saund. il b, (1), (d). If A. in 
his lifetime give to B. a security (as a policy of insurance or a railway 
debenture) for B.'s use and benefit, and B. takes possession of it, A.'s execu- 
tors cannot sue for recovery of the deed ; for the property in the paper passed, 
though such a gift was ineffectual at law for transferring any legal interest in 
the security as such. Rummens v. Hare, 46 L. J. Ex. 30; 1 Ex. D. 169, 
following Barton v. Gainer, 3 H. & N. 387 ; 27 L. J. Ex. 390 ; where the form 
of action was detinue. The same delivery is required for a gift as to make a 
good donatio mortis causA; Irons v. Smallpiece, supra; as to what 
amounts to such delivery, actual or constructive, see further 1 Wms. Exors., 
10th ed. pp. 593 et seq. A grant of goods to A. passes the property at once 
without any act of assent by B., even although the deed creates an onerous 
trust. Siggers v. Evans, 5 E. & B. 367; 24 L. J. Q. B. 305. See also 
L. & County Banking Co. v. L. & River Plate Bank, 57 L. J. Q. B. 601; 
21 Q. B. D. 535. But A. may make refusal in pais, and by that the property 
in A. will be divested. Butler and Baker's Case, 3 Eep. 26 h ; Standing 
V. Bowring, 55 L. J. Ch. 218; 31 Ch. D. 282. The same principles apply 
where the grantee is shown to have declined to accept the goods except as a 
loan ; this negatives the evidence of gift. See Hill v. Wilson, 42 L. J. Ch. 
817, 820; L. E. 8 Ch. 888, 896. Wearing apparel purchased by a married 
woman for her personal use, with money given her for that purpose by her 
husband, is prim& facie her separate property. Masson Tamplier & Go. v. 
De Fries, 79 L. J. K. B. 24; [1909] 2 K. B. 831. There may be, however, 
between husband and wife, a special agreement that the wife's wearing 
apparel purchased by the husband should be his absolute property, and such 
an agreement may be valid and enforceable against the wife's judgment 
creditors. Rondeau, Legrand d Co. v. Marks, 87 L. J. K. B. 215; [1918] 
1 K. B. 75. A conveyance of goods to the " C. I. & A. Co.," under which 
style the defendants carried on their business as money lenders, was held 
to pass the property in the goods to them. Maugham v. Sharpe 17 C. B. 
(N. S.) 443; 34 L. J. C. P. 19; Simmons v. Woodward, 61 L. J. Ch. 252; 
[1892] A. C. 100. The mortgagee of goods is the absolute owner at law ; 
Maugham v. Sharpe, supra. So also where the mortgage is to be absolute 
only on conditions, e.g., those in the Bills of Sale Act, 1882, s. 7, and sched., 
and these have been fulfilled. Johnson v. Diprose, 62 L. J. Q. B. 291 ; [1893] 
1 Q. B. 512. A tender of principal, interest, and costs after the date for 
payment does not divest the mortgagee's property in the goods ; the mort- 
gagor's only remedy is an -action for redemption, and, on taking the account, 
damages to the goods caused by the mortgagee's negligence are recoverable. 
S. C. A mortgage of goods can be made without deed. Reeves v. Capper, 
5 Bing. N. C. 136 ; Flory v. Denny, 7 Ex. 581 ; 21 L. J. Ex. 223. In the case 
of a contract of a pledge the delivery of the goods need not be contem- 
poraneous with the advance of the money ; it is sufficient if they are 
subsequently delivered under the contract. Hilton v. Tucker, 57 L. J. Ch. 
973; 39 Ch. D. 669. A gift made by an infant, by delivery, is good. 
Taylor v. Johnston, 51 L. J. Ch. 879 ; 19 Ch. T>. 603. A lunatic, so found by 
inquisition, cannot while it remains in force, even during a lucid interval, 
make a valid deed disposing of his property. In re Walker, 74 L. J. Ch. 86 ; 
[1905] 1 Ch. 160, following Beverley's Case, 4 Eep. 123 b. The donor of a 
voluntary gift, obtained by an innocent misrepresentation of fact by the 
donee, may recover it on discovery of the mistake. In re Glubb, 69 L. J. Ch. 
278 ; [1900] 1 Ch. 354. 

A grant of goods not in existence, or not belonging to the grantor at the 
time of executing the deed of gjant, was void at law, until the grantor ratified 
the grant, by some act done by him, with that view, after he had acquired 
the property therein. Lunn v. Thornton, 1 C. B. 379 ; 14 L. J. C. P. 161. In 
equity, however, a contract which engaged to transfer to a purchaser or mort- 
gagee, property of ^^t«^))^J^^<}J l?Xj(9?fit$M^ ^^^ °°* possessed at the 



830 Action for Conversion of Goods. 

time, transferred the beneficial interest, immediately on the property being 
acquired by him; Holroyd v. Marshall, 10 H. L. C. 191; 33 L. J. Ch. 193; 
and this right is now, under the J. Act, 1873, s. 24, enforced in all courts. 
Thus, a grant of the stock-in-trade; Lazarus v. Andrade, 49 L. J. C. P. 847; 
5 C. P. D. 318; or, of growing crops; Clements v. Matthews, 52 L. J. Q. B. 
772 ; 11 Q. B. D. 808, " then on, or thereafter to be on the premises, A.," will 
pass the property in the stock, or crops when there. See also Tailby v. Official 
Receiver, 58 L. J. Q. B. 76 ; 13 App. Cas. 523; In re Turcan, 58 L. J. Ch. 101 ; 
40 Ch. D. 5. But the contract must itself purport to convey the interest in 
the property, for a mere licence to seize will confer no interest before seizure. 
Reeve v. Whitmore, and Martin v. Id., 4 D. J. & S. 1; 38 L. J. Ch. 63. In 
such case the property passes on seizure; Hope v. Hayley, 5 E. & B. 830; 
25 L. J. Q. B. 155 ; Carr v. Allatt, 27 L. J. Ex. 385 ; and is not then subject 
to the execution of the judgment creditor of the assignor. Chidell v. Gals- 
worthy, 6 C. B. (N. S.) 471. But where the licence to seize after-acquired 
property is given to secure a debt, the licensee cannot seize goods acquired 
subsequently to the grantor's bankruptcy ; Thompson v. Cohen, 41 L. J. Q. B. 
221; L. E. 7 Q. B. 527; even although the licence is coupled with an assign- 
ment; Cole V. Kernot, 41 L. J. Q. B. 221; L. B. 7 Q. B. 534, n. ; Collyer v. 
Isaacs, 51 L. J. Ch. 14 ; 19 Ch. D. 342. A licence to enter and seize goods is 
not assignable. Ex pte, Rawlings, 22 Q. B. D. 193. The grant to B. of 
property, not then in the possession of the grantor A., confers on B. an 
equitable title only, which may be defeated by a legal title being acquired 
by C. without notice of B.'s equitable title, and before the latter had become 
a legal one. Thus if C. by pledge, Joseph v. Lyons, 54 L. J. Q. B. 1; 
15 Q. B. D. 280; or bill of sale for valuable consideration, Hallas v. Robinson, 
54 L. J. Q. B. 364; 15 Q. B. D. 288, acquire such legal interest from A. 
without notice of B.'s title, C. acquires a good title. Where a builder, 
A., agrees with B. to build on B.'s land, and that all building materials 
brought by A. on the land shall become the property of B., the legal property 
in them vests in B., when they are brought there. Reeves v. Barlow, 53 
L. J. Q. B. 192 ; 12 Q. B. D. 436 ; Hart v. Porthgain Harbour Co., 72 L. J. 
Ch. 426 ; [1903] 1 Ch. 690. Where a bill of sale is given of the furniture 
in a house, and some of those articles are afterwards exchanged for others 
with the consent of the grantee, the property in the latter goods passes to 
the grantee. Cooper v. Tatham, 15 L. T. 218. A mortgage of a ship passes 
to the mortgagee under the word ' ' ship ' ' articles then on board necessary to 
the navigation of the ship, or the accomplishment of the objects of the 
voyage, and also articles brought on board in substitution for them after the 
mortgage. Goltman v. Chamberlain, 59 L. J. Q. B. 563; 25 Q. B. D. 328. 
Where the grantor A., is allowed by the grantee B., to have the apparent 
ownership and possession of goods, which are employed in B.'s business, and 
comprised in- the bill of sale, and A. sells them in the course of his business 
to C, who has no notice of B.'s title; C. acquires a good title; National 
Mercantile Bank v. Hampson, 49 L. J. Q. B. 480 ; 5 Q. B. D. 177 ; Walker 
V. Clay, 49 L. J. C. P. 560; but it is otherwise where A. sells the goods to 
C. fraudulently, and not in the ordinary course of his business, although C. 
had no notice of the fraud. Taylor v. M'Keand, 49 L. J. C. P. 563; 5 
C. P. D. 358. See also Ex pte. Allard, 16 Ch. D. 605. Where a bill of sale 
of goods is given as security for a debt payable by instalments, the grantee 
may seize the whole of the goods on default of payment of one instalment. 
Ex pte. Woolfe, 63 L. J. Q. B. 352 ; [1894] 1 Q. B. 605. See as to notice 
before seizure, Toms v. Wilsrni, 4 B. & S. 442, 445; 32 L. J. Q. B. 33, 382; 
Brighty v. Norton, 32 L. J. Q. B. 38; Belding v. Read, 3 H. & C. 955; 34 
L. J. Ex. 212. 

Possession obtained by fraud.] By a fraudulent or illegal sale, or transfer 
of goods, no property passes. Wilkinson v. King, 2 Camp. 335. So, a sale 
of live pheasants passed no property while the 58 G. 3, c. 75, prohibiting the 
sale, was in force. Helps v. Glenister, 8 B. & C. 553; 7 L. J. (0. S.) K. B. 

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Possession obtained by Fraud, 831 

117. So, where a person obtains goods iinder colour of a purchase upon false 
pretences, or with the preconceived fraudulent intention of not paying for 
them, the seller may avoid the contract. Noble v. Adams, 7 Taunt. 59; 
Bristol (Lord) v. Wilsmore, 1 B. & C. 614; 1 L. J. (0. S.) K. B. 178; 
Irving v. Motly, 7 Bing. .543; 9 L. J. (0. S.) C. P. 161; Load v. Green, 
IS M. & W. 216 ; 15 L. J. Ex. 113; Dixon Y. Hewetson, 16 L. T. 295. But 
when a buyer obtains possession of a chattel, with the intention by the seller 
to transfer both the property and possession, although the buyer has com- 
mitted a false and fraudulent misrepresentation, in order to effect the 
contract or obtain the possession, the property vesta in the buyer, until the 
seller has done some act to disaffirm file transaction. Kingsford v. Merry, 
11 Ex. 577, 579; 25 L. J. Ex. 166, 168 (as to which case vide infra); The 
Marie Joseph, 35 L. J. P. C. 66, 71; L. B. 1 P. C. 219, 229; Phillips v. 
Brooks, 88 L. J. K. B. 953 ; [1919] 2 K. B. 243. In the last-cited case the 
facts were that A., fraudulently assuming the name of a person of credit and 
stability, bought in person, and obtained delivery of, goods from B. It was 
held that the property in the goods passed to A., who could therefore give a 
good title thereto to a third party, who, acting bond fide and without notice, 
gave value therefor, B. not having in the meantime taken steps to disaffirm 
the contract with A. By the Sale of Goods Act, 1893, s. 23 : " When the 
seller of goods has a voidable title thereto, but his title has not been avoided 
at the time of the sale, the buyer acquires a good title to the goods, provided 
he buys them in good faith and without notice of the seller's defect of title." 
This follows the rule laid down in Kingsford v. Merry, supra; Higgons v. 
Burton, 26 L. J. Ex. 342; Attenborough v. S. Katherine's Dock Co., 3 
C. P. D. 450, 464. See further on this subject, Cundy v. Lindsay, 47 L. J. 
Q. B. 481, 483; 3 App. Cas. 463, 464, per Ld. Cairns. The true owner, to 
be entitled to recover the goods from the buyer, must prove that the latter 
did not buy them in good faith and without notice of the seller's defect 
of title. Whitehorn v. Davison, 80 L. J. K. B. 425; [1911] 1 K. B. 
463. 

As to the vendor's election to affirm or determine the contract, see Clough 
V. L. S N. W. Ry. Co., L. R. 7 Ex. 26. But, to give such rights to 
a bona fide pawnee or buyer from one A., who has obtained goods by fraud, 
it is necessary that the relation 'of seller and buyer should have subsisted 
between A. and the original seller. In Kingsford v. Merry, 1 H. & N. 503; 
26 L. J. Ex. 83, the plaintiffs sold, by a broker, goods at a wharf to A., 
who sold over to B. X. obtained from B. the broker's delivery order, 
addressed to the plaintiffs, on pretence of using it only to inspect the goods 
at the wharf for another purchaser, and he, X., thereupon produced the 
delivery order to the plaintiffs, and by falsely representing himself to be a 
sub-purchaser from B., obtained a warrant to the wharfinger to deliver to 
himself X., and thereupon got the goods transferred to the name of the 
defendant, as a security for money bond fide lent by defendant to X. in 
ignorance of the circumstances or of any fraud being committed ; and it was 
held that, as there never was any contract as between the plaintiffs and X., 
it was a mere case of fraud by a stranger, who could convey no title to the 
defendant by --i possession so obtained ; but the Ex. Ch. , in so deciding on 
the facts stated in the case on appeal, and reversing the judgment of the 
Exch., did not interfere with the proposition of law laid down by the latter 
court and above cited. See The Marie Joseph, supra, and Henderson v. 
Williams, infra. E. G., a clerk of the firm of G. & Co., without authority, 
bought goods from the plaintiffs in the name of G. & Co. Invoices for these 
goods were made out in the name of E. G. & Co., the plaintiffs believing 
that they were dealing with G. & Co. E. G. pledged the goods to the defen- 
dant a few days after they were delivered. It was held that the plaintiffs 
were entitled to recover, as there had never been a contract of sale to E. G. 
Hardman v. Booth, 1 H. & C. 803; 32 L. J. Ex. 105; Cundy v. Lindsay, 47 
L. J. Q. B. 481; 3 App. Cas. 459. See also the observations of the Court in 

Higgons v. Burton, 'mft&^^^T^^iSfoW^' " ^- ^^ ^^ ^^ ^" = *^ 
E.— VOL. 11. » J' 23 



832 Action for Conversion of Goods. 

L. J. Q. B. 169 ; L. E. 7 Q. B. 616 ; L. R. 7 H. L. 757, and Farquharson v. 
King, 71 L. J. K. B. 667 ; [1902] A. C. 325. 

Where one of two innocent persons must suffer from the fraud of »■ third, 
he shall suffer who by his indiscretion has enabled such third person to 
commit the fraud. Henderson v. Williams, 64 L. J. Q. B. 308, 312; [1895] 
1 Q. B. 521, 529. See Farquharson v. King, supra, where the materiality o£ 
the words in italics is pointed out. 

Pledge — Factors Acts.} By the common law, an agent intrusted with 
goods cannot convey to a etranger a better right than he himself possesses, 
or is empowered to confer. See Biggs v. Evans, [1894] 1 Q. B. 88. "But 
if the owner of the goods had so acted as to clothe the seller or pledgor with 
apparent authority to sell or pledge, he was at common law precluded, as 
against those who were induced bond, fide to act on the faith of that apparent 
authority, from denying that he had given such an authority, and the result 
to them was the same as if he had really given it. But there was no such 
preclusion against those who had notice that the real authority was limited." 
Cole V. N. W. Bank, 44 L. J. C. P. 233 ; L. E. 10 C. P. 354, 363. To remedy 
this latter case, and other difficulties which arose out of dealings with agents, 
the three earlier Factors Acts, viz. : — 4 G. 4, u. 83; 6 G-. 4, c. 94; and 5 & 6 
V. c. 89, were passed. These Acts were amended by the Factors Act, 1877, 
40 & 41 V. c. 39, but they have now been repealed, and the law on the 
subject consolidated and amended by the Factors Act, 1889, 52 & 53 V. c. 45. 
Its provisions are as follows : — 

By the definition section (sect. 1), " for the purposes of this Act — (1.) The 
expression ' mercantile agent ' shall mean a, mercantile agent having in the 
customary course of his business, as such agent, authority either to sell goods, 
or to consign goods for the purpose of sale, or to buy goods, or to raise money 
on the security of goods ; (2.) A person shall be deemed to be in possession of 
goods or of the documents of title to goods, where the goods or documents are 
in his actual custody or are held by any other person subject to his control or 
for him or on his behalf : (3.) The expression ' goods ' shall include wares and 
rnerchandise : (4.) The expression ' document of title ' shall include any bill 
cf hiding, dock warrant, warehouse-keeper's certificate, and warrant or order 
lur the delivery of goods, and any other document used in the ordinary course 
uf business as proof of the possession or control of goods , or authorizing or pur- 
porting to authorize, either by endorsement or by delivery, the possessor of the 
document to transfer or receive goods thereby represented : (5.) The expression 
' pledge ' shall include any contract pledging, or giving a lien or security on, 
goods, whether in consideration of an original advance, or of any further or 
continuing advance or of any pecuniary liability : (6.) The expression 
' person ' shall include any body of persons corporate or unincorporate. " 

A man employed by a firm of jewellers, to sell goods for them by retail, 
is a " mercantile agent " within sub-sect. 1. Weiner v. Harris, 79 L. J. 
K. B. 342; [1910] 1 K. B. 285, overruling Hastings v. Pearson, 62 L. J. 
Q B. 75 ; [1893] 1 Q. B. 62. Sub-sect. 3 does not include furniture placed 
by the agent in his house for safe custody ; see Wood v. Rowcliffe, 6 
Hare, 191; nor certificates of railway stock; see Freeman v. Appleyard, 32 
Tj. J. Ex. 175. A second pledge of the same goods to a different person 
seems within sub-sect. 5; see Portalis v. Tetley, L. E. 5 Eq. 140. 

Sect. 2. — (1.) " Where a mercantile agent is, with the consent of the 
owner, in possession of goods or of the documents of title to goods, any 
sale, pledge, or other disposition of the goods, made by him, when acting in 
the ordinary course of business of a mercantile agent, shall, subject to the 
provisions of this Act, be as valid as if he were expressly authorized by the 
owner of the goods to make the same ; provided that the person taking under 
the disposition acts in good faith, and has not at the time of the disposition 
notice that the person making the disposition has not authority to make the 
same. (2.) Where a mercantile agent has, with the consent of the owner, 
been in possession of goods or of the documents of title to goods, any sale, 

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Pledge— Factors Acts. 833 

pledge, or other disposition, which would have been valid if the consent had 
continued, shall be valid notwithstanding the determination of the consent : 
provided that the person taking under the disposition has not at the time 
thereof notice that the consent has been determined. (8.) Where a mercantile 
agent has obtained possession of any documents of title to goods by reason of 
his being or having been, with the consent of the owner, in possession of the 
goods represented thereby, or of any other documents of title to the goods, 
his possession of the first-mentioned documents shall, for the purposes of this 
Act, be deemed to be with the consent of the owner. (4.) For the purposes 
of this Act the consent of the owner shall be presumed in the absence of 
evidence to the contrary." 

Under this section a mercantile agent in possession of goods with the 
consent of the true ovraer can, when acting in the ordinary course of business 
as a mercantile agent, confer a good title on a person taking the goods bond 
fide. It only applies when the person dealing with the goods is a mercantile 
agent, as defined by sect. 1 (1.) In the former Acts the expression " agent 
entrusted with the goods," was used instead of " mercantile agent," but the 
effect seems to be much the same. See Hayman v. Flewker, 18 C. B. (N. S.) 
619, 527; 82 L. J. C. P. 132, 183; Monk v. Whittenbury, 2 B. & Ad. 484; 
Wood V. RowcUjfe, 6 Hare, 191; Lamb v. Attenborough, 1 B. & S. 831; 
31 L. J. Q. B. 41 ; Cole v. N. W. Bank, 44 L. J. C. P. 288 ; L. E. 10 C. P. 
334; Johnson v. Credit Lyonnais Co., and Id. v. Blumenthal, 3 C. P. D. 32; 
47 L. J. C. P. 241; Barrow v. City Bank, 5 App. Cas. 664. The section 
gives protection to a bond fide pledgee or vendee where the agent is in posses- 
sion of the goods, notwithstanding the principal was induced to consent to 
his being in possession, by his fraudulent misrepresentations. See Sheppard 
V. Union Bank of London, 7 H. & N. 661; 81 L. J. Ex. 154; Baines v. 
Swainson, 4 B. & S. 270; 32 L. J. Q. B. 281; Vickers v. Hertz, L. B. 
2 H. L. Sc. 113. But not, it seems, where the possession has been 
obtained by a trick constituting larceny. Oppenheimer v. Frazer, 76 L. J. 
K. B. 806 ; [1907] 2 K. B. 60. See further on sect. 2. S. C, Oppenheimer 
V. Attenborough, 77 L. J. K. B. 209 ; [1908] 1 K. B. 221 ; Weiner v. Harris, 
79 L. J. K. B. 342 ; [1910] 1 K. B. 286 ; Janesich v. Attenborough, 102 L. T. 
606 ; Turner v. Sampson, 27 T. L. E. 200. 

