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Full text of "A selection of leading cases on various branches of the law, with notes"

»-MERICAN LAW SERIES, 



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PUBLISHED MONTHLY. 



^^ ^Elntered aa 8econd>class Slaiter at tlie Boston, 'Jtta.an,, Post Office, JTan. 33, 1S8S. 



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I. I. 



November, 1888. 



No. II. 



SMITH'S 

LEADING CASES. 



T7"ol. 2. 



AMERICAN EDITION. 





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Copyrighted 








i888, 








BY 






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Digitized by the Internet Archive 

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http://www.archive.org/details/selectionoflead02smit 






A SELECTIOISr 



OF 



LEADING CASES 



OX 



VAEIOUS BEANCHES OF THE LAW: 



JOHT^ WILLIAM SMITH, 

OF THE INNER TEMPLE, ESQUIRE, BARRISTER-AT-LAW. 
THE THIRD AND FOURTH EDITIONS BY 

JAMES SHAW WILLES and HEXRY SINGER KEATING, 

OF THE INNER TEMPLE, ESQUIRES, BARRISTERS-AT-LAW (AFTERWARDS JUDGES OF HER MAJESTY'S 
COURT OF COMMON PLEAS AND MEMBERS OF HER MAJESTY'S PRIVY COUNCIL). 

THE FIFTH AND SIXTH EDITIONS BY 

FRED. PHILIP MAUDE axd THOS. EDWARD CHITTY, 

OF THE INNER TEMPLE, ESQUIRES, BARRISTERS-AT-LAW. 
THE SEVENTH AND EIGHTH EDITIONS AND 

THE NINTH EDITION 

BY 

RICHARD HENN COLLINS, M.A., 

FELLOW OF DOWNING COLLEGE, CAMBRIDGE, OF THE MIDDLE TEMPLE, ESQUIRE, 
ONE OF HER .MAJESTY'S COUNSEL; 

AND 

ROBERT GEORGE ARBUTHNOT, M.A., 

LATE SCHOLAR OF TRINITY COLLEGE, CAMBRIDGE, OF THE INNER TEMPLE, ESQUIRE, 
BARRISTER-AT-LAW. 

NINTH AilERICAN, FROM THE NINTH ENGLISH EDITION, 

WITH ELABORATE AMERICAN NOTES TO DATE BY THE DISTINGUISHED AUTHORS NAMED 
IN THE PUBLISHERS' PREFACE. 



" It is ever good to rely upon the book at large; for many times, Compendia sunt 
aispendta, and Melius est petere fontes qtiam sectari rivulos."— 1 Inst. .305 b. 



IN THREE VOLUMES.— VOL. II. 

BOSTON: 

CHARLES H. EDSON & CO., PUBLISHERS. 

1888. 




Copyright, 7888, 

By Charlks 11. Edson & Co. 



Typography by J. S. Gushing & Co. 



Pressvvork p,y Berwick- & Smith, Boston. 



KEECH V. HALL. 



MICH. — 19 GEO. 3. 
[reported dougl., 21.] 

A mortgagee may recover in ejectment^ without giving notice to 
quit against a tenayit ivho claims under a lease from the mort- 
gagor^ granted after the mortgage without the privity of the 
mortgagee. 

[_See now Conveyancing Act, 1881, 44 cj- 45 Vict. c. 41, s. 18.] 

Ejectment tried at Guildhall, before Buller, Justice, and 
verdict for the plaintiff. After a motion for a new trial or 
leave to enter up judgment of nonsuit, and cause shown, the 
court took time to consider ; and now Lord Mansfield stated 
the case, and gave the opinion of the court as follows : 

Lord Mansfield — This is an ejectment brought for a ware- 
house in the City, b}'^ a mortgagee, against a lessee under a 
lease in writing for seven years, made after the date of the 
mortgage., by the mortgagor, who had continued in possession. 
The lease was at a rack-rent. The mortgagee had no notice of 
the lease, nor the lessee any notice of the mortgage. The de- 
fendant offered to attorn to the mortgagee before the ejectment 
was brought. The plaintiff is willing to suffer the defendant 
to redeem. There was 7io notice to quit: so that, though the 
written lease should be bad, if the lessee is to be considered as 
tenant from year to year., the plaintiff must fail in this action. 
The question, therefore, for the court to decide is, whether by 
the agreement understood between mortgagors and mortgagees, 
which is that the latter shall receive interest, and the former 
keep possession, the mortgagee has given an implied authority 
to the mortgagor to let from year to year at a rack-rent; or 
whether he may not treat the defendant as a trespasser, dis- 

823 



824 KEECH V. HALL. 

seisor, and wrongdoer. No case has been cited where this 
question has been agitated, much less decided. The only case 
at all like the present, is one that was tried before me on the 
home circuit (^Belcher v. Collins) ; but there the mortgagee was 
privy to the lease, and afterwards by a knavish trick wanted to 
turn the tenant out. I do not wonder that such a case has not 
occurred before. "Where the lease is not a beneficial lease, it 
is for the interest of the mortgagee to continue the tenant ; and 
where it is, the tenant may put himself in the place of the 
mortgagor, and either redeem himself, or get a friend to do it. 
The idea that the question may be more proper for a court of 
equity goes upon a mistake. It emphatically belongs to a court 
of law, in opposition to a court of equity : for a lessee at a rack- 
rent is a purchaser for a valuable consideration, and in every 
case between purchasers for a valuable consideration a court of 
equity must follow, not lead tlie law. On full consideration 
we are all clearly of opinion, that there is no inference of fraud 
or consent against the mortgagee, to prevent him from consid- 
ering the lessee as a wrongdoer. It is rightly admitted that if 
the mortgagee had encouraged the tenant to lay out money he 
could not maintain this action (a) ; but here the .question turns 
upon the agreement between the mortgagor and the mortgagee : 
when the mortgagor is left in possession, the true inference to 
be drawn is an agreement that he shall possess the premises at 
will in the strictest sense, and therefore no notice is ever given 
him to quit, and he is not even entitled to reap the crop, as 
other tenants at will are, because all is liable to the debt ; on 
payment of which the mortgagee's title ceases. The mortgagor 
has no power, express or implied, to let leases not subject to 
every circumstance of the mortgage. If, by implication, the 
mortgagor had such a power, it must go to a great extent to 
leases where a fine is taken on a renewal for lives. The tenant 
stands exactly in the situation of the moitgagor. The posses- 
sion of the mortgagor cannot be considered as holding out a 
false appearance. It does not induce a belief that there is no 
mortgage ; for it is the nature of the transaction that the 
mortgagor shall continue in possession. Whoever wants to be 
secure, when he takes a lease, should inquire after and examine 
the title-deeds. In practice, indeed (especially in the case of 
great estates), that is not often done, because the tenant relies 

(a) Vide Cowp. 473. 



KEECH V. HALL. 825 

on the honour of liis landlord ; but, whenever one of two inno- 
cent persons must be a loser, the rule is, qui prior est tempore 
potior est jure. If one must suffer it is he who has not used 
due diligence in looking into the title. It was said at the bar, 
tliat if the plaintiff, in a case like this, can recover, he will also 
be entitled to the mesne profits from the tenants, in an action 
of trespass («), which would be a manifest hardship and injus- 
tice, as the tenant would then pay the rent twice. I give no 
opinion on that point ; but there may be a distinction, for the 
mortgagor may be considered as receiving the rents in order to 
pay the interest, by an implied authority from the mortgagee, 
till he determine his will. As to the lessee's right to reap the 
crop which he may have sown previous to the determination of 
the will of the mortgagee, that point does not arise in this case, 
the ejectment being for a warehouse ; but, however that may be, 
it could be no bar to the mortgagee's recovering in ejectment. 
It would only give the lessee a right of ingress and egress to 
take the crop ; as to which, with regard to tenants at will, the 
text of Littleton is clear. We are all clearly of opinion that 
the plaintiff is entitled to judgment (6). 

The Solicitor- General for the defendant. — Dunning and Cotv- 
per for the plaintiff. 

The rule discharged. 



The point decided in this case has been since frequently confirmed. See Doe 
\. Giles, 5 Bing. 421 ; Doe v. Maisey, 8 B. & C. 767 ; Thunder v. Belcher, 3 East, 
449; Smartle v. Williams, 3 Lev. 387; 1 Salk. 245. \_Gibhs v. Cruickshank,!^. 
R. 8 C. P. 454, 42 L. J. C. P. 273; Doics v. Telford, 1 App. Cas. 414, 45 L. J. 
Ex. 613. 

It is, however, of comparatively small importance since the passing of the 
Conveyancing Act, 1881, which, by s. 18, gives power to the mortgagor and 
mortgagee respectively, ifin2yossession, to grant valid leases, subject, however, 
to certain qualifications and restrictions. That section is as follows : — 

(«) [In Litchfield v. Ready, 5 Exch. White v. Hawkins, viz., not to sufl"er 

939, it was held .that such action a lessee under a lease prior to tlie 

would not lie; hut see Bartiettv.Gnil- mortgage to avail himself of such 

ford, 11 Exch. 19.] lease on an ejectment bj- the mortga- 

(6) When the question was argued gee, if he has had notice before the 

at the bar, Lord Mansfield said he action that the mortgagee did not in- 

entirely approved of what had been tend to turn him out of possession, 

done by Nares, Justice, upon the Ox- This doctrine is, however, long since 

ford Circuit, and afterwards con- overruled. See Roe v. Reade, 1 T. R. 

firmed by this court, in the case of 118; Doe v. Staple, 8 T. R. 684. 



826 KEECH V. HALL. 

" 18 (1). A mortgasror of land Avhilo in possession shall, as asrainst every 
incumbrancer, have, by virtue of this Act, power to make from time to time 
any such lease of tlie mortgaged land, or any part thereof, as is in this section 
described and authorised. 

" (2.) A mortgagee of land while in possession shall, as against all prior 
incumbrancers, if any, and as against the mortgagor, have, by virtue of this 
Act, power to make from time to time any such lease as aforesaid. 

" (3.) The leases which this section authorises are : — 
" (i.) An agricultural or occupation lease for any term not exceeding 

twenty-one years ; and 
" (ii.) A buikling lease for any term not exceeding ninety-nine years. 

" (4.) Every person making a lease under this section may execute and do 
all assurances and things necessary or proper in that behalf. 

" (5.) Every such lease shall be made to take effect in possession not later 
than twelve months after its date. 

" (6.) Every such lease shall receive the best rent that can reasonably be 
obtained, regard being had to the circumstances of the case, but without any 
fine being taken. 

" (7.) Every such lease shall contain a covenant by the lessee for payment 
of the rent, and a condition of re-entry on the rent not being paid witliin a 
time therein spccitied, not exceeding thirty days. 

" (8.) A counterpart of every such lease shall be executed by the lessee and 
delivered to the lessor, of which execution and delivery the execution of the 
lease by the lessor shall, in favour of the lessee and all persons deriving 
title under him, be sullicient evidence. 

" (9.) Every such building lease shall be made in consideration of the lessee, 
or some person by whose direction the lease is granted, having erected, or 
agreeing to erect within not more than five years from the date of the lease, 
buildings, new or additional, or having improved or repaired buildings, or agree- 
ing to improve or repair buildings within that time, or having executed, or 
agreeing to execute witliin tliat time, on the land leased, an improvement for 
or in connection with i)uilding purposes. 

" (10.) In any such building lease a peppercorn rent, or a nominal or other 
rent less than the rent ultimately payable, may be made payable for the first 
five years, or any less part of the terra. 

" (11.) In case of a lease by the mortgagor, he shall, within one month 
after making the lease, deliver to the mortgagee, or, where there are more 
than one, to the mortgagee first in priority, a counterpart of the lease duly 
executed by the lessee ; but the lessee shall not be concerned to see that this 
provision is complied with. 

" (12.) A contract to make or accept a lease under this section may be 
enforced by or against every person on whom the lease, if granted, would be 
binding. 

" (13.) This section applies only if and as far as a contrary intention is 
not expressed by the mortgagor and mortgagee in the mortgage deed, or other- 
wise in writing, and shall have effect subject to the terms of the mortgage 
deed or of any such writing, and to the provisions therein contained. 

" (14.) Nothing in this Act shall prevent the mortgage deed from reserving 
to or conferring on the mortgagor or the mortgagee, or both, any further or 
other powers of leasing or having reference to leasing ; and any further or 
other powers so reserved or conferred shall be exercisable, as far as may be, 
as if they were conferred by this Act, and with all the like incidents, effects 



KEECH V. HALL. 827 

and convej'ances, unless a contrary intention is expressed in the mortgage 
deed. 

" (15.) Nothing in this Act shall be construed to enable a mortgagor or 
mortgagee to make a lease for any longer term or on any other conditions 
than such as could have been granted or imposed by the mortgagor, with the 
concurrence of all the incumbrancers, if this Act had not been passed. 

" (16.) This section applies only in case of a mortgage made after the 
commencement of this Act; but the provisions thereof, or any of them, may, 
bj' agreement in writing made after the commencement of this Act, between 
mortgagor and mortgagee, be applied to a mortgage made before the com- 
mencement of this Act, so, nevertheless, that anj^ such agreetoent shall not 
prejudicially a^ect any right or interest of any mortgagee not joining in or 
adopting the agreement. 

" (17.) The provisions of this section referring to a lease shall be construed 
to extend and apply, as far as circumstances admit, to any letting, and to an 
agreement, whether in writing or not, for leasing or letting." 

The doctrine in Keech v. Hall is, however, still binding in all cases of leases 
not falling within the provisions of the Conveyancing Act, 1881, and it has 
been thought desirable, notwithstanding the passing of that Act, to retain the 
note, dealing as it does to a great extent with the relations inter se of the 
mortgagor and mortgagee, irresi^ectively of the rights which may be created 
by leases granted to third persons. 

And first, apart from the Conveyancing Act, 1S81], when once it has been 
proved that the mortgagee has recognised the tenant of the mortgagor as his 
tenant, he cannot treat him as a tort feasor, nor if he elect to treat him as a 
tort feasor, can he maintain any demand against him in which he is charged 
as a tenant; for Birdu v. Wriyld, 1 T. R. 378, clearly establishes that a man 
cannot be treated at once both as a tenant and a trespasser. 

[The cases of Doe d. Rogers v. CadKallader, 2 B. & Ad. 473, and Doe d. 
Whittaker v. Hales, 7 Bing. 322, are important on the question of what 
amounts to such a recognition.] 

In Doe dem. Rogers v. Cadioallader [which was an action of ejectment by 
mortgagee against tenant of mortgagor], the wife of the lessor of the plain- 
tiff had become mortgagee of the premises in question, by a deed, dated the 
7th of May, 1828. Interest was payable on the 25th of December every 
year; and had been paid up to the 25th of December, 1830; the demise was 
on the 1st of Jul}', 1830, and the defendant, who had been let into possession 
after the mortgage by the mortgagor, contended that the action was not 
maintainable because it was not competent to a rriortgagee to treat the mort- 
gagor or his tenants as trespassers, ait any time during which their lawful 
possession had been recognised by him ; and that, by receiving the interest 
of the mortgage-money, on the 25th of December, 1830, he had acknowledged 
that up to that time the defendant was in lawful possession of the premises ; 
but the 'court gave judgment for the plaintiff on the ground that the receipt 
of interest was no recognition of the defendant as a person in lawful pos- 
session of the premises. 

However, in Doe d. Whittaker v. Hales, Austin, having mortgaged the 
premises to the lessor of the plaintiff, let them to the defendant. The mort- 
gagee directed his attorney to apply to Austin for the interest ; and the 
attornej' in April, 1830, applied to the defendant for rent to pay the interest, 
threatened to distrain if it were not paid, and received it three or four times. 
The learned judge at the trial, and the court in Banco afterwards, held that 



828 KEECH V. HALL. 

these facts amounted to a recoanition that the defendant was lawfully in 
possession in April, 1830, and consequently that he could not be treated as 
having been a trespasser on Decem])er 25, 1829, the day on which the demise 
Avas laid. See Doe d. Bowman v. Lewis, 13 M. & W. 241. 

Lord Tenterden, delivering judgment in Doe v. Cadioallader, took some 
pains to distinguish that case from Doe d. Whitlaker v. Hales. 

Upon the whole the question whether the mortgagee have recognised the 
tenant of the mortgagor as Iiis tenant appears to be a quest'.on more of fact 
than of law, and probably would be left to the consideration of the jury, 
providing there Avere any evidence fit to be submitted to them. And the 
decision in Doe v. CadicaUader seems to establish that mere receipt of inter- 
est by the mortgagee, coupled with no other fact whatever, would not be 
evideuce lit to be left to the jury on the question of recognition. The ruling 
in Doe v. Cadicallader, it must, however, be observed, seems to have been 
thought too severe by Lord Denman in Evans v. Elliot, 9 A. & E. 342. It 
seems, however, from a prior part of his lordship's judgment, that the three 
other judges were disposed to adhere to the opinion expressed in Doe v. 
Cadioallader. 

[Next, there is a class of cases in which it has been held that the mort- 
gage, though not spccilically creating a tenancy, operated as a redemise to 
the mortgagor, thus giving the latter a fresh power to demise, irrespectively 
of the provisions of the Conveyancing Act, 1881. Thus it] often hapi)cns 
that there is an express covenant in a mortgage deed, that the mortgagor 
shall remain in possession of the premises until default in payment of the 
mortgage-money at a certain period. Up to that period he seems to hold an 
interest in the nature of a term of years ; and, of course, during that period 
he has a right to the possession, and could not be legally ejected ; Wilkinson 
V. Hall, 3 Bing. N. C. 508 ; the stipulation that he should remain in possession 
operating as a redemise. When that fixed period has expired, he liecomes, 
if the money have not been paid, tenant at sufferance to the mortgagee. " We 
must look," said Best, C. J., delivering judgment in such a case, "at the 
covenant he has made with tlie mortgagee, to ascertain what his real situ- 
ation is. We find, from the deed between the parties, that possession of his 
estate is secured to him imtil a certain day, and that, if he does not redeem 
his pledge by that day, the mortgagee has a riglit to enter and take posses- 
sion. From that day the possession belongs to the mortgagee ; and there is 
no more occasion for his requiring that the estate should be delivered up to 
him before he brings an ejectment, than for a lessor to demand possession 
on the determination of a term. The situation of a lessee on the expiration 
of a term, and a mortgagor who has covenanted that the mortgagee may 
enter on a certain day, is precisely the same." 5 Bing. 427. 

And, attending to the distinction between an agreement to be collected 
from the mortgage deed that the mortgagor shall remain in possession for a 
time certain, which operates as a redemise, and an agreement that the mort- 
gagee maj' enter upon, or the mortgagor hold until, a default, the time of 
which is uncertain, which agreement cannot operate as a redemise for v-ant 
of certainty (Cora. Dig. Estate, G. 12), the view taken in Wilkinson v. Hall 
seems not to be at variance with the more recent decisions in Doe d. lioii- 
lance v. Lightfoot, 8 M. & W. 564, and Doe d. Parsley v. Day, 2 Q. B. 147, 
though extended too widely in Doe d. Lister v. Goldicin, 2 Q. B. 143. 

As for Wheeler v. Montefiore, 2 Q. B. 133, explained by the court in Doe d. 
Parsley v. Day, 2 Q. B. I.i5, it has no bearing upon the question; because the 



KEECH V. HALL. g29 

mortgage, in that case, was for a term of years, tlie mortgagee liacl never 
entered, and the action was of trespass: which form of action cannot be 
maintained by a lessee for years before entry ; although he may bring an 
ejectment, because in that proceeding the riffht to the possession only is in 
question. [See Harrison v. Blackburn, 34 L. J. C. V. 109. 

In Turner v. Cameron's Coalhrook Steam Coal Co., 5 Exch. 932, 20 L. J. 
Exch. 71, the mortgage does not appear to have been for years or a less es- 
tate, and the court Avas of opinion that the mortgagee could not maintain 
trespass before entry, because he had not entered; and see 2^er Parke, B., 
LitchfieU v. Beady, 5 Ex. 919, 945; Com. Dig. Trespass, B. 3. In Litchfield 
V. Ready it was held that he could not after entry maintain trespass for 
mesne profits before entry, against the mortgagor's tenant after mortgage. 
It is to be observed, however, that Parke, B., in giving judgment in the case 
of Litchfield v. Ready, proceeds upon the ground that the doctrine of rela- 
tion back of possession to title is confined entirely to the case of disseisor 
and disseisee, a view which the same learned judge modified in the later case 
of Barnett v. Chiilford, 12 Ex. 19, where the doctrine was applied in the case 
of entry by the heir on an abator. In the case of Anderson v. Ratcliffe, E. B. 
& E. 806-819, the doctrine was applied, in the case of entry, by the assignee 
of a term. But in the judgment of the Court of Exchequer Chamber the 
case of mortgagor and mortgagee would seem to be put upon a distinct and 
special footing. See S. C. 29 L. J. Q. B. 128.] 

In Doe d. Lyster v. Goldwin, 2 Q. B. 143, a conveyance was made of the 
legal estate, by Lyster and his wife, (in whose right he enjoyed the property,) 
in order " to secure an annuity upon which money had been advanced by the 
Globe Insurance Office; " and itAvas in trust, amongst other things, to permit 
and suffer Mrs. Lyster to receive the rents until default made for sixty days 
in payment of the annuity; and, no default appearing, it was held that the 
legal estate remained by way of redemise in Lyster. But, to cite the obser- 
vation of the court in a subsequent judgment, {Doe d. Parsley v. Day, 2 Q. B. 
155,) '-it maybe questionable whether sufficient attention was paid in that 
case to the point as to the certainty of the time : at all events it was not decided 
upon any ground that such certainty was immaterial." And it may be further 
observed, upon Doe d. Lyster v. Goldicin, that the nature of the transaction 
does not appear very distinctly, and the conveyance seems not unlikely to 
have been simply a demise or assignment of a term to secure the annuity, 
and so to have admitted of considerations different from those which govern 
the case of an ordinary mortgage. (See Jacob v. Milford, 1 J. ^^ W. G29 ; 
Doe d. Butler v. Lord Kensington, 8 Q. B. 429.) 

In Doe d. Roylance v. Liyhtfoot, 8 M. & W. 553, the proviso was, that if the 
mortgagor should well and truly pay the principal money and interest on the 
25th of March then next, the mortgagee should reconvey, and there were 
covenants that after default the mortgagee might enter, and also after default 
for further assurance. The Court of Exchequer, referring to the passage in 
Shepherd's Touchstone presently to be stated in full, and observing that it 
was not brought to the attention of the court in Wilkinson v. Hall, held that 
the estate was in the mortgagee from the time of the execution of the mortgage, 
and that the etatute of limitations began to run at that time. 

In Doe d. Parsley v. Day, 2 Q. B. 147, freeholds and leaseholds were con- 
veyed in mortgage with a proviso that upon payment of 5501. and interest on 
the 5th of October then next the conveyance should be void, but in case of 
non-payment it was to be lawful for the mortgagee, after a month's notice in 



830 KEECH V. HALL. 

■writin'i domaiulin<]: pajTiicnt. to enter into possession, and to make leases and 
sell, and there was a covenant by the mortsragec not to sell or lease until after 
such notice. The Court of Queen's Bench, following the authority of the 
passage in tlie Touchstone, referred to by Parke, B., in Doe d. liuylance v. 
iJtjhtfoot, and acceding to the doctrine of that case, came to the conclusion 
that, inasmuch as after the day of payment, the time, if any, during which 
the mortgagor was to hold was not determinate, but altogether uncertain ; 
neither was there any atlirmative covenant whatever that he should hold at 
all: " the covenant, therefore, that the mortgagee shall not sell or lease, or 
even if it be construed should not enter, until a mouth's notice, was a cove- 
nant only and no lease." 

The passage in Shep. Touch. (8th eil.) 272, referred to in Doe d. Roylancey. 
Li<//itfnn{, was cited at length, and commented upon in the judgment in Doe d. 
Parslei/ V. Daij, as follows : — " If .V. do but grant and covenant M'itli B., that 
B. should enjoy such a piece of land for twenty years; this is a good lease 
for twenty years. So, if A. promise to B. to suft'er him to enjoy such a piece 
of land for twenty years; this is a good lease for twenty years. So, if A. 
licence B. to enjoy such a piece of land for twenty years ; this is a good lease 
for twenty years. And therefore it is the common course, if a man make a 
feollhient in fee, or other estate upon condition, that if such a thing be or be 
not done at such a time, that the feotl'or, &c., shall re-enter, to the end, that 
in this case the feoft'or, &c., ma\' have the land, and continue in possession 
until that time, to make a covenant that he shall hold, and take the profits 
of the land until that time; and this covenant in this case will make a good 
lease for that time, if the uncertainty of the time, whereunto care must be had, 
do not make it void. (Mr. Preston adds, ' The limitation of a certain term, 
with a collateral determination on the event, would meet the difficulties of 
the case.') And, therefore, if A. bargain and sell his land to B. on condition 
to re-enter if he pay him lOOl., and B. doth covenant with A. that he will not 
take the profits until default of payment; or that \. shall take the profits 
until default of payment; in this case, howbeit this may be a good covenant, 
yet it is no good lease (' for want,' says Mr. Preston, ' of a more formal con- 
tract, and also for want of certainty of time '). And if the mortgagee cove- 
nant with the mortgagor, that he will not take the profits of the land until 
the daj- of payment of the money; in this case, albeit the time be certain, yet 
this is no good lease, but a covenant only (' since.' says Mr. Preston, ' the 
words are negative only, and not affirmative'). Precisely the same law is 
laid down in Poicseley v. Blackman, Cro. Jac. 659; Evans v. Thomas, Cro. 
Jac. 172; Jemmot y. Coohj, 1 Lev. 170; S. C. 1 Saund. 112, b., 1 Sid. 223, 
262, 344; Sir T. Raymond, 135, 158; Keb. 784, 915; 2 Keb. 20, 184, 270, 295." 

It may perhaps be concluded, on this review of the authorities, that in 
order to make a redemise, there must be an afHrmative covenant, that the 
mortgagor shall hold for a determinate time ; and that where either of those 
elements is wanting, there is no redemise. 

A mortgage deed sometimes contains [a specific] agreement that the mort- 
gagor shall be tenant to the mortgagee at a rent ; or a power enabling the 
mortgagee to distrain, by which no tenancy is created. The object of such 
provisions is generally to further secure the payment of the interest [and if 
so provided the principal. Ex parte Harrison, 18 Ch. D. 127], an object more 
completely effected by adopting the former than the latter mode of framing 
the deed; because, whilst the former makes the mortgagor tenant to the 
mortgagee and creates a rent pi'operly so called, with all its incident remedies 



KEECH V. HALL. 831 

[_Anderson v. Midland Bail. Co., 30 L. J. Q. B. 94; see Jolly v. Arbuthnot, 4 
De G. & J. 224 ; Morton v. Woods, L. R. 4 Q. B. 293, 38 L. J. Q. B. 81 ; Dauhiiz 
V. Lavington, 13 Q. B. D. 347; In re Threlfall, Ex parte Queen's Benefit So- 
ciety, 16 Ch. D. 274, 50 L. J. Ch. 318, sub nom. Ex parte Blake y ; Ex parte 
Voisey,2\ Ch. D. 442; Kearsley v. Philips, 11 Q. B. D. 621, where Brett, 
M. R., quotes the above passage in extenso with approval; 52 L. J. Q. B. 
581], the latter mode operates merely by way of personal licence from the 
mortgagor, and affects Iiis interest only. Tlie former mode, however, is open 
to the objection tliat tlie tenancy created [unless apt words to the contrary 
are used in tlie instrument, see In re Threlfall, Ex parte Queen's Benefit So- 
ciety, stipra'] is at will, and consequently tlie rent precarious ; and to tlie more 
practical one, that the deed containing it may possibl}' lie held to require a 
lease stamp. See 18 Jurist, part 2, p. 150. 

Tlie effect of eitlier mode of framing tlie deed upon tlie [original] subject 
of this note, viz., the riglitof the mortgagee to bring ejectment, must, in each 
case, depend upon tlie terms in wliicli it is framed. [Furtlier, tlie terms of 
the deed of mortgage are important in considering a series of cases noted 
later on, in which the question has been discussed whether instruments of 
mortgage purporting to create the relation of landlord and tenant between 
niortgagec and mortgagor have really had that eff'ect so as to give the mort- 
gagee the rights of a landlord as acjainst other credito7-s of the mortgagor on 
the bankruptcy of the latter.] 

In Doe d. Garrod v. Olley, 12 A. & E. 481, it was agreed that the mortgagor, 
during his occupation of the premises, should pay the mortgagee a rent of 
50?. a year, Avitli such power of distress as landlords have on common 
demises, provided that the reservation of rent should not prejudice the mort- 
gagee's right to enter after default in payment of the moneys secured or any 
part thereof. The mortgagee, after the principal had fallen due, distrained 
for half a year's rent, and upon a subsequent default in payment of rent, the 
principal still remaining due, he, without any notice to quit, brought an eject- 
ment, and succeeded. Patteson, J., in that case, expressed his opinion that 
it could not be meant that the 501. should be a rent-charge, because the mort- 
gagor had no estate in him, and that it seemed " as if the relation of landlord 
and tenant was contemplated, but with liberty for the landlord to treat the 
tenant as a trespasser at any time after any default." That decision was 
confirmed and acted on in Doe d. Snell v. Tom, 4 Q. B. 015. 

In Doe d. Basto v. Cox, 11 Q. B. 122, the mortgagor agreed to become 
tenant " henceforth at the will and pleasure of the mortgagee, at the yearly 
rental of 25Z. is. payable quarterly," which agreement was held to create 
a tenancy at will, not converted into a tenancy from year to year by occupa- 
tion for two years and payment of rent. 

[In The Metropolitan Counties, &c., Society v. Brown, 4 H. & N. 428, powers 
of sale and entry after default on a certain day were given by the mortgage 
deed, which provided that " to the intent that the mortgagees might have for 
the recovery of interest on the principal money the same powers of entry and 
distress as are given to landlords for the recovery of rent in arrear," the 
mortgagor " did thereby attorn and liecome tenant fro7n year to year of the 
premises to the mortgagors at a yearly rent payable half-yearly. Neverthe- 
less, in the event of any sale under the powers thereinbefore contained," the 
attornment and tenancy thereby created was, "as regards such portion of 
the premises as should be sold to be at an end ; and that loithout any previous 
notice to put an end to the same." This mortgage having been assigned, the 



832 



KEECH V. HALL. 



assignees after default in payment on the day named, Avithont sivina; the 
mort^sagor six months;' notice to quit, served him witli a notice of entry, and 
on his refusal to give up possession brought an ejectment against him, Avhich 
action ^vas held maintainable. "The clause of attornment," said Pollock, 
C. B, "did not create a ienanaj from year to year n-ith all Us incidents, and 
looking at the deed in its entirety, the true construction is that the right 
of entry overrides the other provision, and therefore, notwithstanding the 
tenancy thereby created, the mortgag.ee may re-enter on default of payment 
of the interest." The majority of the court seem to have been of opinion 
that such form of mortgage creates a tenancy from year to year, determin- 
able on the part of the mortgagees without notice to (luit. 

■\Viiere a mortgage deed, -which was never executed by the mortgagees, 
contained an attornment by the mortgagor for the term of ten years, with a 
proviso that the landlord (the mortgagee) might enter and determine the 
term at his will, it was urged, on the authority of Brooke's Abridgement, tit. 
Lease 13, that the proviso must be rejected as repugnant, and there being no 
deed executed that the term for ten years would be void. But the court held 
that though this might be so in the ordinary case of a lease, yet, looking to 
the whole object and scope of the deed in question, a tenancy was thei*eby 
created so as to support a distress by the mortgagee. Morton v. Woods, L. R. 
4 Q. B. 293; 38 L. J. Q. B. 81. As to the exact nature of the tenancy, see 
per Lush, L. J., in E.r imrte Punnett, 16 Ch. I). 22(;, 50 L. J. Ch. 212, where 
this case was expressly followed by the C. A. 

Similarly in In re ThrclfaU, lf> Ch. 1). 274; 50 L. J. Ch. 318, where the 
mortgage deed contained an attornment clause whereby the mortgagors " did 
attorn and become tenants from year to year to" the mortgagees, with a 
proviso that the mortgagees might at any time after a certain date, without 
notice, take possession of the mortgaged premises, it was held by the C. A. 
that there was no repugnancy between these two clauses, and that a tenancy 
from year to year in the mortgagors was created which supported a distress 
by the mortgagees. See also Ex parte Voisey, 21 Ch. 1). 442; 52 L. J. 
Ch. 121. 

Where a mortgage deed provided that the mortgagor in the event of his 
making default should " immediately or at any time after such default" hold 
the mortgaged premises as yearly tenant to the mortgagees from the date of 
the deed, at a specified rent, it was held that the mortgagor did not, after 
default, become tenant so as to give the mortgagees a right of distress, until 
after some communication by them to him of the change they had resolved 
to make in the terms upon which his possession was suffered to continue. 
Clowes V. Hughes, L. R. 5 Ex. 160; 39 L. J. Ex. 62.] 

In [these] cases, the relation of landlord and tenant appears to have at 
first existed ; but there have been others of a like character, in which a mere 
personal licence to distrain, or a rent-charge (afterwards merged by the 
acquisition of the legal estate) , has been given to the mortgagee. Thus in 
Doe d. Wilkinson v. Goodicr, 10 Q. B. 957, there was a power in the mortgagee 
to distrain for interest if in arrear twenty-one days, " in like manner as for 
rent reserved on a lease ; " and though the mortgagee had entered and dis- 
trained after the day of the demise in ejectment, but for interest due before 
that day, he was considered not to have recognised the mortgagor as his 
tenant, and to be entitled to maintain ejectment. 

In Freeman v. Edwards, 2 Exch. 732, the mortgage, which was of copyhold, 
contained a similar power to distrain for interest; the mortgagee was ad- 



KEECH V. HALL. 333 

mitted to the cop5'holds ; the mortgagor became bankrupt, and whilst he still 
remained in possession, the mortgagee distrained for interest in arrear ; for 
Avhich act the assignees of the mortgagor sued in trespass. The mortgagee 
pleaded a justification under the deed, which plea Avas held bad after A-erdict. 
The arguments advanced on either side, and the view taken by the court of 
the operation of such power, appear fully in the following passage from the 
judgment of Parke, B. : [as reported in 17 L. J. Ex. 2G1] — "The utmost 
eflect that can be given to this deed, is to consider it as operating as a cove- 
nant that the mortgagee may seize such goods of the mortgagor as shall be 
on the premises at the time the distress is made, and treat them as if dis- 
trained ; such a covenant would not affect any specific goods before seizure, 
and therefore the goods came to the assignees not subject to any equity. 
Probably, the argument that the grant operated so as to create a rent-charge 
is correct ; and if so, the rent-charge continued until the surrender and ad- 
mittance. But it is not necessary to decide that, for as soon as the grantee 
of the rent-charge, if it was one, became entitled to the fee simple in 
possession, the rent-charge was gone, and the covenant ceased to exist as an 
obligation binding the land. It might, however, still exist as a personal 
covenant, binding the covenantor, though it would not affect third persons. 
The argument of the plaintiff"s counsel, that the effect of the deed was 
exhausted by the creation of the rent, may make this doubtful; and it is not 
necessary to decide it, for, giving the covenant this eflect, it will not make 
this a good plea. The covenant at most is to be construed as an agreement 
that all goods belonging to Leedham (the mortgagor) at the time of the dis- 
tress, and then upon the land, might be seized. This would aflTect his own 
goods when seized. Up to the seizure the whole is contingent, and gives no 
lien on specific goods. Before the distress was made, Leedham became bank- 
rupt; at that time the whole of the goods which were his property, and then 
npon the land, were contingently liable to be seized, but no specific portion 
was lial)le more than the rest. There was, therefore, no lien on any portion 
of the goods, according to the principle of the decision in Carvelho v. Burn, 
4 B. & Ad. 382 (1 A. & E. 883). Then at the moment of the distress the 
goods had ceased to belong to Leedham, and became the property of the 
assignees, and, as goods not belonging to the covenantor, were not subject 
to the covenant." See also Chapman v. Beecher, 3 Q. B. 723. 

[A personal licence to distrain should seem not to be transferable, and the 
assignee of the mortgage could not justify a seizure under it as a servant of 
the mortgagee. (See Brown v. The Metropolitan, &c.. Society. 1 El. & El. 832, 
28 L. J. Q. B. 236.) 

In certain cases the courts have held, on various grounds, that the mort- 
gage deed, though purporting to create a tenancy in the mortgagor, had not 
that eflect. Thus] in Walker v. Giles, 6 C. B. 662, where a conveyance to the 
trustees of a building society, to secure payment of subscriptions, contained 
a clause whereby the mortgagor agreed to become tenant to the trustees of 
the premises, thenceforth " during their will, at the net yearly rent of 2001., 
payable on the usual quarter days; the Court of Common Pleas held that 
there was no tenancy, the general scope of the deed being inconsistent with 
such a construction, since, if there was a tenancy, the mortgag[or] might be 
called upon to pay both the subscriptions and the rent. This case seems, 
however, open to the animadversion which it has called forth in the 13 Jurist, 
part 2, p. 463, and 17 Jurist, part 2, p. 149; and the court appears to have 
disregarded the express intention of the parties, in order to avoid the fancied 



834 KEECH V. HALL. 

injustice of the trustees having tlie power (subject to tlic control of a court 
of equity) to recover their debt twice over, in other words, to treat tlie rent 
as a security for payment of tbe subscriptions. And in tlie more recent case 
of Pinhoni v. Sonster, 8 Exch. 7G3, where the deed more fully, thouiih 
scarcely more clearly, than in Walker v. Giles, cxpi'cssed the intention that a 
tenancy at Avill should be created, and stipulated that tlie mortgagee should 
apply the rent in satisfaction of the rent due from the mortgagor to his 
superior landlord, and in satisfaction of the principal and interest, and pay 
the surplus, if any, to the mortgagor, the Court of Exchequer [distinguish- 
ing Walker v. Giles^ held that a tenancy at will was created, in respect of 
which the mortgagee miglit distrain ; and f urtlier, that such tenancy was not 
put an end to by assignment of the mortgagor's interest without notice to 
the mortgagee. [In Broicn v. The Metropolitan, tOc, Societi/, 28 L. J. Q. B. 
23G; 1 El. &, El. 832; the coui't expressed an opinion tliat Walker v. Giles 
could only be supported, if at all, on the ground, pointed out by Lord Wens- 
leyihile in Piiihorii v. Sonster, tliat tlie tenancy and power of distress were 
inconsistent witli the other provisions of tlie deed. See also Turner v. 
Barnes, 2 B. & S. 435; 31 L. J. Q. B. 170. Ex parte Harrison, 18 Ch. 
D. 127. 

Again, there liave been cases in whirli the courts have held tliat no tenancy 
was created so as to support a distress, when it appeared, from the terms of 
tlie mortgage, that it was never the intention of the parties to create a real 
tenancy, but tliat the attornment clause was a mere device to defeat tlie 
bankruptcy law by giving the mortgagee a preference over the mortgagor's 
other creditors. 

This was held to be the case where tlie rent nominally reserved was ex- 
travagantly high as compared with the real value of tlie mortgaged premises, 
Ex parte Williams, 7 Ch. D. 138 ; Ex parte Jackson, 14 Ch. D. 725, distinguished 
in Ex parte Voiseij, 21 Ch. D. 442; 52 L. J. Ch. 121, where the subject is fully 
discussed by the C. A. See also In re Stockton Iron Furnace Co., 10 Ch. 
D. 335. 

By the Bills of Sale Act 1878 (41 & 42 Vict. c. 31), s. G, it is provided that 
" every attornment, instrument, or agreement, not being a mining lease, 
wlicreby a power of distress is given, or agreed to be given, by any person 
to any other person by way of security for any present, future, or contingent 
debt or advnnce, and whereby any rent is reserved or made payable as a mode 
of providing for the payment of interest on such debt or advance, or other- 
wise for the purpose of such security only, shall be deemed to be a bill of 
sale, Avithin the meaning of this Act, of any personal chattels which may be 
seized or taken under such power of distress. 

" Provided that nothing in this section shall extend to any moi'tgage of any 
estate or interest in any land, tenement, or heretlitanient which the mortgagee, 
being in possession, shall have demised to the mortgagor as his tenant at a 
fair and reasonable rent." 

Tlie above provision, coupled with the additional stringency of the Bills of 
Sale Amendment Act, 1882 (45 & 4G Vict. c. 43), as to bills of sale in general, 
may proljably render such clauses of less frequent occurrence in mortgages 
in the future. However, in the case of Hall v. Comfort, 18 Q. B. D. II, it 
was held that a mortgage deed, containing an attornment clause, was not 
rendered void by the Bills of Sale Acts quoad the demise, and, tlierefore, 
following Dauhuz v. Lnviuffton, 13 Q. B. D. 347, that the mortgagee might 
indorse his writ under Order III. rule G, and recover possession under Order 



KEECH V. HALL. 835 

XIV., as " against a tenant Avhose term had expired or had been (Uily deter- 
mined by notice to quit." 

In Ilampson v. Felloics, L. R. 6 Eq. 575, the mortgagor assigned the lease 
for twivty-one years of a house in which he resided, together with two 
policies of assurance on his life, to secure tlie repayment of 2501. and hiter- 
est, and the premiums on the policies. By tlie deed the mortgagor attorned 
tenant to the mortgagee at the j'early rent of 175^., with a proviso for the 
determination of the tenancy at the will of the mortgagee. Malins, V.-C, 
restrained by injunction a distress under tliis clause for the principal, hold- 
ing, however, that the mortgagee would have been justified in distraining 
under it for any " outgoings under the deed.'' that is to say, interest on the 
advance, premiums on the policies, and the landlord's rent of the house; the 
ground on which the Vice-Chancellor came to the conclusion that such was 
the intention of the clause, having apparently been, that the llol. was, in 
round numbers, the aggregate amount of those outgoings. 

This case, however, was not followed in Ex parte Harrison, 18 Ch. D. 127. 
The attornment clause there provided for a yearly rent of 593Z. 15s., whicli 
was equal to the annual interest at 4 J per cent, primarily covenanted for, 
though such interest was reducible to the I'ate of 3| per cent, on punctual 
payment. In the Court of Appeal, notwithstanding those circumstances, it 
was held that the fruits of a distress under the clause were properly applica- 
ble to principal as well as interest. 

Another mode of securing the mortgagor's possession of the mortgaged 
premises is to make him tenant of them to a third person appointed by luni 
and the mortgagee to receive the rents of the premises. This was done in 
Jolhj V. Arhuthnot, i De G. & J. 224. In that case, by a deed, executed at the 
same time as the mortgage, and made between the mortgagor, mortgagee, 
and Aplin, after reciting that it was agreed that, for the purpose of securing 
payment of the interest, and providing a fund for repayment of the principal, 
the mortgagor should attorn as tenant to Aplin, it was witnessed that the 
mortgagor and mortgagee in pursuance of the agreement constituted Aplin 
receiver of the rents and profits of the premises, with powers of entry and 
distress, and that the mortgagor attorned to Aplin and became his tenant 
from year to year; provided that, on default in payment, the mortgagee 
might enter and avoid the tenancy created by the attornment, and that noth- 
ing contained in the deed should abridge his rights or powers under the mort- 
gage. After execution of this deed, and after default in payment on the 
appointed daj' of the principal sum secured b}' the mortgage, the mortgagor 
was adjudicated a bankrupt, and thereupon Aplin distrained on his goods on 
the premises for a year's rent. The chief question was, which of the two 
parties — the mortgagee, or the assignees in bankruptcy of the mortgagor — 
was entitled to the proceeds of this distress. 

The M. R. decided in favour of the assignees, holding that the relation of 
landlord and tenant did not exist between the bankrupt and the receiver, for, 
as the receivership deed recited the true state of the title, it could not by 
estoppel constitute that relation, and that consequently no estate was con- 
ferred on Aplin to which the right of distress could be annexed so as to be 
available against the assignee of the mortgagor. It seems, however, that his 
Honour, in referring to Dancer v. Hastings, 4 Bing. 34, (in which a demise 
by a receiver appointed by the Court of Chancery was determuied to be a 
good lease to entitle him to distrain and to estop the tenant from denying the 
tenancy,) did not notice the report of that case in 12 B. Moore, 2, whicli. 



83G KEECH V. HALL. 

report shows that there the lease, settins; ont the title of the lessor as receiver 
appointed by the court, disclosed the fact that lie hail no interest in the land. 

Against this decision of the I\I. R. the mortgagee appealed, and the appeal 
■was allowed by Lord Chelmsford, C. The judgment on appeal contains a 
learned review of the authorities upon the subject. The Lord Chancellor 
held that the circumstance of the truth of the case appearing on the deed, 
was a reason why the agreement of the parties should be carried out, either 
by giving eflect to their intentions in the manner prescribed, or by Avay of 
estoppel to prevent their denying the right to do the acts which they had 
authorised to be done; and that even if tlio creation of the tenancy did not 
achuit the scintilla of a reversion to wliicli the right of distress might be 
annexed, yet there was notldng in such cases to prevent the power from l)eing 
exercised, although there might l)e no reversion in the person to whom the 
attornment was made; tliat tlie relation of landlord and tenant was in fact 
created by the intention of tlie parties, and tliat consequently the power of 
distress was not a mere power in gross but might be exercised against the 
assignee. See also Evans v. Mathias, 7 E. & B. oOO. In Morton v. Woods, 
L. R. 4 Q. li. 293; 38 L. J. Q. B. >sl, tlie Court of Exchequer Chamber 
expressly followed the above decision of Lord Chelmsford, C, and the last- 
mentioned case was followed by the C. A. in Ex parte Punnett, 16 Cli. D. 22G, 
50 L. J. Ch. 212. 

With respect to tlie nature of tlie mortgagor's possession after tlie mort- 
gage, where tliere is no stipulation tliat he should be allowed to remain in 
possession for any certain time, there seems to be more diniculty. Messrs. 
Coote and Morley, in an elal)orate note to Watkins on Conveyancing, deliver 
it as their opinion, that " if there be no express agreement originally as to 
the period of possession, and the mortgagor, Ijeing the occupant, remain in 
possession toith the consent of the mortgagee, it seems that, in such a case, he 
ought to be considered strictly as tenant at will." 

This is true, if it be admitted that he has remained in possession xrith the 
consent of the mortgagee. 15ut tlic more difticult question seems to be under 
what circumstances shall the mortgagee's consent be taken to exist, and shall 
it be implied merely from the fact of his abstaining from ousting the mort- 
gagor immediately after the execution of tlie mortgage? Certainly neither 
the case of Thunder dem. Weaver v. Belcher, 3 East, 4'>(); nor that of Sniartle 
V. Williams, 1 Salk. 246; 3 Lev. 387, which are cited by Messrs. Coote and 
Morley, liave any tendency in favour of such an implication ; for, in the 
former, ejectment was brought against a tenant let into possession ))y the 
mortgagor after the mortgage; and, as there had been no recognition of him 
by the mortgagee, there was judgment against liim ; and so far was the court 
from considering that the mortgagor would, under the circumstances above 
supposed, have been tenant at will, had he remained himself in possession 
instead of letting, that Lord Ellenborough says, "a mortgagor is no more 
than a tenant at sufferance, not entitled to any notice to quit; and one tenant 
at sufferance cannot make another." 

In Smartle v. Williams the mortgagor certainly remained in possession, 
and that with the express consent of the mortgagee, for Holt, C J., says: 
" Upon executing the deed of mortgage, the mortgagor, by the covenant to 
enjoy till default of payment, is tenant at will." But in that case the mort- 
gagee had assigned the mortgage; and the question was, whether, by doing 
so, he had determined his will, and whether the mortgagor's subsequent con- 
tinuance in possession divested the estate of the assignee, and turned it to a 



KEECH V. HALL, 837 

right so as to prevent a person to whom the assignee afterwards assigned, 
and who brouglit the ejectment, from taking any legal interest; upon which 
point the court held that it had no such eflect, since the mortgagor was, at all 
events, tenant at sufferance after the assignment. 

And it is not believed that there exists an}- decision in which a mortgagor 
remaining in possession, after an absolute convej-ance away of his estate, by 
way of mortgage, without any consent on the part of the mortgagee, express 
or to be implied otherwise than from his silence, has been considered in any 
other light than as tenant at suffei-ance, to the definition of whom he seems 
strictly to answer, being a person who conies in by right, and holds over without 
right: see Co. Litt. 57, and Lord Hale's MSS., note 5, where the following 
case is put, Avhich seems analogous : — "if tenant for years surrenders, and 
still continues possession, he is tenant at sufle ranee or disseisor at election." 

This subject has been treated at some length, because the reader will find 
it often said that a mortgagor in possession is tenant at icill quodammodo ; an 
idea which Lord IMansfield especially seems to have countenanced, for in the 
principal case he says, "when the mortgagor is left in possession, the true 
inference to be drawn is an agreement that he shall possess the premises at 
will, in the strictest sense : and therefore, no notice is ever given him to quit, 
and he is not even entitled to reap the crop, as other tenants at will are, 
because all is liable to the debt : " and in Moss v. Gallimore, which will be 
printed in this collection, he calls the mortgagor "tenant at will quodam- 
modo." AVhereas Lord EUenboi'ough, in Thunder v. Belcher, denominated 
him "tenant at sufterance;" and it is submitted that it Avould be more 
convenient to range his possession under some one of the ancient and well- 
knoAvn descriptions of tenancy than to invent the new and anomalous class 
of tenants at v:ill quodammodo, for the only j^urpose of including it. See 
Litt. sec. 381. 

[" A mortgagor is not in all respects a mere bailifi', he is much like a bailiff; 
he is not a mere tenant at Avill ; in fact, he can be described merely by saying 
he is a mortgagoi-." Fer Parke, B., Litchfield v. Readij, 20 L. J. Exch. 51. 
"He is not a tenant at all," per Pattesou, J., Wilton v. Dunn, 17 Q. B. 299, 
and Watson, B., Hickman v. Machin, 4 H. «5c N. 722. " The case of Keech v. 
Hall established the doctrine that (in the absence of anj' contract or conduct 
to A^ary the application of the law) a mortgagee having the legal estate may, 
without any notice to quit, treat the tenant or lessee of the mortgagor as a 
trespasser or wrong-doer ; and that the possession held by the mortgagor, or 
those holding under him until the mortgagee tliiulcs fit to take it, is in the 
strictest sense precarious, and held at the mere will of the mortgagee," per 
Lord Selborne, Loics v. Telford, 1 App. Cas. 426; 45 L. J. Ex. 613; and see 
the judgment in Jolly v. Arhuthnot, 4 De G. & J. 224; Poicell v. Allen, 4 Kay 
& J. 343 ; TJiorj) v. Facey, 35 L. J. C. P. 349 ; Ex parte Ishericood, 22 Ch. D. 
391,per Jessel, M. R. 

In Gihbs v. Cruickshank, L. R. 8 C. P. 454, 42 L. J. C. P. 273, the Court 
seem to adopt the view that the mortgagor is a tenant at sufferance, but that 
at any rate he cannot create a sub-tena:ncj' ; his sub-tenants are mere tort 
feasors and cannot sue the mortgagee in trespass.] 

Upon the whole it is concluded, 1st. That, if there be in the mortgage- 
deed an agreement that the mortgagor shall continue in possession till default 
of payment on a certain day, he is in the meanwhile termor of the intervening 
term. 2dly. That if default be made on that dajs he becomes tenant at suf- 
ferance. SO\j. That when there is no such agreement, he is tenant at suffer- 



g38 KEECH Y. HALL. 

ance immediately upon the execution of tlio mortgasre. unless the mortgagee 
expressly or impliedly consented to his remaining in possession. 4thly. That 
such consent renders him tenant at will. 5thly. That if in any of the last 
three cases he let in tenants, they may [in cases not falling within the Con- 
veyancing Act, 1881, s. 18] be treated by the mortgagee, if he think proper, 
as tort feasoj-s. Gthly. That, if the mortgagee recognise their possession, 
they become his tenants. Lastly, that the mere receipt of interest from the 
mortgagor does not amount to sucli a recognition. These two last proposi- 
tions must, however, now be taken subject to the doubts expressed in Evans 
V. Elliot. 

[By the Judicature Act, 1873, 36 & 37 Vict. c. fiG, s. 25, subs. 5, it is provided 
that " a mortfjagor entitled for the time l)eing to the possession or receipt of 
the rents and profits of any land as to which no notice of his intention to take 
possession or to enter into the receipt of the rents and profits thereof, shall 
have been given by the mortgagee, may sue for such possession or for the 
recovery of such rents or profits, or to prevent or recover damages in respect 
of any trespass or other wrong relative thereto in his own name only, unless 
the cause of action arises upon a lease or other contract made by him jointly 
witli any otlier person."] 

The relation between mortgagor and mortgagee Avith reference moi'c espe- 
cially to proceedings for the recovery of rents from the tenants of the land, is 
further considered in tlie note to }[oss v. GaUimore, post. 



Relation of a mortgagee to a tenant under a lease made by a 
mortgagor subsequently to the mortgage and -while remaining in 
possession of the mortgaged premises. — (As to the tenant's posi- 
tion with reference to the payment of rent, see American notes 
to Moss V. Gallimore, infra.') The mortgagor cannot make a 
lease which will be binding upon the mortgagee ; McDerraott v. 
Burke, 16 Cal. 580 ; Clary v. Owen, 15 Gray 522. The mort- 
gagee, in the absence of statute, is entitled to the immediate 
possession of the mortgaged premises ; Colman v. Packard, 16 
Mass. 39 ; Doe v. Grimes, 7 Blackf. (Ind.) 1 ; may enter with- 
out notice to the mortgagor; Holbrook v. Lackey, 11 INIet. 458 ; 
Blaney v. Bearce, 2 Greenl. 132 ; Hartshorn v. Hubbard, 2 N. 
H. 458 ; Brown v. Cram. 1 ib. 160 ; and such an entry Avill 
authorise the retaining of possession and the taking of the 
rents and profits ; Welch v. Adams, 1 Met. 494 ; Reed v. Davis, 

4 Pick. 215. 

Trespass. — The mortgagee must enter before he can main- 
tain trespass q. cl. against tlie mortgagor or his tenant ; Mayo 
V. Fletcher, 14 Pick. 525, 532 ; Furbush v. Goodwin, 29 N. H. 
321 ; Wheeler v. Montefiore, 2 Q. B. 133; Litchfield v. Ready, 

5 Ex. 939, 945 ; otherwise, though, if the injury be to the free- 



KEECH V. HALL. 839 

hold ; Leavitt v. Eastman, 77 Me. 117 ; Cole v. Stewart, 11 
Cush. 181 ; Page v. Robinson, 10 ib. 99 ; Fuibusli v. Goodwin, 
supra. 

Ejectment. — The mortgagee may maintain an action of eject- 
ment against the tenant without notice, to quit; Doe v. Mace, 

7 Blackf. (Ind.) 2 ; Den v. Stockton, 7 Hals. (N. J.) 322 ; New 
Haven Bank v. McPartlan, 40 Conn. 90 ; Carroll v. Ballance, 
26 111. 9; Rogers v. Humphreys, 4 Ad. & E. 299 at 313; 
Thunder d. Weaver v. Belcher, 3 East 449 ; or the mortgagee 
may eject the tenant without notice to quit ; Corner v. Sheehan, 
74 Ala. 452; Bank of Wash. v. Hupp, 10 Grattan 23 at 49; 
Bartlett v. Hitchcock, 10 Bradw. (111.) 87 ; Stedman v. Gassett, 
18 Vt. 346 ; Downard v. Groff, 40 Iowa 597 ; Brown v. Cram, 
1 N. H. 169. For the doctrine peculiar to New York, see Lane 
V, King, 8 Wend. 584; M'Kircher v. Hawley, 16 Johns. 289 ; 
and the tenant, when ejected, cannot retain the emblements ; 
Lynde v. Rowe, 12 Allen 101 ; Mayo v. Fletcher, 14 Pick. 525 ; 
Jones V. Thomas, 8 Blackf. (Ind.) 428 ; Downard v. Groff, 
supra ; Lane v. King, supra. If the mortgagee enter, neither 
the morto-ao'or nor his tenant will be entitled to the emble- 
ments ; Clary v. Owen, 15 Gray 522, 525. 

Crops and Improvements. — The purchaser at a foreclosure 
sale is entitled to the crops growing at the time of sale ; Shep- 
ard V. Philbrick, 2 Den. (N. Y.) 174; not only as against 
the mortgagor, but all persons claiming under him ; Ran- 
kin V. Kinsey, 7 Bradw. (111.) 215, 219; and may maintain 
trespass against the mortgagor or his tenant for taking and 
carrying them away ; Downard v. Groff, supra ; or replevin, 
Scriven v. Moote, 36 Mich. 64 ; or he may proceed by injunc- 
tion to restrain the mortgagor's creditor from levying upon 
the growing crops ; Crews v. Pendleton, 1 Leigh (Va.) 297. 
That the tenant, when the mortgagee has recovered possession 
of the mortgaged premises, cannot be allowed compensation 
for improvements ; see Haven v. Boston & Worcester Corp., 

8 Allen 369; Haven v. Adams, 8 ib. 363. 

Action for mesne profits by the mortgagee against the tenant. — 
Whether the entry of the mortgagee into the mortgaged prem- 
ises, (it being unimportant whether the entry was made with 
or without action,) relates back so as to allow the mortgagee 
to recover in an appropriate form of action the mesne profits 
accruing prior to the entry, is a question not free from doubt. 



840 • KEECH V. HALL. 

The prevailing doctrine in this country is that held in Massachu- 
setts and New Jersey, probably, but in Virginia see Bank of 
Wash. V. Hupp, 10 Grattan 23 at 49. In Mass., Mayo v. Fletcher, 
14 Pick. 525, 531, it was said that mesne profits accruing prior to 
the entry by the mortgagee could not be recovered, because the 
tenant was entitled to the rents and profits so long as he was 
allowed to remain in possession of the mortgaged premises. In 
New Jersey, the majority of the court held in Sanderson v. Price, 
1 Zab. 637, that the tenant would be liable to the mortgagee 
for mesne profits only from actual entry, although four dissent- 
ing judges, following the Vermont cases, layman v. Mower, 6 
Vt. 345 and cases there cited, held that after actual entry by 
the mortgagee the tenant would be liable from the time of 
actual notice from the mortgagee and, in the absence of other 
notice, from the time of the service of the process in the eject- 
ment proceeding; see, also, Henshaw v. Wells, 9 Humph. 
(Tenn.) 568, 582. In England, it is held that after actual 
entry, whether, by action or not, the entry relates back so that 
the mortgagee may recover the mesne profits if he proves his 
title to possession at the time they were taken ; Barnett v. 
Guilford, 11 Ex. 19, 31. In England, therefore, although the 
mortgagee cannot by mere notice compel the tenant to pay him 
the rents then due, as rents, yet he may be able in an action 
for mesne profits to recover the equivalent for the rents. As 
to the form of action for mesne profits, it has been held, Good- 
title V. North, Douglas 584, that mesne profits, prior to the day 
of the demise laid in the declaration in ejectment, may be 
recovered in an action for use and occupation, if the plaintiff 
waives the tort, but that use and occupation will not lie for 
mesne profits accruing subsequently to that day, as the plain- 
tiff, having in the ejectment proceeding treated the defendant 
as a trespasser, is estopped from treating him as a tenant, Birch 
V. Wright, 1 T. R. 378, 87. After the mortgagee has entered, 
he may recover mesne profits from that time from the tenant 
in possession refusing to jdeld the possession, Northampton 
Mills V. Ames, 8 Met. 1; Hill v. Jordan, 30 Me. 367, even 
though the entry be ineffectual for the purpose of foreclosure, 
Northampton ]\Iills v. Ames, supra. 

Writ of entry. — That a mortgagee, never having entered, 
may, without notice to the mortgagor to quit, maintain a writ 
of entry against him ; see Mayo v. Fletcher, 14 Pick. 525, 530 ; 



KEECH V. HALL. 841 

Blaney v. Bearce, 2 Greenl. 132, 7 ; Hobart v. Sanborn, 13 N. H. 
221 ; Hartshorn v. Hubbard, 2 ib. 453 ; and as the tenant 
stands in the place of the mortgagor with the same rights and 
liabilities, the mortgagee without having entered can with- 
out notice undoubtedly maintain a writ of entry against the 
tenant. If, after the mortgagee has entered, his possession is 
disturbed by the mortgagor or his tenant, the mortgagee can 
maintain a writ of entry, and recover damages for tlie rents 
and profits of which he has been wrongfully deprived ; Stewart 
V. Davis, 63 ]Me. 539; Miner v. Stevens, 1 Gush. (Mass.) 468. 



WIGGLESWORTH v. DALLISON. 



TRIXITY. — VJ GEO. 3. 
[kepoktkd dolgl. 201.] 

A custom that the tenant^ whether hy parol or deed, shall have 
the ^cay-yoing crop^ after the expiration of his term, is yood, 
if not repuynant to the lease hy tvhich he holds (a). 

This was an action of trespass for mowing, carrying away, 
and converting to the defendant's own use, the corn of the 
phiintiff, growing in a field called Hihaldstoiv Leys, in the parish 
of Hibaldstow, in the county of Lincoln. The defendant Dalli- 
son pleaded liherum tenementum, and the other defendant justi- 
fied as his servant. The plaintiff replied, that true it was that 
the locus in quo was the close, soil, and freehold of Dallison ; 
but, after stating that one Isabella Dallison, deceased, being 
tenant for life, and Dallison, the reversioner in fee, made a 
lease on the 2nd of March, 1753, by which the said Isabella 
demised, and the said Dallison confirmed, the said close to the 
plaintiff, his executors, administrators, and assigns, for twenty- 
one years, to be computed from the 1st of May, 1755, and that 
the plaintiff, by virtue thereof, entered and continued in posses- 
sion till the end of the said term of twenty-one years ^ — he 
pleaded a custom in the following words, viz., " That within 
the parish of Hihaldstoiv, there now is, and, from time whereof 
the memory of man is not to the contrary, there hath been a 
certain ancient and laudable custom, there used and approved 
of, that is to say, that every tenant and farmer of any lands 
within the same parish, for any term of years which hath ex- 

(a) And where entitled by custom remains in tlie tenant. See Griffiths 
to the way-going crop, he keeping v. Puleston, 13 M. & W. 359. 
the fences in repair, tlie possession 

842 



"WIGGLESWORTH V. DALLISOX. 843 

pired on the first clay of ^Nlay in any year, hatli been used and 
accustomed, and of riglit ought, to liave, take, and enjo}-, to liis 
own use, and to reap, cut, and carry away, wlien ripe and fit to 
be reaped and taken away, liis way-going crop, that is to say, 
all the corn growing upon the said lands which hath before the 
expiration of such term been sown by such tenant upon any 
part of such lands, not exceeding a reasonable quantity thereof 
in proportion to the residue of such lands, according to the 
course and usage of husbandry in the same parish, and which 
hath been left standing and growing upon such lands at the 
expiration of such term of years." He then stated that, in the 
year 1775, he sowed witli corn part of the said close, being a 
reasonable part in proportion to the residue thereof, according 
to the course and usage of husbandry in the said parish, and 
that the corn produced and raised by such sowing of the corn 
so sown as aforesaid, being the corn in the declaration mentioned, 
at the end of the term, and at the time of trespass committed, 
was standing and growing in the said close, the said time not 
exceeding a reasonable time for the same to stand, in order to 
ripen and become fit to be reaped, and that he was during all that 
time lawfully possessed of the said corn, as his absolute prop- 
ert}^ by virtue of the custom. The defendant, in his rejoinder, 
denied the existence of any such custom, and concluded to the 
country. The cause was tried before Eyre^ Baron, at the last 
assizes for Lincolnshire^ when the jury found tlie custom in the 
words of the replication. 

Baldwin moved, in arrest of judgment, that such a custom 
was repugnant to the terms of the deed, and therefore, though 
it might be good in respect to parol leases, could not have a 
legal existence in the case of cases by deed. He relied on 
Trumper v, Cartvardiiie, before Yates, Justice (a), the circum- 
stances of which case were these : 

" The plaintiff had been lessee under the corporation of Here- 
ford for a term of twenty-one years, which expired on the 4th 
of December, 1767. In the lease there was no covenant that the 
tenant should have his off-going crop. In the seed-time, before 
the expiration of the term, he sowed the fallow with wheat. 
The succeeding tenant obstructed him in cutting tlie wheat 
when it became ripe, and cut and housed it himself, for his own 

(a) At the summer assizes for Herefordshire, 1769. 



844 ^VIGGLESWOETH V. DALLISON. 

use. Upon this the plaintiff brought an action on the case, and 
declared on a custom in HerefonUhire for tenants to quit their 
farms at Christmas or Candlemas to reap the corn sown the 
preceding autumn. Yates^ Justice, held the custom could not 
legally extend to lessees by died, though it might prevail, by 
implication, in the case of parol agreements. That, in the case 
of a lease by deed, both parties are bound by ihe express agree- 
ments contained in it, as that the term shall expire at such a 
day, (S:c. ; and, therefore, all implication is taken away. That, 
if such a custom should be set up, the Statute of Frauds would 
be thereby superseded in Herefordsldre (a). Accordingly the 
plaintiff did not recover on the custom, although on another 
count in trover, in the same declaration, he had a verdict." 

A rule to show cause was granted. 

The case was argued on Tuesda}-, the 8th of June, by Hill^ 
Serjeant, Chambre and DaijreU, for the plaintiff, and Cust^ 
Baldwin^ Balgiuj^ and Gough^ for the defendants ; when three 
objections Avere made on the part of the defendants, viz. ; 1. 
That the custom was unreasonable. 2. That it was uncertain. 
3. That, as had been contended on moving for the rule, it was 
repugnant to the deed under which the plaintiff had held. 

For tlie plaintiff it was argued. 1. That it was not an un- 
reasonable custom, because, without an express agreement, or 
such a custom as this, there could be no crop the last year of a 
term, but the tenant Avould not sow if he could not reap, and 
the landlord would not liave a right to enter till the expiration 
of the term. That it was for the advantage of the jjublic as 
much as customs for turning a plough or drying nets, on 
another person's land, which had been held to be good (6). 
That it bore a great analogy to the right of emblements, and 
was founded on the same principle, namely, the encouragement 
of agriculture. It was not prejudicial to any one ; not to the 
landlord, because without it his land must be unemployed and 
unproductive for a whole season ; nor to the succeeding tenant, 
because he w'ould have his turn at the end of his term. 2. 
That it was sufficiently certain, by the reference to the residue 

(a) Qu. This argument seems such a custom, it might be said that 

more applicable to pai'ol leases, be- this Avould be I'epugnant to the Stat- 

cause, if a parol lease for three ute of Frauds, 
years could be extended in some (h) Vide Davis, 32 b. 

degree for half a year longer by 



WIGGLESWORTH Y. DALLISON. 845 

of the lands not sown, and to the course and usage of hus- 
bandry in the parish. This is as much certainty as the nature 
of the subject will admit of ; for, if it had been that so many 
acres might be sown and reaped, that Avould have been incom- 
patible with those variations in the proportion of ploughed 
land, w^hich arise, at different times, from circumstances in the 
course of cultivation and husbandry. Reasonable is an epithet 
which sufficiently qualifies the extent of customs, and is gen- 
erally used in pleading them ; as with regard to customary 
fines paid to the lord of a manor, estovers prescribed for by a 
part}' to be taken for the use of his house, &c. In the case of 
Bennington v. TayJor, reported in Lutwyche («), where the 
defendant, in an action of trespass, had pleaded a right to dis- 
train for twelve pence for stallage, due by prescription, for the 
land near every stall in a fair, and on a motion in arrest of 
judgment, it was objected, that the prescription was uncertain, 
and therefore void, the quantity of land not being ascertained, 
the court held it to be certain enough, because the quantity 
was to be ascertained by the common usage of the fair. In all 
such cases, whether the quantity or amount is in truth reason- 
able or not, is for the jury to decide. 3. That the circumstance 
of the plaintiff's lease in this case having been by deed, made 
no difference. There was no agreement contained in the deed, 
that the defendant would depart from the custom, although 
the parties must have known of it when the lease was exe- 
cuted. He did not claim under any parol contract express or 
implied; and, therefore, the argument of repugnancy did not 
apply ; and the Nisi Prius case which had been cited, went 
upon mistaken reasoning. HilU Serjeant, admitted that he 
knew of no instance in the Reports, of a similar custom to this, 
in the case of freehold property ; but he said that there were 
several with regard to copyholds that went much farther; and 
he cited Eastcourt v. Weekes (5), where a custom, that the 
executors and administrators of every customary tenant for 
life, if he should die between Christmas and Lady-day, should 
hold over till the Michaelmas following, is stated on the plead- 
ings (c) ; and no objection taken to it on the argument of the 
case. 

(a) C. B., E. or T. 12 W. 3 ; 2 (o) It is found by the special ver- 

Lutw. 1517, 1519. diet, the action being ejectment. 

C&) T. 10 W. 3; 1 Lutw. 799, 801. 



846 WIGGLESWORTH Y. DALLISON. 

For the defendant -vveie cited, Grantham v. Haivly (a) ; 
White V. Sawyer (/>), in which hist case a custom for a lord of 
a manor *' to have common of pasture in all the lands of his ten- 
ants for life or years," which had been pleaded in justification 
of a trespass in the land of a tenant for years, Avas held to be 
void and against law, for that such a privilege is contrary to 
the lease, being part of the thing demised, and different from 
a prescription to have a heriot from every lessee for life, be- 
cause that is only collateral (f). A case relied on by Hough- 
ton, Justice, in White v. Sayer ((7), in which he said the court 
had decided that a custom for lessees for years to have half a 
year after the end of their term, to remove their utensils, was 
void, as being against law ; Startup v. Dodderidye (g), where 
the court refused to grant a prohibition, on the suggestion of a 
modus " to pay, upon request, at the rate of two shillings for 
every pound of the improved j'cail}" rent or value of the land," 
because the yearl}' rent or value was variable and uncertain : 
Nailor, qui tarn v. Seott ( f ), where a custom having been found 
by a jur}-, " that every housekeeper in the parish of Wakefield 
having a child born there, should, at the time when the mother 
was churched, or at the usual time after her delivery when she 
should be churched, pay tenpence to the vicar," the court, on 
a motion in arrest of judgment, determined that the custom 
was void, being, 1. Uncertain, because the usual time for 
women to be churched was not alleged (</). 2. Unreasonable, 
because it obliged the husband to pay if the woman was not 
churched at all, or if she removed from the parish, or died 
before the time of churching : Carleton v. Brightwell (Ji)^ 
where the defendant, on a bill of tithes, set up a modus that 
"the inhabitants of such a tenement, with the land usually 
enjoyed therewith, should pay such a sura for tithe corn," and 

(a) T. 13 Jac. ; 1 Hob. 132. That (?>) B. R. M. 19 Jac. 1 Palm. 211. 

case, if at all applicable, seems to (c) Cites 21 H. 7, li. 

me to make for the plaintiff. It is (d) B. R. M. 19 Jac. 1 Palm. 211. 

curious in one respect, viz., that the (e) E. 4 Ann.; 2 Ld. Raym. 1158; 

question was brought on in an action 2 Salk. 657; 1 Mod. 60. 
of debt on a common bond condi- (/) E. 2. G. 2; 2 Ld. Raym. 1258. 

tioned for the payment of 201 to the {y) In that case the custom, as 

plaintiff if a certain crop of corn did suggested, did not refer to the usage 

of right belong to him ; or, in other of the parish, 
words, if the question of law was in (A) Cane. T. 1728 ; 2 P. W. ■462. 

his favour. 



WIGGLESWOKTH V. DALLISOJST. 



847 



it Wcas held by the Master of the rolls to be void for uncer- 
tainty ; Harriso7i v. Sharp (a), where a modus that, " when any 
of the inclosed pastures in a certain vill were ploughed and 
sown with corn or grain of any kind, or laid for meadow, and 
mown and made into hay, tithes in kind were paid to the 
rector, but when eaten and depastured, then the occupier paid 
to the vicar one shilling in the pound of the yearly rent or 
value thereof, and no more, upon some day after Michaelmas 
yearly," was held void, on the authority of Startup v. Bod- 
deridge ; Wilkes v. Broadhent (b), where the Court of Common 
Pleas, and afterwards, on error brought the Court of King's 
Bench, held a custom found by verdict, "for the lord of a 
manor, or the tenants of his collieries who had sunk pits, to 
throw the earth and coals on the land near such pits, such 
land being customary tenement and part of the manor, there 
to continue, and to lay and continue wood there for the neces- 
sary use of the pits, and to take coals so laid, away in carts, 
and to burn and make into cinders coals laid there, at their 
pleasure," to be void, because, among other reasons, the w^ord 
near was too vague and uncertain ; Olaiid v. Burdwick (c), 
where a feme copyholder durante viduitate, having sowed the 
land, and then married, it was determined that the lord should 
have the corn, upon the principle, that when the interest in 
land is determined by the act of the party, he shall not have 
the crop : an anonymous case in Moore (cZ), where it was held, 
that a custom " that lessee for years should hold for half a year 
over his term," was bad ; Roe, lessee of Bree v. Lees (e), where, 
in an ejectment to recover a farm of about sixty acres, of 
which fifty-one were inclosed, and nine lay in certain open 
fields, a special case w^as reserved, which stated a custom, " that 
when a tenant took a farm, in which there was any open field, 
more or less for an uncertain term, it was considered as a hold- 
ing from three years to three years;" and though the court 
decided against the custom on other grounds, yet, by their 
reasoning, it clearly appeared that they thought it void for 
uncertainty, because the quantity of open ground was not as- 
certained, and one rood might determine the tenure of 100 

(a) T. 1724; Bunb. 174. (cZ) H. 3 Ed. 6 ; Moore 8, pi. 27. 

(6) B. R. E. 18 G. 2, 2 Str. 1224. (e) C. B. M. 18 G. 4. Since re- 

(c) B. E. H. 37 EI. Cro. Eliz. 4G0; ported in 2 Blaclist. 1171. 
5 Co. 116. 



848 "WIGGLESWORTH Y. DALLISON. 

acres of land inclosed. Besides the above authorities («), the 
case before Yates, Justice, was much relied on. It was ad- 
mitted, that, in cases where the usual crop of the country is 
such, that it cannot come to maturity in one year, a right to 
hold over after the end of the term, in a parole demise, may be 
raised by implication ; as where saffron is cultivated, in Cafn- 
hrid<jeshire ; liquorice, near Pontefract; or tobacco, which for- 
merly used to be planted in Lincolnshire ; but it was contended, 
that, in such cases, a lease by deed would preclude such impli- 
cation, as the parties must be supposed to have described all 
the circumstances relative to the intended tenure in the writ- 
ten instrument. Such a custom as that set up, in the present 
case, could not, it was said, be of sufficient antiquity Avith 
respect to leases by deed, as, in the time of Richard I., and 
long afterwards, tenants had no permanent interest in their 
lands ; or, if there could be such a custom, the plaintiff's lease 
could not be within it, because the custom must have applied 
to the 1st of jNIay, old style, and this lease was made and com- 
menced after the alteration was introduced by 24 Geo. 2, c. 
23 (i). 

The Court took tin^e to consider; and this day, Lord Mans- 
field delivered their opinion as follows : 

Lord Mansfield. — AVe have thought of this case, and we are 
all of opinion, that the custom is good. It is just, for he who 
sows ought to reap, and it is for the benefit and encouragement 
of agriculture. It is, indeed, against the general rule of law 
concerning emblements, which are not allowed to tenants who 
know when their term is to cease, because it is held to be their 
fault or folly to have sown, when they knew their interest 
would expire before they could reap (c). But the custom of a 
particular place may rectify what otherwise Avould be impru- 
dence or folly. The lease being by deed does not vary the 
case. The custom does not alter or contradict the agreement 

(a) 4 Co. 51 b; 1 Roll. Abr. 5G3, of it, as from the errors in the for- 

pl. 9, et Co. Litt. 55, were also cited mer metliod of computation the nom- 

for the general principles conceniing inal day was continually deviating, by 

customs and emblements. degrees, from the natural day. 

(6) The new style commenced the (c) [See 14 & 15 Vict. c. 25, s. 1, 

1st of January, 1753. But if this ai'- giving the tenant in lieu of emble- 

gument were admitted in its full ex- ments a right to occupy until the end 

tent, no custom could exist where a of the current year of his tenancy.] 
certain day of the month made part 



WIGGLESWORTH Y. DALLISOX. 349 

in tlie lease ; it only superadds a right which is consequential 
to the taking, as a heriot may be due by custom, although not 
mentioned in tlie grant or lease («). 

Tlie rule discharged (6). 



Few questions ai'e of more frequent practical occurrence than tliose wliicli 
inA'olve the admissibility of parol evidence of custom and usage for tlie pur- 
pose of annexing incidents to, or explaining the meaning of, written con- 
tracts. In one of the later cases on the sul^ject, the following luminous 
account of this head of tlie law Avas given by Parke, B., delivering the 
judgment of the Court of Exchequer. 1 M. & W. 474. 

" It has long been settled," (said his lordship,) " that in commercial trans- 
actions extrinsic evidence of custom and usage is admissible to annex inci- 
dents to written conti'acts in matters witli respect to which they are silent. 
The same rule has also been applied to contracts in other transactions of life, 
in wliicli known usages have been established and prevailed ; and this has 
been done upon tlie principle of presumption that in such transactions, the 
parties did not mean to express in icritincj the lohole of the contract hy lohich they 
intended to be hound, hut to contract icith reference to those known usages. 
Whetlier such a relaxation of the common law was wisely applied where 
formal instruments have been entered into, and particularly leases under seal, 
may well be doubted ; but the contrary has been established by sucli authority, 
and the relations between landlord and tenant have so long been regulated 
upon the supposition tliat all customary obligations not altered by tlie con- 
tract are to remain in force, that it is too late to pursue a contrary course ; 
and it Avould be productive of much inconvenience if tliis practice were now 
to be disturbed. The common laM', indeed, does so little to prescribe the rela- 
tive duties of landlord and tenant, since it leaves the latter at liberty to pur- 
sue any course of management he pleases, provided he is not guilty of waste, 
tliat it is by 110 means surprising that the court should have been favourably 

(«) Vide Doe \. Snoirden, C. B. M. contained and set forth, &c., is a cus- 
19 Geo. 3, 2 Black. 1225, where it is tom void in law, and is contrary to 
said hj the court, that if there is a and inconsistent with the said in- 
taking from Old Lady-day (5th April), denture of lease in the said replica- 
the custom of most countries would tion mentioned." Tlie case was ar- 
entitle the lessee to enter upon the gued at Serjeants' Inn, before the 
arable at Candlemas (2nd of Febru- Judges of C. B., and the Barons of 
ary), to prepare for the Lent corn, the Exchequer, by Balgiiy, for tlie 
witliout any special words for that plaintiff in error, and Chamhre for 
purpose, i.e. in a written agreement tlie. defendant. Tlie objection to the 
for seven years ; for the court were reasonableness of the custom was 
speaking of such an agreement. abandoned. In T. 21 G., (27th June, 

(6) Judgment was accordinly en- 1781,) Lord Loughhorough delivered 

tered for the plaintiff, upon Avhich a the unanimous opinion of the Court 

writ of error was brought in tlie Ex- of Exchequer Chamber, that the cus- 

chequer Chamber, and the defendant tom was good, and the judgment was 

assigned for errors, " that the custom affirmed. 



850 ^VIGGLES"VVOETH V. DALLISON. 

inclined to the introduction of tliose regulations in the mode of cultivation, 
which custom and usage have established in each district to be the most 
beneficial to all parties. 

"Accordingly, in Wigfflesicorth v. Z>aZZisoK, afterwards aflirmed on a writ 
of error, the tenant was allowed an awaj^-going crop, though there was a 
formal lease under seal. There the lease was entirelj' silent on the subject 
of such a right ; and Lord Mansfield said the custom did not alter or contra- 
dict the lease, but only added something to it. 

"The question subsequently came under the consideration of the Court of 
King's Bench in Senior v. Annitaije, reported in Mr. Holt's Nisi Prius Cases, 
p. 197. In that case, which was an action by a tenant against his landlord 
for a compensation for seed and labour, under the denomination of tenant- 
right, Mr. Justice Bayley, on its appearing that there Avas a written agree- 
ment between the parties, nonsuited tiie plaintiff. The court afterwards set 
aside that nonsuit, and held, as appears by a manuscript note of that learned 
Judge, that though there Avas a written contract between landlord and tenant, 
the custom of the country would still be binding, if not inconsistent with 
the terms of such written contract; and that, not only all common obliga- 
tions, but those imposed by custom, were in full force where the contract 
did not vary them. Mr. Holt appears to have stated the case too sti'ongly 
when he said that the court held the custom to be operative, ' unless the 
agreement in express terms excluded it ; ' and probably he has not been quite 
accurate in attrilniting a similar opinion to the Lord Chief Baron Thompson, 
who presided on the second trial. It would appear that the court held that 
the custom operated, imless it could be collected from the instrument, either 
expressly or imj^liedhj, that the parties did not mean to be governed l)y it. 

" On the second trial, the Lord Chief Baron Thompson held that the cus- 
tom prevailed ; although the written instrument contained an express stipula- 
tion that all the manure made on the farm should be spent on it, or left at 
the end of the tenancy, without any compensation being paid. Such a stipu- 
lation certainh' does not exclude by implication the tenant's right to receive 
a compensation for seed and labour. 

" The next reported case on this subject is Wehb v. Plummer, 2 B. & A. 
746, in which there was a lease of down lands, with a covenant to spend all 
the produce on the premises, and to fold a flock of sheep upon the usual 
part of the farm; and also, in the last year of the term, to carry out the 
manure on parts of the fallowed farm pointed out by the lessor, the lessor 
paying for the fallowing land and carrying out the dung, but nothing for the 
dung itself, and paying for grass on the ground and thre.shing the corn. 
The claim was for a customaiy allowance for foldage (a mode of manuring 
the ground) ; but the court held, as there was an express provision for some 
payment, on quitting, for the things covenanted to be done, and an omission 
of foldage, the customary obligation to pay for the latter was excluded. No 
doubt could exist on that ; the language in the lease was equivalent to a 
stipulation that the lessor should pay for the things mentioned, and no more. 