Sect. 3. "A pledge of the documents of title to goods shall be deemed to 
be a pledge of the goods." This section applies only to a pledge by a 
mercantile agent. Inglis v. Robertson, 67 L. J. P. C. 108; [1898] A. C. 
616. 

Sect. 4. " Where a mercantile agent pledges goods as security for a debt 
or liability due from the pledgor to the pledgee before the time of the pledge, 
the pledgee shall acquire no further right to the goods than could have been 
enforced' by the pledgor at the time of the pledge." See on this section 
Jewan v. Whitworth, L. E. 2 Eq. 692 ; Macnee v. Gorst, L. E. 4 Eq. 315 ; 
Kaltenbach v. Lewis, 55 L. J. Ch. 58; 10 App. Cas. 617. 

Sect. 5. " The consideration necessary for the validity of a sale, pledge, or 
other disposition, of goods, in pursuance of this act, may be either a payment 
in cash, or the delivery or transfer of other goods, or of a document of title 
to goods, or of a negotiable security, or any other valuable consideration; but 
where goods are pledged by a mercantile agent in consideration of the 
delivery o)r transfer of other goods, or of a document of title to goods, or of a 
negotiable security, the pledgee shall acquire no right or interest in the goods 
so pledged in excess of the value of the goods, documents, or security when 
so delivered or transferred in exchange." 

Sect. 6. " For the purposes of this act an agreement made with a 
mercantile agent through a clerk or other person authorized in the ordinary 
course of business to make contracts of sale or pledge on his behalf shall be 
deemed to be an agreement with the agent." 

Sect. 7. — " (1.) Where the owner of goods has given possession of the 
goods to another person for the purpose of consignment or sale, or has shipped 
the goods in the nam^Tjjy[^g^jmer^jjj(jjj^^j^^(lj^onsignee of the goods has 



834 Action for Conversion of Goods. 

Mot had notice that such person is not the owner of the goods, the consignee 
shall, in respect of advances made to or for the use of such person, have the 
same lien on the goods as if such person were the owner of the goods, and 
may transfer any such lieu to another person. (2.) Nothing in this section 
shall limit or affect the validity of any sale, pledge, or disposition, by a 
mercantile agent." 

The Act also extends to certain dispositions by sellers and buyers of goods 
having possession of the goods or of the documents of title to them ; its 
provisions are. as follows : — 

Sect. 8. " Where a person, having sold goods, continues, or is, in posses- 
sion of the goods or of the documents of title to the goods, the delivery or 
transfer by that person, or by a mercantile agent acting for him, of the goods 
or documents of title under any sale, pledge, or other disposition thereof, or 
under any agreement for sale, pledge, or other disposition thereof, to any 
person receiving the same in good faith and without notice of the previous 
sale, shall have the same effect as if the person making the delivery or 
transfer were expressly authorized by the owner of the goods to make the 
same." 

Sect. 9. " Where a person, having bought or agreed to buy goods, obtains 
with the consent of the seller possession of the goods or the documents of 
title to the goods, the delivery or transfer, by that person or by a mercantile 
agent acting for him, of the goods or documents of title, under any sale, 
pledge, or other disposition thereof, or under any agreement for sale, pledge, 
or other disposition thereof, to any person receiving the same in good faith 
and without notice of any lien or other right of the original seller in respect 
of the goods, shall have the same effect as if the person making the delivery 
or transfer were a mercantile agent in possession of the goods or documents of 
title with the consent of the owner." 

The provisions of sects. 8 and 9, supra, are re-enacted by the Sale of Goods 
Act, 1893, o. 25 (1, 2), omitting the paragraphs in italics. By Id. s. 25 (3), 
" In this section the term ' mercantile agent ' has the same meaning as in the 
Factors Acts." 

Sect. 9 applies although the sale to the vendee did not satisfy the reqiiire- 
ments of the Sale of Goods Act, s. 4, and he can give to a bond fide purchaser, 
without notice, a title free from the original vendor's lien. See Hugill v. 
Masker, 58 L. J. Q. B. 171 ; 22 Q. B. D. 364. So it applies although the 
vendee was in possession of the documents of title to the goods on the con- 
dition, which he has not fulfilled, that he should accept a bill of exchange 
for thoir price. Gahn v. Pockett's Bristol Co., 68 L. J. Q. B. 515; [1899] 
1 Q. B. 643. A. being in possession of furniture under a hire and purchase 
agreement with the plaintiff L., sold and delivered the furniture to the 
defendant B. before the last instalment was due or had been paid. B. 
acquires a good title under sect. 9, if he took bond fide and without notice of 
L.'s title. Lee v. Butler, 62 L. J. Q. B. 591; [1893] 2 Q. B. 318. 
So where A. delivered the furniture to H., an auctioneer, for sale, and 
he sold the furniture in good faith, and paid A. the proceeds. Shenstone 
V. Hilton, 63 L. J. Q. B. 584; [1894] 2 Q. B. D. 452. But it is otherwise 
where A. had an option of terminating his agreement with L., by paying all 
instalments due and returning the furniture, as in that case there is no 
agreement to buy. Helby v. Matthews, 64 L. J. Q. B. 465; [1895] A. C. 
471. See McEntire v. Grossley, 64 L. J. P. C. 129; [1895] A. C. 457. See 
further on this section Inglis v. Robertson, 67 L. J. P. C. 106; [1898] A. C. 
616. 

Sect. 11. " For the purposes of this act, the transfer of a document may 
be by endorsement, or, where the document is by custom or its express 
terms transferable by delivery, or makes the goods deliverable to the bearer, 
then by delivery." 

Sect. 12. — " (1.) Nothing in this act shall authorize an agent to exceed or 
depart from his authority as between himself and his principal, or exempt 
him from any liability, civil or criminal, for so doing. (2.) Nothing in this 

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Factors Act, 1889— Stolen Goods. 835 

act shall prevent the owner of goods from recovering the goods from an agent 
or his trustee in bankruptcy at any time before the sale or pledge thereof, or 
shall prevent the owner of goods pledged by an agent from having the right 
to redeem the goods at any time before the sale thereof, on satisfying the 
claim for which the goods were pledged, and paying to the agent, if by him 
required, any money in respect of which the agent would by law be entitled 
to retain the goods or the documents of title thereto, or any of them, by way 
of lien as against the owner, or from recovering from any person with whom 
the goods have been pledged, any balance of money remaining in his hands 
as the produce of the sale of the goods, after deducting the amount of his 
lien. (3.) Nothing in this act shall prevent the owner of goods, sold by an 
agent, from recovering from the buyer the price agreed to be paid for the 
same, or any part of that price, subject to any right of set off on the part of 
the buyer against the agent." See Kaltenbach v. Lewis, 55 L. J. Ch 58; 
10 App. Cas. 617. 

Sect. 13. " The provisions of this act shall be construed in amplification 
and not in derogation of the powers exercisable by an agent independently 
of this act." 

Stolen Goods.} By the Sale of Goods Act, 1893, s. 22 (1), " Where goods 
are sold in market overt, according to the usage of the market, the buyer 
acquires a good title to the goods, provided he buys them in good faith and 
without notice of any defect or want of title on the part of the seller. 
(2.) Nothing in this section shall affect the law relating to the sale of horses." 

Market overt in the country is only held on the special days provided for 
particular towns by charter or prescription, but in the city of London every 
day, except Sunday, is market day. In the country the market place is the 
only market overt, but in the city of London every shop in which goods are 
exposed publicly for sale, for such things only as the owner professes to trade 
in. 2 Bl. Coms. 449 ; Market Overt, Case of, 5 Eep. 83. It is necessary that 
the goods should be openly exposed for sale in the market during the whole 
of the time that the bargain is made. C. had two shops in different parts of 
the city of London, and he bought by sample in one shop a quantity of stolen 
opium, which was delivered to him at the other shop; it was held that for 
the above reason he had acguired no title to the opium. Crane v. London 
Dock Co., 5 B. & S. 313 ; 33' L. J. Q. B. 224. So where a jeweller purchased 
jewels in a show room over his shop, to which room customers were admitted 
by special invitation only, he acquired no title. Hargreave v. Spink, 
61 L. J. Q. B. 318; [1892] 1 Q. B. 25. And it seems that the city custom 
does not apply where the shopkeeper is the purchaser of the goods. S. C. 
An auction room in the city where unredeemed pledges, &c., were sold by 
auction, was held by Scrutton, J., not to be a "shop " within the custom. 
Clayton v. Le Roy, 81 L. J. K. B. 49; [1911] 2 K. B. 1031. The C. A. did 
not deal with this point. Id. 

Where a man purchases stolen goods not in market overt, and after notice 
of their having been stolen, sells them in market overt, the owner may 
maintain trover against the first buyer. Peer v. Humphrey, 2 Ad. & E. 
495; 4 L. J. K. B. 100; 2 Wms. Saund. 47 h. (p). It was formerly thought 
that trover would not lie against the thief or his accomplice until conviction. 
See Stme v. Marsh, 6 B. & C. 551, 564; 5 L. J. (0. S.) K. B. 201; Ghowne 
V. Baylis, 31 Beav. 351; 31 L. J. Ch. 757. In Smith v. Selwyn, 83 L. J. 
K. B. 1339; [1914] 8 K. B. 98, it was said that the proper course is to stay 
further proceedings until the defendant has been prosecuted. See further, 
Carlisle v. Orr, [1918] 2 I. E. 442, where the rule that the felon must first 
be prosecuted was said not to be absolute, but subject to the exercise of judicial 
discretion. And it was always held to lie against an innocent party, who had 
taken or bought the goods (not in market overt), without such conviction. 
White V. Spettigue, 13 M. & W. 608; 14 L. J. Ex. 99; Lee v. Bayes, 
25 L. J. C. P. 249; 18 C. B. 599; and see Osbom v. Gillett, 42 L. J. Ex. 58; 
L. R. 8 Ex. 88. 

The sale of horses ifyffiiiiflBiail tswcfUfherfjei^^iS^ of sect. 22 ; such sale is 



836 Action for Conversion of Goods. 

regulated by the etats. 2 & 3 P. & M. e. 7, and 31 El. c. 12 ; and the property 
in a horse, even though sold in market overt, does not pass to the buyer, 
unless the formalities directed by those statutes are complied with. 2 lust. 
713 et seq. The case of Lee v. Bayes, supra, where it was held that a sale 
by public auction at a horse repository, out of the city of London, is not a 
sale in market overt, appears to have been decided irrespectively of those 
statutes. 

If goods stolen are pawned, the owner may maintain trover against the 
pawnbroker; Packer v. Gillies, 2 Camp. 336, n. ; and without tendering the 
duplicate, or making a declaration under the Pawnbrokers Act, 1872 
(35 & 36 V. c. 93), for the provisions of sects. 25 et seq. impose restrictions 
upon the right of the pawner, and persons claiming under him only, to 
obtain a return of the pledge, and they do not affect the right of the true 
owner, whose goods have been stolen and pledged adversely to him, to 
recover them from the pawnbroker; Singer Manufacturing Co. v. Clark, 
49 L. J. Ex. 224; 5 Ex. D. 37, even although an order for restitution on 
terms, has been made under sect. 30, not at the owner's instance. Leicester 
V. Cherryman, 76 L. J. K. B. 678; [1907] 2 K. B. 101. The act does not 
apply at all to loans exceeding jEIO. See sect. 10. 

The Larceny Act, 1916 (6 & 7 Geo. 5, u. 50), s. 45, enacts that if any 
person guilty of felony or misdemeanour mentioned in the Act in stealing, 
taking, &c., or knowingly receiving any property is prosecuted to conviction 
by or on behalf of the owner, the property shall be restored to the owner 
or his representative. The court has power to order writs of restitution. 
But where goods have been obtained by fraud not amounting to steaUng, 
the property therein shall not revest in the person who was the owner or his 
personal representative by reason only of the conviction of the offender. 
Trover is maintainable even against a purchaser in market overt, without 
any order for restitution having been made. Scattergood v. Sylvester, 
15 Q. B. 506; 19 L. J. Q. B. 447; Bentley v. Vilmont, 57 L. J. Q. B. 18; 
12 App. Gas. 471. See also the Sale of Goods Act, 1893, s. 24 (1), (2); and 
the Criminal Appeal Act, 1907 (7 E. 7, c. 23), s. 6. While sect. 24 is 
general and applies to all larcenies, it does not apply to things in action or 
money ; hence as regards these the provisions of the Larceny Act , 1916 , apply. 
As to the recovery of negotiable instruments and money, vide infra. A con- 
viction by a court of summary jurisdiction, acting under the Summary 
Jurisdiction Act, 1879 (42 & 43 "V. c. 49), has the same effect as a conviction 
for the offence on indictment ; sect. 27 (3). So also a probation order under 
the Probation of Offenders Act, 1907 (7 E. 7, c. 17), s. 1 (4). 

It was decided that trover lay under the now repealed stat. 21 H. 8, c. 11, 
for money obtained by the sale of stolen goods; Harts' Case, Noy, 128; for 
gold stolen and changed into silver; Hanberries' Case, cited in Holliday v. 
Hicks, Cro. Eliz. 661 ; and for goods purchased with stolen money. Golightly 
V. Reynolds, Lofft, 88. In R. v. Powell, 7 C. & P. 640, an order was made 
for the restitution of a horse bought with the proceeds of a stolen bill. See 
also R. V. Central Criminal Court Justices, 55 L. J. M. C. 183; 56 L. J. 
M. C. 25 ; 17 Q. B. D. 698 ; 18 Q. B. D. 314. An order for the restitution of 
a gold £5 piece, which, though a current coin, had never been put in circula- 
tion, but had been sold by the thief as a curiosity, was upheld. Moss v. 
Hancock, 68 L. J. Q. B. 657; [1899] 2 Q. B. 111. 

Where A., in market overt, buys goods which have been stolen from the 
plaintiff, and resells them before the conviction of the thief, though with 
notice of the robbery, he is not liable in trover. Horwood v. Smith, 2 T. E. 
750. So A. , bond fide purchaser of goods which had been obtained by B. by 
false pretences, and re-sold by A. before B.'s conviction, was not liable; 
Lindsay v. Cundy, 1 Q. B. D. 348; 45 L. J. Q. B. 381; for in these cases the 
property vested in A. by the sale, and on the conviction, the property revested 
in the owner, but not by relation, as from the time of the theft or fraudulent 
taking from him. S. C. ; Bentley v. Vilmont, 57 L. J. Q. B. 18, 21; 12 App. 
Cas. 480, per Ld. Bramwell. See also Walker v. Matthews, 51 L. J. Q. B. 

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Stolen Ooods — Negotiable Instruments — Money. 837 

243; 8 Q. B. D. 109. The judgment in Lindsay v. Cundy, supra, was 
reversed on the view of the facts taken by the C. A. & H. L. (46 L. J. Q. B. 
233; 2 Q. B. D. 96; sub nom. Gundy v. Lindsay, 47 L. J. Q. B. 481; 
3 App. Cas. 459), but they expressed no opinion on the construction of this 
statute. See 12 App. Cas. 478, 479; 57 L. J. Q. B. 21, per Ld. Watson. 
In trover for stolen property it does not seem to be necessary for the plaintiff 
to show the mode in which it was lost or stolen. Down v. Hailing, 4 B. & C. 
344. 

By 60 & 61 V. c. 30, s. 1 (1), where property has come into the hands of 
the police on a criminal charge, or under certain statutes, a court of summary 
jurisdiction may make an order for delivery to the person appearing to be the 
owner thereof, or if he cannot be found, such order in relation thereto as may 
seem meet ; (2) such order shall not affect the right of any person to take , 
within six months from the date of the order, legal proceedings against any 
person in possession of property delivered by virtue of the order, for the 
recovery of the property, but on the expiration of those six months the right 
shall cease. 

Stolen Goods — Negotiable instruments — Money.] The property in a bank 
note, like that in cash, passes by delivery, and a party taking it bond fide, 
and for value, is entitled, at common law, to retain it as against a former 
owner from whom it has been stolen. Miller v. Race, 1 Burr. 462 ; 1 Smith's 
L. C. 525. The same rule applies to negotiable instruments, and under this 
head are included all instruments which are by the custom of trade transfer- 
able in this country, like cash, by delivery, and are capable of being sued upon 
by the person holding them pro tern.; but if either of these requisites is 
wanting the transferee will not have a better title to it than the transferor, 
if the sale be made out of market overt. 1 Smith's L. C. 12th ed. 535 ; 
cited in Grouch v. Gredit Fonder, 42 L. J. Q. B. 183, 188; L. B. 8 Q. B. 
374, 381. 

The following instruments have by the custom of trade been held to be so 
transferable and therefore negotiable. The scrip of a foreign loan, by which 
the holder is to be entitled, on payment of the instalments, to delivery of 
definitive bonds of the foreign government; Goodwin v. Robarts, 45 L. J. Ex. 
748 ; 1 App. Cas. 476. The bond of an American Railway Company, whereby 
A. acknowledged itself to be indebted to S. & B. (trustees), or bearer in 
£200 which A. would pay the holder, and promised also to pay interest in 
accordance with the annexed coupons which were "to bearer," the bond being 
one of a series which were secured by a mortgage of even date. V enables v. 
Baring, 61 L. J. Ch. 609; [1892] 3 Ch. 527. So debentures " to bearer " of 
an English company; Bechuanaland Exploration Co. v. L. Trading Bank, 
67 L. J. Q. B. 987; [1898] 2 Q. B. 658; Edelstein v. Schuler, 71 L. J. K. B. 
572; [1902] 2 K. B. 144; or of a foreign one, S. C. So the scrip certificates 
of shares to bearer in an English company. Rumball v. Metropolitan Bank, 
46 L. J. Q. B. 346; 2 Q. B. D. 194; and share warrants to bearer issued 
under the Companies Act, 1867, ss. 27, 28; Webb v. Alexandria Water Go., 
21 T. L. R. 572. These cases determine the principle that modem usage 
is sufficient to establish the negotiability of an instrument, overruling in this 
respect the judgment in Crouch v. Gredit Foncier, supra; and the Courts will 
now judicially notice the negotiability of the instruments above mentioned. 
Edelstein v. Schuler, supra. 

But instruments negotiable abroad are not so here in the absence of a 
custom of merchants in this country to treat them as negotiable. Picker v. 
L. S County Banking Co., 56 L. J. Q. B. 299; 18 Q. B. D. 515. An 
American railway share certificate issued in the name of A. B., and having 
a form of transfer indorsed on it signed in blank by A. B., is not negotiable, 
though so treated in the English stock-markets, for the transfer of the 
shares can only be made by entry on the railway register. L. S County 
Banking Go. v. L. d R. Plate Bank, 20 Q. B. D. 232 (there was no appeal 
on this point); Colonial. Bank v, Cadu^BO L. X,jQh. 131; 15 App. Cas. 267. 

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838 Action for Conversion of Goods. 

An -unsigned post-of&ee order for money in the hands of a banker for collection 
by him is not negotiable. Fine Art Soc. v. Union Bank, 56 L. J. Q. B. 70; 
17 Q. B. D. 705. 

The transferee, B., of a negotiable security takes no better title than that 
of the transferor, A., if B. had, at the time of the transfer, notice that A. had 
no right to give B. a perfect title. Sheffield (Earl) v. L. Joint Stock Bank, 
57 L. J. Ch. 986 ; 13 App. Cas. 333. 

It would seem that a bond fide belief by B. that A. had by law an authority 
to transfer a negotiable instrument, which B. knew did not belong to A., 
gives B. no better title than A. had, for the maxim " Ignorantia juris non 
excusat " applies ; S. C. Id. It is, however, settled that it is otherwise where 
B. believed that A. had such authority in fact; for the receipt of a negotiable 
instrument under the bond fide belief that a person dealing with it, though 
not the owner, had in fact the authoritv of the owner, confers a good title. 
Foster v. Pearson, 4 L. J. Ex. 120; 1 Cr. M. & E. 849 (explaining Haynes 
V. Foster, 3 L. J. Ex. 153; 2 Cr. & M. 237); L. Joint Stock Bank v. 
Simrrions, 61 L. J. Ch. 723; [1892] A. 0. 201. See further on this principle; 
Bentinck v. L. Joint Stock Bank, 62 L. J. Ch. 358; [1893] 2 Ch. 120, and 
TJwmson v. Clydesdale Bank, [1893] A. C. 282; 62 L. J. P. C. 91. 

The Larceny Act, 1916, b. 45, contains a proviso, " that nothing in this 
section [which deals with orders for restitution on the conviction of offender] 
shall apply to the case of any valuable security which has been in good 
faith paid or discharged by some person or body corporate liable to the pay- 
ment thereof, or being a negotiable instrument, has been in good faith, taken 
or received by transfer or delivery by some person or body corporate for a 
just and valuable consideration without any notice or without any reasonable 
cause to suspect that the same had been stolen." This proviso cuts down 
the general right of property restored by the earlier part of the section to the 
owner on the conviction of the thief, and protects the bonA fide holder for 
value of a negotiable instrument against all proceedings for its recovery. 
Chichester v. Hill, 52 L. J. Q. B. 160. And semble, the effect of the section, 
" so far as money is concerned, is limited to cases where the money stolen 
or the proceeds of it are found on the thief, or in the possession of some one 
taking from him otherwise than as money passing as currency," even 
although the stolen coin is capable of identification. Moss v. Hancock, 
68 L. J. Q. B. 662 ; [1899] 2 Q. B. 119, 120. 

If the physical recovery of purloined negotiable securities by the true 
owners, and the subsequent keeping of them, constitute an acceptance in law 
in extinction of the civil claim for their removal against the thief (even 
though they neither knew the securities had been stolen, nor knew that they 
had been returned) a fortiori when the true owners know they have a civil 
claim against the person who has converted the securities, and take other 
documents back ; in those circumstances the legal inference is that they are 
taking an accord and satisfaction for a claim which, after that, they cannot 
enforce. Per Hamilton, J., in Lloyd's Bank v. Swiss Bankverein, 17 Com. 
Cas. 280, 297 ; applying London d County Banking Co. v. River Plate Bank, 
57 L. J. Q. B. 601; 21 Q. B. D. 535. 

Property vesting under execution or award.] At common law the goods 
of an execution debtor are bound by the writ of execution from the time of 
its teste. But, by the Sale of Goods Act, 1893, s. 26 (1), "A writ of fieri 
facias or other writ of execution against goods shall bind the property in the 
goods of the execution debtor as from the time when the writ is delivered to 
the sheriff to be executed;" . . " Provided that no such writ shall prejudice 
the title to such goods acquired by any person in good faith and for valuable 
consideration, unless such person had at the time when he acquired his title 
notice that such writ or any other writ by virtue of which the goods of the 
execution debtor might be seized or attached had been delivered to and 
remained unexecuted in the hands of the sheriff. (2.) In this section the 
term ' sheriff ' includes any officer charged with the enforcement of ■-■ writ of 

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Property vesting under Execution, do. — Previous Recovery in Trover, dc. 839 

execution." A delivery of the writ to the sheriff's deputy in London is a 
delivery to the sheriff. Harris v. Lloyd, 5 M. & W. 432, 436. As to the 
effect of County Court process, see Murgatroyd v. Wright, 76 L. J. K. B. 
747 ; [1907] 2 K. B. 333. As far as relates to the debtor himself and to all 
others but purchasers, a writ of execution binds the party's goods from the 
time of its teste. 1 Wms. Saund. 219 / (8) ; Houghton v. Rusby, Skin. 257 ; 
Hutchinson v. Johnston, 1 T. B. 729, 731; Ex pte. Williams, L. E. 7 Ch. 
314, 317. The binding, both in the case of the Crown and of a common 
person, relates only to the debtor himself and his acts, so as to vacate any 
intermediate assignment made by him, otherwise than in market overt. 
Giles V. Grover, 1 CI. & ]?. 74; S. C, 9 Bing. 136 ; per Patteson, J. ; Wood- 
land V. Fuller, 9 L. J. Q. B. 184; 11 Ad. & B, 867, per Id. But, the 
property in the goods is not altered by the writ until execution and sale by 
the sheriff. Lucas v. Nockells, 10 Bing. 182. Nor, is the property altered 
even by actual sale under the writ, so long as anything remains to be done 
to distinguish the goods sold, as by separation and weighing, on a sale per 
ton. Ward v. Dalton, 18 L. J. C. P. 236; 7 C. B. 643. The law admits 
of inquiry into the fraction of a day, whether the writ of execution was 
delivered to the sheriff or not, before the completion of the conveyance, or 
purchase. Where a judgment debtor. A., made an assignment of all his 
goods to two creditors, Y. and Z., for the benefit of all his creditors, after 
he had notice that a writ of fi. fa. had been delivered to the sheriff for 
execution against his goods ; it was held that the property in the goods passed 
to Y. and Z. immediately on the execution of the assignment ; but that the 
notice to A. was also notice to Y. and Z., and therefore the goods were 
liable to seizure under the fi. fa. Hobson v. Thelluson, 36 L. J. Q. B. 302; 
L. E. 2 Q. B. 642. The sheriff cannot make a valid sale of the execution 
debtor's goods before seizure. Ex pte. Hall, 14 Ch. D. 132. Under sect. 12 
of the Judgments Act, 1838 (1 & 2 Vict. c. 110) the sheriff has no power to 
seize by virtue of a writ of fi. fa., money which belonged to the judgment 
debtor in his lifetime. Johnson v. Pickering, 77 L. J. K. B. 13; [1908] 
1 K. B. 1. By the Bankruptcy Act, 1883, s. 146, " the sheriff shall not, under 
a writ of elegit, deliver the goods of a debtor, nor shall a writ of elegit extend 
to goods." Where a sheriff has seized goods under a fi. fa., and goes out of 
possession, whether he has abandoned possession is a question of fact. 
Eagshawes v. Deacon, 67 L. J. Q. B. 658 ; [1898] 2 Q. B. 173. The sale 
by the sheriff under the execution confers a title only as to the goods of the 
execution debtor. Crane v. Ormerod, 72 L. J. K. B. 507 ; [1903] 2 K. B. 
37. So in the case of a sale, under the County Courts Act, 1888, s. 154, by 
the high bailiff of that Court. S. C. Secus where the owner has made a 
claim and the goods were sold under Id. a. 156. Goodlock v. Cousins, 
6C L. J. Q. B. 360; [1897] 1 Q. B. 558. 

The property in goods does not pass by an award. Hunter v. Bice, 15 
East, 100. It only gives a right of action or attachment (as the case may be) 
for non-performance of it. 

On administration to deceased owner.'] As to the vesting of property of a 
deceased owner in his executor or administrator, vide sub tit. Actions by 
executors, post. 

Previous recovery in trover, or detinue, or for money had and received.'] 
A recovery in trover vests the property in the chattel in the defendant as 
against the plaintiff; Adams v. Broughton, Stra. 1078; Cooper v. Shepherd, 
15 L. J. C. P. 237 ; 3 C. B. 266 ; but not unless the judgment is followed by 
satisfaction; Brinsmead v. Harrison, 40 L. J. C. P. 281; L. E. 6 C. P. 584; 
this is then equivalent to a purchase of the goods at the value assessed by 
the jury. S. C. ; semb. S. C. ; 41 L. J. C. P. 190; L. E. 7 C. P. 554, 555. 
This case overrules the dictum of Jervis, C.J., in Buckland v. Johnson, 
15 C. B. 145 ; 23 L. J. C. P. 204, that by the mere recovery, the property was 
vested in the ^^f^^^^^WjX.f fi|f J9'}<Ji'S»„yjfciWfepf the conversion ; see also 



840 Action for Conversion of Goods, 

Marston v. Phillips, 9 L. T. 289. So, where the damages were not estimated 
on the footing of the full value, which it seems may be shown in a reply to a 
defence stating the former recovery, the judgment does not vest the property 
in the defendant. Holmes v. Wilson, 10 Ad. & E. 603, 511, n. ; see 2 Wms. 
Saund. 47 cc, dd (z). A judgment in detinue is in the same position as a 
judgment in trover. Ex pte. Drake, 46 L. J. Bk. 105 ; 6 Ch. D. 866. 

Judgment for the plaintiff in replevin in the detinet for damages vests the 
property of the goods in the defendant. Moore v. Watts, 1 Ld. Eaym. 614. 
Though it would seem to be otherwise, where the judgment is not followed by 
satisfaction. 

If after a wrongful sale of goods the owner elect to claim and accept part 
of the proceeds of the sale from the wrong-doer as money received to hia 
use, the tort is waived, and he cannot sue in trover. Lythgoe "W. Vernon, 
5 H. & N. 180 ; 29 L. J. Ex. 164. 

Title acquired ahroad.~\ " An assignment of a movable which can be 
touched (goods), giving a good title thereto according to the law of the 
country where the movable is situate at the time of assignment (lex situs), 
is valid." Dicey's Conflict of Laws (2nd ed.), Eule 143, approved in 
Embiricos v. Anglo-Austrian Bank, 74 L. J. K. B. 326; [1905] 1 K. B. 677, 
and there applied to the case of a cheque stolen, and its indorsement forged 
abroad. 

Evidence of special property.^ It is sufficient for the plaintiff to prove that 
he has a special property, as against the defendant, in the goods converted. 
Thus a bailee, Nicolls v. Bastard, 2 C. M. & E. 659; 5 L. J. Ex. 7; a 
sheriff when he has taken goods in execution, B. N. P. 33; (but not before, 
Ex pte. Williams, L. E. 7 Ch. 314) ; the agister of cattle, Br. Abr. Tresp. 
67; the lord who seized an estray or wreck before the year and day expired, 
B. N. P. 88 ; may all maintain this action. So, if a house be blown down 
and a stranger take away the timber, the lessee for life may bring trover, for 
he has a, special property to make use of the same in rebuilding. Id. As to 
the property of the lord in heriots, see 2 Wms. Saund. 168 (1). Ahington v. 
Lipscomb, 10 L. J. Q. B. 330; 1 Q. B. 776; Western v. Bailey, 66 L. J. 
Q. B. 48; [1897] 1 Q. B. 86. In some cases, a person who has only a special 
property may maintain trover, although he has never had actual possession; 
thus a factor to whom goods have been consigned, but by whom they have 
never been received, may bring trover for them ; Fowler v. Down, 1 B. & P. 
47. The consignee of goods consigned as a mere security to meet bills 
accepted by him for the consignor, may bring trover, although no bill of 
lading has been executed. Evans v. Nichol, 3 M. & Gr. 614; 11 L. J. C. P. 
6. And, where the consignor of goods, hearing that the consignee had 
stopped payment, indorsed the bill of lading to the plaintiff, without con- 
sideration, directing him to take possession of the goods, and the plaintiff 
demanded the goods from the defendants (wharfingers), who refused to 
deliver them, it was held that the plaintiff had such a special property as 
entitled him to maintain trover. Morison v. Gray, 2 Bing. 260; 8 L. J. 
(0. S.) C. P. 261 ; Sargent v. Morris, 3 B. & A. 277. Special property may 
be sufficient to support an action even against the owner of the goods ; thus , 
where a person entitled to the temporary possession of a chattel, delivers 
it to the general owner for a special purpose, he may, after that purpose is 
satisfied, and on the refusal of the general owner to return it, maintain 
trover against him for it. Roberts v. Wyatt, 2 Taunt. 268. So N., the 
owner of a chattel, may, by agreement with his co-owner, F., have a special 
property in it, which will entitle N. to recover it from H., with whom E. had 
wrongfully pledged it. Nyberg v. Handelaar, 61 L. J. Q. B. 709 ; [1892] 
2 Q. B. 202. But, it has been held that a landlord, who distrains and 
impounds goods, has not such a special property as will enable him to 
maintain trover; for he has only a pledge, with a statutory power to sell; 
Moneux v. Qoreham, 2 Selw. N. P. 10th ed. 1351 ; and, the goods when 

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Evidence of Property. 841 

impounded are not in the posseasion of the landlord, but in the custody of the 
law between the parties. R. v. Cotton, Parker, 121. The proper remedy ia 
by action for pound breach. See Turner v. Ford, 15 M. & W. 212; 15 L. J. 
Ex. 215, per Parke, B. 

Where either the general or the special owner may maintain trover, judg- 
ment obtained by one is a bar to the action of the other. 2 Wms. Saund. 
47 i, (1). 

Evidence of property — what sufficient against a wrong-doer.'} Where the 
action is brought against a mere wrong-doer, it will be suf&cient for the 
plaintiff to show that he was in possession of the property. Jeffries v. Gt. W, 
By., 5 B. & B. 802 ; 25 L. J. Q. B. 107. See The Winkfield, 71 L. J. P. 21, 
26; [1902] P. 42, 65. Thus, where a chimney-sweeper 'a boy found a jewel, 
and took it to a, jeweller, who refused to return it, it was held that the 
finder had such a property as would enable him to keep it against all but 
the rightful owner, and that he might maintain trover. Armory v. Delamirie, 
Str. 505; 1 Smith's L. C. So, the finder of goods, though picked up by him 
in the shop of a third person. Bridges v. Hawkesworth, 21 L. J. Q. B. 76. 
Though it would have been otherwise, as against an innkeeper, if found in his 
inn, by reason of his special property. Id. per Patteaon, J. And the owner 
of land is generally entitled to chattels found on the land. S. Staffordshire 
Water Co. v. Sharman, 65 L. J. Q. B. 460 ; [1896] 2 Q. B. 44. The plaintiff 
bought a stranded vessel, which was not conveyed to him according to the 
provisions of the Eegistry Acts , and took possession of her ; part of the wreck 
drifted upon the defendant's premises, and was seized by him; it was held 
that plaintiff had a sufficient property to maintain this action. Sutton v. 
Buck, 2 Taunt. 302; see also per Scrutton, L.J., in Daniel v. Rogers, 
87 L. J. K. B. 1149, 1163 ; [1918] 2 E. B. 228, 234. Where a fire had broken 
out in a warehouse containing tallow belonging to different persons, which 
was melted, and flowed into the Thames; the plaintiff collected a quantity 
of this tallow, which was taken from him by a constable, and sold by order of 
the Commissioners of Police to the defendants, under 2 & 3 V. c. 71, s. 30, 
before the 12 months thereby limited had expired ; it was held that the plaintiff 
had no property entitling him to maintain trover against the defendant. 
Buckley v. Gross, 3 B. & S. 566 ; 32 L. J. Q. B. 129. So where on the hearing 
of a charge of theft, the stolen goods are produced by 0., a purchaser from the 
thief, under a subpcend duces tecum, O.'s possessory title baa been said to be 
displaced. See R. v. Lushington, [1894] 1 Q. B. 420. Where the owner of 
furniture lent it to the plaintiff under a written agreement, and the plaintiff 
placed it in a house occupied by the wife of C, a bankrupt, it was held that 
the plaintiff might recover in trover against C.'s assignees, and without pro- 
ducing the agreement. Burton v. Hughes, 2 Bing. 173 ; 3 L. J. (0. S.) 
C. P. 241. A licensee by parol to mine, has possession of the gravel or earth 
dug up, as againat a wrong-doer. Northam v. Bowden, 11 Ex. 70; 24 L. J. 
Ex. 237. In trover for ore, it was proved that the plaintiff was in possession 
of land in which he raised the ore in question : held, that this was primd 
facie evidence of the plaintiff's right to the ore, although the same witness 
on cross-examination, proved that the ore was taken by a person who had a 
shaft in an adjoining close, and was getting the same lode of ore under the 
plaintiff's land where he had sunk his shaft. Rowe v. Brenton, 8 B. & C. 
737; 5 L. J. (0. S.) K. B. 137. In such an action it ia enough to show 
occupation, without proving the title of the lessors under whom the plaintiff 
claims ; and it is no answer that some of the leasers named in the lease have 
not executed it; for thia, if material at all, is only evidence in reduction of 
damages. Taylor v. Parry, 1 M. & Gr. 604; 9 L. J. C. P. 298. The owner 
of a ship, when the cargo is put on board, is primd facie owner of the cargo, 
so as tosue a wrong-doer in trover. Brancker v. Molyneux, 3 M. & G-r. 84. 
A married woman. P., living separate from her husband, as housekeeper to 
P., gave the plaintiff, her niece, a watch, which she handed to F. to keep 
for her; P. and P. died, and the defendants, the executors of P., took posses- 
sion of the watch ; it KMjji^rfitfA f^rflfiffif^^^^ * suf&cient possessory 



842 Action for Conversion of Goods. 

right to maintain trover against the defendants, though she had perhaps no 
right as against P.'s husband. Bourne v. Fosbrooke, 18 C. B. (N. S.) 565; 
34 L. J. C. P. 164. 

Evidence of right of possession.] The plaintiff must show that he has a 
right to the immediate possession of the goods, in order to recover in this 
action. Thus, the purchaser of goods, not sold on credit, has no right of 
possession until he pays or tenders the price. Bloxam v. Sanders, 4 B. & 
C. 941. And see Sale of Goods Act, 1893, ss.^ 27, 28. But, where a tender 
of the price has been made, though after the time fixed for completion of the 
purchase, the vendor v?ill be liable in trover if he refuse to deliver the goods. 
Martindale v. Smith, 1 Q. B. 389; 10 L. J. Q. B. 155; and see Page v. 
Cowasjee, L. E. 1 P. C. 127, 145, and Sale of Goods Act, 1893, =, 10 (1). 
A quantity of hops was purchased from the defendant, the invoice of which 
contained the words " on rent"; the hops remained in the seller's ware- 
house, and an acceptance Of the buyer was afterwards given for the price, 
to the seller at his request , which he indorsed on getting it discounted ; during 
the running of that bill, part of the hops was delivered, in pursuance of 
the buyer's order, to his sub-purchaser, who paid the warehouse rent, pro 
tanto, charged by the seller; afterwards, and before the bill became due, 
the original buyer became bankrupt, and it was dishonoured at maturity; 
it was held, that his assignees could not maintain trover for the hops, with- 
out actual payment of the price agreed on, the buyer having only the right of 
property, without that of possession. Miles v. Gorton, 2 Cr. & M. 504; 
3 L. J. Ex. 155; Grice v. Richardson, 47 L. J. P. C. 48; 3 App. Gas. 319. 
So, where there is a contract to supply goods by instalments, and the buyer 
becomes insolvent before all the instalments have become due, the seller is 
not bound to deliver a further instalment of the goods until tender of the price 
of those delivered and of that instalment , has been made him ; Ex pte. 
Chalmers, 42 L. J. Bk. 37 ; L. B. 8 Ch. 289, followed in Morgan v. Bain, 
44 L. J. C. P. 47 ; L. E. 10 C. P. 15 ; even though the seller had taken a bill 
for the price. Gunn v. Bolckow, Vaughan d Co., 44 L. J. Ch. 732; L. E. 
10 Ch. 491. The seller, having a lieu for the price, permitted the buyer to 
have a key of the part of the seller's premises on' which the goods were to 
remain till payment, the seller retaining a general control over the premises 
as before; held, that this was not such a possession by the buyer, as to 
support trover against the seller, for a wrongful removal of the goods. 
Milgate v. Kebble, 3 M. & Gr. 100; 10 L. J. C. P. 277. A. made an assign- 
ment of goods by deed to secure a debt, with a covenant to pay it on demand, 
and in the meantime to .remain in possession till default; it was held that, 
before demand of the debt, the assignee could not maintain trover. Bradley 
V. Copley, 1 C. B. 685; 14 L. J. C. P. 222. It is otherwise, however, 
where a right to the immediate possession of the goods passed to the plaintiff 
by the assignment, although such right be incumbered by a trust not incon- 
sistent with such possession ; White v. Morris, 11 C. B. 1015 ; 21 L. J. C. P. 
186 ; for in such case the possession of the cestui que trust is the possession 
of the trustee. Barker v. Furlong, 60 L. J. Ch. 368; [1891] 2 Ch. 172. 
Where the assignor wrongfully sold the goods, which he had assigned to 
secure a debt, so that he could not deliver them on demand, the assignee 
was held entitled to recover their value in trover even against the bond fide 
purchaser. Cooper v. Willomatt, 1 C. B. 672; 14 L. J. C. P. 219; Fenn v. 
Bittleston, 7 Ex. 152 ; 21 L. J. Ex. 41 ; Consolidated Go. v. Curtis, 61 L. J. 
Q. B. 325 ; [1892] 1 Q. B. 495. " The rule is, that where there has been a 
misuser of the thing lent, as by its destruction or otherwise, there is an end of 
the bailment, and the action for trover is maintainable for the conversion." 
Bryant v. Wardell, 2 Ex. 479, 482. Where a father gave to his son, aged 
16, a watch and certain books and wearing apparel, it was ruled that the 
right of possession was in the son, and that the father could not maintain 
trover for them, although perhaps it might have been otherwise in the case 
of a child of tender age. Hunter v. Westbrook, 2 C. & P. 578. 

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Fixtures. 843 

Fixtures.'] The reversioner or person entitled to the freehold of lands on 
lease may bring trover for fixtures after severance from the demised land. 
Thus, where certain mill machinery, together with a mill, had been demised 
for a term to a tenant, who, without permission from his landlord, severed 
the machinery from the mill, and it was afterwards sold by the sheriff under 
a fi. fa., it was held that no property passed to the vendee, and that the 
landlord might bring trover for the machinery even during the continuance 
of the term. Farrant v. Thompson, 5 B. & A. 826. So, where lands are 
leased for years, and a tree is cut down by a stranger during the term, the 
landlord may maintain trover for it; for, when it is severed, the special 
property of the lessee is determined. Berry v. Heard, Cro. Car. 242. But 
trover cannot be maintained by a tenant in tail, expectant on the determina- 
tion of an estate for life without impeachment of waste, for timber which 
grew upon and was severed from the estate ; for the tenant for life has a right 
to the trees the moment they are cut down. Pyne v. Dor, 1 T. E. 65 ; and 
see Williams Y. Williams, 12 Bast, 209; Channcm v. Patch, 5 B. & C. 897; 
4 L. J. (0. S.) K. B. 316 ; and In re BarringUm, 56 L. J. Ch. 175 ; 33 Ch. D. 
523 (minerals). The lessor may recover from the lessee a prehistoric chattel 
which the latter has dug out of the demised land. Elwes v. Brigg Gas Co., 
55 L. J. Ch. 734 ; 33 Ch. D. 562. 