" The question then is, whether from the tei'ms of the lease now under 
consideration, it can be collected that the parties meant to exclude customary 
allowance for seed and labour." 

In the case from which the above is extracted, viz., Hutton v. Warren, 1 M. 
& W. 466, a custom by which the tenant, cultivating according to the course 
of good husbandry, was entitled, on quitting, to receive a reasonable allow- 
ance in respect of seed and labour bestowed on the arable land in the last 



WIGGLESWORTH V. DALLISON. 851 

year of his tenancy, and ■n-as bonnd to leave the manure for the landlord, if 
he would purchase it, was held not to be excluded by a stipulation in the 
lease that he would consume three-foiirths of the hay and straw on the farm, 
and spread the manure arising therefrom, and leave such of it as should not 
be so spread on the land, on receiving a reasonable price for it. 

From the above luminous judgment of Baron Parke it may be collected, 
tliat evidence of custom or usage Avill be received to annex incidents to 
written contracts on matters with respect to which they are silent. 

1st. In contracts between landlord and tenant. 

2nd. In commercial contracts. 

3rd. In contracts in other transactions of life, in which known usages 
have been established and prevailed. 

But that such evidence is only receivable when the incident which it is 
sought to import into the contract is consistent with the terms of the Avritten 
instrument. If inconsistent, the evidence is not receivable, and this incon- 
sistency maj' be evinced, — 

1st. By the express terms of the written instrument. 

2nd. By implication therefrom. [See the above rules cited with approval 
by Blackburn, J., in Jlijers v. Sari, 3 E. & E. 306.] 

With respect to the first class of cases in which the evidence has been 
received, viz., that of contracts between landlord and tenant, that is so 
thoroughly discussed in Hutton v. Warren, part of the judgment in which is 
above set out, and in Wigglesicorth v. DaUison, the principal case, that it 
seems unnecessary to say more on that head of the subject. See Holding v. 
Pigott, 7 Bing. 465 ; Boherts v. Barker, 1 C. & M. 803 ; Hughes v. Gordon, 1 
Bligh. 287; Clinam v. Cooke, 2 Sch. & Lef. 22; White v. Sayer, Palm. 211; 
Furley v. Wood, 1 Esp. 198; Doe v. Benson, 4 B; & A. 588. Where there is a 
custom to pay for fallows, &c., and no incoming tenant, there is an implied 
contract on the part of the landlord to pay according to tlie custom, Faviell v. 
Gaskoin, 7 Exch. 273. [In Muncey v. Dennis, 1 H. & N. 216, a custom of the 
country binding the incoming tenant to pay the outgoing tenant for straw 
left on the farm, Avas held not to be excluded by a provision in the lease to 
the outgoing tenant that all straw should during the term be consumed, and 
the manure used, on the premises. In Tucker v. Linger, 8 App. Cas. 508 ; 52 
L. J. Ch. 941, a custom for a tenant to sell flints turned up on the surface of 
the land and removed in the course of good husbandry, was held a reasona- 
ble custom, and one not inconsistent with the terms of the lease, which pro- 
vided that "the lessor reserved, inter alia, all mines and minerals, sand, 
quarries of stone, brick-earth, and gravel-pits, with liberty to enter to dig, 
take, convert, and carry away the same, doing no unnecessary damage." A 
custom not of the country, but prevalent between the owner and tenants of a 
particular landed estate, is not binding on a tenant who becomes such with- 
out notice of its existence : Womersley v. Dally, 26 L. J. Exch. 219. As to 
the evidence of contract between the outgoing and incoming tenant to pay 
for tillages at a valviation, and the right of the latter to pay the amount of 
such valuation to the landlord for rent due from the outgoing tenant, see 
Stafford v. Gardner, L. R. 7 C. P. 242. A custom making the incoming tenant 
alone liable to the outgoing tenant, and exempting the landlord from liability, 
though proved to exist in fact, was held bad in law as unreasonable. Brad- 
hum V. Foley, 3 C. P. D. 129, 47 L. J. C. P. 331. That a six months' notice to 
quit must by custom be from feast day to feast day irrespective of the num- 
ber of days intervening, see Jlorgan v. Davies, 3 C. P. D. 260.J 



852 WIGGLESWORTH V. DALLISON. 

With respect to contx*acts commercial, it has been long established that 
evidence of a tisaffe of trade applicable to the conti'act, and whicli tlio parties 
making it Icnew, or may be reasonably presumed to have Ivnown, is admissi- 
ble for tlie purpose of importing termu into the contract respecting wliicli tlie 
written instrument is silent. 

[An objection lias been raised that to admit evidence of a usage in tlie case 
of a conti'act required by tlie 17th section of the Statute of Frauds to be in 
writing would be to contravene that statute by introducing into the contract a 
term not included in the written memorandum of it. But the point was dis- 
posed of in Hximfrey v. Dale, E. B. & E. 1004, and see Wilson v. Hart, 7 
Taunt. 20."). 

It was laid down in former editions of these notes that] the words " nsac/e 
of trade " are to be understood as referring to a particular usage to be estab- 
lished by evidence, and pcrfecth' distinct from tliat general custom of mer- 
chants, which is tlie universal establislicd law of tlio land, whicli is to be 
collected from decisions, legal principles, and analogies, not from evidence 
in pais, and the Icnowledge of wliicli resides in tlie breasts of the judges. 
See Vallejo v. Wheeler, Lofft. 631 ; Edie v. E. I. Company, 1 Wm. Black, 299, 
2 Burr. 121G; [Brandao v. Barnett, 3 C. B. 519, 530; Siise v. Pompe, 8 C. B. 
N. S. 538; Crouch v. Cr€dit Fonder, L. R. 8 C. P. 374, 42 L. J. Q. B. 183;] 
sed vide Haille v. Smith, 1 B. & P. 5G3, in which evidence of the general cus- 
tom of mercliants was received; [and the remarks of Cockburn, C. J., in 
delivering the judgment of tlie Excliequer Chamber in Goodwin v. lioharts, 
L. R. 10 Ex. at pp. 340, 35G, 44 L. J. Ex. 57, 157.] 

Tliis distinction, indeed, between tlie general custom of merchants, which 
is part of the law of the realm, and the particular usages of certain particu- 
lar businesses, was not, it seems, so clearly marked in foi'mer times as it is 
now: thus we find BuUer, Justice, saying, 2 T. K. p. 73, that "within the 
last thirtj' years (his lordship spoke in 1787) the commercial law of this 
country has taken a very different turn from what it did before. Before that 
period we find that, in courts of law, all the evidence in mercantile cases was 
thrown together; they were left generally to a jury, and produced no estab- 
lished principle. From that time we all know the great study has been to 
find some certain general principles which shall be knowu to all mankind ; 
not only to rule the particular case then under consideration, but to serve as a 
guide for the future." [The subject was, however, after full consideration, 
thus dealt with by Cockburn, C. J., in delivering the judgment of tlie Court 
of Exchequer Chamber in Goodicin v. Roharts, L. R. 10 Ex. at p. 34G, 44 L. J. 
Ex. 162. "It is true," says his lordship, " that the law merchant is some- 
times spoken of as a fixed body of law, forming part of the common law, 
and, as it were, coeval with it. But, as a matter of legal history, this view is 
altogether incorrect. The law merchant thus spoken of with reference to 
bills of exchange and other negotiable securities, though forming part of the 
general body of the lex mercatoria, is of comparatively recent origin. It is 
neither more nor less than the usages of merchants and traders in the difter- 
ent departments of trade, ratified by the decisions of courts of law, which, 
upon such usages being proved before them, have adopted them as settled 
law, with a view to the interests of trade and the public convenience, the 
court proceeding herein on the well-known principle of law that, with refer- 
ence to transactions in the different departments of trade, courts of law, in 
giving effect to the contracts and dealings of the parties, will assume that the 
latter have dealt with one another on the footing of any custom or usage 



WIGGLESWOETH V. DALLISON. g53 

prevailing generally in the particular department. By this process what 
before was usage, only unsanctioned by legal decision, has become engrafted 
upon or incorporated into the common law, and may thus be said to form 
part of it." On appeal, the last cited judgment Avas affirmed in the House of 
Lords, 1 App. Cas. 476, though the meaning of the phrase, the " law mer- 
chant," was not specially adverted to in the opinions then delivered by the 
noble lords. It must not be taken that when a usage has once been proved 
as a matter of fact, it is to be in all subsequent cases juiliciall}^ noticed as a 
matter of law. See Southwell v. Bowditch, in C. A. 1 C. P. D. 37-1, 45 L. J. C. 
P. 374, 030; " but," says Lord Justice Mellish, in Ex parte Pou-ell, 1 Ch. D. 
506, " there is no doubt that a mercantile custom may be so frequently proved 
in courts of common law, that the courts will take judicial notice of it, and 
it becomes part of the law merchant." And accordingly in Crawcour v. 
Salter, 18 Ch. D. 53, and Ex parte Turquand, 14 Q. B. D. G3G, 54 L. J. Q. B. 
242, the C. A. took judicial notice of the custom of hotel keepers to hire fur- 
niture so as to exclude the operation of the reputed ownership clause in the 
Bankruptcy Act. And see also the observations of Brett, L. J., Lohre v. 
Aitchison, 3 Q. B. J)., at p. 562, as to the meaning attached by often proved 
custom to A-arious clauses in a Lloyd's policy. At what period or by what 
process the transformation takes place it is not easy precisely to determine. 
In Alexander v. Vanderzee, L. E. 7 C. P. 530, followed in Ashford v. Bedford, 
L. R. 9 C. P. 20, 43 L. J. C. P. 57, a question was left to the jury as to the 
mercantile meaning of '• For shipment in June and (or) July" apart from any 
usage. See the former case commented upon in Boices v. Shand, 2 App. Cas. 
455, 46 L. J. Q. B. (H. L.) 561. See also Birch v. Depeyster, 4 Camp. 385.] 

AVitli regard to particular commercial usages, evidence of them is admissible 
either to ingraft terms into the contract, or to explain its terms. 

[In the first of these two classes come the] cases concerning the time for 
which the undenvriters' liability in respect of the goods shall continue after 
the arrival of the ship, Nohle v. Kennaway, Dougl. 510, and see the observa- 
tions on this case in Ougier v. Jennings, 1 Camp. 503, n. ; Moon v. Guardians 
of Witney Union, 3 Binn. N. C. 817. See further Bottomley v. Forbes, 5 
Bing. N. C. 123; Vallance v. Deicar, 1 Camp. 403, et notas ; Cochran v. 
Retbury, 3 Esp. 121; Birch v. Depeyster, 1 Stark. 210; 4 Camp. 385; Don- 
aldson V. Forster, Abb. on Shipp. part 3, cap. 1; Baker v. Payne, 1 Yes. jun. 
459; Eaitt v. Mitchell, 4 Camp. 146; LetJiulier's Case, 2 Salk. 443; Bov-man 
V. Horsey, 2 M. & Rob. 85 ; ^Allan v. Siindius, 1 H. & C. 123. 

And as to evidence of a usage not to pay general average on deck cargo, 
see Miller V. Titherington, 6 H. & N. 278; nor for damage caused by water 
used to extinguish a fire, Stetcart v. West India and Pacific Steamship Co., 
L. R. 8 Q. B. 88, 362, a usage which since this decision has, it is believed, 
ceased to obtain ; to pay freight according to the measurement at the port of 
loading: Buckle \. Knoop, L. R. 2 Ex. 125, 36 L. J. Ex. 49; for general 
steamships unloading in the London Docks to unload their cargoes on the 
quay : Marzetti v. Smith, 1 Cab. & El. 6. See also as to the various rules 
which have been imported into the contract by a policy of marine insurance, 
Lohre v. Aitchison, 3 Q. B. D. 558 ; Knight v. Cotesvorth, 1 Cab. & El. 48.] 

In Bruion v. Byrne, 3 E. & B. 703, a case very elaborately argued at the bar, 
a bill of lading Avhich made the goods deliverable at Liverpool to order or 
assigns, " he or they paying freight for the said goods five-eighths of a penny 
per pound, with 5 per cent primage and average accustomed," was held not 
to exclude the operation of a custom in the trade at Liverpool, by Avhich three 



854 WIGGLESAYORTH V. DALLISON. 

months' discount was deducted from bill of ladinc: freiirlits of £joods coming 
from, amonirst otliers. the port of sliipment. In the niaruinal note, the court 
are said to liave held that this custom controlled the bill of ladinj^;; perhaps 
it would be better to have said that ft was not inconsistent with it. [Sec per 
Lord Campbell in Hall v. Janson, 4 E. & B. 510; and Cuthbert v. Cumming, 
10 Exch. 809; affirmed in 11 Exch. 405. See also Falkner v. Earle, 32 L. J. 
Q. B. 124, where Broicn v. Byrne was followed. 

Evidence has been held admissible of a custom in the iron trade that a 
manufacturer contractiuij; to supplj' iron plates must suppl^v them of his own 
manufacture : see Johnson v. lia>/lton, 7 Q. B. D. 438, 50 L. J. Q. B. 753. 

In Mcnhnnt Banking Co. v. Pha'nix Besshner Steel Co., 5 Ch. 1). 205, 46 L.J. 
Ch. D. 418, a custom was upheld whereby, in the iron trade, where warrants 
were given stating on the face of them that they Averc deliverable to the 
purchasers or their assigns, by indorsement thereon, it was understood that 
they were to he free from any vendor's lien for unpaid purchase-money, that 
they passed from hand to hand by indorsement, and conveyed to the holder a 
title to the goods represented by them. 

In Field v. Lelean, Exch. Cham. 6 II. & N. G17, 30 L. J. Exch. ir,8, evidence 
of a usage amongst brokers that on the sales of mining shares tiie seller is 
not bound to deliver without contemporaneous payment, was held admissible 
to show that the defendant was not entitled to have the shares which he had 
bought from the plaintiff delivered to him before payment, although bj' the 
bought and sold notes payment of the price was to be made, half in two, 
half in four months, and nothing was there said as to the time of delivery. 
This case is a strong one, but it can be questioned in Dom. Proc. only. Upon 
the question whether it overrules Spartali v. Benecke, 10 C. B. 212, see the 
judgment of Williams, J., in Field v. Lelean. See also Godts v. Rose, 17 C. 
B. 229.] 

And as to evidence of a usage to pay an agent, Hutch v. Carrinrftnn, 5 C. & 
P. 471 ; for a factor to sell in his own name, Johnstone v. Ushorne, 11 A. & E. 
449; [for a broker employed to buy to make himself personally responsible 
for the price. Cropper v. Cook, L. R. 3 C. P. 194 ; for a liroker employed to 
purchase to become a seller in the transaction without the knowledge of his 
employer, Robinson v. Mollett, L. R. 7 H. L. 802, 44 L. J. C. P. 362; or to buy 
without making a binding contract of purchase on his employer's behalf, lb. ; 
as to an introducing broker's rights to subsequent commissions, Allan v. Sun- 
dius, 1 H. & C. 123; Gibson v. Crick, lb. 142. In Baines v. Ewing, L. R. 1 Ex. 
329, 35 L. J. Ex. 194, it was held, that the presumption which would have 
arisen of an insurance broker's authority to underwrite fjeneralbj for the 
defendant at Liverpool, was rebutted by the custom proved to exist at 
Liverpool, by which an assurance broker's authority to underwrite is always, 
or nearlj' always, limited to a certain sum. And, therefore, where the 
defendant's broker had taken a risk in excess of his authority, the defendant 
was held not liable as principal on the contract althougli the plaintiff, the 
assured, had not been aware that the broker had exceeded his limit. 

In Humfrey v. Dale, 7 E. & B. 266, in error, E. B. & E. 1004, it should seem 
that not merely a term but a party, was on oral evidence of a custom added 
to a contract in writing. The action was against Dale, Morgan, & Co., 
brokers, for not accepting ten tons of oil alleged in the declaration to have 
been sold to them by the plaintiff, and it was held to be maintainable, first by 
the Q. B. and afterwards in C S., Martin, B., Willes, J., and Channell, B., 
dissenting. These were the facts: The plaintiff had employed T. &, M., 



WIGGLESWORTH T. DALLISON. 855 

brokers, to sell tlie oil for him, and one ScLenk employed the defendants to 
buy it. The brokers met, and the sale was effected, but the only written 
documents which could be produced as evidence of it were, first, a sale note 
of the oil, signed by the defendants, which commenced tlms, " Sold this day 
for Messrs. T, & M. to our principals" and ended with the signature, " Dale, 
Morgan, & Co., brokers," and " a quarter per cent, brokerage to D., M., & Co. ; " 
secondly, a sale note signed by T. & M., " brokers," and which commenced 
thus; "Sold to DaU, Mon/an, & Co., for account of Mr. Htimfrey" (the 
plaintiff), and ended with the clause, " quarter per cent, brokeriige to D., M., 
& Co., half to us." The first of these notes was sent by the defendants to T. 
& INI., the second by T. & M. to the plaintiff. There was evidence of usage of 
the particular trade that Avhenever a broker buys or sells without disclosing 
his principal, he is himself personally liable to be looked to as buyer or seller, 
and that it was in accordance with the usual practice in such cases, that T. 
& M. had not sent the defendants a note of the contract. The defendants 
did not disclose their principal till an unreasonable time after the contract 
made, nor until after tender of the oil and after he had become insolvent. 

The court of Q. B. held the evidence of usage to be admissible. They 
considered tliat by necessary implication the defendants had in the first note 
said that they had bourjht for their principals, and thougli they said they had 
sold for T. & M. the plaintiff had shown, as he miglit, tliat T. & M. Avere only 
his agents. The court then proceeded to say that " the plaintiff did not seek, 
by the evidence of usage, to contradict what the tenor of the note primarily 
imported, namely, that this was a contract which the defendants made as 
brokers. The evidence indeed is based on this : the usage can have no opera- 
tion except on the assumption of their having so acted, and of there having 
been a contract made with their principal. But the plaintiff, by the evidence, 
seeks to show that according to the usage of the trade, and as those con- 
cerned in the trade understand the words used, they import something more ; 
namely, that if the buying broker did not disclose the name of his principal 
it might become a contract with him if tlie seller pleased. Supposing this 
incident had been expressed on the face of the note, there would have been 
no objection to it, as affecting the validity of the contract; for the effect of 
it would only have been that the sale miglit be treated by the vendor as a sale 
to the broker, unless he disclosed the name of his principal; if he did that, 
it remained a sale to the principal, assuming of course, the broker's authority 
to bind him." 

The court admitted tliat in one sense the evidence varied the contract. " In 
a certain sense every material incident which is added to a written contract 
varies it, makes it different from what it appeared to be, and so far is incou- 
sistent with it. If by tlie side of tlie written contract vithout, you write the 
same contract xdtli the added incident, the two would seem to import different 
obligations and be diflerent contracts. The truth is, that the principle on 
wdiich the evidence is admissible is that the parties have not set down on 
paper the whole of their contract in all its terms, but tlwse only which were 
necessary to be determined in the particular case by specific agreement, and 
which of course might vary infinitely, leaving to implication and tacit under- 
standing all those general and varying incidents which i uniform usage 
would annex, and according to which they must in reason be understood to 
contract, unless they expressly exclude tliem." 

It is perliaps to be regretted that this judgment was not taken up to the 
House of Lords. But it has been constantly acted upon, and seems now to 



856 TVIGGLEST^ORTH Y. DALLISON. 

be firmly established, though the usage must, iu each case, be proved, South- 
u-ell V. Boioditch, 1 C. P. U. 374, 45 L. J. C. P. 374, 030. 

Fleet V. Mnrton, L. R. 7 Q. B. 12G; 41 L. J. Q. B. 49, was a very similar 
case to Ihimfrey v. Dale. See also Imperial Bank v. London a)id St. Kath. 
Docks Co., 5 Ch. D. 195, 46 L. J. Ch. 335, aud Bacmcister v. Fcnton, Levy and 
Co., 1 Cab. & El. 121. 

That of Hutchinson v. Tatham, L. R. 8 C. P. 482, 42 L. ,T. C. P. 2G0, seeuis 
a still stronger one. There the defendant, acting as agent for one Lyons 
with due authority to do so, effected a charter-party, which was expressed in 
the body of it to be made between the plaintitf who was a shipowner, and the 
defendant as "agent to merchants." The defendant signed "as agent to 
merchants." The court admitting that but for the custom the defendant 
would not have been personally liable on the charter, held on the authority of 
the two last cited cases that evidence was admissil)le of a usage to make him 
so liable if he did not disclose his principal's name within a reasonable time. 

In Wildy v. Stephenson, 1 Cab. & El. 3, it was endeavoured to prove a cus- 
tom on the London Stock Exchange that a broker was personally liable to 
his employer on a contract for the sale of shares Avliere the name of the 
principal Avas not disclosed, but the jury were unable to agree as to the exist- 
ence of such a custom. 

A variety of questions have been raised of late years, giving rise to no 
small diversity of judicial opinion, as to how far meml^ers of the Stock 
Exchange can avail themselves of its usages to relieve themselves of liability 
upon contracts made there. In Grissell v. Bristowe, L. R. 4 C. P. 3G, 38 L. J. 
C. P. 10, the Court of Exchequer Chamber, reversing the decision of the 
Court of Common Pleas, upheld a custom of the Stock Exchange whereby a 
stock jobber who had purchased shares from one of the pul)lic through a 
stock broker on the Stock Exchange, Avas relieved from liability to take the 
shares and indemnify the vendor against calls if he gave the name and address 
of a nominee able and Avilling to take the shares to whom they were to be 
transferred, and such nominee was not objected to within ten days after the 
name was given. A similar decision was given by a court of equity : Coles v. 
Bnstoire, L. R. 4 Ch. 3, 38 L. J. Ch. 81. And the like was held to be the case 
where the names, though given bond fide by the jobber, were those merely of 
men of straw put forward to shield the real purchaser : 3Iaxted v. Paine, No. 
2, L. R. 6 Ex. 132, 40 L. J. Ex. 57, diss. Cleasby, B., and Lush, J. A con- 
tract, it would seem, then arises between the vendor and the nominee, by 
which the latter is bound to indemnify the former against calls in respect of 
the shares so sold : Bowriny v. Shepherd, L. R. 6 Q. B. 309, 40 L. J. Q. B. 129 ; 
Kickalls v. Merry, L. R. 7 H. L. 530, 733, 45 L. J. Ch. 575 : but see per Black- 
burn, J., in Maxted v. Paine, No. 2, xdA sup. It may be observed that both in 
Grissell v. Bristoioe, and in Bovn-infj v. Shepherd the transfers liad in fact 
been accepted and the price of the sliares had been paid by the transferees' 
brokers though the transfers were not executed by the transferees. The 
vendor has also (at any rate in equity) a right to be indemnified by the real 
purchaser, who has through his broker supplied the man of straAv to the job- 
ber, and through him to the vendor as transferee. Castellan v. Hobson, L. R. 
10 Eq. 47, 39 L. J. Ch. 490. The jobber, however, is not discharged by the 
custom where the name given is of one who has not authorised the use of it. 
Maxted v. Paine, Xo. 1, L. R. 4 Ex. 81, 38 L. J. Ex. 41 ; or is under disability 
to contract — as an infant, Nickalls \. Merry, uhi sup. 

The second subdivision above-named of cases in Avhich evidence of com- 



WIGGLESWOETH V. DALLISON. §57 

mercial usages is receivable, is wliere it is admitted to explain the terms of a 
contract,] as was done in Udhe v. Walters, 3 Camp. 16, by showing that the 
Gulf of Finland, though not so treated bj' geographers, is considered by 
mercantile men part of the Baltic ; and in Hutchinson v. Boioker, 5 M. & W. 
535, where it was proved that good barley and fine barley signified in mercan- 
tile usage different things. See further Eohertson v. Clarke, 1 Bing. 4i5 ; 
Moxon V. Atkins, 3 Camp. 200; Cochran v. Retberg, 3 Esp. 121; Chaurand v. 
Anrjerstcin, Peake, GI; Bold v. Rayner, 1 M. & W. 44G; Poioell v. Horton, 2 
Bing. X. C. 668. 

And as to evidence, that " sold IS pockets Kent hops at 100s." means in the 
hop trade 100s. per cwt., Spicer v. Cooper, 1 Q. B. 424; that " in turn to 
deliver," in a charter-party to Algiers means at a particular spot in the port 
for a particular purpose, Bohertson v. Jackson, 2 C. B. 412; [(as to the term 
"to load in regular turn," see Hudson v. Clementson, 18 C. B. 213; Laivson 
V. Biirness, 1 H. & C. 396; Leideman v. Schultze, 14 C. B. 38; King v. Hinde, 
12 L. R. Ir. 113) ; of the meaning of " Liverpool " in a charter-party as a port 
of arrival, Norden Steam Co. v. Dempsey, 1 C. P. D. 654, 45 L. J. C. P. 764; 
of " no St. Lawrence" in a policy of insurance, Birrell v. Dryer, 9 App. Cas. 
345; of " running days" in a charter-party, Neilsen v. Wait, 16 Q. B. D. 67; 
that " bale" in the Gambier trade means a compressed package, weighing on 
the average two cwt., Gorrisen v. Perrin, 2 C. B. N. S. 681 ; that oil is " wet" 
if it contains any Avater, however little, Warde v. Stcioart, 1 C. B. N. S. 88;] 
to show the meaning of the description "about" so many quarters in a 
delivery order, Moore v. Campbell, 10 Exch. 323; [and " about" so many bar- 
rels in a charter-party, Alcock v. Leim & Co., 1 Cab. & El. 98] ; to explain 
the sense in which the word '■ London" was employed, Median v. May, 13 ^l. 
& W. 511; [that a " full and complete" cargo of sugar and molasses means 
at Trinidad a cargo packed in tlie ordinary way there; Cuthbert v. Cumming, 
10 Ex. 809, affirmed 11 Ex. 405; the meaning of " the next two months" in 
the iron trade, Bissell v. Beard, 28 L. T. N. S. 740. 

A question has sometimes been raised as to how far it is necessary in order 
to affect a person with the usage of a trade or market that he should be 
actually cognisant of it. 

It was said in a case before the judicial committee, Kirchner v. Venus, 12 
Moore, P. C. 361, that when evidence of the usage of a particular place is 
admitted to add to or in any manner to affect the construction of a written 
contract, it is only on the ground that the parties who made the contract are 
both cognisant of the usage, and must be presumed to have made their agree- 
ment with reference to it, and that no such presumption can arise when one 
of the parties is ignorant of it. And that is adopted in the marginal note as 
the statement of a general rule of law. It should seem, however, that the 
proposition must be restrained to subject matters like that before the court, 
namely, the condition of the holder for value of a negotiable instrument 
showing upon the face of it a clear right of tlie ordinary and usual kind 
unaffected by the custom ; and the subsequent part of the judgment dwelt 
upon the special circumstances as being important. In Kirchner v. Venus, 
the indorsees resident in Sydne.y, of bills of lading, made in Liverpool, for 
the carriage of goods from Liverpool by the ship " Countess of Elgin," to 
Sydney, were, in an action of trover by them against the master of the ship 
for having refused to deliver up the goods at Sydney unless paid freight, 
held not to be bound by an alleged custom in Liverpool, of which the plaintiffs 
were ignorant, that though by the terms of the bills the freight was payable 



g58 WIGGLES WORTH V. D ALLISON. 

in Liverpool at a certain time after sailing, still the ship-owner, if it was not 
paid, had a lien for it at the port of discharge. See some remarlcs on this 
case in Buckle v. Knoop, L. K. 2 Ex. 125, per Kelly, C. B.; and sec Ilathesiiuj 
V. Laing, L. R. 17 Eq. 92, 43 L. J. Ch. 233, and Norclen Steam Co. v. Dempsey, 
1 C. P. D. 662; 45 L. J. C. P. 7 6i, 2^er Brett, J.] 

In Sutton V. Tathcim, 10 A. & E. 27, it was laid down that a pei-son employ- 
ing a broker on the Stock Exchange, impliedly gives hiui authority to act in 
accordance with the rules there establishetl, though the principal be himself 
ignorant of them. And in BaijJife v. nitttcnrorth, 1 Exch. 425, Sutton v. 
Tatham was expressly approved of by Parke, 15., and Holfe, B.; and Alder- 
son, B., laid down the law generally, that " a person wlio deals in a particular 
market nnist be taken to deal ai-coniing to the custom of that market, and 
he who directs another to make a contract at a particular place nnist be taken 
as intending that the contract may be made according to the usage of that 
place." And Parke, B., distinguished the cases of Gahay v. Lloyd, 3 B. & C. 
793, and Bartlett v. Pentland, 10 B. & C. 7G0, in which the usage of Lloyd's 
Coftee-house was held not to be binding on pei'sons who were not shown to 
have been cognizant of, or to have assented to it, on the ground that in Bay- 
lifft' V. Buttericorth, the question was as to the authority which the broker 
received. [See, however, as to this distinction per Williams, J., in Sweeting 
V. Pearce, 7 C. B. N. S. 482. 

In the latter case, allinned 9 C. B. N. S. 534, 30 L. J. C. P. 109, the princi- 
pal was held not bound l>y a usage of Lloyd's of which he w;is ignorant, but 
principally on the ground that Lloyd's is a mere private place of business and 
not a general market so as to come within the above rule. See per Bovill, 
C. J., Grissell V. Bnstowe, L. R. 3 C. P. 127. But the court seem to have gone 
also upon the ground that the usage sought to be established would, if not 
known to the principal, be an unreasonable one, (see the judgment of Bram- 
well, B., in Cam. Scacc.,) following in this respect the decision in Scott v. 
Irring, 1 B. & Ad. 612, that a usage which would have the effect of making 
the broker and not the underwriter the debtor of the assured for a loss on a 
policy of insurance, can only bind those who are acquainted with it. See 
also i)er Fry, J., Pearson v. Scott, 9 Ch. D. 198, 47 L. J. Ch. 725, where an 
alleged custom of the Stock Exchange was held bad, whereby it was con- 
tended that a broker employed by a solicitor whom he knew to be an agent 
could settle in account with such solicitor (otherwise than by payment) be- 
hind the back of the principal. As will be presently stated more fully a cus- 
tom if unreasonable is not binding; and the knowledge of the person to be 
bound may be an important element in deciding whether a custom is I'eason- 
able or not. See per Bowen, L. J., in Perry v. Barnett, 15 Q. B. D. at p. 397. 

In Robinson v. MoUett in Dom. Proc, L. R. 7 H. L. 836, 838, Lord Chelms- 
ford, L. J., states the rule to be that "if a person employs a broker to 
transact for him upon a market with the usages of which the principal is 
unacquainted, he gives authority to the broker to make contracts upon the 
footing of such usages, provided they are such as regulate the mode of per- 
forming the contracts, and do not change their intrinsic character." In that 
case his lordship " hesitated to say that the usage in question would not 
apply in the case of persons knowing of its existence, and employing a 
broker to act for them in the market where it prevailed. But the usage was 
of such a peculiar character, and so completely at variance with the relations 
between the parties, converting a broker employed to buy into a principal 
selling for himself, and thereby giving him an interest wholly opposed to his 



AVIGGLESWOETH V. DALLISON. 859 

duty, that he thought no person who was ignorant of such an usage could be 
held to have agreed to submit to its condition, merely l)y employing the ser- 
vices of a brolcer to wliom the usage was Ivuown to perform tlie ordinary 
and accustomed duties belonging to such employment." 

Subject to the above qualitication, and to the custom not being unreason- 
able or otherwise objectionable in point of law, the rule above cited and laid 
down in Sutton v. Tatham, and Bayliffa v. Butterworth, has been constantly 
adopted and followed. See Stewart v. Aberdein, 4 M. & W. 211 ; Taylor v. 
Stray, 2 C. B. N. S. 175; Stray v. Bussell, 1 E. & E. 888, 29 L. J. Q. B. 115; 
Greaves v. Legge, 2 H. & N. 216; Lloyd v. Guibert, 35 L. J. Q. B. per curiam; 
Grissell v. Bristowe, L. R. 4 C. P. 36; 38 L. J. C. P. 10; Duncan v. Hill, L. R. 
8 Ex. 242, 42 L. J. Ex. 179. In the latter case the plaiutift's, who were stock 
brokers on the London Stock Exchange, had been employed by the defendant, 
a non-meml)er, to carrj' over certain stocks and shares from one settling day 
to a later one. In the interval between the two days the plaintiffs became 
defaulters, whereupon, according to the rules of the Stock Exchange, their 
tran.sactions were closed, and their accounts, including that of the defendant, 
were made up at the prices current on that day, without any communication 
Avith the defendant. It was held, in the Cam. Scacc, reversing the decision 
of the Court of Exchequer, that the defendant was not liable to indemnify 
the plaintiffs for the " difference" or loss caused by the closing of his account, 
which had been forced on by tlic rules of the Stock Exchange, inasmuch as 
this had been caused by the plaintiff's own default.] 

In Stevart v. Cauty, 8 M. & W. 160, a rule of the Liverpool Stock Exchange 
was admitted in evidence between parties not raem1)ers of it, upon a question 
w'liat was a reasonable time for the completion of a sale of shares made at 
Liverpool through the agency of brokers. 

[To come to cases] not falling within the head of mercantile contracts, 
evidence has been received to show that by the custom of a particular dis- 
trict tlie words " 1000 rabbits" meant 1200 rabbits, Smith v. Wilson, 3 B. & 
Ad. 728; and see Clayton v. Gregson, 5 A. & E. 302. So in Reg. v. Stoke-vpon- 
Trent, 5 Q. B. 303, an agreement in writing " to serve B. from 11 Nov., 1815, 
to 11 Nov., 1817," at certain wages, " to lose no time on our own account, 
to do our work well, and behave ourselves in every respect as good servants," 
was considered capable of explanation by a usage in the particular trade for 
servants, under similar contracts, to have certain holidays and Sundays to 
themselves. See Phillips v. Innes, 4 CI. & Fin. 234. Also in Grant v. Mad- 
dox, 15 M. & W. 737, an agreement by the manager of a theatre to engage an 
actress for " three years, at a salary of 51., 61., and 71. per week in those 
years respectively," was explained by the usage of the theatrical profession 
to mean that the actress was to be paid only whilst the theatre was open for 
performance. [In Parker v. Ibbetson, 4 C. B. N. S. 346, a custom that the 
yearly hiring of a clerk is determinable by a month's notice at any time, was 
held not inconsistent with a provision in the agreement, that at the end of 
the 3'ear tlie employer, if satisfied with the amount of business done, would 
make an addition of 30?. to the stipulated salary.] So, again, in Evans v. 
Pratt, 3 M. & G. 759 ; 4 Scott, N. R. 370, S. C, in a memorandum as to a race, 
the run described was " four miles across a country," and evidence was 
admitted to show that in sporting parlance the meaning of those words is 
straight across over all obstructions without liberty to go through open gates. 
So if A. and B. were to agree for a lease, it would be implied from custom 
that the lessor should prepare and the lessee pay for it. Grissell v. Robinson, 



860 WIGGLESWORTH V. DALLISON. 

3 Bing. X. C. 11. Although in general, upon a sale of property, the vendee 
who is to bear the expense of the convejance ouglit to prepare it. Price v. 
WilUams, 1 M. & W. 6 ; Poole v. Hill, G M. & W. 835 ; Stephens v. De Medina, 

4 Q. B. 422. See, however, Doe d. Clarice v. Stiht-ell, 8 A. & E. 645. [As to 
the liability by usage of a man about to marry to pay his wife's solicitor for 
preparing her marriage settlement, see lleljis v. Clayton, 17 C. B. N. S. 553, 
34 L. J. C. P. 1. 

In The North Staffordshire Rail. Co. v. Peek, E. B. & E. 986, tlie majority of 
the court held that the terms in a letter to carriers from their customer, 
•' Please send the marbles not insured," were to be read " according to the 
understanding of language between cari'iers and their customers," and con- 
strued as a request to carry the marbles at the customer's risk. But this 
decision turned upon the construction of a statute, and was reversed in the 
House of Lords, 10 II. of L. Ca. 473, 32 L. J. Q. B. 241. 

As to a usage of trade to allow goods to remain with liotel-keepers on hire, 
preventing such goods from being afi'ected by the order and disposition sec- 
tion of the Bankruptcy Acts, see in re Blanshard, 8 Ch. D. 601, and tlie cases 
therein cited ; Craicc.onr v. Salter, 18 Ch. D. 53 ; ex parte Brooks, 23 Ch. D. 
261; e.r: parte Turquand, 14 Q. B. D. 636, 54 L. J. Q. B. 242. 

AYhilst, however, as we have seen, evidence of custom has been very 
largely admitted, there are numerous cases in which such evidence is inad- 
missible, and these will now be dealt with. 

Thus] the admissibility of evidence of custom to explain the meaning of 
a word used in any contract whatever, is subject to this qualilication, rfe., 
that if an act of parliament have given a definite meaning to any particular 
word denoting weiglit, measure, or number, it must l)e understood to have 
been used with tliat meaning, and no evidence of custom Avill be achnissible 
to attribute any other to it; jyer curiayn in Smith v. Wilson, 31 B. & Ad. 728; 
see also llockin v. Cooke, 4 T. R. 314; The Master of St. Cross v. Lo7'd 
Howard de Walden, 6 T. R. 338; Wing v. Erie, Cro. Eliz. 267; Xoble v. Dur- 
rell, 8 T. R. 271. 

In Doe v. Lea, 11 East, 312, it was held that a lease by deed of lands since 
the new style, to hold from the feast of St. Michael, must mean New Micliael- 
mas, and could not be shown by parol evidence to refer to Old Michaelmas. 
In Furley v. Wood, 1 Esp. 198, Runn. Eject. 112, Lord Kenyon had, under 
similar circumstances, admitted parol evidence of the custom of tlie country 
to explain the meaning of the word Michaelmas : and the court, in Doe v. 
Lea, on hearing that case cited, asked whether the holding there was by deed, 
which it does not appear to have been; and to which it may be added, that it 
appears possible that it was not even in writing. 

In Doe V. Benson, 4 B. & A. 588, evidence of the custom of the country 
was held admissible for the purpose of showing that a letting by parol from 
Lady-day meant from Old Lady-day. The court referred to Furley v. Wood, 
and distinguished that case from Doe v. Lea, on the ground that the letting 
there was by deed, " which," said Holroyd, Justice, " is a solemn instrument; 
and therefore parol evidence was inadmissible to explain the expression Lady- 
Day there used, even supposing that it was equivocal." 

It is perhaps not easy to conceive a distinction, founded on iirinciple, be- 
tween the admissibility of evidence to explain terms used in a deed, and 
terms used in a written contract not under seal : for though, when the terms 
of a deed are ascertained and understood, the doctrine of estoppel gives 
them a more conclusive effect than those of an unsealed instrument ; yet the 



WIGGLESWORTH T. DALLISOX. 861 

mle that parol evidence shall not be admitted to vary the written terms of a 
contract, seems to appl}^ as strongly to a contract Avithout a seal as with one ; 
while, on the other hand, it appears from the principal case of Wigfjlesworth 
V. DalUson, without going further, that in cases where parol evidence is in 
other respects admissible, the fact that the instrument is under seal forms 
no insuperable obstacle to its reception. [See also Abbott v. Bates, 43 L. J. 
C. P. 150.] 

Nor does it seem necessary, in order to prevent a contradiction between 
Doe V. Lea and Doe v. Benson, and Furley v. Wood, to establish any such 
distinction between deeds and other written instruments ; for in Doe v. Ben- 
son, the letting seems not to have been in writing, so that the oljjcction to 
the admission of parol evidence, founded upon the nature of a written in- 
strument, did not arise. In Furley v. Wood the letting was perhaps also by 
mere parol; and though the evidence was, it is true, offered to explain the 
notice to quit, still it may be urged, that when the holding was once settled 
to commence from Old Michaelmas, the notice to quit, which probably con- 
tained the words, " at the expii-ation of your term," or something ejicsdem 
generis, must be held to have had express reference to, and to be explained 
by it. We must not therefore, it is submitted, too hastily infer that parol 
evidence of custom would be receivable to explain a word of time used in a 
lease in writing, but not under seal. [See, however, Rogers v. Hull Dock 
Co., 3-t L. J. Ch. 16.J, Avhere the evidence was admitted to explain such an 
agreement.] 

Doe V. Lea was acted upon by the Court of Common Pleas in Smith v. 
Walton, 8 Bing. 238, where the defendant avowed for rent payable " at Mar- 
tinmas to loit, November 23rd;" the plaintiff pleaded non tenuit ; and a hold- 
ing from Old Martinmas having been proved, the court thought that the 
words after the videlicit must be rejected, as inconsistent with the term 
Martinmas, which they thought themselves bound by statute to interpret 
November 11th; that no evidence was admissible to explain the record: and 
that there Avas, therefore, a fatal variance between it and the evidence; see 
Horkin v. Cooke, 4 T. R. 3U; The Master of St. Cross v. Lord Howard de 
Walden, 6 T. R. 338; Kearney v. King, 2 B. & A. 301; Sproule v. Legge, 1 B. 
& C. 16. \_Hogg v. Berrington, 2 F. & F. 246. 

Custom cannot alter or control the law. In Meyer v. Dresser, 16 C. B. N. S. 
646; 33 L. J. C. P. 289, which was an action for freight, the defendant 
sought by evidence of usage, alleged to be universal in the mercantile world, 
to establish a right to deduct from the amount of freight due for goods de- 
livered the value of certain other goods which ought to have been but were 
not delivered by the plaintiff, but the court held that "a universal usage 
which is not accoi'ding to law cannot be set up to control the law." See also 
Goodwin v. Robarts, L. R. 10 Ex. 337, at p. 357, 44 L. J. Ex. 162; and the 
judgment of Blackburn, J., in Crouch v. Credit Fonder, L. R. 8 Q. B. 386, 
though the latter is to some extent qualified by that of the Exchequer 
Chamber in Goodwin v. Robarts, sup. In Crouch v. Credit Fonder, L. R. 8 
Q. B. 386, the court point out that " where the incident" (sought to be intro- 
duced by usage into a contract) " is of such a nature that the parties are not 
themselves competent to introduce it by express stipulation," {e.g., to make 
a modern instrument negotiable), "no such incident can be annexed by the 
tacit stipulation arising from usage." See further, Seymour v. Bridge, 14 Q. 
B. D. 460, 54 L. J. Q. B. 347 ; Xeilson v. James, 9 Q. B. D. 546, 51 L. J. Q. B. 
369; Perry v. Barnett, 15 Q. B. D. 388, 54 L. J. Q. B. 466; as to how far a 



862 WIGGLESW'ORTH V. DALLISOX. 

custom of the Stock Exchange to disregard Leeman's Act, 30 & 31 Yict. 
c. 29, 8. 1, can be held binding. 

Again,] evidence of usage, though sometimes admissil)le to add to, or ex- 
plain, is never so to vai-y, or to contradict, either expressly or by implication, 
the terms of a written instrument, Magee v. Atkinson, 2 M. & W. 442; Adams 
V. Wordleij, 1 M. & W. 374; Tnieman v. Loder, 11 A. & E. 589; [see Humfrey 
V. Dale, E. B. & E. 1004; Hutchinson v. Tatham, L. R. 8 C. P. 482, 42 L. J. C. 
P. 260; Xorden Steamship Co. v. Dempsetj, 1 C. P. D. 654, 45 L. J. C. P. 764; 
The Alhamhra, 6 P. D. 68, 50 L. J. P. D. 36, though where a custom was 
admitted to exist and in a charter-party the words "as customary" were 
in-ittcn, it was held that the custom must prevail, even thougli it contradicted 
a printed term in the charter-party, .'Scnttton v. Childs, 36 L. T. N. S. 212.] 

Tims, in Ycates v. Pym, 6 Taunt. 445, in an action on a warranty of prime 
sinrjed hacon, evidence was ottered of a usage in tlie bacon trade, that a cer- 
tain latitude of deterioration called "average taint" was allowed to subsist 
before the bacon ceased to answer the description of jyrime bacon. This 
evidence was held inadmissible, first at Nisi Prius, by Heath, Justice, and 
afterwards by the Court of Common Pleas. 

In Blackett v. Royal Exchange Insurance Company, 2 Tyrvvh. 266 [2 Cr. & J. 
244], which was an action on a policy upon " ship, &c., boat, and other furni- 
ture," evidence was oflered that it was not the usage of underwriters to pay 
for boats slung on the davits on the larboard quarter; but was rejected at 
J\7si Prius, and the rejection confirmed by the Court of Exchequer. " The 
objection," said Lord Lyndliurst, delivering judgment, " to tlie parol evidence 
is, that it was not to explain any amiiiguons words in the policy, any words 
which might admit of doubt, nor to introduce matter upon which the policy 
was silent, Irat was at direct variance with tlie words of the policy, and in 
plain opposition to the language it used. That whereas the policy imported to 
be upon the ship, furniture, and apparel generally, the usage is to say that it 
is not upon all the furniture, and apparel, but upon part only, excluding the 
boat. Usage may be admissiljle to explain what is doubtful, it is never 
admissil)le to contradict what is plain." [This case, liowever, is mentioned 
with disapproval in Myers v. Sari, 30 L. J. Q. B. 9 ; and Humfrey v. Dale, 
siqyra-] 

Hall V. Janson, 4 E. & B. 500, was an action upon a policy of marine insur- 
ance in the ordinary form, in which the interest was declared to be " on 
money advanced on account of freight," and the count alleged the interest to 
be in the shipowner, and that it- became subject to a general average contribu- 
tion : a plea to that count stating a custom of London, where the policy was 
made, that insurance upon " money advanced on account of freight" should 
not be liable for a general average, was held bad, tlie custom alleged being 
inconsistent with the terms of the policy. [(See, however. Miller v. Tither- 
inrjton, 6 H. & N. 278.) 

Where under an alleged usage of trade the underwriters on a marine policy 
covering loss by jettison sought to be relieved from payment of anything 
beyond the assured's own proportion of a loss of his goods Avhich had been 
jettisoned under circumstances constituting a general average, leaving him to 
recover the residue from the other coutributories, the court held the custom 
bad as contrary to the express agreement of the parties. Dickenson v. Jar- 
dine, L. R. 3 C. P. 639 ; 37 L. J. C. P. 321. See also Menzies v. Lightfoot, L. R. 
II Eq. 459. 
. In Hathesing v. Laing, L. R. 17 Eq. 92, 43 L. J. Ch. 233, a custom at Bombay, 



WIGGLESWORTH V. DALLISOX. §53 

making it obligator}' on ship captains to require the production of the mate's 
receipt before signing the bill of lading, was held bad by Bacon, V.-C, sed 
vide Schuster v. M'Kellar, 7 E. & B. 70-i. 

In several cases alleged customs of ports to take delivery on terms incon- 
sistent with charter-parties have been held inadmissible : The Alhambra, 6 P. 
D. 68; Hayton v. Irwin, 5 C. P. D. 130. 

In Suse V. Pompe, 8 C. B. N. S. 538, evidence Avas given of a usage in Lon- 
don that on non-payment by the acceptor of a bill of exchange drawn and 
indorsed in England, and payable abroad at a certain rate of exchange, the 
holder is entitled at his election to recover from the drawer either the re- 
exchange, or the amount which he paid for the bill. This evidence was held 
inadmissible, as contradicting the terms of the bill. 

In Willans v. Aye.rs, 3 App. Cas. 133, 47 L. J. P. C 1, grave doubts were 
expressed as to the validity of an alleged custom to allow a fixed percentage 
of 20 per cent, for exchange, re-exchange, and interest, in cases of certain 
dishonoured bills, but the point was not decided.] 

lu Roberts v. Barker, i C. & M. 808, the question was whether a covenant 
in a lease whereby the tenant bound himself not, on quitting the land, to sell 
or take away the manure, but to leave it to l)e expended by the succeeding 
tenant, excluded the custom of the country, bj^ which the outgoing tenant 
was bound to leave the manure, and was entitled to be paid for it. The court 
held that it did. " It was contended," said Lord Lyndhurst, delivering judg- 
ment, "that the stipulation to leave the manure, was not inconsistent with 
the tenant's being paid for what was so left, and that the custom to pay for 
the manure might be engrafted on the engagement to leave it. But if the 
parties meant to be governed by the custom in this respect, there was no 
necessity for any stipulation, as, by the custom, the tenant would be bound 
to leave the manure, and would be entitled to be paid for it. It was alto- 
gether idle, therefore, to provide for one part of that which was sufficiently 
provided for by the custom, unless it was intended to exclude the otlier part." 
Accord. Clarke v. Royston, 13 M. & "W. 752. See further, Reading v. Menham, 
1 M. & Rob. 23G; [Clarke v. Westroj^e, IS C. B. 7G5] ; Foster x. Mentor Life 
Assurance, 4 E. & B. -18. 

[As to the meaning of the rule prohibiting a " contradiction " of the instru- 
ment, see some valuable remarks in the judgment of the Queen's Bench, in 
Humfrey v. Dale, 7 E. & B. 2G6, cited ante, p 58G, and inr Lord Blackburn, in 
Thicker v. Linger, 8 App. Cas., at p. 511. In Fleet v. Murton, L. R. 7 Q. B. 
132, Blackburn, J., admitting his " difficulty in making out how the custom 
could make the broker, who was, in fact, not contracting as purchaser, liable 
in the terms of the count in that case {Humfrey v. Dale), which charged the 
defendant as a purchaser," suggests that the true view of the broker's 
liability under the custom is as a del credere agent, who guarantees a pur- 
chaser. See Humfrey v. Dale, discussed in Myers v. Sari, 30 L. J. Q. B. 9, 
and by Jessel, M. R., in Southwell v. Bowditch, 45 L. J.,C. P., at p. 3G1. 

In Hutchinson v. Tatham, L. R. 8 C. P. 482, in which evidence of usage 
was admitted to charge the defendant as principal on a charter-party, which 
he had signed " as agent for the merchants" only, Brett, J., says " the cases 
have lately gone very far as to the admissibility of evidence of custom. It 
is clear, however, that no such evidence can be admitted to contradict the 
plain terms of a document. If evidence were tendered to prove a custom 
that the defendants should be liable as principals under all circumstances, 
that would contradict the document ; but it has been decided that though you 



804 WIGGLESWORTH V. DALLISON. 

caunot contradict a -written document by evidence of custom, you may add a 
term not inconsistent with any term of the contract. What I apprehend, it 
is here attempted to add, is not that the defendants would be liable as princi- 
pals in the first instance, or under all circumstances, but that thou;>]i primil 
facie, and in most cases the broilers arc mere agents, yet if tliey fail to dis- 
close the names of the principals witliin a reasonable time, they, the agents, 
may on the happening of this contingency be principals. Tiiis is not, I 
think, on the whole, inconsistent with the contract, and, therefore, \vith some 
doubt, I think the evidence was admissible." 

In Robinson v. MoUetf, L. R. 5 C. V. ('AC>, 7 Id. 8-1, 7 H. L. 802, 41 L. J. C. P. 
65, 44 Id. 3G2, the plaintitt", a London tallow broker, sought to be indemnified 
by the defendant against the loss upon a contract for the purchase of tallow. 
The defendant had instructed the plaintift' to purchase fifty tons of tallow, 
as broker, for him. The plaintiff", acting for other 1)uyers as well as the de- 
fendant, bought 150 tons. He forwarded a bought note to the defendant 
for the fifty tons, and to the vendors a sold note for the 150 tons, ])ut made 
no contract for the purcliase of fifty tons on behalf of the defendant, on 
which the latter could come forward as principal, his intention being to 
appropriate fifty of the 150 tons to the defendant. Tlie defendant refused 
to take delivery of the fifty tons, and tlie market having fallen the plaintiflf 
was obliged, according to the usage of the trade, to pay tlie vendor tlie dif- 
ference of price : and this loss he sought to recover from the defendant. 
It was conceded that apart from usage there was no fulfilment of the de- 
fendant's order for fifty tons, and he could not be compelled to take the 
tallow or indemnify the plaintiff"; l)ut it was contended on behalf of the 
latter, that he was justified l)y the usage of the Lf)ndon tallow market, 
though unknown to the defendant, in fulliUing the order in this wa}'. In the 
Common Pleas, Bovill, C. J., and Montague Smitli, J., were in favour of the 
usage. Willes and Keating, JJ., were of a contrary opinion, on the ground 
that " the authority of the brokers was to buy as brokers for their principal, 
not to sell to him. If the sale had been consummated in the course insisted 
upon by the brokers, the principal would have bought them of his own 
brokers and no one else. A custom of trade may control the mode of per- 
formance of a contract, but cannot control its intrinsic character. No 
usage unknown to the principal can justify a broker in converting liimself 
into a principal seller." On appeal, the Court of Excheciuer Chamljer was 
equalh' divided, but the House of Lords were unanimous in holding the cus- 
tom to be invalid. See also Hamilton v. Yonny, 7 L. R. Jr. 289, where a 
custom of the Stock Exchange authorising brokers entitled to sell their 
customers' securities to take them for themselves at the price of the day, 
was held unreasonable, and not binding on the customer, and McDevitt v. 
Connolhj, l.S L. R. Ir. 207; also Barrow v. Dijster, 13 Q. B. D. G35, where a 
custom in the hide trade to make the selling broker lia))le on a contract if he 
did not disclose the name of his principal within a reasonable time, was held 
inconsistent with a term in that contract by which disputes were to be re- 
ferred to the arbitration of the selling broker. 

Terms not incidental to those expressed in the written contract cannot be 
annexed to it by oral evidence of a particular usage of trade. Thus a char- 
terer of a vessel for a voyage from here to China, the ship to be consigned 
to his agents there, free of commission, sought in vain upon the strength of 
a particular custom to add to the charter a term that the agents in China 
should be entitled to procure charters for the I'eturn voyage from Cliina and 



WIGGLESWORTH V. DALLISON. 865 

be paid commission on the amount of freight mentioned in sncli charters, 
Philips \. Briard, 1 H. & N. 211. And see Gibson v. Crick, 1 H. & C. 142; 
Allan V. Stindins, Id. 123. 

In Hutcheson v. Eaton, 13 Q. B. D. 861, the plaintiffs liad l>onglit goods of 
tlie defendants, Avho were Ijrolvers, bnt on tlie face of the contract sold as 
principals. The contract contained a clause providing tliat " any dispute 
arising on it was to be settled by arbitration." The plaintiffs alleged that the 
goods were of inferior quality, and the matter having been referi-ed to arbi- 
tration, the arbitrators decided in favour of the defendants, on the ground 
of the existence of a custom relieving them from liability if, as was the 
fact, they disclosed the names of their principals. It was held by Brett, 
M. R., and Bowen, L. J., diss. Fry, L. J., that in finding tlie existence of this 
custom the arl^itrators liad exceeded their jurisdiction, whether the evidence 
of the custom was admissible or not. In this case a jury negatived the 
existence of the custom. 

A custom or usage, to be binding, at any rate on those not acquainted with 
it, must be reasonable, and the question of reasonableness is for the court. 
See Co. Litt. 5G b., Lenchardt v. Cooper, 3 Bing. N. C. 99, 5 Id. 128; Tyson v. 
Smith, 9 A. & E. 421 ; Gibson v. Cricic, 1 H. & C. 142 ; Duncan v. Hill, L. R. 8 
Ex. 242, 42 L. J. Ex. 179; Merrii v. Nickalls, L. R. 7 Ch. 733, 7 H. L. 530, 41 
L. J. Ch. 707, 45 Id. 575; Down v. City of London Brewery Co., L. R. 8 Eq. 
155 ; Bradburn v. Foley, 3 C. P. D. 129, 47 L. J. C. P. 331 ; Pierson v. Scott, 9 
Ch. D. 198, 47 L. J. Ch. 705; Perry v. Barnett, 15 Q. B. D. 388, 54 L. J. Q. B. 
466. Wliere, however, in a bill of lading for goods shipped for London, it 
was provided that " average, if any, should be adjusted according to British 
custom," and a tire having broken out in the ship, Avater was poured in to 
extinguisli it, and injured the goods mentioned in the bill of lading; it was 
held tliat though by British law such loss was a general average loss, still as 
the practice of British average adjusters was not to allow it as such, the 
parties must be bound by that practice, "though it might be according to 
the best opinion vicious and unreasonable; " Stewart v. West India Steamship 
Co., L. R. 8 Q. B. 88, 362.] When evidence of usage is admitted, evidence 
may be given in reply, tending to show such usage to he unreasonable. Bot- 
tomley v. Forbes, 5 Bing. N. C. 128. 

As to tlie admissibility and effect of previous usage between the parties to 
a contract, see Bourne v. Gatliffe, 11 CI. & Fin. 45; Ford v. Yates, 2 M. & G. 
549; 2 Scott, N. R. 645, S. C. : IGumming v. Shand, 5 H. & N. 95, 29 L. J. 
Exch. 129. And as to the evidence of usage between other parties in the 
same trade to show the reasonableness of a contract, see Rowcliffe v. Leigh, 
6 Ch. D. 256, 46 L. J. Ch. 60. 

Parol evidence is inadmissilile to show that the parties to a written con- 
tract intended to exclude tlie incorporation into it of a customary incident. 
Fawkes v. Lamb, 31 L. J. Q. B. 98. 

As to what is sufficient evidence to establish a usage in a trade, see Mac- 
kenzie V. Dunlop, 3 Macq. H. of L. C. 22; Dent v. Nickalls, 22 W. R. 218; 
Abbott V. Bates, 43 L. J. C. P. 150. Ex parte Powell, 1 Ch. D. 501 ; 44 L. J. Ch. 
122, 311. In re Witt, 2 Ch. D. 489; Willans v. Ayers, 3 App. Cas. 133, 47 L. 
J. P. C. 1; Nelson v. Dahl, 12 Ch. D. 576; Wildy v. Stephenson, 1 Cab. & El. 
3; Knight v. Cotesworth, 1 Cab. & El. 51, per Mathew, J. In Fleet v. Murton, 
L. R. 7 Q. B. 126; 41 L. J. Q. B. 49, evidence of custom in the London colonial 
market was held admissible in proof of a similar custom in the Loudon fruit 
trade.] 



866 WIGGLESWORTH V. DALLISON. 

Lord Eklon, in Anderson v. Pitcher, 2 B. & P. 168, expressed an opinion, 
that the practice of admitting usage to explain conti'acts ought not to be 
extended. See also the expression of the court in Tntcman v. Loder, 11 A. & 
E. 589; and Johnstone v. I'sborne, Ibid. 549. [But the tendency of the courts 
appears now to be the other way. See Humfven v. Dale, 7 E. & B. 2GG, E. B. 
& E. 1004; Hutchinson v. Tatham, L. R. 8 C. P. 482, 42 L. J. C. P. 2(;0.] 

In Cross v. EgJin, 2 B. & Ad. 106, evidence had been offei'ed for th« purpose 
of showing that the plaintiffs, who had contracted for " 300 quarters {more or 
less) of foreign rye," could not, consistently with the usage of trade, be 
required to receive so large an access as 45 cjuarters over the 300 : the ques- 
tion as to the admissibility of the evidence ultimately proved immaterial; but 
Littledale, J., said that where words were of such (jcneral import, he should 
feel much dillicnlty in saying that evidence ought to be received to ascertain 
their meaning. See Leicis v. Marshall, 8 Scott, N. R. 477; 7 M. & G. 729, per 
curiam. Moore v. Cumphcll, 10 Exch. 32:?; Bourne v. Seymour, 16 C. B. 337. 
[Carter v. Crick, 4 H. & N. 412. It is not, however, necessary that the phrase 
should be itself " ambiguous," per Blackburn, J., Myers v. Sari, 30 L. J. Q. B. 
9; and see Alcock v. Leemc, 1 Cab. & El. 98.] 

It is right to obt^erve, that though in certain cases above pointed out evi- 
dence of usage is received to explain the terms used in a contract, yet, when 
the jury have decided on the meaning of those terms, it is not for them but 
for the court to put a construction upon the entire contract or document. 
Hutchinson v. Boivker, 5 M. & W. 535, and the judgment in Neilson v. Har- 
ford, 8 M. & W. 806. [Boices v. Shand, 2 App. Cas. 455, 462.] 



Usage and custom distinguished. — The decisions on the sub- 
ject of usages arc numerous, but are not always reconcilable. 
" Each case must be determined by itself, aided by such light 
as may be derived from the judgments in other cases when 
the facts are analagous." Steel Works v. Dewey, 37 Ohio St. 
242, 250. Though custom and usage are often used as con- 
vertible terms ; yet, strictly speaking, custom is that length of 
usage which has become law. A general custom is the com- 
mon law itself, or a part of it. Walls v. Bailey, 49 N. Y. 464, 
471. This distinction is also adverted to in Clark v. Baker, 11 
Met. 186,188; Morning Star V.Cunningham, 110 Ind. 328, 334; 
Jackson v. Railroad Co., 48 Me. 147 ; Wood v. Watson, 53 Id. 300. 
However, the terms are often used as synonymous. McjNIas- 
ters V. Penn. R. R., 69 Pa. St. 374 ; Carter v. Coal Co., 77 Id. 
286 ; U. S. V, Buchanan, 8 How. 83, 102, 103. 

" A usage, which is also called a custom, though the latter 
word has also another signification, is a long and uniform prac- 
tice, applied to habits, modes and courses of dealing. It relates 
to modes of action, and does not comprehend the mere adop- 
tion of certain peculiar doctrines or rules of law." Chapman, J., 



WIGGLESWOKTH V. DALLISON. 867 

in Dickinson v. Gay, 7 Allen 35 ; Macy v. Whaling Ins. Co., 
9 Met. 354, 362. At an early day courts expressed regret at 
the extension of this species of evidence ; notably Mr. Justice 
Story in Donnell v. Columbian Ins. Co., 2 Sum. 367, 377. See 
also Clark v. Baker, 11 Met. 186, 188 ; Susquehanna Fertilizer 
Co. V. White, 66 Md. 444, 455 ; Howe v. :\Iutual Ins. Co., 1 
Sandf. 137, 149 ; Beals v. Terry, 2 Id. 127, 130 ; Coxe v. Heisley, 
19 Pa. St. 243, 246. If usages contrary to the law " were to 
prevail they would be productive of misunderstanding, litiga- 
tion and frequent injustice, and would be deeply injurious to 
the interests of trade and commerce." Dickinson v. Gay, si<^ra, 

p. 37. 

Violation or interpretation of contract. — Usage will not be 
allowed to vary the terms of an express contract, embodying 
in clear and positive terms the intention of the parties. Hence 
it is not admissible to vary the terms of a policy of insurance. 
Grace v. American Ins. Co., 109 U. S. 278 ; Franklin Ins. Co. v. 
Sears, 21 Fed. Rep. 290 ; Castleman v. Southern Mut. Life Ins. 
Co., 14 Bush 197, 202 ; Sterling Organ Co. v. House, 25 W. 
Va. 64, 96. " There can be no doubt that, in the interpretation 
of written contracts, especially those of a mercantile character, 
evidence of usage is competent and frequently admitted, to 
explain the sense in which particular words or phrases are 
used, and to show that, as applied to the subject matter, the 
language of the instruments was understood by tho parties to 
have a special and peculiar meaning, differing from that which 
might ordinarily be attributed to it ; especially is this true in 
respect to policies of insurance. These contracts, like others 
of a mercantile nature, when first introduced as subjects of 
exposition in the courts of common law, contained many loose, 
undefined, and indeterminate words and phrases, which, if 
interpreted literally, and without reference to the course of 
trade and the customs of merchants, would have increased the 
risk assumed by the insurers or abridged the indemnity secured 
to the assured, contrary to the real intentions of the parties. 
But it is obvious that the necessity which gave rise to the 
liberal rules which have heretofore been adopted by courts of 
justice in admitting usages as explanatory of this class of cus- 
toms has in great measure ceased to exist. By a long course 
of judicial decisions, that which was originally indefinite and 
uncertain and difficult of application in the language .of the 



368 "SVIGGLES WORTH Y. DALLISON. 

instniraent has become clear, determinate, and well settled. 
The consequence is, that of late years, the tendency of courts 
of law has been to apply the rules regulating the competency 
of usages to explain and interpret the language of Avritten 
instruments with great strictness, and to guard with increased 
viofilance against the dano-er of allowinof extrinsic evidence to 
vary or control the words in which the parties have deliberately 
expressed their meaning. ^Nlany of the early authorities in 
England and in this country go much farther in the admission 
of testimony to prove usages for the purpose of aiding in the 
interpretation of written contracts than would be deemed to be 
reasonable or safe at the present day. We are inclined to 
doubt whether in any case it would now be deemed to be com- 
petent to offer evidence to sliow that a description of a voyage 
in a policy which is susceptible of a clear and definite exposi- 
tion in conformity to the interpretation of the words as estab- 
lished by adjudicated cases has another and different meaning 
by mercantile usage from that which has been so recognized 
and settled." Bigelow, C. J., in Seccomb v. Provincial Ins. Co., 
10 Allen 305, 313; Macomber v. Howard Ins. Co., 7 Gray 257; 
Odiorne v. New England Ins. Co., 101 INIass. 551 ; Burnham v. 
Boston Ins. Co., 139 Mass. 399, 404 ; Beer v. Ins. Co., 39 Ohio 
St. 109, Ins. Co. V. Wright, 1 Wall. 456; Partridge v. Ins. Co., 
15 Id. 373 , Sperry v. Springfield Ins. Co., 26 Fed. Kep. 234 ; 
First Nat. Bank v. Lancashire Ins. Co., 62 Tex. 461 ; Franklin 
Ins. Co. V. Humphrey, 65 Ind. 549 ; Park v. Ins. Co., 48 Ga. 601. 
So evidence is inadmissible to vary an}- contract susceptible 
of a plain meaning. Hartje v. Collins, 46 Pa. St. 268 ; Ware v. 
Hayward Rubber Co., 3 Allen 84 ; Potter v. Smith, 103 Mass. 
68; Davis v. Galloupe, 111 Id. 121 ; Brown v. Foster, 113 Id. 
136 : Stansbury v. Kephart, 54 la. 647 ; Smyth v. Ward, 46 Id. 
339, 345; Randolph v. Halden, 44 Id. 327, 329; Phillips v. 
Starr, 26 Id. 349 ; Cash v. Hinkle, 36 Id. 623 ; Stebbins v. 
Brown, 65 Barb. 274; Polhemus v. Heiman, 50 Cal. 438; 
Rafert v. Scroggins, 40 Id. 195 ; Atkinson v. Allen, 29 Id. 375 ; 
Exchange Bank v. Cookman, 1 W. Va. 69 ; Cooke v. England, 
27 Md. 14, 36 ; Groat v. Gile, 51 N. Y. 431 ; Collender v. Dins- 
more, 55 Id. 200, 208, 209 ; Whitmore v. Iron Co., 2 Allen 52 ; 
Schenck v. Griffin, 38 N. J. (Law) 462, 471 ; Stervard v. Scud- 
der, 4 Zab. 96; Bigelow v. Legg, 102 N. Y. 652; Union Trust 
Co. t;.= Whiton, 47 Id. 172, 180. 



WIGGLESWOKTH Y. DALLISON. 869 

To this rule that usage cannot vary the terms of a written 
contract, there is an exception in the case of language which 
is ambiguous, and used in different senses, or in the case of 
general words used in a new, peculiar, or technical sense; 
Brown v. Brown, 8 Met. 573, 576. It is sufficient in the case of 
a policy of insurance if the usage is known and generally acted 
on where the contracting parties reside ; Fulton Co. v. Milner, 
23 Ala. 420, 428. Cases where evidence of such usage has 
been admitted are : Brown v. Brown, supra ; Coit v. Commer- 
cial Ins. Co., 7 Johns. 385. See Johns. Cas. 289; Astor v. 
Union Ins. Co., 7 Cowen 202 ; Macy v. Whaling Ins. Co., 9 
Met. 354, 362; Winthrop v. Union Ins. Co., 2 Wash. C. C. 8 ; 
Hinten v. Loche, 5 Hill 437 ; AUegre v. Ins. Co., 6 Harr. & J. 
408 ; Allegre v. Maryland Ins. Co., 2 Gill & J. 137 ; Lawrence 
V. McGregor, 5 Ohio 309 ; Avery v. Stewart, 2 Conn. 69 ; see, 
also, Roberts v. Button, 14 Yt. 195, 203 ; see Eyre v. Marine 
Ins. Co., 5 W. & S. 116 ; S. C. 6 Whart. 247 ; Leach v. Beards- 
lee, 22 Conn. 404. It will be observed that most of the above 
are early cases, many of them involving the interpretation of 
policies of insurance. Upon this subject, therefore, the re- 
marks of Mr. Chief Justice Bigelow, in Seccomb v. Provincial 
Ins. Co., supra, that the necessity of "admitting usages as 
explanatory of this class of customs has in great measure 
ceased to exist," are pertinent. But even in earlier times there 
was often a disinclination to extend the doctrine. In Gordon 
V. Little, 8 S. & R. 533, Gibson, J., dissented from the opinion 
of the majority of the court, that evidence of usage was ad- 
missible to explain the meaning of " inevitable dangers of the 
river" in a bill of lading, and that river boatmen assume a 
responsibility different from that of common carriers. And 
the dissenting opinion is now law ; Coxe v. Heisley, 19 Pa. St. 
247. See Wetherill v. Neilson, Id. 453; Dean v. Swoop, 2 
Binn. 72 ; Sampson v. Gazzam, 6 Port. 124. In Sleght v. 
Rhinelander, 1 Johns. 192, evidence of the commercial mean- 
ing of " sea letter " w^as held inadmissible ; but see S. C. 2 Id. 
531. Other early cases which hold that usage is inadmissible 
to control the clear meaning of a contract are : Macomber v. 
Parker, 13 Pick. 176, 182, holding that " it would only prove 
how other parties had considered similar contracts " : Rice v. 
Codman, 1 Allen 377 ; Ripley v. Crooker, 47 Me. 370 ; Keener 
V. Bank of U. S., 2 Pa. St. 237 ; Cox v. Peterson, 30 Ala. 612 ; 



370 WIGGLESWOKTH Y. DALLISON. 

Insurance Co. v. Weight, 1 "Wall. 456 ; Barlow v. Lambert, 28 
Ala. 710 ; Werner v. Footman, 54 Ga. 128 ; Whitmore v. 
Steamboat, 20 ]\Io. 513 ; Chouteau v. Steamboat, Id. 519 ; 
Hursh V. North, 40 Pa. St. 243; The Sch. Reeside, 2 Sum. 
568; Turney v. Wilson, 7 Yerg. 340; Mc Arthur v. Sears, 21 
Wend. 194 ; Knox v. Rives, 14 Ala. 249, 259 ; Aymar v. Astor, 
6 Cow. 266 (Savage, C. J., dissenting) ; Rankin v. Am. Ins. Co., 
1 Hall. 619 ; Lewis v. Thatcher, 15 iNIass. 431 ; Homer v. Dorr, 
10 Id. 266 ; Barksdale v. Brown, 1 N. & McC. 517 (Cheeves, J., 
dissenting) ; Allan v. Dj-kers, 3 Hill 593 ; Otsego Bank v. 
Warren, 18 Barb. 296 ; Gross v. Criss, 3 Gratt. 262. Although 
the tendency is to reject evidence of usage in violation of the 
terms of express agreements, yet the later decisions often favor 
its admission in doubtful cases. In Burnham v. Boston Marine 
Ins. Co., 139 :^Lass. 399, it was stated by Mr. Justice Field, that 
" a written contract must be construed according to its terms 
in their ordinary signification, unless those terms, by usage in 
the business or between the parties, have a different meaning," 
and evidence was held inadmissible that, before the contract of 
insurance was executed, the parties agreed to insure " outfits " 
under the term " advances." But in iNlooney v. Howard Ins. 
Co., 138 Mass. 375, evidence was admitted in an action on a 
policy against loss by fire on a junk-dealer's stock of "rags" 
and " old metals " that, by a usage of the trade, those terms 
had acquired a broader signification than commonly belongs to 
them. As to the meaning of " fancy-goods and Yankee-notion 
store " in a policy of insurance, see Barnum v. Merchants' Fire 
Ins. Co., 97 N. Y. 188, 193. Evidence is inadmissible to change 
the legal effect of a deed, Tucker v. Smith, 68 Tex. 473, or to 
alter or modify the express provision of a contract for the sale 
of barley; Gibney v. Curtis, 61 Mo. 192; or that when one 
sells or transfers a promissory note, he is to " indorse," although 
not expressed in the terms of the contract ; Paine v. Smith, 33 
Minn. 495, 499, 500. Evidence has been admitted to show the 
meaning of the word " day " in case of the sale of a reaping 
machine with right to test it for a day ; Fuller v. Schroeder, 20 
Nebr. 63. Also to show that a boat which belongs to a vessel 
passes by sale, though not mentioned in the bill of sale ; The 
Merrimac, 29 Fed. Rep. 157. So evidence is admissible to 
show that certain terms, hardly intelligible in themselves, from 
not being in ordinary use or from being used in a peculiar or 



WIGGLESWOETH Y. DALLISON. 871 

teclmical way, have a recognized and well-known meaning in a 
special trade ; Page v. Cole, 120 Mass. 37. See Whitney v. 
Boardraan, 118 Id. 242 ; Swett v. Shumway, 102 Id. 365 ; Miller 
V. Stevens, 100 Id. 518 ; Eaton v. Smith, 20 Pick. 156 ; Daniels 
V. Hudson River Ins. Co., 12 Gush. 416 ; Silberman v. Clark 

96 N. Y. 522 ; Harris v. Rathbone, 2 Keyes 312 ; Bissell v 
Campbell, 54 N. Y. 353 ; Pilmer v. Bank, 16 la. 321 ; Hibler 
V. McCartney, 31 Ala. 501; Kimball v. Branner, 47 Mo. 398 
Wilbraham v. Stanley, 57 Cal. 476 ; Steyer v. Dwyer, 31 la. 20 
Busch V. Pollock, 41 Mich. 64 ; Bancroft v. Peters, 4 Id. 619 
It is said in the late case of Susquehanna Fertilizer Co. v 
White, 66 Md. 444, 454 (1886), that "it cannot be contro- 
verted, that the principle has been established by adjudication, 
that in commercial instruments and written contracts the usage 
of a particular trade, profession, or place may be proved for 
the purpose of ascertaining the meaning of certain words, the 
signification of which may be doubtful. It is not to be denied 
that if a word has acquired a peculiar meaning in a certain 
trade or business, either local or general, that meaning will be 
applied to it in the construction of written instruments affect- 
ing the transactions growing out of that trade or business ; 
but the fact that the word has acquired such meaning must be 
distinctly proved by the adduction of satisfactory evidence ; " 
Allegro's Adm'rs v. Md. Ins. Co., 2 Gill & J. 137 ; Taylor v. 
Briggs, 2 Carr. & P. 525 ; Murray v. Hatch, 6 Mass. 465 ; Coit 
V. Commercial Ins. Co., 7 Johns. 385. 

" And it is apparent that the tendency of the American 
decisions is to restrict, rather than to extend, the application of 
the principle first established by the sanction of judicial author- 
ity in England, and subsequently recognized and adopted in 
this country." See Linsley v. Lovely, 26 Vt. 123 ; Girard 
Life Ins. Co. v. Mutual Life Ins. Co., 86 Pa. St. 236; S. C. 

97 Id. 15. 

Another qualification of this rule arises where it is presumed 
that contracts are drawn in reference to the usages which apply 
to them. " Custom or usage is properly received to ascertain 
and explain the meaning and intention of the parties to a con- 
tract, whether written or parol, the meaning of which could 
not be ascertained without the aid of such extrinsic evidence, 
and such evidence is used on the theory that the parties knew 
of the existence of the custom or usage and contracted in refer- 



872 WIGGLESWOKTH V. DALLISON. 

ence to it "; Robinson v. U. S., 13 Wall. 363. Tliis principle is 
illustrated in a great variety of commercial cases ; Warren 
Bank v. Parker, 8 Gray 221; Cook v. Walsh, 9 Allen 350; 
Have V. Hardy, 106 Mass. 329 ; Scudder v. Bradbury, Id. 422 ; 
Howard v. Ins. Co., 109 Id. 384; Porter v. Hills, Id. 114, Id. 
106 ; Schnitzer v. Print Works, 114 Id. 123 ; Florence Machine 
Co. V. Daggett, 135 Id. 582, 583 ; Walls v. Bailey, 49 N. Y. 
464 ; Doaner v. Demhorn, 79 111. 131 ; Fitzsinnnons v. Academy, 
10 Mo. App. 595 ; Sontier v. Kellerman, 18 Mo. 509 ; Martin v. 
Hall, 26 Id. 386 ; Freight Co. v. Stannard, 44 Id. 71 ; Walker 
V. Barron, 6 Minn. 508 ; Hinton v. Coleman, 45 Wis. 465 ; Steel 
Works V. Dewey, 37 Ohio St. 242 ; Barker v. Borzone, 48 Md. 
474, 492 ; Lyon v. George, 44 Id. 295 ; Hendrick v. Robinson, 
56 Miss. 694; Dalton v. Daniels, 2 Hilton (N. Y.) 272; Mc- 
Manes v. Donohue, 7 Alb. L. J. 411 ; White v. Fuller, 4 Hun 
631; McPherson v. Cox, 86 N. Y. 472; Ragland v. Butler, 18 
Gratt. 323 ; Bryan v. Spurgin, 5 Sneed 681 ; Perkins v. Jordan, 
35 Me. 23 ; Folsam v. ^Marine Ins. Co., 38 Id. 414 ; Gleason v. 
Walsh, 43 Id. 397 ; Manett v. Brackett, 60 Id. 524 ; Ilursh v. 
Chorth, 40 Pa. St. 241 ; Carter v. Coal Co., 77 Id. 286 ; Cooper 
V. Berry, 21 Ga. 526 ; Loyd v. Wight, 20 Id. 574 ; Morton v. 
Morris, 31 Id. 378 ; Garmany v. Rust, 35 Id. 108 ; Mott v. Hall, 
41 Id. 117. " A person who deals in a particular market must 
be taken to deal according to the known, general and uniform 
custom or usage of that market ; and he who employs another 
to act for him, at a particular place or market, must be taken 
as intending that the business to be done will be done accord- 
ing to the usage and custom of that place or market, whether 
the principal in fact knew of the usage or custom or not;" 
Bailey v. Bensley, 87 111. 556, 559 ; Lyon v. Culberston, 83 Id. 38 ; 
United States Life Ins. Co. v. Advance Co., 80 Id. 549 ; Cothran 
V. Ellis, 107 Jd. 413, 419; Everingham v. Lord, 19 Bradw. 565, 
569. See Kraft v. Fancher, 44 Md. 204 ; Barse v. Morton, 43 
Hun 479 ; Bullock v. Finley, 28 Fed. Rep. 514 ; Neill v. Bil- 
lingsley, 49 Tex. 161 ; Frederick v. Railroad Co., 37 Mich. 342 ; 
Leach v. Beardslee, 22 Conn. 404 ; Grinman v. Walker, 9 Iowa 
426; Bissell v. Ryan, 23 111. 571. See the following early 
cases : Taylor v. Wells, 3 Watts 65 ; Harrington v. McShane, 
2 Id. 443; Kemp v. Coughtry, 11 Johns. 107; Galloway v. 
Hughes, 1 Bailey 553 ; Hosea v. McCrory, 12 Ala. 350, 353 ; 
U. S. V. McDaniel, 7 Pet. 3, 15 ; DeForest v. Fire Ins. Co., 1 



WIGGLESWORTH V- DALLISON. §73 

Hall 84 ; Ruan v. Gardner, 1 Wash. C. C. 146, 149 ; Townsend 
V. Whitby, 5 Harr. 55. 

In many of the above cases usage was admitted in evidence 
in the absence of express contracts and of circumstances defi- 
nitely fixing the legal rights of the parties. In many of them 
also, the usage was reasonably understood as forming a part of 
an express contract. Williams v. Gilman, 3 Greenl. 276 ; Van 
Ness V. Packard, 2 Pet. 138 ; Sewall v. Gibbs, 1 Hall 602 ; Con- 
ner V. Robinson, 2 Hill (S. C.) 354. See further Alabama R. R. 
V. Kidd, 29 Ala. 226 ; Dixon v. Dunham, 14 111. 322 ; Barker v. 
Brace, 3 Conn. 10, 13, Ware 322 ; Chase v. Washburn, 1 Ohio 
St. 252 ; U. S. V. Fillebrown, 7 Pet. 30, 50 ; Clark v. Baker, 11 
Met. 186 ; Bridgeport Bank v. Dyer, 19 Conn. 136 ; Barton v. 
McKelway, 2 Zab. 165, 175 ; Bank of Utica v. Smith, 18 Johns. 
280 ; Thomas v. O'Hara, 1 Mill's Const. (S. C.) 303, 308 ; Con- 
sequa v. Willings, 1 Pet. C. C. 172, 225 : Wilcox v. Wood, 9 
Wend. 349. 

There is also a well-established usagfe in relation to the con- 
tract of endorsement, the endorser being bound without per- 
sonal notice. It is the usage of j^articular banks, as to the time 
of demanding payment and giving notice, although differing 
from the time fixed by the general law merchant. Bank of 
Washington v. Triplett, 1 Pet. 25 ; Cookendorfer v. Preston, 4 
How. 317, 326 ; Adams v. Otterbach, 15 Id. 539 ; Renner v. Bank 
of Columbia, 9 Wheat. 582; Mills v. Bank of U. S., 11 Id. 431 ; 
Bank of Columbia v. Fitzhugh, 1 Harr. & G. 239 ; Jones v. 
Fales, 245; Lincoln Bank v. Page, 9 Id. 155; Blanchard v. Hil- 
liard, 11 Id. 85 ; Pierce v. Butler, 14 Id. 303 ; Dorchester Bank 
V. Xew England Bank, 1 Cush. 177, 188 ;. Kilgore v. Buckley, 14 
Conn. 363 ; Whitwell v. Johnson, 17 Mass. 549 ; City Bank v. 
Cutter, 3 Pick. 414; Chicopee Bank v. Eager, 9 Met. 583. For 
some cases, see Halsey v. Brown, 3 Day 346 ; Allen v. Mer- 
chants Bank, 22 Wend. 215; Van Santwood v. St. John, 6 Hill 
158 ; Cliven v. Screw Co., 23 How. 421. 