A tenant's right to remove fixtures is a power coupled with an interest ; 
Pool's Case, 1 Salk. 368 ; Minshall v. Lloyd, 7U. &W. 450, 460 ; 6 L. J. Ex. 
115; and is assignable by deed. London S Westminster Loan Go. v. Drake, 

6 C. B. (N. S.) 798 ; 28 L. J. C. P. 297. The tenant must, aecording to the 
old authorities , exercise his power during the continuance of his term ; 20 H. 
7, f. 13 b; 21 H. 7, f. 27a; Lyde v. Russell, 1 B. & Ad. 394; 9 L. J. (0. S.) 
K. B. 26; Pugh v. Arton, 36 L. J. Ch. 619; L. E. 8 Bq. 626; and it is well 
settled that he must, at any rate, do so during such further period as he may 
hold possession, after the term, in the capacity of a tenant ; Penton v. Bobart, 
2 East, 88; Mackintosh v. Trotter, 3 M. & "W. 184; Weeton v. Woodcock, 

7 M. & W. 14 ; 10 L. J. Ex. 183 ; Roffey v. Henderson, 17 Q. B. 574 ; 21 L. J. 
Q. B. 49; but, how far the tenant is entitled to this extended period is by no 
means certain. See Heap v. Barton, 12 C. B. 274 ; 21 L. J. C. P. 153, 164 ; 
Leader v. Homewood, 27 L. J. C. P. 316; 6 C. B. (N. S.) 546. See also 
Saint V. Pilley, 44 L. J. Ex. 33; L. K. 10 Ex. 137. The rule has been held 
to be the same whether the term be determined by effluxion of time ; Lyde v . 
Russell, supra; by surrender; Ex pte. Stephens, 47 L. J. Bk. 22; 7 Ch. D. 
127; Ex pte. Brook, 48 L. J. Bk. 22; 10 Ch. D. 100; or, by forfeiture. 
Weeton v. Woodcock; Pugh v. Arton, supra. See, however, observations on 
this last case In re Glasdir Copper Mines, 73 L. J. Ch. 461 ; [1904] 1 Ch. 819. 
But, where a tenant was allowed by the terms of his tenancy to remove 
certain fixtures, he was held entitled to do so within a reasonable time after 
his landlord had given him notice of his election to enter for a forfeiture. 
Sumner v. Bromilow, 34 L. J. Q. B. 130; Ex pte. Gould, 13 Q. B. D. 454. 
See the cases collected in the notes to Elwes v. Mawe, 2 Smith's L. C. Where 
the tenant has by deed, for valuable consideration, assigned to a third person 
A. his right to remove the fixtures, he cannot subsequently defeat the grant 
by a surrender of his lease to the landlord, and A. may recover the value of 
the fixtures in an action against the new tenant, who has refused to allow A. 
to enter and sever the fixtures. L. d Westminster Loan Go. v. Drake, Saint 
V. Pilley, supra. The forfeiture of a lease by the voluntary liquidation of 
the lessee company, is, as regards debenture holders, for whom the company's 
property has been assigned, equivalent to a surrender. In re Glasdir Copper 
Mines, supra. A grant of growing crops is similar in this respect to a grant 
of fixtures. Clements v. Matthews, 52 L. J. Q. B. 772; 11 Q. B. D. 808. 
But unless the assignee exercise his right to enter and sever within a reason- 
able time, the fixtures will pass to the landlord. Moss v. James, 47 L. J. 
Q. B. 160; affirm. 38 L. T. 595. 

As to what fixtures a tenant is entitled to remove, see Elwes v. Mawe, 
2 Smith's L. C. WheM.A,.iie kMSea^LaaHRfeS^^^l'^'l house was restrained 



844 Action for Conversion oj Goods. 

by the covenants in his lease from removing locks, keys, bars, bolts, chimney- 
pieces, slabs, and other fixtures and articles in the nature of fixtures, fixed 
or fastened during the term, and the premises were afterwards finished and 
fitted up as a tavern, and an ornamental marble chimney-piece was put up by 
him, it was held that A. was not restrained from removing the trade fittings, 
or even tenant's fixtures, or the marble chimney-piece, at the end of the term ; 
for the general words of the covenant are to be limited to fixtures of the 
same kind as those which precede them, i.e. to fixtures other than trade or 
tenant's fixtures, and introduced ex majori cauteld,. Bishop v. Elliott, 11 
Ex. 113; 24 L. J. Ex. 229; Dumergue v. Bumsey, 2 H. & C. 777; 33 L. J. 
Ex. 88; Sumner v. Bromilow, 34 L. J. Q. B. 130; Lamboum v. McLellan, 
72 L. J. Ch. 617 ; [1908] 2 Ch. 268 ; Mowats v. Hudson, 105 L. T. 400. But , 
a covenant by a lessee to deliver up the demised premises with all fixtures 
belonging thereto is not in the absence of further explanatory words, con- 
fined to landlord's fixtures but extends to all fixtures on the premises of 
whatsoever nature they may be. Leschallas v. Woolf, 77 L. J. Ch. 345; 
[1908] 1 Ch. 641. After a surrender of a term in land to which tenant's 
fixtures are attached and a subsequent lease to the eame tenant, the latter 
can no longer remove the tenant's fixtures unless his right to remove them is 
reserved, expressly or by necessary implication, by the new lease. Pole- 
Garew v. Western Counties, dc, Manure Co., 89 L. J. Ch. 559 ; [1920] 2 Ch. 
97 (per Warrington, L.J.). A ladder fixed to the ground and to a beam 
above, and which was the only means of access to a room above; a crank 
nailed at top and bottom to keep it in its place, but not let into the wall ; and 
a bench nailed to the wall, were all held not to be goods and chattels for 
which trover would lie after the expiration of the term. Wilde v. Waters, 
16 C. B. 637; 24 L. J. C. P. 193. Valuable tapestries affixed by a tenant 
for life to the walls of a house for ornament, and the better enjoyment of 
them as chattels, so that they can be removed without structural damage, are 
removable by her executor. Leigh v. Taylor, 71 L. J. Ch. 272 ; [1902] A. C. 
157. See also In re Whaley, 77 L. J. Ch. 367 ; [1908] 1 Ch. 615 ; In re Hulse, 
li L. J. Ch. 246 ; [1905] 1 Ch. 406. As to the materiality of the intention of 
the affixing of the fixtures, vide S.CC, Hobson v. Gorringe, 66 L. J. Ch. 114 ; 
[1897] 1 Ch. 182; and Reynolds v. Ashby, 73 L. J. K. B. 946; [1904] A. C. 
466. 

As between mortgagor and mortgagee the fixtures annexed to the land 
pass to the mortgagee, although they can be removed without appreciable 
damage to the freehold, and there is no distinction between fixtures removable 
as between landlord and tenant and fixtures not so removable ; for in this 
case the maxim, quicquid plantatur solo, solo cedit, applies in full force; 
Walmsley v. Milne, 7 C. B. (N. S.) 115; 29 L. J. C. P. 97; Climie v. Wood, 
L. E. 3 Ex. 257; L. E. 4 Ex. 328; In re Richards, L. E. 4 Ch. 630; Holland 
V. Hodgson, L. E. 7 C. P. 328; Smith v. Maclure, [1884] W. N. 14; 32 
W. E. 459; Sheffield Building Soc. V. Harrison, 64 L. J. Q. B. 15; 15 
Q. B. D. 368. Even where trade fixtures are put up by the mortgagor after 
the mortgage, they do not pass to his trustee in bankruptcy. Walmsley v. 
Milne, supra; Longbottom v. Berry, 39 L. J. Q. B. 37; L. E. 5 Q. B. 
123; Meux v. Jacobs, 44 L. J. Ch. 481; L. E. 7 H. L. 481. The rule is the 
same whether the mortgage be a legal one or merely equitable ; S. C. ; 
Longbottom v. Berry, supra; Tebb v. Hodge, 39 L. J. C. P. 56; 
L. E. 6 C. P. 73 ; and whether the mortgagor be a freeholder or 
leaseholder of the mortgaged premises. In re Richards, 38 L. J. Bk. 
9, 12; L. E. 4 Ch. 630, 637; Meux v. Jacobs, supra. See also South- 
port Banking Co. v. Thompson, 57 L. J. Ch. 114 ; 37 Ch. D. 64. In deter- 
mining whether a chattel has become a fixture or not, the intention of the 
person affixing it to the soil is material only so far as it can be pre- 
sumed from the degree and object of the annexation. Hobson v. Gorringe, 
66 L. J. Ch. 114; [1897] 1 Ch. 182; Reynolds v. Ashby, 73 L. J. K. B. 946; 
[1904] A. C. 466. Thus where the fixtures had been supplied to the mort- 
gagor K. by H., under a hire-purchase contract, and the mortgagee G. 

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Fixtures — Evidence of Conversion. 845 

entered before K. had paid H. all the instalmenta payable thereunder, G. 
was held entitled to the fixtures. S.CC. ; Ellis v. Glover and Hobson, 77 
L. J. K. B. 251; [1908] 1 K. B. 388. Where, however, the mortgage is only 
an equitable one, and is later in date than the hire purchase agreement the 
mortgagee's title is postponed to that of the person who let the goods. In re 
Allen, 76 Tu. J. Ch. 362 ; [1907] 1 Ch. 575 ; approved and adopted in In re 
Morrison, Jones, dc., 83 L. J. Ch. 129; [1914] 1 Ch. 50. Where however H. 
retook the fixtures before G.'s entry, H.'a title was held good. Gough v. 
Wood, 63 Li. J. Q. B. 564 ; [1894] 1 Q. B. 713. In order that a chattel should 
become a fixture it is not essential that it should be physically attached to the 
soil on which it rests by its ovm weight. Monti v. Barnes, 70 L. J. K. B. 
225 ; [1901] 1 K. B. 205. The fact that by the mortgage deed the mortgagor 
in possession, for the better securing the mortgaged interest, attorned tenant 
to the mortgagee, does not affect the right of the mortgagee to the fixtures. 
Ex pte. Punnett, 50 L. J. Ch. 212; 16 Ch. D. 226. But where a mortgagor 
in possession lets the mortgaged premises, the tenant may remove the trade 
fixtures which he himself puts up. Sanders v. Davis, 54 L. J. Q. B. 576 ; 15 
Q. B. D. 218. And chairs, let by their owner L., to the owner and occupier 
of a hippodrome for use therein, and which were screwed down to the floor 
thereof, were held not to pass to the mortgagee of the building, as against L. 
Lyon V. L. City, dc, Bank, 72 L. J. K. B. 465; [1903] 2 K. B. 135. 

Evidence of conversion.] The gist of the action is the wrongful conversion 
of the plaintiff's goods by the defendant. A conversion, however, does not, 
ex vi termini, imply a transfer of property to the defendant, but rather a 
deprivation of property suffered by the plaintiff. Keyworth v. Hill, 3 B. & A. 
687. See England v. Cowley, 42 L. J. Ex. 80 ; L. E. 8 Ex. 126 ; Van Oppen 
V. Tredegars, 37 T. D. E. 504. A conversion may be proved either by 
evidence of a direct act of conversion, or by showing a demand of the goods 
by the plaintiff, and a refusal by the defendant to deliver them, which is 
evidence of one. As to the distinction between an actual conversion and what 
is evidence of one, see judgments in Burroughes v. Bayne, 6 H. & N. 296 ; 
29 L. J. Ex. 185. 

Evidence of conversion — actual or direct conversion.'] An unlawful taking 
of goods out of the possession of the owner is itself a conversion, and not 
mere evidence of it. B. N. P. 44; 2 Wms. Saund. 47 n, (1); Grainger v. 
Hill, 4 Bing. N. C. 212; 7 L. J. C. P. 85; Powell v. Hoyland, 6 Ex. 67; 20 
L. J. Ex. 82 ; provided the taking or detention be with intent to convert 
them to the use of the taker, or to some other person, or has the effect of 
destroying or altering their quality or nature ; for if there be a trespass com- 
mitted which does not interfere with the owner's general dominion over the 
property, this is no conversion. Therefore, where a ferryman, refusing to 
take a passenger's horses, removed them from the boat and put them at 
large ashore, this was held not to be in itself a conversion. Rouldes v. 
Willoughby, 8 M. & W. 540; 10 L. J. Ex. 364. See per Martin, B., in 
Crouch V. Gt. N. Ry. Co., 11 Ex. 742; 25 L. J. Ex. 135, 147; and in 
Burroughes v. Bayne, 5 H. & N. 296, 300; 29 L. J. Ex. 185, 189; Heald v. 
Carey, 11 C. B. 977 ; 21 L. J. C. P. 97. In Hiort v. Bott, 43 L. J. Ex. 81, 83 ; 
L. E. 9 Ex. 86, 89, that which constitutes a conversion was described as 
" where a man does an unauthorised act, which deprives another of his pro- 
perty permanently, or for an indefinite time." The using a thing without the 
licence of the owner may be a conversion. Mulgrave v. Ogden, Cro. Eliz. 219 ; 
Keyworth v. Hill, supra. Thus, the wearing of a pearl was held a, conversion. 
Petre (Lord) v. Heneage, 12 Mod. 519. And where a person finds a thing and 
misuses it, it is a conversion. Mulgrave v. Ogden, supra. And, where a 
person coming to the possession of land, found there a block of stone belong- 
ing to another, and removed it, not to an adjacent place, but to a distance, 
it was ruled to be a conversion. Forsdick v. Collins, 1 Stark. 173; but see 
Houghton v. Butler, fyj^tRe^bv Mc^S£fflf®P'"^*' °^ *^® ""^^^ °^' °^ ^ 



846 Action for Conversion of Goods. 

vessel, and filling it up with water, is a conversion of all the liquor.' 
Richardson v. Atkinson, Stra. 576. But, it has been said by Patteson and 
Coleridge, JJ., that the conversion of part is not the conversion of the whole, 
if the remainder continues in a fit state to be delivered up, and the party 
offers to deliver it up. Philpott v; Kelley, 3 Ad. & E. 106; 4 L. J. K. B. 
139. 

A person in the lawful possession of goods may be guilty of a, conversion 
of them, by dealing with them contrary to the orders of the owner. Thus, 
where the owner of goods on board a vessel, directed the captain not to land 
them on ■-■ wharf against which the vessel was moored, which he promised 
not to do, but afterwards delivered them to the wharfinger, for the owner's 
use, under an idea that the wharfinger had a lien thereon, for the wharfage 
fees, because the vessel was unloaded against the wharf ; it was held that the 
owner might, upon demand and refusal, maintain trover against the captain 
unless the latter could establish the wharfinger's right. Syeds v. Hay, 
4 T. E. 260. 

In order to constitute an actual conversion, it is not necessary that the 
party should deal with the goods as his own. It is enough if it be a dealing 
for a third person adversely to the true owner; thus, where a bankrupt, 
being indebted to G., delivered goods to Qr.'s servant, who gave a receipt for 
them in G. 's name, and sold them for his use; it was held, in an action by 
the assignee, that this sale was a conversion by the servant. Perkins v. 
Smith, 1 Wils. 328. So, where the plaintiff placed goods on board the defen- 
dant's ship as a consignment on behalf of D., and demanded bills of lading in 
his own name ; the ship sailed without such bills having been given ; it was 
held that this amounted to a conversion of the goods. Falk v. Fletcher, 18 
C. B. (N. S.) 403 ; 34 L. J. G. P. 146. In this case the defendant, by his acts, 
showed that he set up a title in D., adverse to the plaintiff. But where the 
defendants by charter-party agreed to carry a cargo from C. to B., and the 
master refused to sign bills of lading and carried the cargo to B., and was 
ready to deliver it there to the consignee, it was held that there was no 
conversion. Jones v. Hough, 49 L. J. Ex. 211; 5 Ex. D. 115. The mis- 
delivery of goods by a warehouseman ; Devereux v. Barclay, 2 B. & A. 702 ; 
or by a carrier; Youl v. Harbottle, Peake, 49; Stephenson v. Hart, 4 Bing. 
476; 6 L. J. (0. S.) C. P. 97 ; is a conversion; though it is otherwise where 
he loses them by accident. 2 Wms. Saund. 47 t (1) ; Ross v. Johnson, 5 
Burr. 2825; Kirkman v. Hargreaves, 1 Selwn. N. P., 13th ed. 364. As to 
delivery under an order which has been fraudulently altered, see Union 
Credit Bank v. Mersey Docks, dc, Board, 68 L. J. Q. B. 842; [1899] 2 
Q. B. 205. Proof that the carrier asserted that he delivered the goods to 
the consignee, and that the assertion is false, is not alone evidence of a 
conversion. Attersol v. Briant, 1 Camp. 409. If, however, the plaintiff has 
also proved a demand and a refusal by the party, whether consignor or 
consignee, entitled to have them, it would then have been evidence of a con- 
version. See further the observations of Martin, B., in Grouch v. Gt. N. Ry., 
25 L. J. Ex. 137 ; 11 Ex. 742. But delivery in the ordinary course of business 
at a place directed is no conversion, although the goods were delivered to a 
person not intended by the sender. M'Kean v. M'lvor, 40 L. J. Ex. 30 ; 
L. E. 6 Ex. 36. And a carrier, after the refusal of goods at the consignee's 
address, is an involuntary bailee, and if he act with reasonable care and 
caution with respect to the goods, a mis-delivery of them by him will not be 
a conversion. Heugh v. L. (6 N. W. Ry., 39 L. J. Ex. 48; L. E. 5 Ex. 51. 
Where a landlord before the sale of distrained goods had notice from third 
persons, the plaintiffs, to deliver up the overplus to them as being the real 
owners, it was held no conversion for him to return the overplus and unsold 
goods to the tenant instead of the plaintiffs; for as to overplus, it should 
have been paid to the sheriff and not to the plaintiffs ; and as to the goods, 
they were rightly replaced where they were found. Evans v. Wright, 

H. & N. 627; 27 L. J. Ex. 50. It seems, however, that as the sheriff 
now no longer takes part in the sale, the overplus should be returned to the 

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Evidence of Conversion — Actual or Direct. 847 

real owner. "Where goods of the plaintiff had, by mistake, been consigned 
to the defendant, and he by his act, though bond fide, enabled a third person 
to obtain delivery of the goods, whereby they were lost to the plaintiff, the 
defendant was held liable in trover. Hiort v. Bott, 43 L. J. Ex. 81 ; L. E. 
9 Ex. 86. 

Taking the plaintiff's property by assignment from another who has no 
right to dispose of it, is a conversion ; even after an interlocutory judgment 
in trover by the plaintiff against the assignor. Marston v. Phillips, 9 L. T. 
289. Therefore, where the defendant took an assignment of tobacco in the 
. king's warehouse, by way of a pledge from a broker, who had purchased it in 
his own name for the plaintiff, his principal, it was held that he had been 
guilty of a conversion ; it being also proved that, when the tobacco was 
demanded from him by the plaintiff, he refused to deliver it. M'Gomhie v. 
Davies, 6 Bast, 538; Baldwin v. Cole, 6 Mod. 212; see also Jackson v. 
Anderson, 4 Taunt. 25. See also Hollins v. Fowler, 44 L. J. Q. B. 169; 
L. E. 7 H. L. 757. But where goods were placed in the hands of a factor 
for sale, and he indorsed the bills of lading to the defendants, who thereupon 
accepted a bill for him, and he at the same time directed the defendants to 
sell the goods, and reimburse themselves the amount of the bill out of the 
proceeds, it was held that the defendants having sold the goods, could not be 
sued for them in trover by the original owner. Stierneld v. Holden, 4 B. & C. 
5; 3 L. J. (0. S.) K. B. 127. So where N. fraudulently obtained V.'s goods, 
and pledged them with B. for an advance, and before the fraud was dis- 
covered, repaid the advance and recovered possession of the goods, it was held 
that B. was not liable for conversion. Union Credit Bank v. Mersey Docks, 
dc. Board, 68 L. J. Q. B. 842; [1899] 2 Q. B. 205. Where the defendant 
was intrusted by the plaintiff with a bill of exchange to get it discounted, 
and afterwards misapplied the proceeds, it was held that trover would not 
lie against him. Palmer v. Jarmain, 2 M. & W. 282. See Symonds v. 
Atkinson, 1 H. & N. 146 ; 25 L. J. Ex. 313. So where a broker, who is 
authorized to sell goods at a certain price, sells them at an inferior price, 
it is no conversion. Dufresne v. Hutchinson, 3 Taunt. 117. 

A wrongful sale of goods is a conversion, and no demand is necessary. 
Edwards v. Hooper, 11 M. & W. 363; 12 L. J. Ex. 304. But a wrongful 
sale by one co-tenant is not a conversion as against the other, unless it be 
in market overt, or under such circumstances as wholly to deprive the other 
co-tenant of the power of retaking the goods. Mayhew v. Herrick, 7 C. B. 
229; 18 L. J. C. P. 179. Where A. consigned the goods of B. to the 
defendant, who, without notice of the right of B., sold a part, and kept the 
remainder in his possession, the sale was held to be a conversion as against 
B. Featherstonhaugh v. Johnston, 8 Taunt. 237. A banker, B., discounted 
a bill, drawn on a customer, and accepted, payable at his bank, after notice 
that it had been lost by the holder, C. ; B. afterwards debited his customer 
with the amount of the bill, wrote a discharge on it, and delivered it up to 
the customer as the voucher of his account ; it was held that B. was guilty of 
an actual conversion and that C. could maintain trover against him for the 
bill, without making a demand. Lovell v. Martin, 4 Taunt. 799. If the 
holder of a bill for a specific purpose get money on it by discount without 
authority, this is a conversion of the whole, though he may have received 
only part of the money due on it; and the jury may give the whole amount 
as damages. Alsager v. Close, 10 M. & W. 576; 12 L. J. Ex. 50. So, 
where the drawer of a bill deposited it with a creditor, giving him authority 
to receive the proceeds and apply them in a specific way; and the creditor, 
after the drawer had committed an act of bankruptcy, gave up the bill to 
the acceptor, and took another instead, this was held to be a conversion by 
him as against the assignees. Robscm v. Rolls, 1 M. & Eob. 239. 