Contravention of rules of law. — It is laid down as a general 
proposition that usage is never admissible to vary or control a 
general principle or rule of law. A thorough discussion of this 
subject will be found in Barnard v. Kellogg, 10 Wall. 384 and 
Dickinson v. Gay, 7 Allen 29. The former was the case of a 
sale of wool, and it was held that the rule of caveat emptor 
applied, evidence being inadmissible of an implied warranty of 



874 WIGGLESWORTH V. DALLISON. 

the seller to the purchaser that wool in bales is not falsely or 
deeeitfull}' packed. It appears that the parties also did not 
know of the custom. Mr. Justice Davis said, " It is well settled 
that usage cannot be allowed to subvert the settled rules of 
law. Whatever tends to unsettle the law, and make it 
different in the different connnunities into Avhich the state 
is divided, leads to mischievous consequences, embarrasses 
trade, and is against public policy. If, therefore, on a given 
state of facts, the rights and liabilities of the parties to a 
contract are fixed by the general principles of common law, 
they cannot be changed by any local custom of the place 
where the contract was made. In this case the common law 
did not on the admitted facts imply a warranty of the good 
quality of the wool, and no custom in the sale of the article 
can be admitted to imply one " (p. 391). See also Irwin v. Wil- 
liar, 110 U. S. 499 ; Allen v. St. Louis Bank, 120 U. S. 20, 39. 

In jNIassachusetts the law is in harmony with the above deci- 
sion. Dickinson v. Gay, supra^ was the case of a sale of cases 
of satinets made by samples. There was in both samples and 
goods a latent defect not discoverable by inspection, or until 
the goods were printed, so that they were unmercliantable. 
The contention that there was a warranty implied from the 
sale that the goods were merchantable was not entertained by 
the court, but it was held that the custom that a warranty was 
impHed, when by law it was not implied, was contrary to the 
rule of the common law on the subject and therefore void. 
See Dodd v. Farlow, 11 Allen 426 ; Hedden v. Roberts, 134 
Mass. 38. 

Evidence is inadmissible to show a custom among brokers to 
charge a fee to both parties. Commonwealth v. Cooper, 130 
Mass. 285 ; Farnsworth v. Hemmer, 1 Allen 494 ; Raisin v. 
Clark, 41 Md. 158. So of the practice to charge fees not in 
law taxable. Celluloid Manfg. Co. v. Chandler, 27 Fed. Rep. 
9 ; Cutter v. Howe, 122 Mass. 541, 546, 549 ; see Common- 
wealth V. Perry, 139 Mass. 198, 201. 

In New York the law is in entire harmony with the above. 
Frith V. Barker, 2 Johns. 327 ; Woodruff v. Merchants' Bank, 
25 Wend. 673 ; Beirne v. Dord, 5 N. Y. 95 ; Simmons v. Law, 3 
Keys 219 ; West v. Kiersted, 15 W. D. 549 ; Babcock v. New 
York Railroad Co., 20 Id. 477 ; Wheeler v. Newbould, 16 N. Y. 
392 ; Higgins v. Moore, 34 Id. 417 ; Corn Exchange Bank v. 



WIGGLESWOETH V. DALLISON. 875 

Nassau Bank, 91 Id. 74 ; Case y. Perew, 34 Hun 130 ; Wright 
V. Boiler, 42 Hun 77, 80. In Pennsylvania the case of Snow- 
den V. Warder, 3 Rawle 101, was decided in contravention of 
the principle above-stated ; but the law in that state is now in 
harmony with that of Massachusetts and New York. Coxe v. 
Heisley, 19 Pa. St. 247; Wetherill v. Neilson, 20 Id. 453. 
Upon this subject see, also, Brown v. Jackson, 2 Wash. C. C. 24 ; 
U. S. V. Buchanan, 8 How. 83, 102 ; West v. Ball, 12 Ala. 340, 
347 ; Dewees v. Lockhart, 1 Tex. 535, 537 ; Rapp v. Palmer, 3 
Watts 178 ; Sweet v. Jenkins, 1 R. 1. 150 ; Beckwith v. Farnum, 
5 Id. 231 ; Bissell v. Ryan, 23 111. 571 ; Webster v. Granger, 78 
Id. 230; Gifford v. Mc Arthur, 55 Mich. 535; Middleton v. 
Heyward, 2 Nott & McC. 9, 3 Id. 121 ; Singleton v. Hilliard, 1 
Strob. 203, 216 ; Blakeslee v. Directors of the Poor, 102 Pa. St. 
274 ; Inglebright v. Hammond, 19 Ohio 337 ; Antomarchi v. 
Russell, 63 Ala. 356, 361 ; Garrett v. Trabuc, 82 Ala. 227, 233 ; 
Ober V. Carson, 62 Mo. 209. A custom that a party having a 
claim for money due upon a contract may not sue at law, is in- 
valid. Manson v. Grand Lodge, 30 Minn. 509 ; Thompson v. Ins. 
Co., 104 U. S. 252 ; Franklin Ins. Co. v. Humphrey, 65 Ind. 
54 ; Spears v. Ward, 48 Id. 541 ; Wallace v. Morgan, 28 Id. 
399; Bauer v. Samson Lodge, 102 Id. 262, 271. A custom which 
would excuse a corporation from acts of negligence is invalid. 
Chicago & Rock Island R. R. v. Harmon, 12 Bradw. 54, 61 ; 
Transportation Co. v. Storey, 50 Md. 4; Miller v. Pendleton, 8 
Gray 547. The custom of " ringing up " among brokers and 
commission merchants which has been held to be valid when not 
in contravention of the law is stated in Ward v. Vosburgh, 31 
Fed. Rep. 12 ; Irwin v. Williar, 110 U. S! 499. Usage is not 
admissible to control the rules of law as to the mode in which 
a loss under a policy shall be computed. Rowland v. India Ins. 
Co., 131 Mass. 239, 252; Eager z;. Atlas Ins. Co., 14 Pick. 141; 
Thwing V. Great Western Ins. Co., Ill Mass. 93, 109 ; Matheson 
V. Equitable Ins. Co., 118 Id. 209, 214 ; Seccomb v. Provincial 
Ins. Co., 10 Allen 305. But see Fulton Ins. Co. v. Milner, 23 
Ala. 420, 427. 

In this connection the following words from Dickinson v. 
Gay, 7 Allen 29, 36, 37 are important. In most cases where evi- 
dence of a usage is admitted, the reference is " to the methods 
of transacting business, and not to the mere adoption of a pecu- 
liar or local rule of law, contrary to the terms of the contract 



876 WIGGLESWORTH V. DALLISON. 

or to a general rule of law applicable to its construction. But 
even this distinction is nice and will not reconcile all cases ; 
and in many instances a usage has been sustained or rejected 
on the ground that it was or was not regarded by the court as 
reasonable ; and the question whether it was contradictory to 
a principle of law, oi- to the terms or legal operation of a con- 
tract, was not adverted to." 

Effect on statutes. — It is a general rule that usage cannot 
control or contradict a statute, but this is plainly a branch 
of the law just treated. AVhere there is explicit statutory 
regulation it prevails. Barnes v. Bakersfield, 57 Verm. 375; 
Dunham v. Dey, 13 Johns. 40; Dunham v. Gould, IG Id. 867; 
Albright v. County of Bedford, 106 Pa. St. 582; Hatcher v. 
Comer, 73 Ga. 418, 421 ; Osborne v. C. N. Nelson Co., 33 Minn. 
285; Ingham v. Lindeman, 37 Ohio St. 218; Perkins v. Frank- 
lin Bank, 21 Pick. 483; Rogers v. Allen, 47 N. H. 529; Mor- 
rison V. Bailey, 5 Ohio St. 13; O'Connor v. North Truckee Co., 
17 Nev. 245, 258; Rivers v. Burbauk, 13 Id. 398; Delaplane v. 
Crenshaw. The customary interpretation of a statute is some- 
times considered. Cameron v. Bank, 37 Mich. 240; Helmle v. 
Life Ins. Co., 61 Pa. St. 107 ; Governer v. Withers, 5 Gratt. 24. 
And it has been held that a practical construction given to a 
statute by custom is equivalent to a positive law. Commis- 
sioners V. Bemting, 111 Ind. 143. Generally a measure of 
weight established by statute cannot be affected by usage. 
Evans v. Meyers, 25 Pa. Stat. 114; Green v. MofPet, 22 Mo. 
529. But see Bonham v. Railroad Co., 13 S. C. 267. In Cali- 
fornia the statutes recognize customs in regard to the location, 
etc., of mining claims. Thompson v. Spray, 72 Cal. 528, 532 ; 
Colman v. Clements, 23 Id. 245 ; Morton v. Solambo Co., 26 Id. 
527, 534 ; Original Co. v. Winthrop Co., 60 Id. 631 ; Harvey 
V. Ryan, 42 Id. 626 ; Bradley v. Lee, 38 Id. 362. Usage is no 
defence to an indictment for crime. Bankers v. State, 4 Ind. 113. 

Requisites of valid usage. — If otherwise unobjectionable, 
usage is only admissible when certain, reasonable, and suffi- 
ciently ancient to afford a presumption that it is generally 
known. U. S. v. Buchanan, 8 How. 102; The Titania, 19 Fed. 
Rep. 101 ; Blakemore v. Hey man, 23 Id. 648 ; Byrne v. Massa- 
soit Packing Co., 137 Mass. 313 ; Phoenix Ins. Co. v. Frissell, 
142 Id. 513, 515; Sterling Organ Co. v. House, 25 W. Va. 
64, 96 ; Janney v. Boyd, 30 Minn. 819 ; Wilson v. Bauman, 80 



WIGGLESWORTH V. DALLISON. 377 

111. 493; Jones v. Wagner, 66 Pa. St. 449; Farmers' Bank v. 
Charaplain Co., 23 Yt. 186, 193; Mimn v. Bureh, 25 111. 356; 
Johnson V. Railroad, 46 N. H. 213 ; I. & G. R. R. Co. v. Has- 
sell, 62 Tex. 256. If the usage is not actually known to the 
contracting parties it must "be so well settled, so uniformly 
acted upon, and so long continued, as to raise a fair presump- 
tion that it was known to both contracting parties, and that 
they contracted in reference thereto." Walls v. Bailey, 49 
N. Y. 464, 474; Bank v. Erie Railroad Co., 72 N. Y. 188; 
Jacob V. Storey, 48 N. H. 100; Rindskoff v. Barrett, 14 la. 
101; Couch V. Watson Coal Co., 46 Id. 17; Rafert v. Scrog- 
gins, 40 Ind. 195; Lamb v. Klaus, 30 Wis. 94; Castlenian v. 
Life Ins. Co., 14 Bush 197; Lowe v. Lehman, 15 Ohio St. 179; 
Randall v. Smith, 63 Me. 105; Isaksson v. Williams, 26 Fed. 
Rep. 642, 645. A widespread and established use has at least 
a tendency to show knowledge. Croucher v. Wilder, 98 
Mass. 322 ; Howard v. Great Western Ins. Co., 109 Id. 384; 
Mooney v. Howard Ins. Co., 138 Id. 375. Parties engaged 
in a particular business, or persons accustomed to deal with 
them, may l)e presumed to have knowledge of the uniform 
course of such business. Hence its usages, in the absence of 
agreement to the contrary, may be supposed to have entered 
into the contract in relation to such business. Morning Star 
V. Cunningham, 110 Ind. 328, 335; Florence Machine Co. v. 
Daggett, 135 Mass. 582; Talcott v. Smith, 142 Id. 542, 544, 
Rogers v. Holden, Id. 196; Fitzsimmons v. Academy, 81 Mo. 
37 ; East Tennessee R. R. Co. v. Johnston, 75 Ala. 596 ; Carter 
V. Coal Co., 77 Pa. St. 286; Lyon v. George, 44Tnd. 301. Gen- 
erally in case of local customs actual knowledge must be 
brought home to a party in order to bind him. Scott v. Meier, 
56 Mich, 554 ; Flatt v. Osborne, 33 Minn. 98 ; Thompson v. 
Minneapolis R. R. Co., 35 Id. 428; Gregg v. Garverick, 33 
Ivans. 190, 193 ; Walsh v. Frank. 19 Ark. 270 ; Marlett v. Clary, 
20 Ark. 251; Collins v. New England Iron Co., 115 Mass. 23; 
Sawtelle v. Drew, 122 Id. 228 ; Stevens v. Reeves, 9 Pick. 
197 ; Hermann v. Niagara Fire Ins. Co., 100 X. Y. 411 ; Little 
V. Fargo, 43 Hun 233 ; Winsor v. Dillaway, 4 :\Iet. 221 ; Wal- 
lace V. Morgan, 23 Ind. 399. 

To be valid, a custom must be general, uniform, and certain. 
Singleton v. Hilliard, 1 Strob. 203, 216; Potts v. Aechternacht, 
93 Pa. St. 138; BisscU v. Ryan, 23 111. 566, 571; Barton v. 



878 WIGGLESWORTH V. DALLISON. 

McKehvav. 2 Zab. 1G5, 175 ; Pevey v. Scliulenbiirg, 33 ^Nlinn. 
45, 47. The requirement that a usage must be reasonable is 
imperative. " Perhajts there ean be no better evidence of the 
reasonableness of a custom than its antiquity and uninterrupted 
jjrevalence." Baxter v. Rodman, 3 Pick. 435, 4ol>. In the 
following cases usages were held unreasonable. Mulliner v. 
Bronson, 14 Bradw. 355 ; Haskins v. Warren, 115 Mass. 514 ; 
St. Andrew v. ]Mauchaug M'f'g Co., 134 Id. 42 ; Smith v. 
Wright, 1 Cai. 43 ; Reed v. Richardson, 98 Mass. 216 ; Whit- 
ney V. Essen, 99 Id. 308 ; Farnsworth v. Harmer, 1 Allen 494 ; 
Commonwealth v. Ctjoper, 130 ]\Iass. 285 ; Stoney v. Transpor- 
tation Co., 17 Hun 579 ; Wadley v. Davis, 63 Barb. 500 ; Ful- 
ler V. Robinson, 86 N. Y. 306; Lehman v. Marshall, 47 Ala. 
362 ; Bank v. Bank, 51 Md. 128 ; Mills v. Ashe, 16 Tex. 296 ; 
People V. Gold Run, &c., Co., 66 Cal. 138 ; Strong v. Railroad, 
15 iNIich. 206 ; Harrington v. Edwards, 17 Wis. 586 ; Lord v. 
Botsford, 26 Fed. Rep. 651 ; Anewalb v. Hummel, 109 Pa. St. 
271. See St. Louis R. R. Co. v. Southern Express Co., 117 
U. S. ; Liverpool Steam Co. v. Saitter, 17 Fed. Rep. 695 ; Liver- 
pool Steam Co. v. Saitter, 22 Id. 560 ; Harlan v. Ely, 68 Cal. 
522, 527. It has been held that a usage may be shown that 
gratuities or " scale moneys " are considered as part of the 
compensation of hostlers at hotels. Jonsson v. Thompson, 97 
X. Y. 642. Evidence of the usage of the shipper to bed the 
car is admissible to explain the intention of the parties in mak- 
ing a special agreement. East Tenn. R. R. Co. v. Johnston, 
75 Ala. 596, 604. See, also, Kinney v. South & North Railroad 
Co., 82 Id. 368 ; Stoudenmire v. Harper, 81 Id. 242. Evidence 
has been admitted of shippers as to the delivery of freight for 
shipment. ^Montgomery Railway Co. v. Kolb, 73 Ala. 396. 
Some late cases in which evidence of usage was admitted are 
Jones V. Hal}', 128 Mass. 585 ; Florence Machine Co. v. Daggett, 
135 Id. 582, 583, and cases cited; McCullough v. Hellweg, 
66 Md. 269, 275 ; Lansing v. Johnson, 18 Nebr. 174 ; Brown 
Chemical Co. v. Arkinson, 91 No. Car. 389; ^Year v. Sanger, 
91 .Mo. 348, 356 ; Scudder v. Ames, 89 Id. 496, 508 ; Tibby v. 
Missouri Pacific R. R. Co., 82 Id. 292; Smythe v. Parsons, 37 
Kan. 79 ; Newhall v. Langdon, 39 Ohio St. 87, 95 ; Steel Works 
V. Dewey, 37 Id. 242. It has been held in Illinois that it is 
well known to all dealing in whiskey warehouse receipts, that 
in purchasing them the warehouse and not the seller is looked 



WIGGLESWORTH Y. DALLISON. 879 

to as the responsible party. ^Nlida v. Geissman, 17 Bradw. 207, 
211. 

Evidence. — Usage is proved by witnesses testifying of its 
existence and uniformity from their knowledge obtained by 
observation of what is practised by themselves and others in 
the trade to which it relates. But their conclusions or infer- 
ences as to its effect, either upon the contract or the legal title 
or rights of parties, are not competent to show the character or 
force of the usage. Xeither is it competent for them to testify 
what is the understanding of others in regard to its effect. The 
effect is to be determined by the court, or by the jury under its 
direction. Haskins v. Warren, 115 Mass. 514, 535 ; Gallup 
V. Lederer, 1 Hun 282 ; Southwestern, &c., Co. v. Stanard, 
44 Mo. 71 ; Jewell v. Center & Co., 25 Ala. 498 ; Gary v. 
Meagher, 33 Id. 630 ; Texas Banking Co. v. Hutchins, 53 
Tex. 61. 

Custom cannot contradict a fact plainly proved by positive 
testimony. I. & G. X. R*y Co. v. Gilbert, 64 Tex. 536, 541. 
Evidence of a usage should never be admitted "until the party 
offering it has distinctly stated to the Court what he intends to 
prove.' Susquehanna Fertilizer Co. v. White, QG Md. 444, 457. 
Evidence of the uniform and general custom in like cases is 
sometimes competent, although not conclusive, upon the ques- 
tion whether a use is a reasonable one. Red River jNlills v. 
Wright, 30 j\Iinn. 249, 254. But the testimony of the same 
Avitness as to his conduct and the result of it in other cases is 
immaterial. Lane v. Boston & Albany Railroad Co:, 112 Mass. 
455 . Lewis v. Smith, 107 Id. 334 : City Council v. Montgomery, 
79 Ala. 233, 245. Usage is sometimes resorted to to rai:;e a 
primd facie presumption of fact in aid of collateral testimony. 
Knickerbocker Ins. Co. v. Pendleton, 115 U. S. 340. 

It has been held that the testimony must be ample to estab- 
lish a usage. Frith v. Barker, 2 Johns. 327. Some of th'j 
authorities hold that a usage cannot be established by the tes- 
timou}' of a single witness. Bissell v. Ryan, 23 111. 566, 571 ; 
Wood V. Ilickok, 2 Wend. 501 ; Holwerson v. Cole, 1 Spear.j 
(S. C.) 321. But the weight of the authority is the other way. 
Robinson v. U. S., 13 Wall. 363, 366; Marston v. Bank, 10 
Ala. 284 ; Partridge v. Forsyth, 29 Ala. 200. " Notwithstand- 
ing the dictum in Boardman v. Spooner, 13 Allen 353, 359, 
there can be no doubt at the present day that the circumstances 



880 WIGGLESWORTH V. DALLISON. 

that but one witness testifies to a usage is important only as 
bearing upon the credibility and satisfactoriness of his testi- 
mony in point of fact, and does not affect its competency or its 
sufficiency as matter of law." Jones v. Hoey, 128 Mass. 585 ; 
Wootters v. Kauffman, 67 Tex. 488, 493 ; Vail v. Rice, 5 N. Y. 
156. See Treadway v. Shannon, 7 Nev. 37. Testimony that 
one knew what had been the custom for several years is insuf- 
ficient. Smith V. Rice, 56 Ala. 417. Usages must be pleaded. 
Liggatt V. Withers, 5 Gratt. 24 ; Sullivan v. House, 2 Col. 
424 ; Lewis v. McClure, 8 Oreg. 273 ; Overman v. Bank, 31 
N. J. (Law) 563. 

In regard to the burden of proof the general rule of course 
is that he who sets up anything must prove it, although, as we 
have already seen, it is sufficient in most cases if it is shown 
that the usage was presumptively known to both parties. See 
Loveland v. Burke, 120 Mass. 139 ; Harris v. Turnbridge, 83 
N. Y. 92 ; Scott v. Whitney, 41 Wis. 504 ; Power v. Kane, 5 Id. 
265 ; Irish v. Railroad, 19 Minn. 376 : N. Y. Iron Mine v. Bank, 
44 Mich. 344; Bentley v. Daggett, 51 Wis. 224; Murray v. 
Spencer, 24 Md. 520; Fisher v. Sargent, 10 Cush. 250; Fletcher 
v. Seekell, 1 R. I. 267. Sometimes the violation of a usage is 
evidence of negligence. Sampson v. Hand, 6 Whart. 311, 324. 
See also Cook v. Champlain Co., 1 Den. 92, 102 ; Bradford v. 
Drew, 5 Met. 88 ; Maxwell v. Eason, 1 Stew. & P. 514 ; Cheno- 
with V. Dickenson, 8 B. Mon. 156; Barber v. Brace, 3 Conn. 9. 
But generally custom cannot be set up to show that negligence 
does or does not exist ; it must be determined by the facts of 
the case. G. C. & Santa Fe R'y Co. v. Evanrich, 61 Tex. 36. 
Established usage not to tranship is not rebutted by bill of lad- 
ing reserving right of transshipment. Schroeder v. Schroelzer, 
66 Cal. 294, 298. 

Court and the jury. — The question of the existence of a usage 
is for the jury ; of its validity, for the Court. Knickerbocker 
Life Ins. Co. v. Pendleton, 115 U. S. 339, 344, 345 ; Huston v. 
Peters, 1 Met. (Ky.) 558 ; Chicago Packing Co. v. Tilton, 87 
111. 547 ; Steele v. McTyer, 31 Ala. 667 ; Sullivan v. Jernigan, 
21 Flor. 264, 278 ; Elder v. Railroad Co., 13 S. C. 279. " There 
does not seem to be entire harmony in the decisions of other 
states as to whether the reasonableness of a custom is to be 
determined by the Court, or whether it is a question for the 
jury." Mulliner v. Bronson, 14 Bradw. 355, 364. 



WIGGLESWORTH V. DALLISON. gg^ 

Private usage. — The practice and usage of a J)arty has effect 
if expressly made part of the terms of the contract or if shovv'n 
to have been known to the other party and assented to by him. 
Hursh V. Xorth, 40 Pa. St. 241 ; Railroad Co. v. Nash, 43 Ind. 
423 ; Marshall v. Express Co., 7 Miss. 1 ; Hooper v. Railroad, 
27 Id. 81 ; Boody v. Stone, 24 Vt. G60 ; Stevens v. Smith, 21 
Id. 90 ; Bank y. Vallace, 13 S. C. 347 ; Silk Co. v. Fair, 112 
Mass. 354 ; Veiths v. Hagge, 8 la. 163 ; Railroad v. Murray, 72 
HI. 128. But generally mere personal modes of dealing cannot 
be set up as customs. Powell v. Thompson, 80 Ala. 51, 55 ; 
Burr V. Sickles, 17 Ark. 428, 434. The practice of a local office 
of a telegraph company cannot vary the terms of the contract 
under which the message is sent. Grinnell i'. W. U. Tel. Co., 
113 Mass. 299. See furthur Eureka Ins. Co. v. Robinson, 26 
Pa. St. 256, 265; Meighen v. Bank. 25 Id. 288; Burger v. 
Mutual Ins. Co., 71 Id. 422, Vaughan v. Railroad, 63 N. C. 
11; Loring v. Gurney, 5 Pick. 16 ; McDowell v. Ingersoll, 5 S. 
& R. 101 ; Knox v. Rives, 14 Ala. 249, 257. As to the author- 
ity of an assistant teller to certify checks, see Hill v. Nation 
Trust Co., 108 Pa. St. 1. 

Various points. — The custom in AViggiesworth v. Dallison is 
recognized in Pennsjdvania. Forsythe v. Price, 8 Watts 282, 
and cases cited: Denis v. Rossler, 1 P. & W. 224; Iddings v. 
Kagle, 2 W. & S. 22. Also in other states. Xellons v. Truax, 
6 Ohio St. 97 ; Van Dorens v. Everitt, 2 South 460 ; Dorsey v. 
Eagle, 7 Gill 321. As to wheat but not as to oats in Delaware, 
Templeman v. Biddle, 1 Harr. 522. As to Virginia, see Harris 
V. Carson, 7 Leigh 632, 639. As to usages and customs in 
Louisiana before acquisition, see Slidell v. Grandgian, 111 
U. S. 412. 

The usage, as has been previously stated, must be shown to 
be well established, uniform, general and notorious. The evi- 
dence therefore must show a series of similar transactions. A 
single instance will not suffice. Berkshire "Woolen Co. v. Proc- 
tor, 7 Cush. 422 ; Dean v. Swoop, 2 Binney 72 ; Cope v. Dodd, 
13 Penn. St. 37. In Indiana it is held requisite that the custom 
be shown to prevail all over the state regarded as a single 
locality. Harper v. Pound, 10 Ind. 32 ; Rafert v. Scroggins, 
40 Id. 195 ; Spears v. Ward, 48 Id. 541. And the testimony 
to prove the usage must be positive and certain. It is there- 
fore improper to admit e\T.dence that it was 7iot the custom to 



882 WIGGLESWOKTH V. DALLISON. 

make certain contracts at a certain place. Goodfellow v. Mee- 
o-an, 32 ]Mo. 280. And if the latest knowledge of the witness 
was acquired more than a year prior to the transaction in ques- 
tion, his testimony should be excluded. Hale v. Gibbs, 43 Iowa, 
380. Contracting parties are not bound b}^ local usages of other 
places unless they are referred to or made a part of the contract. 
Cobb r. Limerock, &c., Ins. Co., 58 Me. 326 ; Union Bank v. 
Union Ins. Co., Dudley (S. C.) 171. Nor will it be permitted 
to import b}' implication a local usage of one place into a con- 
tract made at another. Parkhurst r. Gloucester Ins. Co., 100 
Mass. 301 ; Cobb v. Limerock, &c., Ins. Co., 58 i\Ie. 326 ; Strong 
v. King, 35 111. 9 ; Nichols v. DeWolf, 1 R. I. 277. And if a 
usase which the courts would not enforce, such as a sale of a 
customer's stock without notice to him upon his failure to fur- 
nish sufficient margin at the stock exchange, be agreed to in 
'writing by the customer, it will be upheld as to him. Baker v. 
Drake^ee N. Y. 518. 



MOSS V. GALLIMORE AND ANOTHER. 



MICHAELIlf AS. — 20 GEO. 3. 

[REPOriTED DOrOL. 279.] 

A mortgagee^ after giving notice of the mortgage to a tenant in 
possession^ under a lease prior to the mortgage, is entitled to 
the rent in arrear at the time of the notice., as ivell as to tvhat 
accrues afterwards, and he may distrain for it after such 
notice. 

In a notice for the sale of a distress, it need not he mentioned 
when the rent fell due («). 

Ix an action of trespass, which was tried before JVares, Justice, 
at the last assizes for Staffordshire, on not guilty })leaded, a 
verdict was found for the plaintiff, subject to the opinion of 
the court, on a case reserved. The case stated as follows : One 
Harrison being seized in fee, on the first of January, 1772, de- 
mised certain premises to the plaintiff for twenty years, at the 
rent of 40/., payable yearly on the 12th of ^lay; and in May, 
1772, he mortgaged the same premises, in fee, to the defendant, 
Mrs. Gallimore. Moss continued in possession from the date of 
the lease, and paid his rent regularly to the mortgagor all but 
281. which was due on and before the month of November, 1778, 
when the mortgagor became a bankrupt, being at tlie time in- 
debted to the mortgagee in more than that sum for interest on 
the mortgage. On the 3rd of January, 1779, one Harwar went 
to the plaintiff, o"i behalf of Gallimore, showed him the mort- 
gage deed, and demanded from him the rent then remaining 
unpaid. This was the first demand that Gallimore made of the 

(ffl) A man is not bound by his [Phillips v. Whitscd, 2 E. & E. 804.] 
notice of distress, Croicther v. Rams- A notice of distress must be in writ- 
bottom, 7 T. R. 654, per Lord Kenyon, ing, Wilson v. Xi<jhtiH(falr-, 8 Q. B. 1034. 

883 



884 MOSS V. GALLIMOEE. 

rent. The plaintiff told Harwar that the assignees of Harrison 
had demanded it before, viz.^ on the 31st of December ; but, 
when Harwar said that Gallimore would distrain for it if it was 
not paid, he said he had some cattle to sell, and hoped she 
would not distrain till they Avere sold, when he would pay it. 
The plaintiff not having paid according to this undertaking, 
the other defendant, b}^ order of Gallimore, entered, and dis- 
trained for the rent, and thereupon gave a written notice of 
such distress to the plaintiff, in the following words : " Take 
notice, that I have this day seized and distrained, &c., by virtue 
of an authority, (tc., for the sum of 28/., being rent, and arrears 
of rent, due to the said Esther Gallimore, at Michaelmas last 
past, for, &c., and unless you pay the said rent, &c." He ac- 
cordingly sold cattle and goods to the amount of 22?. 2s. The 
question stated for the opinion of the court was, whether, 
under all the circumstances, the distress could be justified ? 

Wood for the plaintiff. Boiver for the defendants. 

Wood. — The plaintiff's case rests upon two grounds : 1st, 
The defendant, Gallimore, not being, at the time when the rent 
distrained for became due, in the actual seisin of the premises, 
nor in the receipt of the rents and profits, she had no right to 
distrain. 2nd. The notice was irregular, being for rent due at 
Michaelmas, whereas this rent was only due and payable in 
May. — 1. Before the statute of 4 Anne, c. 16 (a), a convey- 
ance by the reversioner was void without the attornment of the 
tenant (^), which was necessary to supply the place of livery of 
seisin. Since that statute I admit that attornment is no longer 
necessary to give effect to the deed; but it does not follow 
from thence, that a grantee has now a right to distrain, before 
he turns his title into actual possession. The mortgagor 
(according to a late case (c)), is tenant at will to the mort- 
gagee, and has a right to the rents and profits due before his 
will is determined. Nothing in this case can amount to a 
determination of the will, before the demand of the rent on 
behalf of the mortgagee, and the whole of that for which the 
distress was made became due before the demand. If the 
mortgagor himself had been in possession, he could not have 
been turned out by force : the mortgagee must have brought 
an ejectment. . The assignees had called upon the plaintiff for 

(a) Sect. 9. (c) Keech v. Hall, M. 19, Geo. 3, 

(6) Co. Litt. 309, a. b. ante, p. 546. 



MOSS Y. GALLIMOEE. 885 

the rent as well as Gallimore, and how could he take upon him- 
self to decide between them? The mortgagee should have 
brought an ejectment, when any objection there might have 
been to the title could have been discussed. It does not appear 
from the case, that the interest in arrear had ever been de- 
manded of the mortgagor, and there is a tacit agreement that 
the mortgagor shall continue in possession and receive the rents 
till default is made in paying the interest. 2. The notice is 
h-regular, and, on that account, the distress cannot be justified. 
By the common law, the goods could not be sold. The power 
to sell was introduced by the statute of William and Mary («) ; 
but it is thereby required that notice shall be given thereof, 
" with the cause of taking," &c. These requisites are in the 
nature of conditions precedent, and, if not complied with, the 
proceedings are illegal. It is true, this u-regularity, since the 
statute of 11 Geo. 2 (?»), does not make the defendants tres- 
passers ah initio^ but the action of trespass is still left by that 
statute, for special damages incurred in consequence of the 
irregularity (jc). 

Lord Mansfield observed, that the defendant was precluded 
by the case from going for special damages arising from any 
supposed irregularity in the sale, no such special damages bemg 
found, and the question stated being only, whether the distress 
was justifiable ; and BuUe)\ Justice, said that it was not neces- 
sary, by the statute of William and Mary, to set forth in the 
notice at what time the rent became due. 

Boiver. — If the law of attornment remained still the same as 
it was at common law, the conversation stated to have taken 
place between the plaintiff and Harwar would amount to an 
attornment ; and, when there has been an attornment, its opera- 
tion is not restrained to the time when it was made : it relates 
back to the time of the conveyance, and makes part of the same 
title ; like a feoffment and livery, or a fine or recovery and the 
deed declaring the uses ; Long v. Hemming (f?). Now, how- 
ever, any doubts there might have been on this subject are 
entirely removed by the statute of Queen Anne, the words of 
which are very explicit, viz. (g) : " that all grants or conveyances 

(a) 2 ^V. & M. Sess. 1, c. 5, s. 2. (cf) 1 Anders. 256. Vide S. C. Cro;. 

(6) Cap. 19, s. 19. El. 209. 
(c) See on this point, ante [in note (e) 4 Anne, cap. 16, s. 9. 

to Six Carpenters' case]. 



886 MOSS V. GALLIMORE. 

of any manors, rents, reversions, or remainders, shall be as good 
and effectual to all intents and purposes, without any attorn- 
ment of the tenants, as if their attornment had been had and 
made." The proviso in the same statute (a), which says, that 
the tenant shall not be prejudiced by the payment of any rent 
to the grantor before he shall have received notice of the 
grant, shows, that it was meant that all the rent which had not 
been paid at the time of the notice should be payable to the 
grantee. The mortgager is called a tenant at will to the mort- 
gagee. That may be true in some respects, but it is more 
correct to consider him as acting for the mortgagee in the re- 
ceipt of the rents as a trustee, subject to have his authority for 
that purpose put an end to, at whatever time the mortgagee 
pleases. It is said, the proper method for the mortgagee to 
have folloAved would have been to have brought an ejectment, 
but it is only a very late practice to allow a mortgagee to get 
into the possession of the rents, by an ejectment against a ten- 
ant under a lease prior to the mortgage (6). The interest, it is 
said, is not stated to have been demanded : but the case states, 
that, at the time of the notice and distress, more than the 
amount of the rent in arrear was due. It is said the tenant 
could not decide between the mortgagor (or, which is the same 
thing, his assignees) and the mortgagee ; but that is no excuse. 
He would have had the same difficulty in the case of an abso- 
lute sale ; a mortgage in fee being, at law, a complete sale, and 
only differing from it in respect of the equity of redemption, 
which is a mere equitable interest. 

The Court told him it was unnecessary for him to say any- 
thing on the other point. 

Lord Mansfield. — I think this case, in its consequences, very 
material. It is the case of lands let for years and afterwards 
mortgaged, and considerable doubts, in such cases, have arisen 
in respect to the mortgagee when the tenant colludes with the 
mortgagor ; for the lease protecting the possession of such a 
tenant, he cannot be turned out by the mortgagee. Of late 
years the courts have gone so far as to 'permit the mortgagee to 
•proceed hy ejectment., if he has given notice to the tenant that he 
does not ititend to disturb his possession., but only requires the rent 

(a) Sect. 10. no longer exists. See note to Keech 

(6) White V. Haiokins, M. 19 Geo. v. Hall, ante. 
3. This practice was anomalous, and 



MOSS V. GALLIMOEE. 387 

to he paid to him, and not the mortgagor (a). This, however, is 
entangled with difficulties. The question here is, whether the' 
mortgagee was or was not entitled to the rent in arrear. Be- 
fore the statute of Queen Anne attornment was necessary, on 
the principle of notice to the tenant ; but, when it took place, 
it certainly had relation back to the grant, and, like other 
relative acts, they were to be taken together. Thus, livery of 
seisin, though made afterwards, relates to the time of the feoff- 
ment. Since the statute, the conveyance is complete without 
attornment ; J)%it there is a provision, that the teiiant shall not be 
prejudiced for any act done hy him as holding under the grantor^ 
till he has had notice of the deed. Therefore, the payment of 
rent before s\ich tiotice is good. With this protection, he is to be 
considered, by force of the statute, as having attorned at the 
time of the execution of the grant ; and, here, the tenant has 
suffered no injury. No rent has been demanded which was 
paid before he knew of the mortgage. He had the rent in 
question still in his hands, and was bound to pay it according 
to the legal title. But having notice from the assignees, and 
also from the mortgagee, he dares to prefer the former, or 
keeps both parties at arm's length. In the case of executions, 
it is uniformly held, that if you act after notice, you do it at 
your peril. He did not offer to pay one of the parties on re- 
ceiving an indemnity. As between the assignees and the rnort- 
gagee, let us see Avho is entitled to the rent. The assignees 
stand exactly in the place of the bankrupt. Now, a mortgagor 
is not properly tenant at will to the mortgagee, for he is not to 
pay him rent. He is only quodam modo. Nothing is more apt 
to confound than a simile. When the court or counsel call a 
mortgagor a tenant at will, it is barely a comparison. He is 
like a tenant at will. The mortgagor receives the rent by a 
tacit agreement with the mortgagee, but the mortgagee may 
put an end to this agreement when he pleases. He has the 
legal title to the rent, and the tenant in the present case cannot 
be damnified, for the mortgagor can never oblige him to pay 
over again the rent which has been levied by this distress. I 
therefore think the distress well justified ; and I consider 
this remedy as a very proper additional advantage to mort- 
gagees, to prevent collusion between the tenant and the mort- 
gagor. 

(a) But this is at present never permitted. See ante, note to Keech v. Hall. 



g88 MOSS Y. GALLIMOEE. 

Ashurst, Justice. — The statute of Queen Anne has rendered 
attornment unnecessary in all cases, and the only question here 
arises upon the circumstance of the notice of the mortgage not 
having been given till after the rent distrained for became due. 
Where the mortgagor is himself the occupier of the estate, he 
may be considered as tenant at will ; but he cannot be so con- 
sidered if there is an under-tenant ; for there can be no such 
thing as an under-tenant to a tenant at will. The demise itself 
would amount to a determination of the ivill. There being in 
this case a tenant in possession, the mortgagor is, therefore, 
only a receiver of the rent for the mortgagee, who may, at any 
time, countermand the implied authority, by giving notice not 
to pay the rent to him any longer. 

Buller, Justice. — There is in this case a plea of the general 
issue, which is given by statute («), but if the justification ap- 
peared upon the record in a special plea, the distress must be 
held to be legal. Before the act of Queen Anne, in a special 
justification, attornment must have been pleaded ; but since 
that statute it is never averred in a declaration in covenant, 
nor pleaded in an avowry. In the case of Keech v. Hall^ re- 
ferred to by Mr. Wood, the court did not consider the mort- 
gagor as tenant at will to all purposes. If my memory do not 
fail me, my Lord distinguished mortgagors from tenants at 
will in a very material circumstance, namely, that a mortgagor 
would not be entitled to emblements. Expressions used in par- 
ticular cases are to be understood with relation to the subject- 
matter then before the court. 

The postea to be delivered to the defendants. 



Moss V. Gallimore is the leading case upon a point which seems so clear in 
principle that, were it not for its very general importance, it would be per- 
haps a matter of some surprise that anj' case should have been requisite to 
establish it. The mortgagor having conveA'ed his estate to the mortgagee, 
the tenants of the former become of course the tenants of the latter; the 
necessity of their attornment being done away with by the statute of Anne, 
which, though it provides that they shall not be prejudiced by the abolition 
of attornment, and consequently renders valid any payments they may have 
made to the mortgagor without notice of the mortgage [provided that such 
payments were made in respect of rent which was due at the time of pay- 
ment or became due before notice of the mortgage : Be Nicholls v. Saunders, 

(a) 11 Geo. 2, c. 19, s. 21. 



MOSS V. GALLIMOEE. 889 

L. R. 5 C. P. 589, 39 L. J. C. P. 297; Cook v. Guerra, L. R. 7 C. P. 132, 41 L. 
J. C. P. 89], nevertheless places the mortgagee in the situation of tlie mort- 
gagor, immediately upon the execution of the mortgage-deed, subject only 
to that proviso in favour of the tenants ; and enables him by giving notice to 
them of the conveyance, to place himself to every intent in the same situa- 
tion towards them as the mortgagor previously occupied : Raivson v. Eicke, 
7 A. & E. 451 ; Burrowes v. Gradin, 1 Dowl. & L. 213. 

Such being the situation of the tenant with respect to tlie mortgagee, it 
would of course be unfair that he should not be proportiouably exonerated 
from his liabilities to the mortgagor; therefore, whea'e a lessor, after the 
execution of the lease, mortgaged the premises, it was held that he could not 
afterwards maintain ejectment for a forfeiture : Doe dem. Marriott v. Ed- 
wards, 5 B. & Ad. 1065. [As to what is notice of the mortgage, see Cook 
V. Guerra, ubi. sup.'] 

In Trent v. Hunt, 9 Exch. 14, it is said to have been decided by the Court 
of Exchequer, that if a lessor liaving mortgaged his reversion is permitted 
by the mortgagee to continue in the receipt of the rent incident to that rever- 
sion, he, during such permission, is presumptione juris autliorised, if it should 
become necessary, to realise the rent by distress, and to distrain for it in the 
mortgagee's name as his bailiff. [In Snell v. Finch, 13 C. B. N. S. 651, Trent 
V. Hicnt was acted upon, the court suggesting that the implied authority may 
be limited to a distress on a lawful occasion. See also the judgments of 
Williams and Willes, JJ., in The Dean, &c,, of Christchurch v. The Duke of 
Buckingham, 17 C. B. N. S. 391, 33 L. J. C. P. 322.] 

Such being tlie situation of a tenant who comes in under the mortgagor 
before the mortgage, let us now examine a subject which seems to involve 
more difficulty, namsh% that of a tenant who has entered under the mortgagor 
subsequently to the mortgage. 

[And first it must be observed, that as regards mortgages made since the 
1st January, 1882, the Convej^ancing Act, 1881, 44 & 45 Vict. c. 41, has intro- 
duced a material difference, for by that Act, unless otherwise provided by 
such mortgage, a statutory power of leasing is given to a mortgagor or mort- 
gagee while respectively in possession. In this note there will be considered 
the situation of a mortgagor's tenant under a tenancy posterior to the mort- 
gage, 

1st. Where the lease is not made under the statutory power. 

2nd. Where it is so made. 

And, first, at common law,] it was once alleged that though a tenant who 
had entered previous to the mortgage became the tenant of the mortgagee 
after the mortgage, and might, if any proceedings were afterwai'ds instituted 
against him by the mortgagor, show that, although that person was once his 
landlord, he had now conveyed away his estate in the premises ; (according 
to the ordinary rule of law, that a tenant, though he cannot dispute the title 
of the landlord under whom he entered, may confess and avoid it by showing 
that it has now determined : see Doe dem. Marriott v. Edwards, above cited ;) 
still that a tenant who had entered since the mortgage was differently situated, 
for that he was estopped from disputing the title of the moi'tgagor, and 
could not confess and avoid it, inasmuch as it had never really existed during 
the period of his possession ; and this idea derived a good deal of counte- 
nance from the decision of the Court of Common Pleas, Alchorne v. Gomme, 
2 Bing. 54. 

However, the subject was afterwards fully discussed in Pope v. Biggs, 9 B. 



890 MOSS V. GALLIMORE. 

& C. 245, [and in that case, followed in Waddilove v. Barnett, 4 Dowl. 348, it 
was held that a] " mortgagee, by giving notice of the mortgage to the tenant, 
may thereby make him his tenant, and entitle himself to receive the rents." " The 
mortgagor," said Parke, J., " may be considered as acting in the nature of a 
bailiff or agent for the mortgagee. His receipt of rent will, therefore, be good 
until the mortgagee interferes, and he may recover on the contracts he has 
himself entered into in his own name witli the tenants. But where the mort- 
gagee determines the implied authority by a notice to the tenants to pay their 
rents to him, the mortgagor can no longer receive or recover any unpaid rent, 
whether already due or no." \_Accord, Vallance v. Savage, 7 Bing. 595 (a 
case of trustee and cestui que trust) •,^ Megginson v. Harper, i Tyrwh. 100; 
Burrotces v. Gradin, 1 Dowl. & L. 213, Wightman, J. 

The doctrine thus promulgated in Pope v. Biggs was, however, shaken by 
Partington v. Woodcock, 6 A. & E. 690, and Rogers v. Humphreys, A. & E. 313. 
And at length, in Evans v. Elliott, 9 A. & E. 342, it was expressly decided by 
the Court of Queen's Bench [on a question whether the mortgagee had a 
right to distrain,] that the mortgagee cannot by the mere fact of giving the mort- 
gagor's tenant a notice, cause him to hold of himself the mortgagee, and that 
even a subsequent attornment by the tenant to the mortgagee will not have the 
effect of setting up his title as landlord by relation. 

The result of this decision and of that of the Court of C. P. in Brown v. 
Storey, 1 Scott, N. C. 91 ; 1 M. & G. 117, seems to be that [at common law] 
in order to create a tenancy between the mortgagee and the tenant let into 
possession by the mortgagor, there must be some evidence whence it may be 
inferred that such relation has been raised by mutual agreement, and that in 
such case the terms of the tenancy are to be ascertained (as in an ordinary 
case) from the same evidence which proves its existence, but that it does not 
lie in the power of the mortgagee by a mere notice to cause the tenant in 
possession to hold under him on the same terms on which he held under the 
mortgagor — or indeed upon any terms at all without his own consent. And 
that where the tenant does consent to hold under the mortgagee, a new ten- 
ancy is created, not a continuation of the old one between him and the mort- 
gagor. [See the judgment in Waddilove v. Burnett, 2 Bing. N. C. 538.] In 
Brown v. Storey, indeed, the Court of Common Pleas expressed an opinion 
that, if the mortgagor's tenant, after receiving notice from the mortgagee to 
pay rent to him, continued in possession, it might fairly be inferred that he 
assented to continue as tenant to the mortgagee upon the old terms. 

In Burrotces v. Gradin, I Dowl. & L. 213 (which may be considered a mid- 
dle case), Wightman, J., held that an agreement [made after the mortgage] 
between the mortgagor and a tenant from year to year, whose tenancy com- 
menced before the mortgage, for payment of an additional annual sum as 
rent, in consideration of improvements made by the mortgagor, had not the 
effect of so changing the situation of the parties, that the tenant could 
be considered as no longer holding of the mortgagee ; and further, that the 
mortgagee might adopt the dealing of the mortgagor as his agent, and (after 
notice of the mortgage) recover not merely the amount of rent originally 
payable, but the additional sum also, which, in consequence of the improve- 
ment of the land, the tenant agreed to pay; a remarkable decision, so far as 
relates to the additional sum agreed to be paid, because it appears from 
Donellan v. Read, 3 B. & Ad. 899, and Lambert v. Korris, 2 M. & W. 334, that 
that sum was not rent properly so called, but a sum in gross, for which an 
assignee of the reversion could not sue, nor could an assignee of the terra be 



MOSS Y. GALLIMOEE. 891 

sued. The reasoning of Wightman, J., though expressly limited to the 
peculiai" circumstances of the case, and especially founded on that of the 
tenancy having existed at the time of the mortgage, tends in some degree 
to confirm the conclusions drawn from Pope v. Biggs. 

It should seem that the cases on this subject might be reconciled to ordi- 
nary principles, without straining after any peculiar rule applicable to the case 
of mortgagor and mortgagee, by observing that a tenant of the mortgagor, 
whose tenancy has commenced since the mortgage, may [at common law] in 
case of an eviction by the mortgagee, either actual or constructive, (for 
instance, an attornment to him under threat of eviction, see Doe d. Higgin- 
botham v. Barton, 11 A. & E. 314; Mayor of Poole v. Whitt, 15 M. & W. 571; 
[and the judgments in Delaney v. Fox, 2 C. B. N. S. 768, and Carpenter v. 
Parker, 3 C. B. N. S. 237, 27 L. J. C. P. 78],) dispute the mortgagor's title to 
either the land or the rent, (which is no more than any tenant may do upon 
an eviction by title paramount;) and further, that he may, although there 
have been no eviction, defend an action for rent by proof of a payment under 
constraint, in discharge of the mortgagee's claim, Johnson v. Jones, 9 A. & E. 
809, (which right is analogous to that of an ordinary tenant in respect of 
payments on account of rent-charges, and other claims issuing out of the 
land, of which examples are cited in the note to Lampleigh v. Braithimite, 
ante;) so that [such] a tenant who has come in under the mortgagor after 
the mortgage, and has neither paid the rent to the mortgagee, nor been 
evicted by him either actually or constructively before the day of payment, 
caunot defend an action by the mortgagor for that rent : Mlieeler v. Brans- 
combe, 5 Q. B. 373. 

As the mortgagor ceases to be entitled to the rents upon the mortgagee's 
giving the tenant notice, [and the tenant's paying them to him,] it follows 
that the mortgagor cannot afterwards maintain any action for use and occu- 
pation against him, either for rent which accrued due after the notice, or for 
rent which accrued due before the notice, but was unpaid at the time when 
the notice was given. In the former case the defence amounts to a denial 
of the contract alleged, which avers the defendant to have used and occupied 
the land by the permission of the plaintiff, the mortgagor. But in the latter 
case, viz., where the rent became due before notice, but was unpaid at the 
time of notice, the tenant confesses that the right of action once existed, but 
avoids it bj- matter ex post facto, viz., by the subsequent notice from the 
mortgagee, Waddilove v. Barnett, i Dowl. P. C. 347 ; 2 Bing. N. C. 538. 

[It appears to be now settled that at common law the mere notice without 
payment or eviction is not a defence to an action by the mortgagor against 
the tenant, either for reut due before ( Ullton v. Dunn, 17 Q. B. 294 ; Hickman 
V. Machin, 4 H. & N. 716), or after the notice (Hickman v. Machin). 

Secondly, there remains to be considered the situation, relatively to the 
mortgagee, of the mortgagor's tenant Avhere the lease has been made by 
the mortgagor under the statutory power given by s. IS of the Conveyancing 
Act, 1881. It is by that section enacted, with reference to mortgages made 
after 1 Jan. 1882, that " a mortgagor of land while in possession shall, as 
against every incumbrancer, have, by virtue of this Act, power to make from 
time to time any such lease of the mortgaged land, or any part thereof, as is 
in that section described and authorised." The remainder of the section will 
be found set out in the note to Keech v. Hall, ante, p. 549. Further, s. 10 of 
the same Act is as follows: — "Rent reserved by a lease and the benefit 
of every covenant or provision therein contained having reference to the 



892 MOSS V. GALLIMOKE. 

subject-matter thereof, and on the lessee's part to be observed or performed, 
and every condition of re-entry and otlier condition therein contained, sliall 
be annexed and incident to, and sliall go -vvitli the I'eversionary estate in the 
hind, or in any part thereof, ininiediately expectant on the term granted by 
the lease, notwitlistanding severance of that reversionary estate, and shall 
be capable of being recovered, received, enforced, and taken advantage of by 
the person from time to time entitled, subject to the term, to the income 
of the whole or any part, as the case may require, of the land leased." Sect. 
1 1 provides that the obligation of the lessor's covenants shall lilcewise run 
with the reversion so far as the lessor has power to bind the person entitled 
to the reversion. 

These sections apply only to leases made after the commencement of the 
Act in the case of leases of the kind now under consideration. The object 
aimed at by the aljove sections would seem to be to provide tliat wlulo on the 
one liand a lease by a mortgagor in possession is to be valid against and 
binding on the mortgagee, on the other hand, the mortgagee, at any rate on 
giving notice or going into possession, is at once to have under such lease 
every right which he would have had if he himself had been the lessor. The 
wording of the sections, however, is someAvhat obscure, and it would be 
premature to express an opinion whether their combined effect is as above 
suggested. 

It should be observed that the power given by s. 18 may be excluded, 
modified, or enlarged by the express terms of the instrument itself. 

Tlie Judicature Act, 1873, provides, s. 25, sub-s. 5, that "a mortgagor 
entitled for the time being to the possession or receipt of the rents and 
profits of any land as to which no notice of his intention to take possession 
or to enter into the receipt of the rents and profits thereof shall be given by 
the mortgagee, may sue for such possession or for the recovery of such rents 
or profits, or to prevent or recover damages in respect of any trespass or 
other wrong relative thei'cto in his own name only, unless the cause of action 
arises upon a lease or other contract made by him jointly witli any other 
person."] 

I] will conclude this note by taking notice of a case which sometimes 
occurs; viz., that of a lease purporting to be by mortgagor and mortgagee 
jointly : such an instrument operates as a lease by the mortgagee, with a con- 
firmation by the mortgagor, until the estate of the former has been deter- 
mined by paying off the mortgage-money, and then it becomes the lease of 
the mortgagor, and the confirmation of the mortgagee, and it follow[ed] 
that, if [before the Common Law Procedure Act, 1852] ejectment was 
brought against the tenant during the mortgagee's estate, the demise must 
have been laid in the name of the mortgagee; if afterwards, in that of the 
mortgagor ; but a joint demise laid in the declai'ation would not have been 
improper: Doe dem. Barney v. Adams, 2 Tyrwh. 289. See Doe dem. Barker 
V. Goldsmith, Ibid. 710. 

[A right of entry reserved to the mortgagor only in a lease by mortgagor 
and mortgagee was (before the Conveyancing Act, 1881) held not to be avail- 
able to the plaintiffs in ejectment by the mortgagor and mortgagee : Saunders 
V. Meri-yweather, 3 H. & C. 902, 35 L. J. Exch. 115. The mortgagee could not 
re-enter, because no right of rer-entry was reserved to him ; the mortgagor 
could not, because he had no legal interest in the reversion, and the facts of 
the case excluded an estoppel.] 

When a mortgagor and mortgagee join in a lease, and the covenants to pay 



MOSS V. GALLIMOEE. 893 

rent and repair are with the mortgagor and his assigns only, the [assignee of 
the] mortgagee cannot [unless bj' virtue of the Conveyancing Act, 1881] sue 
on those covenants, because collateral to his interest in the land : Webb v. 
Rvssell, 3 T. R. 393; though the mortgagor might sue on them as covenants 
in gross : Stokes v. Russell, 3 T. R. G78, 1 H. Bl. 562. Where the mortgagor 
and mortgagee join in a lease, containing an express covenant by the mort- 
gagor for quiet enjoyment, no covenant from both can be implied, Smith v. 
Pilkington, 1 Tyrwh. 313. In Harold v. Whitaker, 11 Q. B. 147, 163, in a 
lease by the mortgagor and mortgagee which recited the mortgage, the red- 
dendum was to the mortgagee, his executors, &c., during the continuance of 
the mortgage, and after payment and satisfaction thereof, to the mortgagor 
or his executors, &c., and the lessee covenanted to and ^\'ith the mortgagee, 
and also to and with the mortgagor, to pay the rent " on the several days and 
times, and in manner as the same was reserved and made payable." The 
covenant was holden to be several. 



Position of a tenant under a lease made by a mortgagor in refer- 
ence to the payment of rent : — 

(l) Where the lease is prior to the mortgage. — The mortgagee, 
merely upon giving notice to the tenant in possession, is entitled 
to receive all rent accruing and becoming due subsequently 
to the execution of the mortgage, including Avhatever is in 
arrear at the time of giving notice as well as that which ac- 
crues and becomes due afterwards. Russell v. Allen, 2 Allen. 
42 ; Mirick v. Hoppin, 118 Mass. 582 ; King v. Housatonic R. 
R. Co., 45 Conn. 226, 4 Kent's Com. (6th ed.) 165, Washburn 
Real Property 531 (although in Pennsylvania, Myers v. White, 
1 Rawle 353 at 355, it was said the mortgagee could not compel 
the tenant to pay the rent to him, whether the lease was exe- 
cuted before or after the mortgage). If, however, the possession 
is reserved to the mortgagor until breach, the mortgagee is not 
entitled to receive the rent until default, and after giving 
notice of his claim and requiring payment to himself ; Taylor's 
Landlord and Tenant § 121 (8th ed.). The mortgagee is not 
entitled to the rent which became due before the execution 
of the mortgage ; Burden v. Thayer, 3 Mete. 76 ; King v. 
Housatonic R. R. Co., ubi supra. Payment of rent to the mort- 
gagor before notice from the mortgagee is a good defence to 
an action for the rent by the mortgagee ; Russell v. Allen, ubi 
supra ; Fitchburg Corp. v. Melven, 15 Mass. 268. If, however, 
the mortgagee, before or at the time rent becomes due, notify 
the tenant to pay the rent to him, the tenant cannot defend 
by proving previous payment to the mortgagor ; De NichoUs v. 



894 MOSS V. GALLIMORE. 

Saunders, L, R. 5 C. P. 589 ; Cook v. Giierra, L. R. 7 C. P. 132. 
Attornment by the tenant to the mortgagee is not necessary to 
enable the latter to maintain an action for rent; Burden v. 
Thayer, nbi si(p)'a. 

(^Il) "Where the lease is subsequent to the mortgage and made 
by a mortgagor while remaining in possession of the mortgaged 
estate. — At common law the mortgagee has a right to the im- 
mediate possession of the mortgaged estate ; Colman v. Packard, 
16 Mass. 39 ; Rockwell v. Bradley, 2 Conn. 1 ; Blaney v. Bearce, 2 
Greeiil. 132. The mortgagee cannot compel the tenant, there 
being no privity of contract or estate between them, to pay the 
rent to himself ; iMcKircher v. llawley, IG Johns. 289 ; Rogers v. 
Humphreys, 4 Ad. & El. 299 at 313 ; thus, the mortgagee cannot 
by mere notice compel the tenant to pay the rent to himself; Bart- 
lett V. Hitchcock, 10 Bradw. (111.) 871 ; Evans v. Elliott, 9 Ad. & 
El. 342; Drakford v. Turk, 75 Ala. 339, though formerly held 
otherwise in Alabama; Hutchinson v. Dearing, 20 Ala. 798 ; and 
held otherwise in ^laryland to-day ; Clark v. Abbott, 1 Md. C'h. 474. 
On the other hand, the mortgagee may consider the tenant as a 
trespasser or a disseisor and may maintain ejectment or a Avrit of 
entry against him ; Fitchburg Corp. v. JNIelven, uhi siipra; Mass. 
Ins. Co. V. Wilson, 10 Mete. 126. But where the estate remains 
in the mortgagor until after foreclosure and sale, the mortgagee 
cannot treat the tenant as a trespasser until that time ; Simers 
V. Saltus, 3 Den. 214 at 219, and though the tenant attorn to 
the mortgagee before foreclosure and sale, it is no defence to 
an action by the mortgagor for the rent ; Hogsett v, Ellis, 17 
Mich. 351. The mortgagee may eject the tenant without 
notice to quit ; Doe v. Mace, 7 Blackf . 2 ; Rockwell v. Bradley, 
uhi supra; Steadman v. Gassett, 18 Vt. 346 ; Bartlett v. Hitch- 
cock, uhi supra ; Comer v. Sheehan, 74 Ala. 452. A mortgagor, 
not having reserved possession to himself until breach, cannot 
make a lease which will be good against the mortgagee ; Keith 
V. Swan, 11 Mass. 216 ; Howell v. Schenck, 4 Zab. 89 at 91. 
Until there has been an actual entry by the mortgagee, or 
some act equivalent thereto has occurred, the mortgagee can 
maintain no action against the tenant for the recovery of rent, 
except upon an express promise to pay it ; Russell v. Allen, 2 
Allen 42 at 44 ; Long v. Wade, 70 Me. 358 ; Kimball v. Lock- 
wood, 6 R. I. 138. When the mortgagee has entered and noti- 
fied the tenant to pay the rent to him, the tenant cannot 
defend an action for the rent by showing there is a prior mort- 



MOSS Y. GALLIMORE. 895 

gage under which no entry has been made ; Cavis v. McClary, 
5 N. H. 529. Though the entry of the mortgagee be ineffec- 
tual for the purpose of foreclosure, yet if notice be given to 
the tenant, he is entitled to subsequently accruing rents ; Cook 
V. Johnson, 121 Mass. 326. Where the mortgagor owns the 
estate until the mortgagee enters for breach of condition, the 
mortgagee cannot, before entry for condition broken, recover 
rent due from the tenant of the mortgagor ; White v. Wear, 
4 Mo. Ap. 341. Though the mortgagee cannot compel the 
lessee to become his tenant, yet on entry or demand the latter 
may attorn and pay the after-accruing rent to him ; Baldwin v. 
Walker, 21 Conn. 168; Welch v. Adams, 1 Mete. 494; Cook 
V. Johnson, iihi supra; Kimball v. Lockwood, uhi supra; Cavis 
V. McClary, uhi supra; but the tenant is not bound to attorn, 
and may consider himself as evicted ; Simers v. Saltus, 3 Den. 
214. If, however, the tenant attorns, there will be a new ten- 
ancy and no liability upon the old lease ; thus in Doe v. Buck- 
nell, 8 C. & P. 566, it was held the lessee became tenant from 
year to year ; and in Illinois, Gartside v. Outley, 58 111. 210, where 
there was no express contract between the mortgagee and the 
tenant, it was said the latter would become a tenant from year 
to year. Although thei'e be no liability upon the old lease, 
yet if the tenant pay the mortgagee the rent due but unpaid 
before notice, the tenant will have a good defence against the 
mortgagor ; Waddilove v. Barnett, 4 Dowl. P. C. 347; 2 Bing. 
N. C. 538. 

When can the tenant resist an action for the rent by the mort- 
gagor ? — (a) When the tenant has been evicted by the mort- 
gagee, or has attorned to him under threat of eviction ; Simers 
V. Saltus, 3 Den. 214 at 216 ; Jones v. Clark, 20 Johns. 51 at 62 ; 
Fitchburg Corp. v. ^Nlelven, 15 INIass. 268 ; Hickman v. Machin, 
4 H. & N. 716 at 720. Eviction, however, is a good defence only 
for the rent that falls due subsequently, but not for that due 
when eviction took place ; Carpenter v. Parker, 3 C. B. (N. S.) 
206. (i) When, after notice from the mortgagee, the tenant 
has paid him not only the rent falling due subsequently to the 
notice, but also the rent due but unpaid before the notice ; 
Waddilove v. Barnett, 4 Dowling P. C. 347; 2 Bing. N. C. 
538. But mere notice from the mortgagee, without eviction or 
payment, is no defence to an action by the mortgagor against 
the tenant, either for rent due before or after notice ; Wilton 
V. Dunn, 17 Q. B. 2S)4 ; Hicknum v. Machin, 4 H. & N. 716. 



WHITCOMB V. WHITING. 



EASTER. — 21 GEORGES. 
[reported dougl. 652.] 

The acknowledgment of one out of several drawers of a joint and 
several promissory note takes it out of the Statute of Limita- 
tions as against the others, and may he given in evidence in a 
separate action against any of the others. (Secus since the 
statutes mentioned in the notes.^ 

Declaration, in the common form, on a promissory note 
executed by the defendant. Pleas : the general issue, and non 
assumpsit infra sex annos. Jlej^licafion : assumpsit infra sex 
annos: The cause was tried before Hotliam, Baron, at the last 
assizes for Hampshire. The plaintiff produced a joint and 
several note executed by the defendant and three others ; and, 
having proved payment, by one of the others, of interest on the 
note, and part of the principle, within six years, and the Judge 
thinking that was sufficient to take the case out of the statute, 
as against the defendant, a verdict was found for the plaintiff. 

On Friday, the 4th of May, a rule was granted to show cause 
why there should not be a new trial on the motion of Laivrenee, 
who cited Bland v. Haslerig (a) ; and this day in support of 
the application, he contended, that the plaintiff, by suing the 
defendant separately, had treated this note exactly as if it had 
been signed only by the defendant ; and, therefore, whatever 
might have been the case in a joint action, in this case the acts 
of the other parties were clearly not evidence against him. 
The acknowledgment of a party himself does not amount to a 
new promise, but is only evidence of a promise. This was 
determined in the case of Heylin v. Hastings (i), reported in 

(a) C. B. H. 1 & 2 W. & M. ; 2 Ventr. 150. {h) B. R. H. 10 Wil. 3. 

89G 



WHITCOMB V. WHITING. 897 

Salkeld (a), and 12 Modern (/>) ; and in Hemmiiigs v. RoIhtv- 
son (c), it was decided, that the confession of nobody but a 
defendant himself is evidence against him. That hist case was 
an action by an indorsee of a note, against the drawer, and the 
plaintiff proved the acknowledgment of a mesne indorser 
that the indorsement on the back of the note was in his hand- 
writing; but the court was of opinion, that this was not evi- 
dence against the drawer, but that the indorsement must be 
proved. It would certainly open a door to fraud and collusion, 
if this sort of evidence were, in any case, to be admitted. A 
plaintiff might get a joint drawer to make an acknowledgment, 
or to pay part, in order to recover the whole, although it had 
been already paid. 

Lord 3Iansfield. — The question here, is only whether the 
action is barred by the Statute of Limitations. When cases of 
fraud appear, they will be determined on their own circum- 
stances. Payment hy one is 'paymemt for all^ the one acting, 
virtually, as agent for the rest ; and, in the same manner, an 
admission hy one is an admission by all; and the law raises the 
promise to pay, when the debt is admitted to be due. 

Willes, Justice. — The defendant has had the advantage of 
the partial payment, and, therefore, must be bound by it. 

Ashurst and Bidler^ Justices, of the same opinion. 

The rule discharged (cT). 



[The decision in the principal case as to the effect of acknowledgment or 
payment hy a joint contractor as regards the Statute of Limitations has been 
reversed by 9 Geo. 4, c. 14, sects. 1 and 2 (commonly called Lord Tenterden's 
Act), supplemented by sect. 14 of "The Mercantile Law Amendment Act, 

(a) 1 Salk. 29. defendant, who was found to have 
(6) 223. promised within the six years. That 
(c) C. B. M. 6 Geo. 2; Barnes 4to case may be explained on the manner 
ed. 436. of the finding; for as the plea was 
((?) The case of Haslerig v. Bland, joint, and the replication must have 
cited [in the preceding page], was a alleged a joint undertaking, the ver- 
joiut action against four; the plea, diet did not find what the plaintiff 
the Statute of Limitations ; and a had bound himself to prove. But 
verdict, that one of the defendants according to the principle in the case 
did assume within six years, and that of Whitcomb v. Whiting, the jury 
the others did not; and it was held ought to have considered the prom- 
by Pollexfen, C. J., Poivel, and Rokehij ise of one as the promise of all, and 
(against Ventris), that the plaintiff therefore should have found a gen- 
could not have judgment against the eral verdict against alL 



898 WHITCOMB V. AYHITING. 

1856" (19 & 20 Vict. c. 98), as to which section see CochiU v. Sparkes, 1 H. 
& C. 699. These enactments have thus rendered coniparativelj' useless, antl 
therefore caused the omission here of a considerable portion of the notes 
formerly appended to this case. The remainder of the notes has not lost its 
utility, as it relates chiefly to the question, what proof of payment suffices, 
as against the person actual! ij paying, to save the Statute of Limitations, hav- 
ing regard to the provisions of sect. 1 of Lord Tenterden's Act. That sec- 
tion enacts that, " in actions of debt, or upon the case grounded upon any 
simple contract, no acknowledgment or promise by words only shall be 
deemed sufficient evidence of a new or continuing contract, whereby to take 
any case out of the operation of the said enactments " (snhintcU. Statutes of 
Limitation), " or either of them, or to deprive any party of the benefit 
thereof, unless such acknowledgment or promise shall be made or contained 
by or in some writing to be signed by the party chargeable thereby, pro- 
vided that nothing herein contained shall alter or take away or lessen the 
effect of any payment of any principal or interest made by any person what- 
soever."] 

Where one of two joint drawers of a bill of exchange became bankrupt, 
and the holder of the bill proved, not upon the bill, but for goods sold, 
exhibiting the bill as a security, it was held that receipt of dividends on that 
proof would not take the case out of the Statute of Limitations, as against 
the other drawer: Brandram v. WliarLon, 1 B. & A. 463. In that case the 
dividend was paid upon the debt proved, and its payment could not, without 
straining the facts, be treated as a payment on account of the bill ; but in 
general, ichere there are several securities for a debt, a general payment on 
account revives them all; thus where a promissory note was made by a surety 
as security for part of the amount of a mortgage, payment of interest on the 
mortgage was held enough to take the note out of the operation of the 
statute: Dotcling v. Ford, 11 M. & W. 329. 

A payment by the assignee of an insolvent joint maker [was held to l)e in- 
sufficient, even before the Mercantile Law Amendment Act, 1856, to take the 
case out of the statute either as against the insolvent or the other makers], 
Davis V. Edicards, 7 Exch. 22. [See also ex parte Toptping, 31 L. J. Bankr. 
44.] 

Where parish officers borrowed money, and gave a promissory note to 
secure it, signed A. B. &c., church wardens, C. D. &c., overseers, " or others 
for the time being," it was held that this form of signature was evidence of 
an authority to the succeeding officers to pay on account, so as to keep the note 
alive. Jones v. Hughes, 5 Exch. 101; [see 22 & 23 Vict. c. 49, ss. 1 and 4.] 
In Neve x. Hollands and Wife [18 Q. B. 262], 21 L. J. 289, payment by a 
wife, without authority of her husband, on account of a note made by them 
jointly before marriage, was held insufficient to keep it alive as against him 
and her. 

With respect to the mode of proving a payment [to take the case out of 
the Statute of Limitations], it has lieen held that if goods be given and 
accepted in part payment within six years, that [saves] the case [from] the 
statute. Hooper v. Stephens, 4 A. & E. 71; Hart v. Nash, 2 C. M. & R. 337. 
But an open account between two tradesmen, each charging the other with 
goods, though containing items within six years, has not, without an appro- 
priation of the charges on one side in liquidation of those on the other, the 
effect of avoiding the bar ; for the exception in 9 G. 4 is in favour of pay- 
ments only: Cottam v. Partridge, 4 M. & Gr. 271, 4 Scott, N. R. 819, S. C; 



WHITCOMB Y. WHITING. 899 

Clarke v. Alexander, 8 Scott, N. R. 147; Foster v. Dau-ber, 6 Exch. 839. 
Where, however, there is such an appropriation by going through the account 
and striking a balance, witli an agreement express or implied that the balance 
onlj' shall be paid, such a transaction is equivalent to a payment of the lesser 
debt and a repayment of the amount in liquidation of so much of the greater 
debt; and so it operates to save the balance of the larger debt from the 
effect of the statute: Ashby v. James, II M. & W. 542, per Alderson, B. ; 
Scholey v. Watton, 12 M. & W. 510, per Parke, B. [lioberts v. Shaic, 4 B. & S. 
44, 32 L. J. Q. B. 308.] 

A payment on account of the creditor in part liquidation of the debt has of 
course the same effect as a payment to himself : Hart v. Stephens, 6 Q. B. 
937; Worthington v. Grimsditch, 7 Q. B. 479; see Clarke v. Hooper, 10 Biug. 
450. In Bodyer v. Arch, 10 Exch. 333, the maintenance of a child agreed to 
be taken in satisfaction of interest, Avas held to be a payment and to take the 
case out of the statute. [In Amos v. Smith, 1 H. & C. 238, the trustees 
under a marriage settlement lent the husband at interest, on the security of 
his and A.'s bond conditioned for payment of interest, some of the trust 
moncA' settled to the separate use of the wife. No interest was paid, but the 
wife gave the trustees receipts for it under an arrangement that it should be 
considered as paid, and it was held that the transaction amounted to a pay- 
ment or satisfaction so as to take the case out of the statute. So also JIaber 
V. Maber, L. R. 2 Ex. 153; 36 L. J. Ex. 70.] 

Stat. 9 G. 4, cap. 14, also enacts, [s. 3,] " that no indorsement or memoran- 
dum of any payment made upon anj' bill of exchange, promissory note, or 
other Avriting, (that is, other writing constituting the contract according to 
the dictum of Cresswell, J., in Bradley v. James, 13 C. B. 822, where it was 
held that the statute does not exclude such a memorandum altogether, but 
only makes it insufficient of itself), l)y, or in behalf of, the person to whom 
such payment is made, shall be deemed sufficient proof of payment to take 
the case out of the operation of the Statutes of Limitation; " and, that part 
payment may have that effect, it must be observed, that there are two 
requisites besides proof of the naked fact of payment : — 1st, it must appear 
that the payment was made on account of a larger debt; 2ndly, that that 
debt is the one sued for: Tijypetts y. Heane, A Tyrwh. 775. See the judgment 
of Parke, B., there, and see Holme v. Green, I Stark. 488. lu Evans v. Davis, 
4 A. & E. 840; Worthington v. Grimsditch, supra; Buriiv. Boulton, 2 C. B. 
476; \_Collinson v. Maryesson, 27 L. J. Exch. 305; and Goodwin v. Parton, 41 
L. T. N. S. 568,] the evidence was held sufficient for that purpose. In Wauyh 
V. Cope, 6 M. &, W. 829, the evidence was held insufficient. See further ilills 
V. Foirkes, 5 Bing. N. C. 455; }foorc v. Strong, 1 Bing. N. C. 442. 

The first requisite above mentioned involves this also, that the jjayment be 
made under the circumstances which do not rebut the implication of a 
promise to pay the balance ; because it is onlj' as giving rise to such an impli- 
cation, and not by any specific effect of its own, that a payment operates : 
Wainman v. Kinman, I Exch. 118 [and see Higgv. Moggridge, 2 H. & N. 567; 
3Iorgan v. Roidands, L. R. 7 Q. B. 493, 41 L. J. Q. B. 187] ; yet see Goddard 
V. Ingram, 3 Q. B. 839 ; \_Ex parte Topping, 34 L. J. Bankr. 44,] for Avhich 
reason the payment must also be before action brought ; Bateman v. Pindar, 
3 Q. B. 574, overruling Yea v. Fonraker, 2 Burr. 1099. 

The second requisite mentioned above has led to a discussion whether, 
where there are two clear and undisputed debts, either can be taken out of 
the statute by evidence of a part payment not specifically appropriated by the 



900 WHITCOMB V. AVHITING. 

debtor; upon which question the Court of Common Tleas is said to have 
iucitleutally expressed an opinion in the negative: Bio-n v. Boulton, 2 C. B. 
476 ; but, it [lias since been held] to be [in general] a proper question for 
the jury, whether the payment was made generally on account of whatever 
might be due from the debtor at the time, and if so both the debts would be 
saved. [ Walker v. Butler, 6 E. & B. 50G; and see Collinson v. Margesson, 27 
L. J. Exch. 305, per Martin, B.] In .Vills v. Fowkes, 5 Bing. N. C. 455, it 
was held that though a creditor has a right to appropriate a payment made 
generally to an item barred by the Statute of Limitations, still such payment 
is not a payment on account so as to take the remainder of the demand out 
of the statute. Accord, Waller v. Lacij, 1 Sc. N. R. ISO; 1 M. & Gr. 54, S. C. ; 
[Nash V. Ifoilffsun, 1 Kay, 650; S. C. on appeal, 6 De G. M. & G. 474, per 
Knight-Bruce, L. J. ; contra Turner, L. J. 

In that case the defendant being indebted to the plaintift' on three promis- 
sory notes, one of which was for 200?., on application by the plaintifl" for 
payment of interest, paid him HI. on account generally. At the time of the 
payment the 200/. note was the only one of the notes which was not barred 
by the statute, and the plaintilf appropriated the 5?. to payment of interest 
on that note ; and upon the question whether the payment took that note out 
of the statute, the Court of Appeal was agreed that it did; but the judgment 
of Knight-liriue, L. J., proceeded upon the ground of the appropriation. 
The Lord Chancellor (Cranworth) said, " The cases show that a simple pay- 
ment of money does not take a debt out of the statute, and that the payment 
must be of a smaller sum on account of a larger. What I deduce from them 
is, that where a payment is made as principal, the effect of it will be to take 
out of the statute any debt which is not barred at the time of payment, but 
that it will not revive a debt which is then barred ; and that where thei*e are 
several debts, the inference will be that the payment is to be attributed to 
those not barred. What may be the effect where there is a single debt con- 
sisting of several items, some of Avhich are barred, and some not, may be 
doubtful. Exactly the same principle applies if the payment is made in 
respect of interest. It appears to me that in this case, there being three 
promissorj' notes, two barred and one not barred, and a payment made on 
account of interest generally, this payment must be attributed to the note 
which was not barred ; and if this were not so, the only effect would be to 
treat it as a payment on account of all, so tliat in either case the 200?. note 
would be kept alive."] 

In Willis V. Newham, 3 Y. & J. 518, the Court of Exchequer held, that a 
verbal ackuoAvledgment of part payment of a debt was not sufficient proof 
thereof within this statute ; the import of which they construed to be, that 
in no case should a mere A'erbal acknowledgment take a case out of the 
Statute of Limitations, whether that acknowledgment were of the existence 
of the debt, or of the fact of payment. I'ide Trentham v. Deverill, 3 Bing. 
N. C. 397. ' The authority of Willis v. Nexoham was, however, repeatedly 
questioned, though it was acted upon in Bayley v. Ashton, 12 A. & E. 493; 4 
P. & D. 204, S. C. ; Maghee v. O'Neil, 7 M. & W. 531 ; Eastwood v. Savile, 
9 M. & W. 615 ; Clarke v. Alexander, 8 Scott, N. R. 147, and the case has been 
at length overruled in Cleave v. Jones, 6 Exch. 573, where the demand was 
upon a promissorj^ note for 350?. and interest, and the Statute of Limitations 
was saved by evidence of an unsigned entry in the defendant's book in her 
handwriting " 1843, Cleave's interest on 350/. — 7?. 10s." [And see Edwards 
y. Jones, I Kay & J. 534. In Xewbould v. Smith, 29 Ch. 1). 882, an entry by 



WHITCOMB Y. WHITING. 901 

the deceased creditor in his diary, " Smith, C. E., cash on account of rent and 
interest 50Z.," was held inadmissible in evidence on behalf of the creditor as 
an admission that interest had been paid, so as to revive the right barred 
under the Statutes of Limitations to bring a foreclosure action.] 

It was held, even before Cleave v. Jones, that written and signed evidence 
of appropriation may be conflmiied by parol, Sevan v. Gethiny, 3 Q. B. 740; 
and that if the payment be proved as a fact, the appropriation of that pay- 
ment to the debt which it is sought to take out of the Statute of Limitations 
may be proved by an admission, Waters v. Tomkins, 2 C. M. & R. 72G. That 
action was brought to recover the amount of five notes, one for lOOZ., two 
for 50Z., and two for 20^ each; the evidence upon an issue joined on plea of 
actio non accrevit infra sex annos was, that within six years the maker, the 
defendant, on application to him, said, his wife would have called on the 
holder and paid money on account of the interest on 200?., but for their 
child's illness; about a fortnight after which, the wife called, and paid 15s., 
without saying on what account; on another occasion the defendant sent 
word to the testator that his wife was in Wales, or would have called with 
the interest ; and that the wife on other occasions made payments to the 
testator, who said, at the time, he should be glad if the interest were more 
regularly paid. This evidence was held to warrant the jury in finding 
a verdict for the plaintifl". See, too, Bevan v. Gethinr/, 3 Q. B. 740, where, 
however, Coleridge, J., expressed a doubt as to the correctness in principle 
of Waters v. Tomkins. Nor need the writing Avliich i,s relied on for the 
purpose of taking a debt out of the operation of the statute specify its 
amount; that may l)e pi'oved by parol: Bird v. Gammon, 3 Bing. N. C. 888; 
Waller v. Lacj, 1 M. & Gr. 54, 1 So. N. R. 186, S. C. ; Dickenson v. Hatfield, 
I Moo. & R. 141 ; Chealey v. Dalhy, 4 You. & Coll. 228; [Sidicell v. Mason, 2 
H. & N. 30fi.] 

When a bill is given on account of part of a debt, and is paid by the 
drawee, the statute is not avoided by such payment, though it may be by 
the deliverjr of the bill, Irving v. Veitch,S M. & W. 90; Turney v. Dodwell, 
3 E. & B. 136. Whether the promise implied from part-payment to the 
holder of a negotiable instrument is itself negotiable, c^ucere. See Cripps v. 
Davis, 12 M. & W. 159. [Gale v. Capern, 1 A. & E. 104,i5er Patteson, J. 

It is perhaps convenient to refer shortly in this place to a question which 
lias not been discussed in the earlier editions of these notes, viz., what 
is a sufficient written acknowledgment to save the statutes, apart from the 
proviso as to payment in section 1 of Lord Tenterden's Act. The principles 
are thus summed up by Mellish, L. J., in In re River Steamer Co., Mitchell's 
Claim, L. R. 6 Ch. at p. 828, which passage is cited by Cleasby, B., in Skeet 
V. Lindsay, 2 Ex. D. 316, 46 L. J. Ex. 251. " There must be one of these 
three things to take the case out of the statute. Either there- must be an 
acknowledgment of the debt from which a promise to pay is to be implied, 
or secondly, there must be an unconditional promise to pay the debt, or 
thirdly, there must be a conditional promise to pay the debt and evidence 
that the condition has been performed." 

With regard to the first of these three propositions, it should be observed 
that by a long train of authorities commencing with Tanner v. Smart, 6 B. & 
C. 603, it is conclusively settled that an absolute acknowledgment of the debt 
by itself is sufficient, because you may imply from it an unconditional promise 
to pay the debt,|ie?- Cleasby, B., in Skeet v. Lindsay, uhi snjy. A recent deci- 
sion on this point will be found in Green v. Ihunphreys, 26 Ch. D. 474, 53 L. 



902 WHITCOMB Y. WHITING. 

J. Ch. 625, where the Court of Appeal, reversing the decision of Pollock, B., 
held that there was not sufficient acknowledgment. 

These being the acknowledged principles, the application of them to partic- 
ular cases for the purpose of detemiining whether particular written expres- 
sions amounted to an absolute acknowledgment or an unconditional promise, 
has naturally been productive of much litigation, and in some instances has 
caused a remarkable diversitj'^ of judicial opinion. See the cases collected in 
Chasemore v. Turner, L. R. 10 Q. B. 500, 45 L. J. Q. B. GG ; Qui)iceyv. Sharpe, 
1 Ex. D. 72, 45 L. J. Ex. 347, and Jleyerhotf v. Froehlich, 4 C. V. D. 63. In 
the first of these cases, the following letter written by the defendant to one 
of the plaintifls was put in at the trial at Nisi Prius. " My dear Sir. The 
old account between us which has been standing over so long has not 
escaped our memory, and as soon as we can get our aftairs arranged, we will 
see you are paid. Perhaps in the meantime you will let your clerk send me 
an account of how it stands." At the trial Martin, B., ruled that the letter 
was sufficient to take the case out of the Statute of Limitations, and directed 
a verdict for the plaintifls. refusing leave to move, but gave a stay of execu- 
tion. The majority of the Court of Queen's Bench, viz., Blackburn and 
Archibald, .1.1. , held, Mellor, J., dissenting, that it was insufficient without 
further evidence and made absolute a rule for a new trial. In the Exchequer 
Chamber, however (Lord Coleridge, C. J., dissenting), this judgment was 
reversed by Cleasby, Pollock and Amphlett, BB., and Grove and Denman, .1.7. , 
and the verdict for the plaintiff stood. But if there be an express promise 
there can be none by implication, and if the express promise be a conditional 
one the condition must be fulfilled : Meye.rhoff v. Froehlich, 4 C. P. D. 63, 48 
L. J. C. P. 41. If there is an unqualified admission that there is a pending 
account between two parties which has to be settled, that " is an admission 
from which you may infer a promise that when the account is settled the 
balance .shall be paid,"/<er Kay, ,1., Banner v. Berridge, 18 Ch. D. 274. 

An acknowledgment of a simple contract debt is insufficient to save the 
statute, unless made to the creditor or his agent. Fuller v. Itedman, 26 
Beav. 614; but an acknowledgment of a specialty debt will suffice, under 
3 & 4 W. 4, c. 42, s. 5, though made to a stranger, Moodie v. Bannister, 4 
DreT;\T. 432.] 

In Bodger v. Arch, 10 Ex. 333, it was held that payment to any person 
acting as representative of an intestate accrued for the benefit of the admin- 
istrator when appointed. 

\_Semble that an acknowledgment in a letter written Avithout prejudice is of 
no avail if an offer contained in it is not accepted : Re River Steamer Com- 
pany, L. R. 6 Ch. 822.] 

There is in the 9 G. 4, c. 14, a proviso, "that no memorandum or other 
writing made necessary by this act shall be deemed to be an agreement 
within any Stamp Act." The efifect of this appears to be to render the stamp 
unnecessary where the agreement is put in merely for the purpose of avoid- 
ing the Statute of Limitations, the debt having been proved aliunde. But if 
it were put in as the only evidence of a debt though more than six years old, 
semble that it would require a stamp, Morris v. Dixon, 4 A. & E. 845. The 
proviso has been held to be inapplicable to the case of an unstamped promis- 
sory note, Jones v. Ryder, 4 M. & W. 32 ; [but where a promissory note made 
in 1846 was indorsed by the maker and the date altered to 1866, it was held 
that a new stamp was not necessary, Bourdin v. Greenwood, L. R. 13 Eq. 281, 
41 L. J. Ch. 73.] 



WHITCOMB Y. AVHITING. 903 

1. "What claims barred by the statute can be revived. — It 
seems that the chiim, if not necessarily an actual debt, must be 
an obligation arising from an executed consideration and con- 
sequently implied in law. 

A count in sj)ecial assumpsit on an express contract which 
has been barred by the statute cannot, in accordance with j)rin- 
ciple, be sustained by evidence of a new promise witliin six 
years ; Carshore v. Huyck, 6 Barb. 583. 

The difficulty is that in such a case, as the plaintiff has to 
allege and prove that a promise was actually made by the de- 
fendant at a certain time, the reply is a departure from the 
original statement of the cause of action. 

Where indebitatus assumpsit will lie, there is no difficulty, for, 
from the loan, or the sale of delivery, or other facts, the law 
implies a promise to pay, a promise of which there is a new 
breach on each recurring day that the debt continues and 
remains unpaid. Prihid facie this relates back to the period 
when the debt was contracted, but, as the plaintiff has only to 
state and prove facts from which such promise can arise, there 
is nothing inconsistent with this in the promise arising at any 
other time. 

For example, the plaintiff alleges that the defendant became 
indebted for money had and received, &c., and then avers a 
promise to pay, not existing in fact, but a legal inference from 
the premises and sustained by any e^'idence of indebtedness at 
the time the action was begun. To a plea of the statute, the 
plaintiff can show that the money was "had and received" 
within six years, or an acknowledgment of the existence of the 
debt within that period which renders evidence unnecessary; 
Hajinaker v. Haymaker, 4 Oh. St. 272 ; McCurry v. McKesson, 
4 Jon. 510. 

The replication that the cause of action accrued within six 
years is not a departure but in the nature of a new assignment, 
indicating that the plaintiff relies, not on the obligation which 
arose in the first instance from the receipt of the consideration, 
but on the promise which the law implies on the indebtedness 
being shown at some later period by evidence of an express 
promise, a part payment, or other acknowledgment. 

Precisely the same principles apply when a new promise is 
relied upon to support an action on a promissory note barred 
by the statute. 



904 ^YHITCOMB V WHITTNa. 

The plaintiff sets out the making of the note and avers a 
consequent liability and promise to pay, not existing in fact 
but implied in law from the existence of the liability. 

Whenever by an acknowledgment or new promise at any 
later period, the obligation can be shown to still exist, in the 
same way another implied promise to pay arises. Hence such 
an acknowledgment may be given in evidence to suppose the 
implied promise without any variance from the declaration ; 
Leaper V. Tatton, 16 East 420. 

It is well settled that a promise or acknowledgment will not 
affect the operation of the statute on actions of tort ; Oothout 
V. Thompson, 20 Johns. 277; Ott v. Whitworth, 8 Humph. 
494. 

2. What will remove the bar of the statute. — A. All express 
promise to pay the debt. All the cases agree on this point. 

B. A promise to pay "it, not express but implied from the 
circumstances ; Johnson v. Evans, 8 Gill 155 ; Ross v. Ross, 20 
Ala. 105 ; Reener v. Crull, 19 111. 109 ; Ditch v. Vollhardt, 82 
111. 134 ; Sprogle v. Allen, 38 Md. 331 ; Oakson v. Beach, 36 
Iowa 171 ; Sigourney v. Drury, 14 Pick. 390 ; Phelps v. Wil- 
liamson, 26 Vt. 230; Joslyn v. Smith, 13 Vt. 357. 

The important consideration is, under what circumstances a 
promise will be implied. 

" A jury will be authorized and bound to infer such promise 
from a (1) clear, (2) unconditional and unqualified admission 
of the existence of the debt, (3) at the time of such admission, 
if, (4) unaccompanied with any refusal to pay or declaration 
indicative of any intention to insist on the Statute of Limita- 
tions as a bar." 

Shaw, C. J., in Sigourney v. Drury, 14 Pick. 390 ; Knight v. 
House, 29 Md. 194. 

(1) That the acknowledgment must be " clear " and unam- 
biguous ; see Bryan v. Ware, 20 Ala. 687 ; Grant v. Ashley, 7 
Eng. 762 ; Bell v. Crawford, 8 Gratt. 119 ; Ten Eyck v. Wing, 
1 Mich. 40 ; Penley v. Waterhouse, 3 Clarke 418 ; Stewart v. 
Rickens, 4 Zab. 427 ; Conwell v. Buchanan, 7 Blackf . 537 ; Rob- 
bins V. Farley, 2 Strob. 348 ; Dickinson v. McCanry, 5 Ga. 486 
McLellan v. Albee, 17 Me. 184 ; Pray v. Garcelon, 17 Me. 145 
Porter v. Hill, 4 Greenlf . 41 ; Ventris v. Shaw, 14 N. H. 422 
Shaw V. NeweU, 1 R. I. 488 ; Frey v. Kirk, 4 Gill and J. 509 
Taylor v. Stedman, 11 Ired. 447 ; Cross v. Connor, 14 Vt. 394 



"WHITCOMB V. WHITIXG. 905 

Wliite V. Dow, 23 Vt. 300 ; Ayres v. Richards, 12 111. 146 ; Har- 
rison V. Handley, 1 Bibb 443. 

It need not be made expressly or in words, but may be im- 
plied from any act which necessarily presupposes the existence 
of the debt and an obligation to pay it ; Bowman v. Downer, 22 
Vt. 532 ; Spangler v. ]\IcDaniel, 3 Ind. 275 ; Grayson v. Taylor, 
14 Texas 672. 

The burden is on the plaintiff, so he must make it appear 
that the debt was actually due and that the debtor, knowing 
this, meant to acknowledge a liability to pay it ; Gibson v. 
Grosvenor, 4 Gray 606 ; Magberry v. Willoughby, 5 Neb. 370 ; 
Wakeman v. Sherman, 5 Seld. 88 ; Chambers v. Garland, 3 
Iowa 322 ; Pritchard v. Howell, 1 Wis. 131 ; Smith v. Fly, 24 
Texas 345 ; Gilmer v. McMurray, 7 Jon. 479 ; Bangs v. Hall, 
2 Pick. 368 ; Moore v. Hyman, 13 Ired. 272 ; Goodwin v. Buz- 
zell, 35 Yt. 9 ; Evans v. Carey, 29 Ala. 99 ; Wilcox v. Williams, 
5 Nev. 206 ; Leigh v. Linthecum, 30 Texas 100. 

It is not enough for the debtor to admit that the debt is due, 
unless it appears that he means to pay it ; Wakeman v. Sher- 
man, 5 Seld. 85 ; Gra}- v. McDowell, 6 Bush 375. 

Though, in the absence of other evidence, a man that admits 
a debt will be presumed willing to pay it ; Chambers v. Gar- 
land, 3 Iowa 322 ; Stockett v. Sasscer, 8 Md. 374 ; Pritchard v. 
Howell, 1 Wis. 131; Evans v. Carey, 29 Ala. 99; Phelps v. 
WiUiamson, 26 Vt. 230. 

The acknowledgment must be shown to relate to the debt 
which is the cause of action; Nash v. Hodgson, 1 Kay 650; 
Stafford V. Bryan, 3 Wend. 532 ; Hart v. Boyt, 54 Miss. 547 ; 
Martin v. Broach, 6 Ga. 21 ; Lockhart v. Eaves, Dud. (S. C.) 
321 ; Arey v. Stephenson, 11 Ired. 86 ; Brailsford v. James, 3 
Strob. 171 ; Broxley v. Gajde, 19 Ala. 151. 

But this will be presumed unless the existence of moi'e than 
one debt is shown ; Bailey v. Crane, 21 Pick. 223 ; Woodbridge 
V. Allen, 12 Mete. 470 ; Gibson v. Grosvenor, 4 Gray 606 ; 
Coles V. Kelsey, 2 Texas 541 ; Smith v. Deeper, 10 Ired. 86 ; 
Moore v. Hyman, 13 Ired. 272 ; Brown v. State Bank, 5 Eng. 
134 ; Wood v. Wylds, 6 Eng. 754 ; Guy v. Tarns, 6 Gill 82 ; 
Penley v. Waterhouse, 3 Clark 418; Mitchell v. Clay, 8 Tex. 
413; Dobbs v. Humphries, 10 Bing. 446; Corey v. Bath, 35 
N. H. 530, 550; Boyd v. Hurlbert, 41 Mo. 264^; Whitney v. 
Bigelow, 4 Pick. 110. 



906 "WHITCOMB V. WHITING. 

To the contrary, apparently, however, see Robbins v. Farley, 
2 Strob. 348; Faison v. Bowden, 72 N. C. 405; Pray v. Giu-ce- 
lon, 5 Shep. 145. 

Where there is an unsettled account containing several 
charges or items, especially if part of them are barred by the 
statute and part not, a general admission of indebtechiess, not 
naming the amount due or mentioning any specific portion, is 
too indefinite to affect the statute; Hull v. Richardson, 19 
Penn. St. 388 ; Morgan v. Walton, 4 Pa. St. 321 ; Harbold v. 
Kuntz, 16 Pa. St. 210 ; Suter v. Sheeler, 22 Pa. St. 308 ; Clarke 
V. Dutcher, 9 Cow. 674; Buckingham v. Smith, 23 Conn. 453; 
Peebles v. Mason, 2 Dev. 367 ; Allen v. Allen, 1 Bush 60 ; 
Hale V. Hale, 4 Humph. 183. 

When there is no doubt as to what debt is meant, it is not 
necessary that the amount should be mentioned in the acknowl- 
edgment, provided it is certain and liquidated ; Thompson v. 
French, 10 Yerg. 452 ; Hazlebaker v. Reeves, 2 Jon. 264 ; Davis 
V. Steiner, 14 Pa. St. 275 ; Dinsmore v. Dinsmore, 21 Me. 433. 

A promise to " settle " an unlicjuidated claim, or to " pay 
what is due," or to "refer," may or may not be a sufficient 
acknowledgment. It is a question of intention. In most cases 
it has been held insufficient. It is aml)iguous whether the 
debtor means to pay or merely to adjust or liquidate ; Peebles 
V. Mason, 2 Dev. 367 ; Faison v. Bowden, 72 N. C. 405 ; Suter 
V. Sheeler, 22 Penn. St. 308 ; Harbold v. Kuntz, 16 Penn. St. 
210 ; Emerson v. Miller, 27 Penn. St. 278 ; Sutton v. Burruss, 
9 Leigh, 381 ; Bell v. Crawford, 8 Gratt. 110 ; Leigh v. Linthe- 
cum, 30 Texas 100 ; Broddie v. Johnson, 1 Sneed 464 ; Mills 
V. Taber, 5 Jon. 412 ; Loftin v. Aldridge, 3 Jon. 328 ; Moore v. 
Hyman, 13 Ired. 272 ; Mask v. Philler, 32 Miss. 237 ; Shaw v. 
Allen, 1 Bus. 58; Brayton v. Rockwell, 41 Vt. 621. 

In others, very similar remarks have been held to remove the 
bar ; Hunter v. Kittredge, 41 Vt. 621 ; Walker v. Butler, 6 E. 
& B. 506 ; Higdon v. Stewart, 17 Md. 105 ; Warlick v. Peter- 
son, 58 Me. 408. 

When the debt is unliquidated, as a rule, the amount must 
be specified which the debtor is willing to pay. 

A promise not to plead the statute has commonly been re- 
garded as the same thing as a promise to pay the debt ; Pad- 
dock V. Colby, 18 Vt. 485 ; Brown v. Bank, 5 Eng. 134 ; Smith 
V. Leeper, 10 Ired. 86 ; Randon v. Toby, 11 How. 493 ; Cooper v. 



whitco:mb v. whiting. 907 

Parker, 25 Vt. 502; Xoyes v. Hall, 28 Vt. 645; Utica Ins. 
Co. V. Bloodgood, 4 Weiid. 652 ; Allen v. Webster, 15 Wend. 
284. 

Part Payment of a debt whether in money, note, or goods is 
usually intended as an admission of its existence and conse- 
quently has the same effect as any other unqualified acknowl- 
edgment ; Winchell v. Hicks, 18 N. Y. 559 ; Shoemaker v. 
BenecUct, Kern. 176, 185 ; Isley v. Jewett, 2 Mete. 168 ; Sibley v. 
Lumbert, 30 Me. 253. 

It must appear that it was intended as a part payment of a 
greater sum ; prima facie a payment is intended as a discharge 
wholly, or i^ro tanto without relation to anything else ; Liver- 
more V. Rand, 26 N. H. 85 ; Pond v. Williams, 1 Gray 630 ; 
Shoemaker v. Benedict, 1 Kern. 176 ; Smith v. Eastman, 3 Cush. 
355 ; Prenatt v. Ruuyon, 12 Ind. 174. 

It must be considered in the light of all the surrounding 
circumstances ; Smith v. Eastman, 3 Cush. 355 ; Hale v. Morse, 
49 Conn. 481 ; Jewett v. Petit, 4 Mich. 508 ; Bell v. Crawford, 
8 Gratt. 110 ; Davis v. Amy, 2 Gratt. 412 ; and should go to the 
jury like any other fact ; HoUis v. Palmer, 2 Bing. (N. C.) 713 ; 
Hodge V. Manley, 25 Vt. 210; Armstead v. Brooke, 18 Ark. 
521 ; Livermore v. Rand, 26 N. H. 85 ; Arnold v. Downing, 11 
Barb. 554. 

The payment of interest is usually an admission that the 
principal is due and payable ; Sanford v. Hayes, 19 Conn. 591 ; 
Marcelin v. The Creditors, 21 La. An. 423 ; Fryeburg v. Osgood, 
21 Me. 176. But a part payment of principal is not necessarily 
any acknowledgment as to interest ; CoUyer v. Willock, 4 
Bing. 313. 

When there are several obligations contracted at different 
times, and a general payment without appropriation by the 
debtor, the creditor can usually appropriate it most advanta- 
geously to himself and revive that portion, if any, of the obliga- 
tions barred by the statute, or apply it generally to the whole 
indebtedness ; Peck v. N". Y. Steamship Co., 5 Bosw. 225 ; 
Dyer v. Walker, 54 Me. 18. 

Some cases hold that he can apply it to what debt he pleases, 
but cannot distribute it so as to take several debts out of the 
statute ; Ayre v. Hawkins, 19 Yt. 28 ; Goodwin v. Buzzell, 35 
Vt. 9. 

In many of those states where an acknowledgment or new 



908 WHITCOMB A\ WHITING. 

promise is required by the statute to be in writing, an excep- 
tion is made of an acknowledgment by part payment which 
may be shown by parol evidence ; McLaren v. McMartin, 36 
N. Y. 88 ; Sibley v. Lumbert, 30 Me. 253 ; Egery v. Decrew, 
53 Me. 392 ; Ketchem v. Hill, 42 Ind. 64. 

The rule is different in Georgia where a writing is required 
in all cases ; Caldwell v. Ferrell, 20 Ga. 94 ; Holland v. Chaffin, 
22 Ga. 343. An endorsement of a part payment on a note, not 
made by the debtor, is no evidence that the payment was made ; 
Porter v. Blood, 5 Pick. 54; Jones v. Jones, 4 N. H. 219; 
Chandler v. Lawrance, 3 Mich. 261 ; but if made by the creditor 
before the statute has run it can go to the jury as an admission 
against interest, and consequently available for both parties; 
Roseboom v. Billington, 17 Johns. 182 ; Clapp v. Ingersol, 11 Me. 
83; Concklin v. Pearson, 1 Rich. 391; Haven v. Hacheway, 
20 Me. 245 ; Smith v. Simms, 9 Ga. 418 ; Young v. Perkins, 29 
Minn. 173 ; Maskell v. Pooley, 12 L. An. 661. In several states 
statutes require an endorsement to be signed by the debtor, in 
order to be in itself sufficient evidence of payment. 

(2) Where an acknowledgment is '•'' qualified^'' or '■'■ condi- 
tional^^' the bar of the statute is not removed until the terms 
or conditions are fulfilled ; Cocks v. Weeks, 7 Hill 45 ; 
Farmers' Bank v. Clarke, 4 Leigh 603 ; Luna v. Edmiston, 5 
Sneed 159; Hayden v, Johnson, 26 Vt. 758; Mattocks v. 
Chadwick, 71 ISIe. 313 ; Wachler v. Albee, 80 111. 47 ; Shaw v. 
Newell, 1 R. I. 488 ; Sweet v. Franklin, 7 R. I. 355 ; Wake- 
man V. Sherman, 4 Seld. 85 ; Stewart v. Reckless, 4 Zab. 427 ; 
Bell V, Morrison, 1 Pet. 351 ; Farley v. Kustenbader, 3 Penn. 
St. 418 ; Pearson v. Darrington, 31 Ala. 227 ; McGlensey v. 
Fleming, 4 Dev. & B. 129 ; Wolfe v. Fleming, 1 Ired. 290 ; 
Brenneman v. Edwards, 55 Iowa 374 ; Smith v. Eastman, 3 
Cush. 355 ; Mumford v. Freeman, 8 Mete. 432. 

(3) The admission must show a willingness to assume an 
immediate obligation, and not be a mere expression of hope or 
expectation ; Blakeman v. Fonda, 41 Conn. 565 ; Norton v. 
Shepard, 48 Conn. 141 ; Ecker v. First Nat. Bank, 59 Md. 291 ; 
Kirby v. Mills, 78 N. C. 124 ; Marseilles v. Kenton, 17 Pa. St. 
238 ; Oakes v. Mitchell, 15 Me. 360 ; or an offer to compromise 
or a payment by way of compromise ; Brenneman v. Edwards, 
55 Iowa 374; Winchester v. Sibley, 132 Mass. 273. 

(4) There must be nothing in what is said at the time of the 



WHITCOINIB Y. WHITING. 909 

unqualified admission or in the attendant acts of the defendant, 
inconsistent with an intention to pay the obligation ; Fries v. 
Boisselet, 9 S. & R. 128 ; Church v. Feterow, 2 R. & W. 301 ; 
Hogan V. Bear, 5 Watts 111 ; Zacharias v. Zacharias, 23 Penn. 
St. 452 ; Wesner v. Stern, 97 Pa. St. 322 ; Wetzell v. Bussard, 
11 Wheat. 315 ; Moore v. Bank of Columbia, 6 Pet. 92 ; Allen v. 
Webster, 15 Wend. 284; Stafford v. Richardson, 15 Wend. 302; 
Philps V. Stewon, 12 Vt. 256 ; Manning v. Wheeler, 13 N. H. 
486 ; Thayer v. Mills, 14 Me. 300 ; Goldsby v. Gentle, 5 Blackf. 
436 ; Hay v. Kramer, 2 W. & S. 137. Though the debtor will 
not be allowed to lull the creditor to sleep by ambiguous lan- 
guage calculated to deceive him. 

When a debtor has once made his election to be bound, he 
cannot afterwards recede from it ; Barley v. Crane, 21 Pick. 
323 ; Mumford v. Freeman, 8 Meic. 432. The debtor may 
remove the bar as to part of a debt, and not as to all if he so 
wills ; Graham v. Keys, 29 Penn. St. 189 ; McDonald v. Under- 
bill, 10 Bush 585. 

3. By ■yyliom must an acknowledgment or promise be made ? — 
A. In Gieneral. It seems well settled that an acknowledg- 
ment by one can never be used against another who has not 
authorized or ratified it, when the contract of each is several^ 
though founded on the same consideration; Bowch-e v. Hampton, 
.6 Rich. 208; Stowers v. Blackburn, 21 La. An. 127. For ex- 
ample, the acknowledgment of the endorser of a note will not 
operate against the maker or that of the maker against the 
endorser; Bibb v. Peyton, 11 S. & M. 275; Dean v. Munroe, 
32 Ga. 28. 

As to the effect of payment or acknowledgment by one on 
the obligation of the other in case of principal and surety, 
see Haight v. Avery, 16 Hun 252; Nat. Bank v. Ballon, 49 
N. Y. 155; Delevan\'. Cotton (Wise), 9 N. W. Rep. 926, 928. 

The joint nature of the oliligation must appear aliunde and 
not merely by the acknowledgment ; Hackley v. Hastie, 3 
Johns. 536 ; Shelton v. Cocke 3 Munf . 240 ; Smith v. Ludlow, 
9 Johns. 267. 

B. Joint Debtor or Contractor. — The decision in Whitcomb 
V. Whiting, as to the effect, as regards the Statute of Limita- 
tions, of unauthorized acknowledgment or payment by a joint 
contractor, is law to-day in but very few of the American states 
or territories. In some of them the courts have from the first 



910 WHITCO:!iIB V. WHITING. 

refused to follow it; in most of tliem the contrary has been 
established b}' statute. The general rule now is that in all 
cases the promise or acknowledgment must be made by the 
debtor whom it is sought to charge, or his authorized agent; 
Smith V. Ryan, 66 N. Y. 352 ; Kelly v. Weber, 27 Hun 8. 

This rule has been established by the Courts in the following 
states : — 

Florida : Tate v. Clements, 16 Florida 339. Indiana : Con- 
key V. Barbour, 22 Ind. 196. JVeiv Hampsliire : Whipple v. 
Stevens, 22 N. H. 219. Petmsylvania : Coleman v. Fobes, ,22 
Pa. St. 156. Tennessee : Belotes Exrs. v. Wynne, 7 Yer. 534 ; 
and also seems to be the law in Illinois. 

In the following states and territories it has been embodied 
in statute, and in all but two or three of them the promise or 
acknowledgment, if not by part payment, must be made iu 
writing signed by the party to be charged : — 

Alabama : Code 1876, sec. 3240. Arizona : Compiled Laws 
1877, ch. 35, sec. 2108. Arkansas : Digest of Stats. 1874, ch. 
88, sees. 4134, 4135. California : Code of Civil Procedure, sec. 
10360. Colorado : General Laws 1877, ch. 60, sec. 19. Dakota: 
Revised Code 1877, part IL ch. 6, sec. 73. Georgia: Code 

1873, part II. title VII. ch. 9, art 9, sees. 2930-2934. 
Idaho : General Laws 1880, 1881, sec. 178. Illinois : Revised 
Stats. 1881, ch. 83, sec. 16. Indiana : Statutes 1876, vol. II. 
part IL ch. 1, art. 12, sees. 220-223. Iowa : Revised Code 1880, 
title XYII. ch. 2, sec. 2539. Kansas : Compiled Laws, ch. 80, art. 
3, sec. 24. Louisiana: R. S. 1876, sec. 2818. Maine: Revised 
Stats. 1883, ch, 81, sees. 97-100. Massaclmsetts : Public Stat- 
utes 1882, title Y. ch. 197, sees. 15-18. Michigan: Compiled 
Laws 1871, sees. 7164, 7165. Mimiesota : General Stats, ch. 66, 
title II. sec. 24. Blississippi : Revised Code, 1880, ch. 76, sec. 
2688. Missouri : Revised Stats. 1879, ch. 48, sees. 3248, 3250. 
Montana: Revised Stats. 1879, first div., title III. sec. 53. 
Nebraska: Compiled Stats, part II. title II. sec. 22. Nevada: 
Compiled Laws 1873, sec. 1045. Neio Jersey: Revision of 

1874, Lira, of actions, sees. 10,11. Neiv Mexico: General Laws, 
art. 32, ch. 73, sec. 13. Neiv York: Code of Civil Procedure, 
sec. 395. North Carolina: Code of Civil Procedure, ch. 17, 
title lY. sees. 50-52. Ohio: Revised Stats. 1880, sec. 4992. 
Oregon : Civil Code, ch. 1, title II. sec. 24. South Carolina : 
Code of Procedure, sec. 133. Texas : Revised Stats. 1879, art. 



WHITCOMB V. WHITING. 911 

3219. Utah: Compiled Laws 1876, title XVIII. Vermont: 
Revised Laws 1880, cli. 56, sees. 974-977. Virginia : Code 1873, 
title XLV. ch. 146, sec. 10. Washington Territory : Code, sec. 44. 
West Virginia: Revised Stats. 1879, ch. 119, sec. 8. Wisconsin: 
Revised Stats. 1878, sees. 4243-4248. Wyoming : Compiled 
Laws 1876, cli. 13, sec. 21. 

This leaves only four states where possibly it would be still 
followed : Connecticut, Delaware, Maryland, and Rhode Island; 
Caldwell V. Sigourney, 19 Conn. 37 ; Schindel v. Gates, 46 Md. 
604; Wheelock v. Doolittle, 18 R. I. 440. 

In Maryland, however, there is the limitation that the ac- 
knowledgment must be made before the statute has once run, 
on the ground that the common interest which alone makes the 
admission of one debtor binding on another ceases whenever 
the statute takes eifect, and, therefore, they are no more respon- 
sible for each other's words and actions than mere strano-ers. 

Ratification may take the place of authorization, but mere 
neglect by one not actually present to disclaim the act of a co- 
contractor on hearing of it, will not be enough to ratify his ac- 
knowledgment ; Littlefield v. Littlefield, 91 N. Y. 203 ; Gould 
V. Cayuga Bank, 86 X. Y. 75 ; Click v. Crist, 37 Ohio St. 388 ; 
Mainzinger v. i\Iohr, 41 Mich. 685 ; Whipple v. Stevens, 2 Fos. 
227. 

C. Partner. — Before dissolution, in accordance with the 
general rule, one partner can bind another by an acknowledg- 
ment, if given in the ordinary course of business, the partner- 
ship relation making each the agent of the others. After 
dissolution they are regarded in the same way as other joint 
obligors ; Baker v. Stackpole, 9 Cow. 420 ; Yale v. Eames, 1 
Mete. 486 ; Xational Bank v. Xorton, 1 Hill 572 ; Mitchell v. 
Ostrom, 2 Hill 520 ; Schoneman v. Fegley, 7 Pa. St. 433 ; Clark 
V. Brown, 86 Pa. St. 502 ; Lazarus v. Fuller, 89 Pa. St. 331 ; 
Daniel v. Xelson, 10 B. ^Nlon. 316 : Hamilton v. Summers, 12 B. 
Mon. 11 ; Hamilton v. Seaman, 1 Car. 185; Palmer v. Dodge, 4 
Ohio St. 21 ; Tate v. Clements, 16 Fla. 339 ; Hance v. Hair, 25 
Ohio St. 349 ; Campbell v. Brown, 86 N. C. 376. 

So where Whitcomb v. Whiting is followed, one partner of 
such firm can still by an acknowledgment revive a debt or con- 
tract as to all ; Austin v. Bostwick, 9 Conn. 496 ; Caldwell v. 
Sigourney, 19 Conn. 37 ; Turner v. Ross, 1 R. I. 88 ; Wheelock 
V. Doolittle, 18 R. I. 440. And where Whitcomb v. Whitino- is 



912 WHITCOMB Y. WHITING. 

oiot followed a fortiori^ unless expressly authorized, he can re- 
vive it only as against himself ; Bell v. Morrison, 1 Pet. 351 ; 
Exeter Bank v. Sullivan, 6 N. H, 124 ; Steele v. Jennings, 1 
McMull. 297 ; Beloles Ex'rs v. Wynne, 7 Yerg. 534 ; Muse v. 
Donelson, 2 Humph. 166 ; Yandes v. Le Favour, 2 Blackf. 371 ; 
Dickerson v. Turner, 12 Ind. 239; Lowther v. Chapell, 8 Ala. 
353 ; Levy v. Cadet, 17 S. & R. 126 ; Searight v. Craighead, 1 
P. & W. 135 ; Fonte v. Bacon, 24 jMiss. 156 ; Briscol v. Anke- 
tell, 28 Miss. 361 ; Palmer v. Dodge, 4 Ohio St. 21, 36 ; Myatts 
V. Bell, 41 Ala. 222 ; Bush v. Stowell, 71 Pa. St. 208 ; Kallen- 
bacli V. Dickinson, 100 111. 427 ; Mayberry v. Willoughby, 5 
Neb. 370. 

Payment or other acknowledgment by one partner of a dis- 
solved fii-m, under the direction of the other, binds both ; Haight 
V. Avery, 16 Hun 252 ; McConnell v. Merrill, 53 Vt. 149. 

The same is true, in all similar cases, for instance, when two 
of three sureties referred the creditor to the principal, who 
made a partial payment, the debt was held to be renewed as \o 
them, but not against the third surety who was ignorant of the 
transaction; Winchell v. Hicks, 18 N. Y. 559. 

Proof that the firm was dissolved will not be a sufficient 
answer to a promise or acknowledgment by one of the partners, 
unless it is shown that notice was given to the creditor ; Tap- 
pan V. Kimball, 30 N. H. 136 ; Forbes v. Garfield, 32 Hun 389. 

D. Executor or Administrator. — In many of the earlier and 
some recent decisions an acknowledgment or promise by an 
executor or administrator is held to have the same effect in 
removing the bar of the statute as if it had been made by the 
debtor in his lifetime ; Whitaker v. Whitaker, 6 Johns. 112 ; 
Larason v. Lambert, 7 Halls 247 ; Chambers v. Fennemore, 4 
Harr. 368 ; Baxter v. Penniman, 8 Mass. 133 ; Emerson v. 
Thompson, 16 Mass. 429; Foster v. Starkie, 12 Cush. 324; 
Whitney v. Bigelow, 4 Peck 110, 113 ; Semmes v. Magruder, 
10 Md. 242; Walch v. McGrath, 59 Iowa 519; Black v. Do- 
man, 51 Mo. 31 ; Ecker v. First Nat. Bank, 59 :\Id. 291 ; Griffin 
V. The Justices, 17 En. 96 ; Shreve v. Joyce, 36 N. J. Law 44 ; 
Northcut V. Wilkinson, 12 B. Mon. 408 ; Badger v. Gilmore, 33 
N. H. 301. 

The weight of authority is now against this proposition ; 
Oakes v. Mitchell, 15 Me. 360 ; Bunker v. Athearn, 35 Me. 364 ; 
Bloodgood V. Bruen, 8 N. Y. 362 ; Cayuga Bank v. Bennett, 5 



WHITCOMB V. WHITING. 913 

Hill 236 ; Mead v. Jenkins, 4 Redf. 309 (but see contra later 
New York cases ; Cotter v. Quinlan, 2 Dem. 29 ; Matter of 
Dunn, 5 Dem. 124) ; Ciples v. Alexander, 2 Cons. R. 767 ; 
TuUock V. Dunn, Ry. & M. 446 ; Carvithers v. Mardiss, 3 Ala. 
599 ; Conoway v. Spicer, 5 Harr. 425 ; Fritz v. Thomas, 1 Whart. 
71; Reynolds v. Hamilton, 7 Watts 420; Forney v. Benedict, 
5 Penn. St. 225 ; Clark v. Maquire, 35 Penn. St. 259 ; Patter- 
son V. Cobb, 4 Fla. 481 ; Henderson v. Illsley, 11 Sm. & M. 9 ; 
Peck V. Botsford, 7 Conn. 172; Steel v. Steel, 2 Jon. 64; Moore 
V. Hillebrout, 14 Texas 312. 

A few cases have attempted to draw a distinction between a 
promise or part payment and a mere acknowledgment, but there 
seems none in principle ; Baxter v. Penniman, 8 Mass. 133 ; 
Bloodgood V. Bruen, 8 N. Y. 362. 

In others, it has been intimated that an acknowledgment or 
promise by all of several executors or administrators will re- 
move the bar of the statute when the same by part of their 
number would not ; Conoway v. Spicer, 2 Harr. 425 ; Hueston 
V. Hueston, 2 Ohio St. 488 ; Bloodgood v. Bruen, 4 N. Y, 362, 
370 ; Caruthers v. Mardiss, 3 Ala. 599 ; Cayuga Bank v. Bennett, 
5 Hill 236. 

This distinction has been expressly repudiated in many 
states, and it has been held that an express promise by one of 
several executors or administrators will take the case out of 
the statute as to all ; Johnson v. Beardslee, 15 Johns. 3 ; Briggs 
V. Ex'rs of Starke, 2 Cons. R. Ill ; Hords Admrs. v. Lee, 4 
Mon. 36 ; Griifin v. Justices, 17 Ga. 96 ; Shreve v. Joyce, 36 
N. J. Law 44. 

The matter is now quite generally regulated by statute. 

E. Assignee of Insolvent Debtor. — In Clark v. Chambers 
(Neb. 1885), 22 N. W. Rep. 229, it was held, citing ; Marienthal 
V. Master, 16 Ohio 566 ; Stoddard v. Doane, 7 Gray (Mass.) 387 ; 
Pickett V. King, 38 Barb. 193 ; Roosevelt v. Mark, 6 Johns. Ch. 
266 ; that the payment of a dividend by the assignee would not 
take the residue of the debt out of the statute, the Court re- 
marking, " While it cannot be said that the argument is all on 
the side of the above cases, and there are high authorities hold- 
ing the other way of thinking, yet T think the weight of reason 
as well as of authority is with them. 

(4) To whom must the promise or acknowledgment be made ? 
— In many of the earlier cases it was held that any acknowledg- 



914 WHITCOMB V. WHITING. 

ment from which the continued existence of debt could be 
inferred was sulhcient whether made to a third party or to the 
plaintiff in the action ; Xewkirk v. Campbell, 5 Harr. 380 ; 
McRae v. Kennon, 1 Ala. 225 ; Soulden v. Van Rensselaer, 9 
Wend. 297 ; Titus v. Ash, 24 N. H. 319 ; PhHips v. Peters, 21 
Barb. 351 ; Watkins v. Stevens, 4 Barb. 168 ; Carshore v. Huyck, 

6 Barb. 585 ; Whitney v. Bigelow, 4 Pick. 110 ; Minkler v. Mink- 
ler, 16 Vt. 193 ; Oliver v. Gray, 1 Harr. & G. 204 ; Bird v. Adams, 

7 Ga. 505 ; St. John v. Garron, 4 Post. 225 ; Edmundson v. Penny, 
1 Penn. St. 335 ; Hassenger v. Solus, 5 S. & R. 416 ; Evans v. 
Carey, 29 Ala. 99 ; Criswell v. Criswell. 

The later cases make a distinction between an acknowledg:- 
ment to a third person, not intended to reach the ear of the 
creditor, and one where the expectation was that it would be 
conveyed to him and influence his conduct. In the first in- 
stance holding that the bar of the statute was not removed ; 
Bloodgood V. Bruen, 4 Sandf. 427; Wakeman v. Sherman, 5 
Sandf. 85 ; Kyle v. Wells, 17 Penn. St. 286 ; Gillingham v. Gil- 
lingham, 17 Penn. St. 302 ; Pearson v. Darrington, 32 Ala. 227 ; 
Allen V. Collier, 70 Mo. 138 ; McGrew v. Forsyth, 80 111. 47 ; 
Fletcher v. Updike, 67 Barb. 364; Reeves v. Correll, 19 111. 
189 ; McKinney v. Snyder, 78 Penn. St. 497 ; but that it ivas in 
the latter; Winterton v. Winterton, 7 Hun 230; Wakeman v. 
Sherman, 5 Sel. 85, 92 ; 2 Story Eq. Seel. 1521 ; Collett v. 
Frazier, 3 Jon. Eq. 80 ; Jordan v. Hubbard, 26 Ala. 433 ; 
Evans v. Carey, 29 Ala. 99 ; Criswell v. Criswell, 59 Pa. St. 
130. 

It seems to be a question of intention in any case, and the 
proper test should be whether the debtor intends to make an 
irrevocable engagement to pay the debt to the creditor. This 
appearing, it is immaterial to whom the acknowledgment or 
promise is made ; Bloodgood v. Bruen, 11 X. Y. 362, 367 ; 
Evans v. Carey, 29 Ala. 99 ; Criswell v. Criswell, 59 Pa. St. 
130 ; Black v. White, 13 S. C. 37 ; DeForest v. Warner, 98 N. Y. 
217. 

The weight of authority seems to establish that a promise or 
acknowledgment by the maker or acceptor of a promissory note 
or bill of exchange, made to one of the parties, will take the 
debt out of the statute as to all, though the one to whom it 
was made had at the time transferred the instrument ; Dean v. 
Hewit, 5 Wend. 257 ; Pinkerton v. Bailey, 8 Wend. 600 ; Bad- 



WHTTCOMB V. WHITDTG. 915 

ger V. Gilmore, 33 N. H. 861; Way v. Sperry, 6 Gush. 238; 
Cripps V. Davis, 12 M. & W. 159. 

5. "When. — The distinction above alluded to as made in 
Maryland, between the office of an acknowledgment made be- 
fore the statute has run, and one made afterwards, has been 
noticed elsewhere, but the reason given seems to limit it to the 
case of co-obligor. 

The fact that the statute has run, may, however, be very 
material as showing intention. An act that would indicate an 
intention to acknowledge a debt before the statute had run, 
might not be sufficient to show such intention afterwards ; 
Matter of Dunn, 5 Dem. (N. Y.) 124. 

6. Form of pleading. — It is well settled, in accordance with 
the foregoing, that in actions at law the new promise is proper 
matter for a replication, and not for the original statement of 
the cause of action ; Guy v. Tarns, 6 Gill 82 ; Little v. Blunt, 
9 Pick. 488 ; Martin v. Williams, 17 Jolms. 330 ; Van Allen v. 
Feltz, 32 Barb. 139 ; Biscoe v. Stone, 6 Eng. 39 ; Tompkins v. 
Brown, 1 Dem. 247 ; Watkins v. Stevens, 4 Barb. 168 ; Titus 
V. Ash, 24 X. H. 319 ; Shackleford v. Douglass, 31 Miss. 95 ; 
Way V. Sperry, 6 Gush. 288. 

The reason is often stated to be that the new promise is 
only a matter of evidence and does not create a new cause of 
action ; Dean v. Hewit, 5 Wend. 257 ; Carshore v. Huyck, 6 
Barb. 583. 

This, as we have seen, is not strictly correct. The recovery 
is on a new cause of action, though, owing to the general form 
of pleading, the declaration does not show it. The mistake 
seems to have been in regarding the declaration as on the 
original cause of action, whereas from the first it is based on 
the one arising at the time of the new promise or acknowledg- 
ment, and the reply by way of new assignment makes this clear ; 
Keener v. Grull, 19 111. 189; Briscoe v. Anketell, 28 Miss. 361; 
Stewart v. Reckless, 4 Zab. 427, 429. 



MOSTYN V. FABRIGAS. 



MICHAELMAS. — 15 GEO. 3, B. R. 
[reported cowp. IGl.] 

Trespass and false imprisonment lies in England hy a native 
Minorquin^ against a governor of Minorca^ for such injury 
coynmitted hy him in Minorca. 

Jf the imprisonment was justifiable., the governor must j^lead his 
authority specially (a). 

On the 8th of June, in last term, Mr, Justice Groidd came 
personally into court to acknowledge his seal affixed to a bill 
of exceptions in this case; and errors having been assigned 
thereupon, they were now argued. 

This Avas an action of trespass, brought in the Court of Com- 
mon Pleas, by Anthony Fabrigas against Jolm JMostyn, for an 
assault and false imprisonment : in which the jjlaintiff declared 
that the defendant on the 1st of September, in the year 1771, 
with force and arms, &c., made an assault upon the said 
Anthony at 3Iinorca (to tvif) at London aforesaid, in the parish 
of St. Mary-le-Bou\ in the w^ord of Cheap., and beat, wounded, and 
ill-treated him, and then and there imprisoned him, and kept 
and detained him in prison there for a long time, (to wif) for 
the space of ten months, without any reasonable or probable 
cause, contrary to the laws and customs of this realm, and 
against the will of the said Anthony, and compelled him to 
depart from 3Iinorca aforesaid, where he was then dwelling and 
resident, and carried, and caused to be carried, the said 
Anthony from 3Iinorca., aforesaid, to Cartliagcna., in the domin- 
ions of the King of Spain, &c., to the plaintiff's damage of 
10,000^. 

The defendant pleaded, 1st, Not guilty ; upon which issue 

(a) See Briant v. Clutten, 5 Dowl. 6G. 
916 



MOSTYX V. FABRIGAS. 917 

was joined. 2ndly. A special justifies. tioii, that the defendant 
at that time, &c., and long before, was governor of the said 
Ishmd of Minorca, and during all that time was invested with 
and did exercise all the powers, privileges, and authorities, civil 
and militar}', belonging to the government of the said Island of 
Minorca, in parts beyond the seas ; and the said Anthony, 
before the said time when, &c., to wit, on the said 1st of Sep- 
tember, in the year aforesaid, at the Island of Minorca afore- 
said, was guilty of a riot, and was endeavouring to raise a 
mutiny among the inhabitants of the said island, in breach of 
the peace ; whereupon the said John, so being governor of the 
said island of Minorca as aforesaid, at the same time, when, &c., 
in order to preserve the peace and government of the said 
island, was obliged to and did then and there order the said 
Anthony to be banished from the said island of Minorca; and, 
in order to banish the said Anthony, did then and there gently 
la}^ hands upon the said Anthony, and did then and there seize 
and arrest him, and did keep and detain the said Anthony, before 
he could be banished from the said island, for a short space of 
time, to ivit, for the space of six days then next following; 
and afterwards, to wit, on the 7th of September, in the year 
aforesaid, at Minorca, aforesaid, did carry and cause to be carried 
the said Anthony on board a certain vessel from the island of 
Minorca aforesaid to Carthagena aforesaid, as it was lawful for 
him to do, for the cause aforesaid ; which are the same making 
the said assault upon the said Anthony in the first count of the 
said declaration mentioned, and beating and ill-treating him, 
and imprisoning him, and keeping and detaining him in prison 
for the said space or time, in the said first count of the said 
declaration mentioned, and compelling the said Anthony to 
depart from Minorca aforesaid, and carrying and causing to be 
carried the said Anthony from Minorca to Carthagena, in the 
dominions of the King of Spain, whereof the said Anthony has 
above complained against him, and this he is ready to verify ; 
wherefore he prays judgment, &c., without this, that the said 
John was guilty of the said trespass, assault and imprisonment, 
at the parish of St. Mary-le-Bow, in the ward of Cheap, or else- 
where, out of the said island of Minorca aforesaid, Beplication 
de injuria sua jyroprid absque tali causd. At the trial the jury 
gave a verdict for the plaintiff, upon both issues, with 3,000?. 
damages, and 90/. costs. 



918 MOSTYN y. FABRIGAS. 

The substance of the evidence, as stated by the bill of excep- 
tions, was as follows : on behalf of the plaintiff, that the de- 
fendant at the island of Minorca on the 17th of September, 
1771, seized the plaintiff, and, without any trial, imprisoned 
him for the space of six days ag-ainst his will, and l)anished him 
for the space of twelve months from the said island of Minorca 
to Cartliagena in Spain. On behalf of the defendant, that the 
plaintiff was a native of 3Iinorca and at the time of seizing, 
imprisoning, and banishing him as aforesaid, was an inhabitant 
of and residing in the Arraval of St. Phinip's, in the said 
island ; that Minorca was ceded to the crown of Great Britain, 
by the treaty of Utrecht, in the year 1713. That the Minor- 
quins are in general governed by the Spanish laws, but when 
it serves their purpose plead the Unglish laws : that there are 
certain magistrates, called the Chief Justice Criminal, and the 
Chief Justice Civil, in the said island : that the said island is 
divided into four districts, exclusive of the Arraval of St Phil- 
lip's ; which the witness always understood to be separate and 
distinct from the others, and under the immediate order of the 
governor ; so that no magistrate of Mahm could go there to 
exercise any function, without leave first had from the governor : 
that the Arraval of St. Phillip's is surrounded by a line wall 
on one side, and on the other by the sea, and is called the 
Royalty, where the governor has greater power than anywhere 
else in the island ; and where the judges cannot interfere but 
by the governor's consent: that nothing can be executed in 
the Arraval but by the governor's leave, and the judges have 
applied to him, the witness, for the governor's leave to execute 
process there. That for the trial of murder, and other great 
offences committed within the said Arraval, upon application 
to the governor, he generally appoints the assesseur criminel of 
3Iahon, and for lesser offences, the mustastaph ; and that the 
said Jolin Mostyn, at the time of the seizing, imprisoning, and 
banishing the said Anthon}', was the governor of the said 
island of Minorca, by virtue of certain letters patent of his 
present Majesty. Being so governor of the said island, he 
caused the said Anthony to be seized, imprisoned, and banished, 
as aforesaid, without any reasonable or probable cause, or any 
other matter alleged in his plea, or any act tending thereto. 

This case was argued this term by Mr. Buller, for the plain- 
tiff in error, and Mr. Peckham, for the defendant. Afterwards 



MOSTYN V. FABKIGAS. 919 

in Hilary Tenii, 1775, by INlr. Serjeant Walke7% for the plaintiff, 
and ]\Ir. Serjeant Glynn^ for the defendant. 

For the plaintiff in error. There are two questions, 1st, 
Whether in any case an action can be maintained in this 
country for an imprisonment committed at Minorca, upon a 
native of that place ? 

2ndly. Supposing an action will lie against any other person, 
whether it can be maintained against the governor acting as 
such in the peculiar district of the Arraval of St. Phillip's ? 

In the discussion of both these questions, the constitution 
of the island of Minorca and of the Arraval of St. Phillip's, 
are material. Upon the record it appears, that by the treaty 
of Utrecht, the inhabitants had their own property and laws 
preserved to them. The record further states that the Arraval 
of St. PhiUip'x, where the present cause of action arose, is sub- 
ject to the immediate control and order of the governor only, 
and that no judge of the island can execute any function there, 
without the particular leave of the governor for that purpose. 
I'st. If that be so, and the lex loci differs from the law of this 
country; the lex loci must decide, and not the law of this coun- 
tr}-. The case of Robinson v. Bland, 2 Bur. 1078, does not 
interfere with this position ; for the doctrine laid down in that 
case is, that where a transaction is entered into between British 
subjects with a view to the law of England, the law of the 
place can never be the rule which is to govern. But where 
an act is done, as in this case, which by the law of England 
would be a crime, but in the country where it is committed is 
no crime at all, the lex loci cannot but be the rule. It Avas so 
held by Lord Chief Justice Pratt, in the case of Pons v. Johv- 
son, and in a like case of Ballister v. Johnson, sittings after 
Trinity Term, 1765. 

2nd. In criminal cases, an offence committed in foreign parts 
cannot, except by particular statutes, be tried in this country : 
1 Vesey, 246, East India Company v. Campbell. If crimes com- 
mitted abroad cannot be tried here, much less ought civil in- 
juries, because the latter depend upon the police and constitu- 
tion of the country where they occur, and the same conduct 
may be actionable in one country, which is justifiable in 
another. But in crimes, as murder, perjury, and many other 
offences, the laws of most countries take for their basis the law 
of God, and the law of nature ; and, therefore, though the trial 



920 MOSTYN V. FABKIGAS. 

be in a different country from that in wliicli the offence was 
committed, there is a greater prolxibility of distributing- equal 
justice in such cases than in civil actions. In Keilwey, 202, it 
was held that the Court of Chancery cannot entertain a suit 
for dower in the Isle of Man, though it is part of the territorial 
dominions of the crown of England. 3rd. The cases where the 
courts of Westminster have taken cognizance of transactions 
arising abroad, seem to be wholly on contracts, where the laws 
of the foreign country have agreed with the laws of Mi(/la)i(l, 
and between English subjects ; and even there it is done by a 
legal fiction ; namely, by supposing under a videlicet, that the 
cause of action did arise within this country, and that the place 
abroad lay either in London or Islinr/ton. But where it appears 
upon the face of the record, that the cause of action did arise 
in foreign parts, there it has been held that the court has no 
jurisdiction. 2 Lutw. 946. Assault and false imprisonment of 
the plaintiff, at Fort St. George, in the East Indies, in parts be- 
yond the seas ; viz., at London, in the parish of St. 3far//-le- 
Boio, in the ward of Cheap. It was resolved, by the whole 
court, that the declaration was ill, because the trespass is sup- 
posed to be committed at Fort St. George, in parts beyond the 
seas, videlicet, in London; which is repugnant and al^surd: and 
it was said, by the Chief Justice, that if a bond bore date at 
Paris, in the Kingdom of France, it is not triable here. In the 
present case, it does appear upon the record, that the offence 
complained of was committed in parts beyond the seas, and the 
defendant has concluded his plea with a traverse, that he was 
not guilty in London, in the parish of St. Mary-le-Boiv, or else- 
where out of the island of Miiiorca. Besides it stands ad- 
mitted by the plaintiff ; because if he had thought fit to have 
denied it, he should have made a ncAV assignment, or have taken 
issue on the place. Therefore, as Justice Dodderidge says, in 
Latch, 4, tlie court must take notice, that the cause of action 
arose out of their jurisdiction. 

Before the statute of Jeofails, even in cases the most transi- 
tory, if the cause of action was laid in London, and there was a 
local justification, as at Oxford, the cause must have been tried 
at Oxford, and not in London. But the statute of Jeofails does 
not extend to Minorca: therefore, this case stands entirely 
upon the common law ; by which the trial is bad, and the ver- 
dict void. 



MOSTYN Y. FABEIGAS. 921 

The inconveniences of entertaining such an action in this 
country are many, but none can attend the rejecting it. For it 
must be determined by the law of this country, or by the law of 
the place where the act was done. If by our law, it would be 
the highest injustice, by making a man who has regulated his 
conduct by one law, amenable to another totally opposite. 
If by the law of Minorca, how is it to be proved ? There is uo 
legal mode of certifjdng it, no process to compel the attendance 
of witnesses, or means to answer them. The consequence 
would be to encourage every disaffected or mutinous soldier 
to bring actions against his oliticer, and to put him upon his de- 
fence without the power of proving either the law or the facts 
of his case. 

Second point. If an action would lie against any other per- 
son, yet it cannot be maintained against the Governor of Mi- 
norca, acting as such, within the Arraval of *S'^. Phillip's. 

The Governor of Minorca, at least within the district of St. 
Pltillips is absolute: both the civil and criminal jurisdiction 
vest in him as the supreme power, and as such he is accountable 
to none but God. But supposing he were not absolute : in this 
case, the act complained of was done by him in a judicial capac- 
ity as criminal judge ; for which no man is answerable. 1 
Salk. 396, aroenvelt v. Burivell ; 2 Mod. 218, Show. Pari. Cases, 
24, Dutton V. Hoivell, are in point to this position; but more 
particularly the last case, Avhere in trespass, assault, and false 
imprisonment, the defendant justified as governor of Barbadoes, 
under an order from the council of state in Barbadoes, made by 
himself and the council, against the plaintiff (who was the deputy- 
governor), for maladministration in his office ; and the House 
of Lords determined, that the action would not lie here. All 
the grounds and reasons urged in that case, and all the incon- 
veniences pointed out against that action, hold strongly in the 
present. This is an action brought against the defendant 
for what he did as judge ; all the records and evidence, which 
relate to the transaction, are in Minorca, and cannot be brought 
here : the laws there are different from what they are in this 
country ; and as it is said in the conclusion of that argument, 
government must be very weak indeed, and the persons en- 
trusted v/ith it very uneasy, if they are subject to be charged 
with actions here, for what they do in that character in those 
countries. Therefore, unless that case can be materially distin- 



922 MOSTYN V. FABHIGAS. 

guished from the present, it will be an anthority, and the 
highest authority that can be adduced, to show that this action 
cannot be maintained ; and that the plaintiff in error is entitled 
to the judgment of the court. 

Mr. Peckham, for the defendant in error. 1st, the objection 
to the jurisdiction is now too late ; for wherever a party has 
once submitted to the jurisdiction of the court, he is for ever 
after precluded from making any objection to it. Year Book, 
22 IT. C), fol. 7 ; Co. Litt. 127, b. ; T. Raym. 34 • 1 Mod. 81 ; 2 
Mod. 273 ; 2 Lord Raym. 884 ; 2 Vern. 483. 

Secondly. An action of trespass can l)c brought in England 
for any injur}^ done abroad. It is a transitory action, and may 
be brought anywhere. Co. Litt. 282; 12 Co. 114; Co. Litt. 
261, b., where Lord Coke says, that an obligation made beyond 
seas, at Bordeaux^ in France^ may be sued here in England^ in 
what place the plaintiff will. Captain Parker brought an 
action of trespass and false imprisonment against Lord Clive, 
for injuries received in India^ and it was never doubted but 
that the action did lie. And at this time there is an action 
dependhig between Gregory Cojimaul, an Armenian mer- 
chant, and Governor Verelst, in which the cause of action 
arose in Bengal. A bill w^as filed by the Governor in the 
Exchequer for an injunction, Avhich was granted ; but on 
appeal to the House of Lords, the injunction was dissolved; 
therefore, the Supreme Court of Judicature, by dissolving 
the injunction, acknowledged that an action of trespass could 
be maintained in England^ though the cause of action arose 
in India. 

Thirdly. There is no disability in tlie plaintiff which inca- 
pacitates him from bringing tliis action. Every person born 
within the ligeance of the King, though without the realm, is 
a natural-born subject, and as such, is entitled to sue in the 
King's courts. Co. Litt. 129. The plaintiff, though born in a 
conquered country, is a subject, and within the ligeance of the 
King : 2 Burr. 858. 

In 1 Salk. 404, upon a bill to foreclose a mortgage in the 
island of Sarke, the defendants pleaded to the jurisdiction, viz., 
that the island was governed by the laws of Normandy., and 
that the party ought to sue in the courts of the island, and 
appeal. But Lord Keeper Wright overruled the plea ; " other- 
wise there might be a failure of justice, if the Chancery could 



MOSTYN Y. FABKIGAS. 923 

not hold plea in such case, the party being here." In this case 
both the parties are upon the spot. In the case of Ramkissen- 
seat V. Barker^ upon a bill tiled against the representatiA^es of 
the Governor of Patna^ for money due to him as his Banyan; 
the defendant pleaded, that the plaintiff was an alien born, and 
an alien infidel, and therefore could have no suit here. But 
Lord Hardwicke said, " as the plaintiff's was a mere personal 
demand, it was extremely clear that he might bring a bill in 
this court." And he overruled the defendant's plea without 
hearing one counsel on either side. 

The case of the Countess of Derby, Keilwey, 202, does not 
affect the present question ; for that was a claim of dower ; 
which is a local action, and cannot, as a transitory action, be 
tried anywhere. The other cases from Latch and Lutwyche 
were either local actions, or questions upon demurrer ; there- 
fore, not applicable to the case before the court ; for a party 
may avail himself of many things upon a demurrer, which lie 
cannot by a writ of error. The true distinction is between 
transitory and local actions ; the former of which may be tried 
anywhere ; the latter cannot ; and this is a transitory action. 
But there is one case which more particularly points out the 
distinction, which is the case of Mr. Skinner, referred to the 
twelve Judges from the council board. In the year 1657, 
when trade was open to the East Indies, he possessed himself 
of a house and wareliouse, which he filled with goods, at Jamhy, 
and he purchased of the King at Great Jamhy the islands of 
BaretJia. The agents of the East India Company assaulted 
his person, seized his Avarehouse, carried away his goods, and 
took and possessed themselves of the islands of Baretha. Upon 
this case it was propounded to the Judges, by an order from 
the King in council, dated the 12th April, 1665, " Whether 
]\Ir. Skinner could have a full relief in any ordinary court 
of law ? " Their opinion was, " That his Majesty's ordinary 
courts of justice at Westminster can give relief for taking away 
and spoiling his ship, goods, and papers, and assaulting and 
wounding his person, notwithstanding the same was done be- 
yond the seas. But that as to the detaining and possessing of 
the house and islands in the case mentioned, he is not reliev- 
able in any ordinary court of justice." It is manifest from 
this case that the twelve Judges held, that an action might be 
maintained here for spoiling his goods, and seizing his person, 



924 MOSTYN V, FAIJiaCAS. 

because an action of trespass is a transitory action ; but an 
action could not be maintained for possessing the house and 
land, because it is a local action. 

Fourth point. It is contended that General Mostyn governs 
as all absolute sovereigns do, and that stct pro rafione voluntas 
is the only rule of his conduct. From whom does the governor 
derive this despotism? Xot from tlie King, for the King has 
no such power, and therefore cannot delegate it to another. 
]\Ian3' cases have been cited, and much argument has been ad- 
duced, to prove that a man is not responsible in an action for 
what he has done as a judge ; and the case of Dutton v. Iloioell 
has been much dwelt upon ; but that ease has not the least 
resemblance to the present. The ground of that decision was, 
that Sir John Dutton was acting with his council in a judicial 
capacity, in a matter of public accusation, and agreeable to the 
laws of Barhadoes^ and only let the law take its course against 
a criminal. But Governor Mostyn neither sat as a military nor 
a civil judge ; he heard no accusation, he entered into no proof ; 
he did not even see the prisoner ; but in dii-ect opposition to all 
laws, and in violation of the first principles of justice, followed 
no rule but his own arbitrary will, and went out of his Avay to 
prosecute the innocent. If that be so, he is responsible for the 
injury he has done ; and so Avas the opinion of the court of C. B. 
as delivered by Lord Chief Justice DeCrrey^ on the motion for 
a new trial. If the governor had secured him, said his Lordship, 
nay, if he had barely committed him, that he might have been 
amenable to justice : and if he had immediately ordered a pros- 
ecution upon any part of his conduct, it would have been an- 
other question ; but the governor knew he could no more im- 
prison him for a twelvemonth (and the banishment for a year is 
a continuation of the original imprisonment), than that he could 
inflict the torture. Lord BeHamonfs Case, 2 Salk. 625, Pas. 12 
W. 3, is a case in point to show that a governor abroad is re- 
sponsible here ; and the stat. 12 W. 3, passed the same year, for 
making governors abroad amenable here in criminal cases, af- 
fords a strong inference that they were already answerable for 
civil injuries, or the legislature would at the same time have pro- 
vided acjainst that mischief. But there is a late decision not 
distinguishable from the case in question : Corny n v. Sabine, 
Governor of Gibraltar, Mich. 11 Geo. 2. The declaration 
stated, that the plaintiff was a master carpenter of tlie office of 



MOSTYN V. FABEIGAS. 925 

ordnance at GihraUar ; that Governor Sabine tried him b}' a 
court-martial, to which he was not subject ; that he underwent 
a sentence of 500 lashes ; and that he was compelled to depart 
from Gibraltar, which he laid to his damage of 10,000Z. The 
defendant pleaded not guilty, and justified under the sentence 
of the court-martial. There was a verdict for the plaintiff, with 
700?. damages. A writ of error was brought, but the judgment 
affirmed. 

With respect to the Arraval of St. PhilUj^s being a peculiar 
district, under the immediate authority of the governor alone, 
the opinion of Lord Chief Justice DeGrey, upon the motion 
for a new trial, is a complete answer ; "■ One of the witnesses 
in the cause,'' said his Lordship, '• represented to the jury, that 
in some particular cases, especially in criminal matters, the 
governor resident upon the island does exercise a legislative 
power. It was gross ignorance in that person to imagine such 
a thing : I may say it was impossible, that a man who lived upon 
the island in the station he had clone, should not know better, 
than to think that the governor had a civil and criminal power 
in him. The governor is the King's servant; his commission 
is from him, and he is to execute the power he is invested Avith 
under that commission; which is to execute the laws of Mi- 
norcq,, under such regulations as the King shall make in council. 
It was a vain imagination in the witnesses to say, that there 
were five terminos in the island of Minorca ; I have at various 
times seen a multitude of authentic documents and papers rela- 
tive to that island; and I do not believe that, in anyone of 
them, the idea of the Arraval of St. Phillip's being a distinct 
jurisdiction was ever started. Mahon is one of the four ter- 
minos, and St. Phillip's, and all the district about it, is com- 
prehended within that termino ; but to suppose that there is 
a distinct jurisdiction, separate from the government of the 
island, is ridiculous and absurd." Therefore, as the defendant, 
by pleading in chief, and submitting his cause to the decision 
of an Eyiglish jury, is too late in his objection to the jurisdic- 
tion of the court ; as no disability incapacitates the plaintiff 
from seeking redress here ; and as the action which is a transi- 
tory one is clearly maintainable in this country, though the 
cause of action arose abroad, the judgment ought to be affirmed. 
Should it be reversed, I fear the public, with too much truth, 
will apply the lines of the Roman satirist, on the drunken 



926 MOSTYN V. FABKIGAS. 

Marius, to the present occasion : and they will say of Governor 
Mostyn, as was formerly said of him, 

Hie est damnatus inani judicio ; 

and to the Minorquins, if Mr. Fabrigas should be deprived of 
that satisfaction in damages, which the jury gave him, 

At tu vietrix provincia ploras. 

Lord Mansfield. — Let it stand for another argument. It 
has been extremely well argued on both sides. 



On Friday, 27th of January, 1775, it was very ably argued 
by ]\Ir. Serjeant Glynn for the plaintiff, and by Mr. Serjeant 
Walker for the defendant. 

Lord 3Iansfield. — This is an action brought by the })laintiif 
against the defendant, for an assault and false imprisonment; 
and part of the complaint made being for banishing him from 
the island of Minorca to Carthar/ena in jSpain, it Avas necessary 
for the plaintiff, in his declaration, to take notice of the real 
place where the cause of action arose : therefore, he has stated 
it to be in Minorca ; with a videlicet at Londo7i, in the parish 
of St. Mary-le-Boiv, in the ward of Cheap. Had it not been 
for that particular requisite, he might have stated it to have 
been in the county of Middlesex. To this declaration the 
defendant put in two pleas. First, " not guilty " ; secondly, 
that he was Governor of 3Iino7'ca, by letters patent from the 
crown ; that the plaintiff was raising a sedition and mutiny ; 
and that, in consequence of such sedition and mutiny, he did 
imprison him and send him out of the island ; which, as gov- 
ernor, being invested with all the privileges, rights, &c., of 
governor, he alleges he had a right to do. To this plea the 
plaintiff does not demur, nor does he deny that it would be a 
justification in case it were true : but he denies the truth of the 
fact: and puts in issue whether the fact of the plea is true. 
The plea avers that the assault for which the action was 
brought arose in the island of Minorca, out of the realm of 
England, and nowhere else. To this the plaintiff has made no 
new assignment, and therefore by his replication he admits the 
locality of the cause of action. 

Thus it stood on the pleadings. At the trial the plaintiff 
went into the evidence of his case, and the defendant into evi- 



MOSTYN V. FABRIGAS. 927 

dence of liis ; but on behalf of the defendant, evidence differ- 
ent from the facts alleged in his plea of justification was given, 
to show that the Arraval of St. PhilUjfs., where the injury com- 
plained of was done, was not within either of the four pre- 
cincts, but is a district of itself, more immediately under the 
power of the governor ; and that no judge of the island can 
exercise jurisdiction there, without a special appointment from 
him. Upon the facts of the case, the judge left it to the jury, 
who found a verdict for the plaintiff, with 3000Z. damages. 
The defendant has tendered a bill of exceptions, upon which 
bill of exceptions the cause comes before us : and the great 
difficulty I have had upon both the arguments, has been to 
be able clearly to compreliend what the question is, which is 
meant seriously to be brought before the court. 

If I understand the counsel for Governor Mostyn right, what 
they say is this : The plea of not guilty is totally immaterial ; 
and so is the plea of justification : because upon the plaintiff's 
own showing it appears, 1st, that the cause of action arose in 
Mino7'ca,' out of the realm ; 2ndly, that the defendant was Gov- 
ernor of Minorca, and by virtue of such his authority impris- 
oned the plaintiff. From thence it is argued that the judge 
who tried the cause ought to have refused any evidence what- 
soever, and have directed the jury to find for the defendant : 
and three reasons have been assigned. One, insisted upon in 
the former argument, Avas that the plaintiff, being a 3Imo7-qidn, 
is incapacitated from bringing an action in the King's courts in 
England. To dispose of that objection at once, I shall only 
say, it is wisely abandoned to-day ; for it is impossible there 
ever could exist a doubt, but that a subject born in Minorca 
has as good a right to appeal to the King's courts of justice as 
one who is born within the sound of Bow bell ; and the objec- 
tion made in this case, of its not being stated on the record 
that the plaintiff was born since the treaty of Utrecht., makes 
no difference. The two other grounds are, 1st, That the de- 
fendant being Governor of Minorca., is ansAverable for no injury 
whatsoever done by him in that capacity : 2ndly, That the 
injury being done at 3Iinorca, out of the realm, is not cogni- 
sable by the King's courts in England. — As to the first, nothing 
is so clear as that to an action of this kind, the defendant, if 
he has any justification, must plead it : and there is nothing 
more clear, than that if the court has not a general jurisdiction of 



928 MOSTVN V. FABRIGAS. 

the subject-matter, he must plead to the jurisdiction, and can- 
not take advantage of it upon the general issue. Therefore, 
by the law of Entjland, if an action be brought against a judge 
of record for an act done by him in his judicial capacity, he 
may plead that he did it as judge of record, and that will be a 
complete justification. So in this case, if the injury complained 
of had been done by the defendant as a judge, though it arose 
in a foreign country, where the technical distinction of a court 
of record does not exist, yet sitting as a judge in a court of 
justice, subject to a superior review, he would be within the 
reason of the rule which the law of Um/land says shall be a 
justification; but then it must be pleaded (a). Here no sucli 
matter is pleaded, nor is it even in evidence that he sat as judge 
of a court of justice. Therefore I lay out of the case every- 
thing relative to the Arraval of St. Phillip's. 

The first point, tlien, upon this ground is, the sacredness of 
the defendant's person as governor. If it were true that the 
law makes him that sacred character, he must plead it, and set 
forth his commission as special matter of justification f because 
2Jrimd facie the court lias jurisdiction. But I will not rest the 
answer upon that only. It has been insisted by way of dis- 
tinction, that, supposing an action will lie for an injury of this 
kind committed by one individual against another, in a country 
beyond the seas, but within the dominion of the crown of Eng- 
land., yet it shall not emphatically lie against the governor. In 
answer to which I say, that for many reasons, if it did not lie 
against any other man. it shall most emphatically lie against the 
governor. 

In every plea to the jurisdiction, 3'ou must state another 
jurisdiction ; therefore, if an action is brought here for a matter 
arising in Wcdes., to bar the remedy sought in this court, you must 
show the jurisdiction of the court of Wales ; and in every case 
to repel the jurisdiction of the King's court, jow. must show a 
more proper and more sufficient jurisdiction : for if there is no 
other mode of trial, that alone will give the King's courts a 
jurisdiction. Now, in this case no other jurisdiction is shown, 
even so much as in argument. And if the King's courts of 
justice cannot hold plea in such case, no other court can do it. 

(a) See Salk. 306; Vaiigh. 138; 12 513, 514, 535, 550, 784; 4 Taunt. G7; 
C. 24 ; Lord Raym. 46G ; 6 T. 11. 449 ; 2 C. & P. 146 ; 1 B. & C. 1G3 ; 4 B. & 
3 M. & S. 411. See too 1 T. R. 493, C. 292. 



MOSTYN V. FABRIGAS. 929 

For it is truly said that a governor is in the nature of a vice- 
ro}' ; and therefore locally, during his government, no civil or 
criminal action will lie against him : the reason is, because upon 
process he would be subject to imprisonment (a). But here 
the injury is said to have happened in the Arraval of St. Phil- 
lip's, where, without his leave, no jurisdiction can exist. If 
that be so, there can be no remedy whatsoever, if it is not in 
the King's courts : because, when he is out of the government, 
and is returned with his j^roperty into this country, there are 
not even his effects left in the island to be attached. 

Another very strong reason, which was alluded to by Mr. 
Serjeant Glynn, would alone be decisive ; and it is this : that 
though the charge brought against him is for a civil injury, yet 
it is likewise of a criminal nature ; because it is in abuse of the 
authority delegated to him by the King's letters patent, under 
the great seal. Now, if everything committed within a domin- 
ion is triable by the courts within that dominion, yet the effect 
or the extent of the King's letters patent, which gave the au- 
thority, can only be tried in the King's courts ; for no question 
concerning the seignor}^ can be tried within the seignory itself. 
Therefore, where a question respecting the seignory arises in 
the proprietar}' governments, or between tAvo provinces of 
America, or in the lale of Man, it is cognisable by the King's 
courts in England only. In the case of the Ide of Man, it was 
so decided in the time of Queen Elizabeth, by the chief justice 
and many of the judges. So that emphatically the governor 
must be tried in England, to see whether he has exercised the 
authority delegated to him by the letters patent, legally and 
properly ; or whether he has abused it, in violation of the laws 
of England, and the trust so reposed in him. 

It does not follow from hence, that, let the cause of action 
arise where it may, a man is not entitled to make use of every 
justification his case will admit of, which ought to be a defence 
to him. If he has acted right according to the authority with 
which he is invested, he must lay it before the court by way of 
plea, and the court will exercise their judgment whether it is a 
sufficient justification or not. In this case, if the justification 
had been proved, the court might have considered it as a suffi- 
cient answer : and if the nature of the case would have allowed 

(a) But see, as to this position, the note, post, pp. (58;^, 684. 



930 MOSTYN Y. FABRIGAS. 

of it, might haYe adjudged, that the raising a mutiny was a 
good ground for such a summary proceeding. 1 can conceive 
cases in time of war in which a governor would be justified, 
though he acted very arbitrarily, in which he could not be jus- 
tified in time of peace. Suppose, during a siege or upon an in- 
vasion of Minorca^ the governor should judge it proper to send 
a hundred of the inhabitants out of the island, from motives of 
real and general ex[)ediency; or suppose, upon a general sus- 
picion, he should take people up as spies ; upon proper circum- 
stances laid before the court,it would bo very fit to see whether 
he had acted as the governor of a garrison ought, according to 
the circumstances of the case. But it is objected, supposing 
the defendant to have acted as the Spanish governor was em- 
powered to do before, how is it to be known here that by the 
laws and constitution of Spain he was authorised so to act? 
The way of knowing foreign law^s is, by admitting them to be 
proved as facts, and the court must assist the jury in ascertain- 
ing what the law is. For instance, if there is a French settle- 
ment, the construction of which depends upon the custom of 
Paris, witnesses must be received to explain Avhat the custom 
is ; as evidence is received of customs in respect of trade. 
There is a case of the kind I have just stated. So in the su- 
preme resort before the King in council, the privy council de- 
termines all cases that arise in the plantations, in Gibraltar or 
Minorca, in Jersey or Guernsey ; and they inform themselves, 
by having the law stated to them. — As to suggestions with 
regard to the difficulty of iHinging witnesses, the court must 
take care that the defendant is not surprised, and that he has a 
fair opportunity of bringing his evidence, if it is a case proper 
in other respects for the jurisdiction of the court. There may 
be some cases arising abroad, which may not be fit to be tried 
here ; but that cannot be the case of a governor injuring a man 
contrary to the duty of his office, and in violation of the trust 
reposed in him by the King's commission. 

If he wants the testimony of witnesses whom he cannot com- 
pel to attend, the court may do what this court did in the case 
of a criminal prosecution of a woman who had received a 
pension as an officer's widow: and it was charged in the in- 
dictment, that she never was married to him. She allesfed a 
marriage in Scotland, but that she could not compel her wit- 
ness to come up to give evidence. The court obliged the 



MOSTYN V. TABEIGAS. 931 

prosecutor to consent that the witnesses might be examined 
before any of the judges of the court of session, or any of the 
barons of the court of exchequer in Scotland^ and tliat the 
depositions so taken should be read at the triah And they 
declared that they would have put off the trial of the indict- 
ment from time to time for ever, unless the prosecutor had so 
consented. The witnesses were so examined before the lord 
president of the court of session. 

It is a matter of course in aid of a trial at law to apply to a 
court of equity for a commission and injunction in the mean- 
time : and where a real ground is laid, the court will take care 
that justice is done to the defendant as well as to the plain- 
tiff («). Therefore, in every light in which I see the subject, 
I am of opinion that the action holds emphatically against the 
governor, if it did not hold in the case of any other person. If 
so, he is accountable in this court or he is accountable nowhere, 
for the King in council has no jurisdiction. Complaints made 
to the King in council tend to remove the governor, or to take 
from him any commission which he holds during the pleasure 
of the crown. But if he is in England^ and holds nothing at 
the pleasure of the crown, they have no jurisdiction to make 
reparation, by giving damages, or to punish him in any shape 
for the injury committed. Therefore to lay down in an Eng- 
lish court of justice such a monstrous proposition, as that a 
governor acting by virtue of letters patent under the great seal 
is accountable only to God and his own conscience ; that he is 
absolutely despotic, and can spoil, plunder, and affect his 
majesty's subjects, both in their liberty and property with im- 
punity, is a doctrine that cannot be maintained. 

In Lord Bellamont's case, 2 Salk. 625, cited by Mr. Peckham, 
a motion was made for a trial at bar, and granted because the 
Attorney-General was to defend it on the part of the King; 
which shows plainly that such an action existed. And in Wag 
V. Yallg, 6 Mod. 195, Justice Powell says, that an action of 

(a) And now, by st. 1 W. 4, c. 22, Dowl. 35; Bain v. De Vetrie, 3 Dowl. 
courts of common law can order the 517 ; Bridges v. Fisher, 1 Bing. N. C. 
examination of witnesses to be taken 512 ; Prince v. Samo, 4 Dowl. 5 ; Boiir- 
in writing whether they reside in a deaux v. Rowe, 1 Bing. N. C. 721 ; Du- 
foreign country, a colony, or in Eng- kett v. Williams, I Tyrwh. 502 ; Wain- 
land, but under circumstances which wright v. Bland, 3 Dowl. G53. [And 
disable them from attending to give see now, since the Judicature Act, 
evidence. See Boe v. Pattison, 3 0. 37, r. 5 et seq.'] 



932 MOSTYX V. FABRIGAS. 

false imprisonment has been brought here against a governor of 
Jamaica, for an imprisonment there, and the laws of the country 
"were given in evidence. The governor of Jamaica in that case 
never thought that he was not amenable. He defended him- 
self, and possibly showed, by the laws of the country, an Act of 
the Assembly which justified that imprisonment, and the Court 
received it as they ought to do. For whatever is a justification 
in the place where the thing is done, ought to be a justification 
where the case is tried. — I remember, early in my time, being 
counsel in an action brought b}' a carpenter in the train of 
artillery against (lovernor Sabine, Avho was governor of Gibral- 
tar, and who had barely confirmed the sentence of a court- 
martial, by which the plaintiff had been tried, and sentenced to 
be whipped. The governor was very ably defended, but nobody 
ever thought that the action would not lie ; and it being proved 
at the trial, that the tradesmen who follow the train are not 
liable to martial law, the court were of that opinion, and the 
jury accordingly found the defendant guilty of the trespass, as 
having had a share in the sentence ; and gave 500/. damages. 

The next objection which has been made is a general objec- 
tion, with regard to the matter arising abroad ; namely, that as 
the cause of action arose abroad, it cannot be tried here in Un(/- 
land. 

There is a formal and a substantial distinction as to the 
locality of trials. I state them as different things : the sub- 
stantial distinction is, where the proceeding is in rem, and wliere 
the effect of the judgment cannot be had, if it is laid in a wrong 
place. That is the case of all ejectments where possession is to 
be delivered by the sheriff of the county ; and as trials in Eng- 
land are in particular counties, the officers are county officers ; 
therefore the judgment could not have effect, if the action was 
not laid in the proper county. 

With regard to matters that arise out of the realm, there is a 
substantial distinction of locality too ; for there are some cases 
that arise out of the realm which ought not to be tried any- 
where but in the country where they arise ; as in the case 
alluded to by Serjeant Wcdker : if two persons fight in France, 
and both happening casually to be here, one should bring an 
action of assault against the other, it might be a doubt whether 
such an action could be maintained here ; because, though it is 
not a criminal prosecution, it must be laid to be against the 



MOSTYX V. FABRIGAS. 933 

peace of the king («) ; but the breach of the peace is merely 
local, though the trespass against the person is transitory. 
Therefore, without giving any opinion, it might perhaps be 
triable only Avhere both parties at the time were subjects. So if 
an action were brought relative to an estate in a foreign coun- 
try, where the question Avas a matter of title only and not of 
damages, there might be a solid distinction of locality. 

But there is likewise a formal distinction, which arises from 
the mode of trial : for trials in England being by jur}-, and the 
kingdom being divided into counties, and each county con- 
sidered as a separate district or principality, it is absolutely 
necessary that there should be some county where the action is 
brought in particular, that there may be a process to the sheriff 
of that county, to bring a jury from thence to try it. This 
matter of form goes to all cases that arise abroad : but tlie 
law makes a distinction between transitory actions and local 
actions. If the matter which is the cause of a transitory 
action arises within the realm, it may be laid in any county — 
the place is not material ; and if an imprisonment in 3Iiddlesex, 
it may be laid in Surrey, and though proved to be done in 
31iddlesex, the place not being material, it does not at all pre- 
vent the plaintiff recovering damages : the place of transitory 
actions is never material, except where by particular Acts of 
Parliament it is made so ; as in the case of churchwardens 
and constables, and other cases which require the action to be 
brought in the county. The parties, upon sufficient ground, 
have an opportunity of applying to the court in time to change 
the venue; but if they go to trial without it, that is no objec- 
tion. So all actions of a transitory nature that arise abroad 
may be laid as happening in an English county. But there are 
occasions which make it absolutely necessary to state in the 
declaration, that the cause of action really happened abroad; 
as in the case of specialties, Avhere the date must be set forth. 
If the declaration states a specialty to have been made at West- 

(a) It seems that the words contra the vi et arniis, that may now be 

/)acem were not necessary in a declai'a- omitted, yet quaere whetlier they can 

tion of trespass even before the Com- be held to stand on a different f oot- 

mon Law Procedure Amendment Act, ing, see Com. di. Pleader, 3 M. 8, and 

1852, for the fine to the king had been whether the df^ubt expressed by Lord 

abolished, and though in Day v. Mus- Manslield be well founded, see post, 

kett, L. Eaym. 985, Lord II(At said in notis. 
that it was not the contra pacem, but 



034 MOSTYN V. 1-ABRlGAS. 

minster in Middlesex^ and npon prodneing the deed, it bears 
date at Bengal, the action is gone ; because it is such a vari- 
ance between the deed and the declaration as makes it appear 
to be a different instrument. There is some confusion in the 
books upon the stat. 6 Rich. 2. l>nt T do not put the objection 
upon that statute. 1 rest it singly upon this ground : if the 
true date or description of the bond is not stated, it is at vari- 
ance. But the law has in that case invented a fiction ; and lias 
said the part}- shall first set out the description truly, and then 
give a venue o\\\\ for form, and for the sake of trial by a 
videlicet., in the count}' of Middlesex, or any other county. But 
no judge ever thought that when the det-laration said in Fort 
St. G-eorge, viz., in Clwapside, that the plaintiff' meant it was in 
Cheapside. It is a fiction of form ; every country has its forms, 
which are invented for the furtherance of justice ; and it is a 
certain rule, that a fiction of law shall never he contradicted so as 
to defeat the end for which it ivas invented, hut for every other pur- 
pose it may he contradicted (a). Now the fiction invented in 
these cases is barely for the mode of trial ; to every other pur- 
pose, therefore, it shall be contradicted, but not for the purpose 
of saying the case shall not be tried. So in the case that was 
long agitated and finally determined some years ago, upon a 
fiction of the teste of writs taken out in the vacation, which 
bear date as of the last day of the term, it was held, that the 
fiction shall not be contradicted so as to invalidate tlie writ, by 
averring that it issued on a day in the vacation : because the 
fiction was invented for the furtherance of justice and to make 
the Avrit appear right in form. But where the true time of 
suing out a latitat is material, as on a plea of 7ion assumpsit 
infra sex annas, there it may be shown that the latitat was sued 
out after the six years, notwithstanding the teste. I am sorry 
to observe, that some sayings have been alluded to, inaccurately 
taken down, and improperly printed, where the court has been 
made to say, that as men they have one way of thinking, and 
as judges they have another, which is an absurdity ; whereas in 
fact they only meant to support the fiction. I will mention a 
case or two to show that this is the meaning of it. 