Where the defendant, upon the security of two pictures, made an advance 
payable at a day certain, which was subsequently indefinitely extended, and 
the defendant afterwards wrote to the plaintiff, that if the money were not 
paid he should sell thejpickires„ mis-atatine in^iis letter the amount of his 

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848 Action for Gormersion of Goods. 

claim ; it was held that this inaccurate notice did not end the agreement, andi 
that the defendant was liable in trover for selling the pictures. PigM v. 
Cubley, 15 C. B. (N. S.) 701 ; 33 L. J. C. P. 134. See on this case Stuhbs v. 
Slater, 79 L. J. Ch. 420; [1910] 1 Ch. 632. C. deposited with the defendant 
the dock-warrant for a quantity of brandy, as a security for the payment 
of the acceptance of C. due January 29. C. became bankrupt, and the defen- 
dant sold the brandy on the 28th, and handed over the warrant on the 
29th, the vendee taking possession of the brandy on the 30th; it waa 
held, that although the sale alone might not have operated as a. conversion,, 
yet that the delivery of the warrant interfered with the right of retaking 
possession of the goods, and afforded ground for an action of trover. Johnson 
V. Stear, 15 C. B. (N. S.) 330; 33 L. J. C. P. 130. But where A. borrowed 
a sum of money fjom the defendant on his promissory note, payable on 
demand, and deposited scrip certificates for shares as a security : A. became 
bankrupt, and the defendant without any demand or notice sold 10 of the 
15 shares to repay himself his debt; it was held that A.'s assignee could not, 
without having tendered the amount of the debt, maintain trover against the 
defendant to recover the value of the shares, for that, even assuming the sale 
to be wrongful, the immediate right to the possession was not, by the sale, 
revested in the plaintiff, and he- could not therefore maintain trover, either 
for the whole value of the shares, or for nominal damages. Halliday v. 
Hol'gate, 37 L. J. Ex. 174; L. R. 3 Ex. 299; following Donald, v. Suckling, 
35 It. J. Q. B. 232 ; L. E. 1 Q. B. 585, where the form of action was detinue. 
In this last case Blackburn and Mellor, JJ., intimated that in Johnson v. 
Stear, supra, the action of trover should have been held not maintainable ; 
35 L. J. Q. B. 246, 250; L. E. 1 Q. B. 609, 610, 617 ; see also Youngmann 
V. Briesmann, W. N^ 1892, 162, and Mulliner v. Florence, 47 L. J. Q. B. 
700, 703; 3 Q. B. D. 484, 493. Where th& defendant has a lien on goods, 
he is guilty of conversion, if, instead of retaining them, he sell or enable some 
other person to sell them. S. G. ;■ Glarkey. Gilbert, 2Bing. N. C. 857. See 
as to sale of shares mortgaged, otherwise than by deed, Deverges v. Scmde- 
man, 71 L. J. Ch. 328 ; [1902] 1 Ch. 579. 

. Where the defendant took the plaintiff's boat in order to reach his own 
vessel which was on fire, while under the plaintiff's care, and the boat was 
accidentally sunk, Ld. Bllenborough was of opinion that this was not a 
conversion. Drake v. Shorter, 4 Esp. 165. So, it is no conversion, if the 
master of a. ship throws goods into the sea to prevent the ship from s inkin g. 
Bird V. Astock, 2 Bulstr. 280. Where the defendant has done the act com- 
plained of by the licence of the plaintiff it is no conversion. Thus, if a 
persoii, against whom a commission of bankrupt had issued, acquiesced in.it 
so far as to take a part in the sale of his own goods-, by recommending an 
auctioneer to conduct the sale, it was held to be no conversion. Clarke Y. 
Clarke, 6 Esp. 61. 

Though the burning or destroying of property by the defendant is a con- 
version, if done with intent to destroy or appropriate, it is no conversion 
if the goods be burnt by accident, or even by the mere negligence of the 
bailee, or by the act or negligence of a third person not in privity with 
the bailee. It is otherwise if destroyed while in the wrongful possession of 
the defendant, though not with his privity; or, if they are damaged while 
he is exercising a dominion over them, inconsistent with the rights of the 
real owner. Heald v. Carey, 11 C. B. 977; 21 L. J. 0. P. 97. It is no. 
conversion for the defendant to cut away timber improperly, fixed or bedded 
by the plaintiff in the defendant's close, so as not to be easily removable. 
Simmons v. Lillystone, 8 Ex. 431 ; 22 L. J. Ex. 217. 

Evidence of conversion — demand and refusal.'} A demand of the- goods 
by the plaintiff, and a refusal to deliver them by the defendant, he having 
the power to deliver them, are evidence of a conversion ; but being, only 
presumptive evidence of a conversion, it may be rebutted by evidence to tbe- 
contrary; 2- Wms: Saund-. 47 i; (1:). There must be- ar demand" and- a 

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Evidence of Conversion^Denturid arid Refusal. 849 

refusal before the iffsne of the writ. Clayton v. Le Ro)/, 81 L. J. K. B. 49, 
61; Eigil] 2 K. B. 1031, 1050. A demand and refusal are evidence of 
a prior conversion. Wilton v. Girdlestone, 5 B. & A. 847. A refusal 
inust be' proved; mere excuses for not delivering the' goods will not be 
sufficient. Severin v. Keppell, 4 Esp. 156; Addison v. Round, 7 C. & P. 
285'. But the refusal need not be express ; thus where, in trover by assignees 
6f a bankrupt for a landau, it appeared that, after the act of bankruptcy, the 
bankrupt had' sold the lattdau to the defendant, and that a written demand 
of it had been left by the plaintiff at the defendant's house, but it did not 
a/ppear that the latter had expressly refused to deliver it up, Eichardson, J., 
ruled that the demand, and the non-delivery in pursuance of the demand, 
were evidence of a conversion. Waikins v. Woolley, Gow, 69. The fact 
that the plaintiff's goods are in the defendant's' house from which he has 
ejected the plaintiff, is not necessarily proof of a conversion; a demand and 
refusal should be proved. Thorogood v. Robiiis-on, 6 Q. B. 769 ; 14 L. J. 
Q. B. 87. See Wilde v. Waters, 16 C. B. 637 ; 24 L. J. C. P. 193. Where 
the defendant, being applied to by the holder. A., for a blank acceptance, 
which had' been returned by A. to the acceptor, for correction, replies that 
he cannot return it " because it is burnt "; this answer, coupled with the 
fact that the defendant is not called as a witness for the defence, is evidence 
df a possession and destruction by him. M'Kewen v. Cotching, 'il L. J. Ex. 
41. 

There are many cases in which a refusal to deliver goods will hot be 
evidence of a conversion. In order to render a demand and refusal evidence 
<if conversion, it must appear that, at the time of the demand made, the party 
had it in his power to deliver up or retain the article demanded. Smith V. 
Young, 1 Camp. 441. As where one B. had hired a chaise for the plaintiff, 
aiid placed it at livery with the defendant, in whose possession it was attached 
by process out of the sheriff's court in an action against B., and the plaintiff 
deitianded the chaise, which the defendant refused to deliver, alleging that it 
had been attached : it was held that this was no evidence of a conversion, 
the chaise being at the titae of the demand in the custody of the law. 
Verrall v. Robinson, 2 G. M. & R. 495. In Pillott v. Wilhinsm, 3 H. & C. 
345; 34 L. J. Ex. 22, the plaintiff had purchased and received a war- 
rant for wine deposited with the defendant, a wharfinger; the plaintiff 
presented his warrant, which was indorsed generally by H. & Co., and 
demanded the wine ; the warehouseman of the defendant said that the goods 
had been stopped by an attachment from the mayor's court ; defendant could 
not be found, but it appeared that he had been served a few days previously 
with notice of attachment on all the goods of H. & Co. ; the same day the 
plaintiff wrote demanding the wine, and requiring an answer by 11 a.m. next 
day; the defendant wrote next day in reply, asking for time, but before his 
letter was received the plaintiff had issued a writ : it was held that there was 
evidence for the jury of a conversion. If a person, who finds goods, refuse to 
deliver them to the owner until he proves his right to them, such refusal is 
not necessarily evidence of conversion. Greeri v. Dunn, 3 Camp. 216, n. ; 
Guntonv. Nurse, 2 B. & B. 447; Clark v. Chamberlain, 2 M. & W. 78. 
The proper question to be left to the jury seems to be, whether the defendant 
had a bond fide doubt as to the title to the goods, and if so whether a reason- 
able time for clearing up that doubt had elapsed. See Burroughes v. Bayne, 
5 H. & N. 296, 308; 29 L. J. Ex. 185, 191; Clayton' v. Le Roy, 81 L. J. 
K. B. 49; [1911] 2 K. B. 1031. Where goods, the property of the plaintiff, 
had been, by the servants of an insurance corhpany, carried to a warehouse of 
which the defendant, a servant of the compahy, kept the key ; and the defen- 
dant, on being applied to by the plaintiff to delivei- them up; refused to do so 
without ah order from the comparly, it was held that this refusal was no 
evidence of a conversion. Alexander v. Sduthey, 5 B. & A: 347. A dis- 
honoured bill was demanded of the defendant, who did not deny the plaintiff's 
right to it, but said' it wais in the hands of his attorney, A. B., and that he 
would get it from him Ji the nlaJntiff .would caU^aih ; on calling' again the'^ 



850 Action for Conversion of Goods. 

defendant had not got it back from A. B. : it wa* held that, if the defendant 
did not really mean to withhold the bill, this did not prove a conversion. 
Tomne V. Lewis, 7 C. B. 608. 

But a refusal on the ground of a claim of right by another is evidence of 
a conversion. Cannes or Caunce v. Spanton, 7 M. & Gr. 903; 14 L. J. C. P. 
23; and see Wansbrough v. Maton, 4 Ad. & E. 884; 5 L. J. K. B. 150. 
So is a refusal to give up to the plaintiff his title deeds, except on payment 
of charges for which he is not liable. Davies v. Vernon, 6 Q. B. 443; 
14 L. J. Q. B. 30. Where the widow and administratrix of an insolvent, 
being applied to by his assignees for papers in his possession at his death, 
answered that they were in the hands of her attorney, it was held that this 
was not sufficient evidence of a conversion. Canot v. Hughes, 2 Bing. N. C. 
448 ; 5 L. J. C. P. 177. But, where a person who claimed to have a lien upon 
goods, delivered them to a bailee, and the real owner demanded them of the 
latter who refused to deliver them without the directions of the bailor, it was 
held that, the bailor not having any lien upon the goods, the refusal by the 
bailee was evidence of a conversion; and per Ld. Tenterden, C.J., " A bailee 
can never be in a, better situation than the bailor. If the bailor has no 
title, the bailee can have none, for the bailor can give no better title than he 
has. The right to the property may, therefore, be tried in an action against 
the bailee." Wilson v. AnderUm, 1 B. & Ad. 450; 456; 9 L. J. (0. S.) 
K. B. 48 ; Lee v. Robinson, 25 L. J. C. P. 249 ; Cheesman v. Exall, 6 Ex. 
341; 20 L. J. Ex. 209. So, in trover against a carrier, by the bailor of the 
goods, he may set up the right of the real owner, who has claimed and 
received them from the carrier. Sheridan v. New Quay Co., 4 C. B. (N. S.) 
618; 28 L. J. 0. P. 58. A refusal by the general agent of a party is not 
evidence of a conversion by that party ; it must be shown that, in the particu- 
lar act of refusal, the agent acted under the special directions of his principal. 
Pothonier v. Dawson, Holt, N«. P. 383. But proof of a refusal by the shop 
servant of a pawnbroker has been held to be evidence of a conversion by the 
master. Jones v. Hart, 2 Salk. 441. Where a bailiff wrongfully took the 
goods of the plaintiff and lodged them on the defendant's premises, and the 
defendant's wife, in his absence, refused to deliver them up to the plaintiff, 
this was held evidence of a conversion by the wife. Catterall v. Kenyan, 
3 Q. B. 310 ; 11 L. J. Q. B. 260. A demand to re-deliver a chattel injured 
by the defendant " in the same plight as when it came to the defendant's 
possession," followed by a refusal, is not evidence of a conversion. Rush- 
worth V. Taylor, 3 Q. B. 699; 12 L. J. Q. B. 80. 

A demand of the value of the goods has been held a sufficient demand 
of the goods. Thompson v. Shirley, 1 Esp. 31. Service of a written 
demand, by leaving it at the house of the defendant, is good. Logan v. 
Houlditch, 1 Esp. 22. Where two independent contemporary demands have 
been made, one oral and the other in writing, proof of either will be sufficient. 
Smith V. Young, 1 Camp. 440. A demand and refusal of " fixtures " is no 
evidence of the conversion of articles which are not fixtures. Colegrave v. 
Bias Santos, 2 B. & C. 76 ; 1 L. J. (0. S.) K. B. 239. 

The trustee of a bankrupt cannot recover, in trover, goods delivered by the 
bankrupt before his bankruptcy, by way of a fraudulent preference, without 
proof of a demand and refusal, unless the preference is itself an act of bank- 
ruptcy to which the bankruptcy has relation. Stevenson v Newnham, 13 
C. B. 285; 22 L. J. C. P; 110; Nixon v. Jenkins, 2 H. Bl. 135. 

If the defendant refuse to deliver goods, alleging an insufficient ground of 
refusal, whereupon the plaintiff brings trover, it has been questioned whether 
the defendant can set up at the trial another and different ground Coles v 
Bank of England, 10 Ad. & E. 437, 444, 445 ; 9 L. J. Q. B. 36, 39. 

The delivery of a ship by the defendant to the plaintiff, the mortgagee, in 
pursuance of a demand made by him, is sufficient, although the ship is 
then liable to be seized by process of law, by reason of the defendant's default 
in paying the wages of the crew. Johnson v. R. Mail. S. Packet Co.. L. E 
3 C. P. 38; 37 L. J. C. P. 33. 

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Evidence of Conversion — by Whom. 851 

Evidence of conversion — by whom."] The action may be brought against 
any person who was a party to the conversion, although the goods were 
actually converted by another. 2 Wms. Saund. 47 x, (1). Thus, if a party 
sue out an execution against a bankrupt, and the sheriff seize the goods 
and sell them, and give the money to the creditor, the trustee may bring 
trover against the sheriff, or against the party suing out execution, if he 
can be proved to be a party to the conversion, by giving a bond to secure 
the sheriff, and so making the seizure his own act. Rush v. Baker, B. N. P. 
41. But where the wrongful seizure is made without the privity of the 
execution creditor, a subsequent ratification by him will not render him liable ; 
Wilson V. Tumman, 6 M. & Gr. 236 ; 12 L. J. C. P. 306 ; Keighley, Maxsted 
& Go. V. Durant, 70 L. J. K. B. 662 ; [1901] A. C. 240 ; though it was 
formerly held that the execution creditor was liable in trover if he had 
received the proceeds of the levy. Rush v. Baker, supra; Str. 996; 2 Wms. 
Saund. 47 x, (1). Where a bankrupt left some plate with his wife, who 
delivered it to a servant to sell, and the servant delivered it at the door of 
W.'s shop to the defendant, who' went into the shop and pawned it to W. 
in his own name, and delivered the money to his wife, it was held to be a 
conversion by the defendant. Parker v. Godin, Str. 813 ; B. N. P. 47. 

Trover will lie against a corporation, and it is not necessary to show that 
the conversion was authorized by an instrument under seal. Yarborough 
V. Bank of England, 16 Bast, 6; Duncan v. Surrey Canal Co., 3 Stark. 50. 
And a corporation is liable for acts done by its agent in the course of his 
ordinary duty, as in distraining for dues, &c. Smith v. Birmingham Gas 
Co., 1 Ad. & E. 526; 3 L. J. K. B. 165. Agency may be inferred from the 
subsequent adoption of the act by the corporation. S. C. Where the con- 
version is by a contractor for works on a railway, this is not evidence of a 
conversion by the company. Glover v. L. d N. W. Ry., 5 Ex. 66; 19 L. J. 
Ex. 172. 

A servant is liable in an action in trover for a conversion, though for his 
master's benefit. Stephens v* Elwall, 4 M. & S. 259; Alexander v. Southey, 
S B. & A. 249 ; Perkins v. Smith, 1 Wils. 828. See also McEntire v. Potter, 
22 Q. B. D. 438. So a clerk who refuses to re-deliver a bill of exchange 
wrongfully indorsed to him, which he has carried to his master's account. 
Cranch v. White, 1 Bing. N. C. 414; 1 Scott, 314; 4 L. J. C. P. 113. See 
Symonds v. Atkinson, 1 H. AN. 146 ; 25 L. J. Ex. 313. But a servant or 
agent who has received goods from his master or principal, may, on a 
demand made by the true owner of the goods, give a qualified refusal to 
deliver them up , without being liable to an action of trover ; as if the ostler 
at a stable states hio 'inwillingness to give up a horse claimed by a stranger, 
until his master had Deen spoken to about it ; but where a bailee sets up or 
relies upon the title of his bailor in answer to such demand, his refusal is 
evidence of a conversion by him. Lee v. Robinson, 26 L. J. C. P. 249. 

A packer who in the course of his business shipped goods under the orders 
of a person who employed him for that purpose, was held not guilty of » 
conversion, although the goods were wrongfully delivered to him. Greenway 
V. Fisher, 1 G. & P. 190, 192. There Abbott, C.J., said, " The distinction 
between this case and that of a servant is, that here there is a public 
employment; and as to a carrier, if while he has the goods, there be a 
demand and refusal, trover will lie, but while he is a mere conduit-pipe in 

the ordinary course of trade, I think he is not liable." {Assignees) v. 

S. E. Ry., cited per Willes, J., 18 C. B. 609. This principle no doubt 
applies in the case of a carrier, as he is bound to carry goods tendered to 
him ; but it has been denied to apply in any case in which the person receiv- 
ing the goods is not so bound, as in the case of a packer above mentioned. 
Fowler V. Hollins, 41 L. J. Q. B. 277, 288; L. K. 7 Q. B. 616, 633. See, 
however, S. C, 44 L. J. Q. B. 169, 192; L. R. 7 H. L. 757, 799. Where 
cotton was fraudulently bought by B. of the plaintiff's brokers, and the 
defendants, who were also brokers, bought it of B. in their own name as 
principals bond fide, agi|(0jfj29gf^m]flJ^^tfiStiiq^(t)sfendants resold the cotton 



S52 Aation for Cofwersif/fi of Gqods. 

in the ordinary course of trade to M. at the same price, plus a commissjpn, 
fetched it away in their cart, and forwarded it to M., who paid for it to the 
defendants, and spun it into yarn; this was held to amount to a conversion 
of ,the cotton by the defendants. S. C, 44 L. J. Q. B. 169 ; L. E. 7 H. L. 
757. 

An auctioneer, A., who in the ordinary course of his business sells and 
delivers to the purchasers goods entrusted to him for that purpose by a person 
in possession of them, P., without notice that P. is not the true owner, 0., 
is liable to 0. for conversion, whether the sale be on the premises of P. ; Con- 
solidated Go. V. Curtis, 61 L. J. Q. B. 325; [1892] I Q. B. 495; or of A.; 
Cochrane v. Rymill, 40 Ii. T. 744; Barker v. Furlong, 60 L, J. Ch. 368; 
[1891] 2 Ch. 172. Where, however, the sale was, before the auction, 
effected by P. himself on A.'s premises, A. was held not liable, although he 
gave, by P.'s request, a delivery order to the buyer, who removed the goods. 
National Mercantile Bank v. Rymill, 44 L. T. 767. 

Where the master of a ship, unjustifiably, but in the hand fide exercise of 
his discretion, sold a cargo at a port short of its destination, and the ship- 
owner adopted the sale and paid over the proceeds to the owner of the cargo ; 
it was held that trover lay against the master and shipowner jointly, and 
that it was not necessary in such action to prodjice the charter-party, the 
bill of lading showing on the face of it the contract of carriage. Ewhank v. 
Nutting, 7 C. B. 797. As to the right of the master of a ship to sell the 
cargo in case of necessity, see Australasian Steam Nav. Co. v. Morse, L. E. 
4 C. P. 222. In Hilbery v. Hatton, 2 H. & C. 822; 33 L. J. Ex. 190, a 
ship grounded on the coast of Africa was wrongfully bought for the defen- 
dants by their agent there, without authority ; in answer to the agent's letter 
informing them of the purchase, the defendants wrote, " You do not say from 
whom you bought her, nor whether you have the register with her. You 
had better, for the present, make a hulk of her " : it was then held that there 
was evidence for the jury of a conversion by authority of the defendants. 