In 6 Mod. 228, the case of Roberts v. Harnage is thus stated : 
The plaintiff declared that the defendant became bound to him 

(o) Cited by Bramwell, B., A.-G. v. Kent, 31 L. J. 396 ; Holmes v. Beg. 31 L. 
J. Cha. 58. 



.MOSTYX V. FABKIGAS. 935 

at Fort St. BavicTs in the East Indies at London., in such bond ; 
upon demurrer the objection was that the bond appeared to 
have been sealed and delivered at Fort St. David's in the East 
Indies, and therefore the date made it local, and, by conse- 
quence, the declaration ought to have been of a bond made at 
Fort St. David's in the East Indies, viz., at Islington in the 
county of Middlesex; or in such a ward or parish in London: 
and of that opinion was the whole court. This is an inaccu- 
rate statement of the case. But in 2 Lord Raym. 1042, it is 
more truly reported, and stated as follows : it appeared by the 
declaration that the bond was made at London in the ward of 
Cheap ; upon oyer, the bond was set out, and it appeared upon 
the face of it to be dated at Fort St. G-eorge in the East Indies; 
the defendant pleaded the variance in abatement, and the plain- 
tiff demurred, and it was held bad : but the court said that it 
would have been good if laid at Fort St. George in the East 
Indies, to wit, at London, in the ward of Cheaj). The objection 
there was, that they had laid it falsely ; for they had laid the 
bond as made at London; whereas, when the bond was pro- 
duced, it appeared to be made at another place, which was a vari- 
ance. A case was quoted from Latch, and a case from Lutwyche, 
on the former argument, but I will mention a case posterior 
in point of time, where both those cases .were cited, and no 
regard at all paid to them ; and that is the case of Parker v. 
Crook, 10 Mod. 255. It was an action of covenant upon a deed 
indented ; it was objected to the declaration, that the defendant 
is said in the declaration to continue at Fort St. George, in the 
East Indies : and upon the oyer of the deed it bore date at Fort 
St. George, and therefore the court, as was pretended, had no 
jurisdiction : Latch, fol. 4, Lutwyche, 950. Lord Chief Justice 
Parker said, that an action will lie in England upon a deed 
dated in foreign parts ; or else the party can have no remedy : 
but then in the declaration a place in England must be alleged 
pro formd. Generally speaking, the deed upon the oyer of it, 
must be consistent with the declaration: but in these cases, 
propter neeessitatem, if the inconsistenc}- be as little as possible, 
it is not to be regarded ; and here the contract being of a voy- 
age which was to be performed from Fort St. George to Great 
Britain, does import that Fort St. George is different from 
Great Britain ; and after taking time to consider of it in Hilary 
term, the plaintiff had his judgment, notwithstanding the ob- 



936 MOSTYN V. FABRIGAS. 

jection. Therefore, the whole amounts to this : that -where the 
action is suhstantially such a one as the court can hohl plea of, 
as the mode of trial is by jury, and as the jury must be called 
together by process directed to the sheriff of the county, matter 
of form is added to the fiction, to say it is in that county, and 
then the whole of the inquiry is, whether it is an action that 
ought to be maintained. But can it be doubted, that actions 
may be maintained here, not only upon contracts which follow 
the persons, but for injuries done by subject to subject; espe- 
cially for injuries, where the whole that is prayed is a repara- 
tion in damages, or satisfaction to be made by process against 
the person or his effects, within the jurisdiction of the court? 
We know it is within every day's experience. I was embarrassed 
a great while to find out whether the counsel for the plaintiff 
really meant to make a question of it. In sea batteries the 
plaintiff often lays the injury to have been done in Middlesex, 
and then proves it to be done a thousand leagues distant on 
the other side of the Atlantic. There are cases of offences on 
the high seas where it is of necessity to lay in the declaration 
that it was done upon the high seas ; as the taking a ship. 
There is a case of that sort occurs to my memory; the reason 
I remember it is, because there was a question about the juris- 
diction. There likewise was an action of that kind before 
Lord Chief Justice Lee, and another before me, in which I 
quoted that determination, to show that when the lords com- 
missioners of prizes have given judgment, that is conclusive 
in the action ; and likewise when they have given judgment, it 
is conclusive as to the costs, whether they have given costs or 
not. It is necessary in such actions to state in the declaration 
that the ship was taken, or seized on the high seas, videlicet, in 
Cheapdde. But it cannot be seriously contended that the 
judge and jur}^ who try the cause fancy the ship is sailing in 
Cheapside ; no, the plain sense of it is that, as an action lies in 
England for the ship which was taken on the liigh seas, Cheapside 
is named as a venue : which is saying no more than that the party 
prays the action may be tried in London. But if a party v/ere at 
liberty to offer reasons of fact contrary to the truth of the case, 
there would be no end of the embarrassment. At the last sit- 
tings there were two actions brought by Arnfienian merchants, 
for assaults and trespasses in the East Indies, and they are 
very strong authorities. Serjeant Glynn said, that the defend- 



MOSTYN V. FABRIGAS. 937 

ant, Mr. Verelst, was very ably assisted; so he was, and by men 
who would have taken the objection, if the}- had thought it 
maintainable, and the actions came on to be tried after this 
case had been argued once ; yet the counsel did not think it 
could be supported. Mr. Verelst would have been glad to 
make the objection ; he would not have left it to a jury, if he 
could have stopped them short, and said, You shall not try the 
actions at all. I have had some actions before me, rather go- 
ing further than these transitory actions ; that is, going to 
cases which in England would be local actions ; I remember 
one, I think it was an action brought against Captain Gamhier, 
who, by order of Admiral Boscatcen. had pulled down the 
houses of some suttlers who supplied the navy and sailors with 
spirituous liquors ; and whethei' the act was right or wrong, it 
was certainly done with a good intention on the part of the 
admiral, for the health of the sailors was affected by frequent- 
ing them. They were pulled down : the captain was inatten- 
tive enough to bring the suttler over in his own ship, who 
would never have got to England otherwise; and as soon as he 
came here he was advised that he should bring an action 
against the captain. He brought his action, and one of the 
counts in the declaration was for pulling down the houses. 
The objection was taken to the count for pulling down the 
houses ; and the case of Skinner and the East India Company 
was cited in support of the objection. On the other side, they 
produced from a manuscript note a case before Lord Chief Jus- 
tice Eyre^ where he overruled the objection ; and I overruled 
the objection upon this principle, namely, that the reparation 
here was personal, and for damages, and that otherwise tliere 
would be a failure of justice ; for it was upon the coast of Nova 
Scotia, where there were no regular courts of judicature ; but 
if there had been. Captain Gamhier might never go there 
again ; and therefore the reason of locality in such an action 
in England did not hold. I quoted a case of an injury of that 
sort in the Eai<t Lidies, where even in a eovu't of Equity Lord 
Hardwicke had directed satisfaction to be made in damages : 
that case before Lord JlardwicJce was not much contested, but 
this case before me was fully and seriously argued, and a thou- 
sand pounds damages given against Captain Gamhier. I do 
not quote this for the authority of my opinion, because that 
opinion is very likely to be erroneous ; but I quote it for this 



9o8 MCISTYX V. rAHRIGAS. 

reason — a thousand pounds damages and the costs were a con- 
siderable sum. As the captain had acted b}^ the orders of Ad- 
miral Boseairi')i, the representatives of the admiral defended 
the cause, and paid the damages and costs recovered. The 
case was favourable ; for what the admiral did was certainly 
well intended ; and yet there was no motion for a new trial. 

I recollect another cause that came on before me : which 
AA'as the case of Admiral PaUiser. There the very gist of the 
action was local ; it was for destroying fishing-huts upon the 
Labrador coast. After the treaty of Paris, the Canadians 
early in the season erected huts for fishing ; and by that means 
got an advantage, by beginning earlier, of the fishermen who 
came from En</land. It was a nice (question upon the right of 
the Ca7iadians. However, the admiral, from general [)rinciples 
of policy, ordered these huts to be destroyed. The cause went 
on a great way. The defendant would have stopped it short 
at once, if he could have made such an objection, but it was 
not made. There are no local courts among the Esquimaux 
Indians upon that part of the Labrador coast ; and therefore 
"whatever injury had been done there by any of the king's offi- 
cers would have been altogether without redress, if the objec- 
tion of locality would have held. The consequence of that 
circumstance shows, that where the reason fails, even in ac- 
tions which in Enfjland would be local actions, yet it does not 
hold to places beyond the seas within the king's dominions. 
Admiral Palliser^s case went off upon a proposal of a refer- 
ence, and ended by an award. But as to transitory actions 
there is not a colour of doubt, that every action that is transi- 
tory ma}' be laid in an}' county in Englayid, though the matter 
arises beyond the seas ; and when it is absolutely necessary to 
lay the truth of the case in the declaration, there is a fiction of 
law to assist you, and you shall not make use of the truth of 
the case against that fiction, but you may make use of it to 
every other purpose. I am clearly of opinion not only against 
the objections made, but that there does not appear a question 
upon which the objections could arise. 

The tln-ee other judges concurred. 

Per Cur. Judgment affirmed. 



It is very curious and instructive to trace tlie progress of tlie English laAV, 
?specting the locality of actions [though tlie Judicature Act, 1873, reuders 



MOSTYX V. FABRIGAS. 939 

the subject of small practical importance so far as regai'ds the qiiestion of 
vemie']. 

During the earliest ages of our judicial history, juries were selected for 
the very reasons which would now argue their unfltuess, videlicet, their per- 
sonal acquaintance with the parties and the merits of the cause ; and few 
rules of law were enforced with greater strictness than those which required 
that the venue, visne, or vicinetum, in other words the neighbourhood whence 
the juries were to be summoned, should be also that in which the cause of 
action had arisen; in order that the jury who were to determine it principally 
from their own private knowledge, and who were liable to be attainted if they 
delivered a wrong verdict, might be persons likely to be acquainted with the 
nature of the transaction which they were called upon to try. Peregrina 
judicia, says a law of Henry the First, modis omnibus suhmovemus. 

In order to efiect this end, the parties litigant were required to state in 
their pleadings with the utmost certainty, not merely the county, but the 
very venne, i.e. the very district, Jumdred or vill, within that county, where 
the facts that they alleged had taken place, in order that the sheritf might be 
directed to summon the jury from the proper neighbourhood, in case issue 
should be taken on any of such allegations. It followed, of course, that 
a new venue was designated as often as the allegations of the parties litigant 
shifted the scene of the transaction from one part of the country to another. 

This was, however, soon found to produce great inconveniences; for in 
mixed transactions, which may happen partly in one place, and partly in 
another, it was extremely difficult to ascertain the right venue ; and as the 
number of these transactions increased with increasing civilisation, these 
difficulties about determining the place of trial became of constant occur- 
rence, and soon induced the courts, in order to relieve themselves, to take 
a distinction between transitory matters, such as a contract which might 
happen anywhere, and local ones, such as a trespass to the realty, which 
could only happen in one particular place ; and they established as a rule, 
that in transitory matters the plaintiff should have a right to lay the venue 
where he pleased, and the defendant should be bound to follow it, unless 
indeed his defence consisted of some matter in its natural local, and which 
must therefore, ex necessitate rei, be alleged to have taken place where it 
reallj^ happened. 

However, this distinction was soon abused by litigious plaintiffs, who, by 
laying the vemie in a county distant from the defendant's residence, o])liged 
him to come thither Avith his witnesses ,• Gilb. C. P. 89 ; and this occasioned a 
return to the ancient strictness with regard to venues expressed in the above 
law of Henry the First. Accordingly by stat. 6, Richard 2, cap. 2, it was 
enacted that, " to the intent that writs of debt, and account, and all other 
such actions be from henceforth taken in their counties, and directed to the 
sheriffs of the counties where the contracts of the same actions did arise, that 
if, from henceforth, in pleas upon the same writs it shall be declared that 
the contract thereof was in another county than is contained in the original 
writ, that then the said writ shall be utterly abated : " and, as the words of 
this statute were found not quite sufficient to effect the object, statute 4 
Henry the Fourth, c. 18, directed that attorneys should be sworn '' that they 
would make no suit in a foreign county." 

After these statutes the judges adopted various means of enforcing their 
provisions. At first they examined the plaintiff on oath, as to the truth of 
the venne; afterwards they allowed the ilefendant to traverse it and try it 



940 MOSTYN Y. FABRIGAS. 

in an issue, Rastell. Debt, 184, b, Fitz. Abr. BrirfS, and stiil later they made 
a rule of court, rcnderin<r it highly penal on attorneys to transsiross the act 
of Hen. -t; R. M. 1G54, pi. 5. K. B. ; M. 1G54, pi. 8, C. P. ; but finding- that the 
mode of traversing the venue produced great delay, they at last adopted the 
mode of changing it on motion, which [continued in use until the Judicature 
Act, 1873, which will be referred to below, came into force]. 

But all these alterations in the law applied, it must be borne in mind, only 
to transitory matters, for where a matter alleged in pleading was of a hieal 
description, whether the allegation happened in a declaration or in any 
subsequent pleading, the vemie for the trial of such matter could be nowhere 
but at the very place where it was alleged in pleading to have happened, 
and therefore, as is observed in the text, " even in cases the most transitory, 
if the cause of action was laid in London, and there was a local justification 
as at Oxford, the cause must have been tried in Oxford, not in London." 
Ace. Ford v. Brooke, Cro. Eliz. 201 ; Bowyer's Case, Moore, -llO. 

And it was pi*ol)abl3' this strictness of the law with regard to venue which 
rendered it necessary to confine the defendant so long to a single plea, since 
had he pleaded several pleas on which issues had been taken triable by dif- 
ferent veiines there could have been no single trial of the action ; and accord- 
ingly we find that it was not till after the effect of the statute of Charles the 
Second on venues had become well settled, that the very same year which put 
an end to the last remnant of the old severity, by abolishing the necessity 
of summoning hundredcrs, also endowed the defendant Avith a right which 
he ought in justice always to have possessed, of stating everything in his 
defence which can by law be made available to exonerate him ; tlie right 
corresponding to which, that, namely, of replying to the defence everything 
which has a direct tendency to rebut it, was, even in our more advanced times, 
denied the plaintifl', until the passing of the Common Law Procedure Amend- 
ment Act, 1852, s. 81. 

But to return to the progress of the law of venue, stat. 16 & 17 Car. 2, c. 8 
(one of the statutes of Jeofails), enacted, " that after judgment no verdict 
shall be arrested or reversed, for that there is no right venue, so as the cause 
of action were tried by a jury of the proper county or place where the action 
icas laid." 

Considerable difficulty arose on the construction of this statute, many hiw- 
yers contending that the words " the proper county or place where the action 
is laid " must be understood to mean the proper county or place where the 
issue arises, so that if the issue arose at Dale in Oxfordshire, and the renue 
was Sale in the same county, here they said was a case within the statute, 
there being a right county but a wrong venue. However, it was at length 
decided, in Craft v. Boite, 1 Saund. 246, b, contrary to the opinion of Twys- 
deu, J., and was settled by many subsequent cases, that the words " where the 
action was laid" mean, where it was laid in the declaration, not in any subse- 
quent pleading. And accordingly it [was ever afterwards held] sufficient if 
the jury [were] summoned from the venue laid in the declaration. 

This venue indeed was at that time the i-ill or hundred where the cause of 
action was stated in the declaration to have arisen ; and anciently the jury, in 
order that they might be persons well acquainted with the controversy, were 
summoned out of the very hundred designated for the venue. Afterwards the 
rule was relaxed, and in the reign of Edward the Third, it was sufficient if 
the jury contained six hundreders. (rilb. C. P. c. 8. This number was in 
Henry the Sixth's reign reduced to four ; Fortescue de Laud. c. 25; it was 



MOSTYX V. FABEIGAS. 941 

afterwards, by stat. 35 Hen. 8, c. 6, restored to six; stat. 27 Eliz. c. 6, 
reduced it to tifo ; and so the law remained till long after the stat. 16 & 17 
Car. 2, c. 8, after Avhich act it was still necessary that Uro at least of the 
jurors should be summoned from the hundred laid in the declaration ; and if 
there were not so many, it was cause of challenge. But this last remnant of 
the ancient strictness was abolished by 4 & 5 Anne, c. 6, except so far as con- 
cerned actions founded upon penal statutes, to which the abolition was ex- 
tended by 24 G. 2, c. 18. So that [thenceforth it was] in all cases sufficient 
if the jury [were] summoned de corpore comitatus, i.e., from the body of the 
county h\v;\\\Q\\ the vemie [was] laid by the declaration. 

It has been already mentioned that in transitory actions the judges adopted 
various modes of enforcing the policy of the statute of Richard the Second, 
and obliging the plaintift'to lay his i-ew?(p where the transaction in dispute had 
really occurred. At last they had recourse to a practice, Avhich seems to have 
been first introduced in the reign of James the First, |3er Holt, C. J., 2 Salk. 
670; (the first case in the books is Lord Gerrard v. Floyd, 1 Sid. 185, E., 16 
Car. 2,) founded upon the equity of that enactment, by which they held them- 
selves authorised, upon aftidavit made that the cause of action, if any, arose 
in the county of A., and not in the county of B., in which the venue was laid, 
or elsewhere out of the county of A. , to change the venue to the county of 
A., and the motion for so doing was of course, only requiring counsel's 
signature. R. H. 2 W. 4, pi. 103. But as it would be hard to conclude the 
plaintift" on the single affidavit of the defendant, it was further held, that the 
venue must be brought back, if the plaintiff' undertook to give material evi- 
dence in the county in which the action was brought, failing which he must 
have been non-suited, which was equivalent to an abatement of the writ, 
according to the statute, Gilb. C. P. 90; Santler v. Heard, 2 Bl. 1032, 1033; 
Burckshaio v. Hopkins, Cowp. 410; Watkins v. Totcers, 2 T. R. 275. 

There were many cases of transitory actions in which the defendant could 
not by possibility make the above [common] affidavit, [but could procure a 
change of vemie on a special affidavit in the interests of justice. See Tidd's 
Prac. 605]. 

By the rules of Hilary Term, 1853, all former written rules of practice 
[were] abolished, and the only rule substituted relating to venue [was] the 
18th which [was] that "No venue can be changed without a special order of 
the court or judge unless by consent of the parties." 

[By 3 & 4 W. 4, c. 42, s. 23, power was given to the court or a judge to 
alter the venue in certain cases, even in local, as distinguished from transitory 
actions, and this power was further enlarged by the C. L. P. Act, 1852, 
§§ 41, 182. 

As to the right of the Crown in transitory but not in local actions, to lay 
and retain the venue where it pleases, see Attorney-General v. Lord Churchill, 
8 M. & W. 171 ; and as to similar rights in the Attorney-General for the 
Prince of Wales, see Attorney-General to the Prince of Wcdes v. Grossman, 
L. R. 1 Exch. 381, and the cases therein cited. As to the right of the Crown 
under 28 & 29 Vict. c. 104, s. 46, to change the venue in certain cases as of 
right, see Dixon v. Farrar, 18 Q. B. D. 43. 

An attorney suing in person had, before the Judicature Act, 1873, the 
privilege to lay and retain the venue in Middlesex, and the court had no power 
to change it. Grace v. Wilmer, 26 L. J. Q. B. 1. 

The law on this subject is now contained in the Judicature Acts, 1873 (36 
& 37 Vict. c. G6), and 1875 (38 & 39 Vict. c. 77), and the rules made in pursu- 



942 MOSTYN V. FABRIC AS. 

ance of those acts. By Order 36, Rule 1, it is provided as follows: "1. 
There shall be no local renne for the trial of any action, except where other- 
wise provided by statute. Every action in every division shall, unless the 
court or a judge otherwise orders, be tried in the county or place named on 
the statement of claim, or (where no statement of claim has been delivered 
or required) by a notice in writing to be served on the defendant, or his 
solicitor, within six days after appearance. Where no place of trial is named, 
the place of trial shall, unless the court or a judge shall otherwise order, be 
the county of Middlesex." See as to this rule, Locke v. White, 33 Ch. D. 308. 

Qnoire whether, notwithstanding the qualification " except where otherwise 
provided by statute," introduced above since the Rules of 1875, tlie ettect of 
s. 33 of the Judicature Act, 1875, Order 30, Rule 1, above stated, and s. G of 
the Statute Law Revision and Civil Procedure Act, 1883, may not be to repeal 
all statutory provisions for local venues. 

By rule l.v. of the same order, it is provided that the provisions of Rule 1 
shall apply to every action, notwithstanding that it may have l)ecn assigned 
to any judge. 

In deciding upon applications to change the place of trial, the courts will, 
no doubt, be governed to a great extent by the same principles as governed 
the practice previously to the Judicature Act, on motions to change the venue. 
In Cliurrh v. narnett, L. R. 6 C. P. 116, Willes, J., stated the true rule to be 
that a plaintitl" hail the right to lay his venue where he thought proper. If 
he did so capriciously a judge would change the venue to the place where the 
cause of action arose. But where he had not exercised a capricious choice, 
the defendant who sought to deprive him of an undoubted right must show 
that there would be a practical preponderance of convenience in trying the 
cause in the place where the cause of action arose. The same doctrine as to 
the preponderance of convenience was laid down in Ilelliwell v. Ilohson, 3 C 
B. N. S. 761 ; Durie v. Hopwood, 7 C. B. N. S. 835, the places where the con- 
tract was made and where the breach took place being also elements for con- 
sideration. Levy v. Ric, L. R. 5 C. P. 119. The court would not in general 
interfere with an order to change the vemie made by a judge at chambers, 
unless he acted on a misconception of the facts, Schuster v. Wlieelright, 8 C. 

B. N. S. 383; see Jackson v. Kidd, 29 L. J. C. P. 221 ; Church v. Burnett; Levy 
V. liice, iihi sup., and Schroder v. Myers, 34 AY. R. 261, decided in the C A. 
since the Judicature Acts. 

In Green v. Bennett, 54 L. J. Ch. 85, and Powell v. Cobb, 29 Ch. D. 48G, 54 
L. J. Ch. 962, which were actions in the Chancery Division since the Judica- 
ture Acts, the question was treated as one for the discretion of the judge to 
whom the actions were assigned as to the preponderance of convenience. 
But where Bacon, V.-C, made an order changing the place of trial to Lon- 
don, on the ground merely that the action was brought in the Chancery 
Division, the C. A. set aside the order. Philips v. Beale, 26 Ch. D. 621; 54 
L. J. Ch. 80. In Powell v. Cobb (sup.), Pearson, J., seems to intimate that 
the place of trial cannot be changed on the application of the plaintiff. The 

C. A. express no opinion on this point. 

To turn now from the technical rules respecting the venue or place of trial 
to more substantial doctrines with regard to causes of action arising abroad. 

" Our courts are said to be more open to admit actions founded upon for- 
eign transactions than those of any other European country ; but there are 
restrictions in respect of locality which exclude some foreign causes of 
action altogether, namely, those which would be local if they arose in Eng- 



MOSTYN V. FABRIGAS. 943 

land, such as trespass to land ; and even with respect to those not falling 
within that description, our courts do not undertake universal jurisdiction." 
PldUips V. Eyre, pei- Willes, J., L. R. G Q. B. 1, 28; Doulson v. Matthews, 4 T. 
R. 503. 

To some extent, no doubt, the difficulty as to local actions, such as trespass 
to lands abroad, being tried in our courts, arose merely from technical rules 
as to the necessity in such cases for a local venue as distinguished from any 
inherent want of jurisdiction in our courts to try them. (See the judgment 
in the principal case.) And it may be a question how far the effect of the 
Judicatui'e Act, 1873, abolishing every local venue, is not to get rid of this 
disa])ility, especially where the parties are domiciled in England ; see per 
Lord Cairns, C, WhUaker v. Forhes, 1 C. P. D. 51. 

But there are broader grounds on which our courts decline jurisdiction, 
sometimes altogether, sometimes perhaps when the parties are aliens, and 
there is, therefore, no jurisdiction founded upon the lex domicilii. 

Thus our courts would refuse to entertain any proceedings Avhere the prop- 
erty is I'eal and situate abroad, such as ejectment (see the observations of 
Loi'd Mansfield in the judgment in the pi'incipal case, Graham \. ^fassel/, 23 
Ch. D. 7-13) or a bill for partition, Carteret v. Petty, 2 Swab. 323 n., and this, 
whether the parties be aliens or domiciled in England. 

And though in some cases the Courts of Equity have entertained suits 
affecting lands beyond the jurisdiction (as by decreeing specific performance 
of articles concerning boundaries of provinces in America, Peiin y. Lord 
Baltimore, 1 Ves. 444, 2 Tudor's L. C. in Eq. 923 ; or by a foreclosure decree 
of a mortgage of land situate abroad. Toller \. Carteret, 2 Vern. 494; Paget 
V. Ede, L. R. 18 Eq. 118), this exceptional jurisdiction is exercised only by 
reason of the authority of the court in personam, and, as it seems, where 
there is privity between the parties arising hy reason of a contract made 
within the jurisdiction, Xorris v. Chambers, 29 Beav. 246, aftirmed 3 D. F. & 
J. 583; Cookney v. Anderson, 31 Beav. 452, 1 D. J. & S. 365; JVorton v. Flor- 
ence Land Co., 7 Ch. D. 332; see also Re TLolmes, 2 J. & H. 527; Blake v. 
Blake, 18 W. R. 944; Reiner v. Marquis of Salisbury, 2 Ch. D. 378, 45 L. J. 
Ch. 250, in which last case Malins, V.-C, refused to entertain a bill for dis- 
coverj' in aid of proposed proceedings to I'ecover land in India. 

On the other hand, sijeaking generally, (and subject to the distinction be- 
fore mentioned in respect of local actions,) where the action is in p)ersonam, 
whether in respect of a contract or of a tort, our courts will, it is appre- 
hended, entertain it, though it may have arisen abroad, and though the 
parties to it may be aliens, provided that service of process is eflected 
according to their rules. See Story's Conflict of Laws, 542-543 ; Wharton's 
Conflict of Laws, 2nd ed. 743; Phillimore Priv. Int. Law, 701; Buenos Ayres 
Railimy Co. v. Xorthern Railiouy Co. of Buenos Ayres, 2 Q. B. D. 210, 46 L. 
J. Q. B. 224. 

As regards contractual obligations, however, a distinction has been taken, 
that where the contract is made abroad, and its subject-matter is abroad, an 
English court will not entertain a cause of action in respect of it, if the 
parties be aliens, though it would do so if they were domiciled here. See 
Jlatthei V. Galilzin, L. R. IS Eq. 340, aud the judgment of the Master of the 
Rolls in Cookney v. Anderson, 31 Beav. 466, wliich judgment was affirmed, 1 
D. J. & S. 365. Quoire, whether the dicta in the last cited cases are not too 
wide. In Doss v. Secretary of State for Lndia, L. R. 19 Eq. 535. Malins. V.-C, 
approves of aud follows Matthei v. Galitzin. 



944 MOSTYN V. FABRIGAS. 

In Hart v. ITenoig, L. R. 8 Ch. 860 ; 42 L. J. Cli. 457, the plaintift", an Eng- 
lishman, made at Hamburg an agreement with the defendant Ilerwig, domi- 
ciled at Hamburg, for the sale by Herwig, to the plaintift", of a Hamburg ship 
tlien on voyage, to be delivered to the plaintift" at any place whither she 
might be ordered for discliarge, the seller malving allowance if slie arrived in 
a damaged state. The slup was ordered to Sunderland to dischai'ge, but on 
arrival, delivery was refused except on payment of tlie full price. The 
Lords Justices aftirnied an order of Malins, V.-C, restraining the removal of 
the ship by tlie defendant Herwig, and the master, who was also made a 
defendant. Sir Wni. James, L. J., said " The substantial ([uestion is, wlietlier 
this Court has power to prevent a specific cliattel from being removed out of 
the jurisdiction until a question relating to tliat chattel is decided. I am of 
opinion tliat, according to the established law of nations, if tliis suit were a 
suit for damages only, or one which could result in damages only, then the 
plaintift" must, in order to enforce his claim for damages, go and seelc the 
forum of the defendant. But where the contract, as in this case, though 
made abroad, is to deliver a thing in specie in this country, and the thing 
itself is brought here, then tlie court here, in the exercise of its discretion, 
will see that the thing to be delivered in this country does not leave this 
country, so as to defeat tlie right of the plaintift" to have it so delivered." 

It is presumed that Lord Justice James in saying that, if the suit was a 
suit for damages only, tlien the plaintift" must seek the forum of the defend- 
ant, is speaking of a case in which there had been no service of process 
within the jurisdiction, and that the necessity would arise from this, and not 
from any inlierent lack of jurisdiction in our courts to try such a case, if ser- 
vice of process had been effected. See the judgment of Lord Justice Mellish. 
As to service of process, see post, p. GG9. 

But as in the case of torts, so also in the case of contracrts, our (;ourts will 
not enforce contracts illegal, according to English, though legal according to 
the law of the place where they are made : Santos v. lUidge, 6 C. B. N. S. 
841, which decision was reversed in eri'or, 8 Id. 861, but on the ground that 
the contract sought to l)e enforced was not prohibited by English law. See 
also arell v. Lecy, 16 C. B. N. S. 73; Hope v. Hope, 26 L. 9. Ch. 417.] 

As regards torts, there seems to be no reason why aliens should not sue in 
England for personal injuries done them by other aliens abroad when such 
injuries are actionable both by the law of England and also by that of the 
country where they are committed, and the impression which had prevailed 
to the contrary (see ante, p. 650), seems to be eiToneous. [See " llie 
Halley," L. R. 2 P. C. 193, 37 L. J. Adm. 33. 

But to found a cause of action between aliens, or between aliens and 
British su])jects, or between British sul)jects in an English court for a wrong 
committed abroad, both these conditions must be fulfilled. See the judgment 
in Phillips v. Eyre, L. R. 6 Q. B. 1, 40 L. J. Q. B. 28, and " The Maria Mox- 
ham " in C. A., 1 P. D. 107, 45 L. J. Prob. 36, and per Lord Esher, M. R., 
Chartered Mercantile Bank of India v. Netherlands India Steam Navigation 
Company, 10 Q. B. D. at p. 536 (who, however, holds that " for a tort com- 
mitted on the high seas between two foreign ships an action can be maintained 
in tliis country although it is not a tort according to the laws of the courts 
in the foreign country to which the ships belong"). Thus in the case of 
" The Ilalley," sup., the Judicial Committee of the Privy Council reversing 
the decision of the Court of Admiralty pronounced against a suit in the 
Admiralty founded upon a liability by the law of Belgium for collision 



MOSTYX V. FABRIGAS. 945 

caused bj' the act of a pilot, whom the shipowner was compelled by that law 
to employ, and for the act of whom therefore, as not being his agent, he was 
not responsible by English law. 

And conversely, in PfiiUipsv. Eyre, sup., the Court of Exchequer Chamber 
upheld the decision of the Queen's Bench that no action could be maintained 
in an English Court in respect of an assault and imprisonment which had 
been rendered lawful in Jamaica, Avhere the alleged acts took place, by an 
Act of Indemnity. That historical case is a remarkable exemplification of 
the doctrine of English law now under discussion ; because it is thereby 
solemnly decided in the words of Cockburn, C. J., that " the principle that 
an act authorised b,y the law of the country in which it takes place, cannot be 
the subject of a legal proceeding here, is equally applicable to an act origi- 
nally wrongful but legalised by an ex post facto law " of the foreign country. 

It was an action brought by an inhabitant of Jamaica against the defendant, 
who had been governor of that island, for an assault and false imprisonment ; 
and the acts complained of took place during the rebellion in that island in 
the j^ear 1865. The defendant pleaded an Act of Indemnitj' passed by the 
Jamaica Legislature, to which plea the plaintiff' demurred. On the argument a 
number of objections were urged against the plea, and inter alia, that such 
an act could not take away the plaintiti""s right of action in this country. 

The Court of Queen's Bench, and, ou appeal, that of Exchequer Chamber, 
unanimousl}^ decided in favour of the defendant. In delivering the judgment 
of the latter court, Willes, J., says (p. 28 of L. R.) : "A right of action, 
whether it arise from contract governed by the law of the place or wrong, is 
equally the creature of the law of the place, and subordinate thereto. The 
terms of the contract or the character of the subject-matter may show that 
the parties intended their bargain to be governed !)}• some other law ; but 
prima facie it falls under the law of the place where it was made. And in 
like manner the civil liability arising out of a wrong derives its birth from 
the law of the place, and its character is determined by that law. Therefore 
an act committed abroad, if valid and unquestionable by the law of the place, 
cannot, so far as civil liability is concerned, be drawn in question elsewhere, 
unless by force of some distinct exceptional legislation, superadding a lia- 
bilitj^ other than and besides that incident to the act itself. In this respect no 
sound distinction can be suggested between the civil liabilitj^ in respect of a 
contract governed by the law of the place and a Avrong. . . . AVhere an 
obligation ex delicto to pay damages is discharged and avoided b}'^ the law 
of the country where it was made, the accessory right of action is in like 
manner discharged and avoided." 

As to ex post facto legislation, see also Rouqnette v. Ocermann, L. R. 10 Q. 
B. 536; 44 L. J. Q. B. 221. 

Again, in " The Maria Moxham," 1 P. D. 107, 45 L. J. Prob. 30, which was a 
cause of damage instituted hj an English company against the owners of an 
English ship to a pier belonging to the companjs but situate in a Spanish 
port, the Court of Appeal, overruling the decision of Sir R. Phillimore, upheld 
an alleged defence that if the collision was caused by negligence, it was neg- 
ligence of the master and mariners of the ship, and that by the law of Spain 
the owners Avere not in such a case liable. In this case any objection to the 
jurisdiction of the English court was waived. See also Scott v. Seymour, 1 
H. & C. 219; The Submarine Telegraph Co. v. Dickson, 15 C. B. N. S. 759; 
33 L. J. C. P. 139; Hart v. Gumpach, L. R; 4 P. C. 439; 42 L. J. P. C. 25. 
The Mali Ivo, L. R. 2 A. & E. 356 ; 38 L. J. Adm. 34. 



946 MOSTYN V. FABRIGAS. 

The foregoing remarks as to the capacity of the English courts to take 
cognisance of actions against foreigners must be taken, subject to tlie quali- 
fication, that to give an English court jurisdiction in personal actions there 
must be service of its process within the jurisdiction, or in certain cases 
service or notice in lieu thereof without the jurisdiction, as provided for 
under the Judicature Acts by the rules in Order XL This is of course a 
technical cjuostion, totally distinct from the broader one discussed in these 
notes, as to the capacity of Englisli courts to take cognisance of foreign 
causes of acti(ni. 

As to the jurisdiction of our courts over a chattel when brought to this 
country, see Hart v. Herwig, L. K. 8 Ch. SGO, 42 L. J. Ch. 457. 

A special jurisdiction has sometimes been exei'cised by the Admiralty 
Division over foreign ships at the request of the representative of the state 
to whose subjects such ships belong. See " The Agincourt," 2 P. 1). 239, 
" The Kvangelistria" Id. 241, 46 L. J. P. I). & A. 1. 

As. to the limits of the Crown's jurisdiction not extending beyond low water 
mark, see Reg. v. Ketju, 2 Ex. D. 63; 46 L. J. M. C. 17; Harris v. Owners of 
" FrancoHia," 2 C. P. D. 173; 46 L. J. C. P. 363, and 41 & 42 Vict. c. 73. 

As to when a foreigner can be made a bankrupt in Kugland, see ex parte 
Crispin, L. K. 8 Ch. 374 ; 42 L. J. Bank. C>5. 

As to Avhen bankruptcy proceedings can be served on a foreigner, see ex 
parte Pascal, 1 Ch. 1). 509 ; Ts.r parte Blnin, 12 Ch. D. 522. All these three 
cases were decided under the Bankruptcy Act, 1869.] 

Locus regit actum is a canon of general jurisprudence, and must be assumed 
in the absence of contrary evidence to hold good in every system of law. 
(hiepratte v. Younff, 4 l)e G. & S. 217. 

[For recent applications of this maxim see Cammell v. Scwell, 5 II. & N. 
728, where a sale in Norway of goods there, al:)andoned to Englisli under- 
writers, was upheld as valid by Norwegian though invalid by English law; 
Munroe v. Pilkington, 2 B. & S. 11 ; Dent v. Smith, L. li. 4 Q. B. 414; Messina 
\. Peti-ocochino, L. 11. 4 P. C. 144; Castrique v. Imrie, L. R. 4 H. L. 414 ; 39 
L. J. C. P. 350; Godard v. Gray, L. R. 6 Q. B. 139 ; 40 L. J. Q. B. 62, cases in 
which foreign judgments have been enforced, though the cases would have 
been decided otherwise according to English law. In Simpson v. Fogo, 1 H. 
& M. 195; 32 L. J. Ch. 249, Wood, V.-C, declined to enforce a decree of a 
court of Louisiana, acting in defiance of Britisli law and the comity of 
nations. Compare with this case Licerpool Marine Credit Co. v. Hunter, L. R. 
3 Ch. 479. 

In a contract by charter-party the law of the flag as a general rule prevails, 
Lloyd V. Guibert, L. 11. 1 Q. B. 115; and the same law governs the right of a 
shipmaster to bottomry his cargo, " The Gaetano and Maria," 7 P. D. 137; 
but this is only prima facie, and the whole circumstances must be looked at 
to see what was the intention of the parties. Chartered Mercantile Bank of 
India v. Netherlands Steam Navigation Co., 10 Q. B. D. 521, and see Moore v. 
Harris, 1 App. Cas. 331. On the question whether our courts recognise a 
'-'general maritime law," distinct from the law of this country, see Lloyd v. 
Guibert, sup., " 7'he Patria," L. R. 3 A. & E. 436 ; " The Gaetano and Maria," ubi 
sup. ; " The Leon," 6 P. D. 148.] 

With respect to transitory causes of action wliich have accrued abroad, 
like that in the principal case of Mostyn v. F(d>ri(jas, It must be remarked 
that although the courts of this country will entertain them, still they will, in 
adjudicating on them, be governed by the laws of the country in wliich they 



MOSTYN V. FABRIGAS. 947 

arose [or in the case of contracts, by the law with reference to wliicli the 
parties may be presnmed to have contracted, Lloyd v. Guibert, 35 L. J. Q. B. 
74 ; 6 B. & S. 100 ; Smith v. WegueUn, L. R. 8 Eq. 198 ; ex parte HoJthmisen, 
L. R. 9 Ch. 722, per Hellish, L. J. ; Cohen v. S. E. R. 2 Ex. D. 25S, 4G L. J. Ex. 
417 ; De Greuchy v. Wills, 4 C. P. D. 362 ; Adams v. Clutterhuck, 10 Q. B. D. 
403; 52 L. J. Q. B. 609; Chartered Merc. Bank v. Netherlands Steam Xaviga- 
tion Co., iihisnp. On the latter point the broad rule is that the law of a coun- 
try where a contract is made presumably governs the nature of the obligation 
and the interpretation of it unless the contrary appears to be the express 
intention of the parties, per Lord Esher, M. R., Jacobs v. Credit Lyonnais, 12 
Q. B. D., at p. 600; Chamberlain v. Napier, 15 Ch. D. 614, in which case. Hall, 
V.-C, held that such an intention did appear]. The distinction laid down in 
all cases of this description is between the cause of action, which is to be 
judged of with reference to the law of the country where it originated, and 
the mode of procedure which must be adopted as it happens to exist iu the 
country whei"e the action is brought. 

[This distinction is illustrated by the decisions which have been given in 
our courts as to the liabilities and rights of parties to and holders of bills 
of exchange drawn, accepted, and indorsed in different countries, and by the 
enactment in the Bills of Exchange Act, 1882, s. 72 (set forth post, p. 676), 
which presumably was intended to embody the effect of those decisions.] 

Thus in Trimhey v. Vignier, 1 Bing. N. C. 151, it was held [on the assump- 
tion] that by the law of France, an indorsement in blank does not transfer 
any property in a bill of exchange [or promissory note that] the holder of a 
[note made] in France and there indorsed iu l)lank cannot recover upon it in 
this country against the [maker. 

And although in Bradlangh v. De Rin, L. R. 5 C. P. 473, (better reported 
39 L. J. C. P. 254,) the Court of Exchequer Chamber declined to follow 
Trimbey v. Vignier, it was on the express ground that in the latter case the 
court had mistaken the French law, and that according to French law a blank 
indorsement acted as a procuration, that is to say, did convey a right to sue, 
though subject to the equities aff"ectiug the indorser in blank. 

On the other hand, in Lebel v. Tucker, L. R. 3 Q. B. 77, it was held that in 
the case of a 1)111 of exchange drawn, accepted, and payable in England, the 
acceptor was liable to a holder after indorsement in France under similar 
circumstances to those in Trimbey v. Vignier : though the court assumed the 
French law to be as stated in Trimbey v. Vignier, distinguishing the case on 
the ground that the contract of the English acceptor of an English bill must 
be governed by English law. They at the same time declined to express any 
opinion as to what would be the effect of such an indorsement as between 
the indorser and any subsequent indorsee in an action against the indorser 
himself. 

The case of Bradlangh v. De Rin (sup.) was intermediate between Trimbey 
v. Vignier and Lebel v. Tucker. In the report of the case in the Common 
Pleas it is stated both in the report and in the judgment, that the bills sued 
upon were drawn in France : see L. R. 3 C. P. 538. In the report in the 
Exchequer Chamber {stip.) it is stated that they were drawn in Belgium; but 
in that court, as iu the court below, it appears to have been assumed that the 
bills were in their inception French bills. They were accepted in England, 
but afterwards indorsed in France iu blank, and it was assumed in the Court 
of Common Pleas that by French laAV such an indorsement was insufficient 
to give the holder — tlie plaintiff"— a title to sue the acceptor — the defend- 



948 MOSTYN ,V. FABKIGAS. 

ant. The majority of the Court of Common Pleas, consisting of Bovill, 
C. J., and Willes, JT, held that under such circumstances, the l)ills being 
French bills in their inception, the obligations of the acceptor must be deter- 
mined by French law. Montague Smith, J., on the other hand, held that the 
acceptance having been in England the English law must prevail. The 
Exche(iuer Chamber, without impugning the correctness of the decision 
below in point of law. reversed the judgment on the ground that as a matter 
of fact by French law the indorsement was sullicient. 

In In re Marseilles Co., 30 Ch. D. 51t8, 55 L. .J. Ch. in; (decided since the 
Bills of Exchange Act, 1882, but without reference to it, presumably because 
the bills were acceptetl before the passing of the Act), it was held by Pearson, 
J., that the holders of a bill drawn in France but accepted by an English 
company in England, were entitled to recover against such acceptors though 
the indorsement might have been invalid by the law of France where it was 
made. In this case the learned judge laid stress upon the form of the bill as 
constituting it an English instrument. Another case decided (m the subject 
before the Bills of Exchange Act. 1882, is Allen v. Keinhle, G Moo. P. C. 315, 
in which case Lord Kingsdown states it as admitted that in the case of a bill 
drawn in one country upon a drawee in another, •' the drawer is liable 
accoriling to the laws of the country where the bill was drawn, and not of 
tile country upon which the bill Avas drawn." See the explanation, however, 
of this case by Cockburn, C. J., in Ro\iqnette v. Orermann, L. K. 10 Q. B. at 
p. 540, where it is pointed out that the above dirtiim was unnecessai'y to the 
decision of the case, which turned upon tiie question whether the defendant 
in a Demerara court could avail himself of the Demerara law as to set-off, a 
question upon Avhich the lex fori must prevail, whatever might have been the 
law governing the controct of the drawer, the defendant in the action. See 
also McFarlane v. Noj-ris, 31 L. J. Q. B. 245.] 

In Gibbs v. Fremont, 9 Exch. 25, the holder of a dishonoured lull drawn at 
Ciudad de los Angeles in California \\\w\\ Wasidngton, was held entitled as 
against the drawer to Calif ornian interest. 

[In Rouquette v. Orermann, L. R. 10 Q. B. (decided before the Act of 1882). 
at p. 536, the court discuss the supposed rule " that although the obligations 
of the acceptor may be determined by the lex loci of the country in which the 
bill is payable, the contract as between the drawer and indorsee must be 
construed according to the law of the country where the bill was drawn." 
" It is unnecessary." says Cockburn, C. J., " to consider how far this position 
may hold good as to matter of form, or stamp objections, or illegality of 
consideration, or the like. We cannot concur in it as applicable to the sub- 
stance of the contract, so far as presentment for payment is concerned; still 
less to a formality lequired on non-payment, in order to eual:)le the holder to 
have recourse to an antecedent party to the bill." His lordship then points 
out that the party transferring a bill for value " engages as surety for the 
due performance by the acceptor of the obligation which the acceptor takes 
on himself by the acceptance. His liability therefore is to be measured by 
that of the acceptor whose surety he is, and as the obligations of the acceptor 
are to be determined by the lex loci of performance, so also must be those of 
the surety." The eflect of the decision is that the court, foUoAving Roths- 
child V. Carrie, 1 Q. B. 43 (though the reasoning of the court in that case has 
been disapproved, see Home v. Rouq^iette, 3 Q. B. D. 514), and Ilirschfield v. 
Anith, L. R. 1 C. P. 340, held that notice of dishonour according to p^nglish 
law was not necessary, but that notice according to French law v,as sutticient 



MOSTYN V. FABRIGAS. 949 

to charge tlie defendants who were Manchester merchants, at the suit of the 
plaintifl", an English subject carrj-ing on business in London, on a bill drawn 
and indorsed to the plaintiff by the defendants in England, but upon and 
accepted and dishonoured by a French firm at Paris. The state of facts was 
that the time for payment of the bill with all other French bills was, during 
its currency, from time to time extended by the French Government in con- 
sequence of national complications, and the Court of Queen's Bench held that 
the drawer was equallj' with the acceptor entitled to the benefit of these 
extensions, and so that the time for giving notice of dishonour only arose 
when the acceptor failed to fulfil the obligations imposed upon him. 

Another qualification of the supposed rule (irrespective of the Bills of 
Exchange Act, 1882) that the liability created by an English indorsement is 
to be measured simply by English law, is to be found in Home v. Rouquette, 
3 Q. B. D. 514. In that case a bill was drawn in England by Bryant, Foster, 
& Co., on Chasserot in Spain, in favour of the defendant, who indorsed it in 
England to the plaintifl". The plaintiff Avrote his name on the back and for- 
warded it to one Monforte, in Spain, who placed it to his credit under cir- 
cumstances which the majority of the court held to constitute an indorse- 
ment to Monforte in Spain. Monforte indorsed it in Spain to Clavero, who 
indorsed it also in Spain to O'Connor & Sons. On presentment by them 
for acceptance the bill was dishonoured. Notice of dishonour was not given 
to the plaintifl" until after such a time as would in England have discharged 
him; but it was proved that accoi'ding to Spanisli law, no notice of dis- 
honour for non-acceptance was required. The plaintifl' when he did receive 
notice at once gave notice to the defendant, and paid Monforte: and was 
held by the Court of Appeal, attirmiug the judgment of Lord Coleridge, 
C. J., to be entitled to recover against the defendant. The court concurred 
in thinking that the fact of the bill being a foreign one was immaterial, that 
the liability of the defendant on his indorsement in England was governed by 
English law ; but that the plaintiff, being liable to Monforte, because, accord- 
ing to Spanish law, no notice of dishonour was necessary to charge the 
indorser, was entitled in his turn to have recourse against the defendant. 

The ratio decidendi seems to be that a defendant, though indorsing in Eng- 
land, and whether the bill be foreign or English, must be deemed to antic- 
ipate the possibility of a subsequent foreign indorsement, and to undertake to 
indemnify his indorsee against any liability he may incur by reason of such 
later indorsement, though some of the links in the chain of indorsements 
subsequent to his own may not be such as would bind the defendant if the 
indorsement had been English. 

The ratio decidendi which had been indicated above with reference to Home 
V. Rouquette, or one founded on an analogous train of reasoning, is suggested 
by Wills, J., in Lee v. Abdy, 17 Q. B. D. 309, as applicable to the question 
of the liability of an English acceptor upon a bill indorsed abroad, and as 
explaining Lehel v. Tucker and Bradlaugh v. De Rin, supra. Qucere whether 
the learned judge in suggesting that the liability of the acceptor is to be 
measured l)y reference to what he must have contemplated would be the 
probable place of indorsement gave sufficient weight to the fact that in Brad- 
laugh v. De Rin the bill was treated by the majority of the court below as 
a foreign bill, and the Court of Exchequer Chamber, though they do not 
decide the point, deal with the case on the same assumption. The bill being 
treated as a foreign bill, the court below held (and the Exchequer Chamber 
did not impugn that position) that the acceptor would be liable only upon an 



950 MOSTYN V. FABRIGAS, 

indorsement efiectiial against the drawer by the law of the place of issue. 
On the other hand, in Lebel v. Tucker, the bill being an English bill, the 
acceptor's liability was determined only by English law, not because he was 
taken to have contemplated negotiation in England only, but because that 
was the law of the place of his contract. In I.i'c v. Ahdij, uhi supra, a Divis- 
ional Court consisting of Day and Wills. JJ., held that to an action on a life 
policy ertected in England by the assignee of the policy, it was a defence that 
the assignment, though valiil by Englisli law, was invalid and void by the law 
of Cape Colony where the assignment was made, and where the assignor 
and assignee were domiciled. 

The court considered that the decision in Lcbel v. Tucker was distinguish- 
able as being on the liability of an acceptor of a bill of exchange which was 
difterent from that of the defendants, who were being sued not on a nego- 
tiable instrument, but as liable under a policy of insurance. 

The Bills of Exchange Act, 1882 (4") & 40 Yict. c. 61), s. 72, provides as 
follows : — 

" Where a bill drawn in one country is negotiated, accepted, or payable in 
another, the rights, iluties, and liabilities of the parties thereto are determined 
as follows : — 

" (1.) The validity of a bill as regards re(iuisites in form is determined by 
the law of the place of issue, and the validity as regards reciuisites in form 
of the supervening contracts, such as acceptance, or indorsement, or accept- 
ance supra protest, is determined l)y the law of the place where such contract 
Avas made. 

" Provided that : — 

" (a) Where a bill is issued out of the United Kingdom it is not invalid by 
reason only that it is not stamped in accordance with the law of the place 
of issue. 

" (b) Where a bill, issued out of the United Kingdom, conforms, as 
regards requisites in form, to the law of the United Kingdom, it may, for 
the purpose of enforcing payment thereof, be treated as valid as between all 
persons who negotiate, hold, or become parties to it in the United Kingdom. 

" (2.) Subject to the provisions of this Act, the interpretation of the 
drawing, indorsement, acceptance, or acceptance supra protest of a bill, is 
determined bj"^ the law of the place Avhere such contract is made. 

" Provided that Avhere an inland bill is indorsed in a foreign country the 
indorsement shall, as regards the payer, be interpreted according to the law 
of the United Kingtlom. 

" (3.) The duties of the holder Avith respect to presentment for acceptance 
or pajTnent, and the necessity for or sufficiency of a protest or notice of 
dishonour, or otherwise, are determined by tlie law of the place Avhere the 
act is done or the bill is dishonoured. 

" (4.) Where a bill is di-awn out of but payable in the United Kingdom and 
the sum payable is not expressed in the currency of the United Kingdom, 
the amount shall, in the absence of some express stipulation, be calculated 
according to the rate of exchange for sight drafts at the place of payment 
on the daj' the bill is payable. 

" (5.) Where a bill is drawn in one country and is payable in another, the 
due date thereof is determined according to the law of the place where it is 
payable." 

The wording of the Act, however, is not quite clear, and by s. 97, sub-s. 2, 
it is provided that " the rules of Common Law, including the Law Merchant, 



MOSTYN V. FABRIGAS. 951 

save in so far as they are inconsistent witli the express provisions of this 
Act, sliall continne to apply to bills of exchange, promissory notes, and 
cheques."] 

" The rule," said Tiudal, C. J., delivering judgment in the case of Trimbey 
V. Vifjnier, 1 Bing. N. C. 151, " which applies to the case of contracts made 
in one country", and put in suit in the courts of law of another country, 
appears to be this, that the interpretation of the contract must be governed 
by the law of the country where the contract was made : the mode of suing, 
and the time within which the action must be brought, must be governed by 
the law of the country where the action is brought." 

This distinction was acted on in The British Linen Company v. Drummond, 
10 B. & C. 903, where it was held that the English statute of limitations was 
a good plea to an action on a Scotch contract which might in Scotland have 
been put in suit at any time within forty years ; in De la Vega v. Vianna, 1 B. 
& Ad. 28-t, where the defendant was allowed to be arrested for a debt con- 
tracted in Portugal, and for which he could not have been arrested there; in 
Alivon and another (provisional syndics of the estate of Beauvain, a bank- 
rupt) v. Furnival, 4 Tyrvv. 751, where the Court of Exchequer acted on the 
Prench law of bankruptcy; and in Huher v. Steiner, 2 Bing. N. C. 202, in 
which the whole difficulty was in ascertaining whether the rule of foreign 
law applied ad valorum contractus, or ad modurn actionis instituendce. 

It was an action on a promissory note; and the question was, whether 
the French law of prescription formed a defence thereto, the action being 
brought within the English period of limitation. On behalf of the defendant 
It was contended that laws for the limitation of suits were of two kinds, 
those which bar the remedy, and those which extinguish the debt; and the 
following passage was cited [at p. 211] from Story's Commentaries on the 
Conflict of Laws: — "Where the statutes of limitation of a particular 
country not only extinguish the right of action, but the claim or title itself 
ipso facto, and declare it a nullity after the lapse of the prescribed period, in 
such a case the statute may be set up, in any other country to which the 
parties remove, by way of extinguishment." " This distinction," said Tindal, 
C. J., delivering judgment, " when taken wth the qualification annexed to it 
by the author himself, appears to be well founded. That qualification is, 
'that the parties are resident within the jurisdiction during all that period, 
so that it has actually operated upon the case ; ' and with such restriction, 
it does indeed appear but reasonable, that the part of the lex loci contractus, 
which declares the contract to be absolutely void at a certain limited time, 
without any intervening suit, should be equally regarded in the foreign 
country, as the part of the lex loci contractus, which gives life to and regu- 
lates the construction of the contract; both parts go equally ad valorem 
contractus, both ad decisionem litis." However, the court, upon examination 
of the French law of prescription, thought that its effect was not to extin- 
guish the right, but, as in England, only to bar the remedy, and therefore 
that the defence was in that case unavailable. [See also MacFarlane v. Xorris, 
2 B. & S. 783; Harris v. Quine, L. R. 4 Q. B. 653, 38 L. J. Q. B. 331; Pardo 
V. Bingham, L. R. 4 Ch. 735, 39 L. J. Ch. 170; Alliance Bank of Simla v. 
Carey, 5 C. P. I). 429.] 

Supposing the law of a foreign country to be, that a contract is, after a 
certain time, to be deemed absolutely extinguished, it seems not quite reason- 
able to say that the removal of the parties out of the jurisdiction, while 
that time is running, should authorise the courts of this country to consider 



952 MOSTYN V. FABKIGAS. 

it in esse after the period prefixed. The authorities establish, that the law 
of the country where the contract is made must govern it, and must be looked 
on as impliedl)' incorporated with it. Now, if the contract had contained 
a, proviso that it should be absolutely void if not enforced within a certain 
time, no doubt the English coi;i-ts would hold it void after the expiration of 
that time. But what dift'erence can it mal^e that such 2:iroriso is inipli(*d from 
the law of the country where the contract was made instead of being ex- 
pressed in terms? Is it not in both cases equally part of the contract? If, 
indeed, the rule of the foreign law be, that tlie contract shall, after the lapse 
of a certain time, become void, provided that the parties to it continue to 
reside all that time in the same country, the arrival of the period prefixed or 
its avoidance will depend on the contingency of their abstaining from absent- 
ing themselves ; and, if they leave the country, never will arrive at all ; and 
this is, perhaps, what Judge Story intends by the words " that the parties are 
resident within the jurisdiction during all that period, so that it has act-iiaJly 
operated npon the case." For if the law be so framed as to operate upon the 
case without such residence, the qualification appears to be inapplica1)le [but 
see per Lord Brougham, Don v. Lippmann, 5 CI. & Fin. 1, IG. 

The English statute of limitations does not apply to charges on real estate 
situate abroad, as to which the lex loci rei sitce is the law applicable. Pitt v. 
Dacre, 3 Ch. D. 295.] 

In Lopez v. Jiitrslem, 4 Moore (Privy Council), 300, the same law was acted 
upon with reference to the limitation of time prescribed for bringing an 
appeal after condemnation by a vice-admiralty court under the Slave Trade 
Abolition Act, 5 G. 4, c. 113. It was contended in that case that the owners 
of the cargo were not bound by the enactment, being foreigners ; but the 
court, admitting that the British parliament certainly has no general power 
to legislate for foreigners out of the dominions and beyond the jurisdiction 
of the British Crown, held that a British statute may fix a time within which 
application must be made for redress to the tribunals of the empire: "on 
matter of procedure," they said, " all mankind, whether aliens or liege sub- 
jects, plaintifls or defendants, appellants or respondents, are bound by the 
law of the forum," and " if a law were made upon this subject working oppres- 
sion and injustice to the subjects of a foreign state, that state might make 
representations and remonstrances against this law to our government ; but 
while it remains in force, judges have no choice but to give it effect. " See 
further Heriz v. Riera, 11 Sim. 318; Cooper v. Lord Waldegrave, 2 Beav. 282; 
Beauce v. Muter, 5 Moore (Privy Council), G9 ; Ferguson v. Fijffe, 8 CI. & Fin. 
121; Leslie v. Baillie, 2 You. & Coll. C. C. 91 ; {Cope v. Doherty, 4 Kay & J. 
367, aflirmed 2 De G. & J. G14 ; Jago v. Graham, 32 L. J. Adra. 49 ; The Wild 
Ranger, 32 L. J. Adm. 49. 

In the recent case of Ellis v. M' Henry, L. R. G C. P. 228, 40 L. J. C. P. 109, 
the decisions as to what amounts to a discharge of a foreign cause of action 
are elaboratelj' reviewed. In that case it was held that a discharge by an 
English composition deed was binding in Canada, and also was clearly bind- 
ing and effectual as an answer to proceedings commenced in this country on 
a Canadian cause of action ; but further, that no advantage could be taken 
of such a dischai'ge as an answer to an action on a judgment obtained in a 
Canadian Court, where such discharge might have but had not been pleaded. 
In giving judgment, Bovill, C. J., lays down the three following very impor- 
tant propositions: — "In the first yilace, there is no doubt that a debt or 
liability arising in any countrj^may be discharged by tlie laws of that country, 



]SIOSTYX V. FABRIGAS. 953 

and that such a discharge, if it extinguishes the debt or liabili^j-, and does 
not merely interfere with the remedies or course of procedure to enforce it, 
will be an effectual answer to the claim, not only in the courts of that 
country, but in every other country. Secondly, as a general proposition, 
it is also true that the discliarge of a debt or liability by the law of a country 
other than that in wliicli the debt arises, does not relieve the debtor in anj' 
other country. Thirdly, where the discharge is created by the legi'^lature or 
laws of a counti'y whicli has a paramount jurisdiction over anotlier country 
in which the debt or liability arose, or by the legislature or laws which govern 
the tribunal in which the question is to be decided, such a discharge may be 
effectual in both countries in the one case, or in proceedings before the 
tribunal in the other case." See also Phillips v. Eyre, L. R. 6 Q. B. 1, and 
ex parte Pascal, 1 Ch. D. 509, 45 L. J. Bank. 81.] 

Another application of the rule that procedure is to be governed by the 
law of the country in which the action is brought, may be found in the judg- 
ment of the Court of Exchequer, in the case of the General Steam Naviga- 
tion Company v. Guillou, 11 M. & W. 877. The action was on the case for 
running down a ship at sea ; one of the defendant's pleas stated that he was 
a Frenchman, and that the injury complained of was committed on the high 
seas, out of the jurisdiction of the Queen of England, not by the defendant 
personalh% but by the master of a French vessel in the employ of a French 
company, of which the defendant was a shareholder and acting director; that 
the defendant never was possessed of, or interested in, the vessel which did 
the injury, otherwise than as such shareholder, and that by the law of France 
he was not responsible for or liable to be sued or impleaded individually, or 
In his own name or person in any manner whatsoever, but that by tliat law 
the company alone, by their style or title, or the master or person in command 
for the time being of the vessel, was responsible for and liable to be sued or 
impleaded, and that the defendant was not the master or person in command. 
Upon the grammatical construction of that plea, the Court of Exchequer 
were divided in opinion, but they agreed that if the plea were taken (accord- 
ing to the construction put upon it by Parke, B., and Gurney, B.), to aver 
that by the law of France the defendant was " not liable for the acts of the 
master; but that a bodj' established by the Fi'ench law, and analogous to an 
English corporation, were the proprietors of the vessel , and alone liable for 
the acts of the master who was their servant and not the servant of the 
individuals composing that body ; " there was (as they Avere all strongly 
inclined to tliink) a good defence to the action ; but that if, on the other 
hand, the plea were taken (according to the view of Lord Abinger and 
Alderson, B.) to mean, " that in the French courts the mode of proceeding 
would be to sue the defendant jointly with the other share liolders under the 
name of their association ; " then that it was bad on the ground that ' ' the 
forms of remedies and modes of proceeding are regulated solely by the law 
of the place where the action is instituted, the lex fori; and it is no objection 
to a suit instituted in proper form here, that it would have been instituted in 
a different form in the court of the country where the cause of action arose, 
or to which the defendant belongs." 

So where a colonial act gave a mode of proceeding against a banking 
company by suing their chairman, and provided a particular mode of pro- 
ceeding upon that judgment, against members for the time being, it was 
considered that tlie members might, even in respect of a cause of action which 
arose in the colony, be sued in England either for the original debt or upon 



954 MOSTYN Y. FABRIGAS. 

the judgm^it. Bank of Austi-alasia v. Harding, [9 C. B. 6G1] ; 19 L. J. 345; 
Bank of Australasia v. Nias, 16 Q. B. 117; [Kelsail v. MarsltaJl, 1 C. B. N. S. 
241 ; Vanguelin v. Bouard, 33 L. J. C. P. 79. 

And in Bullock v. Caird, L. R. 10 Q. B. 270, 44 L. J. Q. B. 124, which was an 
action on a contract, a plea was held bad which alleged that tlie contract was 
made by the plaintifi", in Scotland, with a Scotch tirm, and was to be per- 
foi'med wliolly in Scotland, and tliat by Scotch law it was a condition prece- 
dent to the individnal liability of the defendant as a member of tlie lirm, that 
the firm, or the whole of the partners jointly, shonld first have been sued. 
The Court of Queen's Bencli held that, in an English Court, non-joinder of 
the other parties was merely ground for a plea in aliatement, not for one 
in bar, that the matters alleged in the plea Avere mere matter of procedure, 
and that the plea Avas bad. 

In Copin V. Adamson, 1 Ex. 1). 17, 45 L. .1. Ex. 15, the defendant was a 
shareholder in a French company, the statutes and provisions of which pro- 
vided that, in case of litigation between a shareholder and the rest of the 
company, the shareholder's domicile should l)e in Paris, and that in default 
tliereof service at a pul)lic office should be good. In the action, which was 
on a French judgment, the above facts, together with the allegation tliat by 
French law the defendant was bound by the company's statutes, were held a 
good answer to a plea that the defendant was not domiciled within the juris- 
diction of France, nor a native of France, nor served with process within the 
French jurisdiction during tlie original French suit. 

A plea to an action for an assault that it was comniltLed in a foreign coun- 
try, where damages are not recoverable in respect of it until certain penal 
proceedings have been commenced and determined tliore, goes only to pro- 
cedure : Scott v. Lord Seymour, 1 H. & C. 219. 

On the same principle the Master of the Rolls refused to give priority in an 
administration suit in tliis country to the claim of a foreign creditor, although 
the debt, which had been contracted in Venezuela, liad been registered, so as 
to acqaire, according to tlie law of that country, a priority in the distriliution 
of the assets : Pardo v. Bingham, L. R. G Eq. 485. And so in Ex ^oarte Mel- 
bourn, L. R. 6 Ch. 64, 40 L. J. Bank. 65, a wife was allowed to proA'e against 
the estate of her husband, under an English bankruptcy, as a creditor in 
respect of a marriage contract paripessu with the other ci'editors; although, 
by the law of Batavia, where the contract was made, it would have had, for 
want of registration, no eifect with regard to third parties : the court holding 
that the efl'ect of this law was only to give the other creditors priority over 
the wife, and that all questions of priority must be determined by the lex 
fori.'] 

In Broion v. Thornton, 6 A. & E. 185, a charter-party was entered into at 
Batavia. According to the law prevailing there, such instruments are entered 
In a public book, which is the only evidence of their contents in that colony ; 
a public notary makes two copies from the book, and delivers one to each 
party, and these are evidence of the original in all Dutch courts except 
Batavia. Held, that such copies are not evidence of the original in this coun- 
try. Tlie courts here will not adopt rules of evidence from foreign courts. 
Appleton V. Lo7-d Brayhrook, 2 Stark. 6, 6 M. & S. 34; Black v. Lord Bray- 
brook, 2 Stark. 7, 6 M. & S. 39 ; [see Abbott v. Abbott, 29 L. J. Matrim. Cases, 
29; Bainv. Whitehaven Ely. Co., 3 H. & C. 1.] 

In the case of Tiilloch v. Hartley, 1 You. & Coll. C. C. 114, the Yice-Chan- 
cellor Knight-Bruce is supposed to liave departed from this rule, on the 



3I0STYX Y. FABrvIGAS. 955 

ground that the propertj- in litigation was real property ; but his honour does 
not appear to have intended to lay down anj' exception to the rule so wide as 
the alleged ground of his decision might suggest. See Yates v. Thomson, 
3 CI. & Fin. 544. 

[In Hicks v. Poicell, L. R. 4 Ch. 741, the court declined to enforce an un- 
registered charge on real estate in India, an Indian statute having enacted 
that no such charge on real estate in that country should, unless duly regis- 
tered, "be received in evidence in any civil proceeding in any court, or be 
acted on by any public officer ; " the Lord Chancellor Hatherley holding that 
"it would be a narrow construction, regard being had to the whole Act, to 
say that the above provision related simply to the question of evidence." 

But where to an action on a bottomry bond it was pleaded that the bond 
was bad becaiise the master had omitted to communicate with the cargo 
owner before hypothecating the cargo, the C. A. held that the necessity im- 
posed by English law for doing so was not merely evidence so as to be mat- 
ter of procedure. " The manner of proving facts," says Lord Esher, M. E., 
" is matter of evidence and to my mind is matter of procedure, but the facts 
to be proved are not matters of procedure ; they are the matters with which 
the procedvire has to deal." The Gaetano and Maria, 7 P. D. at p. 144. 

The provisions of the 4th section of the Statute of Fraiids liave been held 
only to affect the procedure on contracts : therefore a contract made between a 
British and a French subject in France, and to be performed there, was held 
to be unenforceable here, because it was not to be performed within a year 
from the making of it, and was not in writing. Leroitx v. Brown, 12 C. B. 
801. See, however, the judgment in Williams v. Wheeler, 8 C. B. N. S. 316, 
and in Gibson v. Holland, L. R. 1 C. P. 8; also the judgment of the Exch. 
Cha. in Lloyd \. Guibert, L. R. 1 Q. B. 115; and /ler Field, J., in Bawley v. 
Bawiey, 1 Q. B. D. 461, 45 L. J. Q. B. 675, and Adams v. Clutterbuck, 10 Q. B, 
D. 403, 52 L. J. Q. B. 609. 

In the last case it was held by Cave, J., to be no defence to an action in 
England on an agreement of tenancy of a house and shootings in Scotland 
that the agreement was not under seal : the provision of English law to that 
effect not being matter of procedure so as to be applied as lex fori, and there 
being no such provision in the law of Scotland. 

In the judgment in the principal case it is stated (ante, p. 647), that " the 
way of knowing foreign laws is by admitting them to be proved as facts." 
See on this point, Bradlaugh v. De Rin, L. R. 5 C. P. 473; Orr-Ewing v. Orr- 
Eioing, 22 Ch. D. at p. 465, per Jessel, M. R. The cases are not altogether 
consistent as to how far it is necessary that the evidence should be that of 
experts, with actual experience of practice in the foreign courts. See The 
Sussex Peerage Case, (11 C. & F. 85,) where the evidence of Cardinal Wise- 
man was admitted as to the matrimonial law of Rome, and Van der Donckt v. 
Thellusson, (8 C. B. 812) ; but, contra, see Brislov:e v. Seqiierville, 5 Ex. 275, a 
decision which has been recently followed bj' Sir James Hannen in In the 
Goods of Bonclli, 1 P. D. 69, refusing to admit the evidence as to Italian law 
of a :\Ir. John Reeve, who described himself as a certified special pleader, and 
as familiar with Italian law : and again in Cartwright v. Cartwright, 26 W. R. 
684, where the evidence of an English counsel as to Canadian law was simi- 
larly rejected. 

By the 24 Vict. c. 11, superior courts of law may for the purpose of 
ascertaining the law of a foreign state, send a case to a court of that 
state. 



956 MOSTYX Y, FABRIGAS. 

In the absence of proof to the contrai'v. foreign law is presumed to be tlie 
same as our own. 

As to when it niaj- be a ground for a stay of proceedings in an action liere 
that anotlier action by the plaintifl" against tlie defendant for tlie same cause 
was pending abroad, see McHenrij v. Lewis, 22 Ch. D. 397, 52 L. J. Ch. 325; 
Noi'ton V. Florence Land Co., 7 Cli. D. 332; Pernrian Guano Company v. Bock- 
xooldt, 23 Ch. D. 225; Hijman v. Helm, 24 Ch. D. 531; The Christianshonj , 10 
P. D. 141.] 

The dictum attributed to Lord ManstleUl, in Mnstiin v. FnJ>ri(jas, ante, (545, 
viz., " The governor is in the natui'e of a riceroij, and tlierefore locally, (hiring 
his government, no civil or criminal action will lie against him : the reason is, 
because upon i)rocess lie would he subject to imprisonment," was dissented 
from by the Judicial Committee of the Privy Council in the case of Hill v. 
Bi(j(je,'i Moore (Privy Council), 405; and Lord Brougham suggested, that 
the expressions used bj' Lord Manslield ma}' have been somewhat altered in 
the report. In Hill v. Bicige, to an action of debt brought in a colonial court 
against the governor, a plea stating his viceregal character was lield to aflbrd 
no defence ; but Loi'd Brougham, adverting to the inconvenience suggested 
by Lord Mansfield, said, in giving the judgment of the court, " It is not at all 
necessary that in holding a governor liable to l)e sued we should hold his per- 
son liable to arrest Avhile on service; that is, Avhile resident in his govern- 
ment. It is not even necessary that we should meet the suggestion of his 
goods in all circumstances being liable to be taken in execution — though 
that is liable to a ditlerent consideration." 

[In the important case of Luhy v. Wodehouse, 17 Irish C. L. Kep. 618, it 
was decided that the Lord Lieutenant of Ireland was not liable to be sued in 
an Irish court of law for an alleged tortious act done by him in his viceroy's 
capacity : and on the motion of the Attorney-General for Ireland, the Court, 
upon affidavits, and relying on the authority of the principal case, directed 
that a writ issued against the Lord Lieutenant in respect of such an alleged 
act should be summarily taken off the file, without putting him to plead such 
defence. The editors are informed that this case has been recently acted 
upon by the English law officers. 

With regard to the rights and liability of sovereign princes themselves to 
sue and be sued in the courts of this country, the general rule deducible from 
the cases seems to be that in respect of acts of state they can neither sue nor 
be sued. Personally, foreign sovereigns cannot be sued at all, and though it 
has been held that in some cases proceedings in rem may be instituted against 
their property in this country {The Charkieh, L. R. 4 A. «& E. 100, 42 L. J. 
Adm. 17), the dicta to this eftect have been overruled in the Court of Appeal, 
The Parlement Beige, 5 P. D. 197. In certain cases a petition of right may 
be instituted by a British subject against the Crown ; " but it seems clear to 
us," says Lord Coleridge, C. J., delivering the judgment of the Court of 
Appeal, in Bustomjee v. The Queen, 2 Q. B. D. 69, 46 L. J. Q. B. 238, " that 
in all that relates to the making and performance of a treaty with another 
sovereign, the Crown is not and cannot be either a trustee or an agent for 
any subject Avhatever. The duty," his lordship adds, of the English sover- 
eign in such a case " was a duty to do justice to her subjects, according to 
the advice of her responsible ministers ; not the duty of an agent to a princi- 
pal, or of a trustee to a cestui que trust. If there has been a failure to perform 
that duty, which we only suggest for the sake of argument, it is one which 
Parliament can and will correct — not one with which the Courts of Law 
can deal."] 



MOSTYX V. FABKIGAS. 957 

The liability of sovereign princes to be sued in the courts of foreign 
countries underwent a full discussion in the very remarkable case of the Duke 
of Brunsicick v. The King of Hanover, 6 Beav. 1, where the defendant was at 
once a king of one country and a subject of that in which he was sued. 
Lord Langdale, M. R., in a judgment which exhausts the subject, stated his 
opinion: 1. That the King of Hanover was "exempt from all liability of 
being sued in the courts of this country for anj' acts done by him as King of 
Hanover, or in his character of sovereign prince; " but that, " being a sub- 
ject of the Queen," he was " liable to be sued in the courts of this country 
in respect of any acts and transactions done by him, or in which he may have 
been engaged, as such subject." 2. That " in respect of any act done out of 
this realm, or any act as to which it may be doubtful whether it ought to be 
attributed to the character of sovereign or to the character of subject, it 
ought to be presumed to be attributable rather to the character of sovereign 
than to the character of subject." 3. That in a suit in the Court of Chancery 
against a sovereign prince who is also a subject, "the bill ought upon the 
face of it to show that the subject-matter of it constitutes a case in which a 
sovereign prince is liable to be sued as a subject." And the decree of the 
Master of the Rolls, allowing the demurrer in that case to a bill seeking an 
account against the King of Hanover as guardian of the plaintifl", to which 
office the king, upon his attaining the throne of Hanover, had been appointed 
under an aiTangemeut springing out of the deposition of the duke pursuant 
to a decree of the Germanic Diet in 1830, was affirmed by the House of Lords 
on appeal (2 House of Lords Cases, 1) , on the ground that a sovereign is not 
liable to be sued in respect of matters of state. 

In the case of the Nabob of Arcot v. East India Company, 8 Br. C. C. 291, 
4 Br. C. C. 180, 2 Ves. J. 56, see Beames, El. PI. 73, the Court of Chancery 
refused to entertain a suit arising out of transactions of state between 
sovereign powers, though the defendants were subjects of this country. 

In Munden v. The Duke of Brunsirick, 10 Q. B. 656, it was considered to be 
no plea to an action on an annuity deed that the defendant was a sovereign 
prince at the time it was made without showing either that it was an act of 
state or that the defendant retained his sovereign character at the time of 
action brought. 

And in Wadsworth v. The Queen of Spain, 17 Q. B. 171. and De Haber v. 
The Queen of Portugal, 17 Q. B. 196, proceedings in foreign attachment 
instituted against property belonging to those sovei*eigus in their liublic 
capacity by the holders of Spanish and Portuguese l)onds were stayed by 
prohibition. [In support of the general principle of the immunity of sover- 
eign princes and of their property in respect of acts of state, see further 
Gladstone v. The Ottoman Bank, 32 L. J. Ch. 228 ; Same v. Musurus Bey, Id. 
155; Smith v. Weguelin, L. R. 8 Eq. 198; 38 L. J. Ch. 465; Doss v. Secretary 
of State for India, L. R. 19 Eq. 509 ; Twycross v. Dreyfus, 5 Ch. D. 605, 46 L. 
J. Ch. 510; Vavasseur v. Krupp, 9 Ch. D. 351 ; The Constitution, 4 P. D. 39; 
48 L. J. P. D. & A. 13. 

In the case of The Charkieh, L. R. 4 A. & E. 100; 42 L. J. Adm. 17, Sir R. 
Phillimore elaborately discusses the subject of the immunities of foreign 
princes in this respect, and lays down that the courts of this country have 
jurisdiction to entertain proceedings instituted in rem, though the property 
be that of a foi'eign sovereign, and in some cases, it would seem, even though 
such property may be " of a public character, as for instance a ship of war : " 
and further, that a sovereign may, hy assuming the character of a trader, 



958 MOSTYN V. FABRIGAS. 

■waive in respect of sncli trading the privilege wliich he enjo_vs generally r.-; 
a sovereign and render liimself liable to the jnrisdiction of an English court. 
The Court of Queen's Bench refused to interfere in this case by prohibition 
to the Court of Admiralty. The Charkieh, L. R. 8 Q. B. 197; 42 L. J. 
Q. B. 75. 

The above dicta, however, were uunecessar}' to the decision, as the learned 
judge further held that the Viceroy of Egypt, to whom tlie Charkieh belonged, 
was not A foreign sovereign so as to be entitled to the privilege claimed. And 
in the important case of The Farlement Beige, 5 P. D. 197, the Court of 
Appeal, after full consideration, overruled them, and held that foreign sover- 
eigns enjoy the same immunity from proceedings in rem as from actions in 
j)ersonam, and that their property is eciually privileged in this respect whether 
ships of war or trading vessels. The subject will be found very fully dis- 
cussed in the interesting and exhaustive judgment delivered by Lord Esher, 
then Lord Justice Brett, in the last cited case. 

In the later case of Strousberg v. Republic of Costa Rica, 29 W. R. 125, Lord 
Justice James, after stating that '-' it is a violation of the respect due to a 
foreign sovereign or state to issue the process of our courts against such 
sovereign or state," mentions two exceptions, if thej' can be called excep- 
tions, to this rule. First, " that where a foreign sovereign or state comes into 
the courts of this country for the purpose of obtaining some remedy, then by 
Avay of defence to that proceeding tlie person sued hero ma}' file a cross claim 
against that sovereign or state for enabling complete justice to be done be- 
tween them." Secondly, he refers to " the case in which a sovereign may be 
named as a defendant for the purpose of giving him notice of the claim 
which the plaintifl' makes to funds in the hands of a third person or trustee 
over whom this court has jurisdiction, and who alleges that the foreign sov- 
ereign has also some claim upon the funds in question. These," adds his 
lordship, '• are the onl}- exceptions." 

Thus — to illustrate the first exception and the wa}' in Avhich it has been 
enforced in our courts — if a foreign sovereign sue here, and a cross action 
be brought, our courts will staj' proceedings in the original action until the 
foreign sovereign name a proper person to be made a defendant for the pur- 
pose of discovery, see Republic of Peru v. Weguelin, L. 11. 20 Eq. 140; Iii'p7ihlic 
of Costa Rica v. Erlanger, 1 Ch. D. 171, and in default of a sufficient affidavit 
of discovery being made, will dismiss the proceedings. Republic of Liberia v. 
Rye, 1 App. Cas. 139, 45 L. J. Ch. 297. Security for costs may be ordered : 
Republic of Costa Rica v. Erlanger, 3 Ch. D. 62. 

"Whilst instances exemplifying the second exception will be found in Glad- 
stone V. Musurus Bey, 32 L. J. Ch. 155, where a court of equity granted an 
injunction restraining tlie Bank of England from paying over, except under 
direction of the court, a sum of money deposited by the plaintiff as caution- 
mouej' for the fulfilment on tlieir part of a concession granted to them by 
the Turkish government : and in Lariviere v. Morgan, L. R. 7 Ch. 550, 41 L. J. 
Ch. 746, where Lord Hathei'ley, C, affirmed a decree of Malins, V.-C, by 
which it was directed that a fund deposited with persons in this country by 
the French government for the purpose of a contract made by them with the 
plaintiffs should be applied in paj^ment of his claims under the contract. In 
neither of these cases did the foreign government appear. The judgment in 
Lariviere v. Morgan was reversed in Dom. Proc. ; but upon the gi'ound that 
the facts showed only a personal undertaking by the defendant, not any trust 
or assignment of a trust-fund, so as to give the court jnrisdiction. Morgan v. 



IMOSTYX V. FABRIGAS. 959 

Lnriviere, L. R. 7 H. L. 423, 44 L. J. Ch. 457. The same distinction was 
dwelt upon in Tioycross v. Dreyfus, tibi sup. and in The Pnrlement Beige, 5 P. 
D. at p. 201. Both these cases are distinguished on the ground that in each 
of them there was a trustee who could be sued in our courts. 

In the case of a suit by a foreign sovereign in amity with us, although the 
foreign sovereign is entitled to siie in our courts for wrongs done to him by 
English subjects without authority from the English government in respect 
of property belonging to him either in his individual or his corporate capacity, 
yet he cannot maintain a suit here for invasions of his prerogative as reign- 
ing sovereign. See the judgments and the cases collected in The Emperor of 
Austria v. Day, 30 L. J. Cha. 690 ; The King of Portugal v. Russell, 31 L. J. 
Cha. 34; Prioleau v. United States of America, L. R. 2 Eq. 659; 36 L. J. Ch. 
36 ; United States of America v. Wagner, L. R. 2 Ch. 582 ; United States v. 
McRae, L. R. 8 Eq. 69. Nor can the foreign sovereign sue in the name of 
his ambassador; Penedo v. Johnson, 22 W. R. 103. 