Evidence of conversion — tenant in common, dc] As the possession of one 
joint-tenant, tenant in common, or parcercr, ij the possession of the others, 
trover cannot in general be maintained by one joint-tenant, &c., against hia 
companion. Co. Litt. 200 a; 2 Wms. Saund. 47 o, (1); Jacobs v. Seward, 
41 L. J. C. P. 221 ; L. E. 5 H. L. 464. The removal of entire chattels by 
one tenant in common, without the consent or knowledge of the other, for the 
purpose of selling them, and applying the proceeds to his own use, does not 
amount to a conversion, even although the removal has created a lien on the 
chattels by a third party. Jones v. Brown, 25 L. J. Ex. 345. Where the 
plaintiff and one of the defendants were members of a friendly society, the 
funds of which were kept in a box deposited with them, and the defendant 
took away the box, and delivered it to the other defendant, who was not a 
member of the society, it was held that the plaintiff could not maintain 
trover for the box. Holliday v. Camsell, 1 T. E. 658. Where one tenant in 
common of a whale refused to deliver a moiety of it to the other, and cut it up 
^nd expressed the oil, it was held that this was no conversion. Fennings v. 
Grenville (Lord), 1 Taunt. 241. But if one tenant in common, &c., destroy 
the thing in common, trover lies. See Jacobs v. Seward, 41 L. J. C. P. 221; 
L. E. 5 H. Ij. 464. Thus, where one tenant in common of a ship took it 
away by force, and sent and sold it in the West Indies, where it was lost 
in q. storm, it was held to be evidence of a destruction by him. Bamardistpn 
y. Chapman, cited 4 East, 121; B. N. P. 34. A- mere sale of an entire 
chattel by a co-tenant, so as not wholly to deprive the plaintiff of his poyrer 
of repossession is not a conversion, for it only operates upon the undivi4ed 
share of the vendee, unless it be a sale in market overt so as to change 
the property of the whole. Mayhew v. Herrick, 7 C. B. 229; 18 Ii. J. 
C. P. 179; Harper v. Ood^ell, 39 L. J. Q. B. 185 ; L. E. 5 Q. B. 422. 

Damages.1 In actions for conversions, the general rule is, that the 
damages should be the value of the thing converted. Finch v. Blount, T 

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Damages, 853 

C. & P. 478. A bond fide sale to a solvent customer is evidence of value on 
which a jury are bound to act. France v. Gaudet, 40 L. J. Q. B. 121, 124; 
L. E. 6 Q. B. 199, 204. In Thurston v. Charles, 21 T. L. E. 659, the 
defendant wrongfully communicated to another person a letter written by a 
third person to the plaintiff, and which had got into the defendant's posses- 
sion. In an action for the detention and conversion of the letter, th6 
plaintiff was held entitled to recover substantial damages and not merely 
the value of the letter. Where the defendant wrongfully detained from the 
plaintiff a bill for jei,600, and got £800 upon it, it was held that the 
plaintiff was entitled to the full amount as damages. Alsager v. Close, 
10 M. & W. 576; 12 L. J. Ex. 60. See Bavins v. L. d: S. W. Bank, 
69 L. J. Q. B. 164; [1900] 1 Q. B. 270. Where the defendant did not give 
up the plaintiff's goods on demand, in order that he might seize and sell 
them under a County Court judgment, which he did; the plaintiff was held 
entitled to recover the full value of the goods. Edmondson v. Nuttall, 
17 G. B. (N. S.) 280; 34 L. J. C. P. 102. So, the plaintiff may recover the 
full value, although he has only a special property in the goods. Swire v. 
Leach, 18 C. B. (N. S.) 479; 34 L. J. C. P. 150; The Winkfleld, 71 L. J. P. 
21, 26; [1902] P. 42, 57. But there are some circumstances which may 
operate in mitigation of damages. Where an unpaid vendor sold goods, the 
property in which had been transferred to the Vendee, it was held that the 
vendee could recover only the difference between the price agreed on and 
the value of the goods. Ghinery v. Viall, 5 H. & N. 288 ; 29 L. J. Ex. 180. 
Where the pledgee of a dock warrant had converted it before the day fixed 
for the payment of the money advanced, it was held that the interest of the 
defendant in the pledge must be taken into account in measuring the damage 
which the plaintiff had sustained. Johnson v. Stear, 15 C. B. (N. S.) 330; 
33 L. J. C. P. 130; Donald v. Stickling, 35 L. J. Q. B. 232 ; L. E. 1 Q. B. 
585, and Halliday v. Holgate, 37 L. J. Ex. 174; L. E. 3 Ex. 299; see 
also Whiteley v. Hilt, 87 L. J. K. B. 1058; [1918] 2 K. B. 808. The 
damages recoverable from a stranger, who converted the goods, would, how- 
ever, be their full value. Johnson v. Lancashire <£■ Yorkshire Ry., 8 C. P. D. 
499. When a money value has been put upon a chattel by the plaintiff, 
it is not the practice of the court to order its specific delivery. Dowling y. 
Betjemann, 2 J. & H. 544; Whiteley v. Hilt, 87 L. J. K. B. 1058; [1918] 
2 K. B. 808. 

In trover for a guarantee the plaintiff is entitled to the sum recoverable on 
it by him, though mutilated by the defendant. M'Leod v. M'Ghie, 2 M. & 
Gr. 326. Where the executor of A. received money on a policy on the lite 
of A., which A. had conveyed to B. in trust for creditors, B. may recover the 
money from the executor in trover for the policy. Watson v. McLean, E. B. 
& E. 75. In trover for title deeds, the jury may give the full value of the 
estate to which they belong by way of damages, although they are generally 
reduced to 40s. on the deeds being given up. Loosemore v. Radford, 
9 M. & W. 657 ; 11 L. J. Ex. 284. Where the defendant, a sheriff, who held 
goods taken in execution, delivered them to the plaintiffs, assignees of a 
bankrupt, after trover brought against him by the plaintiffs, and the plain- 
tiffs accepted them without condition, it was held that they could not recover 
more than nominal damages; at all events not without alleging special 
damage. Moon v. Raphael, 2 Bing. N. C. 310; 6 L. J. C. P. 46. So where 
the goods have been dealt with in such a manner as is equivalent to a return, 
the plaintiff can only recover the actual damage he has sustained. Hiort v. 
L. d N. W. By., 48 L. J. Ex. 545; 4 Ex. D. 188. 

In trover for coals, the action was brought to try the right to the mines, 
which had been worked by the defendant, and turned on the effect of an old 
conveyance; Parke, B., directed the jury that if there was fraud or negligence 
iu the defendant, they might give the full value of the coal, without deduc- 
tion of expenses, &c. ; but if he acted honestly, in the belief that he was 
entitled to the mines, the proper damages would be the value as if the coal^ 
field had been bought by. the defendant.from the^plaintiff ; the jury thereupon 



854 Action for Conversion of Goods. 

gave, for damages, a certain !,Tim per acre on the latter estimate, and the 
direction was acquiesced in. Wood v. Morewood, 3 Q. B. 440 n. So where 
a lease has been surrendered by the tenant, after a distress, with notice to 
the landlord A. that the growing crops have been assigned to B., A. is 
entitled as against B., to the rent and expenses of cultivating and harvest- 
ing the crops. Clements v. Matthews, 52 L. J. Q. B. 772; 11 Q. B. D. 
808. In trover for a cargo, improperly sold by the master of a ship, before 
arrival at the port of destination, the jury are justified in giving as damages 
the cost price and amount of freight paid; and this, it seems, is the least 
that ought to be given, when there is no proof contra by the defendants. 
Ewbank v. Nutting, 7 C. B. 797. Where the defendants converted a vessel 
before she was finished, and then finished her, it was held that the plaintiffs 
were entitled to recover, as damages in trover, the value of the vessel at the 
time of the conversion, but not her value at a subsequent time, nor, as special 
damage, the value of freight which the plaintiffs might have earned with her 
if she had been completed by the person who had contracted to build the 
same for the plaintiffs, and delivered to them. Read v. Fairbanks, 13 C. B. 
692; 22 L. J. C. P. 206. See also Peruvian Guano Co. v. Dreyfus, 61 L. J. 
Ch. 749; [1892] A. C. 166. In trover by trustee of a bankrupt, against a 
creditor of the bankrupt for a wrongful seizure and sale under a fi,. fa., the 
jury are not bound to give the value of the goods if the sale was bond fide, 
but may give the amount of the sale only ; for the goods must be sold at all 
events, either by the plaintiff or the defendant. Whitmore v. Black, 
13 M. & W. 507 ; 14 L. J. Ex. 19. In trover for fixtures which have been 
severed by the defendant, their value only, as so severed, is recoverable. 
McGregor v. High, 21 L. T. 803. Special damage over and above the value 
of the goods is recoverable in this action if laid in the statement of claim ; 
Bodley V. Reynolds, 8 Q. B. 779; 15 L. J. Q. B. 219; Wood v. Bell, 5 E. & 
B. 772; 6 E. & B. 355; 25 L. J. Q. B. 148, 321; contra, Balme v. Huttcm, 
9 Bing. 477 ; 2 L. J. Ex. 116; when, however, they are not so laid they are 
not recoverable. Davis v. Oswell, 7 C. & P. 804. See further France v. 
Gaudet, 40 L. J. Q. B. 121, 125 ; L. E. 6 Q. B. 199, 205. 

By 3 & 4 W. 4, c. 42, s. 29, the jury may, in this action, give damages in 
the nature of interest, over and above the value of the goods. 

Defence. 

By Rules, 1883, 0. xix. r. 17, a defendant cannot now plead a general 
denial of the allegations in the statement of claim, and r. 15 requires him to 
state all such facts, on which he relies, as do not appear therein, and if not 
stated would be likely to take the plaintiff by surprise. 

If the defendant deny the plaintiff's right to- possession of the goods, and 
it be found that some of the goods belonged to the plaintiff, and some to the 
defendant, the issue is divisible, and the verdict should be entered distribu- 
tively. Williams v. Gt. W. Ry., 8 M. & W. 856; 10 L. J. Ex. 472; 
Freshney v. Wells, 26 Li. J. Ex. 228. Where goods were deposited with B. 
by their owner A. to A.'s order, and A. subsequently transferred his pro- 
perty in them to C, it is no defence to an action by C. against B. for their 
value, that B. had wrongfully delivered them to D. before C. acquired his 
title. Bristol Bank v. Midland Ry., 61 L. J. Q. B. 115; [1891] 2 Q. B. 
653. 

Jus tertii.] — The defendant, when he is not a bailee or agent, may set up 
the title of a third person though he does not claim under that person. 
Leake v. Loveday. 4 M. & Gr. 972; 12 L. J. C. P. 65. An agent may set 
up a jus tertii, where the bailment has been determined by what is equiva- 
lent to an eviction by title paramount. The plaintiff, who had wrongfully dis- 
trained the goods of E., delivered them to the defendant, an auctioneer, for 
sale; E. served a notice on the defendant that the distress was void and 
required him to retain the proceeds of the sale on his (R.'s) behalf; it was 

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Jus tertii — General Lien. 865 

held that the defendant was justified in retaining the proceeds. Biddle v. 
Bond, 6 B. & S. 225 ; 34 L. J. Q. B. 137. See on this case Henderson v. 
Williams, 64 L. J. Q. B. 308; [1895] 1 Q. B. 521. See further Leake v. 
Loveday, supra; Thome v. Tilbury, 3 H. & N. 534; 27 L. J. Ex. 407. A 
bailee cannot, however, set up the title of another, unless he defends upon 
that person's right and title and by his authority. Rogers v. Lambert, 
69 L. J. Q. B. 259; 60 L. J. Q. B. 187; 24 Q. B. D. 573; [1891] 1 Q. B. 
318. A third person's title cannot be set np where he has abandoned his 
right. Betteley v. Reed, 4 Q. B. 511; 12 L. J. Q. B. 172. And where a 
bailee accepts the bailment, with notice of an adverse claim, he cannot after- 
wards set up the existence of that claim, as against his bailor. Ex pte. 
Davies, 19 Ch. D. 86. In trover by the trustee of a bankrupt to recover 
the value of property assigned to the defendant by way of fraudulent pre- 
ference, the defendant cannot set up the title of the trustee under a prior 
bankruptcy, that trustee not having in any way interfered with the property 
or asserted his title to it. Morgan v. Knight, 15 C. B. (N. S.) 669; 33 L. J. 
C. P. 168. See cases collected in judgment in this case. See also Nicholson 
V. Cooper, 3 H. & N. 384 ; 27 L. J. Ex. 393 ; Barker v. Furlong, 60 L. J. Ch. 
368 ; [1891] 2 Ch. 172. A mere wrongdoer cannot set up a jus tertii. 
Jejfries v. Gt. W. By., 5 E. & B. 802; 23 L. J. Q. B. 107. See also The 
Winkfield, 71 L. J. P. 21, 24, 26; [1902] P. 42, 68. 

Evidence of general lien.] A lien on the goods, either general or particu- 
lar (i.e., in respect of a general balance or of the particular goods), and a 
right to the possession of them, until the claim is satisfied, is a defence in 
this action. It must be pleaded specially. 

A general lien may be proved, either by evidence of an express agreement, 
or of the mode of dealing between the parties, or of the general usage of 
other persons engaged in the same employment, of such notoriety as that 
it may fairly be presumed to be known to the owner of the goods. Rush- 
forth V. Hadfield, 7 Bast, 228; Green v. Parmer, 4 Burr. 2220; Cumpston 
V. Haigh, 2 Bing. N. C. 449; 5 L. J. C. P. 99; Plaice v. Allcock, 4 P. & F. 
1074. To establish a general lien by evidence of the general usage, the 
instances ought to be ancient, numerous, and important. Bushforth v. Had- 
field, 6 East, 626. Where a number of tradesmen come to an agreement 
not to receive the goods of any person, who will not consent that the goods 
shall be retained for a general balance, and a party, having notice of such 
agreement, sends his goods, without objection, he will be bound by it. 
Kirkm,an v. Shawcross, 6 T. E. 14. So, if a carrier give notice that all 
goods shall be considered subject to a lien, not only for the freight of the 
particular goods, but also for any general balance due from the respective 
owners, as between the real owner of the goods, and the carrier, this may 
be a binding bargain. But, in such a case the carrier has not, as against 
the real owner, any lien for the balance due to him from the party to whom 
the goods are addressed, being the mere factor of the owner. Per Bayley, 
J., Wright v. Snell, 6 B. & A. 353; see also Moss S.S. Co. v. Whinney, 
81 L. J. K. B. 674; [1912] A. C. 254. In order that a right of general lien 
may attach to goods, a new act must be done, viz., the delivery of goods by 
the same party to the carrier. Wiltshire Iron Co. v. Gt. W. By., 40 L. J. 
Q. B. 308, 309; L. E. 6 Q. B. 776, 777. A contract to carry a given number 
of articles at a lump sum, and any further number of articles, if any, at 
so much each, is divisible, and the lien for the excess does not attach to the 
whole. Prenty v. Midland Gt. W. By., 14 W. E. 314. A usage for carriers 
to retain goods, as a lien for a general balance of accounts between them and 
their consignees, cannot affect the right of the consignor to stop the goods in 
transitu. Oppenheim v. Russell, 3 B. & P. 42; United States Steel Products 
Go. V. G. E. By., 85 L. J. K. B. 1; [1916] 1 A. C. 189. So, also a carrier, 
who, by the usage of a particular trade, is to be paid for the carriage of 
goods by the consignor, has no right to retain them, against the consignee, 
for a general balance£T^^y^^5gy |pp^ggyy^ge of other goods of the 



856 Action for Conversion of Goods. 

same sort sent by the consignor. Butler v. WooUott, 2 Bos. & P. N. E. 64. 
The lien of wharfingers for their general balance has been proved so often 
that it is to be considered a settled point; Naylor v. Mangles, 1 Esp 110; 
Spears v. Hartly, 3 Esp. 81. So, of calico printers, Weldon v. Gould, Id. 
268. So, the lien of a banker for his general balance upon the securities of 
his customers in his hands. Jourdaine v. Lefevre, 1 Esp. 66; Bolland v. 
Bygrave, Ey. & M. 271; Brandao v. Barnett, 3 C. B. 519; Misa v. Currie, 
45 L. J. Ex. 414; 1 App. Gas. 554. It seems that the term " securities " 
includes bills of exchange, promissory notes, exchequer bills, coupons and 
bonds of foreign governments, &c., but not title deeds. See Wylde v. 
Radford, 33 L. J. Ch. 51, 53. The lien does not extend to securities con- 
tained in boxes which have been deposited with the banker for safe custody 
only, and to which he has not access. Leese v. Martin, 43 L. J. Ch. 193; 
L. E. 17 Eq. 224. And the circumstances of the deposit of the securities 
may prevent the lien from arising. Brandao v. Barnett, supra. See also 
Bock V. Gorrissen, 2 D. E. & J. 434; 29 L. J. Ch. 673. Stock brokers 
have a general lien on securities in their hands. Jones v. Peppercorns, 
Joh. 430; 28 L. J. Oh. 158; In re L. d Globe Finance Cor., 71 L. J. Ch. 
893; [1902] 2 Ch. 416; Hope v. Glendinning, 80 L. J. E. C. 193; [1911] 
A. C. 419. A printer employed to print certain numbers, not consecutive, 
of an entire work, has a lien upon the copies not delivered, for his general 
balance for the whole of those numbers. Blake v. Nicholson, 3 M. & S. 
167. With regard to dyers, a lieu for their general balance has been 
recognised in several cases. Savill v. Barchard, 4 Esp. 53; Humphreys v. 
Partridge, Gloucester Sum. Ass. 1808, cor. Lawrence, J,, cited Montagu's 
Law of Lien, 30, n. ; Anon., cited 8 Taunt. 499, 509. See also 5 Taunt. 60. 
But in other cases, in which such a lien was claimed, the evidence was held 
insufficient to establish it. Green v. Farmer, 4 Burr. 2214 ; Close v. Water- 
house, 6 Bast, 523, n. See the old cases collected in Montagu's Law of Lien, 
28, 29. In Plaice v. Allcock, 4 P. & E. 1074; a lien was proved in the 
Nottingham bleaching trade. So in Bristol, in the case of wine merchants, 
who are warehousemen, or bonded cellar keepers. Ex pte. Ludlow, W. N., 
(1879), p. 65. Solicitors have a lien for their general balance on papers of 
their clients, which come to their hands in the course of their business ; 
Stevenson v. Blahelock, 1 M. & S. 635 ; but the lien does not extend to a 
debt due from the client to the solicitor otherwise than under his retainer. 
In re Galland, 55 L. J. Ch. 478; 31 Ch. D. 296; see also In re Dee Estates, 
80 L. J. Ch. 461 ; [1911] 2 Ch. 85 ; and Meguerditchian v. Lightbound, 86 
L. J. K. B. 889; [1917] 2 K. B. 298. As regards third parties a solicitor's 
lien on documents gives no higher right to the solicitor than his client himself 
possesses. Rath v. M'MuUan, [1916] 1 I. E. 349. Insurance brokers have 
a lien for their general balance even against agents, if they do not disclose 
their principals. Mann v. Forrester, 4 Camp. 60. See further Fisher v. 
Smith, 48 L. J. Ex. 411; 4 App. Cas. 1. But not where they have notice 
that the party who employs them is merely an agent. Maanss v. Henderson, 
1 Bast, 335 ; Mildred v. Maspons, 53 L. J. Q. B. 33 ; 8 App. Cas. 874. The 
Marine Insurance Act, 1906, 6 E. 7. c. 41, s. 63 (2), is to the same effect. 
Factors have a general lien; Kruger v. Wilcox, Ambler, 262; even although 
the principal fixes the price, and they sell in his name; Stevens v. Biller, 
63 L. J. Ch. 249; 25 Ch. D. 31; but the lien extends only upon goods which 
come to their hands as factors. Dixon v. Stansfield, 10 C. B. 399. So 
packers, who are in the nature of factors, have a general lien. Green v. 
Farmer, 4 Burr. 2222 ; Savill v. Barchard, 4 Esp. 56 ; Ex pte. Shubrook, 46 
L. J. Bk. 118 ; 2 Ch. D. 489. The lien of factors or agents is now regulated 
by the Eactors Act, 1889 (52 & 53 V. c. 45). As to the general lien of ware- 
housemen for the whole of their charges, see Jowitt v. Union Cold Storage 
Co., 82 L. J. K. B. 890; [1913] 3 K. B. 1. 

An innkeeper, or keeper of a house providing general accommodation for 
wayfarers, whatever may be its name, has a general lien on the goods of his 
guests. Thompson v. Lacy, 3 B. & A. 283; Mulliner v. Florence, 47 L. J. 