As to how far an English court will entertain an action by an English 
subject engaged in the service of a foreign government against another offi- 
cial in the same service for a libel contained in a report made by the defend- 
ant in his official capacity, both plaintiff" and defendant being British subjects, 
see Hart v. Gwnpach, L. R. 4 P. C. 439 ; 42 L. J. P. C. 25.] 

Upon the same principle which exempts sovereigns from liability to be 
sued in respect of acts of state, seems to rest the immunity of a soldier 
against actions by foreigners for acts done by him in a hostile manner, in the 
name of the government which he serves, provided those acts be either au- 
thorised by an actual command, or ratified by a subsequent approval of the 
government : to such acts the maxim respondeat superior seems to apply in 
its widest sense : and if any injury inflicted by them, (if redress be denied by 
the government,) there is no remedy but an appeal to arms; see Yin. Abr. 
Pra^rogative (L. a) : Elphinstone v. Bedreechnnd, 1 Knapp. (Privy Council), 
316; Dohree v. Napier, 2 N. C. 781; Buron v. Denman, 2 Exch. 167; Paradine 
V. Jane, Style R. 48 ; [Reg. v. Lesley, 1 Bell, C. C. 220, S. C. 8 Cox, C. C. 269; 
29 L. J. Exch. 877; The Secretary of State, &c., of India v. Kamachee Boye 
Sahaba, 13 Moore, P. C. 22. 

On a question whether a govei'nment officer was liable to the plaintifls (who 
were Indian subjects of her Majesty) for an act done by him in his official 
capacity, the lords of the Privy Council laid down, that " if the act which he 
did was in fact wrongful as against the plaintifls, and produced damage to 
them, they must have the same remedy by action against the doer, whether 
the act was his own spontaneous act and unauthorised, or whether it was 
done by the order of the superior power. The civil irresponsilsilitj- of the 
supreme power for tortious acts could not be maintained with any show of 
justice, if its agents were not personally responsible for them ; in such cases 
the government is morally bound to indemnifj' its agent, and it is hard on 
such agent if this obligation is not satisfied ; but the right to compensation 
in the party injured is paramount to this consideration." Rogers v. Rnjendro 
Dult, 13 Moore, P. C. 236 ; see per cur. Feather v. Reg., 35 L. J. Q. B. 200, 209 ; 
S. C. 16 C. B. N. S. 310; Tohin v. Reg., 33 L. J. C. P. 199. See 0' Byrne v. 
Hartington, I. R. 11 C. L. 445, 453, as to the non-liability of a superior officer 
for a legal order illegally carried out, and see Grant v. Secretary of State for 
India, 2 C. P. D. 445, 46 L. J. C. P. 681, as to the non-liability of a govern- 
ment official for the dismissal of a military officer, or for the publication of 
such dismissal in the Gazette. 



960 MOSTYN V. FABRIGAS. 

As to the non-liabilitj' of a government official on a contract made by him 
for the public, see O'Gradijy. Cardwell, 21 W. R. 340; Palmer v. Hutchinson, 
6 App. Ca. 619. 

As to the liability inter se of persons joining in a hostile expedition for acts 
done in obedience to the lawful orders of government officers sent out in 
command of the expedition, see Hodgkinson v. Fernie, 2 C. B. N. S. 415] As 
to an action for acts done abroad bj^ a commandinfj officer in his official cajia- 
city, as reducing a non-commissioned officer to tlie ranlvs, &c., see Barn-is v. 
Keppel, Wils. 314. 

"Whether an ambassador is entitled to absolute exemption from suit in the 
courts of the country to which he is sent, or only to be protected from 
process which may directly aflect his person or property, was discussed in the 
case of Taylor v. Drouet, 14 C. B. 487, where it was considered unnecessary 
to decide the question, the court being of opinion that such a privilege, if it 
existed, was at all events waived by the defendant's having voluntarily 
appeared to the writ, and not raised any objection until a late stage of the 
proceedings. Qua-re. whether in that case too much stress was not laid upon 
tlie opinion of Bynkerslioek as to proceedings in rem in the case of princes 
and ambassadors; see Wadswortli v. The Queen of Spain, 17 Q. B. 171, per 
curiam. [The question has since been resolved in favour of the ambassador, 
on the principle " omnis coactio a legato abesse debet." The ^^agdalena Steam 
Navigatinn Co. v. Martin, 2 El. & El. 94, 28 L. J. Q. B. 310; Gladstone v. 
Musurus Beij, 32 L. J. Cha. 155; The Secretary of State for India v. Kamachee 
Boye Sahaba, 13 Moore, Pr. C. 22; Parkinson v. Potter, 16 Q. B. D. 152.] 

As to the liability of judges for judicial acts, see further, Calder v. Ilalkett, 
3 Moore (Privy Council), 28; Graham v. Lafitte, Ibid. 382; Iloulden v. Smith, 
14 Q. B. 841 ; [Gelen v. Hall, 2 H. & N. 379; and Barnardistone v. Soame, 6 
Howell, State Trials, 1095; Kemp v. Neville, 10 C. B. N. S. 549, 31 L. J. C. P. 
158; Frcty v. Blackburn, 3 B. & S. 576; Scott v. Stansfield, L. R. 3 Ex. 220; 
37 L. J. Ex. 155; Willis v. Maclachlan, 1 Ex. D. 370, 45 L. J. Ex. 689]. 



Jurisdiction of the Suhject-Matter. 

Preliminary distinctions. — A superficial examination of the 
authorities, on tlie subject of transitory actions, presents much 
apparent confusion that falls away when expressions are accu- 
rately defined, and the subject properly subdivided. In the 
first place, the division of actions into local and transitory must 
not be confused with that into real, personal, and mixed. The 
latter will prove no reliable guide to the former. Again, the 
question of jurisdiction of the person is, of course, quite dis- 
tinct from that of jurisdiction of the subject-matter. In deter- 
mining if a court have jurisdiction of a cause of action that 
arose, or affects property, outside of its territory, we are not 
assisted by the circumstance that the defendant has been per- 
sonally served with its process within that territory, or has vol- 
untarily submitted himself to that jurisdiction. Jurisdiction of 



MOSTYN V. FABRIGAS. 961 

the person is quite as essential as jurisdiction of the subject- 
matter to make the judgment or decree a valid one, but its ex- 
istence does not aid us in determining whether the cause of 
action itself be local or transitory. Then, again, there is the 
distinction between the power of a court to enforce a cause of 
action arising, or affecting property, outside of its territory, and 
its duty to determine the controversy according to some law 
other than its own ; as, for instance, lex loci contractus or lex loci 
rei sitae. The application of the foreign law may determine the 
sufficiency of a claim or defence, but only in isolated cases does it 
determine the locality of an action. At all events, the duty to 
apply a foreign law is a different thing from the poiver to enforce 
a foreign cause of action. And it is a general principle that the 
provisional remedies incident to the law of the forum accom- 
pany the general jurisdiction, irrespective of the practice of the 
forum where the cause of action arose. So, too, the capacity 
in which a defendant is sued may defeat the jurisdiction ; a 
corporation may not exist outside of the territory of the sover- 
eignty which created it ; Gibbs v. Queen Ins. Co., 63 N. Y. 
114. Courts may decline to interfere with the distribution of 
assets by a foreign administrator or receiver ; Davis v. Morriss, 
76 Va. 21. And tlie jurisdiction of a Court of Chancery, act- 
ing in personam on the conscience of the defendant, is only an 
apparent exception to the doctrine that actions affecting the 
ownership or possession of real property are local and confined 
to the forum where the property is situated. So, too, the lack 
of jurisdiction in so-called Federal causes is referable mainly to 
those instances in which by the United States Constitution and 
Acts of Congress, enacted pursuant thereto, Federal courts are 
given exclusive jurisdiction, or one or both parties the right of 
removal from state to Federal courts. With this distinction 
the Federal cases offer great assistance in determining the law 
of the jurisdiction of the subject-matter. In considering the 
jurisdiction of causes of action conferred solely by statute, it 
must be remembered that while there is a presumption that the 
common law of one state is that of every other, there is no 
such presumption in the case of statutory law ; Whitford v. 
Panama R. H. Co., 23 N. Y, 465. Some confusion is made in 
the books by cases construing statutes defining the jurisdiction 
of local courts. It is uniformly held that such statutes do not 
apply to actions arising out of the state in which tliey were 



962 MOSTYN V. FABRIGAS. 

enacted; Home Ins. Co. v. Pennsylvania R. R. Co., 11 Hnn 
182. Again, there are exceptions more apparent 'than real, 
where considerations of comity and international obligation 
divest the ordinary- authority. As, for instance, where courts 
decline jurisdiction over residents as to property which they 
hold merely as agents of a foreign government; Leavitt v, 
Dabney, 3 Abb. Pr. N. S. 469 ; or of actions for personal inju- 
ries done by a defendant, in the exercise of a foreign sover- 
eignty, even though he no longer represent it ; Hatch v. Baez, 7 
Hun 596. And it should be remembered that the American 
law on the jurisdiction of the subject-matter is somewhat com- 
plicated by the circumstance that it is only in a certain sense 
that the states are foreign to each other. For the purpose of 
this note, however, it may be assumed that they arc, c'X(,-ei)t so 
far as the United States Constitution })rovides that '• full faith 
and credit shall be given in each state to the public acts, records, 
and judicial proceedings of every other state." Considerations 
of public policy sometimes intervene to make courts decline 
the jurisdiction which would otherwise be assumed. Thus, 
although as a general rule courts apply the lex loci in constru- 
ing all contracts involving questions of marriage, legitimacy, 
and rights of succession to property, they will not enforce such 
foreign laAV if it involves any consequences immoral, contrary 
to general policy, or in violation of the conscience of the state 
whose courts are appealed to ; Eubanks v. Banks, 34 Ga. 415. 

Jurisdiction in general. — Every act of a court is the exercise 
of jurisdiction. Jurisdiction itself is the power to hear and 
determine the controversy between parties to an action or suit. 
If the law confers the power to adjudicate between the parties, 
that is to say, to exercise judicial power over them, the court 
has jurisdiction ; Rhode Island v. Massachusetts, 12 Pet. 657. 
The question presents itself in three forms. A court may act 
without this power, in which event, its act or judgment is 
wholly void, and is as though it had not been done ; secondly, 
a court may exercise its power wrongfully, for which its judg- 
ment must be reversed on appeal ; or, thirdly, it may use its 
power rightfully, but irregularly, for which its judgment must 
be corrected on motion ; Paine v. Mooreland, 15 Ohio 435 ; Gray 
V. Bowles, 74 Mo. 419. Jurisdiction of the person is acquired 
when the party is before the court, in fact, or constructively, 
by reason of service upon him of a process known to the law. 



MOSTYX V. FABEIGAS. 963 

and duly issued and executed; Lange v. Benedict, 73 X. Y. 12. 
An objection to jurisdiction on the ground of exemption from 
the process of the court, or the manner in which it is executed, 
is waived by appearance, without making the objection, or by 
an}^ distinct recognition of the court's authority in the course 
of a cause ; Rhode Island v. Massachusetts, 12 Pet. ().37 ; Miune- 
apolLs Works v. Hedges, 11 Xeb. 46 ; Graves v. Richmond, 56 
la. 69 ; Rheiner v. Union Depot Co., 31 Minn. 289, and cases 
there cited. Jurisdiction of the svdiject-matter is the power 
lawfull}' conferred to deal with the general subject involved in 
the action. It is to be distinguished from the power to act 
upon a particular state of facts ; Hunt r. Hunt, 72 X. Y. 217. 
And it is the power conferred by the act creating the court, 
or possessed inherentl}' by its constitution ; Lamar v. Commis- 
sioners Court, 21 Ala. 772. In determining if a court have 
jurisdiction of the subject-matter, questions as to service of 
process, voluntary appearance, waiver of objections by answer- 
ing on the merits, &c., become immaterial because jurisdiction 
of the subject-matter cannot be conferred by consent; Dudley 
V. Maybe w, 3 X. Y. 9 ; ]\Iontgomery v. Anderson, 21 How. 386 ; 
Brondberg v. Babbott, 11 Xeb. 517 ; nor by waiver, Orcutt v. 
Hanson, 71 Iowa oil; except that in doubtful cases courts will 
not permit the objection to prevail after the parties proceed, 
A'oluntarily, to hearing on the merits. Appeal of Adams, 6 Atl. 
Rep. 100; nor by laches, Titus v. Relyea, 8 Abb. Pr. 177; nor 
by confession of judgment. Coffin v. Tracy, 3 Caines 129; 
Howell V. Gordon, 40 Ga. 302 (where it was held that a judg- 
ment confessed by a non-resident is not binding against a third 
person, because the court has no jurisdiction against a non-resi- 
dent, not served with its process). And a legislature, whose 
powers Iw the constitution are confined to legislation, cannot 
confer or dispense with jurisdiction by remedial legislation 
validating a proceeding void for want of authority to entertain 
it; Maxwell v. Goet, 11 Vroom 383, and cases there cited. On 
the other hand, jurisdiction cannot be abridged by agreement 
between the parties which limits the principle of decision to 
be adopted in the case ; Watts v. Boom Co., 47 ^lich. 540. So, 
too, jurisdiction once vested cannot be ousted by subsequent 
events ; Etes v. Martin, 34 Ark. 410 ; Morgan v. Morgan, 2 
Wheat. 290. And where a court has no jurisdiction, its judg- 
ment or decree is not simply voidable but void, and may be col- 



964 MOSTYN Y. FABRIGAS. 

laterally impeached ; Lamar r. Commissioners Court, 21 Ala. 
772 ; Campbell v. McCahan, 41 111. 45 ; Mersier v. Chase, 91 
Mass. 242 ; and its process then gives no protection to the offi- 
cer of the court executing it; Driscoll v. Place, 44 Vt. 252; 
Allen V. Carey, 10 Wend. 349 ; Skilton v. Winshnv, 4 Gray 441. 
And it seems that when a court having jurisdiction is properly 
applied to, it must exercise if, from whatever source obtained ; 
Cook V. Whipple, 55 N. Y. 150. But, on the other hand, where 
there is no jurisdiction, a court will not proceed with the mat- 
ter, and should not even render an opinion, because its judg- 
ment will be fruitless. A judicial judgment is the product of 
the power of the law. If the law do not confer the power, it 
is a nullity ; Smith v. Myers, 109 Ind. 1 ; Robertson v. State, 
Id. 79. Thus, for instance, a member of the bar cannot be 
given jurisdiction of a cause by consent, and a court will not 
even entertain an appeal from his decision ; Hoagland v. 
Creed, 81 111. 50G. Finally, distinction must be made between 
limitation of jurisdiction and inferiority of jurisdiction. Every 
court is subject to some limitation, territorial or otherwise. 
But courts of limited jurisdiction are not necessarily inferior 
in the sense that there is no presumption of jurisdiction when 
their judgments are assailed collaterally ; People v. Bradner, 
107 N. Y. 1. 

Transitory Actions. 

1. Independently of statute law. — Transitory actions are 
those in which the transaction is one that might have occurred 
at any place ; local actions are those in which the transaction is 
necessarily local. This distinction is technical, but too well 
established to be disregarded ; Livingston v. Jefferson, 1 Brock. 
203. Personal actions whether ex contractu or ex delicto are 
transitory and may be brought anywhere, whatever the resi- 
dence of the parties. In contemplation of law, the injury 
arises anywhere and everywhere. The right to recover rests 
on the presumption that the common law prevails where the 
cause of action arose, and that the plaintiff could have recovered 
there ; Leonard v. Columbia Steam Co., 84 N. Y. 48. As soon 
as one person becomes liable to another in such action, that 
liability attaches to the person and follows him wherever he 
goes. He cannot, by removing from one place to another, 
discharge himself of that liability ; Stout v. Wood, 1 Blackf. 70 ; 



MOSTYN V. FABRIGAS. 965 

Smith V. Bull, 17 Wend. 323 ; Hale v. Lawrence, 1 Zab. 714 ; 
Curtis V. Bradford, 33 Wise. 190 ; Peabody v. Hamilton, 106 
Mass. 217, and cases there cited. Such actions include slander, 
Boynton v. Boynton, 43 How. Pr. 380; negligence. Central R. 
R. Co. V. Swint, 73 Ga. 651 ; Atkinson v. Erie Railway Co., 2 
Vroom 309 ; assault and battery. Watts v. Thomas, 2 Bibb. 458 ; 
Newman v. Goddard, 3 Hun 70 ; trover, Robinson v. Arm- 
strong, 34 Me. 145; case for assisting plaintiff's slave to escape. 
Northern R. R. Co. v. Schell, 16 Md. 331 ; fraud, Johnson v. 
Whitman, 10 Abb. Pr. N. S. Ill ; enticing away plaintiff's 
wife, Burdick v. Freeman, 46 Hun 138. As to that species of 
property which has no habitat, such as debts or choses in action, 
jurisdiction of the person must include jurisdiction of the thing; 
Keyser v. Rice, 47 Md. 203. An action lies for illegal collec- 
tion of a tax in another state ; Ilenry v. Sargent, 13 N. H. 
321. An action will be maintained by one non-resident against 
another to subject to the payment of a debt the shares of a 
domestic corporation ; Quarl v. Abbott, 102 Ind, 233. In Bar- 
ton V. Barbour, 104 U. S. 126, it was held that a receiver can- 
not be sued even at law, in the courts of one state for the 
personal wrongs of his agents, when he is in possession of and 
managing property administered by the court of his appoint- 
ment, in another state. But it was decided otherwise in 
Allen V. Central R. R. Co., 42 Iowa 683, and in Kenney v. 
Crocker, 18 Wise. 74, where it was held that the action would 
lie without leave of court even though the receiver had been 
appointed by the Federal court. The courts will not enforce 
the internal revenue laws of another nation ; McFee v. South 
Car. Ins. Co., 2 McCord 503. And quare, if a court will 
entertain an action for injury resulting from the defective 
condition of a highway in another state, the matter intimately 
concerning the internal police regulations of that state ; Hunt 
V. Pownal, 9 Vt. 411 ; and see Molony v. Dows, 8 Abb. Pr. 
310, where the court declined jurisdiction of an action for 
injuries done by a vigilance committee in another state ; and 
see Pickering v. Fish, 6 Vt. 102. But where all the parties are 
non-residents and the cause of action arose out of the state, al- 
though the court does have jurisdiction, its exercise is a matter 
of sound discretion, and it should not be exercised unless spe- 
cial causes are shown to exist ; Burdick v. Freeman, 46 Hun 
(N. Y.) 138. The fact, however, that there is fear of the defend- 



966 MOSTYN V. FABRIGAS. 

ant's influencing a jury in liis state is not a reason recognized 
for retaining jurisdiction. And it should be declined if de- 
fendant is only casually here ; DeWitt v. Buchanan, 54 Barb. 
31. Jurisdiction in such cases rests on comity and will be de- 
clined where a statutor}^ tort (putting off defendant from cars 
between stations) has been committed outside of the United 
States, both parties being aliens ; Great Western R. Co. v. 
Miller, 19 ]\lich. 305. So, too, the cognizance of wrongs on 
the high seas, both parties and the vessel being foreign, is not 
a matter of right but of discretion, and it ought not to be ex- 
ercised where, for aught that appears, both parties intend to re- 
turn immediately to their own country ; Gardner v. Thomas 
14 Johns. 134. Such an action, however, by a discharged sea- 
man, or one leaving without the mate's objection, should be 
entertained ; Johnson v. Dalton, 1 Cow. 543. And on the 
other hand, a stipulation by a seaman not to sue except in his 
own country ought to be observed unless the voyage is ended ; 
Olzen V. Schierenberg, 3 Daly 100. The objection to entertain- 
ing jurisdiction in cases where it is a matter of discretion, 
should be taken by motion; De Witt w. Buchanan, 54 Barb. 
31. A mere request to the court to charge the jury that ac- 
tion is not maintainable held insufficient ; Burdick v. Freeman, 
46 Hun 138. 

Where all the facts transpired, while both parties were resi- 
dents of another state, the rights must be determined accord- 
ing to the law of that state; Saltee v. Cliandler, 26 Mo. 124; 
R. R. Co. V. Kanaley, 17 Pac. Rep. (Kans.) 327. On the other 
hand, where in an action of slander for words not actionable at 
common law, but made so by the statute of the forum, it will 
not be presumed that a similar statute exists in the state where 
the words were spoken, and the action will not be entertained ; 
Stout V. Wood, 1 Blackf. 70. But although a cause of action be 
assigned in a state where such assignment is void, the assignee 
will be recognized in the forum of the state where the cause 
of action arose, if in such state such an assignment would be 
valid; Vimont v. R. R., &c., Co., 69 Iowa 296. Provisional reme- 
dies follow the law of the forum. So that in an action between 
non-residents, defendant can be arrested for fraud in contract- 
ing a debt, although he could not, in the state where it was 
contracted, and although the whole transaction took place out- 
side of the state ; Johnson v. Whitman, 10 Abb. Pr. N. S. 111. 



MOSTYN V. FABRIGAS. 967 

A foreign creditor may have against a foreign debtor, tempo- 
rarily in the state, all the remedies afforded by its court even 
though harsher than the remedies of the place where the con- 
tract was made ; Sicard v. Whale, 11 Johns. 194; Peck v. Hozier, 
14 Jolms. 346. The pendency of an action in one state is no 
bar to an action between the same parties and with the same 
subject-matter in another. A judgment in one state does not 
merge the cause of action so as to oust jurisdiction in other 
states ; Davis v. Morriss Executors, 76 Va. 21. 

Transitory Actions. As affected hy Statute Law. 

A remedy given by a statute of another state, for wrong 
done there, will be enforced in the courts of any other state 
whose public policy is not opposed thereto. Thus, where a 
person is killed by the negligence of a defendant in any state 
where the statute gives the personal representative the right 
to recover damages, either generally for the benefit of the 
estate, or specially for the benefit of the widow and next of kin, 
or otherwise, recovery can be had in any other state, where the 
personal representative, properly qualified, applies for relief ; 
Leonard v. Navigation Co., 84 N. Y. 48 ; Dennick v. R. R. Co., 
103 U. S. 11 ; Morris v. R. R. Co., 65 Iowa 727. The contrary 
doctrine, where the foreign statute does not declare the rem- 
edy to be for the benefit of the estate generally, is held in cer- 
tain jurisdictions on the ground that this remedy, given to the 
personal representatives as trustees of a right of property in 
the widow and next of kin, is not of such a nature that it can 
be imparted to a foreign administrator virtute officii., so as to 
give him a right to sue in the courts of the state where ap- 
pointed, and to transmit the rights of action from one person to 
another in connection with the representation of the deceased. 

" A succession in the right of action not existing by the 
common law cannot be prescribed by the laws of one state to 
the tribunals of another ; " Richardson v. R. R. Co., 98 Mass. 
85 ; Taylor v. R. R. Co., 78 Ky. 348. So, too, such relief was 
denied on the ground that the administrator is not appointed 
to represent the interest for whose benefit the foreign statute 
gives the remedy ; Mackay v. R. R. Co., 14 Blatch. 65 ; Wood- 
ard V. R. R. Co., 10 Oliio St. 121 ace, because the statute es- 
tablishes a special trust. Semhle aliter, if an administrator 



968 MOSTYN V. FABEIGAS. 

appointed in the state where the injury occurred sues here to 
recover the funds for distribution in the state of appointment. 
But the former seems to be the sounder doctrine. The court 
of the forum can compel proper distribution as well as the 
foreign court. The administrator often receives property which 
must go direct to the next of kin or legatees and not to the 
general estate. The statute could have limited the right if 
that had been the intention. "It is difficult to understand 
how the nature of the remedy or the jurisdiction of the courts 
to enforce it is in any manner dependent on the question 
whether it is a statutory or a common law right ; " Jus- 
tice Miller, in Dennick v. R. R. Co., 103 U. S. 11. On the 
other hand, although actions for personal injuries committed 
abroad are sustained in the first instance, without proof of the 
lex loci, this presumption does not apply where the wrong com- 
plained of is one for which redress can only be given by stat- 
ute ; McDonald v. Malory, 77 N. Y. 546. So that if defend- 
ant's wrong causes death in a state where there is no statute 
giving a remedy, the fact that there is such a statute in the 
state of the forum gives no cause of action ; Hyde v. Wabash 
Co., 61 Iowa 441 ; Needham v. R. R. Co., 38 Vt. 294. Even 
though both parties are citizens of the state of the forum, and 
the negligence causing the deatli was a breach of contract en- 
tered into in such state. If the wrong is not actionable where 
it was committed, it would be contrary to all reason that it 
should be made so, by invoking redress in another state; State 
V. R. R. Co., 45 Md. 41. Such statutes have no extra-territorial 
effect and it cannot be presumed with respect to positive stat- 
ute law, that the laws of other states are similar to those of 
the forum ; Debevoise v. R. R. Co., 98 N. Y. 377. 

A liability in the nature of a penalty imposed by statute 
will be enforced only by the courts of the state which enacted 
it; National Bank v. Price, 33 Md. 498. As, for instance, 
where a statute makes the directors of a company liable for its 
debts, in consequence of certain derelictions of duty. It is not 
like the contractual obligation of stockholders. Corning v. 
McCullough, 1 Comst. 47 ; or the charter obligation of incor- 
porators, and this liability of directors is not to be construed 
as arising out of a contract, implied from the acceptance of 
the charter ; Bird v. Hayden, 1 Rol)ertson 383 ; Derrickson v. 
Smith, 3 Dutcher 166. Foreign statutes are respected and 



MOSTYN V. FABRIGAS. 969 

enforced beyond the territoiy in which they are enacted only 
as a matter of comity and public policy, and foreign courts will 
not enforce such as impose, by way of penalty, on stockholders 
or directors, liability for corporate debts ; Halsey v. McLean, 
12 Allen 438. The same doctrine applies to usury laws ; Gale 
V. Eastman, 7 Mete. 14. And to statutes imposing double 
damages on railroad companies for injury to property, in 
running their trains ; Bettys v. R. R. Co., 37 Wise. 326. Sem~ 
hie contra^ Boj^ce v. R. R. Co., 63 Iowa 70, in which case, how- 
ever, it is to be noted that a similar statute existed in the court 
of the forum, making the " policy " the same in both states. 
So, too, a penalty imposed by act of Congress upon a national 
bank will not be enforced by a state court, although Congress 
expressly authorizes it so to do ; Missouri Tel. Co. v. National 
Bank, 74 111. 217. Sed contra^ National Bank v. Overman, 22 
Neb. 116, and cases cited. And a statute making a witness 
convicted of an infamous offence, incompetent to testif}-, has 
no extra-territorial effect; Commonwealth v. Green, 17 Mass. 
515. On the other hand, though foreign penal statutes will 
not 'be enforced, yet where, e.^., as in statutes relating to gam- 
bling, they create a debt, the cause of action for the debt be- 
comes transitory; Flanagan v. Packard, 41 Vt. 561. 

A legislature cannot create personal liabilities on account of 
transactions occurring beyond its territory, and give them a 
character which they do not have at the place of their occui- 
rence ; Steamboat v. Stunt, 10 Ohio St. 582 ; Le Forest v. Tol- 
man, 117 Mass. 109; Stout v. Wood, 1 Blackf. 70. Comity 
does not require a court to sacrifice the rights of its own citi- 
zen to protect a plaintiff against tlie consequences of his own 
acts under statute and municipal regulations of other states ; 
Woodward v. Roane, 23 Ark. 523. An official bond given in 
another state, and by statute, enforcealjle only in a particular 
way and by a particular officer as often as necessary, for the 
benefit of any relator, can be enforced, in that way, only by the 
courts of such state ; Pickering v. Fish, 6 Vt. 102. A vessel 
registered at a port of the state is within its territory, even 
while on the high seas, in the sense that an assignment by the 
Insolvency Court passes title as against subsequent transfers or 
proceedings in rem; Crapo v. Kelly, 16 Wall. 610. A court 
will enjoin one citizen at the prayer of another, from prosecut- 
ing an attachment in another state, to subject to the payment 



970 MOSTYN V. FABRIGAS. 

of a debt, earnings exempt by the law of the state, of which the 
parties are residents ; Snook v. Snetzer, 25 Ohio St. 516. 

Transitory Actions, quasi Local. 

a. At law. — It is a Qfeneral rule that actions involving the 
ownership or possession of lands are local. And courts will 
not take jurisdiction of such actions affecting lands outside of 
their territory, even to prevent a failure of justice or because 
the remedy of the forum is less difficult or doubtful ; Living- 
ston V. Jefferson, 1 Brock. 208. Actions of trespass quare 
clansum f regit are local; De Courcy v. Stewart, 20 Ilun 501. 
Even though the trespass be followed by asportation of chattels ; 
Dodge V. Colby, 37 llun 515. But it seems that if the action 
were simply for conversion of property so carried away, thus 
waiving the original trespass, action would become transitory ; 
American Co. v. Middleton, 80 N. Y. 408 ; Newman v. Goddard, 
3 Hun 70 ; Whidden v. Sealey, 40 Me. 247. But defendant to 
oust the jurisdiction must prove the property to be realty. 
It must appear affirmatively that plaintiff owns the soil ; Rogers 
V. Woodbridge, 15 Pick. 146. And where the gravamen of the 
action is negligence, as for negligently setting fire to plain- 
tiff's house. Home Ins. Co. v. R. R. Co., 11 Hun 182, or for 
negligently shipping explosives resulting in injury to real 
property, Barney v. Burstenbinder, 7 Lans. 210, the action is 
transitor}-. So, too, actions for diverting water are local ; 
Watts V. Kinney, 23 Wend. 484. Although it seems that 
Chancery, in some cases, has taken jurisdiction to prevent hard- 
ship. And semhle contra, if action is brought in the state where 
the diverting is done, even though the lands injured are in 
another state ; Manville Co. v. Worcester, 138 Mass. 89. Ac- 
tions for wrongfully overflowing plaintiff's land are local, 
Eachus V. R. R., 17 111. 434, and cannot be entertained where 
the wrong was done, if the injury be to lands in another state ; 
Wooster v. Lake Co., 25 N. H. 525. Actions for waste are 
local; Cragin v. Lovell, 88 N. Y. 258. And a nuisance on 
lands in one state, injuring lands in another, is actionable in the 
latter ; Ruckman v. Green, 9 Hun 225. Actions for breach of 
convenants affecting real property and depending upon privity 
of estate are local; Lewis v. Ellis, 6 Mass. 331; Clark v. Scud- 
der, 6 Gray 132; White v. Sanborn, 6 N. H. 220. But so long 



MOSTYN V. FABRIGAS. 971 

as the recovery does not affect tlie real property, and does not 
depend on privity of estate, actions are not local, even though 
real property be the subject-matter. Therefore, actions for use 
and occupation, Henwood v. Cheeseman, 3 Serg. & R. 500, and 
for damages for breach of covenant to convey, Mott v. Codding- 
ton, 1 Robertson 267, are transitory ; see Bethell v. Bethell, 92 
Ind. 318. And in an action on a bond given for the price of 
land in another state, the court has jurisdiction to determine 
the question of title. The principal di-aws after it all incidents ; 
Clark V. Mclntyre, Add. 235. 

h. In equity. — The same rule as to local actions is foUoAved 
in a court of equity. Its decree cannot bind foreign lands. 
But it can bind the conscience of the defendant with respect to 
the land, and therefore having jurisdiction of the person it will 
proceed in all cases of fraud, trust or contract, even though its 
decree affect land outside of the territory; De Klyn v. Wat- 
kins, 3 Sandf. Ch. 185; Vaughn v. Barclay, 6 Whart. 392. 
Thus courts of equity have jurisdiction to compel a conveyance 
by defendant of land in a foreign state ; Gardner ^;. Ogden, 22 
N. Y. 327 ; Farley v. Shippen, 1 Wythe 254. But no convey- 
ance except by the party holding the actual title can be effec- 
tive. A court cannot by its judgment or decree pass the title 
to land situate in another country ; Watkins v. Holman, 16 Pet. 
25. No statute or decree of another state, without the actual 
conveyance according to the law of the situs, can affect the 
title itself ; West v. Fitz, 109 111. 442. In default of convey- 
ance by the owner, the court cannot transfer title by the deed 
of its own officers, e.g., by a guardian ad litem for infants ; Page 
V. McKee, 3 'Bush 136. And courts will not establish a trust 
affecting lands in another state, Servis v. Nelson, 1 McCart. 
94 ; nor compel a testamentary trustee with power under a will 
to sell lands in another state to exercise such power, Blunt v. 
Blunt, 1 Hawks 365. But courts will enforce specific per- 
formance of a contract relating to foreign lands, Newton v. 
Bronson, 13 N. Y. 587; Olney v. Eaton, 66 Mo. 564; even 
though where the contract to be performed within the territory 
of the court is made outside by non-residents, Baldwin v. Tal- 
madge, 39 Super. Ct. (N. Y.) 400, and cases cited; and even 
though the only defendant who has an interest in the land is 
without the jurisdiction, by compelling delivery of an executed 
deed in the possession of the vendor's agent. Ward v. Arre- 



972 MOSTYN V. FABEIGAS. 

dondo, Hopkins 213 ; Shattuck v. Cassidy, 3 Edw. 152. But a 
court cannot annul the conveyance of land situate in another 
state. The state of the situs could disregard such a decree. 
While a court can compel those before it to release their claims, 
it cannot assume that the rights of bond fide purchasers have 
not intervened; Cooley v. Scarlett, 38 111. 316; Davis v. Head- 
ley, 7 C. E. Green 115. The title to immovable property can 
only be affected in the mode recognized by the laws of the 
state witliin whose territory it is situated. If it could be, by 
mere decisions of the courts of other states, registry laws would 
be of no avail ; City Ins. Co. v. Commercial Bank, 68 111. 348. 
But it was decided, in Guerrant v. Fowler, 1 Hen. & Mun. 5, 
that a court has jurisdiction to decree cancellation of a deed 
obtained within its jurisdiction by fiautl. Courts of equity 
can state an account between owners of an island in a for- 
eign country. The decree would Ije in personam not in rem ; 
Wood V. Warner, 2 McCart. 81. A court of equity will not 
enforce a trust created by statute of another state relating to 
land in that state, a bond to a coiu-t of that state being required 
by such statute, for the proper performance of the trust ; Alger 
V. Alger, 31 Hun 471. Courts of equity, at the request of one 
railroad claimmg the exclusive right, will not take jurisdiction 
of a bill to enjoin another from building its road in a territory 
outside of the state ; Northern Indiana R. R. Co. v. Northern 
Central R. R. Co., 15 How. 233. But it was decided in Alex- 
ander V. Tolleston Club, 110 111. 65, that a court has jurisdic- 
tion to restrain defendant from interfering with a right of way 
in a foreign state. Courts cannot compel a sale of land situ- 
ated in another state or appropriation of proceeds to pay com- 
plainant's mortgage; Tiffany v. Crawford, 1 McCart. 278. But 
a strict foreclosure of a mortgage on lands in another state will 
be granted; House v. Lockwood, 40 Hun 532. And where 
two or more corporations of different states are consolidated, a 
court of either of the states in foreclosinof a mortsrasre on the 
consolidated property has jurisdiction in one suit to sell all the 
property in all the states. Separate suits are unnecessary; 
Blackburn v. Selma, &c. R. R. Co., 2 Flip. C. Ct. 525 ; Mead v. 
New York, &c. R. R. Co., 45 Conn. 199. Courts have power to 
declare void a mortgage on foreign lands, and to decree sur- 
render of same ; Williams v. Fitzhugh, 37 N. Y. 444. Also to 
compel a judgment debtor to execute a deed of foreign lands 



MOSTYN V. FABRIGAS. 973 

for the benefit of his creditors ; Bailey v. Ryder, 10 X. Y. 363. 
But they have no jurisdiction to restrain a nuisance affecting 
foreign lands ; Morris v. Remington, 1 Pars. Eq. 386. A fraud- 
ulent conspiracy in another state to deprive plaintiff of title to 
lands in such state is transitory, so far as his right to damages 
and an account of rents is concerned; Mussina v. Belden, 6 
Abb. Pr. 165. So, too, suits for partition of real property are 
local, although a court in one state, may, it seems, entertain 
jurisdiction^ where lands are situated in that and another state, 
if it be possible to allot complainant's share from the lands in 
the state of the forum ; Gates v. Woodrow, 2 Dana 457. Courts 
of the state where the laud is situated will not recognize title 
made by the court of another state, in a decree of partition ; 
Johnson v. Kimbro, 3 Head 557 ; White v. White, 7 Gill & J. 
208. A stipulation between j)arties agreeing to partition in 
one state of lands, in another gives jurisdiction, and an injunc- 
tion of partition proceedings in the other state will be granted ; 
Bowers v. Durant, 43 Hun 348. 

Foreign Corporations. 

Independently of statute, a foreign corporation cannot be 
sued in invitum, even though some of its stockholders reside 
in the state, and service is made there on the secretary while 
temporarily present ; Middlebrook v. Springfield Ins. Co., 14 
Conn. 306. And although a statute provide generally for 
service on a corporation by service on one of its officers, such 
service if made on an officer of a foreign corporation does 
not give the court jurisdiction. Service must be made in 
the state of its creation ; Sullivan v. La Crosse Co., 10 Minn. 
386. But a state may, in permitting a foreign corporation 
to transact business, impose as a condition that the corpo- 
ration shall accept as sufficient the service of process on its 
agents, and such condition may be implied as well as expressed ; 
St. Clair v. Cox, 106 U. S. 350, 356. The agent or officer must 
be in the state in a representative or official capacity, and not 
as a mere " casual individual " ; at all events, in actions by non- 
residents on causes of actions arising outside of the state ; 
Newell V. R. R. Co., 19 Mich. 336. Where a foreign corporation 
is practically a domestic one, i.e., has an office and transacts 
business in the state, it may be sued like a domestic corporation 
on transactions occurring in such state ; Bawkright v. Ins. Co., 



974 MOSTYN V. FABRIC. AS. 

55 Ga. 194. But a railroad company incorporated in one state, 
though running its trains into another, is not liable there to 
passengers injured in the former state ; R. R. Co. v. Carr, 
76 Ala. 388. No action can be maintained ao-ainst a foreio-n 
corporation unless the contract sued on was made or the 
injur}^ complained of was suffered within the state ; Bawkright 
V. Ins. Co., 55 Ga. 194 ; Brooks v. Mexican Co., 50 Super. Ct. 
(N. Y.) 281 ; Parke v. Ins. Co., 44 Pa. St. 422. And it seems 
that under the New York code a resident may recover against 
a foreign corporation for any cause of action wherever it 
arise, and although property beyond the jurisdiction may be 
affected, or the relief within the power of the forum to grant 
incomplete ; Ervin v. Oregon Co., 62 How. Pr. 490, and cases 
there cited. One foreign corporation may sue another for 
wrongful transfer of stock made in tlie state of the forum; 
Toronto Co. v. Chicago Co., 32 Hun 190. But a ^ion-resident 
cannot sue a foreign corporation to compel specific j)erformance 
of a contract to convey lands outside of the state ; Hann v. 
Barnegat Co., 7 Civ. Proc. (N. Y.) 222. When two corpo- 
rations created in different sovereignties consolidate, the one 
state cannot with its legislation follow the consolidated cor- 
poration into the other; R. R. Co. v. Auditor General, 53 
Mich. 79. And a court of one state cannot compel a corpo- 
ration chartered in that and another state to go into the latter 
to perform a duty in the matter of right of way. It would 
seem to be otherwise if the act could be performed in the 
state of the forum, even though that act affected land outside 
of such state ; R. R. Co. v. Hammond, 58 Ga. 523. Though 
the charter of a corporation has expired, and a receiver has 
been appointed in the state of its creation, comity does not 
prevent the attachment by a corporation of another state of 
lands in such state. The contracts of the corporation survive. 
And the decree appointing the receiver cannot cover real 
property in another state ; Ins. Co. v. Commercial Bank, 68 
111. 348. Courts decline to exercise jurisdiction in cases in- 
volving the internal affairs of foreign corporations, its officers, 
books, and assets not being within their jurisdiction and con- 
tempt proceedings impracticable. . Therefore they will not 
enforce an agreement to make ajDportionment of money to be 
received by it; Fisher v. Ins. Co., 5.2 Super. Ct. (N. Y.) 179. 
So, too, in a suit by a stockholder of a foreign corporation 



MOSTYN V. FABRIGAS. 975 

against it and another corporation to which it had leased its 
property, seeking relief relating to the transactions between 
said corporations ; Gregory v. R. R, Co., 13 Stew. 39. Nor 
will a court assist a non-resident to be reinstated in a forfeited 
policy issued by a foreign life insurance corporation, although 
it transact business and have a resident agent in the state. 
The proceeding invoked, seeking to establish an artificial re- 
lationship, affects the organic law of the corporation, which is 
necessarily local and requires local administration ; Smith v. 
Ins. Co., 14 Allen 336. Where a charter provides for stock- 
holders' liability by levy on their property on execution against 
the corporation, and for compelling ratable contribution by the 
same process, there is no general liability of stockholders, so 
that jurisdiction is limited to the state granting the charter ; 
Lowry v. Inman, 46 N. Y. 119. 

Illustrations under Federal Laiv. 

Admiralty can take jurisdiction of maritime torts committed 
beyond United States boundaries on foreign ships in actions be- 
tween aliens ; Mason v. Ship Blaireau, 2 Cranch 240. Where a 
state statute gives a right of action for causing death, and such 
death is caused on the high seas by the tort of a vessel having its 
home port in said state, admiralty will enforce the right in rem; 
The E. B. Ward, IT Fed. R. 456 ; The Harrisburg, 119 U. S. 199 
qucere. State courts have concurrent jurisdiction of causes of 
action cognizable in admiralty, where only a common law remedy 
is sought ; Bohannan v. Hammond, 42 Cal. 227 ; Schoonmaker 
V. Gilmore, 102 U. S. 118. State courts cannot enforce a mari- 
time lien nor can state legislatures create one. But they can 
enact liens and provide for their enforcement in rem, where 
they do not exist in admiralty; e.g., for supplies obtained in 
the home port ; Dever v. Steamboat, 42 Miss. 715. So, too, 
rights growing out of a United States bankruptcy law may be 
enforced in state courts in all proceedings not involving the 
administration of the law itself; Goodrich v. Lincoln, 93 111. 
359 ; Cook V. Whipple, 55 N. Y. 150 ; Stevens v. Bank, 101 
Mass. 109 ; Hastings v. Fowler, 2 Carter 216 ; Brown v. Hall, 
7 Bush QQ ; Gage v. Dow, 58 N. H. 420. But Brigham v. Claf- 
lin, 31 Wise. 607, contra, on the ground that the act making 
certain transfers void is penal, and should not, therefore, be 
enforced in state courts. State courts have jurisdiction to 



976 MOSTYN V, FABRIGAS. 

enforce a penalty against a national bank. If exclusive juris- 
diction be not given to the Federal courts, either expressly or 
by necessary implication, the state courts may act. Congress 
cannot compel them to act. It simply confers authority ; First 
National Bank v. Overman, 22 Neb. 116, and cases there cited. 
Property in the hands of a United States marshal, seized under 
process duly issued, cannot be interfered with either by injunc- 
tion or replevin issued out of a state court ; Freeman v. Howe, 
21 How. 150. If the Federal process be valid, the question of 
title is irrelevant in the state court ; Fensier v. Lammon, 6 
Nev. 209. And the same rule applies to habeas coiyus ; Ex 
parte Holman, 28 Iowa 88. But contra^ Oilman v. Williams, 
7 Wise. 329, to the effect that property unlawfully taken is not 
within the custody of the law. See, also, Berth v. Ableman, 16 
Wise. 460, deciding that the state court has jurisdiction to 
return to the marshal property unlawfully replevied from him. 
But where the amount involved is so small that the claimant 
cannot proceed for relief in the Federal courts, replevin from 
the state court will lie against the marshal ; Carew v. Matthews, 
41 Mich. 576. And an exception occurs where consent has 
been obtained from the Federal courts to proceed against the 
marshal for the recovery of the property in an action clearly 
identified ; Smith v. Bauer, 12 Pac. Rep. (Col.) 397. And the 
above doctrine does not })revent actions only for damages, for 
the wrongful taking and detention ; Chapin v. James, 11 R. I. 
86 ; Stoughton v. Mott, 13 Vt. 175. A state legislature has no 
power to abdicate its jurisdiction over places within its limits, 
except where title has been acquired by the United States, and 
even then the jurisdiction to punish crime continues until Con- 
gress by further act has extinguished the state authority and 
vested exclusive jurisdiction in the Federal courts ; In re 
O'Connor, 37 Wise. 379 ; Marion v. State, 20 Neb. 233 ; Foley 
V. Shriver, 81 Va. 568. 

Actions affecting Estates of Decedents. 

As a general rule a suit cannot be maintained against an 
executor, except in the country from which he derives his 
authority. He is accountable there for proper distribution, 
and it would be a hardship to require him to account else- 
where. And domestic creditors can object to any transfer 
of assets until their demands have been satisfied, Davis v. 



MOSTYX V. FABEIGAS. 977 

Morriss, 76 Va. 21 ; particularly where the will has not been 
proved, as permitted by statute, in the state of the forum, 
Van Giesen v. Banta, 13 Stew. 14 ; Cocks v. Varney, 42 
N. J. Eq. 514. Where there are no assets in the foreign 
forum, and the executor is not personally liable, Murphy v. 
Hall, 38 Hun 528 ; or is not sued as an executor de son tort, 
Campbell v. Tousey, 7 Cowen 64, that court has no jurisdiction, 
Gray v. Ryle, 50 Super. Ct. (N. Y.) 198. But under special 
circumstances, where it does not appear but that all creditors 
are in the state of the forum, or that the local law is peculiar in 
affecting such right of property, foreign courts may, in the 
exercise of a sound judicial discretion, assume jurisdiction ; 
Powell V. Stratton, 11 Gratt. 792 ; Moses v. Hart, 25 Gratt. 795. 
Jurisdiction in equity against a foreign administrator is limited 
to cases not simply where there are assets in the state, but 
where these assets are being squandered, or to prevent breach 
of trust and the like ; see Kanter v. Peyser, 51 Super. Ct. 
(N. Y.) 441. On the other hand, courts of the state in which 
the will is probated have jurisdiction to order parties coming 
before them, either as proponents or witnesses to another will, 
to turn over property belonging to the estate, held by them in 
another state ; Dietz Case, 41 N. J. Eq. 284. A trust, though 
relating exclusively to personal property, will not be enforced if 
it arise under a will probated in a different state ; Campbell v. 
Sheldon, 13 Pick. 8 ; Campbell v. Wallace, 10 Gray 162. In 
the case of legacies charged on lands, the action may be brought 
where the land is situated, even though the will is proved and 
the executor resides in a different state ; Rennie v. Crombie, 
1 Beas. 457. And it cannot be brought elsewhere, in a suit to 
subject the land ; Williams v. Nichol, 47 Ark. But suits 
brought to have legacies declared liens are transitory ; Lewis 
V. Darling, 16 How. 1. The devisee of lands, situated in 
another state, and charged with a legacy, can be sued any wliere, 
on the implied assumpsit resulting from the acceptance of the 
devise, although the testator resided and the defendant was 
appointed executor, in the state of the situs ; Brown v. Knapp, 
79 N. Y. 136. An ancillary administrator, who settles his 
accounts showing a balance in his hands in the ancillary juris- 
diction, is directly liable thereon to the principal administrator 
in the jurisdiction of principal administration ; Garland v. Gar- 
land, 12 Va. L. J. 398. 



CREPPS V. BURDEN ET ALIOS. 



TRINITY. -17 a EG. 3, B. R. 

[llEPORTED COWP. 640.] 

A person can commit but one offence on the same day, by " exercis' 
ing his ordinary calliiuj on a Sunday," contrary to the statute 
29 Car. 2, c. 7. 

And if a justice of peace proceed to convict him in more than one 
penalty for the same day, it is an excess of jurisdiction for 
which an action will lie, before the convictions are quashed (secus 
now, as to the last point, by the 11 & 12 Vict. c. 44, s. 2) (a). 

This was an action of trespass brought by the plaintiff 
against the defendant, for breaking into his house and taking 
away his goods, and converting them to liis own use ; to this 
the general issue was pleaded, and the cause came on to be 
tried at Westminster before Lord Mansfield, at the sittings after 
Easter term, 1777 ; when a verdict was found for the plaintiff, 
for three several sums of five shillings each, and costs 40s., 
subject to the opinion of the court upon the following case: — 
" That the plaintiff was convicted of selling small hot loaves 

(a) See an analogous case, Brooks alty by express words for each and 

and another v. Glencross, 2 M. & Hob. every offence," Pollock, C. B., A.-G. 

62 ; and see R. v. Eastern Counties v. McLean, 1 H. & C. 750. One con- 

Raihoay, 10 M. & W. 58. As to the viction for several curses ou same 

effect of two orders or convictions day with a cumulative penalty at the 

for the same offence, see Wilkins v. rate of so much per curse held good, 

Hemsicorth,7 A-S^B-SOl; Wilkins v. R.y. Scott,33L. J. M. C. 15. Several 

Wright, 3 Tyrw. 830, 2 C & M. 193. convictions for selling pieces of bad 

["The form which the legislature meat at same stall on same day held 

uniformly adopts, when the intention good, in Re Hartley., 31 L. J. M. C. 

is that for each and every violation 232. Ex parte Beat, L. K. 3 Q. B. 

of an act of parliament there shall be 387.] 
a distinct penalty, is to impose a pen- 

978 



CREPPS V. DURDEN ET ALIOS. 979 

of bread, the same not being any work of charity, on the same 
day (being Sunday) by four separate convictions, which were 
as follows : *■ Westminster to tvit. Be it remembered, that on 
the 10th of November, 1776, Peter Crepps, of, &c., baker and 
Salter of bread, is lawfully convicted before me, Jonathan 
Durden, one of his Majestj-'s justices of the peace for the said 
city and liberty of Westminster, for unlawfully doing and exer- 
cising certain worldly labouT, business, and work of his ordinary 
calling of a baker in the parish aforesaid, by selling of small 
hot loaves of bread, commonly called rolls, the same not being 
any work of necessity or charity, on the said 10th of November, 
being the Lord's day, commonly called Sunday, contiary to the 
statute in that case made and provided ; for Mdiich offence I, the 
said Jonathan Durden, have adjudged, and do hereby adjudge, 
the said Peter Crepps to have forfeited the sum of five shillings.' " 

The three other convictions Avere verbatim the same without 
any variation. The case then proceeded to state, that the 
defendant Durden issued the four warrants, afterwards stated, 
to the other defendants who by virtue of those warrants levied 
the four penalties of five shillings each, and the expenses. The 
first of these four warrants ran thus : — '' Westminster to wit. 
To the constables of St James's, in the city and liberty of West- 
minster. Whereas information has been made before me, 
Jonathan Durden, one of his Majesty's justices of the peace 
for the city and libert}" of Westminster, that Peter Crepps, 
baker, of, &c., did on the 10th of November, 1776, being the 
Lord's da}^, commonly called Sunday, exercise liis trade and 
ordinary calling of a baker, by selling hot loaves of bread, con- 
trary to the statute in that case made and provided; and 
whereas the said Peter Crepps has been duly summoned to 
appear before me, to answer to the said information, but has 
contemptuously refused to appear to answer the contents 
thereof; and whereas, upon full examination, and upon the 
oath of J. H., the said Peter Crepps was lawfully convicted 
before me of the offence aforesaid, whereby he has incurred the 
penalty of five shillings, pursuant to the statute in that case 
made and provided; therefore, &c. &c." The words of the 
other three warrants were verbatim the same. 

The first question reserved was, whether in this action, and 
before the convictions Avere quashed, an objection could be 
made to their legality? if an objection could be made, then a 



980 CREPPS V. DURDEN ET ALIOS. 

nonsuit was to be entered. But in case an objection to their 
legality might be made, then the question was, whether the 
levy under the three last warrants could be justified ? If not 
justifiable, a verdict was to be entered for the plaintiff, with 
15s. damages and 40s. costs ; if justifiable, then a verdict was 
to be entered for the defendants. 

Mr. BuUer, for the plaintiff, as to the first point, insisted that 
wherever a conviction is in itself tlearly bad, it is open to the 
party to take objection to it in an action against the justice ; and 
it is no answer on his part to say, that the conviction is not 
quashed, or in force ; because it is incumbent upon him to 
show the regularity of his own proceedings. That there were 
several cases to this purpose; and though they were decisions 
at Nisi Prius, yeU as they were uniform in laying down the 
same doctrine, they ought to have considerable weight in this 
case. The first he should mention was ffill v. Bateman, 1 Str. 
711 ; not for the principal matter adjudged, but because it was 
agreed on all hands, in that case, as a settled point, " that in 
all actions against justices of peace, they must show the regu- 
larity of their proceedings." He added that he had a manu- 
script note of the same case to the same purport. In a case of 
Moult V. Jennings^ cor'am Ey7-e, C. J., upon trespass and false 
imprisonment against the defendant, and the general issue 
pleaded, it appeared that the plaintiff had been convicted of 
swearing; and Eyre said, if the nature of the oaths had not 
been specified in the conviction, so that they might appear to 
the court, the conviction would have been void. In Stanbury 
V. Bolt, coram FortUque, J., Trin. 11 G. 1, ujDon trespass for 
taking a brass pan, and false imprisonment, it did not appear 
that the plaintiff had been summoned ; and the conviction was 
adjudged void for that reason only. In Coles's Case, Sir 
William Jones, 170, it was held by the whole court, " that if a 
justice does not pursue the form prescribed by the statute, the 
party need not bring error, but all is void, and coram non 
judice." There are other authorities in which it has been held, 
that an action will lie, even though the conviction is good in 
point of form, if it is not supported by the truth and justice of 
the case. There was one in /Shropshire, before Crould, J., where 
the plaintiff had been convicted upon the game laws, and the 
conviction itself was good in point of form ; but the party was 
not, in truth, an object of the game laws ; whereupon Gfould 



CREPPS V. DURDEX ET ALIOS. 981 

directed the jury to find for tlie plaintiff, which they accord- 
ingly did. There was another case in Lancashire^ before Mr. 
Justice Goulds to the same effect. In criminal cases, it is clear, 
that the conviction being good in point of form is no protection 
to the justice ; and, if not, why should it be so in a civil action ? 
If he convict illegally, he ought not to be sheltered, and an 
action is the only mode of redress to the part}^ injured. But, 
if the formality of the conviction is to be an answer to the 
action, the party injured would be without redress, where he 
would be most entitled to it ; because the caution of the justice, 
to be correct in form, would increase in proportion to his inten- 
tion to act illegally. In Brucklesbwi/ v. SinifJi, 2 Burr. 656, 
every act previous to the conviction is set out, as well as the 
conviction itself. If this case had happened before the stat. 7 
Jac. 1, c. 5, which enables justices of peace to plead the 
general issue, and give the special matter in evidence, the de- 
fendant mast have specially set forth every stage of the pro- 
ceedings upon the record, and the omission of any one fact 
would have been fatal : or, if upon the face of the record it had 
appeared the conviction was illegal, it would have been a good 
cause of demurrer. Since the statute, his defence must be 
equally good in evidence : for the statute does not vary the law ; 
it is only meant to ease the justice from the difficulty and risk 
of special pleading. Even in cases where the legislature gives 
a summary form of conviction, and where no summons is neces- 
sary, the justices must pursue the form prescribed, or it will be 
fatal. Secondly, upon the merits ; the words of the stat. 29 
Car. 2, c. 7, are, " that no tradesman or other person shall do or 
exercise any worldly labour, business, or work of their ordinary 
calling on the Lord's day, works of necessity and charity only 
excepted." In Bex v. Cox, 2 Burr. 786, the court held, " that 
baking puddings and pies was within the exception : " and, if 
so, why should not the baking rolls be so too ? But what is 
decisive is, that the stat. 29 Car. 2, c. 7, gives no summary form 
of conviction ; whereas the convictions produced barely state 
that the plaintiff was convicted, without any information, sum- 
mons, appearance, or evidence being stated. In point of form, 
therefore, all four are bad. Lastly, supposing they were good 
in form, the three last are an excess of the justice's jurisdic- 
tion ; for the offence created by the statute is, " exercising his 
calling on the Lord's day." If the plaintiff, therefore, had con- 



982 CREPPS V. DUEDEN p:t alios. 

tinuecl baking from morning till night, it would still be but one 
offence. Here there are four convictions for one and the same 
offence ; consequently, as to three, there is an excess of jurisdic- 
tion ; and if so, all is void, and coram non judice : and an action 
will lie, not only against the justice, but likewise against the 
officers. To this point he cited Hardres, 484, and concluded 
by praying judgment for the plaintiff. 

Mr. T. Cowj)e)', contra, for the defendant, contended, 1. That 
by the bare production of the conviction at the trial the cause 
was at an end, and the Court estopped from any further inquiry. 
That it was the general apprehension and prevailing opinion of 
the profession, founded in constant practice, that a conviction 
in a matter of which the justice had jurisdiction, must be re- 
moved by certiorari and quashed, before it can be questioned 
at JVisi Prius. If he has no jurisdiction, no doubt but all is 
coram non judice and void. But here the justice had jurisdic- 
tion ; and if so, with deference to the opinion of Mr. Justice 
Gould, in the case tried before him in Shropshire, the convic- 
tion, as to the matter of fact contained in it, is conclusive in 
favour of the justice in an action, though it is not so in an infor- 
mation. If it were not, instead of the mischief to be appre- 
hended from the oppression of the justice, no one would act in 
the commission. 2. As to the objections which have been 
taken to the convictions in point of form, he said, it would be 
time enough to answer them when the convictions were re- 
moved and stood in the paper for argument. At present it 
was sufficient to observe that they continued as so many judg- 
ments on record, and, as such, conclusive, till reversed by 
appeal, or quashed by this court. He agreed the stat. 7 Jac. 1, 
c. 5, did not vary the law ; but insisted, that before that statute, 
it would have been a good plea for the defendant to have 
stated that the plaintiff was convicted, &c., as in this case ; 
and if the plaintiff had traversed the conviction, the defendant 
might have demurred. The sole ground and object of taking 
away the certiorari in the several acts of parliament for that 
purpose, was to prevent vexatious suits against justices for 
mere informalities in their proceedings. But they still remain 
liable to an information if they wilfully act wrong. This Court 
has often lamented, when obliged to quash a conviction for 
want of form, because it opens a door to an action. 

As to this being but one continued offence, it might be, that 



CREPPS V. DURDEX ET ALIOS. 983 

it was carried on at four different places ; for there is evidence 
of four different acts, and the Court will not presume the con- 
trary against the justice. But, if the nature of the offence is 
such, that it could only be committed once in the same day, 
still the plaintiff has no remedy, while the convictions are in 
force, but by removing them into this court to be quashed for 
illegality. 

Lord 3Iansjield. — May there not be this point, that the 
justice had no jurisdiction, after convicting the plaintiff in the 
first penalty ? The act of parliament gives authority to punish 
a man for exercising his ordinary calling on Sunday. The 
justice exercises his jurisdiction, by convicting him in the 
penalty for so doing. But then, he has proceeded to convict 
him for three other offences in the same day. 

Mr. Coivper. — If he has done so, it is only a ground for 
quashing the convictions ; but no priority appears to give 
legality to one in preference to the other. 

Lord Mansfield. — This point you agree in ; that if the jus- 
tice had no jurisdiction, it is open to inquiry in an action. 
Now, if there are four convictions, for one and the same 
offence committed on one and the same day, three of them 
must necessarily be bad; and, if so, it does not signify as to 
the merits of the action which of the four is legal, or which 
illegal. 

I do not remember that at the trial it was contended the 
plaintiff would be entitled to recover, if the convictions were 
informal; or that any objection was taken to their formality 
there. The single question intended to be tried Avas, whether 
there could be more than one penalty incurred for exercising a 
man's ordinary calling on one and the same Sunday ? As to 
that there can be no doubt : the only doubt was, whether that 
objection could be taken at the trial before the convictions were 
quashed. In the extent in which the argument upon that 
point has proceeded, it is a matter of considerable consequence; 
and, as a general question, I should be glad to think of it. 

Aston, J. — The Court will never grant an information unless 
the conviction is quashed. Rex v. Heher, 2 Str. 915. As to 
the general question before the Court, suppose the justice were 
to convict for a single offence, where no offence at all had been 
committed, would not an action lie in that case "^ If it would, 
why not in this, where there are four convictions for one and 



984 CIIKPPS V. DURDEN ET ALIOS. 

the same offence? It seems to me that the baking every roll 
might as well have been charged as a separate offence. 

Cur. adv. vult. 



Afterwards, on Wednesday, June 18th in this term, Lord 
Manxjield, after stating the case at large, delivered the unani- 
mous o[)inion of the Court as follows : — Upon the trial of tliis 
cause, no objection \Nas made to the formality of the convic- 
tions : I doubt whether they were read, and for this reason ; 
because, by the state I have of them, they appear different 
from the warrants ; for the convictions take no notice of any 
summons (a), nor of any informations, nor of an}- evidence (?>) 
upon oath given; though the warrants take notice of a sum- 
mons, of the defendant's not appearing to that summons, of an 
information laid, and evidence given upon oath. This objec- 
tion would have gone to all the four cases equally, but at the 
trial no objection whatever was made to the first conviction or 
warrant. But the objection made Avas this ; that, allowing the 
first conviction and Avarrant to be good, the three others were 
an excess of the jurisdiction of the justice, and beyond it ; for 
that on the true construction of the stat. 29 Car. 2, c. 7, there 
can be but one offence, attended Avith one suigle penalty, on 
the same day. 

In answer to this it Avas ol)jected, on the part of the defend- 
ants, that no such objection could be taken to the couA'ictions 
till after they had been quashed in this couit ; and that if a 
case Avere to be made Avith regard to that, it must be taken 
upon the question, Avhether, according to the true construc- 
tion and meaning of the act, the party could be guilty of 
repeated offences on one and the same day? Therefore, the 
questions stated for the opinion of the coui-t on the jD^esent 
case are, first, "whether, in tliis action, and before the convic- 
tions were quashed, an objection could be made to their legal- 
ity? If the court should be of opinion no objection could be 
made, then a nonsuit to be entered up ; but in case the objec- 
tion might be made, then, 2ndly, Avhether the levy made under 
the three last warrants could be justified ? " The first question 

(a) Nor that the defendant made (6) See R. v. Lovett, 7 T. R. 152 ; 

default. See B. v. AUington, 2 Str. 7?. y. Theed, 2 Str. Ul'J; R. v. Smith, 

678 ; R. V. VenaUes, lb. 630 ; R. v. 8 T. R. 588. 
Stone, 1 East 649. 



CKEPPS V. DUEDEX ET ALIOS. 985 

is, " whether any objection can be made to the legality of the 
convictions before they were quashed." In order to see 
whether it can, we will state the objection : it is this ; that 
here are three convictions of a baker, for exercising his trade 
on one and the same day ; he having been before convicted for 
exercising his ordinary calling on that identical day. If the 
act of parliament gives authority to levy but one penalty, there 
is an end of the question, for there is no penalty at common 
law. On the construction of the act of parliament, the offence 
is "exercising his ordinary trade upon the Lord's day;" and 
that, without any fractions of a day, hours, or minutes. It is 
hut one entire offence, whether longer or shorter in point of 
duration ; so, whether it consist of one, or a number of particu- 
lar acts. The penalty incurred by this offence is live shillings. 
There is no idea conveyed by the act itself, that, if a tailor 
sews on the Lord's day, every stitch he takes is a separate 
offence ; or, if a shoemaker or carpenter Avork for different cus- 
tomers at different times on the same Sunday, that those are so 
many separate and distinct offences. There can be but one 
entire offence, on one and the same day ; and this is a much 
stronger case than that which has been alluded to, of killing 
more hares than one on the same day ; killing a single hare is 
an offence ; but the killing ten more in the same day will not 
multiply the offence, or the penalty imposed by the statute for 
killing one. Here, repeated offences are not the object wliich 
the legislature had in view in making the statute : but singly 
to punish a man for exercising his ordinary trade and calling 
on a Sunday. Upon this construction, the justice had no juris- 
diction whatever in respect of the three last convictions. How 
then can there be a doubt, but that the plaintiff might take this 
objection at the trial ? 2ndly. With regard to the form of the 
defence, though the stat. 7 Jac. 1, c. 5, enables justices of peace 
to plead the general issue, and give the special matter in evi- 
dence ; in doing so, it only allows them to give that in evidence, 
which they must before have pleaded ; and, therefore, they must 
still justify. But what could the justification have been in this 
case, if any had been attempted to be set up ? It could only 
have been this : that, because the plaintiff had been convicted 
of one offence on that day, therefore the justice had convicted 
him in three other offences for the same act. By law that is 
no justification: it is illegal on the face of it; and, therefore, as 



986 CREPPS v. DUEDEN ET ALIOS. 

was very rightly admitted by the counsel for the defendant in 
the argument, if put upon the record by way of plea, would 
have been bad, and on demurrer must have been so adjudged. 
Most clearly, then, it was open to the plaintiff u})on the general 
issue, to take advantage of it at the trial. The question does 
not turn upon niceties ; upon a computation how many hours 
distant the several bakings happened; or upon the fact of 
which conviction A\as prior in point of time ; or that for uncer- 
taint}^ in that respect, the}^ should all four be held bad : but it 
goes upon the ground, that the offence itself can be committed 
onlj^ once in the same day. We are, therefore, all clearly of 
opinion, that if there was no jurisdiction in the justice, the 
same might have appeared at the trial: of course, we are of 
opinion that this objection might have been made, and tliat the 
objection itself, in point of law, is well founded. 
Per Cur. Postea to be delivered to the plaintiff. 



[Subject to the act for the protection of justices, 11 & 12 Vict. c. 44, a 
summary of which will presently be given,] tlie rule is the same — whether 
the conviction appear on the face of it to be for an oflence not within the 
magistrate's jurisdiction — or to be for an offence within the magistrate's 
jurisdiction, but defective for want of tlie circumstances necessary to a 
conviction for that offence, Griffiths v. Harries, 2 M. & W. 335; see Lancaster 
v. Greaves, 9 B. & C. G28 ; Morgan v. Hughes, 2 T. R. 225; Fearnley v. Worth- 
ington, 1 M. & G. 491 ; Hardy v. Ryle, 9 B. & C. 603; Groome v. Forrester, 5 M. 
& S. 320; — or of a sufficiently speciiic statement of them, Newman v. Earl 
of Hardwicke, 8 A. & E. 127 ; R. v. Read, 9 A. & E. 619 ; for, as was observed 
in Lancaster v. Greaves, though the conviction is conclusive upon matter of 
fact, and, if the defendant mean to rely on matter of fact, he sliouUl make 
his defence at the time, the rule is not so as to matter of law. 

So if the conviction of two persons be joint for offences ex necessitate rei 
several, it will be void, and (subject now to the act above mentioned) they 
may sue in trespass if it be acted upon, Morgan v. Brown, 4 A. & E. 515. And 
the rule is the same in the case of a single conviction of one person for two 
distinct offences, Newman v. Bendyshe, 10 A. & E. 11. 

But " a conviction by a magistrate who has jurisdiction over the subject- 
matter is, if no defects appear on the face of it, conclusive evidence of t\\e facts 
stated in it," Brittain v. Kinnaird, 1 B. & B. 482 ; per Dallas, C. J. In that 
case trespass was brought against justice for taking a boat; in their defence 
they relied on a conviction which warranted them in doing so. The plaintiff 
offered evidence to controvert the facts stated in the conviction, but it was 
held not to be admissible. Accord. Basten v. Carew, 3 B. & C. 649 ; Fawcett 
V. Fowles, 7 B. & C. 394; Gray v. Cookson, 16 East, 13; Loiother v. Earl Rad- 
nor, 8 East, 113; Ashcroft v. Bourne, 3 B. & Ad. 684; 7?. v. Bolton, 1 Q. B. 66; 
{Coloyiial Bank of Australasia v. Willan, L. 11. 5 P. C. 417; 43 L. J. P. C. 39;] 



CREPPS Y. DURDEN ET ALIOS. 987 

and the same attribute, nz., that of being conclusive evidence of the facts 
stated therein, and properly tending thereto, seems to have been thought to 
belong to every adjudication emanating from a competent tribunal, Aldridge v. 
Haines, 2 B. & Ad. 395 ; and the cases cited by Coleridge arguendo ; [see also 
the Whilhunj-on- Severn Union Case, 4 E. & B. 321; De Cosse Brissac v. Rath- 
bone, 6 H. & N. 301 ; Kemj) v. Neville, 10 C. B. N. S. 549 ; 31 L. J. C. P. 163. 
Ex parte Lamert, 33 L. J. Q. B. 69.] 

Even when the conviction had been quashed it was provided by the 43 G. 3, 
c. 141, that the party convicted, in an action against the justices, which was 
required to be on the case, should only obtain two pence damages, besides 
the amount of the penalty if levied, and no costs of suit, unless he expressly 
averred malice and want of probable cause ; and that he should not recover 
the amount of the penalty if the defendant proved him to have been guilty of 
the ottence of which he had been convicted, and that he had undergone no 
greater punishment than Avas by law assigned thereto. And it was held under 
this act that he must at the trial prove not merely his own innocence of the 
offence of which he was convicted, but also what took place before the 
justice at the time of conviction, in oi'der that it may appear whether thei'e 
was probable cause or no, Burley v. Bethune, 5 Taunt. 580. See Baylis v. 
JStrickland, 1 M. & Gr. 591. 

But the Stat. 43 Geo. 3, c. 141, is now repealed by the 11 & 12 Vict. c. 44, 
intituled, "An act to protect justices of the peace from vexatious actions 
for acts done by them in the execution of their office," the flrst section of 
which provides that ererij action to be brought against any justice after the 
2nd of October, 1848, for any act done by him in the execution of his duty 
as such justice, as to any matter within his jurisdiction, [see Sommerville v. 
Mirehouse, 1 B. & S. G52 ; Laiorenson v. Hill, 10 Irish C. L. R. 177; Gelen v. 
Hall, 2 H. & N. 379,] shall be on the case, and the declaration shall allege the 
act to have been done maliciously and without reasonable and probable cause, 
and if such allegation be not proved lapon the plea of the general issue, the 
plaintiff shall be nonsuited, or a verdict shall be given for the defendant. See 
Kendall v. Wilkinson, [4 E. & B. 680;] 24 L. J. M. C. 89; [semble, in cases 
within this section, the action may be maintained without the conviction or 
order being quashed, per Lord Campbell, C. J., R. v. Wood, 5 E. & B. 58 ; and 
see Lawrenson v. Hill, supra. Qucere, however, whether notwithstanding 
this act the justice, for acts done in the execution of his office, might not 
claim the protection extended generally to judicial acts, even though the act 
was done maliciously. See the cases as to judges cited ante, at tlie end of 
notes to Mostyn v. Fahrigas.'\ 

But when the act is done l)y the justice in a matter, of which he has no 
jurisdicti07i, [as in Crepps v. Burden'] or where he exceeds his jurisdiction, he 
may, by section 2, be sued as before the statute, except where the act com- 
plained of has been done under a conviction or order, in which case "the 
conviction" (stV in statute) must be flrst quashed — or if done under a wai*- 
rant for appearance followed by a conviction or order, the conviction or 
order must be flrst quashed — [or if such warrant be not followed by con- 
viction or order or be upon information for an indictable offence, still no 
action can be maintained if a summons was previously served and disobej'ed]. 
See, as to the construction of this section, Leary v. Patrick, 15 Q. B. 266; 
Newbould v. Coltman, 6 Exch. 189; Haylock v. Sparke, I E. & B. 471; IPease 
V. Chaytor, on demurrer, 1 B. & S. 658 ; 31 L. J. M. C. 1 ; on motion, 3 B. & S. 
620; Pedley v. Bavies, 10 C. B. N. S. 492; 30 L. J. C. P. 374; Bessell v. Wil- 



988 CREPPS V. DURDEN ET ALIOS. 

son, 1 E. & B. 489; Lmcrenson v. Hill, 10 Ir. C. L. R. 177; Lalor v. Bland, 8 
Ir. C. L. II. 115 ; and Bott v. Acroyd, Q. B. 28 L. J. M. C. 207, where the objec- 
tion to .a conviction and warrant of commitment was tliat tlie jnstices liad 
signed it leavin,<r lilanks for the anionnt of costs, but tliis omission was held, 
in an action for false imprisonment against tlie justices brongiit after tlie 
conviction liad been quashed, to be an erroneous exercise of jurisdiction 
only, and not an excess.] 

The summons mentioned in the statute, tlie non-attendance upon wlncli is 
to bar the maintenance of an action, is a summons before conviction ; the 
section does not appl.v to a summons and warrant issued after conviction, 
with a vieAv to the levying of the penalty imposed, Bessell v. Wilsi>n, 1 E. & 
B. 489. In Barton v. Bric/cnell, 13 Q. B. 393, an action of ti'espass was 
brouglit against a justice for wrongfully seiziug the plaintift"s goods. It 
appeared tliat the defendant had convicted tlie plaintifl' under the 29 Car. 2, 
c. 7 (for Sunday trading), in a penalty and costs to be levied bj' distress. 
The conviction directed that in case of non-payment, and if there should be 
no distress, the plaintitt' should be put in the stocks for two honi's, unless the 
penalty and costs Avere sooner paid. The goods of the plaintifl* were dis- 
trained, and the conviction Avas quashed on account of the illegal alternative 
contained in it, as to the stocks. It was held that the defendant was protected 
under sect. 1 of this statute, and that sect. 2 did not apply, as the defendant 
had jurisdiction to order the distress, in respect of which alone the action was 
brought. 

Sect. 3 protects a justice bo7iQ fide granting a warrant upon the conviction 
of another justice, which is defective for Avant of jurisdiction, and makes 
the convicting justice alone lialjle. 

Sect. 4 prohibits actions by parties rated to the poor, though not liable to 
be rated, or in respect of any defect in such I'ate against the justices issuing 
a distress Avarrant thereon, — and fui'ther provides that the exercise of dis- 
cretionary poAvers vested in a justice by statute, shall not furnish ground of 
action. 

By sect. 5 [if a justice refuses to do any act relating to the duties of his 
office], the Court of Queen's Bench [may order him to do the act, and he will 
not be] liable to [any proceeding for having obeyed the order. It has been 
held that this section only applies if the act be one by Avhich tlie justices 
incur liability, Reg. x. Percy, L. R. 9 Q. B. 64, but in the later case of Reg. v. 
PhilUmore, 14 Q. B. D. 474, note, the court considered that this rule avouIcI 
narroAv the operation of the statute too much, though they declined to lay 
down any absolute rule as to AA'hen the proceeding should be under this 
section, and when by mandamus.] The court acts upon this section Avhere 
justices refuse to determine a case over which they liaA'e jurisdiction, [and a 
mandamus to them to hear and determine the case would issue, R. v. Cotton, 
15 Q. B. 5G9; R. v. Justices of Bristol, 18 Jur. 426, in nota; S. C. 3 E. & B. 
479, in nota; R. v. Paynter, 7 E. & B. 328 ; R. \. Dayman, ib., 672 ; R. v. Dunn, 
7 E. & B. 220; but not Avliere the refusal is merely formal, and made for the 
purpose of eliciting the opinion of the court, and deciding the case according 
to the opinion given, R. \. Paynter ; R. \. Dayman. 

It is sometimes a nice question Avhether the justices have declined jurisdic- 
tion, or whether they have adjudicated, R. v. Brown, 7 E. & B. 757; R. v. 
Paynter ,• R. y. Dayman; R. \. Tlie Mayor, &c., of Rochester, 7 E. & B. 910; 
R. V. Wood, 5 E. &B. 49; and R. v. Pndwick, 8 E. & B. 704, in Avhich case 
the dismissal T)y quarter sessions of an appeal for Avant of jurisdiction Avas 



CKEPPS V. DURDEN ET ALIOS. 989 

held to be a decision witliin the meaning of 12 & 13 Vict. c. 45, s. 5. See 
also Carr v. Stringer, E. B. & E., where, though an appeal did not lie, yet the 
court entertained the question so far as to examine whether they had juris- 
diction, and to give costs to the respondent : and see Ex parte Monroe, 8 E. & 
B. 822]. 

But the court refused to make an order, directing justices to issue a Avaj-- 
rant of distress, where the liability of the person against whom it was 
sought appeared seriously doubtful, R. v. Browne, 13 Q. B. 654. [Orders to 
issue warrants of distress were made in R. \. Justices of Kingston-upon- 
77iames, E. B.&E. 256; R.\. Bradshmv, 29 L. ,J. M. C. 176; R. v. Eastern 
Coiiniies Rail. Co., 5 E. & B. 974; R. v. Lindford, 7 E. & B. 950; R. v. Bolder, 
83 L. J. M. C. 101 ; R. v. Higginson, 81 L. J. M. C. 189 ; In re Hartley, 31 L. J. 
M. C. 232; — to sign an order for the preferment of an indictment in R. v. 
Arnold, 8 E. & B. 550.] On a motion against a magistrate under this section, 
the general rule is, that the court will order the unsuccessful part}- to pay 
costs, and will not, on the motion for costs, enter into the merits of the 
original application, R. v. Ingham, 17 Q. B. 884. 

Sect. 6 makes the confirmation of a conviction or order on appeal a pro- 
tection to a justice who issues a warrant upon it either before or after such 
confirmation. 

Sect. 7 empowers a judge to set aside the proceedings in any action brought 
against a justice contrary to the provisions of the act : and every action 
against justices must be brought within six months after the act complained 
of (sect. 8), and not until after a month's notice in writing, &c. (sect. 9), 
[the notice must be given, although the cause falls within the first section of 
the act, Kirhy v. Simpson, 10 Exch. 358. In cases within that section the 
notice should show that the act charged was malicious, Taylor v. Nesfield, 3 
E. & B. 724. It] may be given before the quashing of the order, the act com- 
plained of being the cause of action, although the action itself cannot be 
brought until after the quashing, Haylock v. Sparke, 1 E. & B. 471. 

Sect. 10 makes the venue in the action local \_{qua;re as to the efi'ect of the 
Judicature Acts, 1873, 1875, which abolish generally local venues, except 
where otherwise provided by statute, Ord. XXXVI. Rule 1, but provide, Ord. 
XIX. RiTle 12, that every defence of not guilty by statute shall have the same 
effect as heretofore)], and gives the defendant an option to plead the general 
issue, and under it prove the special facts, and also gives him the privilege 
of exemption from the jurisdiction of the county court. [See Weston v. 
Snexjd, 1 H. & N. 703.] 

By sect. 11 a recovery of less than the amount tendered or paid into court 
gives him a verdict with the security of the sum paid into court for his costs ; 
and by sect. 12 the verdict is to be against the plaintift", or he is to be non- 
suited, if he has not complied with the above-mentioned preliminaries. 

Sect. 13 provides that the plaintifl" shall not in any case recover more than 
two pence damages where it appears that he was guilty of the ofleuce of 
which he was convicted, or liable by law to pay the sum ordered to be paid, 
and that he has undergone no greater punishment than that assigned by law 
to the offence of Avhich he was convicted, or for non-payment of the money 
ordered to be paid. 

By sect. 14 the plaintifi'is to have costs, as before the act, and where the 
act complained of is stated to have been done maliciously, &c., they are to be 
taxed as between attorney and client, and in all cases where there is judg- 
ment against him he is to pay costs as between attorney and client. 



990 CUEI'PS V. DUKDEX ET ALIOS, 

Such is a siimnian- of the provisions of this importaut statute. 

The conviction [or order] maj- be drawn up at any time before it is returned 
to tlie quarter sessions [see tlie 11 & 12 Vict. c. 43, s. U,] so that tliough it 
may be informal at first, the magistrate lias an opportunity of amending it; 
and it lias been declared to be not only legal but laudable so to do, /.'. v. 
Bgrker. 1 East, 186. Unless, indeed, it have been quashed or its invalidity 
otherwise ascertained by the decision of a superior court, as for instance, by 
the Queen's Bench on Habeas Corpus, Chaney v. Payne, 1 Q. B. 725. But it 
would seem that after an invalid conviction has been filed at sessions, an- 
otlier might be substituted, R. v. Richards, 5 Q. B. 92G. But the rule is difter- 
ent in case of an order, R. v. Justices of Cheshire, 5 B. & A. 439. [And see as 
to the amendment of orders made by justices, 12 & 13 Vict. c. 45, s. 7; R. v. 
IJigham, 7 E. & B. 557; R. v. Lundie, 31 L. J. M. C. 157. Even in the case 
of a conviction, where a rule nisi had been obtained for a certiorari to Ijring 
up a bad conviction, and after the conviction had been returned to the clerk 
of the peace and filed, the magistrate drew up a fresh and corrected convic- 
tion, it was held that the certiorari should go, Ex parte Austin, 50 L. J. M. 
C. 8.] 

In Griffith v. Harries, 2 M. & W. 335, it w^as stated by Baron Parke, that in a 
case of Dimsdale v. Clarke, a.d. 1829, he and Mr. J. Littledale differed from 
Mr. J. Bayley on the question whether it be necessary that the magistrate's 
jurisdiction should appear affirmaticely on the conviction, ]Mr. J. Bayley think- 
ing that it need not ; but see Day v. Kintj, 5 A. & C 359 ; R. v. Le^cis, 8 A. & 
E. 885. 

As the law regarding summary convictions before justices is of great and 
daily increasing importance, on account of the immense variety of subjects 
wliich fall within this sort of jurisdiction, it seems advisable to [make some 
general remarks on it]. 