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Evidence of General liien. 857 

Q. B. 700; 3 Q. B. D. 484. The mere fact that a guest is staying at an hotel 
Qij inclusive terms does not affect the innkeeper's rights. Chesliam Auto- 
mobile Supply V. Beresford Hotel, infra. But an innkeeper cannot detain 
the person of his guest, or take off his guest's clothes, in order to secure the 
payment of his bill. Sunbolf v. Alford, 3 M.& W. 248. An innkeeper's 
lien extends to goods brought to his inn by a guest, though they belong to a 
third party, provided they are such as a person might ordinarily be expected 
to travel with. Snead v. WatUns, 1 C. B. (N. S.) 267 ; 26 L. J. G. P. 57 ; 
Turrill v. Crawley, 13 Q. B. 197 ; 18 L. J. Q. B. 155 ; or articles which the 
innkeeper has received as the guest'6 luggage ; Threlfall v. Berwick, 44 L. J. 
Q. B. 87 ; L. E. 10 Q. B. 210 ; even though the innkeeper knew they were not 
the property of his guest. Robins v. Gray, 65 Jj. J. Q. B. 44; [1895] 2 Q. B. 
501. It seems that the innkeeper has a lien on whatever goods he would be 
liable to answer for, in the case of loss. S. C. The lien does not extend 
to sums lent to or disbursed for the guest. Ghesham Automobile Supply v. 
Beresford Hotel, 29 T. L. E. 584. Where S. and his wife, L., stayed 
together at an hotel, credit being given to S., the lien was held to attach to 
luggage which was L.'s separate property. Gordon v. Silber, 69 L. J. Q. B. 
507; 25 Q. B. D. 491. It extends even to goods fraudulently obtained fronj 
the plaintiff, a third party, by the guest. Mulliner v. Florence, supra. 
Where B. lent a pianoforte to a professional artist whilst staying as a guest 
at an inn, the innkeeper knowing that the pianoforte was the property of B, : 
held, that the innkeeper had no lieu on the pianoforte for the bill due from 
the guest, as he had not received it as his guest's luggage. Broadwood v. 
Granara, 10 Ex. 417 ; 24 L. J. Ex. 1. If the innkeeper sold the goods he 
Jost his lien, and the owner might have recovered the full value. Mulliner v. 
Florence, supra. Now, by the Innkeepers Act, 1878 (41 & 42 V. u. 38), an 
innkeeper may after the lapse of 6 weeks sell the goods and thereout satisfy 
his lien, and hand over the overplus to the owner of the goods : provided 
that, at lea^t one month before such sale, an advertisement be inserted in a 
London and a country sjewspaper circulating in the district where the goods 
were left containing a notice of the intended sale, with a description of the 
goods, and the name of the owner. The mere fact that the innkeeper has 
sent the guest's goods off the premises before the expiration of the six weeks 
does not defeat the lien. Ghesham Automobile Supply v. Beresford Hotel, 
29 T. L. E. 584. As to the lien of an innkeeper on the horses of his guest, 
see Mulliner v. Florence, 47 L. J. Q. B. 700; 3 Q. B. D. 484; Smith v. Dear- 
love, 17 L. J. C. P. 219 ; 6 C. B. 132, and Allen v. Smith, 31 L. J. C. P. 306 ; 
12 C. B. (N. S.) 638. 

" Where a general usage has been judicially ascertained and established, 
as in the case of the banker's lien above mentioned, it becomes part of the 
law merchant, and is judicially noticed by the courts." Brandao v. Barnett, 
3 C. B. 519, 530. 

The English consignee of a West India plantation has a lien on the planta- 
tion in respect of the balance due to him from the proprietor. Chambers v. 
Davidson, 36 L. J. P. C. 17; L. E. 1 P. C. 296. 

The Eailway Clauses Consolidation Act, 1845, s. 97, which gives those 
railway companies to which the Act applies a general power of sale over the 
property of 9. customer in their possession, for arrears of tolls for the use of 
their line by the running by him of his own waggons, &c., thereon, has been 
held not to apply to sums due for the carriage of goods by the company as 
carriers. Wallis v. L. i S. W. By., 39 L. J. Ex. 57; L. E. 5. Ex. 62; not 
followed by Ld. Shand in Caledonian By. v. Guild, 1 Eettie, 198 ; see how- 
ever Brown v. Gt. W. By., 51 L. J. Q. B. 529; 9 Q. B. D. 744, decided on 
Beet. 95. See further on sect. 97, Manchester By. v. W. Central Wagon Co., 
68 L. J. Ch. 219; 13 App, Gas. 654. A demand by the company of the 
sum due for tolls is necessary before selling under that section. Field v. 
Newport, Sc, By., 3 H. & N. 409; 27 L. J. Ex. 396. 

The solicitor to an official liquidator of a company being wound up has 
no lien for his costs yj/ftb^&k jSVW^/i^S^??^ winding up and the 



858 Action for Conversion of Goods. 

documents relating thereto. Ex pte. Pulbrooh, L. E. 4 Ch. 627. And by 
Bky. E. 1915, t. 383, " no person shall, as against the official receiver or 
trustee, be entitled to withhold possession of the books of accounts belonging 
to the debtor, or to set up any lien thereon." 

Evidence of a particular lien.l In general, where a person bestows his 
labour on a particular chattel, delivered to him in the course of his business, he 
has a lien upon such chattel for the amount of his charge. See Bleaden v. 
Hancock, 4 C. & P. 152; Steadman v. Hockley, 15 M. & W. 653; 15 L. J. 
Ex. 332. Thus, a miller has a lien on the corn ground by him; Ex pte, 
Ockenden, 1 Atk. 235; Chase v. Westmore, 5 M. & S. ISO; a shipwright on 
a ship for repairs; Franklin v. Hosier, 4 B. & A. 341; Ex pte. Willoughhy, 
16 Ch. D. 604 ; a tailor on the cloth delivered to and made up by him. Hussey 
V. Christie, 9 Bast, 433; Blake v. Nicholson, 3 M. & S. 169. Insurance 
brokers have a particular lien for premiums on policies effected by them, even 
against agents who disclose their principals. Fisher v. Smith, 48 L. J. Ex. 
411; 4 App. Cas. 1. 6 E. 7, c. 41, s. 53 (2), is to the same effect. As to lien 
on goods saved from a wrecked ship for expenses incurred by her master's 
orders, see Hingston Y. Wendt, 45 L. J. Q. B. 440; 1 Q. B. D. 367. The 
lien only arises as against one who authorized the work, &c., to be done. 
Hollis "V. Claridge, 4 Taunt. 807 ■ and see Castellain v. Thompson, 13 C. B. 
(N. S.) 105; 32 L. J. C. P. 79. But a railway company has, against the 
owner, a lien for cloak-room charges on a sewing machine deposited there by 
a person who was bailee thereof under a hire and purchase agreement. Singer 
Manufacturing Co. v. L. S S. W. Ry., 63 L. J. Q. B. 411; [1894] 1 Q. B. 
833. 

A master of a vessel has a lien upon the luggage of his passengers for 
passage money. Wolf v. Summers, 2 Camp. 631. Where the goods are 
delivered in separate quantities at different times, yet if the work be done 
under one entire agreement, the right of lien for the work expended upon the 
whole attaches upon every part. Chase v. Westmore, 5 M. & S. 180. But 
not where there are distinct contracts. Marks v. Lahed, 3 Bing. N. C. 408; 
6 L. J. C. P. 69. A livery-stable keeper has not a lien upon the horses in 
his stable for their keep or medicine without an express agreement ; Yorke v. 
Grenaugh, 2 Ld. Eaym. 866; Orchard v. Rackstraw, 9 C. B. 698; 19 L. J. 
C. P. 303 ; Judson v. Etheridge, 1 C. & M. 743 ; 2 L. J. Ex. 300 ; though it ia 
otherwise of an innkeeper, unless he receives them as a livery-stable keeper 
only. Smith v. Dearlove, 17 L. J. C. P. 219; 6 C. B. 132. In Allen v. 
Smith, 12 C. B. (N. S.) 638; 31 L. J. C. P. 306, two race-horses were 
brought by their trainer to the defendant's inn, and kept there for more 
than six months ; the horses were taken out to train on the Downs, and were 
sometimes absent for days at races at which they ran ; the defendant stated 
that he never took in horses to stand at livery; it was held, that it must be 
presumed that the horses had remained in the hands of the defendant as 
those of a guest, and that he was entitled to a lien on them for their keep; 
and see Johnson v. Hill, 3 Stark. 172. See further as to lien of innkeeper, 
Mulliner v. Florence, 47 L. J". Q. B. 700 ; 3 Q. B. D. 484. A trainer has 
a lien for his charge in keeping and training a horse. Bevan v. Waters, 
M. & M. 236. But not if the usage be that the horse should be so far under 
the control of the owner as to be put under the charge of his servants from 
time to time during the training, for this shows that a continued possession 
by the trainer is not contemplated. Forth v. Simpson, 13 Q. B. 680; 18 
L. J. Q. B. 263. The ovpner of a stallion has a lien on a mare sent to be 
covered by the stallion. Scarf e v. Morgan, 4 M. & W. 270 ; 7 L. J. Ex. 324. 
There is no lien for the expense or labour incurred by a party in the exercise 
of his right of detention ; thus a shipwright cannot charge or detain for the 
use of his dock, after the repairs are done, even though he has given notice of 
his intention to do so after a certain day. Somes v. British Empire Co., 
8 H. L. C. 338; 30 L. J. Q. B. 229. It seems that printers have no lien on 
stereotype plates from which they have printed. Bleaden v. Hancock, 4 
C. & P. 152. 

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Evidence of a Particular Lien. 859 

The seller of goods not sold upon credit has a lien for the price. This 
lien is now governed by the Sale of Goods Act, 1893. By sect. 38. (1.), 
" The seller of goods is deemed to be an ' unpaid seller ' within the meaning 
of this Act — 

" (o.) When the whole of the price has not been paid or tendered; 

" (b.) When a bill of exchange or other negotiable instrument has been 
received as conditional payment, and the condition on which it was 
received has not been fulfilled by reason of the dishonour of the 
instrument or otherwise. 

" (2.) In this part of this Act the term ' seller ' includes any person who is 
in the position of a seller, as, for instance, an agent of the seller to whom the 
bill of lading has been indorsed, or a consignor or agent who has himself paid, 
or is directly responsible for, the price." 

Sect. 39. — (1.) " Subject to the provisions of this Act, and of any statute in 
that behalf, notwithstanding that the property in the goods may have passed 
to the buyer, the unpaid seller of goods, as such, has by implication of law — 
(a.) A lien on the goods or right to retain them for the price while he is in 
possession of them; (b.) In case of the insolvency of the buyer, a right of 
stopping the goods in transitu after he has parted with the possession of 
them ; (c.) A right of re-sale as limited by this Act. 

" (2.) Where the property in goods has not passed to the buyer, the 
unpaid seller has, in addition to his other remedies, a right of withholding 
delivery similar to and co-extensive with his rights of lien and stoppage 
in transitu where the property has passed to the buyer." 

Sect. 41. — (1.) " Subject to the provisions of this Act, the unpaid seller 
of goods who is in possession of them is entitled to retain possession of 
them until payment or tender of the price in the following cases, namely : — 
(a.) Where the goods have been sold without any stipulation as to credit ; 
(b.) Where the goods have been sold on credit, but the term of credit has 
expired; (c.) Where the buyer becomes insolvent." Vide sect. 62 (3). 

" (2.) The seller may exercise his right of lien notwithstanding that he 
is in possession of the goods as agent or bailee or custodier for the buyer." 

Sect. 42. " Where an unpaid seller has made part delivery of the goods, he 
may exercise his right of lien or retention on the remainder, unless such part 
delivery has been made under such circumstances as to show an agreement to 
waive the lien or right of retention." 

This lien is not lost so long as the seller keeps possession of the goods as 
vendor only, even though he has parted with a document transferring a title 
to the goods. Imperial Bank v. L. & S. Katherine's Docks Co., 46 L. J. Ch. 
335; 5 Ch. D., 195. And now see sect. 41 (2). But the document may in 
terms, or by usage, preclude the lien. Merchant Banking Go. of London v. 
Phoenix Bessemer Steel Co., 46 L. J. Oh. 418; 5 Ch. D. 205. Where the 
buyer of goods, to be paid for on delivery, obtains possession of them by 
giving a cheque for which he has made no reasonable provision, the seller has 
still a right to the possession, and may maintain trover for them. Hawse v. 
Crowe, Ey. & M. 414. 

The mere demand of an excessive sum by a creditor holding a lien, does not 
dispense with a tender from the debtor of the sum really due ; but if the 
demand of the larger sum is so made that it amounts to an announcement 
that it is useless to tender any smaller sum, this dispenses with any tender, 
even if it appear that the debtor was unwilling to tender the amount already 
due. Sca,rfe v. Morgan, 7 L. J. Ex. 324; 4 M. & W. 270; The Norway, 
B. & L. 404. It is no answer to a special lien, that the plaintiff has a set-off 
to a larger amount against the defendant, unless there is an agreement to 
deduct one debt from the other. Pinnock v. Harrison, 3 M. & W. 532; 
7 L. J. Ex. 137. See Clarke v. Fell, 4 B. & Ad. 404 ; 2 L. J. K. B. 84; 
Weguelin v. Cellier, 42 L. J. Ch. 758; L. E. 6 H. L. 286. 

Evidence of lien — Gases in which a lien does not arise.^ It was formerly 
thought that a lien does not iirise ^here.there i^ao express contract between 



860' Action for Conversion of Goods. 

tie parties relative to the price, &c., but only in cases of implied' contract; 
but it is now settled that a special agreement does not of itself destroy the 
right to detain, unless it contains some term inconsistent with that ri^t. 
Thus, where corn is delivered to a miller to be ground at a certain stipulated' 
sum, per load, the miller has a lien for that sum. Chase v. Westmore, 6 
M. & S. 180. But, where " a mercantile relation, which might involve a lien, 
is created by a written contract, and security given for the result of the 
dealings in that relation, the express stipulation and agreement of the parties 
for security, exclude lien and limit their rights, by the extent of the express 
contract that they have made." Chambers v. Davidson, 36 L. J. P. C. 17, 
20; L. E. 1 P. C. 296, 305; Wylde v. Radford, 33 L. J. Ch. 51; In re 
Bowes, 56 L. J. Ch. 143; 33 Ch. D. 586. This principle does not however 
appear to have been followed in Angus v. MacLachlan, 52 L. J. Ch. 587 ; 23 
Ch. D. 380. A« to how far a lien is affected by the special provisions of an 
Act of Parliament, see Dresser v. Bosanquet, 4 B. & S. 460, 486; 32' L. J. 
Q. B. 57, 374. In Kirchner v. VenuS, 12 Moo. P. 0. 361, the shipper of 
goods received bills of lading by which they were made deliverable " to order 
or assigns, he or they paying freight for the goods here, as per margin;" the 
margin of the bills of lading contained the memorandum — ".Freight payable 
in Liverpool to M. one month after sailing, ship lost or not lost;" the 
shippers became bankrupt, so that the payment was not made at Liverpool ; 
it was held, that the sum to be paid was not freight, and that the shipowner 
(who was not M.) had no lien therefore as against the indorsees of tlie 
bills of lading. See also Tamvaco v. Simpson, 19 C. B. (N. S.) 453'; 
34 L. J. C. P. 268 ; L. E. 1 C. P. 363. If by the agreement the purchaser of 
goods is entitled to have the goods immediately, and the payment in respect 
of them is to take place 'at a future time, that is inconsistent with the right' 
to retain till payment, and the seller will have no lien for the price. Craw- 
shay V. Homfray, 4 B. & A. 52. "Where wharfage due upon goods is, by the 
course of trade, payable at Christmas, whether the goods are in the meantime 
removed or not, there arises no lien on the goods for the wharfage, as against 
one who has purchased them from the importer, and received a delivery order. 
Id. See Fisher v. Smith, 48 L. J. Ex. 411 ; 4 App. Cas. 1. 

In general a lien cannot arise at law unless the party claiming it has 
possession of the goods. Kinloch v. Craig, 3 T. E. 119, 783; Taylor v. 
Robinson, 8 Taunt. 648. This is not, however, necessary, in order to 
establish an equitable lien or charge on the property. See Story, Bq. Jurisp., 
infra, and Lutscher v. Comptoir d'Escompte de Paris, 1 Q. B. D. 709. 
Where a party obtains the possession of goods by misrepresentation, hei 
cannot claim a lien upon them, though, had they come rightfully to his 
hands, he might have been entitled to retain them. Madden v. Kempster, 1 
Camp. 12; Lempriere v. Pasley, 2 T. E. 485. Goods may be landed so as 
to preserve the lien of the shipowner; see 57 & 58 V. c. 60, Part vii. 
The vendor of an estate had at law no lien on the title-deeds after conveyance 
executed, though the purchase-money is unpaid. Goode v. Burton, 1 Ex. 
189; 16 L. X. Ex. 309. He has, however, an equitable lien, or charge upon 
the estate. Mackreth v. Symmons, 15 Ves. 329 ; 1 White & Tudor L. Cases ; 
see Story, Eq. Jurisp. §§ 1217 et seq. In order to establish a lien, it must 
appear that the work, &c., in respect of which it is claimed, was done at the 
request of the owner of the goods detained. Hiscox v. Greenwood, 4 Esp. 
174; Hollis V. Claridge, 4 Taunt. 807. See also Castellain v. Thompson 
32 L. J. C. P. 79; 13 C. B. (N. S.) 105. 

Evidence of lien — when waived.] By the Sale of Goods Act, 1893, s. 43. 

(1.) "The unpaid seller of goods loses his lien or right of retention thereon — 
(a.) When he delivers the goods to a carrier or other bailee or custodier for 
the purpose of transmission to the buyer without reserving the right of 
disposal of the goods; (b.) When the buyer or his agent lawfully obtains 
possession of the goods; (c.) By waiver thereof. 

" (2.) The unpaid seller of goods, having a lien or right of retention' 

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Evidence of hi&iv— Stoppage in tsaiiisitu. 861 

thereon, does not. I'ose his lieu or right, of retention by reasom only that he 
has obtained' judgment or decree far the price of the goods." See sect. 47. 
A party- entitled to^ a lien may waive it, by not insisting upon it, when the 
goods are. demanded from, him;; as when, instead of relying on a lien, he 
claims them as his own; Boardman v. Sill, 1 Camp. 41Q, n;, or claims to 
hold them for a debt due from a third party ; Dirks v. Richards, 4 M. & Gr. 
574; or where the defendant, having: a lien for freight, refused to deliver the 
goods on the ground that he had signed a bill of la&ig for delivery to a third 
person.; Thompson v. Trail, 6 B. & 0. 36 ; 5 L. J. (0. S.) K. B. 34 ; or, where 
the defendant, having a particular lien, refuses to. deliver up the goods 
unless an old balance is paid; in which case an actual tender of the money 
covered by the particular lien, is' not necessary. Jones v. Tarletan, 9 M. & 
W. 675 ; 11 L. J. Ex. 267 ; see Weeks v.. Ooode-, 6 G. B. (N. S.) 367. So, 
if the defendant claim to hold for' two distinct, causes of lien, of which only 
one is. good, and conduct himself so that it may be inferred that a- tender of 
the lawful amount would be useless, he thereby dispenses with such a tender. 
Kerfsord v. Mondel, 28 L. J. Ex. 303- So, he may waive it, by parting with 
the possession ; as, where the goods are taken in execution at his own suit. 
Jacobs V. Latour, 5 Bing. 130; 6 L. J. (0. S.) C. P. 243. Or where a 
delivery of the goods is made in such circumstances as to be inconsistent 
with the retention by warehousemen of their lien. Hill v. London Central 
Markets Gold Storage Co., 15 Com. Gas. 221. Cf. Jowitt v. Union Gold 
Storage Co., 82 L. J. K. B. 890; [1913] 3 K. B. 1. Where a coachmaker 
repaired a carriage and allowed the owner to take it away, it was ruled that 
he could not retain it for past repairs when again brought to him. Ha/rtley, 
V. Hitchcock, 1 Stark. 408; Jones v. Pearle, Str. 556. Where the party 
entitled to a lien wrongfully parts with the goods, the owner may recover 
them from the holder without tendering what is due on the lien; for a party- 
is only obliged to make a tender where it is necessary to give him the right 
to the possession of the goods. Scott v. Newington, 1 M. & Eob. 252; Jones 
V. Cliff, 1 Gr. & M. 540; 2 L. T. Ex. 189; Mulliner v. Florence, 47 L. J. 
Q. B. 700; 3' Q. B. D. 484. Where a bailee of goods who had a lien 
delivered them to a carrier on account of the bailor, and afterwards stopped 
the goods in transitu and got possession of them again, it was held that the 
lien did not revive. Swell v. Pym, 1 East, 4. But, the lien of an insurance 
broker (who has a general lien) revives on repossession' of the policy. White- 
head V. V'aughan, Gooke, Bank. Law, 8th ed. 547; Levy v. Barnard, 
8- Taunt. 149; And, where horses, on which a livery-stable keeper had by 
agreement a lien, were fraudulently taken out of his possession by the 
owner, it was ruled that, the stable-keeper having without force retaken the 
horses, his lien revived'. Wallace v. Woodgate, Ey. & M. 193. Where the 
owner of a ship, having a lien on the goods until the delivery of good and 
approved bills for the freight, took a bill of exchange in payment, and after- 
wards negotiated it, it was held that such negotiation amounted to an 
approval of the bill by him, and that his- lien on the goods was waived. 
Homcastle v. Farran, 3 B. & A. 497 ; Stevenson v. Blakelock, 1 M. & S. 535. 
A lien is not destroyed though the demand, in respect of which it arises, is 
barred by the Statute of Limitations. Spears v. Hartley, 3 Esp. 81. 