A conviction before a justice or justices of the peace without tlie interven- 
tion of a jury is always under some statute ; the common law knows of no 
such proceeding. It [has been] regarded by the courts with no particular 
favour, and [formerly the justice was obliged], on the record of it, to show 
[in detail] that he had proceeded recto ordine. So much precision was re- 
quired in drawing it up, that magistrates and their clerks were under consid- 
erable difficulty, and ran considerable risk in framing it. For their ease and 
protection stat. 3 Geo. 4, c. 23, provided a general form [which, however, 
was only applicable where no particular form had been given, and required 
the evidence to be set forth. This statute has been repealed, and nearly all 
difficulty in framing a conviction removed, by one of the three Jervis's acts 
relating to justices acting out of quarter sessions (the third of which, 11 & 
12 Vict. c. 44, has been above epitomised), namely by the Summary Convic- 
tions and Orders Act, 11 & 12 Vict. c. 43, Avhich gives short forms of con- 
victions and of proceedings to obtain and enforce them], and does away with 
the effect of variances and defects both in substance and fomi in [several 
parts of] the proceedings themselves. [Tliis act, with the acts of 42 & 43 
Vict. c. 49 and 47 & 48 Vict. c. 43, and any future acts amending these acts, 
are now to be styled "The Summary Jurisdiction Acts," see 42 & 43 Vict. c. 
49, s. 50. For the forms contained in the Schedule to 11 «fc 12 Vict. c. 43 
others have been substituted by the rules drawn up under s. 29 of 42 & 43 
Vict. c. 49 and ss. 4, 12 of 47 & 48 Vict. c. 43. See post, p. 711.] 

The first section [of 11 & 12 Vict. c. 43] directs that in all cases where an 
information (which need not be on oath unless a warrant issues in the first 



CREPPS V. DURDEX ET ALTOS. 991 

instance, sect. 10) is laid before a justice or justices, or complaint made 
(wliicli need not be in tcriting unless the statute require it, sect. 8), a sum- 
mons may issue according to the form in the schedule [as to the mode of 
service, see p^r Quain, J., Reg. v. Smith, L. R. 10 Q. B. 609] ; and by sect. 2, 
in case of non-appearance, upon proof on oatli of due service of the sum- 
mons, what shall he deemed by the justice a reasonable time before the ap- 
pointed day, [see Reg. v. Smith, L. R. 10 Q. B. 604,] he may, upon the infor- 
mation or complaint being substantiated on oatli, issue his warrant according 
to the form in the schedule: or in cases of convictions, wliere the original 
information is upon oath, he maj' issue such warrant in the first instance, or 
in cases where a summons issues witliout appearance, upon proof on oatli of 
due service, a reasonable time (not as in case of issuing a warrant wliat shall 
be deemed by the justice a reasonable time) before tlie day appointed he may 
proceed ex parte, and adjudicate; and it is provided by sect. 1, — that no objec- 
tion shall he alloioed to any information, complaint or summons for any alleged 
defect therein " in substance or inform," — or for anj' variance in the evidence; 
but if considered by the justice prejudicial to the defendant, the case may be 
adjourned. [See Whittle v. FranMand, 31 L. J. M. C. 81. Wliere the sum- 
mons was for drunkenness and riotous liehaviour, contrary to a special act, a 
conviction for drunlcenness only was quaslied, Martin v. Pridgeon, 28 L. J. M. 
C. 179; and see R. v. Brickhall, 33 L. J. IM. C. 156.] 

Sect. 3 contains a similar provision as to warrants, witli a similar power of 
postponement, and in the meanwhile commitment or enlargement upon recog- 
nizances according to forms in the schedule. 

Sect. 4 directs the mode in which the ownership of property is in certain 
cases to be stated. 

Sect. 5 makes aiders and abettors in the commission of offences punishable 
bj' summary conviction liable to the same punishment as principles. 

Sect. 6 extends the provisions of 11 & 12 Vict. c. 42, to this act, [but is not 
controlled by the 35th sect, of 11 & 12 Vict. c. 42, see 26 & 27 Vict. c. 77. 
Bradford Union v. Cleric of the Peace for Wilts, L. R. 3 Q. B. 604; 37 L. J. M. 
C. 129.] 

Sect. 7 gives the justice power to enforce the attendance of any material 
witness within his jurisdiction, in the same manner as a defendant, and to 
commit for seven daj's any witness refusing to be sworn or to answer. 

Sect. 11 gives six months after the cause has arisen, in the absence of spe- 
cial enactment, as the time for complaint or information. [See Eddleston v. 
Francis, 7 C. B. N. S. 568; Labalmondiere \. Addison, 1 E. & E. 41 : Reeve v. 
Yeates, 1 H. & C. 435; Morant v. Taylor, 1 Ex. D. 188, 45 L. J. M. C. 78; Cog- 
gins V. Bennett, 2 C. P. D. 568.] 

Sects. 12 (slightly modified by 47 & 48 Vict. c. 43, s. 4,) 13 (also similarly 
modified), 14, and 16 (also modified as above), contain precise directions as to 
the mode in which the heai'ing upon complaint and information is to be con- 
ducted. [As to s. 14, see Ex parte Hayward, 32 L. J. M. C. 89 ; Davis v. Scrace, 
L. R. 4 C. P. 172 ; 38 L. J. M. C. 79 ; Morgan v. Hedger, L. R. 5 C. P. 435 ; Reg. 
V. Hutchins, 5 Q. B. D. 353 ; and as to s. 16, see Qelen v. Hall, 2 H. »& N. 739.] 

Tlie seventeenth section provided for the use of the forms of convictions 
and orders in the schedule to the act ; [but by the Summary Jurisdiction Act, 
1884, s. 55, is repealed so much of this section " as specifies any form of con- 
viction or order for which another form is provided by a rule under tlie Sum- 
mary Jurisdiction Acts." The validity of forms so provided is established 
by s. 29 of the Summary Jurisdiction Act, 1879, explained by s. 12 of the 



992 CREPPS V. DUUDEN ET ALIOS. 

Summary Jurisdiction Act, 1884, and the rules and forms now in force will 
be found in the Weekl}- Notes of Oct. 9, 1880. By rule 31 it is provided that 
the forms in the schedule to the rules or forms to the like eflect may be used 
with such valuations as the circumstances may require. By rule 32, the forms 
in the schedule to 11 & 12 Vict. c. -13, are annulled. It will be seen that — in 
convictions (part I., forms 11 — 17) neither (1) the information — (2) the 
summons — (3) the ajipearance or non-appearance of the defendant are to be 
mentioned — and (4) the evidence is not to be set forth. 

The requisites of a conviction, which formerly must have been recorded in 
it, are : — ] 

1. 77ie information, which [has been usually stated to be] absolutely essen- 
tial in all cases, exceptino; where the justice is empowered to convict on view 
(see 1 Wm. Saund. 2G2, note, Jones v. Oicen, 2 1). & K. GOO). It [has been 
resiarded as] the foundation of his jurisdiction over the case, without which 
his proceeding would be void (see R. \. Bolton, 1 Q. B. GG), \_Blake v. Beech, 
1 Ex. D. 320, 45 L. J. M. C. Ill; and though some of the dicta in Rpg. v. 
Hughes, 4 Q. B. D. 614, 48 L. J. M. C. 151, appear somewhat inconsistent with 
this view, the decision seems merely to negative the necessity of any formal 
information where not required by statute]. The same principle applies 
to other limited jurisdictions created by statute ; thus, a presentment is the 
foundation of the jurisdiction of commissioners of sewers, and if there 
be not one their rate is void, Winr/ate v. Waite, G M. & W. 739; and see the 
judgment in Doe v. Bristol and Exeter Rail Co., 6 M. & W. 320; R. v. Croke, 
Cowp. 2(i; and Christie v. Unicin, 11 A. & E. 373, where the same principle 
was held to apply even to the exercise of an authority conferred by statute 
on the chancellor; see also R. v. Guardians of Hartley Union, 1 B. B. G77; 
[Lee V. Bowley, 8 E. & B. 857 ; and In Re Hopper v. Warhurton, 32 L. J. Q. B. 
104.] 

The information need not have been in xcritinrj or even on oath, unless ex- 
pressly directed by an act of parliament to be so, Basten v. Carev, 3 1?. & C. 
649; [Reg. v. Hughes, 4 Q. B. D. 614, 48 L. J. M. C. 151]. By the 11 & 12 
Vict. c. 43, s. 10, whenever the justice issues a warrant in the first instance 
without summons, the information must be upon oath. 

[Objections cannot now usually be taken to the information for defects in 
substance, or form, or for variances i^etween it and the evidence, 11 & 12 
Vict. c. 43, ss. 1 and 9 ; still,] care should be taken in framing it, since it 
[has been usually considered to be] the foundation of the magistrate's juris- 
diction, Cave Y. Mountain, 1 M. & Gr. 257; Carpenter v. Mason, 12 A. & E. 
629. 

"When there is no act giving a particular form, it is sufficient if tlie juris- 
diction is substantially made apparent in the documents, or can be inferred 
therefrom, Taylor v. Clemson, per Tindal, L. C. J., 2 Q. B. 1032; [see Ex 
parte Baker, 7 E. & B. 697]. Before the 11 & 12 Vict. c. 43 [ss. 1 & 9, the 
evidence would not] supply omissions in the information, for the office of 
the evidence is to p7-ove, not to supply a legal charge, R. v. Wlieatmain, Dougl. 
232; Wiles v. Cooper, 3 A. & E. 528. It should state — the day on which it is 
exhibited ; and the statement of a day inconsistent with, or insufficient to 
warrant the conviction, formerly vitiated it, R. v. Kent, 2 Lord Raym. 1546. 

It should state — the place of exhibiting, that the magistrate may appear 
to have been acting within his jurisdiction, see R. v. Kite, 1 B. & C. 101 ; and 
R. v. Martin, 2 Q. B. 1037; Re Peerless, 1 Q. B. 143. 

The name of the informer should, it seems, be set forth, that the defendant 



CilEPPS V. DUliDEN ET ALIOS. 993 

may know who is accusing liini; in some cases, at all events, it is necessary, 
see R. V. Stone, 2 Lord Ilaym. 1545. 

It should state — the name and style of the convicting justice or justices, 
and show that he is acting within his jurisdiction. See Jute's Case, 1 B. & C. 
101; R. V. Martin, 2 Q. B. 103 G ; Re Peerless, 1 Q. B. 143; R. v. Inhabitants 
of St. George, Bloomsoury, 4 E. & B. 520. Thus it [was before the statute 
a]:)ove mentioned held not to] be enough to state that he is justice i}i the 
county, without stating that he is of or for the county, it!, v. Dubhyn, Salk. 
473 ; — the name of the ofl'ender or offenders, R. v. Harrison, 8 T. E. 508 ; the 
time of the offence, so that the information may appear to have been laid in 
due time, R. v. Fnllen, Salk. 3G9 ; R. v. Chandler, Salk. 378; R. v. Crisp, 7 
East, 389; — the place, that it may appear to have been within the justice's 
jurisdiction, Kite's Case, 1 B. & C. 101, et notam ; — lastly, the charge should 
be set forthwith proper and sufficient certainty, and contain every ingredient 
necessary to constitute the offence, leaving nothing to mere inference or in- 
tendment. " A conviction," to use the words of Lord Holt, " must be certain, 
and not taken by collection," R. v. Fuller, I Lord Raym. 509 ; R. v. Trelaicney, 
1 T. K. 222. 

Generally speaking, it is sufficient to state the offence in the words of the 
act creating it; see R. v. Speed, 1 Lord Raym. 583; Davis v. Xest, 6 C. & P. 
167; Ex parte Pain, 5 B. & C. 251; \_In re Perham, 5 H. & N. 30; Walshy v. 
Anley, 30 L. J. M. C. 121 ; and by 42 & 43 Vict. c. 49, s. 39, sub-s. 1, it is ex- 
pressl}'^ enacted with reference to proceedings before courts of summary 
jurisdiction that " The description of anj' offence in the Avords of the act, or 
any order, bj'e-law, regulation, or other document creating the offence, or, in 
similar words, shall be sufficient in law."] Cases, however, may occur in 
which the words ot the statute are so general as to render some more cer- 
tainty in the conviction necessary; per Denison, J., R. v. Jarvis, 1 Burr. 154; 
Ex parte HawJdns, 2 B. & C. 31; R. v. Perrott, 3 M. & C. 379. 

[Previously to the passing of 11 & 12 Vict. c. 43, it was held that] excep- 
tions in the statute creating the offence should be negatived where they 
appear[ed] in the clause ci'eating the offence, R. v. Clarke, 1 Cowp. 35; R. v. 
Jukes, 8 T. R. 542 ; though it [was] otherwise when they occur[red] by way 
of proviso in subsequent clauses or statutes, Cathcart v. Hardy, 2 ^I. & S. 
534; Spiers v. Parker, 1 T. R. 141 ; R. v. Hall, I T. R. 320. 

The 11 & 12 Vict. c. 43, s. 14, enacts, that whenever in cases of summary 
convictions the information or complaint negatives any exception, proviso, or 
condition, it shall not be necessary' for the complainant to prove the negative, 
but the defendant may prove the affirmative in his defence. [See Tennant v. 
Cumberland, 1 E. & E. 401; Davis v. Scrace, L. R. 4 C. P. 172; 38 L. J. M. C. 
79; Morgan v. Hedger, L. R. 5 C. P. 485; ^nd by 42 & 43 Vict. c. 49, s. 39, 
sub-s. 2, it is further provided that in proceedings before courts of summary 
jurisdiction, " any exception, exemption, proviso, excuse, or qualification, 
whether it does or does not accompanj' in the same section the description of 
the offence in the act, order, bye-law, regulation, or other document creating 
the offence, may be proved by the defendant, but need not be specified or 
negatived in the information or complaint, and, if so specified or negatived, 
no proof in relation to the matter so specified or negatived shall be required 
on the part of the informant or complainant."] 

There are many cases where technical Avords, that would be necessary in an 
indictment for the same offence, are unnecessary in a conviction : see R. v. 
Chandler, 1 Lord Raym. 581 ; R. v. Marsh, 2 B. & C. 717. 



994 CREPPS Y. DURDEN ET ALIOS. 

Although the information must, in order to ijive tlie magistrate jurisdic- 
tion, state an offence of wliicli he has a rij^ht to tal<e cognisance, it need not 
state evidence sufficient to support such a cliarge, for it is tlie clianjp which 
gives tlie jurisdiction, Cave v. Mountain, 1 :\r. & G. 2G1 ; R. v. Bolton, 1 
Q. B. G6. 

2. That the defendant was summoned or brought up by warrant; for it 
would be contrary to natural justice to convict without giving him an oppor- 
tunity of being heard. Painter v. Liverpool Gas Co., 3 A. & E. 433; and see iR. 
V. Totness, 7 Q. B. GOO; [/?. v. Lirjhtfoot, 6 E. & B. 822; Cooper v. The Board 
of Works for the Wandsworth District, 32 L. J. C. P. 185; Lahalmondiere v. 
Frost, 1 El. & El. 527 ; 28 C J. M. C. 155 ; Blake v. Beech, 1 Ex. D. 320, 45 L. 
J. M. C. Ill; but, as before stated, the summons need not, according to the 
form of convictions given by the present Rules, be mentioned in it. 

A general form of summons is given (part I., form 2,) in the Summary 
Jurisdiction Rules, 188G, mentioned above.] In some cases an act requires a 
summons of a particular kind, and in those the justices have no juristliction 
if it be omitted; thus, where the summons was to be ten days at least before 
conviction, and it was served on the 20th to appear on the 30th, the con- 
viction was held void, Mitchell v. Foster, 9 Dowl. 527; 12 A. & E. 472. 
Where there is no statutable provision the summons should give him reason- 
able time, B. v. Mallinson, 2 Burr. G79 ; A', v. Johnson, 1 Str. 261; [see In re 
Williams. 21 L. J. 46]. 

If, indeed, he appear of his own accord, that will dispense with a sum- 
mons, /?. V. Stone, 1 East, G49. See R. v. ./ustices of Wiltshire, [12 A. & E. 
793; and appearance and defence cures all defects in the summons, A', v. 
Johnson, supra; see R. v. Berry, 28 L. J. M. C. S&; Blake v. Beech, 1 Ex. D. 
320, 45 L. J. M. C. Ill ; and see Reg. v. Hughes, 4 Q. B. D. 614, 48 L. J. M. C. 
151]. 

If a summons be ineffectual, a warrant may, at least in some cases, be 
issued; see Bane v. Methuen, 2 Bing. 63: but then the information ought to 
have been upon oath ; see E. v. Payne, Comberb. 359 ; per Holt, Barnard. 34 ; 
and it is the opinion of Mr. Parley that a warrant (in the absence of express 
enactment) lies only when the offence involves some breach of peace, Paley, 
37, [6th ed. p. 95]. The 11 & 12 Vict. c. 42, now authorises justices to issue 
a Avarrant to compel appearance in all cases of summary convictions or 
orders. [The warrant or summons is not avoided by reason of the justice, 
who signed the same, dying or ceasing to hold office, 42 & 43 Vict. c. 49, 
s. 37.] 

3. The appearance or non-appearance of the defendant. [This need not 
now, according to rules above referred to, be stated in the conviction.] If, 
being summoned, he do not appear, he may nevertheless be convicted, for 
otherwise any defendant might escape merely by not appearing, R. v. Simp- 
son, 1 Str. 44; and see 11 & 12 Vict. c. 43, ss. 2, 13, w^hich enable the justice 
to convict on default of appearance, or to issue a warrant to compel appear- 
ance and adjourn the case, R. v. Kingshy, 15 J. P. 65 ; Cowp. 30. 

4. If the defendant confess, [the confession must formerly have been] 
stated, [but see now the forms in the Rules 1886. If he does so, there is] 
no necessity for evidence, B. v. Hall, 1 T. R. 320 ; R. v. Clarke, Cowp. 35 ; 
even though the statute direct the conviction to be " on the oath of one or 
two credible witnesses": see R.\. Hall, uM supra; R. v. Gage, Stra. 546, 
and 1 Wms. Saund. 262, note; see 11 & 12 Vict. c. 43, s. 14 [and 42 & 43 Vict. 
c. 49, s. 13], under which the justice may convict the defendant at once, or 



CREPPS V. DUEDEX ET ALIOS. 995 

make an order agains;t him if he admit the truth of the information or 
complaint. 

5. If the defendant [did] not confess, the evidence must [have been] set 
forth, [but sliould not be now, according to the forms given by the Rules of 
1886]. It should be given in his presence. It is not necessarjs in order to 
warrant the conviction, that the justices should clearly have come to a right 
decision in point of fact. If there was evidence from which any reasonable 
person might have drawn the same inference as they did, they will do, B. v. 
Glossop, 4 B. & Ad. 616 ; Anon., 1 B. & Ad. 382. Indeed, the magistrate being 
substituted for a jury, his decision cannot be said to be wrong if the evidence 
was such as might have been left to a jury, and from which they might have 
drawn the same conclusion. R. v. Davis, 6 T. R. 178. 

6. There must be a judgment and an adjudication of the proper forfeiture, 
see R. V. Harris, 7 T. R. 238 ; R. v. Salomons, 1 T. R. 251 ; R. v. Hawkes, Str. 
858; \_B. V. Crickland, 7 E. & B. 866; R. v. Williams, 18 Q. B. 393; and 
Labalmondiere v. Frost, 1 El. & El. 527; 28 L. J. M. C. 155, S. C; In re Baker, 
2 H. & N. 219.] There is, however, no parti.cular form of judgment, R. v. 
Thompson, 2 T. R. 18. And the adjudication may be good in part though it 
exceed the jurisdiction of the justices, provided the excess be severable, R. 
\. Justices of Wiltshire, 12 A. & E. 793 ; R. v. St. Nicholas, 3 A. & E. 79. [See 
Cross V. Watts, per Byles, J., 13 C. B. N. S. 247, 248 ; 32 L. J. C. P. 73.] The 
application of the penalty, where the act directs any mode of applying it, 
[has been held to be] a necessary part of the judgment, Chaddock v. Wilbra- 
ham, 5 C. B. 645 : [but at any rate in most cases it would be sufficient to fol- 
loAV the forms in the schedule to the rules of 1886, which do not provide for 
the application of the penalty.] When [however] the statute leaves the 
application discretionary the mode in which the discretion was exercised 
ought [it would seem] to be stated, R. v. Dempsey, 2 T. R. 96. Where the 
justice is to give costs or charges, he must ascertain their amount in tlie con- 
viction, 7^. V. S'/mons, 1 East, 189; [Bott v. Acroyd, 28 L. J. M. C. 207] ; B. 
\. St. Mary, 13 East. 57; and as to costs, see noAV 11 & 12 Vict. c. 43, s. 18, 
[and 42 & 43 Vict. c. 49, s. 8,] and R. v. Barton, 13 Q. B. 389. 

7. Lastly, the conviction should be subscribed, dated and sealed; see R. v. 
Elwell, Str. 794; Basten v. Carew, 3 B. & C. 649; and see 11 & 12 Vict. c. 43, 
s. 14, which requires the conviction or order to be drawn up under the hand 
and seal of the justice. The reason of dating it is, that it may appear Avhen 
it Avas made; and if that do appear, that is enough, and an impossible date 
might be rejected, B. v. Picton, 2 East, 198; see B. v. Bellamy, 1 B. & C. 500. 

The above observations apply to convictions in general ; but a conviction 
is the creature of the statute law; and, if a statute prescribe any particular 
form for it, no matter what, that form [except when otherwise provided by 
statute] must be strictly pursued, Davison v. Gill, 1 East, 72; Goss v. Jack- 
son, 3 Esp. 198. 

By s. 27, sub-s. 5, of the Summary Convictions Act, 1879, it is provided 
that where an indictable offence is under the circumstances in that act men- 
tioned, authorised to be dealt with summarily " The conviction shall contain 
a statement either as to the plea of guilty of an adult, or in the case of a 
child as to the consent or othenvise of his parent or guardian, and in the case 
of any other person of the consent of such person, to be tried by a court of- 
summary jurisdiction." 

[To proceed with the summary of the 11 & 12 Vict. c. 43.] The 18th sect, 
enables the justice to order costs either to the prosecutor or complainant, or 



996 CREPPS V. DURDEN ET ALIOS. 

to the defendant, as to -which see also the Summary Convietions Act, 187!), 
ss. 6, 8, & 28. 

Sects. 19 to 29 & 31, relate to the mode in which penalties imposed, and 
costs ordered by justices ai'e, under various circumstances, to he recovered 
and paid. Sects. 19 & 20 are partly repealed by the Summary Convictions 
Act, 1874, sched. See as to sect. 23 Lcverick v. Mercer, 14 Q. B. 759; [as to 
sect. 25 R. V. Cutbush, L. R. 2 Q. B. 379; and as to sect. 2G Winn v. Mossman, 
L. R. 4 Ex. 292 ; 38 L. J. Ex. 200. Further provisions on the like subject are 
contained in the Summary Jurisdiction Act, 1879, ss. 4 to 9, 21, 24, 28, 34, 35, 
39, 43, and in the Summary Jurisdiction Act, 1884, s. 3]. And see as to tlie 
[proper] mode of [awarding] costs in cases of appeal under sect. 27 [of 11 & 
12 Vict. c. 43], R. v. Hellier, 17 Q. B. 229; R. v. Binney, 1 E. & B. 810; and 
R. v. Huntley, 3 E. & B. 172; [/?. v. Justices of Ely, 5 E. & B. 489; Gay v. 
Matthews, 4 B. & S. 425; 33 L. J. M. C. 14. As to sect. 31, see Mayor of 
Reigate v. Hart, L. R. 3 Q. B. 244; 37 L. J. M. ('. 70.] 

Sect. 32 enacts that the forms in the schedule shall l)e deemed good, valid, 
and sufficient in law, [but these forms have now been annulled, and others 
substituted, see ante p. 711.] 

Sects. 33, 34, regulate jurisdictions of metropolitan police, and stipendary 
magistrates; also of the lord mayor and aldermen of London, [but these 
sects, do not apply to or restrict the operation of 42 & 43 Vict. c. 49, see s. 
52.] 

Sect. 35 provides that the act shall not extend to orders of removal, orders 
as to lunatics, [see, however, Bradford Union v. Clerk of the Peace for Wilts, 
L. R. 3 Q. B. 604; 37 L. J. M. C. 129], nor to informations concerninrj the excise, 
C2istoms, stamps, taxes, or post office [but the foregoing exception in italics 
is repealed by 42 & 43 Vict. c. 49, s. 55], nor to orders, &c., in matters of 
bastardy, [but the Summary Jurisdiction Act, 1879, which is to be construed 
as one with 11 & 12 Vict. c. 43, does " apply to the levying of sums adjudged 
to be paid by an order in any matter of bastardy, or by an order which is 
enforceable as an order of affiliation, and to the imprisonment of a defendant 
for non-payment of such sums, in like manner as if an order in any such 
matter or so enforceable were a conviction on information, and to the proof 
of the service of any summons, notice, process, or document in any matter 
of bastardy, and of any handwi'iting or seal in any such matter, and to an 
appeal from an order in any matter of bastardy,"] nor to proceedings under 
acts regulating the labour of children in factories, &c., [which last exception 
was repealed by the Factories and AVorkshops Act, 1871, 34 & 35 Vict. c. 104, 
s. 11 : see now 41 Vict. c. 16, s. 89]. 

An adjudication by two justices under the Lands Clauses Consolidation 
and Railway Clauses Consolidation Acts, 1845, as to the compensation payable 
by a railway company to a person whose lands have been injuriously aflected 
by their Avorks, is [not] an order within sect. 1 of this act, [A', v. Edioards, 13 
Q. B. D. 586; 53 L. J. M. C. 149; overruling Re Edrnundson, 47 Q. B. 67. 

By the Summai-y Jurisdiction Act, 1879 (42 & 43 Vict. c. 49), already 
referred to, the powers of courts of summary jurisdiction have been materi- 
ally increased. It has not been thought necessary, however, to set out the 
details of that act, nor of the later act of 1884 (47 & 48 Vict. c. 43) which is 
. principally a repealing and explanatory act. 

The alterations in procedure, so far as they relate to the subject-matter of 
this act, have been already mentioned. 

But the most important feature of the xVct of 1879 is that it gives power to 



CREPPS V. BURDEN ET ALIOS. 997 

courts of summary jurisdiction to deal summarily with certain specified 
indictable offences in three cases, viz. : — (1) In the case of a child {i.e., a 
person who, in the opinion of the court, is under 12 years), unless the parent 
or guardian objects, charged with any offence except homicide; (2) In the 
case of a young person (i.e., a person who, in the opinion of the court, is of 
the age of 12 and under 16 years of age) , charged with certain cases of larceny, 
embezzlement, and receiving as specified in the First Schedule, if the accused 
consents; (3) In the case of an adult {i.e., a person who, in the opinion of 
the court, is of the age of 16 years or upwards), charged with the same class 
of offences, if he pleads guilty, or with another class of similar offences 
specified in the same Schedule, if he consents. See ss. 10-17, 24, 27, 28. 

By s. 17 the right to claim trial by jurj' is given to a person charged before 
a court of summary jurisdiction, with an offence other than an assault involv- 
ing a liability on conviction to imprisonment for a term of more than three 
months. 

By s. 19, an appeal is given to the general or quarter sessions against 
certain summary convictions and orders. See as to procedure in appeal, 
ss. 31, 32. 

By ss. 6, 7, 8, and 35, 37, special powers are given for the recovery as a 
civil debt of sums ordered to be paid by a court of summary jurisdiction. 
See R. V. Price, 5 Q. B. D. 300. 

B}^ s. 29 power is given to the Lord Chancellor to make, rescind, and alter 
rules in relation to the Summary Jurisdiction Acts. The present rules will be 
found in the \Yeekly Notes, Oct. 9, 1886.] 

If a conviction be void on the face of it, it follows, as of course, that [as 
a general rule] no act done in pursuance of it can be justified, and that any 
seizure of person or property under it will form the subject-matter of an 
action, as will be seen in the principal case ; subject, however, to the provi- 
sions of 11 & 12 Vict. c. 44, ante, p. 704 et seq. 

[Cases there are, however, in which the convicting justice, though he has 
convicted without jurisdiction and his order ;^.as been acted upon, is not liable 
to an action except he either acted mala fide, or ought to have known of his 
defective jurisdiction. The class of cases referred to is where the jurisdic- 
tion of the justice depends upon the existence of a certain state of facts. 
Whether those facts exist is a collateral question which he has to decide ; and 
though he decide wrongly and so by his wrong decision attribute to himself 
and act upon a jurisdiction which he does not possess, he is not liable to an 
action merely on account of his erroneous decision on the question of fact. 
Pease v. Chaytor, 3 B. & S. 620. 

It is otherwise if the mistake be one of law. See Houlden v. Smith, 14 Q. 
B. 841, cited by Blackburn, J., in his judgment in Pease v. Chaytor, uJn sup. 
But until his erroneous judgment be acted upon so as to make him liable in 
trespass he is not liable for his judicial mistake. Sommerville v. Mirehouse, 
1 B. & S. 652.] 

But besides [the remedy by action,] there are two modes of impeaching 
[convictions], first by appeal, secondly by certiorari. 

An appeal, like a conviction, is the creature of the statute law, and never 
lies unless where it is given by express terms, R. v. The Recorder of Ipswich, 
8 Dowl. 103; R. v. Hanson, 4 B. &. A. 521; [/?. v. Justices of Warwickshire, 
6 i:. &. B. 837; Ex parte Chamberlain, 8 E. & B. 644. See also R. v. Justices 
of Worcester, 3 E. & B.486; R. v. Inhabitants of London, 3 E. & IL 547; A.-G. 
V. Sillem, 10 H. of L. Ca. 704 ; 2 H. & C. 581 ; 33 L. J. Exch. 209]. 



998 CREPPS V. DURDEN ET ALIOS. 

The rule with regard to a certiorari is tlie very reverse. It always lies 
unless expressli/ taken away, R. v. Abbot, Dougl. 543 ; and it requires very 
strong words to do so ; for even where a statute gave an appeal to the ses- 
sions, and directed that it should be finally determined there, and no other 
court should intermeddle with the causes of appeal, it was held that a certio- 
rari lay after the appeal, R. v. Moreley, 1 W. Bl. 231 ; R. v. Jukes, 8 T. 11.- 
542; see R. v. Justices of West Riding, Yorkshire, 1 A. & E. 575; where it was 
taken away, R. v. Fell, 1 B. & Ad. 380; R. v. Justices of Lancashire, 11 A. & 
E. 144, where an order in pursuance of a statute leaving the certiorari, but 
made by a town council empowered by 5 & W. 4, c. 70, which takes it away, 
was held removable by certiorari. The reason of this is, that it is an ex- 
tremely benertcial writ, being the medium through which the Court of Queen's 
Bench exercises its corrective jurisdiction over the summary proceedings of 
inferior courts. [A section in an Act of Parliament taking away the certio- 
rari does not apply where there has been an absence of jurisdiction. Ex parte 
Bradlaugh, 3 Q. B. D. 509. 

Where it is expressly taken away it has been decided that it cannot issue 
even to bring up to quash an order of justices in quarter sessions condi- 
tionally affirming a conviction subject to a case for the opinion of the court. 
Reg. v. Chaiitrell, L. R. 10 Q. B. 587, 44 L. J. Q. B. 1G7. Now, however, a 
certiorari is not in such case required, 42 & 43 Vict. c. 49, s. 40.] 

Even wliere it is taken awajf^ in express terms, they do not include the 
crown unless named, A', v. Davies, 5 T. R. G26 ; R. v. Allen, 15 East, 333; R. 
V. Boidtbee, 4 A. & E. 498. Nay, it is said that the attorney-general, on behalf 
of the crown, might in such case obtain the writ for a defendant; see 1 East, 
303, note, and the authorities there cited. 

A certiorari is a writ, issuing out of the Chancery or Queen's Bench [Divi- 
sion of the High Court of Justice], commanding tlie judges or officers of an 
inferior court to certify and return the record of a matter before them. [See 
Walsall V. L.& N. W. R., 4 App. Cas., per Earl Cairns, C, at p. 39.] It is 
used for a great variety of purposes; but we are at present looking only at 
its applicability to the case of a conviction. No writ of error lies upon a 
conviction; so that a certioran is the only mode of bringing it into the 
Queen's Bencli [Division] in order to reverse it. [See per Bramwell, L. J., 
in Reg. v. Overseers of Walsall, .3 Q. B. D. 464. And tlie jurisdiction of the 
Court of Queen's Bench to issue the writ of certiorari formerly applied, and 
that of the Queen's Bench Division of the High Court of Justice now "ap- 
plies only where there is some defect of jurisdiction or informality or defect 
apparent on the face of the proceedings" in the inferior Court, Reg. v. Over- 
seers of Walsall (ubi snp.). The superior court cannot give itself jurisdiction 
through the writ of certiorari when it otherwise possesses none.] 

It [has been held that a certiorari'\ is not, like a writ of error, granted ex 
debito jnstitice; but "application is made to the sound discretion of the 
court," R. V. Bass, 5 T. R. 252; R. v. Manchester and Leeds Rail. Co., 1 P. & 
D. 164; R. V. South Holland Drainage Committeemen, 1 P. & D. 79. [But in 
a recent case the Court of Queen's Bench, after taking time to consider this 
very point, held that where the applicant was "a party grieved "the writ 
ought to be treated like a writ of error, as ex debito justitice ; but where the 
applicant is not grieved, but comes forward merely as one of the public, the 
court has a discretion. They held, however, that the writ is clearly not a 
matter of course. The court must be satisfied on affidavits that grounds for 
issuing it exist. And even where the applicant is a party grieved, if he has 



CREri'S V. DUEDEN ET ALIOS. 999 

by his conduct precluded himself from taking an objection, the court will not 
permit him to make it. Reg. v. Justices of Surrey, L. R. 5. Q. B. 406; 39 L. J, 
M. C. 145. See also Reg. v. Sheicard, 9 Q. B. D. 741. 

The application is by way of motion, and by 13 G. 2, c. 18, s. 5, " no 
certiorari shall be gi-anted to remove any order, conviction, or other pro- 
ceeding before a justice or at the sessions, unless it be applied for in six 
calendar months, and upon oath made that the party has given six days' notice 
in writing to the justice or justices, or two of them, if so many there be:" 
see B. V. Boughey, 4 T. R. 281 ; R. v. Bloxam, 1 A. & E. 386 ; R. v. Inhabitants 
of Sevenoaks, 7 Q. B. 136; [In re Hopkins, E. B. & E. 100; R. v. Allan, 4 B. & 
S. 915; 33 L. J. M. C. 98; R. v. Hodgson, 5 Nov. 1863, 9 Law T. 290J. The 
notice to the justices must be six days before the rule nisi is moved for, one 
daj' inclusive, the other exclusive, R. v. Goodeiiough, 2 A. & E. 463; R. v. 
Flounders, 4 B. & Ad. 865. It must be by or on behalf of the party intending 
to move, and must appear to be so, R. v. Justices of Lancashire , 4 B. & Ad. 
289 ; R. V. Justices of Cambridgeshire, 3 B. «& Ad. 887 ; B. v. Justices of Kent, 3 

B. & Ad. 250; B. v. Justices of Lancashire, 3 P. & D. 86, 11 A. & E. 144, Avhere 
the notice was held sufficient ; R. v. Justices of Shreiosbury, [9 Dowl. P. C. 
524 ; S. C. nom.'] R. v. How, 11 A. & E. 159. But the crown seems not to be 
bound by this even where it espouses the defendant's side, R. v. James, 1 East, 
303, note; R. v. Berkeley, 1 Ken. 80; R. v. Battams, 1 East, 298. 

If, upon the discussion of the rule, the writ be granted, it removes the con- 
viction into the court above, where it is quashed if bad ; if good, it remains 
in the Queen's Bench, unless, indeed, to keep it there would occasion a defect 
of justice, in which case it may be sent back again by writ of ivocedendo, R. 
v. Nevile, 2 B. & Ad. 299. 

The person prosecuting the certiorari must by 5 G. 2, c. 19, enter into 
recognizance for 50L, with competent sureties to prosecute it with efiect and 
pay costs if unsuccessful. This act does not, however, apply to the case of a 
prosecutor obtaining the writ, R. v. Spencer, 9 A. & E. 485. [A writ of 
certiorari may on motion be superseded quia improvide emanavit, Reg. v. 
Chantrell, L. R. 10 Q. B. 587, 44 L. J. Q. B. 167. 

Where certiorari has gone to bring up a conviction for an oftence under the 
criminal law, no appeal will lie to the Court of Appeal, criminal cases being 
expressly excepted from the jurisdiction of that court by s. 47 of the Judica- 
ture Act, 1873, see Reg. v. Fletcher, 2 Q. B. D. 43, 46 L. J. M. C. 4; R/g. v. 
Rudge, 16 Q. B. D. 459. But where by certiorari an order of quarter sessions 
as to a borough rate had been brought into the Queen's Bench Division, and a 
rule nisi to cj[uash such order was subsequentl)^ discharged, and the order of 
sessions was affirmed by a rule of the Queen's Bench Division, the Court of 
Appeal were equally divided as to whether an appeal lay from this last rule. 
Bramwell and Cotton, L. JJ., held that the jurisdiction was given by the gen- 
eral words of the 19th section of the Judicature Act, 1873; whilst Cockburn, 

C. J., and Brett, L. J., were of the contrary opinion, being of opinion that the 
Court of Queen's Bench never had jurisdiction to quash such an order of 
sessions, but merely that a custom had arisen of taking the opinion of the 
Queen's Bench, upon which the sessions acted, and that therefore there had 
been no decision of the Queen's Bench Division on which an appeal would 
lie. On appeal, the House of Lords adopted the view of Bramwell and Cot- 
ton, L. JJ., Walsall v. L. & JST. W. R. Co., 4 App. Cas. 30; 48 L. J. Q. B. 65. 
No leave to appeal under sect. 45 of the act is in such case necessary. Tiling- 
worth v. Buhner East Highway Board, 53 L. J. M. C. 60 ; and see Beg. v. Pem- 
berton, 5 Q. B. D. 95.] 



1000 CREPPS V. DURDEX ET ALIOS. 

The Queen's Bench [Division], excrcisins: its appellate power over a con- 
viction removed into it by certiorari, will not allow the merits of the case to 
be asain litigated upon allidavit ; for the justices are the proper persons to 
determine upon those. R. v. Bolton, 1 Q. B. GO ; B. v. Justices of Bucking- 
hamshire, 3 Q. B. 800: [And so where the justices in quarter sessions 
quashed a magistrate's conviction on the groimd that certain words of the 
statute on which it was founded were omitted in it, the Queen's Bench Divis- 
ion, though holding their decision to be erroneous, declined to interfere by 
ma7idamus, Beg. v. Justices of Middlesex, 2 Q. B. D. 516, 46 L. J. Q. B. 746. 
Where, however, by consent of the parties, the quarter sessions of a recorder 
had stated a special cas3, the court would decide on certiorari whether the 
facts stated in the case amount to the oft'ence charged, even though the 
certiorari were taken away. B. v. Dickenson, 7 E. & B. 831 ; though see Reg. 
V. Chantrell, L. R. 10 Q. B. 587, 44 L. J. Q. B. 1G7. And now, by s. 40 of the 
Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49), it is provided that " a 
writ of certiorari or other writ shall not be required for the removal of any 
conviction, order, or other determination, in relation to which a special case 
is stated by a court of general or quarter sessions for obtaining the judgment 
or determination of a supei-ior court."] 

But a question has occasionally arisen whether, in cases where the justices 
have proceeded icithant jurisdiction, and have nevertheless stated upon the 
face of the conviction matter showing a jurisdiction, it be competent to the 
defendant to prove the want of jurisdiction by affidavit. It certainly appears 
desirable that the court should liave the power to entertain the question of 
jurisdiction. Some cases might easily be suggested, in which not only great 
private but great public inconvenience might arise from leaving an invalid 
order or conviction unreversed, and great injustice might be caused by allow- 
ing justices out of or in sessions, by making their order or conviction good 
upon the face of it, to give themselves a jurisdiction over matters not en- 
trusted to them by law. 

Whether a mandamus would lie in such a case to oblige them to make a 
correct statement, is a question which the Queen's Bench [Division] would, at 
least in the majority of instances, probably answer in the negative; for 
though it is true tliat in some cases, where there has been a clear omission of 
some material ingredient in a conviction, the court has bj' mandamus ordered 
it to be supplied; as in Be Bix, 4 D. & R. 352; B. v. Marsh, 4 D. & R. 2G0; 
B. V. Warneford, 5 D. & R. 489 ; /?. v. Allen, 5 D. & R. 490; yet this has been 
done after the order or conviction had been returned upon a certiorari ; and 
it either clearly appeared, or was shown by affidavit, to the court, that the 
whole or some material portions of the evidence had been omitted ; (see the 
observations of the court on these cases in B. v. Wilson, 1 A. & E. 627;) and 
the mandamus went not to compel the court below to insert a particular thing, 
or raise a particular question, upon their return, but merely to oblige them to 
set out an integral part of the case, which must have existed, and had been 
omitted. I say must have existed, because in B. v. Wilson, where evidence 
might or might not have been acted on, the court would not send the manda- 
mus. 

And there are cases in which the court has refused to interfere by mandamus 
to compel the courts below to raise a particular question ; for instance, B. v. 
Hewes, 3 A. & E. 725, the jury had returned a verdict, gnllty by mischance; 
the chairman of the sessions told them they must find a general verdict ; and 
they found a verdict of guilty, and recommended to mercy on the ground that 



CREPPS V. DURDEN ET ALIOS. 1001 

the act was not done with a malicious intent. The motion was for a man- 
damns to set the clerk of the peace's minute right according to the facts, in 
order that a writ of error might be sued out. Tlie rule was discharged. Mr. 
Justice Patteson said, " The case of a mandamus to enter continuances and 
hear is not like this. There the justices are ordered merely to hear an appeal, 
and to enter continuances because those are necessary in order to enable them 
to hear; so, in the present case, if it wei'e necessary for the defendant to 
have a record made up, and the officer refused to do it, the party having a 
right to avail himself of the record might apply for a mandamus, as in E. v. 
Justices of Middlesex, 5 B. & Ad. 1113. I have always understood that this 
court might send a mandamus to an inferior court to do its duty in general 
terms, but not to do a particular thincj , as to make an alteration here or there in 
the clerk of the peace's, minutes; " see R. v. Justices of Middlesex, 9 A. & E. 
546, judgment of Littledale and Coleridge, JJ., and per curiam in R. v. Lords 
of the Treasury, 10 A. & E. 179 ; R. v. Lords of the Treasury, 10 A. & E. 374, 
axidper Lord Denham in B. v. Eastern Coutities Railway, 10 A. & E. 547 ; R. v. 
Justices of Buckinghamshire, 3 Q. B. 800 ; [i?. v. Justices of Bristol, 18 Jur. 426, 
note a; R. v. Dayman, 7 E. & B. 672]. 

Supposing that the court below caunot be compelled Ijy mandamus to 
show the defect of jurisdiction upon the record, the next question is, will 
the court above allow evidence of such defect of jurisdiction to be 'aid 
before it by waj' of affidavit, on the record being brought before it by a writ 
of certiorari ? 

In R.Y. St. James's, Westminster, 2 A. & E. 241, it was remarked by Mr. Jus- 
tice Taunton (a judge whose obiter dicta are always worthy of the greatest 
attention) that this has been constantly done. In R. v. Inhabitants of Great 
Marloio, 2 East, 244, an appointraeut of overseers, good on the face of it, was 
allowed to be questioned by affidavit on the ground of a defect of jurisdic- 
tion, and was finally quashed. The court in that case had taken time to con- 
sider as to the practice with regard to receiving the affidavit ; and Mr. Justice 
Lawrence mentioned several similar cases in which that course had been pur- 
sued. A similar course seems to have been pursued with an order of the 
quarter sessions in B. v. Justices of the West Biding of Yorkshire, 5 T. R. 629. 
In the case of B. v. Justices of Cheshire, 1 P. & D. 93, 8 A. &. E. 400, the ques- 
tion was a good deal discussed; and it seems to have been admitted that 
affidavits might be looked at for the purpose of showing a defect of jurisdic- 
tion. " It cannot be disputed," said Mr. Justice Coleridge in that case, " that 
there are many cases in which affidavits may be looked at in order to ascer- 
tain whether there was jurisdiction or not ; for suppose an order made, which 
was good on the face of it, but which was not made by a magistrate, it is 
clear that this fact may be shown to the court." Accord. B. v. Sheffield and 
Manchester Bail. Co. [11 A. & E. 194] ; and it seems to be settled by the later 
cases that a defect of jurisdiction may be shown by affidavit, though the pro- 
ceeding is so drawn up as to appear valid on the face of it. [See the judg- 
ments in] B. V. Bolton, 1 Q. B. 66; ^The Whitbury, &c., Union Case, 4 E. & B. 
314 ; In re Penny, 7 E. & B. 660, where on certiorari an inquisition under the 
Lands Clauses Act, 1845, was quashed upon affidavits showing that the jury 
in assessing the damages took into account an item which was not a subject 
for compensation within the act (Mortimer v. S. Wales Rail. Co., E. & E. 375) ; 
In re IIo2)kins, E. B. & E. 100; R. v. The Recorder of Cambridge, 8 E. & B. 637; 
B. V. j\fetropolitan Rail. Co., 32 L. J. Q. B. 367; Bead v. Victoria Station and 
Pimlico Bail. Co., 32 L. J. Exch. 167] ; and R. v. Cheltenham Paving Commis- 



1002 CEEPrs V. DUEDE^! ET ALIOS. 

sioners, 1 Q. B. 407, where the defect consisted in the presence on the bench 
of interested parties as justices. 

On tlie other liand, nothinsj; can be more common tlian to And it laid down 
that a conviction or ortlor is conclusive of the matter stated in it for the pur- 
pose of showing a jurisdiction. [See the judgment of Mr. Justice Patteson 
In re Clarke, 2 Q. B. ()3i ; see also Colonial Bank of Aiistralasia v. Willan, L. 
R. 5 P. C. 417 ; 43 L. J. P. C. 39. 

Possibly the distinction may be between cases in which the conviction or 
order is made by persons who are admitted to constitute a legal court, and 
who have stated facts which, on information being laid, or a case coming 
before them, would be matter to be proved, ami adjudicated upon by them, and 
cases in which the ol)jection is, that they are not a court at all, because not 
in fact magistrates, or because interested, because they sat out of the limit of 
their jurisiliction, or for some other reason, striking at their existence as a 
court, so that the objection is not that the statement of a court is erroneous, 
but that the source of the statement is not a court at all. See the judgment 
of Bramwell, B., In re Baker, 2 H. & N. 219. But it may well be doubted 
whether this distinction aflbrds a sufficient test. 

It should seem that the Queen's Bench Division will on certiorari entertain 
affidavits where the conviction is good on the face of it, — not only to show 
that preliminary matters re<iuired to give the justice jurisdiction to enter 
upon an in(|uiry into the merits of the case, were wanting, see A', v. Bolton, 
1 Q. B. Gij; A', v. Badger, 6 E. & B. 13; A', v. Wood, 5 E. & B. 49; A', v. 
Justices of Totness, 2 L. M. & P. 230; the judgments in B. v. St. Olave's 
District Board, 8 E. & B. 529; and In re Smith, 3 II. & N. 227 — or that 
circumstances appeared in the course of the inquiry which ousted his juris- 
diction, R. V. Nunnetey, E. B. & E. 852; R. v. Cridland, 7 E. & B. 352; A', v. 
Backhouse, 30 L. J. M. C 118; R. v. Stimpson, 4 B. & S. 301 — but also that 
there was no evidence to prove some fact, the existence of whicli was essen- 
tial to establish the offence chai'ged. 

It must be remembered tliat before 11 & 12 Vict. c. 43, the evidence must 
have been set forth in the conviction, and if there was none to support some 
material part of the information, the conviction Avould have been quashed, 
R. V. Smith, 8 T. R. ^S8. The alteration by the statute of the forms of 
conviction, which dispenses with the necessity of setting forth the evidence, 
plainly does not narrow the jurisdiction of the Court of Queen's Bench 
to quash writs void for matter of substance ; and in order to exercise this 
jurisdiction in respect of convictions bad for want of evidence, but drawn 
up according to the general form given by the statute, it is necessary that the 
court should receive affidavits. See the judgments in Bailey's Case, 3 E. & B. 
607, where affidavits w'ere admitted for the purpose of impeaching a conviction 
under the Masters' and Servants' Act, 4 Geo. 4, c. 34, by showing that tliere 
was no evidence before the justices from which the relation of master and 
servant could be inferred. 

" Affidavits," said Pollock, C. B., In re Baker, 2 H. & N. 219, 223, " may be 
used for the purpose of showing that there was no evidence at all, but 
if there is conflicting evidence, it is for the justice to decide upon it." (l!ut 
see Stanhope v. Thorsby, L. R. 1 C. P. 423, 35 L. J. M. C. 182.) 

In In re Thompson, 6 H. & N. 193, 30 L. J. M. C. 19 S. C, where the pris- 
oner had been charged with unlawfully assaulting and abusing Susannah H., 
and it was plain upon the evidence that if any offence, a rape or assault with 
intent to ravish had been committed, yet the justices convicted the prisoner 



CREPPS Y. DURDEN ET ALIOS. 1003 

of a common assault, it appears to have been the opinion of Pollock, C. B., 
and Wilde, B., that the conviction was bad, because the justices could not 
have believed that only a common assault had been committed. But the 
court was divided, and Williamsoii v. Button, 3 B. & S. 821, may be consid- 
ered a decision contrary to that opinion. 

As a general rule the jurisdiction of justices to convict summarily ceases 
as soon as a claim of title in liimself , Cornwell v. Sanders, 3 B. & S. 206 
(though only colourable, provided the right claimed be one known to the 
law), is bona fide made by the party against whom the proceeding is insti- 
tuted, R. v. Cridland, 7 E. & B. 853; Hudson v. McRae; 4 B. & S. 585; whei'e 
the claim was made bona fide, but to a right impossible in law, and a convic- 
tion was upheld, followed in Foidger v. Steadman, L. R. 8 Q. B. 65, (disap- 
proving of Jones V. Taylor, 1 E. & E. 20), and also in Hnrgreaves v. Diddams, 
L. R. 10 Q. B. 582. See also Leatt v. Vine, 30 L. J. M. C. 207; Cornwell v. 
Sanders, 3 B. & S. 206, and Watkins v. Major, L. R. 10 C. P. 662, where a 
distinction is drawn between conviction under the statutes for the protection 
of game and the ordin;„ry case of a conviction for which it is said to be 
necessary to prove a mens rea. The question whether there be such a bona 
fide claim of right is a collateral question for the justices to decide, but the 
superior court on. affidavit will review their decision. See R. v. Stimpson, 4 
B. & S. 301, where it was held that there was not, Paley \. Birch, 16 L. T. X. 
S. 410, where it was held that there v:as, evidence to justify the inferior court 
in finding that the claim was not bona fide set up. See also Williams v. 
Adams, 2 B. & S. 312 ; Legge v. Pardoe, 30 L. J. M. C. 108 ; Reg. v. Sandford, 
30 L. T. N. S. 601 ; Lovesy v. Stallard, Id. 792. 

This rule as to the cesser of the jurisdiction to convict summarilv on a 
bona fide claim of right being set up is founded not on statute but on 
general principles of law. See 'per Blackburn, J., in Cornwell v. Sanders, ubi 
sup., per Cromptou, J., in Reg. v. Stimj)son, ubi sup. 

There ai-e other similar cases in which restrictions are placed on the 
justices' jurisdiction by statute. 

In R. V. Nnnneley, E. B. & E. 852, an order, made by justices for payment 
of a chui'ch-rate, uuder 53 Geo. 3, c. 127, which provides that if the validity 
of the rate be disputed, and the party disputing give notice to the justices, 
they are to forbear giving judgment thereon, was quashed on affidavits 
showing that a reasonable objection had been made to the validity of the rate, 
notwithstanding which the justices proceeded with the case, holding, ground- 
lessly, that the objection was not made bona fide. Erie, J., said: " Without 
coming to the much disputed point whether a fact which is in doubt is one 
which afi'ects the jurisdiction in the first instance, or one upon which magis- 
trates are to judge, I think this case is clear enough. The jurisdiction of the 
justices is to decide whether the rate is made and demanded. But then there 
is a collateral point on which the jurisdiction depends, that is, whether the 
validity of the rate is disputed. If it is, the justices are to hold their hands. 
That is collateral to the merits ; and a matter on which the jurisdiction 
depends. And as laid down in the judgment of Bunbury v. Fuller, 9 Exch. 
140, ' it is a general rule that no court of limited jurisdiction can give itself 
■jurisdiction by a wrong decision on a point collateral to the merits of the 
case upon which the limit to its jurisdiction depends.' Then to take the 
simplest case : Suj^pose a judge Avith jurisdiction limited to a particular 
hundred, and a matter is brought before him as having arisen within it, but 
the party charged contends that it arose in another hundred, this is clearly a 



1004 CREPPS V. DURDEN ET ALIOS. 

collateral matter imlependent of the merits ; on its being presented, the judge 
must not immediately forbear to proceed, but must inquire into its truth or 
falsehood, and for the time decide it, and either proceed or not on the prin- 
cipal subject-matter according as he finds on that point; but this decision 
must be open to question, and if he has improperly either foreborne or 
proceeded on the main question in consequence of an en*or, on this the Court 
of Queen's Bench will issue its mandamus or prohil)ition to correct his 
mistake." See further Ex parte ^fannering , 31 L. J. M. C 153. 

Where a statute, 24 & 25 "Vict. c. 07, s. 52, enacted that notliing therein 
contained should extend to any ease where the party acted under a fair and 
rcasonahlo supposition that he had a right to do the act complained of " and 
the justices found that the appellant did not act under a fair and reasonable 
supposition and convicted him, the court upiield tlie conviction, liolding that 
the above express provision overrode the proviso usually implied as to sum- 
mary convictions, that a 6o«S fide claim of right is sufficient to oust the 
jurisdiction of the justices." White v. Feast, L. R. 7 Q. B. 353. See this 
case, distinguished in Denmj v. Thvjaites, 2 Ex. D. 21, 40 L. J. Ex. 588, 4G L. 
J. M. C. 141. 

By 24 & 25 Vict. c. 100, s. 46, it is provided that justices " shall not hear 
and determine any case of assault in which any question shall arise as to the 
title to land." Under this section it was held that justices are prohibited 
where title is claimed fi'om going into the (luestion of excess of violence and 
convicting summarily upon that. Itcfj. v. Pearson, L. R. 5 Q. B. 237, 39 L. J. 
M. C. 76.] 

Assuming that a defect of jurisdiction may in these cases be shown by 
affidavit, every case, or almost every case of a defect of jurisdiction in the 
convicting magistrate or magistrates would be reviewable by certiorari ; for 
though it is now usual for the statute creating the offence to contain a clause 
taking away the certiorari, yet sucli clauses do not, generally speaking, apply 
to cases where there was no jurisdiction to convict, such cases not falling 
within the act of parliament at all, R. v. Justices of Somersetshire, 5 B. & C. 
816; li. v. Justices of the West Riding of Yorkshire, 5 T. R. 629 ; R. v. Inhabi- 
tants of Great Marlow, 2 East, 244; [R. v. Wood, 5 E. & B. 49; S. C. nom. R. 
V. Rose, 24 L. J. M. C. 130; Colonial Bank of Australasia v. Willan, L. R. 5 P. 
C. 417, 43 L. J. P. C. 39 ; Ex parte Bradlaugh, 3 Q. B. D. 509] ; nor do they 
apply to cases where the conviction has been obtained by fraud, as when a 
maltster had by collusion, and for the purpose of exonerating himself from 
penalties, under 7 & 8 Geo. 4, c. 53, procured the conviction of his servant, R. 
V. Gillyard, 12 Q. B. 527; \_Colonial Bank of Australasia v. Willan, uhi sup."]. 

But there is a distinction between cases of a ivant of jin-isdiction and an 
irregularity in exercising it : in the former case the certiorari lies notwith- 
standing the private clause, in the latter it is taken away. R. v. Bristol and 
Exeter Rail. Co., 1 P. & D. 170, note, 11 A. & E. 202; R. v. Sheffield and 
Manchester Rail. Co., 11 A. & E. 194; \_R. v. Justices of Warwickshire, 6 E. & 
B. 887; ia^o?* V. ^Z«nd, 8 Irish C. L. R. 115]. In the [first of these] cases. 
Indeed, the court went to an extent which seemed likely very much to confine 
the applicability of the writ of certiorari ; they threw out the opinion that in 
cases where the proceeding was merely irregular, the clause taking away the 
certiorari applied, and that where it was void there was no occasion for it, 
and that the court would not grant it. However, in the [second] case, they 
appear disposed to repudiate the application of this dilemma; at all events, 
in cases in which the proceeding sought to be removed is not void on tlie face 



CEEPPS Y. DTEDEN ET ALIOS. 1005 

of it, but is impugned by affidavit. And in i?. v. Cheltenham Paving Com- 
missioners, 1 Q. B. 467, it was distinctly lield tliat in a case of malversation 
such a clause would not operate. 

Though it has been endeavoured to show that the Queen's Bench has a 
right in case of defect of jurisdiction to entertain the objection founded upon 
such defect on affidavit, yet it must be observed that the court is not bound 
to do so upon certiorari; for [except where the application is by the party 
grieved, Beg. v. Justices of Surrey, L. E. 5 Q. B. 466, 39 L. J. M. C. 145,] a 
certiorari, as has already been pointed out, is a Avrit not of I'ight, but in the 
discretion of the court to grant or to refuse (but see the judgment in Syrnonds 
V. Dimsdale, 2 Exch. 533). And cases may occur in which, though there may 
have been a defect of jurisdiction, still the court may conceive that the 
interests of justice wonld be rather impeded than advanced by any summary 
interference on their part. 

In R. V. Justices of Cambridgeshire, 4 B. & Ad. 122, Mr. Justice Patteson 
said, " With regard to the objections in point of jurisdiction, I protest 
against its being understood that we can on every occasion look into extrinsic 
matter on motions to bring up orders by certioran." " We must be cautious," 
said Mr. Justice Coleridge, "not to exceed our jurisdiction; and when we 
find there is a court of appeal below, to which the matter brought before us 
on affidavit might have been carried, I think we are confined to objections 
appearing on the face of the order." 

I do not understand these observations of the learned judges as importing 
that there are cases of a total defect of jurisdiction which the Court of 
Queen's Bench has no power to entertain on affidavit, but that the leaning of 
the court is against doing so, except where public justice would be thereby 
furthered. See B. v. Justices of Denbighshire, 1 B. & Ad. 616. See B. v. 
South Holland Drainage Committeemen, 1 P. & D. 79 ; B. v. Manchester and 
Leeds Rail. Co., 1 P. & D. 164. And that its disinclination to interfere is 
strong and uniform in cases where the legislature has provided another com- 
petent tribunal of appeal to which the question might be* carried. See B. v. 
Justices of Middlesex, 9 A. & E. 548, last point. 

In Exparte Lord Gifford, Carrow's New Sess. Cas. 490, Mr. Justice Williams 
refused a certiorari on the ground that if the recognisance sought to be re- 
moved were void, the applicant might treat it accordingly. It has not, how- 
ever, been usual to refuse the writ for this reason, which since the 11 &, 12 
Vict. c. 44, s. 2, prohibiting actions against justices, &c., for anything done 
under convictions or orders made without jurisdiction until they have been 
quashed, would scarcely be given in answer to an application to bring up a 
conviction or order to have them quashed for a defect of jurisdiction. 

In R. V. Justices of Cambridgeshire, 3 B. & A. 187, Lord Denman, in his judg- 
ment, suggested another ground on which an application upon affidavit might 
possibly be entertained. "I do not say," said his lordship, "that even 07i 
certiorari the court would not set aside an order if manifest fraud were shown. 
That may be so. In R. v. Justices of Somersetshire, 5 B. & C. 816, where a 
certioran was applied for to remove an appointment of overseers, on a sug- 
gestion of corrupt motives in the appointing magistrates, the court refused a 
rule, saying that the parties complaining might appeal to the sessions, or 
move for a criminal information. Notwithstanding that refusal, however, I 
do not say that if corruption were clearly made out, the court would not, 
upon an application like this, declare the order invalidated by the fraud." 
This observation of his lordship is consistent with the principle laid down by 



1006 CRErPS V. DURDEN ET ALIOS 

De Grey, C. J., in the Duchess of Kingston's Case, post, volmne 2, where his 
lordship observed that " fraud is an extrinsic collateral ai-t which vitiates 
the most solemn proceedings of courts of justice." Lord Coke says, " it 
avoids all judicial acts, ecclesiastical or temporal." [See Sheddcn v. Patrick, 
1 ^lacq. H. of Lords C. 535; and the nuHitj' of the judgment or decree ob- 
tained by it, though the judgment or decree has not been set aside or reversed, 
may be alleged in a collateral proceeding, see the opinion of Willes, J., in B. 
V. Saddler's Co., 3 EL & El. 42, 10 H. of L. Cas. 404, 32 L. J. Q. B. 347]. And 
see R. V. GiUyard, [12 Q. B. 527,] where fraud being shown, a conviction ob- 
tained by means thereof was brought up by certiorari and quashed, [and 
Colonial Bank of Australasia v. Willan, L. R. 5 P. C. 417, 43 L. J. P. C. 39]. 

However, where the justice or justices had jurisdiction, the court will not 
grant a certiorari to remove the conviction or order upon a suggestion made 
by allldavit that they have exercised the jurisdiction wrongly : R. v. Justices 
of Cheshire, 1 P. & D. 88, 8 A. & E. 398; R. v. St. James's, Westminster, 2 A. 
& E. 241 : for that would be to substitute the court al)ovc for the tribunal to 
which the statute has committed the inquiry. 

[So, in effect, justices were often obliged to determine Anally difficult points 
of law on questions of great general importance, without having sufficient 
materials, or time, for the purpose, and they could not obtain for their guid- 
ance any assistance by way of opinion, or decision, from the superior courts, 
see R. V. Dayman, 7 E. & B. G72 ; R. v. Payntcr, Ibid. 328. This defect in the 
law has been remedied by the Justices' Special Case Act, 20 & 21 Vict. c. 43, 
by wliich magistrates are enabled, and may be compelled, to state cases for 
the opinion of any of the superior courts, and also by the Summary Jurisdic- 
tion Act, 1879, sect. 33, whicli gives a further power of stating a case for the 
opinion of the High Court of Justice. 

The 2nd section of 20 & 21 Vict, c 43 provides that after the hearing 
{Bradshaw v. Vauyhton, 30 L. J. C. P. 93) and determination {Davys v. Doug- 
las, 4 H. & X. 183; S. C. 28 L. J. M. C. 193) by a justice or justices of any 
information or complaint which they havepower to determine summanly ) Town- 
send v. Reed, 10 C. B. N. S. 308; Ex parte May, 2 B. & S. 426, 31 L. J. M. C. 
161; Luton Local Board of Health v. Davis, 2*) L. J. M. C. 173; Diss Urban 
Sanitary Authority \. Aldrich,2 Q. B. D. 179,46 L. J. M. C. 183; Sandgate 
Loccd Board v. Pledge, 14 Q. B. 1). 730 ; either party to the proceeding may, 
if dissatisfied with the determination (Davys v. Douglas^ , as erroneous.in point 
oflaio {Newman, app.. Baker, i-esp., 8 C B. N. S. 200; Taylor v. Smart, 31 L. 
J. M. C. 252; Uargreaves v. Taylor, 33 L. J. M. C. Ill; Hobhs v. Dance, L. R. 
9 C. P. 30) , appl}^ in writing within three days {Mayer v. Harding, L. R. 2 Q. 

B. 410), to the justice or justices, to state and sign a case, setting forth the 
facts, and the grounds of the determination, for the opinion of any one of 
the superior courts of law. 

Within three days after receiving the case the appellant is to transmit it 
{Banks v. Goodwin, 3 B. & S. 548, 32 L. J. Q. B. 87; Pennell v. Uxhridge, 31 
L. J. M. C. 92 ; Local Board, &r., of Gloticester v. Gardner, 32 L. J. M. C. 66) to 
the court named in his application, first giving {Ashdown v. Curtis, 31 L. J. 
M. C. 216) written notice of the appeal (Crick v. Ockmand, Q. B. 17 Jan. 
1863), with a copy of the case so written and signed, to the other party. 

(As to these conditions to the riglit of appeal, see Peacock v. llie Queen, 4 

C. B. N. S. 264; Morgan v. Edwards, 5 H. & X. 415; Syred v. Carruthers, E. 
B. & E. 469 ; Woodhouse v. Wood, 29 L. J. M. C. 149 ; G. N. R. v. Inett, 2 Q. 
B. D. 284, 46 L. J. M. C. 237, 46 L. J. Q. B. 749. ) 



CREl'i'S V. DUHDKN ET ALIOS. 1007 

By sect. 3 the appellant on applying for the case {Chapman v. Robinson, E. 
& E. 25 ; Stanhope v. Thorsby, L. R. 1 C. P. 423, 35 L. J. M. C. 182) must enter 
into a recognizance {Stanhope Thorsbij, ubi. sup.) and pay certain fees, and 
then upon a condition being added to the recognizance for his appearance 
before the justices to abide by their judgment if unreversed, he will, if in 
custody, be entitled to his liberty. 

By sect. 4 the justices, if of opinion that the application is merely frivolous 
(and provided it was not directed by the attorney-general) , may refuse to 
state the case; but then by sect. 5, the Court of Queen's Bench (now repre- 
sented by the Queen's Bench Division of the High Court of Justice, under 
sect. 34 of the Judicature Act, 1873) , may grant a rule calling upon them and 
the respondent to show cause why thej' should not do so, and may make the 
rule absolute, or discharge it Avith or without costs. 

By sect. 6 the court to which the case is transmitted may hear and deter- 
mine the questions of law arising upon it {Governors, &c., of St. James's, West- 
minster V. Battersea, Overseers of, C. P. 6 Jur. N. S. 100; Jones v. Taylor, 1 
E. & E. 20, even on points not taken before the justices, Knight v, Halliwell, 
L. R. 9 Q. B. 412), and reverse, affirm, or amend the determination, or remit 
the matter to the justices with the opinion of the court, or may make such 
other order in relation to the matter {Shackell West, 29 L. J. M. C. 45), and 
such orders as to costs {Budenberg \. Roberts, L. R. 2 C. P. 292; Garnett v. 
Backhouse, L. R. 3 Q. B. 699), as to the court shall seem fit; and all such 
orders are final and conclusive on all parties. The same section provides that 
the justices are not to be liable for any costs of the appeal. (As to the costs 
of the appeal, see Venables v. Jlardman, E. B. & E. 79.) Costs are granted 
even though the case be sti'uck out on account of the failure of the appellant 
to transmit the case within three days, G. N. B. v. Inett, 2 Q. B. D. 284, 46 L. 
J. M. C. 237, disapproving Peacock v. The Queen, 4 C. B. N. S. 264; and see 
Crowther v. Boult, 13 Q. B. D. 680. 

By sect. 7 the case maj' be remitted to the justices for amendment, Christie 
v. Guardians of St. Luke's, 8 E. & B. 992; Yorkshire Tire and Axle Co. v. 
Rotherham, &c., 4 C. B. N. S. 362; Rider v. Wood, 29 L. J. M. C. 1. 

By sect. 8 the powers given to the superior court may be exercised by a 
judge of the court sitting in chambers in tei'm time or in vacation. Sect. 9 
authorises the justices to enforce au}- conviction or order affirmed, amended, 
or made by the superior court, and exempts them from liability by reason of 
any defect in such conviction or order; see Waller v. G. W. Rail. Co., 29 L. 
J. M. C. 107. By sect. 10 no certiorari or other writ is I'equired for the re- 
moval of the conviction, order or determination, in reference to which the 
case is stated. Sect. 11 enables the superior courts to make rules for the 
practice and proceedings under the act. Sect. 13 relates to recognizances 
taken under the act, and sect. 14 deprives parties who appeal under the act, 
of their appeal to quarter sessions. 

The Court of Common Pleas have held that the act does not apply to a 
decision of justices called in to decide a dispute under the Friendly Societies 
Acts, it having been enacted by 18 & 19 Vict. c. 63, s. 40, that such a decision 
shall be binding and conclusive on all parties. See Callaghan v. Dolwin, L. R. 
4 C. P. 288, 38 L. J. M. C. 110, overruling Beg. v. Lambarde, L. R. 1 Q. B. 388. 

The fact of another appeal being given by statute does not exclude this 
act, Poioer v. Wigmore, L. R. 7 C P. 386. 

By the Summary Jurisdiction Act, 1879, 42 & 43 Vict. c. 49, s. 3,;, it is 
further provided that " (1) Any person aggrieved who desires to question a 



1008 CREPPS V. BURDEN ET ALIOS. 

conviction, order, determination, or other proceeding (Sandgate Local Board v. 
Pledge, 14 Q. B. D. 730) of a court of summaiy jurisdiction on tlie ground 
that it is erroneous in point of law, or is in excess of the jurisdiction, may 
apply to the court {Ex parte Curtis, 3 Q. B. D. 13) to state a special case set- 
ting forth the facts of the case and the grounds on which tlie proceeding is 
questioned, and if tlie court decline to state tlie case, may apply to tlie High 
Court of Justice for an order requiring the case to be stated. (2) The appli- 
cation sliall be made and the case stated witliin sucli time and in such manner 
as raaj' be from time to time directed by rules imder this act, and tlie case 
shall be lieard and determined in manner prescribed by rules of court made in 
pursuance of ' The Supreme Court of Judicature Act, 1875,' and the acts 
amending the same; and subject as aforesaid, the act of " 20 & 21 Vict. c. 43, 
above stated, "shall, so far as it is applicable, apply to any special case 
stated under this si 'ion, as if it were stated under that act. 

" Provided that nothing in this section shall prejudice the statement of any 
special case under tliat act." 

By Kule 18 of the Summary Jurisdiction Kulcs. 188(5, made in pursuance of 
the above section, " An application to a court of summary jurisdiction" under 
that section " to state a special case shall be made in writing, and a copy left 
witli the clerk of the Court, and may be made at any time witliin seven clear 
days from the date of the proceeding to be questioned, and the case shall be 
stated within three calendar months after the date of the application, and 
after the recognizance sliall have been entered into." (See the rules set out 
in extensu in the Weekly Notes, October 9th, 1886.)] 



JURISDICTION AND ATTACKING JUDGMENTS COH-ATERALLY. 

While the judgments of any court, whether of superior or of 
inferior jurisdiction, may, under certain circumstances, be at- 
tacked collaterally, for want of jurisdiction on the part of the 
court rendering the judgment, nevertheless the judgments of 
superior courts stand upon a very different footing from the 
judgments of inferior courts in this regard. 

Although the judgments of courts, whether of superior or in- 
ferior jurisdiction, import, for most purposes, absolute verity, 
and are conclusive between the parties as to the points ad- 
judicated, this is true subject to the condition that the court 
assuming to act had jurisdiction not only of the subject-matter 
of the controversy, but also of the persons of the parties. 

I. 

The Distinction between Courts of Superior and those of Inferior 

Jurisdiction. 

It is not easy to state any general rule by which courts of 
inferior may be distinguished from those of superior jurisdic- 



CREPPS V. DURDEN ET ALIOS. 1009 

tion. The distinction is often stated to be that between courts 
of record and those not of record ; and the rules conform sul> 
stantially to this view. But the terms "inferior" and "supe- 
rior " are more commonly used in the cases. 

The terms " limited " and " general " are often used to dis- 
tinguish the kind of jurisdiction of certain courts. Indeed, the 
terms are not infrequently used interchangeably with the terms 
" inferior " and " superior." In this use the terms are by no 
means accurately applied; e.</., as we shall see, the United 
States Circuit and District Courts are of limited though of 
superior jurisdiction. The terms are also productive of confu- 
sion in this, that even superior courts of a general jurisdiction 
are, when exercising their powers for some special and limited 
statutory purpose, in the same, or nearly the same, position as 
to supporting presumptions, &c., as inferior courts. It will not 
be attempted to formulate in this note a general rule, or to go 
into any full discussion regarding the distinctions. The dis- 
tinction which is perhaps the most obvious of all is that be- 
tween courts which are of record and those which are not. Gf. 
Turner v. Malone, 24 S. C. 398 ; Epping v. Robinson, 21 Fla. 36, 
and many cases. This, however, fails to meet all the cases. In 
Texas the distinction has been drawn as between courts the 
powers of which are established by the Constitution of the 
State, and those which owe their existence to special acts ; 
Williams v. Ball, 52 Tex. 603 ; Holmes v. Buckner, 67 Tex. 
107 ; these courts are also courts of record. 

The following rule of distinction is stated in Freeman on 
Judgments (3d ed.), section 122 : " The next matter to be 
ascertained is whether the judgment was rendered by a court 
of general or of special jurisdiction. There is no well-defined 
test by which to determine in all cases whether a court belongs 
to the one class or to the other. But all courts invested with 
a general common-law jurisdiction, in law or in equity, are, 
when exercising such jurisdiction, projjerly included in the first 
class ; while all such courts as are erected upon such principles 
that their judgments must be disregarded until proceedings 
conferring jurisdiction are shown, belong to the second class. 
. . . The use of the words ' superior ' and ' inferior,' or ' limited ' 
and ' general,' however apt they may have once been, are less 
so at this time and place ; and their duties, in view of our 
system and mode of procedure, would be better performed by 



1010 CREPPS V. BURDEN ET ALIOS. 

the terms ' courts of record,' and ' courts and tribunals not of 
record." '' 

We have retained the terms "superior" and "inferior," 
simply because the terms seem to be of most common use 
in the books and cases. Avoiding discussion of the theo- 
retical distinctions, the following decisions have been 
reached : — 

Beside state supreme courts and other courts of a similar 
character, when they act under general powers, the following 
have been declared to be superior courts : — 

United States circuit and district courts. — It is now Well 
settled that these courts, though of limited, are also of superior 
jurisdiction. See language in Turner v. Bank of North Amer- 
ica, 4 Dall. 8; Mason v. Tuttle, 75 Va. 105 (Limited Act). 
See Pearce v. Winter Iron Works, 32 Ala. 68 ; Chemung Canal 
Bank v. Judson, 4 Seld. 254 ; Kempes l^essee v. Kennedy, 5 Cr. 
185; Baldwin v. Hale, 17 Johns. 272 ; Wood v. Mann, 1 Sumn. 
580 ; Griswold v. Sedgwick, 1 Wend. 131 ; Skillerns Ex'rs v. 
Mays Ex'rs, 6 Cr. 267 ; Ux parte Watkins, 3 Pet. 193 ; Ken- 
nedy V. Georgia Bank, 10 How. U. S. 586 ; McCormick v. SuUi- 
vant, 10 Wheat. 192; Wright v. Marsh, 2 Greene (la.) 94; 
Turrell v. Warren, 25 Minn. 9; Williamson's Case, 26 Pa. St. 9. 
But see Boisse v. Dickson, 31 La. Ann. 741 ; Morse v. Presbey, 
25 N. H. 299. These latter cases mainly depend upon the fact 
that the court rendering the judgment was acting under special 
and limited acts, as, for instance, the bankrupt laws. 

County courts. — As a rule, it is held that the county courts 
in the various states, where they are courts of record, are 
courts of general jurisdiction ; Propst v. Meadows, 13 111. 157. 
The English county courts established, and their powers de- 
fined by special act of Parliament, are within the same rule ; 
Levy V. Moylan, 10 C. B. 189 ; Houlden v. Smith, 19 L. J. 
N. S. Q. B. 170. County courts in Florida are courts of record ; 
Epping V. Robinson, 21 Fla. 36. County courts of common 
pleas in Tennessee are courts of general jurisdiction and are 
courts of record ; Pope v. Harrison, 16 Lea (Tenn.) 82. See, 
also, Bannard v. Bannard, 119 111. 92 ; Lessee of Grignon v. 
Astor, 2 How. 319. 

The following courts have been generally held to be, in the 
particular states where they are held, of inferior jurisdic- 
tion : — 



CREPPS V. DUKDEX ET ALIOS. 1011 

Courts of justices of the peace. — See for dicta and decisiou.s : 
Mudge V. Yaples, 58 Mich. 307; White v. Morse, 139 Mass. 
162 ; People v. Jarrett, 7 111. App. 566 ; Knell v. Briscoe, 49 
Md. 414 ; Londegan v. Hammer, 30 la. 508 at p. 512 ; Morton 
V. Crane, 39 Mich. 526. See Tyler lu Alford, 38 Me. 530; 
Tompkins v. Sands, 8 Wend. 462; Armstrong v. Campbell, 1 
Brev. Pt. II. p. 259 ; McClure v. Hill, 36 Ark. 268 ; Wise v. 
Withers, 3 Cr. 331 ; Clark v. Holmes, 1 Doug. (Mich.) 390 ; 
Piper V. Pearson, 2 Gray 120; Clark v. May, 2 Gray 410; 
Sullivan v. Jones, 2 Gray 570 ; Bigelow v. Stearns, 19 Johns. 
39 ; Estopinal v. Peyroux, 37 La. Ann. 477 ; Wright v. Rouss, 
18 Neb. 234; Little v. Moore, 1 South. 74; Cunningham v. 
Pacific Ry., 61 Mo. 33 ; Evans v. Pierce, 2 Scamm. 468 ; Par- 
don V. Divine, 23 111. 572 ; Anderson v. Miller, 4 Blackf. 417 ; 
Wood V. Wood, 78 Ky. 624 ; Clark v. Holmes, 1 Doug. 390 ; 
Camp V. Wood, 10 Watts 118 ; Bersh v. Schneider, 27 Mo. 101 ; 
Thomas v. Robinson, 3 Wend. 267. It was held in Hofheimer 
V. Losen, 24 Mo. App. 652, that where a judgment of a justice 
of the peace of Illinois was offered in a Missouri court, the law 
giving the justice jurisdiction must be proved. 

The contrary view has been taken, however, in some states, 
as a rule, owing to the fact that the courts were of record. 
In some of the cases the courts are not of record, but their 
judgments are viewed w^ith the same supporting presump- 
tions ; Billings V. Russell, 23 Pa. St. 189; Clark v. M'Com- 
man, 7 W. & S. 469 ; Fox v. Hoyt, 12 Conn. p. 497 ; Wright 
V. Hazen, 24 Vt. 143 ; Turner v. Ireland, 11 Humph. 447 ; 
Stevens v. Mangum, 27 Miss. 481 ; Williams v. Ball, 52 Tex. 
603; Holmes v. Buckner, 67 Tex. 107; Haylett v. Ford, 10 
Watts 101. 

Probate courts, surrogates' courts, and orphans' courts. — These 
courts are commonly regarded as of inferior, or, at least, limited 
jurisdiction. Of. Forbes v. Battle, 13 S. & M. 133 ; Smith v. 
Pvice, 11 Mass. 506 ; Rea v. M'Eachron, 13 Wend. 466 ; Atkins 
V. Kinnan, 20 Wend. 241 ; McKee v. McKee, 14 Pa. St. 231 ; 
M'Pherson v. Cunliff, 11 S. & R. 422 ; Brodess v. Thompson, 2 
Harr. & Gill 120 ; People v. Corlies, 1 Sandf. 288 ; Jenks v. 
Howland, 3 Gray 536; Flinn v. Chase, 4 Den. 85; Culver's 
Appeal, 48 Conn. 165. But see, semble contra Inco v. Com- 
mercial Bank, 70 Cal. 339 ; Key v. Vaughan, 15 Ala. 497. Con- 
sult Canfield v. Sullivan, 85 N. Y. 153. But see Hess v. Cole, 



1012 CllEPrS V. DUKDEX ET ALIOS. 

3 Zab. (Law) IIG; Matter of Flatbush Avenue, 1 Barb. 286; 
Anderson v. Miller, 7 Black. 417 ; C-orliss v. Corliss, 8 Verm. 
373 at p. 389; Enos v. Smith, 7 S. & M. 85; Griffiths Aclm. v. 
Yertner, 5 How, 736. In Pennsylvania and Alabama, oi'phans' 
courts are courts of record and would seem to stand nearly on 
the same basis as to presumptions, &c., as other courts of 
superior jurisdiction. Freeman on Judgments (3 ed.) section 
122. The probate courts in Arkansas, Minnesota, Missouri, 
South Carolina, and California stand upon a similar basis, as 
being- courts of record ; Dayton v. Mintzer, 22 Minn. 393 ; 
Johnson v. Beazely, 65 Mo. 250 ; jNIcCauley v. Harvey, 49 Cal. 
497. See State of Ohio v. Hinchman, 27 Pa. St. 479 ; Turner v. 
Malone, 24 S. Car. 398. 

Courts martial. — See Dynes V. Hoover, 20 How. (U. S.) 65. 

Mayors' courts iu England. — MDaniel V. Hughes, 3 East 367; 
Westoby v. Day, 2 E. & B. 603 ; Fisher v. Lane, 3 Wils. 297. The 
general result of th^ cases seems to be that the main distinction 
between courts of different grades of jurisdiction depends upon 
the question whether the court under consideration has a 
general common law or equity jurisdiction, or whether its pow- 
ers are limited and defined by a statute creating it. 

It is not of importance that the general common law or 
equity jurisdiction is limited to particular classes of persons 
and circumstances, as is the case with the United States courts. 
Nor is it of importance that the jurisdiction is limited by the 
amount in controversy, as is the case with most of the county 
and similar courts. If the court is one possessing general com- 
mon law or equity powers, even though conferred by statute, 
the court will be one of general and superior jurisdiction, and 
its judgments will be supported by the presum^ations attending 
the judgments of superior courts, and will be conclusive in the 
same respects. If, on the other hand, the court is one of 
limited or limited statutory jurisdiction, the court will be re- 
garded as an inferior one, and the effect of its judgments will 
be limited, in certain respects. As we have seen, these general 
conclusions are subject to many modifications in the different 
juiusdictions. The tendency of modern decisions seems to be 
toward doing away with the distinctions pointed out, but, for 
the present the distinctions seem to be too well grounded in 
the cases to be successfully attacked. 



CKEPPS V. DUUDEN ET ALIOS. 1013 



11. 

Attacking Judgments of Courts of Superior Jurisdiction 
collaterally. 