Stoppage in transitu.] In trover it frequently happens that the defence- 
arises out of the right of a vendor of goods to stop them in transitu upon the 
insolvency of the vendee. This right is now regulated by the Sale of Goods 
Act, 1893. By sect. 44, " Subject to the provisions of this act, when the 
Buyer of goods becomes insolvent, the unpaid seller who has parted with 
the possession of the goods has the right of stopping them in transitu, that 
is to say, he may resume possession of the goods as long as they are in course 
of transit, and may retain them until payment or tender of the price." See 
also sect. 39 (1) (b). The seller may exercise the right, though he has 
received the acceptance of the- consignee, without tendering back the bill. 
Edwards v. Brewer, ^'^AMeS'B'y^l^cfoidft^- ^ Person abroad, who 



862 Action for Conversion of Goods. 

in pursuance of orders from a merchant in this country, purchases goods on 
his own credit from persons abroad, unknown to the merchant, and consigns 
them to his principal here, charging him a commission, is a vendor within 
the rule. Feise v. Wray, 3 Bast, 93; The Tigress, B. & L. 38 ; 32 L. J. P. 
97. So, also, is a person who sends goods to be sold on the joint account of 
himself and his consignee. Newsom v. Thornton, 6 Bast, 17. But a third 
party, who accepts bills drawn for the price of the goods by the vendor, is 
merely a surety for the price, and is not a vendor or a consignor so as to be 
entitled to stop the goods in transitu. Sijfken v. Wray, 6 Bast, 371. The 
fact that the buyer is a partner in the seller's firm, does not affect the right 
to stop. Ex pte. Cooper, 48 L. J. Bk. 49; 11 Ch. D. 68. 

Sect. 45. — (7.) "Where part delivery of the goods has been made to the 
buyer, or his agent in that behalf, the remainder of the goods may be 
stopped in transitu, unless such part delivery has been made under such 
circumstances as to show an agreement to give up possession of the whole of 
the goods." 

By sect. 46. — (1.) " The unpaid seller may exercise his right of stoppage 
in transitu either by taking actual possession of the goods, or by giving 
notice of his claim to the carrier or other bailee or custodier in whose 
possession the goods are. Such notice may be given either to the person in 
actual possession of the goods or to his principal. In the latter case the 
notice, to be effectual, must be given at such time and under such circum- 
stances that the principal, by the exercise of reasonable diligence, may 
communicate it to his servant or agent in time to prevent a delivery to the 
buyer. 

" (2.) When notice of stoppage in tmnsitu is given by the seller to the 
carrier, or other bailee or custodier in possession of the goods, he must 
re-deliver the goods to, or according to the directions of, the seller. The 
expenses of such re-delivery must be borne by the seller." A notice to " hold 
proceeds of goods for P." is not effective as a stoppage in transitu. Phelps 
V. Comber, 54 L. J. Ch. 1017 ; 29 Ch. T>. 813. 

Sect. 47, "Subject to the provisions of this act, the unpaid seller's right of 
lien or retention or stoppage in transitu is not affected by any sale, or other 
disposition of the goods which the buyer may have made, unless the seller has 
assented thereto. 

" Provided that where a document of title to goods has been lawfully 
transferred to any person as buyer or owner of the goods, and that person 
transfers the document to a person who takes the document in good faith 
and for valuable consideration, then, if such last-mentioned transfer was by 
way of sale the unpaid seller's right of lien or retention or stoppage in 
transitu is defeated, and if such last-mentioned transfer was by way of 
pledge or other disposition for value, the unpaid seller's right of lien or 
retention or stoppage in transitu can only be exercised subject to the rights 
■of the transferee." 

By sect. 62 (1), " document of title to goods " has the same meaning as in 
the Factors Acts. 

Sect. 48. — (1.) " Subject to the provisions of this section, a contract of sale 
is not rescinded by the mere exercise by an unpaid seller of his right of lien 
or retention or stoppage in transitu. 

" (2.) Where an unpaid seller who has exercised his right of lien or reten- 
tion or stoppage in transitu re-sells the goods, the buyer acquires a good title 
thereto as against the original buyer." 

StopTiage in transitu — continuing iransitus .'] Sect. 45. — (1.) " Goods are 
deemed to be in course of transit from the time when they are delivered to a 
carrier by land or water, or other bailee or custodier for the purpose of trans- 
mission to the buyer, until the buyer, or his agent in that behalf, takes 
delivery of them from such carrier or other bailee or custodier. (2.) If the 
buyer or his agent in that behalf obtains delivery of the goods before their 
arrival at the appointed destination, the transit is at an end. (3.) If, after 

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stoppage in transitu — continuing transitus. 863 

the arrival o£ the goods at the appointed destination, the carrier or other 
bailee or custodier acknowledges to the buyer, or his agent, that he holds the 
goods on his behalf and continues in possession of them as bailee or custodier 
for the buyer, or his agent, the transit is at an end, and it is immaterial that 
a further destination for the goods may have been indicated by the buyer. 
(4.) If the goods are rejected by the buyer, and the carrier or other bailee or 
custodier continues in possession of them, the transit is not deemed to be at 
an end, even if the seller has refused to receive them back. (S.) When goods 
are delivered to a ship chartered by the buyer it ia a question depending on 
the circumstances of the particular case, whether they are in the possession 
of the master as a carrier, or as agent to the buyer. (6.) Where the carrier 
or other bailee pr custodier wrongfully refuses to deliver the goods to the 
buyer, or his agent in that behalf, the transit is deemed to be at an end." 
A transitus is said by Ld. Mansfield to be " every sort of passage to the 
hands of the buyer." Stokes v. La Riviere, cited 3 Bast, 397. Where there 
is a contract for the sale of goods, and a delivery has been made to a middle- 
man, who is merely the vehicle between the buyer and seller, the latter, 
in case of the insolvency of the former, may stop them at any time before 
they have arrived in such a state, as to be in the actual or constructive 
possession of the buyer. Mills v. Ball, 2 B. & P. 461. " The unpaid vendor 
may ' stop,' that is retake possession by the carriers holding for him in 
transitu, that is during the transit ; but he cannot in my view demand actual 
possession during the transit against the will of the carrier, or direct the 
ehipowner to deliver to him except at the contractual place of destination." 
Booth S.S. Go. V. Cargo Fleet Iron Co., 85 L. J. K. B. 1577, 1593; [1916] 
2 K. B. 570, 600 (per Sorutton, L.J.). The right is subject to the posses- 
sory liens of the carrier. S. C. 

The transitus is continuing though the goods have arrived at an inter- 
mediate stage. Thus, where goods were ordered by a person at Newcastle, 
from the plaintiff at Birmingham, and were directed to be sent, by way of 
London, addressed- to the defendant at the Bank Wharf there, with directions 
to send them by the first vessel to Newcastle, it was ruled that they might be 
stopped at London; it being merely a stage upon the transit. Smith v. Goss, 

1 Camp. 282. So, where goods were ordered by ■■<■ trader at North Tawton 
from the plaintiff in London, and directions were given to send them to 
Exeter, to be forwarded to North Tawton, and they were accordingly put 
into the hands of a wharfinger at Exeter to be forwarded, it was held, that 
while in his hands they might be stopped by the vendor. Mills v. Ball, 

2 B. & P. 457. The principle to be deduced from the cases is, that the 
transitus is not at an end, until the goods have reached the place named by 
the buyer to the seller, as the place of their destination; Goates v. Railton, 
6 B. & C. 422, 427; 5 L. J. (0. S.) K. B. 209; Edwards T. Brewer, 2 M. & 
W. 375; 6 L. J. Ex. 135; Ex pte. Watson, 46 L. J. Bk. 97; 5 Ch. D. 35; 
even though no ultimate destination has been named to the seller. Ex pte. 
Bosevear China Clay Co., 48 L. J. Bk. 100; 11 Ch. D. 560. "When the 
goods have not been delivered to the purchaser, or to any agent of his to hold 
for him, otherwise than as a carrier, but are still in the hands of the carrier 
as such and for the purposes of the transit, then, although such carrier 
was the purchaser's agent to accept delivery so as to pass the property, never- 
theless the goods are in transitu and may be stopped." Bethell v. Clark, 
57 L. J. Q. B. 302, 304; 20 Q. B. D. 616, 617. See Lyons v. Hojfnung, 
59 L. J. P. C. 79; 15 App. Cas. 391. A cargo was shipped for the account 
and risk of the vendee, for Falmouth, &c., for orders and a market : the 
ship arrived at Falmouth, and the master applied for orders : it was held that 
the transit was not at an end before the giving of these orders. Eraser v. 
Witt, L. E. 7 Eq. 64. As to the effect of delivery in a ship chartered by the 
buyer, see sect. 45 (5). Delivery in the buyer's own ship, in general, 
terminates the transit. Schotsmans v. Lancashire, dc. By., 36 L. J. Ch. 
361; L. E. 2 Ch. 332. So, the arrival of the goods at a place where they are 
to be kept, at the "^^f^rfi^i^hfl^W^^K/li^A^k^^^ °^ persons who are to 

R. — vol.. II. 15 



864 Action for Conversion of Goods. 

keep them for him, ia an end of the transitus, although the place be not that 
of their ultimate destination. Wentworth v. Outhwaite, 10 M. & W. 436 ; 
12 L. J. Ex. 172; Ex pte. Gibhes, 45 L. J. Bk. 10; 1 Ch. 101; Reddall v. 
Union Castle S.S. Co., 84 L. J. K. B. 360. The transitus is not determined 
by delivery, if it appear that the consignee has not taken possession of the 
goods as owner. James v. Griffin, 2 M. & W. 623 ; 6 L. J. Ex. 241 ; see also 
Whitehead y. Anderson, 9 M. & W. 518, 529; 11 L. J. Ex. 157, 163. By 
sect. 47, the transitus is not determined by a sub-sale, unless assented to by 
the seller. See Kemp v. Falk, 52 L. J. Ch. 167; 7 App. Gas. 573; Ex pte. 
Golding, Davis S Co., 13 Ch. D. 628; even although the bill of lading is 
made out in the name of the sub-vendee. S. C. The assent under sect. 47 
must be such as to shov? that the seller intends to renounce his rights against 
the goods. Mordaunt v. British Oil S Cake Mills, 79 L. J. K. B. 967; 
[1910] 2 K. B. 602. 

A mere demand by the consignee before the end of the voyage will not 
defeat the right ; Jackson v. Nichol, 5 Bing. N. C. 508 ; 8 L. J. C. P. 294 ; 
even though the consignee has obtained a delivery order for the goods, from 
the brokers of the ship and demanded the goods of the chief officer, who 
promised to comply with the demand as soon as the goods could be got at. 
Coventry v. Gladstone, 37 L. J. Ch. 492; L. E. 6 Bq. 44. 

Where the goods delivered to a carrier, or other middleman, have been 
received by the buyer into his own hands, the transitus is of course 
determined. To determine the transitus actual and corporal possession by 
the buyer is not necessary. See James v. Griffin, 2 M. & W. 623, 632; 
6 L. J. Ex. 241. Thus, if a man be in the habit of using the warehouse of a 
wharfinger as his own, and making it a repository for his goods, and dispos- 
ing of them there, the journey will be at an end when the goods arrive at 
that warehouse. Richardson v. Goss, 3 B. & P. 127. Goods were ordered 
from the plaintiffs at Manchester by M., the agent of G. of Paris, and were 
directed to be sent to the house of the defendant, a packer in London; M. 
had some of the goods unpacked there, and the remainder repacked; he had 
a general power either to forward the goods to G. , or to send them to 
Holland, &c. : it was held that the defendant received the goods on account 
of M., and that, aa they were to await his disposal in the defendant's ware- 
house, the transitus was there at an end. Leeds v. Wright, 3 B. & P. 
320; Scott V. Pettit, Id. 469; Dixon v. Baldwen, 5 East, 174; Rowe v. 
Pickford, 8 Taunt. 83; Dodson v. Wentworth, 4 M. & Gr. 1080; 12 L. J. 
C. P. 59; Heinekey v. Earle, 8 E. & B. 410; 28 L. J. Q. B. 79; K&ndal v. 
Marshall, 52 L. J. Q. B. 313; 11 Q. B. D. 356. So even where the seller 
knows the ultimate destination of the goods, though not the name of the con- 
signee. Ex pte. Miles, 59 L. J. Q. B. 566 ; 15 Q. B. D. 39. When the goods 
have been delivered to a wharfinger the question is whether he was in posses- 
sion qui agent of the buyer, if so the transitus is at an end. Kendal v. Mar- 
shall, supra; Ex pte. Barrow, 46 L. J. Bk. 71 ; 6 Ch. D. 783, citing Benjamin 
on Sales, 2nd ed. 707 (5th ed. 897) ; Taylor v. G. E. Ry., 70 L. J. K. B. 499. 
See also Bethell v. Clark, 57 L. J. Q. B. 302; 20 Q. B. D. 615; Lyons v. 
Hoffnung, 59 L. J. P. C. 79 ; 15 App. Gas. 391 ; Kemp v. Ismay, 14 Com. Gas. 
202 ; Reddall v. Union Castle S.S. Co., 84 L. J. K. B. 360. 

Though the goods remain in the actual possession of the carrier, yet, if 
the buyer have done any act equivalent to taking possession, the right of the 
seller to stop them is determined. Thus where goods were ordered from the 
plaintiff at Sheffield, and were sent by waggon directed to the buyer in 
London, where they were taken to the waggon office, and the provisional 
assignee of the buyer, who had become bankrupt, put his mark upon them 
there, being unable to remove them in consequence of an attachment, the 
transitus was held to be at an end. Ellis v. Hunt, 3 T. K. 464; and see 
Foster v. Framptm, 6 B. & C. 107 ; 5 L. J. (0. S.) K. B. 71. 

Upon the same principle it has been held that where goods were ordered ti' 
be sent by sea, and the shipmaster gave a receipt to the buyer purporting 
that the goods were received by him, the right of stoppage was determined; 

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stoppage in traneitu.^— how Defeated or Divested. 865 

the sellers, by empowering the carrier to give the receipt, having recognised 
the right of property in the buyer. Noble v. Adams, Holt, N. P. 248. On 
the other hand, vphere the receipt was given to the sellers, it was held that 
the captain of the vessel, who had given such receipt, and had afterwards 
delivered up the bill of lading to a purchaser from the buyer, was liable to the 
sellers, who had stopped the goods, on the ground that the person holding the 
receipt had a control over the goods till he has exchanged it for the bill of 
lading. Graven v. Ryder, Holt, N. P. 100; 6 Taunt. 433; Ruck v. Hatfield, 
5 B. & A. 632. In Cowasjee v. Thompsm, 5 Moo. P. C. 165, the plaintiffs 
had sold lead " free on board" to B. & Co. ; by the custom of London, it is 
the duty of the seller to ship goods so purchased, although the buyer is con- 
sidered to be the shipper ; the plaintiff shipped the lead on board a vessel of 
which the defendant was owner, and had the mate's receipt; B. & Co. 
became insolvent, and before the vessel left the docks, and while the receipt 
was still in their possession, the plaintiffs demanded back their goods, but 
without success; it was held that there was no right of stoppage, as the 
delivery to the buyer was perfect, and the retention of the receipt a mere 
accident. 

A stoppage by an unauthorized person, professing to act for the seller, 
is inoperative, though ratified by the seller, if such ratification be after the 
period during which the seller himself could have stopped in transitu. 
Bird V. Brown, i Ex. 786; 19 L. J. Ex. 154; Whitehead v. Anderson, 
9 M. & W. 518; 11 L. J. Ex. 157. In Hutchings v. Nunes, 1 Moo. P. C. 
(N. S.) 248, goods were sold and shipped to B. & Co. : before their arrival at 
the port of discharge, E. & Co. failed; the defendants, who had occasionally 
acted as agents for the sellers, but then had no instructions, wrote to them of 
the failure, and offered to protect their interests on the arrival of the ship; 
the sellers thereupon sent out a, power of attorney ; after the power was 
sent, and before its arrival, the cargo was taken possession of by the defen- 
dants; it was held that there had been a good stoppage in transitu, on behalf 
of the sellers. 

Stoppage in transitu — how defeated or divested.J By sect. 45 (7), where 
part delivery of goods has been made under such circumstances as to show 
an agreement to give up possession of the whole of the goods, the right to 
stop in transitu is deffeated. Thus, where 800 bushels of wheat, part of an 
entire cargo, were delivered, it was held that it must be taken to be a delivery 
of the whole. Sluiey v. Heyward, 2 H. Bl. 504. So, where the goods were 
in the hands of a wharfinger, and the purchaser weighed the whole and took 
away 25 bales, leaving the remainder on the wharf, it was held that this 
amounted to taking possession of the whole, and that the privilege of 
stopping in transitu did not attach. Hammond v. Anderson, 1 B. & P. 
yi. E. 69. " There can be no doubt that wherever there is a complete 
delivery of part of one entire cargo to the consignee, the transitus is ended, 
and the consignor cannot stop the' remainder." Per Bayley, J., Crawshay v. 
Eades, 1 B. & C. 181, 183; 1 L. J. (0. S.) K. B. 90, 91. See, however, the 
observations of Bramwell, L.J., on Slubey v. Heyward, and Hammond v. 
Anderson, supra, in Ex pte. Folk, 14 Ch. 1). 446, 455. But where a carrier, 
having landed a part of the goods on the wharf of the consignee, resumed 
them, and took the whole to his own premises in order to secure his own 
demand for freight, this was held not to be such a delivery as to put an end 
to the consignor's right. Crawshay v. Eades, supra. If the act of deliver- 
ing part be not intended to operate as a delivery of the whole, but as a 
delivery of a portion only, this will not deprive the vendor of his- lien on the 
goods undelivered. Dixon v. Yates, 5 B. & Ad. 313; 2 L. J. K. B. 198; 
Bunney v. Poyntz, 4 B. & Ad. 568; 2 L. J. K. B. 55; Tanner v. Scovell, 
14 M. & W. 28; 14 L. J. Ex. 321; Bolton v. Lancashire, dc. Ry., 35 L. J. 
C. P. 137; L. E. 1 C. P. 431; Ex pte. Cooper, 48 L. J. Bk. 49; 11 Ch. D. 
68 ; Kemp v. Folk, 52 L. J. Ch. 167 ; 7 App. Cas. 573. 

The most usual wa^i^t'lZ&iBtitjiiMk^SISeft® senior to stop goods in 



666 Action for Conversion of Goods. 

transitu is defeated, is by assigning the bill of lading or document of title 
to a bond fide assignee for value. See Lickbarrow v. Mason, 1 Smith's 
L. C, and the proviso in S. of G. Act, 1893, o. 47, which amplifies the terms 
of the Factors Act, 1889, s. 10, the effect remaining the same. A mere cash 
receipt for the price of goods to be delivered on its production, is not a 
document of title to goods within these sections. Kemp v. Fallc, supra. A 
delivery order for goods made out by the owners is a document of title, and 
its issue by them constitutes a "transfer" within these sections.. Ant. 
Jurgens v. Dreyfus, 83 L. J. K. B. 1344; [1914] 3 K. B. 40. Such a 
delivery order is valid notwithstanding that it relates to goods which are 
not specific. S. C. 

The transferor must be in actual and authorized possession of the document, 
and the transferee must give value on the faith of it, without having notice 
of any circumstance which would render the transaction neither fair nor 
honest. Rodger v. Gomptoir d'Escompte de Paris, 38 L. J. P. C. 30; L. R. 
2 P. C. 393. If the assignee assist in contravening the actual terms of sale 
on the part of the consignor, or his reasonable expectations arising out of 
them, or his rights connected therewith, he will stand in the same situation 
as the consignee. If, for instance, he knows that the consignee has been in 
insolvent circumstances, and that no bill has been accepted by him for the 
price, or that, being accepted, it is not likely to be paid, in such case, the 
interposition of himself between the consignor and the consignee, to assist 
the latter in disappointing the just expectations of the former, will be an act 
done in fraud of the right to stop, and unavailing to the party taking the 
assignment. Guming v. Brmon, 9 East, 514, per Ld. Ellenborough, C.J. 
Therefore, where a person, knowing that the goods are not paid for, takes 
an assignment of the bill of lading and agrees to pay for them, the goods 
not having been paid for, he cannot resist the right of the vendor to stop. 
Salomons v. Nissen, 2 T. R. 674. Where the bill of lading had been 
obtained by the buyer, from the seller's agent, by means of a false representa- 
tion, this was held not to defeat the right to stop in transitu. The Marie 
Joseph, 35 L. J. P. C. 66 ; L. E. 1 P. C. 219. But the knowledge that the 
consignor has not received a money payment, but has taken the acceptance 
of the consignee, will not prevent the assignment from destroying the right 
to stop. Guming y. Brown, 9 East, 506. Jones v. Jones, 8 M. & W. 431 ; 
10 L. J. Ex. 481. The criterion in these cases is, whether the purchaser 
takes the assignment fairly and honestly. Salomons v. Nissen, 2 T. E. 681; 
Cuming v. Brown, 9 East, 516. 

Under sect. 47, an assignment by the consignee of the bill of lading by 
way of pledge defeats the right of the vendor, to the extent only of the 
pledge. So, an unpaid vendor. A., is entitled to have the purchase-money, 
due to him from his vendee B., satisfied out of unpaid purchase-money, due 
from the sub-vendee C. to B., if A. stop in transitu prior to C. having paid 
over the latter to B. Ex pte. Golding, Davis A Co., 13 Ch. D. 628; Kemp 
V. Folk, 52 L. J. Ch. 167; 7 App. Cas. 578. In Spalding v. Ruding, 
12 L. J. Ch. 503 ; 6 Beav. 376, it was held that the goods could not be 
retained as security for a general balance of account, but only for the specific 
advance made upon the bill of lading. It has, however, since been decided 
that an indorsement as security for a pre-existing debt is sufficient. Leask 
y. Scott, 46 L. J. Q. B. 576 ; 2 Q. B. D. 376. The operation of a bond fide 
indorsement to defeat the right to