(a) Presumptions as to records of superior courts, where the 
courts act within their ordinary limits of jurisdiction. — The rec- 
ords of superior courts are always supported by the presump- 
tion that whatever was done by them in the course of the 
exercise of their powers, was rightly done. Consequently 
the rule is now well settled that Avhere a judgment or decree 
of a court of superior jurisdiction is brought up collaterally in 
other proceedings, it will be, prima facie., sustained by the pre- 
sumption of omne rita acta. This is true even where the record 
does not affirmatively show that the court obtained jurisdiction 
of the parties or of the subject-matter, where the court acts 
under general powers ; Ferguson v. Crawford, 86 N. Y. 609 ; 
Pennington v. Gibson, 16 How. 65 ; Peacock v. Bell, 1 Saun- 
ders 73 ; Turrell v. Warren, 25 Minn. 9 ; Venable v. McDonald, 
4 Dana 336 ; Wright v. Watson, 11 Humph. 529 ; Hall v. Law, 
2 W. & S. 135 ; Bridgeport v. Blinn, 43 Conn. 274 ; Board of 
Commrs. v. Markle, 46 Ind. 96 ; Dwiggins v. Cook, 71 Ind. 579 ; 
Clark V. Sawyer, 48 Cal. 133 ; Folger v. Columbian Ins. Co., 99 
Mass. 267 (273) ; Lockwood v. State, 1 Carter 161 ; Galpin v. 
Page, 18 Wall. 350 ; Yates v. Lansing, 5 Johns. 282 ; Chemung 
Bank v. Judson, 4 Seld. 254; Hart v. Seixas, 21 Ward 40; 
Wright V. Douglas, 10 Barb. 97 , Tallman v. Ely, 6 Wis. 244 ; 
Huntington v. Charlotte, 15 Vt. 46 ; Wright v. Marsh, 2 
Greene 94. 

" It is undoubtedly true that a superior court of general 
jurisdiction, proceeding within the general scope of its powers, 
is presumed to act rightly. All intendments of law in such 
cases are in favor of its acts. It is presumed to have jurisdic- 
tion to give the judgments it renders until the contrary ap- 
pears. And this presumption embraces jurisdiction not only 
of the cause or subject-matter of the action in which the judg- 
ment is given, but of the parties also." 

Field J. in G-alpin v. Page, supra., at p. 365. Where, how- 
ever, the record of a superior court affirmativelg., and on its face 
shows that there was a want of jurisdiction, the judgment may 
be attacked collaterally, even in the jurisdiction where it was 



1014 CREPPS Y. DUKDEX ET ALIOS, 

rendered, and this where the party relying upon the judgment 
pleads it, and the adverse party relies upon a plea amounting 
to nul tiel record ; Wright v. Boynton, 37 N. H. 9; Judkins v. 
Union Mutual Ins. Co., 37 N. H. 470 ; Thurher v. Blackburne, 
1 N. H. 242: Hall v. Williams, 6 Pick. 232 (247); Smith v. 
Smith, 17 111. 482. See Holt v. Alloway, 2 Blackf. (Ind.) 108; 
Welch V. Sykes, 3 Gilm. 197; Reed v. Wright, 2 Greene 
(la.) 15. 

In Buchanan v. Port^ 5 Ind. 204 and Davis v. Lane, 2 Ind. 
548, it was held that a plea amounting to an attack upon the 
record of the former judgment was not effectual. 

(M AflBrmative finding of jurisdictional facts in the judgment, 
decree or findings of a superior court ; — 

(1) Where the judgment questioned collaterally is a domestic 
one. — It is now well settled that where a superior court of the 
domestic jurisdiction affirmatively passes upon the jurisdictional 
facts, and this fact is shown by its record, such a finding cannot 
be collaterally questioned. 

This is often spoken of as an instance of the operation of a 
conclusive presumption. It is conceived that this is not an 
accurate statement of the theory of law. It does not belong 
to the presumptions at all, but is simply and purely a positive 
rule of law. A presumption is a rule of evidence, — an intend- 
ment of law which, in certain circumstances, excuses a party 
from producing evidence. The rule here is simply a branch 
of the general rule that where a superior court passes upon any 
fact within the general scope of its powers, such action is bind- 
ing upon parties to the action and those claiming under them, 
and becomes res adjudicata from thenceforward. Its action is 
subject to review only upon apjDcal or proceeding in error, or, 
in certain instances, in equity actions to set aside the judgment ; 
Granger v. Clark, 22 Me. 128 ; Peck v. Woodbridge, 3 Day 30 ; 
Sims V. Slackum, 3 Cranch 300; Cook v. Darling, 18 Pick. 
393; Richards v. Skiff, 8 Ohio St. 586; Grignon's Lessee v. 
Astor, 2 How. 319 ; McCauley v. Fulton, 44 Cal. 356 ; Pritch- 
ard V. Madren, 24 Kas. 486 ; Safferans v. Terry, 12 S. & j\I. 
690; Barnett v. Wolf, 70 111. 76; Searle v. Galbraith, 73 Hi. 
269; Case of Sheriff of Middlesex, 11 Ad. & El. 273; State v. 
Tipton, 1 Black 166 ; State v. Woodfin, 5 Ired. 199 ; Anderson 
V. Wilson, 100 Ind. 402 ; White v. Crow, 17 Fed. R. 98 ; Mack 
V. Ins. Co., 4 Hughes C. C. 61 ; Hunter v. Stonebruner, 92 111. 



CREPPS V. DUEDEX ET ALIOS. 1015 

75, In re Fernandes, H. & N. 717; Burdett v. Abbott, 14 East 
1, semble accord. Cooper v. Sunderland, 3 Clarke 114 ; People 
V. Kelly, 24 N. Y. 74 ; Commonwealth v. Xewton, 1 Grant 453. 

The return by an officer of proper se-rvice, when made a part 
of the judgment roll, will be conclusive ; Brown v. Turner, 11 
Ala. 752 ; Lightsey v. Harris, 20 Ala. 409. In Callen v. Ml i son, 
13 Ohio St. 446, a record of a judgment Avas produced in a 
collateral proceeding. The record showed that certain defend- 
ants had confessed judgment by their attorney. It was sought 
to be shown that the power of attorney on file did not purport 
to be signed by some of the defendants. It was held that, in 
a domestic proceeding such evidence could not be received to 
impeach the record collaterally. Cf. Wetherill v. Stillman, 
65 Pa. St. 105; Tant v. Wigfall, 6o La. 412; Lapham v. Briggs, 
27 Vt. 26 ; Pritchett v. Clark, 5 Harr. 63 ; Latterett v. Cook, 1 
Clarke (Iowa) 1 ; Westcott v. Brown, 13 Ind. 83 ; Rocco v. 
Hackett, 3 Bosw. 579. But see Shumway v. Stillman, 6 Wend. 
442 (452); Black v. Black, 4 Bradf. 174; Bissell v. Wheelock, 
11 Cush. 277. The general rule was affirmed in Walbridge v. 
Hall, 3 Vt. 114 ; Burt v. Delano, 4 Cliff. 611 ; Dunham v. Wil- 
fong, 69 Mo. 355 ; Turrell v. Warren, 25 Minn. 9. 

(2) Where the judgment sought to be questioned collaterally 
is a foreign one, or that of a superior court of another state. — 
The judgments of the courts of the different states, when 
brought forward in states other than those in which they are 
rendered are not, in strictness, foreign judgments in the sense 
that judgments rendered by the tribunals of other countries 
are foreign. Section 1 of Article 4 of the Constitution of the 
United States, declares that " Full faith and credit shall be 
given in each state to the public acts, records, and judicial 
proceedings of every other state," &c. Nevertheless, the courts 
in many states have held that this did not prevent the 
courts of other states, when a judgment even of a superior 
court of a sister state, was set up as a basis of rights or 
claims, from inquiring, in certain cases, into the jui'isdiction of 
the court which rendered the original judgment. 

It is beyond the scope of this note to go into the general 
subject of methods of obtaining jurisdiction, but perhaps a 
restricted treatment will be pertinent. The plainest form in 
which the question arises, is, where there is apparent on the 
record an attempt on the part of the tribunals of one state. 



1016 CREPPS V. DURDEN ET ALIOS. 

to exercise jurisdiction outside of the borders of such state — to 
obtain jurisdiction, say, of a non-resident person witliout at- 
tachment or personal notice, and without jurisdiction in rem of 
the sufficiency of the service the legishxture of a state is not 
the sole judge. " The authority of every tribunal is necessa- 
rily restricted by the territorial limits of the state in which it 
is established. Au}^ attem2)t to exercise authority beyond 
those limits would be deemed in every other form, as has been 
said b}' this court, an illegitimate assumption of power, and be 
resisted as mere abuse." 

In personal actions jurisdiction, to be of extra-territorial 
validity, must be by voluntary appearance, by personal service 
within the state, or, in a limited degree, by attuchment ; Pen- 
noyer v. Neff, 95 U. S. 714 : D'Arcy v. Ketchum, 11 How. 165 ; 
St. Clair v. Cox, 106 U. S. 350; Boswell's Lessee v. Otis, 9 
How. 336 J Eliot v. McCormick, 144 Mass. 10, and many cases. 
In like manner, the jurisdiction obtained by attachment is valid 
in a personal action, only to the extent of the property subject 
to the control of the sovereignty wherein the attached goods 
are found. It will not furnish a basis for an action on the judg- 
ment in another state ; Kilburn v. Woodworth, 5 Johns. 37 
Robinson v. Ward, 8 Johns. 86 ; Downer v. Shaw, 22 N. H. 277 
Phelps V. Holker, 1 Dallas 261; Kibbe v. Kibbe-Kirby, 119 
Bissell V. Briggs, 9 Mass. 462. 

Jurisdiction of a foreign corporation cannot be obtained by 
service upon one of its ofhcers, in a state where it has no place 
of business. A judgment so obtained is oj^en to collateral 
question in another state ; Moulin v. Insurance Co., 4 Zab. 222. 
See M'Quen v. Middletown Man. Co., 16 Johns. 5, dictum; 
Bushel V. Commonwealth Ins. Co., 15 S. & R. 173 (176) ; Rid- 
dlebrooks v. Springfield Fire Ins. Co., 14 Conn. 301 ; Libby v. 
Hodgdon, 9 N. H. 394 (396) ; Peckham v. North Parish, 16 
Pick. 274 (286). 

It has been held that, upon a suit upon the judgment of one 
state in the courts of another, the defendant may deny the 
authority of the attorney who appeared for liim. (See for 
cases) Beltzell v. Nosier, 1 Clarke 588. In G-leasoyi v. Dodd, 4 
Mete. 333, (decision per Shaw, C. J.) in an action in Massa- 
chusetts upon a judgment of a superior coui-t of Maine, it was 
held that, although the record recited an appearance by the 
judgment debtor in the Maine suit, this might be contradicted. 



CREPPS Y. DUEDEX ET ALIOS. 1017 

The underlying principle of this decision seems to be that 
while full faith and credit is to be given in one state to the 
judicial acts of another, this will not preclude the courts of the 
state where the record is produced from inquiring in every 
case, whether the sovereignty which assumed jurisdiction had 
in truth the jurisdiction which it assumed. See Carlton v. 
Bickford, 13 Gray 591 ; Norwood v. Cobb, 15 Tex. 500 ; Fos- 
ter V. Glazener, 127 Ala. 391 ; Graham v. Spencer, 14 Fed. R. 
603 ; Wood v. Wood, 78 N. Y. 624 ; Cross v. Cross, 108 N. Y. 
628. But see Bimeler v. Dawson, 4 Scarm. 541 ; Pringie v. 
Woolworth, 90 N. Y. 502. The case of Borden v. Fitch, 15 
Jb/m's R. 121 sustains the same principle, viz., that a decision 
of a jurisdictional fact decided in favor of the jurisdiction, 
in the tribunal — here the legislature — of one state, is not con- 
clusive when the judgment is questioned in another state. 
United States courts of the same district, as that of the 
state in which the judgment of the former is relied on, are, 
perhaps, not foreign to the tribunal of the state within this 
rule. See Turrellv. Warren, 25 ]\rinn. 9; Chemung Canal 
Bank v. Judson, 4 Seld. 254. But see Boisse v. Dickson, 
31 La. Ann. 741. 

Where a judgment obtained in one country is sought to be 
made the basis of rights in another and foreign one, the juris- 
diction may always be made the subject of inquiry, whether 
the defect appears upon the face of the record or not. Bu- 
chanan V. Rucker, 9 East 192; Reynolds v. Henton, 3 C. B. 186; 
Cowan V. Braidwood, 1 M. & Gr. 882 ; Ferguson v. Mahon, 11 
Ad. & E. 179 ; Douglas v. Forrest, 4 Bing. 686 ; Sheehey v. 
Professional Life Assurance Co., 3 C. B. N. S. 597 ; Bank of 
Australia v. Nias, 16 Q. B. 717 ; Meens v. Thellusson, 8 
Exch. 638. 

The presumption of regularity in the proceedings of supe- 
rior courts will always furnish jorhjid facie evidence of jurisdic- 
tion, where the contrary does not appear — this in suits in states 
other than those in which the judgment was recovered, as well 
as in the domestic tribunal ; Hatcher v. Rocheleau, 18 N. Y. 86 ; 
Bimeler v. Dawson, 4 Scarm. 541. See as to the judgment 
of United States courts ; Pearce v. Winter Iron Works, 32 Ala. 
68 ; Wright V. Marsh, 2 Greene (Lx.) 94. 

(^c^ Where the defect of jurisdiction appears upon the face 
of the record. — Where the record affirmativelj' shows a defect 



1U18 CREPrS V. DURDEN ET ALIOS. 

of jurisdiction, the judgment, even of a superior court, may 
always, both at home and abroad, be attacked collaterally. 
This is true whether, as in Crepps v. Durden, the jurisdictional 
defect is one which arises from a mistake in going beyond the 
scope of the law by the court, or is due to a failure to obtain 
jurisdiction of the person of the defendant ; Lessee of Moore v. 
Starks, 1 Ohio St. 369; HollingsAvorlh v. Barbour, 4 Pet, 466; 
AYebster v. Reid, 11 How. 437 ; Shrivers Lessees v. Lynn, 2 
How. L^. S. 43, dictum; Clark v. Bryan, 16 Md. 171; Messinger 
V. Kintner, 4 Birni. i>7 ; Babbitt v. Doe, 4 Ind. 355 ; Lamar v. 
Commrs., 21 Ala. 772 ; Dempster v. Purnell, 3 M. & Gr. 375 ; 
Coan V. Clow, 83 Lid. 417. 

(^d^. Where superior courts act outside of their ordinary general 
jurisdiction, under special statutory powers. — It seenis to be the 
weiglit of autliority that when a court of superior jurisdiction 
acts under a special act, and for a special and limited purpose, 
the courts, even of the domestic jurisdiction, will not call forth 
the ordinary presumptions in favor of jurisdiction. Compliance 
with the statute must be shown of record, or the judgment, 
when questioned collaterally, will be treated as a nullity. The 
cases sliOAV many modifications of this general proposition. 
The j^rinciple itself is, perhaps, in fact, a survival of the tradi- 
tions of the old courts, in which every encroachment of the 
legislative branch of goveriiment upon the domain of the com- 
mon law was viewed with jealousy. It is, perhaps, peculiarly 
out of place in code states where, as a rule, the powers and 
jurisdiction of all courts are largely defined by statute. Never- 
theless, the principle is frequently asserted, in spite of the 
fact that it is, in many specific instances, disregarded in prac- 
tice. The numerous modifications of the rule are beyond the 
scope of this note. "Where a statute prescribes a new pro- 
ceeding, whether unknown to the common law or contrary 
thereto, the statute, so far, at least, as those parts essential to 
the jurisdiction are concerned, must not only be proved, but 
shown to have been strictly pursued, or the proceedings will be a 
nullity." Whyte, J., in Earthman v. Jones, 2 Yerg. 484, (493). 
In accord, Foster v. Glazener, 27 Ala. 391 ; Thatcher v. Pow- 
ell, 6 Wheat. 119 ; Cone v. Cotton, 2 Blatchf . 82 ; 11 Phil, on 
Ev. (Cowen & Hill's Notes) 2d ed. p. 906, note 637 ; Commrs. 
V. Thompson, 15 Ala. 134 ; Bridge v. Ford, 4 Mass. 641 ; Per- 
rine v. Farr, 2 Zab. 356 ; Queen v. Bloomsbury, 4 E. & Bl. 520 ; 



CREPPS V. DURDEX ET ALIOS. 1019 

Webster v. Reed, 11 How. 437 ; City of St. Louis v. Gleason, 93 
Mo. 33. 

Where a judgment in New York in partition was questioned 
collaterally in a New York court, the statute providing a 
specific method by which unknown parties could be served, and 
the record did not affirmatively show full compliance, the court 
held that no presumptions could be called in to support the rec- 
ord ; Denning v. Corwin, 11 Wend. 647. As to the general 
principle, see M'Kim v. Mason, 3 Md. Ch. 186: Matter of Un- 
derwood, 3 Cow. 59 ; Messinger v. Kintner, 4 Birm. 97 ; Smith v. 
Rice, 11 Mass. 507 ; Proctor v. Newhall, 17 Mass. 81 ; Thatcher 
V. Powell, 6 Wheat. 119 ; Jackson v. Esty, 7 Wend. 148 ; Rea 
V. M'Eachron, 3 Wend. 465 ; Atkins v. Kinnan, 20 Wend. 241 ; 
Boswell's Lessee v. Otis, 9 How. 336. Semhle, accord. Mason 
V. Tuttle, 75 Va. 105. In Bloom v. Bnrdick, 1 Hill, 130, the 
judgment was held void because the court was acting under 
special statutory powers and the jurisdictional facts affirmatively 
appeared of record not to be present. See Foot v. Stevens, 17 
Wend. 483 ; Hart v. Seixas, 21 Wend. 40. Under conhscation 
acts and acts of a like nature, the courts have always insisted 
upon a strict compliance with the act under which action was 
taken, as to all jurisdictional points ; Chapman v. Phoenix 
National Bank, 85 N. Y. 437 (Reversing 12 J. & S. 340); 
Windsor v. McVeigh, 93 U. S. 274 ; Day v. Micon, 18 Wall. 
156 ; Conrad v. Maples, 96 U. S. 279. Where an adjudication 
in bankruptcy of the United States District Court was offered 
in a suit in a New York state court, it was held, it seems, that 
the jurisdictional facts need neither appear of record nor be 
shown ; Cone v. Purcell, 56 N. Y. 649 ; Rosenthal v. Plumb, 25 
Hun 336. 

in. 

Inferior Courts. 

Inferior courts stand upon a very different basis from supe- 
rior courts in most jurisdictions as to the standing and con- 
clusiveness of their records. It may be stated as a general 
principle, subject to many contrary decisions, that the record 
of an inferior court must show jurisdiction upon its face, in 
order to have primd facie standing against collateral attack (^/). 



1020 CREPPS V. BURDEN ET ALIOS. 

((/) Presumptions as to records of inferior courts where the 
courts act within their ordinary limits of jurisdiction. — It seems 
to be fairly established as a general rule, that the record of a 
court of inferior jurisdiction must, in order to be good, primd 
facie, against collateial attack, show jurisdiction. This is true, 
even where the attack is in the domestic tribunals. There is 
much conflict of decision upon this point, but, on examination, 
it will commonly be found that where the rule has been inter- 
preted the other way, the result is due to the fact that the 
court, the decision of Avhich was questioned, has been regarded 
really as a superior one, by the higher courts of the same 
sovereignity. 

The rule is as has been stated above, in the following states : 
Missouri: Cunningham v. Pacific Ry. 61 Mo. 33; Fisher v. 
Davis, 27 Mo. App. 321 ; France v. Evans, 7 West. Rep. 277 ; 
Hausberger v. Pacific Ry. 43 Mo. 200; State v. :\Ietzger, 26 
Mo. Go. Massachusetts : Smith v. Rice, 11 Mass. 506 ; Hatha- 
way V. Clark, 5 Pick. 490 ; Heath v. Wells, 5 Pick. 140 ; Hol- 
yoke V. Haskins, 5 Pick. 20. Semhle, Jenks v. Howland, 3 Gray 
536 ; Brooks v. Adams, 11 Pick. 441 ; Brooks v. Graham, 11 
Pick. 445; Commonwealth v. Hay, 126 Mass. 235. Neiv York : 
Rea V. M'Eachron, 13 Wend. 465 ; Atkins v. Kinman, 20 Wend. 
241 ; Ford v. Walsworth, 15 Wend. 449 ; 19 Wend. 334 ; s. c. 
again. Dakin v. Hudson, 6 Cow. 221. But see Barnes v. Harris, 
4 Const. 374; Van Deusen v. Sweet, 51 N. Y. 378. Penrv- 
sylvania : (Doubtful) j\Iessinger v. Kintner, 4 Birm. 97 ; Camp 
V. Wood, 10 Watts 118. Senible, of contrary bearing, Franklin 
V. Goff, 14 S. & R. 181; Lockhart v. Johns. 7 Pa. St. 137; Mc- 
Hale's Appeal, 105 Pa. St. 323; See McKee v. McKee, 14 Pa. St. 
231; Illinois: Evans v. Pierce, 3 Seamon 468; Douglas v. Whit- 
ing, 28 111. 302; Pardon v. Devine, 23 111. 572. Georgia: Grier 
V. McLandou, 7 Ga. 362. Michiga^i : Mudge v. Yaples, 58 Mich. 
307 ; Clark v. Holmes, 1 Doug. 390. Maine : Granite Bank v. 
Treat, 18 Me. 340 ; Netv Hampshire : See the State v. Rich- 
mond, 6 Fost. 232, see 241 et seq. Arkansas : McClure v. 
Hill, 36 Ark. 268 ; Webster v. Daniel, 47 Ark. 131, at p. 141. 
New Jersey : Bergen Turnpike Co. v. State, 1 Dutch. 554. Iowa : 
Morrow v. Weed, 4 Clarke 77; United States Jurisdiction: 
Florentine v. Barton, 2 Wall. 210. Alabama: Sims v. Waters, 
65 Ala. 442. Kentucky : See Hart v. Grisby, 14 Bush. 542. 
Indiana : Anderson v. Miller, 4 Blackf. 417 ; See Carr v. Goda, 



CREPPS V. DURDEX ET ALIOS. 1021 

84 Ind. 209 ; Carver v. Carver, 6-i Ind. 194. (Here tlie ques- 
tion came up directly on appeal, and not collaterally.) Hop- 
per V. Lucas, 86 Ind. 43. Ohio : McCurdy v. Baughnian, 1 
West. Rep. 33. 3fississippi : See Edwards v. Turner, 14 S. & 
M. 75 ; Smith v. State, 18 S. & M. 140. But see Taggert v. 
Wise, 60 Miss. 870. Connecticut: Wattles v. Hyde, 9 Conn. 
10 ; Hall V. Howd, 10 Conn. 514 ; Stern v. Scott, 8 Conn. 480. 

Many of the above cases are to be considered in the light of 
the fact that the actions were under special statutes of a limited 
character, under which even courts of superior jurisdiction 
would have been held to strict limits as to showing juris- 
diction. 

The earl}' rule in England, as unaffected by latter statutes 
and decisions, seems to be the other way, even on appeal ; Rex 
V. Cleg, 1 Str. 475; Rex v. Venables, 1 Str. 430. But see 
Connett v. Morley, 1 Q. B. 18. In Texas the courts of justices of 
the peace, being established by the Constitution, are held practi- 
call}^ to be superior coui-ts. The rule then, as to such courts, 
seems to be that the same presumption holds as to them as that 
which applies to superior courts ; Williams v. Ball, 52 Tex. 
603 ; Holmes v. Buckner, 67 Tex. 107. A similar view seems 
to obtain in Misssouri as to probate courts ; Rowden v. Brown, 
91 Mo. 429 ; Brooks v. Duckworth, 59 Mo. 49 ; Johnson v. 
Beazeley, 65 Mo. 250. But a contrary view has been sustained 
as to justices of the peace ; Bersch v. Schneider, 27 Mo. 101. 
A like view has obtained in California as to probate courts. 
Inco V. Commercial Bank, 70 Cal. 339. All reasonable intend- 
ments are made in Alabama in favor of the decrees of an Or- 
phan's Court ; dictum ; Key v. Yaughan, 15 Ala. 497. The 
general principle is stated, in Lessee of Grignon v. Astor, 2 
How. 319, to be that jurisdictional facts must appear of record, 
to render the judgment of an inferior court of prima facie 
validity. 

In Rhode Island, by special statute, the jurisdiction is pre- 
sumed ; Angell v Angell, 14 R. I. 541. And see Stern v. Ben- 
nett, 24 Vt. 303 ; Lawrence v. Englesby, 24 Vt. 42 ; WiUiams 
V. Sharp, 2 Cart. (Ind.) 101; Denve v. Hanlon, 21 N. J. L. 
582 ; Painter v. Henderson, 7 Pa. St. 48 ; Samuels v. Findlay, 
7 Ala. 635 ; Hew v. Hew, 5 Pa. St. 428 ; M'Farland v. Burdick, 
17 Yt. 165; Moore v. Houston, 3 S. & R. 169; Pierce v. Irish, 
31 Me. 254; Cox v. Davis, 17 Ala. 714; Savage v. Benham, 17 



1022 CREPrS V. DUKDEN ET ALIOS. 

Ala. 119 ; Farrar v. Olmstead, 24 Yt. 123 ; Billings v. Russell, 
23 Pa. St. 189. 

(/)) "Where there is an affirmative finding of jurisdictional facts 
in the judgment of an inferior court. — Tlie question is whether, 
or not, where the question of jurisdietion of an inferior tribunal 
is raised collaterally, and there is an express finding of the 
jurisdictional facts, the decision is conclusively binding, is one 
which has received a different answer in different states. 

(1) It is universally held that an affirmative finding of 
jurisdictional facts by a domestic and inferior tribunal is primd 
facie evidence of such facts ; Wetherell v. Goss, 2G Vt. 748, 
semble ; Hawkes v. Baldwin, Brayt. 85, semhle ; Stamford v. 
Barry, 1 Aik. 321, semhle ; Brown v. Foster, G R. I. 564 ; Reed 
V. Whilton, 78 Ind. 570. 

(^2) The judgment of a domestic inferior court. — But the ques- 
tion whether or not it is conclusive like any other decision of 
a court, upon facts brought up before it for adjudication, is 
differently decided in cUfferent states. It would seem that the 
general view is that such a finding is conclusive in the domestic 
tribunals. See Sheldon v. Wright, 1 Seld. 497, at 514 ; Turner 
V. Malone, 24 S. C. 398 (semhle^ the court, a probate court, 
was regarded as a superior one) ; Epping v. Robinson, 21 Fla. 
36 ; McCurdy v. Baughman, 1 West. 33 accord. That a judg- 
ment of an inferior court, even where it recites affirmatively 
a finding of jurisdictional facts, may be impeached collaterally 
in the domestic jurisdiction. See, Wood v. Wood, 78 Ky. 624 ; 
Clark V. Holmes, 1 Doug. 390 ; Black v. Black, 4 Bradf. 174 ; 
Smelyer v. Lockhart, 07 Ind. 315. 

(3) "Where the judgment sought to be questioned is that of an 
inferior court of a foreign jurisdiction or of another state. — Where 
the judgment which is souglit to be questioned, is that of an in- 
ferior court of another state, the jurisdictional facts must be 
shown. If the inferior court acted under a special statute, that 
must be proved as a fact as a part of the case of the party who 
presents the record ; Thomas v. Robinson, 3 Wend. 267 ; Hof- 
heimer v. Losen, 24 Mo. App. 652 ; Wood v. Wood, 78 Ky. 624. 
But see contra: State of Ohio v. Hinchman, 27 Pa. St. 470. 

((?) "Where the defect of jurisdiction appears on the face of the 
record. — Where the record of the proceedings of an inferior 
court, when the judgment is questioned, even in a domestic 
tribunal, afiirmatively shows a defect of jurisdiction, the pro- 



CREPPS V. DUEDEN ET ALIOS. 1023 

ceedings are jjrimd facie void ; Conkey v. Kingman, 24 Pick. 
115 ; Hendrick v. Cleveland, 2 Vt. 329 ; Clapp v. Beardsley, 1 
Aik. (Vt.) 168 ; Jones v. Jones, 3 Dev. 360 ; Munroe v. People, 
102 111. 406 ; Dale v. Irish, 2 Barb. 639 ; Holmes v. Field, 12 
111. 424 ; State v. Rye, 35 N. H. 368. cf. Sigourney v. Sibley, 
21 Pick. 101 ; Gay v. Minot, 3 Cush. 352. 

(d^ Where inferior courts act under special statutory pow^ers. 
• — What is true of superior courts in a more limited degree, 
is, it seems, true to the fullest extent of inferior courts, viz., 
where they act under special statutory powers, the record 
must show that they have conformed with substantial exact- 
ness to the requirements of the statute, or the whole proceed- 
ing is pri7nd facie void; Wattles v. Hyde, 9 Conn. 10 ; Ford v. 
Walsworth, 15 Wend. 449; Dakin v. Hudson, 6 Cow. 24 
Hathaway v. Clark, 5 Pick. 490 ; Heath v. Wells, 5 Pick. 140 
Holjroke V. Haskins, 5 Pick. 20 ; Camp v. Wood, 10 Watts 118 
Bergen Turnpike Co. v. State, 1 Dutch. 554. 



LIABILITY OF JUDGES, OFFICERS, PARTIES, AND OTHER 
PERSONS, FOR ACTS DONE IN PURSUANCE OF JUDICIAL 
AUTHORITY, OR IN A JUDICIAL CAPACITY. 



Suits against Judges of Superior Courts. 

It would now appear to be settled to a degree of certainty, 
and it may be stated as a general proposition, that a judge of a 
superior court of record is not liable to a private suitor for any 
act whatever done in a judicial capacity. This is true, how- 
ever erroneous such act may be. It is true, even as to acts 
done with the most express malice. The judge is liable to 
impeachment and removal, but the private suitor has no direct 
remedy for injuries which he may have suffered. 

As to the case where, as in Crepps v. Durden., the judge has 
once acquired jurisdiction, but goes beyond and outside of it, 
being obliged to pass upon the law as to the extent of his juris- 
diction, it is now probably settled in most jurisdictions, beyond 
a reasonable controversy, that the judge of a superior court is 
not responsible for any of his acts. 

Where there never existed any jurisdiction, in the judge to 



1024 CKEPPS V. DUKUEN ET ALIOS. 

act at all in the premises, the law is not so clearly settled. The 
same may be said of the case where a judge of a superior court 
acts without obtaining jurisdiction of the person of the party 
who complains of his acts. This latter case must, of course, be 
carefully distinguished from that in which a judge acts upon 
evidence which is in fact untrue, but which is sufficient on its 
face to entitle the judge to act. This case of action upon evi- 
dence apparently sufficient as to jurisdictional facts, is treated 
infra^ and comes under a different rule from that affecting- the 
subject now discussed. 

The weight of authority seems to be that a judge of a supe- 
rior court of record is not liable civilly for any act tvliatever 
done while acting judicially. There is respectable authority to 
the effect that this view is too broad ; but, on the whole, it 
would seem to be fairly established, the main criticisms being 
directed, as intimated above, to the application of the rule to 
cases where there never existed any jurisdiction to act at all, or 
where there is a failure of jurisdiction of the person complain- 
ing of the judge's act. 

The main difficulty comes in determining when a judge may 
be said to be acting judicially. Is he alwaj^s acting judicially 
wlien sitting at the place of holding court and in the seat of 
justice ? May it be said of a judge of a superior court, as it 
was, in Crepps v. Durden, of a judge of an inferior court, that 
whenever he transcends his jurisdiction his proceedings are 
coram 'non judice, and, pro tanto^ subject him to liability? Is 
he liable for the consequences of ministerial acts? It would 
seem that an understanding of the present state of the law as 
to these and related points can best be reached by a considera- 
tion of the growth, historically, of the law bearing upon them. 
In treating this branch of the subject, the early cases whicli are 
cited mostly refer to inferior judicial officers, but are quoted as 
exhibiting the growth of the law bearing on the special head 
now discussed ; regard being had, also, to the next point, — as 
to the liabiHties of judges of inferior courts. Book of Assise, 
21 Udw. III. mi Term, pi. IG (1347), seems to be the first 
appearance in the books of the general question of liability 
for judicial acts. The defendants were sued for conspiracy. 
It was held to be an answer to the action that the defendants 
were grand jurors, and had found the indictment in the matter 
complained of. 



CEEPPS V. DURDEN ET ALIOS. 1025 

Booh of Assise, 27 Edw. III. Mich. J"., pi. 18, p. 135 (1353), 
was a case in which R. was indicted for that, being a judge of 
oyer and terminer, certain persons were arraigned before him 
for trespass, and he entered of record that they were indicted 
for felon3^ It was demanded that he should be held for falsi- 
fying the record. It was held that the presentment was bad. 

Year-Book, 9 Henry VI. Hil. pi. 9, jj. 60 (1431), was a case of 
an action against an escheater for fraud. The court said that 
no such action lay against a judge of record, but in the case at 
bar it was otherwise ; for an escheator is not a judge of record, 
but his office is an office of record. 

9 Edw. IV. pi. 10, p. 3 (1470), intimated that no action lay 
against a justice of the peace for judicial acts. 

Tear-Books, 21 Ediv. IV. pi. 49, p. 67. Pigot, J. : If a justice 
of the peace does anything apart from his office, he may be held 
liable ; but in sessions, otherwise. 

Floyd V. Barker, 12 Coke 23 (1608). A grand inquest had 
been indicted for felony in the county of Anglesea. It was held 
in Star Chamber that neither the indictors, nor, among others, 
the judges of assize, could be questioned in the Star Chamber 
for what they had done. The court said : " And the reason and 
cause why a judge, for anything done by him as a judge, by the 
authority which the king hath committed to him, and as sit- 
ting in the seat of the king (concerning his justice), shall not 
be drawn in question before any other judge for any surmise of 
corruption, except before the king himself, is for this ; the king 
himself is de jure to deliver justice to all his subjects ; and for 
this, he himself cannot do it to all persons, he delegates his 
power to his judges, who have the custody and guard of the 
king's oath." The court clearly mark the distinction between 
the courts of record and those not of record. 

The Case of the Marshalsea, 10 Coke 68 (1613). Hall brought 
trespass for assault, &c., and false imprisonment, against various 
defendants. The defendants justified as officers and judges of 
the Court of Marshalsea, and pleaded prescription for tlie court, 
the prescription giving it limited and special powers. "It is 
agreed in the point, also, that in trespass before the steward and 
marshal, if none of the parties be of the king's household, then 
it is coram own judice, because they exceed their power. The 
same law, if they hold plea out of the verge. , . . But when the 
court has not jurisdiction of the cause, then the whole- proceed- 



1026 CREPPS V. BURDEN ET ALIOS. 

ing is coram non judice^ and actions will lie ag-ainst tliem without 
any regard of the precept or process." 

Aire V. Sedgwick, 2 Molle 195 (1619). The court intimates 
the doctrine of immunity to a judge for anything done in a 
judicial capacity. 

Martin v. Marshal, Hobart 63 (^prior to 1646). Defendants 
were sued for false imprisonment. They pleaded that one was 
mayor, and held court at Yoi'k by prescription ; that the other 
was Serjeant of the court, and the latter acted by command of 
the former. Tlie plea did not bring the case within the pre- 
scription as pleaded, ffeld, that defendants were liable. 

Terry v. Huntington, Hardres 480 (1680), The case was a 
suit against commissioners of excise for assessing low wines as 
strong wines. The court held that they had no jurisdiction so 
to act, and were liable. Hall, C. B.: "First, the matter here 
is not within their jurischction, which is a stinted, limited juris- 
diction; and that implies a negative, viz., that they shall not 
proceed at all in other cases. . . . Thirdly, if such commissioners 
exceed their authority, wliat they do is coram non judice ; and 
then, as appears 10 Rep., their officers are not privileged." 

BusheWs Case, 1 Mod. 119 (1686), came up on a motion for 
time to plead by the Lord Mayor of London and the recorder. 
One Bushell brought an action for faLse imprisonment. Hale, 
C. J., said : " I speak my mind plainly, that an action will not 
lie; for a certiorari and a habeas corpus, whereby the body and 
proceedings are removed hither, are in the nature of a writ of 
error ; and in the case of an erroneous judgment given by a 
judge which is reversed by a writ of error, shall the party name 
an action of false imprisonment against the judge ? No, nor 
against the officers, neither. Time was given as prayed. 

Hamond v. Howell, 1 Mod. 184 (1686). This was another 
phase of the matter stated in the preceding case. The plaintiff 
brought an action for false imprisonment against the mayor of 
London, the recorder, the whole court of Old Bailey, and the 
sheriffs and gaoler, for false imprisonment. Some Quakers had 
been indicted for a riot. The court directed a verdict of guilty, 
but the jury found for defendants; and the jury were committed 
for finding contrary to direction in matter of law. One of the 
jury brought this action, after being discharged on habeas corpus. 
Defendants moved for further time to plead. The court declared 
their opinions against the action. Atkins, Justice : " It was never 



CKEPPS V. DL^KDEN ET ALIOS. 1027 

imagined that justices of oyer and terminer and gaol delivery 
would be questioned in private actions for what they should do 
in execution of their ofdce." 

Crivinne v. Pool^ Lutw. 935 (1693). Action was brought in 
trespass against a judge and officers of an inferior court. On a 
demurrer to a reply of want of jurisdiction, defendant had judg- 
ment. On the appeal (LutAvyche, 1560), the court said that no 
action whatever lay where the court had jurisdiction (see espe- 
cially, p. 1511). It was held that the action was not well brought, 
as it did not appear tliat defendant had knowledge of his want 
of jurisdiction. 

Gfroenvelt v. Brmvell., 1 Ld. Raym. 451 (1700). Plaintiff sued 
the defendants, as censors of the College of Physicians of Lon- 
don, for false imprisonment. They had condemned him for 
malpractice. Judgment was given for the defendants, the court 
saying that the action of the censors, they having jurisdiction, 
could not be elsewhere questioned. 

Smith V. Dr. Bouchier, 2 Strange 993 (1735). This case was 
one of a suit brought for false imprisonment against the vice- 
chancellor of the University of Oxford and certain officers of 
his court. It was pleaded that the defendant B. was vice- 
chancellor, &c., and that by the custom, if a suitor swore that 
he believed that his opponent would run away, the opponent 
might be arrested and held; that A. B. swore that plaintiff in 
this suit owed him a debt, and complainant believed that the 
then defendant — plaintiff here — would run away. The j^lea 
did not exactly follow the custom as pleaded. Demurrer. The 
plea was held to be bad, the court saying that, as the defendants 
were joined together, and as the judge and the plaintiff in the 
suit knew that the oath was not sufficient, all were liable. 

imier V. Seare, 2 Wm. Black. 1142 (1767). Action against 
commissioners of bankruptcy for illegally imprisoning a person 
for not answering satisfactorily at an examination. De Grey, 
C. J. : 1st. It is agreed that the judges in the King's Superior 
Court of Justice, are not liable to answer personally for their 
errors in judgment. And tliis is not so much for the sake of 
the judges, as of the suitors themselves ; Bushel's case, Vaughn 
138. 2d. The like in courts of general jurisdiction, as gaol 
delivery, &c. 3d. In courts of special and limited jurisdic- 
tion, having power to hear and determine, a distinction must 
be made. While acting within the line of their autliority, 



1028 C REPPS V. DUKDEN ET ALIOS. 

they are protected as to errors in judgment ; otherwise they 
are not protected. The protection, in regard to the superior 
courts IS absohite and universal ; with respect to the inferior 
it is only while they act Avithin their jurisdiction."' The 
commissioners in bankruptcy were held to be of limited juris- 
diction and were held liable, as they had acted beyond their 
jurisdiction. 

Perkin v. Proctor, 2 Wih. 382 (17G8). Held, that trespass 
lay against assignees under a commission of bankruptcy sued 
out against a victualler, such person not being within the 
Bankrupt Acts. The court said (p. 384) : " And it is not like 
where an officer makes an arrest by warrant out of the King's 
Court, which if it be error the officer must not contradict, 
because the court hath general jurisdiction ; but here (says 
Justice Croke) the justices of the peace have but a particular 
jurisdiction." 

Parsons v. Loyd, 3 Wih. 341 (1772). Trespass for false 
imprisonment. Defendant had caused to be sued out a void 
writ. The writ was from a court of superior jurisdiction. 
Held, that defendant was liable ; it did not appear that he had 
taken any active part in the arrest. Dictum (p. 345), that the 
officer executing the writ might have justified under it. 

Harman v. Taijpenden et ah, 1 East 555 (1801). Action 
against T. and fifteen others. Defendants and plaintiff were 
members of a company of fishermen of Kent. Plaintiff was in 
an assembly of the company and, having broken a bydaw, was 
ordered to pay a fine, or show cause, &c. He did neither, and 
without proof, was condemned to be prevented from fishing 
during the ensuing oyster season. Held, act of defendants was 
irregular, but judicial, and they could not be held, for such an 
act, having jurisdiction. They should, however, have taken 
proof. 

Beaurain v. Scott, 3 Camp. 388 (JSfisi Prius) (1812). Held, 
that where an ecclesiastical court excommunicated a man in a 
case where it had no jurisdiction, action will lay. 

Ackerley v. Parkinson, 3 M. ^ Sel. 411 (1815). Action of 
case for excommunication. Held, that defendants (judges of 
the ecclesiastical court) were not liable, as they had jurisdic- 
tion, though they acted erroneously. 

Taaffe v. Dotvnes, 3 Moore's P. 0. (^Ireland, 1812) 41 n. 
Trespass for false imprisonment. Plea that plaintiff was ap- 



CEEPPS V. BURDEN ET ALIOS. 1029 

prehended under a warrant issued by defendant acting judi- 
cially as judge of King's Bench. Demurrer. Held^ that the plea 
was good. 

Mayne^ J. : "• The difference between the judges of the 
superior and inferior courts has not been sufficiently attended 
to." As to judges of superior courts, "the honest, good and 
constitutional mind will always wish to find them entirely 
free and unbiased ; and will rather entrust them with a high 
and unquestionable authority, and, if guilty, leave their punish- 
ment to Parliament alone, than hazard their fortitude and in- 
dependence by the alarm and question, pains and expense of as 
many actions as there may be acts of duty encountering the 
bad passions and prejudices of mankind." This case is notable 
as being perhaps the first deliberate decision in Great Britain 
that seems to support the modern rule to its full extent. 

G-arnett v. Ferrand, 6 B. ^ Cr. 611 (1827). Suit against a 
coroner for trespass in turning plaintiff out of a room where 
the defendant was holding an inquest. Held^ that no action 
lay. Tenterdeii, C. J.: "The court of the coroner is a court 
of record of which the coroner is the judge ; and it is a general 
rule of very great antiquity, that no action will lie against a 
judge of record for any matter done by him in the exercise of 
his judicial functions." 

Mills V. Collett, 6 Bing. 85 (1829). This case turns upon 
the same principle as the one preceding. The court dis- 
tinguishes Crepps V. Burden. 

Scott V. Stansfield, L. R. 3 Exch. 220 (1868). Action for 
slander. Plea, that the words were spoken by the defendant 
while acting as a county judge. Replication that the words 
were spoken maliciously, falsely, without reasonable cause, 
with no foundation, and not in the bond fide discharge of de- 
fendant's duty. Demurrer. Held^ that the replication was bad. 
Kelly, C. B.: "The question arises, perhaps, for the first time 
with reference to a county court judge, but a series of decisions 
uniformly to the same effect, extending from the time of Lord 
Coke to the present time, establish the general proposition that 
no action will lie against a judge for any acts done or words 
spoken in his judicial capacity in a court of justice. This doc- 
trine has been applied not only to the superior courts, but to 
the court of a coroner and to a court martial, which is not a 
court of record." 



1030 CREPPS V. DUEDEN ET ALIOS. 

Dieas v. Lord Brougham, G C. # P. 249 (1833). Trespass 
for false imprisonment. The defendant justified as Lord Chan- 
cellor of England. He had committed the plaintiff for not 
obeying an order. The plea was not guilty. The court was of 
opinion that the defendant had authority to make the order, hut 
it seems clear from the discussion that it would not have held 
defendant liable had he lacked such authority. 

Calder v. Halket, 3 3Ioores P. C. 28 (1839). Defendant sued 
in trespass for false imprisonment. Defendant was judge of a 
provincial magistrate's court in India. Act 21, Geo. III. ch. 70, 
§ 24, made judge of such courts not liable for any act done as 
judge. Held (Parke, B.), this action is designed to place these 
judges on the footing of judges of superior courts of record. 
"For English judges, when they act wholly without jurisdic- 
tion, Avhether they may suppose they had it or not, have no 
privilege. Defendant's court had no jurisdiction of Europeans, 
but it did not appear distinctly in the evidence that the defend- 
ant knew this. To hold defendant liable, this fact must appear. 

Linford V. Fitzroy, 13 Ad. cf EL (iV. *S'.) 240 (1849). Held, 
that no action against a magistrate for refusing to take bail 
was maintainable without proof of malice. 

Levy V. Moylan, 10 C. B. 189 (1850). Plaintiff sued a judge 
of a county court in England, a sheriff, and a keeper of a house 
of correction. The warrant set forth imprisonment for con- 
tempt. Held, that although the court was of inferior and of 
limited jurisdiction, the writ was an adjudication that the judge 
had been insulted, and was regular on its face. The judge had 
jurisdiction, and defendants were not liable. 

Houlden v. jSmith, 19 L. Jour. N. S. Q. B. 170 (1860). Coyitra, 
where a judge of a county court assumed to do an act beyond 
his territorial jurisdiction. 

Ward V. Freeman, 2 Ir. C. L. 460 (1852). Held, that a judge 
of a court of record could not be held liable for refusing to cer- 
tify an appeal. " No action will lie against a judge for what he 
does judicially, though it should be laid falso malitiose et sci- 
enter;"' Barnadiston v. Soame, 6 St. Tr. 1096 (1674). "An 
action will not lie against a judge for anything done by him 
quaternus a judge ; " Hammond v. Howell, 2 Mod. 218. 

Kemp V. Neville, 10 C. B. N. S. 523 (1861). Defendant, a 
vice-chancellor of Cambridge University, was sued by plaintiff 
for false imprisonment. He had authority to imprison lewd 



CREPPS V. DUEDEN ET ALIOS. 1031 

females found in company with undergraduates. He, in good 
faith, but erroneously and without due inquiry, imprisoned plain- 
tiff. Held^ that, as he had jurisdiction, he was not liable. 

Thomas v. Glmrton, 2 B. cf S. 475 (1862). Held, that a 
coroner is not liable civilly for words slanderous, falsely and 
maliciously spoken by him in an address to a jury. 

Miller v. Hagaart, 2 Shaw's App. Cas. (Scotch) 125 (1824). 
Similar decision as to words addressed by a superior court 
judge to counsel in course of a trial. 

Fmi/ V. Blackburn, S B. cj- S. 576 (1863). The declaration 
alleged that defendant was a judge of the Court of Queen's 
Bench. That plaintiff was a suitor before him. That she 
became entitled to costs, but defendant refused to make the 
rule absolute for them, defendant knowing the premises, and not 
regarding his duty, &c. Demurrer. Judgment for defendant. 
Plaintiff applied for leave to amend, to introduce an allega- 
tion of malice and corruption. Leave refused. 

Co7npto7i, J. : " It is a principle of our law that no action 
will lie against a judge of one of the superior courts for a 
judicial act, though it be alleged to have been done mali- 
ciously and corruptly ; therefore the proposed allegation would 
not make the declaration good." 

The foregoing cases comprise by no means the entire list of 
English cases bearing upon the point under discussion. The 
more complete list of authorities in the English courts is to be 
found in the English note. The cases have been chosen merely 
to show the development of the rule and its relation to the 
views held by American courts upon the same subject. In 
this country the decisions have brought about much the same 
result. The earlier decisions relate to courts of inferior or 
limited jurisdiction ; but some are cited here as showing the 
development of the law. 

Phelps V. Sill, 1 Daij 315 (1804). It was held that a judge 
of probate was not liable for failure to take security. "No 
man," says the court, "• would accept the office of judge, if his 
estate were to answer for every error in judgment, or if his 
time and property were to be wasted in litigations with every 
man whom his decisions might offend." See Samilton v. Wil- 
liams, 26 Ala. 529 (1855). Accord. 

Yates V. Lansing, 5 Johns. E. 282 (1810). This is a leading 
case upon this subject. In this case the plaintiff' sued in an 



1032 CREPPS V. DUEDEN ET ALIOS. 

action of debt for a penalt}'. The declaration alleged that 
plaintiff was arrested 1)}- the sheriff nnder a writ issuing out 
of the Court of Chancery. That plaintiff sued out a writ of 
habeas corpus before one of the judges of the supreme court, 
and was discharged under the writ. That afterwards the sher- 
iff, "knowingly," &c., caused the plaintiff to be re-arrested. 
There was a statute providing the penalty sued for if any one 
caused the re-arrest of one discharged on habeas corpus. The 
defendant pleaded that at the time of and before the arrest he 
was chancellor of the state of New York. That as such he, 
actmg judicially, issued the writ on which plaintiff was first 
imprisoned, and caused the plaintiff to be committed. That 
afterward plaintiff was discharged on habeas corpus. That 
thereupon defendant, " as chancellor of this state and not other- 
wise, at a Court of Chancery," &c., made an order for the 
arrest of the plaintiff. To this there was a demurrer. The 
court held that no action lay. The court (^^er Kent, Ch.) held 
that the defendant was not liable. While the court decided 
that the defendant had power to make the first commitment, 
and that the statute imposing a penalty did not apply, the 
language of the court goes much farther than this, and is inter- 
esting as a discussion of the general principles. 

" Where courts of special and limited jurisdiction exceed 
their powers," says Chancellor Kent, at page 290, " the whole 
proceeding is coram non judice, and all concerned in such void 
proceedings are held to be liable in trespass. (Case of the 
Marshalsea, 10 Co. 68 ; Terry v. Huntington, Hardres 480.) 
But I believe this doctrine has never been carried so far as to 
justify a suit against the members of the superior courts of 
general jurisdiction for any act done by them in a judicial 
capacity." 

Briggs v. WarclwelU 10 Mass. 356 (1813). A justice of peace 
was held liable in trespass where a party was imprisoned under 
an execution issued only two or three hours after judgment, — 
the law being that none could be issued within twenty-four 
hours, — the court holding that issuing the execution was a 
ministerial act. 

Lincoln v. Eapgood, 11 Mass. 350 (1814). Parker, C. J.: 
Held., that an action lies against the selectmen of a town for 
refusing the vote of a qualified voter, though there be no 
malice. [Questions whether defendants acted judicially or 
ministerially not discussed.] 



CREPPS V. DUKDEX ET ALIOS. 1033 

Little V. Moore, 4 N. J. 74 (1818). Held, that a justice of 
the peace having jurisdiction was not liable for an erroneous 
judgment. " In courts of general jurisdiction an action never 
lies against the judge, because he has jurisdiction of all causes ; 
in courts of limited jurisdiction it lies only when he exceeds that 
jurisdiction and therefore is not in the exercise of his judicial 
authority" (j^gr curiam^. 

Bigelow v. Stearns, 19 Johns. 39 (1821). Trespass for false 
imprisonment. Defendant justified as a justice of the peace. 
The statute under which defendant acted provided that a per- 
son before commitment should be brought before the justice ; 
but plaintiff here was committed by defendant without being 
produced. The record was regular. It was held that the plain- 
tiff might go behind the record, and that defendant was liable, 
not having acted within his jurisdiction. Page 40. "If a court 
of limited jurisdiction issues a process which is illegal, and not 
merely erroneous ; or if a court, whether of limited jurisdiction 
or not, undertakes to hold cognizance of a cause without having 
gained jurisdiction of the person, by having him before them in 
the manner required by law, the proceedings are void. And 
in case of a limited or special jurisdiction, the magistrate at- 
tempting to enforce a proceeding founded on any judgment, 
sentence, or conviction, in such a case, becomes a trespasser." 

Cunningham v. Bucklin, 8 Coiv. 178 (1828). Commissioners of 
insolvency were sued by a creditor of an insolvent, for discharg- 
ing the insolvent, corruption being charged. The statute made 
their decision conclusive as to the propriety of their acts. It 
was held that they were not liable. 

Randall v. Brigham, 7 Wall. 523 (1868). Plaintiff, an attor- 
ney-at-law, of Massachusetts, sued defendant, a judge of the 
Massachusetts Superior Court, for wrongful removal of plain- 
tiff from the bar. The court below mstructed the jury that the 
action could not be maintained, and defendant had a verdict. 
This ruling was sustained. Field, J. : Defendant was a judge 
of superior jurisdiction. " In reference to judges of limited and 
inferior authorit}^, it has been held that they are protected only 
when they act within their jurisdiction. If this be the case Avith 
respect to them, no such limitation exists with respect to judges 
of superior or general authority. They are not liable to civil 
actions for their judicial acts, even when such acts are in excess 
of their jurisdiction, unless, perhaps, where the acts in excess of 



1034 CEEPPS V. DURDEX ET ALIOS. 

jurisdiction are done maliciously or corruptly, &c." Judge Field 
cites no authorit}' for the doubt expressed in the last proposition. 
It would seem, however, that the action of the defendant, was, 
in part, proper. This case, with the law as expressed in the 
opinion, seems to have settled the law in the United States 
jui'isdiction. Consult Galpin v. Page, 18 Wall. 350. 

Bradley v. Fisher, 13 Wall. 335 (1871). A suit by an attorney 
against a judge who, sitting at regular term in the District of 
Columbia, had disbarred him. The plaintiff's position was, 
practically, that the defendant's action had been so taken as to 
make it coram non judice and void ; the plaintiff sued for com- 
pensation. The supreme court held that the plaintiff could 
sustain no action. The court, in a long and well-considered 
opinion, said, per Field, J. : " A distinction must be here ob- 
served between excess of jurisdiction and the clear absence of 
all jurisdiction over the subject-matter. Where there is clearly 
no jurisdiction over the subject-matter, any authority exercised 
is a usurped authority, and for the exercise of such authority, 
when the want of jurisdiction is known to the judge, no excuse 
is permissible." 

Busteed v. Parsons (1875), 54 Ala. 393. Plaintiff sued for 
false imprisonment. Defendant pleaded that as a judge of the 
United States District Court for the Middle District of Ala- 
bama, he imprisoned plaintiff. The declaration alleged that 
plaintiff was imprisoned maliciously and without probable 
cause. Plea alleged a due complaint, &c. Issues came up on 
the plea, " not guilty," and a special plea. Plaintiff urged that 
the charge was wholly outside of the jurisdiction of the United 
States District Court. Held, that the defendant was not liable 
in any event. United States courts are of superior though of 
special jurisdiction. The court seems to go the full length of 
holding that no action whatever, of a civil nature, will lie 
against a judge of a superior court for anything done in a 
judicial capacity, even though he be in error in holding that 
given facts give him jurisdiction. 

Lange v. Benedict, 73 JY. Y. 12 (1878). Action for false 
imprisonment. The complaint alleged that defendant was a 
judge of the United States District Court for the Eastern Dis- 
trict of New York. He presided at a circuit court. Plaintiff 
was indicted and convicted for stealing mail bags from the 
United States, the value being found to be less than $25. By 



CREPPS V. DUEDEX ET ALIOS. 1035 

the act defining tlie crime tlie penalty Tvas imprisonment for 
one year or $200 fine. Defendant sentenced plaintiff to hotli. 
Plaintiff paid the fine. On habeas corpus^ afterward, defendant 
re-sentenced plaintiff to one year imprisonment. The supreme 
conrt of the United States discharged plaintiff from imprison- 
ment. Demurrer by defendant to the complaint stating all the 
facts. Held, that defendant was not liable. The point dis- 
cussed was really the liability for the second sentence. Folger, 
J. : " He [the defendant] was, in fact, sitting in the place of 
justice; he was, at the very time of the act, at court; he was 
bound by his duty to the public and to the plaintiff to pass as 
such, upon the question growing out of the facts presented to 
him, and as a court to adjudge whether a case had arisen in 
which it was the demand of the law, that on the vacatino- of 
the unlawful and erroneous sentence or judgment of the court, 
another sentence or judgment could be pronounced upon the 
plaintiff. So to adjudge was a judicial act, done as a judge, as 
a court ; though the adjudication was erroneous, and the act 
based upon it was without authority and void." 

The court had jurisdiction up to the vacating of the last 
sentence. " This act of the defendant was then one in excess of 
or beyond the jurisdiction of the court. And though where 
courts of special and limited jurisdiction exceed their powers, 
the whole proceeding is coram 71071 judiee, and void, and all con- 
cerned are liable, this has never been carried so far as to justify 
an action against a judge of a superior court, or one of general 
jurisdiction for an act done by him in a judicial capacity." See 
London Law Journal, Aug. 24, 1878, for approving comment. 

Pickett V. Wallace^ 57 Cal. 555 (1881). Li this case, the 
complaint set forth that the defendant sitting as the supreme 
court, knowing that the plaintiff had not committed a contempt 
and not having acquired jurisdiction over his person, mali- 
ciously, &c., adjudged him guilty of a contempt and caused his 
imprisonment. Demurrer. The demurrer was sustained. The 
court said that "judges of courts of record, of superior or 
general jurisdiction, are not liable to civil actions for their judi- 
cial acts, even when the acts are in excess of their jurisdiction, 
and are alleged to have been done corruptly and maliciously." 
See Turpen v. Booth, 56 Cal. Qb. This case goes the full 
length, apparently, of holding that even where no jurisdiction is 
acquired of the person, a superior court judge is not responsible 



1036 CKEPPS Y. DUEDEX ET ALIOS. 

for his acts, while acting in a court of justice. The prevailing 
doctrines of the law, as expounded in Lange v. Benedict and 
some of the other cases supra^ are scarcely likely to be changed, 
as was well said by Chancellor Kent in Yates v. Lansimj. '' No 
man can foresee the disastrous consequences of a precedent in 
favor of such a suit. Whenever we suljject the established 
courts of the land to the degradation of private prosecution, Ave 
subdue their independence and destroy their authority. Instead 
of being venerable before the public, they become contempti- 
ble ; and we thereby embolden the licentious to trample upon 
everything sacred in society, and to overthrow those institu- 
tions which have hitherto been deemed the best guardians of 
civil liberty.*' The general conclusions which we reach upon a 
review of the cases, seem to be these : (1) That a judge of a 
superior court is never liable civilly for any act of a judicial 
character performed while sitting in the place of justice and 
acting judicially, provided he has jurisdiction of the person and 
subject-matter, however erroneous or even malicious such act 
may be. (2) That he is not liable civilly for any judicial act, 
provided he has once acquired jurisdiction of the general sub- 
ject-matter and of tlie person, even though he exceed that juris- 
diction previously acquired. (3) That he is not liable civilly 
for any judicial act, even though he does not in fact acquire 
jurisdiction of the person, if he has reason to think he has ac- 
quired jurisdiction of the person, and is called upon to pass upon 
the question whether or not he has jurisdiction, provided he has, 
or, perhaps, even has reason to think he has, jurisdiction of the 
general subject-matter. (4) That he is probably liable civilly, 
if he acts without apparent jurisdiction of the subject-matter, 
and of the person. (5) That he is considered to be acting judi- 
cially, whenever liis act is such as falls within the general powers 
of a judge, even if apparently ministerial in its nature, and is 
sitting in the place of justice, acting with authority as judge 
of the court of which he is a member. 

II. 

Suits against Judges of Inferior Courts. 

(^a) Where a judge of an inferior court, or any person acting 
judicially, acts -writhin his jurisdiction, erroneously, but in good 
faith. — Our review, historically, of the cases bearing upon the 



CEEPPS V. DUKDEN ET ALIOS. 1037 

liabilities of judges of superior courts, makes it unnecessary to 
go over the same ground here, as to the development of the 
rule bearing upon judicial officers of inferior jurisdiction. The 
general rule is that where a judge of an inferior court, or any 
person acting judicially, acts within the general scope of his 
jurisdiction, and in good faith, but acts erroneously, he will not 
be liable to any party for his action. This proposition would 
seem to be very clear, both from the cases and as a matter of 
reason; Reed v. Conway, 20 Mo. 22; Doswell v. Imfrey, 1 B. 
& Cr. 163 ; Bushell's Case, Vaughan 135 ; Hammond v. Howell, 
1 Mod. 184; Fausler v. Parson, 6 W. V. 486; White v. Morse, 
139 Mass. 162 ; Levy v. Moylan, 10 C. B. 189 ; Tyler v. Alford, 
38 Me. 530; Kibling v. Clark, 53 Vt. 379; Hill v. Sellick, 21 
Barb. 207 ; Weaver v. Devendorf, 3 Denio 117 ; Brown on Ac- 
tions at Law, 191-200 ; Wheeler v. Patterson, 1 N. H. 88; Ken- 
dall V. Stokes, 3 How. U. S. R. 87 ; Weckeley v. Geyer, 11 S. 

6 R. 39 ; Jenkins v. Waldron, 11 Johns. 114 ; Hitch v. Lam- 
bright, 66 Ga. 228 ; Linford v. Fitzroy, 13 Q. B. 240 ; Holcomb 
V. Cornish, 8 Conn. 375 ; Fischer v. Langbein, 103 N. Y. 84, 
dicta ; Harman v. Brotherson, 1 Den. 537 ; Landt v. Hilts, 19 
Barb. 283 ; Marks v. Townsend, 97 N. Y. 590 ; Miller v. Adams, 

7 Lans. 133 ; Hamilton v. Williams, 26 Ala. 527 ; Lowther v. 
Radnor, 8 East 113 ; Pike v. Carter, 3 Bing. 78 ; Calder v. Hal- 
ket, 3 Moore's P. C. 28, at p. 78 ; Grove v. Van Duyn, 44 N. J. 
Law 654 ; Morton v. Crane, 39 Mich. 31. Accordingly, it has 
been held that where a surveyor-general who, as a public offi- 
cer was obliged to exercise his discretion, discharged, errone- 
ously, a surveyor, he was not liable ; Reed v. Conway, 20 Mo. 22. 
Where commissioners of bankruptcy, having jurisdiction of the 
subject-matter, decided erroneously, they were held not to be 
liable ; Doswell v. Imfrey, 1 B. & Cr. 163. A similar decision 
has been reached regarding a county board of registration ; Faus- 
ler V. Parson, 6 W. V. 486 ; action of a commander of a war- 
ship, Wilkes V. Dinsman, 7 How. (U. S.) 89 ; Burns v. Nowell, 
5 Q. B. D. 444. School trustees who, in course of their duties, 
made a decision which was erroneous, but was made in good faith, 
were held not to be liable ; Hill v. Sellick, 21 Barb. 207. An 
assessor of taxes, who acts judicially, though erroneousl}', is not 
liable for his erroneous act ; Weaver v. Devendorf, 3 Den. 117. 
So it has been held that where a moderator of a town or other 
meeting, acts judicially, but erroneously, in refusing a vote of a 



1038 CREPPS V. BURDEN ET ALIOS. 

qualified voter or in any similar matter, he is not liable ; Wheeler 
V. Patterson, 1 N. H. 88 ; Weckeley v. Geyer, 11 S. & R. 35, at 
p. 39; Jenkins v. Waldron, 11 Johns. 114. 

In Kendall v. Stokes, 3 ffow. U. S. Rep. 87, the suit was by 
a government contractor against a secretary of the United 
States Treasury for refusing to allow, upon the government 
books, certain items. This was shown to be an error of judg- 
ment, but the error was without bad faith. It was held that, 
as the defendant acted quite in good faith, and judicially, he 
was not liable. See Gridley Exr., &c., v. Lord Palmerston, 7 
J. B. :\Ioore M. 

(h^ Where a judge of an inferior court or any person acting in 
a judicial, but inferior and limited capacity, acts beyond his juris- 
diction. — This includes the precise instance presented by our 
principal case, and although the rules of law in this regard 
have undergone some slight modification since the decision in 
Crepps V. Durden, the general rule is still in most jurisdictions 
substantially what it Mas as established by that case. The 
" Jervis Acts " (11 & 12 Vict. ch. 44) have not, in general, been 
copied in the states, and the questions touched by them have 
been left to be worked out by the courts. 

In Gricler v. Tally, 11 Ala. 422, it was held that when a 
probate judge, empowered and directed under the statute to 
grant licenses, refused a license properly applied for, he was 
liable. It will be observed here that the judge was held not 
for any positive tort committed in the exercise of his jurisdic- 
tion, but for refusing to act where the law called for action. 
The act was regarded as ministerial. 

White V. Morse, 139 Mass. 162, is a case which, at first sight, 
and even, perhaps, upon consideration, may be found to be con- 
trary to the principles established in Crepps v. Durden. In 
White V. Morse the defendant, a trial justice, rendered a judg- 
ment for costs in violation of a statutory provision, and the 
plaintiff sued for acts done under that judgment. It was held 
that the defendant was not liable, the court saying (p. 163), 
" his error was an error of judgment in deciding a question of 
law which he was obliged to decide, and which was within the 
scope and limits of his jurisdiction. For such an error he was 
not liable to the plaintiff whose proper remedy was by an 
appeal." On the whole, it would seem that this case is directly 
contrary to Crepps v. Burden (which case, by the way, is not 



CREPPS V. DUKDEN ET ALIOS. 1039 

cited in White v. Morse ; in Crepps v. Burden the defendant 
had equally and in the same sense to decide "a question of 
law which he was obliged to decide, and which was within the 
scope and limits of his jurisdiction," that is, the general duty 
to punish the offences of which the prisoner was charged. The 
decision of the justice was beyond his jurisdiction as much in 
one case as the other. Where a justice of the peace has author- 
ity to grant attachments in a certain manner, and he acts in 
a different way, he is liable ; People v. Jarrett, 7 111. App. 566 ; 
see II. Milliard on Torts, ch. 28, § 5. A judge of a county 
court in England, acting beyond his territorial jurisdiction, is 
liable for the consequences of his illegal judgment; Houlden v. 
Smith, 19 L. J. N. S. 23, 170. Where a justice of the peace had 
jurisdiction to commit, but also inflicted a penalty, he was held 
to be liable ; Patzack v. Von Gerichten, 10 Mo. App. 424 ; ac- 
cord, Phillips V. Thrall, 26 Kas. 780. 

In Divrden v. Belt^ 61 Cia. 545, where a justice acted under a 
garnishment proceeding which was void, he was held liable. 

In McClure v. Hill^ 36 Ark. 268, the affidavit in replevin 
before a justice of the peace did not show that the goods were 
under $300 in value, the limit of his jurisdiction. The goods 
were of a greater value. Jleld, that both the justice and the 
officer who executed the attachment were liable. Where a jus- 
tice of the peace distrained goods of a person not liable to 
militia fines, he was held to be liable ; Wise v. Withers, 3 Cr. 
331. It has been held that when a justice gave a judgment 
against a person under an unconstitutional act of the legisla- 
ture, and the person suffered thereby, he was liable ; Piper v. 
Pearson, 2 Gray 120 ; Clark v. May, 2 Gray 410 ; Sullivan v. 
Jones, 2 Gray 570. A justice of the peace, or other inferior 
judicial officer, must pursue his statutory authority' with rea- 
sonable strictness, or he will be liable ; Bigelow v. Stearns, 19 
Johns. 39; and see McClure v. Hill, 36 Ark. 268; Hall v. 
Howd, 10 Conn. 514 ; Starr v. S.cott, 8 Conn. 480 ; Estopinal v. 
Peyroux, 37 La. Ann. 477 ; Brooks v. St. John, 25 Hun 540. 
Where a justice of the peace issues an attachment against a 
defendant, and the cause of action is not one of those within 
the statutory grounds, the justice is liable for the consequences 
of his action ; Wright v. Rouss, 18 Neb. 234. Consult in this con- 
nection, Carratt v. Morley, 1 Q. B. 18 ; Houlden v. Smith, 14 Q. 
B. 839. A case which seems to have a bearing contrary to the 



1040 CREPPS V. DUEDEN ET ALIOS. 

cases cited from 2 Gray^ supra, is that of Henke v. McCord, 55 
la. 378. In that case the defendant issued a warrant by virtue 
of which hquors were seized, under a void city ordinance. Held^ 
that defendant was not liable. 

In Hill V. SellicJc, 21 Barb. 207, the defendants, who were 
school trustees, seem to have acted under a mistake of Imc as 
well as fact. They were, however, held not to be liable ac- 
cord, Weaver v. Devendorf, 3 Den. 117 ; Linford v. Fitzroy, 
13 Q. B. 240 ; Holcomb v. Cornish, 8 Conn. 375, and other cases, 
supra. These cases all proceed upon the assumption of pre- 
viously acquired jurisdiction. Where a justice of the peace, 
having acquired jurisdiction of one defendant only, causes exe- 
cution to issue against two, he is liable to the one of whom he 
did not acquire jurisdiction ; Little v. Moore, 1 South. 74. It 
is well settled also that where a justice or other officer act- 
ing judicially, is obliged to pass in liis judicial capacity upon 
some jurisdictional fact, and he decides it in favor of jurisdic- 
tion he will not, when acting honestly, be liable for an erroneous 
decision of such fact. This is subject to the qualification, that 
he must have sonie evidence upon which to pass. This is to be 
carefully distinguished from the case when, as in Crepps v. Bur- 
den, his error of decision arises from a mistake as to his legal 
powers. These cases are also to be distinguished from cases 
like Hill v. SelUek, supra, where the mistake of law is after the 
court has acquired full jurisdiction. 

The case of Morton v. Crane, 39 Mich. 526, is important in this 
connection. The plaintiff sued defendant, who was a justice of 
the peace, in trespass on the case for acts done under an illegal 
judgment. Among other irregularities or defects in the pro- 
ceedings, it appeared that the summons was served by the plain- 
tiff in that proceeding. At the return day a person who was 
not authorized appeared for the defendant, — plaintiff here, — 
and consented to an adjournment. The service, it seems, was 
void. Judgment was entered against the plaintiff in tliis suit 
for non-appearance upon the adjourned day, and under the 
judgment the plaintiff suffered injuiy for which he sues. The 
court (decision by Cooley, J.) held that the defendant was not 
liable. The court used the following language : " That the 
action was judicial is unquestionable. A suit had been begun, 
and it was the duty of the justice to call it and see if the 
parties appeared. The plaintiff did appear and Hitchcock 



CKEPPS Y. DUEDEX ET ALIOS. 1041 

answered for the defendant. If lie answered with authority, 
the justice was possessed of the case for the purposes of a trial ; 
but if not, the suit would go down unless a new summons was 
taken out. A question was therefore presented for the deci- 
sion of the justice, whether Hitchcock was or was not author- 
ized to appear, and upon this the justice was compelled to pass. 
No reason can be assigned for holding him responsible for an 
erroneous decision of this question that would not apply to the 
case of an error at any stage of the case." The cUfficulty here 
seems to lie in holding that the court ever acquired jurisdiction. 
Justice Cooley expressly says in his decision that if there had 
been no appearance, the suit would have gone down. The 
true principle here seems to be that a justice is always protected 
in any decision, however erroneous, if the facts as presented 
warranted him in deciding that he had jurisdiction, although 
he in fact never acquired it. "When a justice of the peace acts 
in good faith upon a complaint setting forth all facts necessary 
for his action, he is not liable, even though the statements are 
not in fact true. Morton v. Crane, supra ; Lowther v. Radnor, 
8 East 113; Pike v. Carter, 3 Bing. T8; Calder v. Halket, 3 
Moore's P. C, 28, at p. 78 ; Miller v. Grice, 2 Rich. (Law) 27. 

But the rule is, of course, otherwise, if the complaint does 
not show jurisdictional facts and they do not in truth exist ; 
Carratt v. ]\lorley. 1 Q. B. 18, and many cases, supra. 

(e) Where a justice or other judicial ofBcer of a court of inferior 
jurisdiction acts maliciously or fraudulently. — Whether or not 
where a justice of the peace or other judicial officer of an in- 
ferior court, acting within his jurisdiction, judicially and not 
ministerially, is liable for acting erroneously and maliciously, is 
a question upon which there is an apparent conflict of views. 
As it is not closely connected with our subject, we shall pass it 
over with slight comment. 

In Maryland such an officer so acting has been held liable ; 
Knell V. Briscoe, 49 Md. 414. So in Iowa, perhaps New York, 
Louisiana, perhaps South Carolina ; Abrams v. Carlisle, 18 S. C. 
242 ; Go wing v. Gowgill, 12 Iowa 495 ; Tomkins v. Sands, 8 
Wend. 462 ; Estopinal v. Peyroux, 37 La. Ann. 477. 

In Massachusetts, Indiana, Iowa, probably Michigan, a con- 
trary view prevails ; Pratt v. Gardner, 2 Cush. 63 ; Kress v. 
Wagoner, 65 Ind. 106 ; Wasson v. Mitchell, 18 Iowa 153 ; Lon- 
degan v. Hammer, 30 Iowa 508. Dictum of Cooley, J., in Mor- 



1042 CREPPS Y. DURDEN ET ALIOS. 

ton V. Crane, 39 Mich. 526, at p. 530 ; Wilson v. Mayor, 1 Dev. 
595, at p. 599 ; Anderson v. Park, 57 Iowa 69 ; Stone v. Graves, 
8 :Slo. 148 ; Taylor v. Doremus, 16 N. J. (Law) 473. See, as 
to general principle, Linford v. Fitzroy, 13 Q. B. 240 ; Gelen 
V. Hall, 2 H. & N. 379. 

The weight of authority probably is that no action lies 
against a judicial officer, having jurisdiction, when acting judi- 
cially, even though he acts erroneously and with malice. A 
similar rule applies to grand jurors ; Turpen v. Booth, 56 Cal. 65. 
Neglect by a justice to perform his official duty as to a minis- 
terial act may render him liable ; Carpenter v. Warner, 138 
Ohio St. 416. 

Many of the cases which hold that a judicial officer is liable 
for malicious action may be explained on the ground that, in 
the view of the court, the act complained of, e.g., illegally re- 
fusing bail, was a ministerial and not a judicial act. 

III. 

Liahility of Ministerial Officers ivho act under Void Proceedings. 
— As this is not closely connected with our subject, it will be 
treated briefly. It seems, on the whole, however, to be suffi- 
ciently germane to the subject for mention. 

As a rule, an officer acting under the warrant of a court, 
where the warrant is regular upon its face, is not liable, even if 
the judgment upon which the warrant is founded is erroneous or 
even void; Levy v. Moylan, 10 C. B. 189 ; McClure v. Hill, 36 
Ark. 268 ; Baird v. Campbell, 4 W. & S. 191 ; Mills v. Martin, 
19 Johns. 7 ; Scott v. Rucker, 19 Mo. App. 587 ; Elsmore v. Long- 
fellow, 76 Me. 128 ; Collins v. Mann, 15 W. Va. 171 ; Clark 
V. Bo^ve, 60 How. Pr. 98; Chipstead v. Porter, 63 Ga. 220; 
Archibeque v. Miera, 1 New Mexico 419 ; Lake v. Biller, 1 
Ld. Ray. 733 ; Shipman v. Clark, 4 Den. 446 ; Foster v. Petti- 
bone, 20 Barb. 350 ; Hallett v. Byrt, Carthew 380 ; Simpson v. 
Reynolds, 14 Barb. 506 ; Andrews v. Maris, 1 Q. B. 3 ; Webb v. 
Batchelor, 1 Vent. 273; Chegnay v. Jenkins, 1 Seld. 376; 
Patchin v. Ritter, 27 Barb. 34 ; Wood v. Davis, 34 N. H. 328 ; 
Wood V. Alleghany City, 18 Pa. St. 55 ; Cody v. Quinn, 6 Ired. 
(Law) 191 ; Hecker v. Jarrett, 3 Brim. 404 ; Billings v. Russell, 
23 Pa. St. 189 ; People v. Warren, 5 Hill 440 ; People v. Cooper, 
13 Wend. 379; Webber v. Gay, 24 Wend. 485; Watson v. 



CREPPS V. DUEDEN ET ALIOS. 1043 

Watson, 9 Conn. 141 ; State v. Weed, 21 N. H. 262 ; Champaign 
County Bank v. Smith, 7 Ohio St. 42 ; Sprague v. Richard, 1 
Wis. 457 ; Henderson v. Brown, 1 Carr. 92 ; Stoddard v. Tar- 
bell, 20 Vt. 321 ; Darling v. Brown, 10 Vt. 148 ; Savacool v. 
Boughton, 5 Wend. 170 ; Hecker v. Jarrett, 3 Brim. 404 ; Moore 
V. Houston, 3 S. & R. 169, seyn. ; Robinson v. Brennan, 90 N. 
Y. 208 ; Barr v. Boyles, 96 Pa. St. 31 ; Norcross v. Nunan, 61 
Cal. 640 ; Philipps v. Spotts, 14 Neb. 139 ; Collins v. Mann, 15 
W. Va. 171. But see Martyn v. Podger, 5 Burr. 2631; Daman 
V. Bryant, 2 Pick. 411 ; Hill v. Bateman, 2 Str. 710 ; Howard 
V. Cosset, 10 Q. B. 359 ; Morse v. James, Wills 122 ; Tobin v. 
Addison, 2 Strobh. 3 ; Ford v. Babcock, 1 Den. 158 ; Barrett 
V. Crane, 16 Vt. 246 ; Cable v. Cooper, 15 Johns. 152 ; Brown 
V. Compton, 8 T. R. 424 ; case of the Marshalsea, 10 Coke 68a. 

It is otherwise if the warrant shows upon its face that the 
judgment upon which it is founded was in a proceeding coram 
non judice ; Hall v. Howd, 10 Conn. 514 ; Starr v. Scott, 8 
Conn. 480 ; Beazeley v. Dunn, 8 Rich. 345 ; Sagendorph v. Shult, 
41 Barb. 102 ; Carratt v. Morley, 1 Q. B. 18 ; Mitchell v. Har- 
mony, 13 How. 115 ; Gruman v. Raymond, 1 Conn. 39 ; Sanford 
V. Nichols, 13 Mass. 286 ; Bonaker v. Evans, 16 Q. B. 162; Clarke 
V. Bond, 7 Baxter 288 ; Kentzler v. Chicago, &c., Ry., 47 Wis. 
641. 

In Fisher v. McG-m^ 1 G-rai/l, it was held that an officer exe- 
cuting a warrant under a judgment of an inferior court, which 
judgment was founded upon an unconstitutional statute, was 
liable ; Kelly v. Bemis, 4 Gray 83 ; Henke v. McCord, 55 la. 
378, semble contra. 

IV. 

Liability of Parties and Attorneys who instigate Proceedings 
ivhich are Invalid. 

The remark which applied to (HI.) supra, regarding connec- 
tion with our subject applies here. The subject will be treated 
briefly and without consideration of the finer distinctions pre- 
sented by the cases. To avoid repetition, the numerous cases 
which involve the subject under this head, and which have been 
cited above, will be cited here only so far as seems necessary 
to make the subject clear. As a general rule, neither a party or 
attorney is liable for the consequences of an illegal proceeding 



1044 CREPPS V. DURDEN ET ALIOS. 

where his acts do not amount to a malicious prosecution, and 
where he takes no active and positive part in carrying out the 
process. When a person applies to a court and properly st^ates 
the facts, and the court takes some action under which another 
person receives injury, the person applying to the court is not, 
in general, liable, where he takes no active part, even if the 
proi'eeding is without authority and void; West v. Smallwood, 
3 :\i. & W. 418. Consult Painter v. Liverpool Gas Co., 3 Ad. & 
E. 433 ; Cohen v. Morgan, 6 Dowl. & Ry. 8 ; Barker v. Stetson, 
7 Gray 53; Baid v. Campbell, 4 W. & S. 191 ; Field v. Ander- 
son, 103 111.403; Carratt v. Morely, 1 Ad. & El. N. S. 18; 
Bigelow on Torts, 3d. ed. 128; Cooper v. Harding, 7 Q. B. 
928 ; Pec'kham v. Tomlinson, 6 Barlj. 253 ; Williams v. Smith, 
14 C. B. N. S. 596 ; Smith v. Sydney, L. R. 5 Q. B. 203 ; Cod- 
rington v. Lloyd. 8 Ad. & El. 449 ; Deyo v. Van Valkenburgh, 
5 Hill 242. These numerous cases in accord among those cited 
above. 

In Curry v. Pringle^ 11 Johns. 444, a defendant was held 
liable when he had applied to a magistrate and procured the 
plaintiff's arrest without due cause shown. See case of the 
]\Iarshalsea, 10 Coke 68a. 

Where the attorney or party takes active part in the execu- 
tion of a writ founded upon a proceeding which is coram non 
judice, such officer or party may be held liable ; Barker v. 
Braham, 2 Wm. Bl. 366 ; Deal v. Bogne, 20 Pa. St. 228 ; Emery 
V. Hai^good, 7 Gray 55 ; West v. Smallwood, 3 M. & W. 418 ; 
Parsons v. Loyd, 3 Wils. 341 ; Bryant v. Chilton, 1 M. & W. 
408 ; Codrington v. Lloyd, 8 Ad. & El. 449 ; Green v. Elgie, 5 
Ad. & El. N. S. 99 ; Benham v. Vernon, 3 Cent. Rep. 276. 



LICKBARROW v. MASON. 



IN B. R. CAM. 8CACC. ET DOM. PROC. 
[reported 2 t. r. 63; 1 h. bl. 357; and 6 east, 21.] 

The vendee of goods may hy assignment of the bills of lading to a 
bona fide transferee., defeat the vendor'' s right to stop them in 
transitu, in case of the vendee''s insolvency. 

The consignor may stop goods in transitu before they get iyito the 
hayids of the consignee., in case of the insolvency of the consignee ; 
but., if the consignee assign the bills of lading to a third person 
for a valuable co7isideration, the right of the consignor, as 
against such assignee, is divested. There is no distinction 
between a bill of lading indorsed in blank, and an indorsement 
to a particular person. 

Trover for a cargo of corn. Plea, the general issue. The 
plaintiffs, at the trial before Buller, J., at the Guildhall sittings 
after Easter Term, gave in evidence that Turing and Son, mer- 
chants at Middleburg, in the province of Zealand, on the 22nd 
of July, 1786, shipped the goods in question on board the 
Endeavour for Liverpool, by the order and directions and on 
the account of Freeman, of Rotterdam. That Holmes, as 
master of the ship, signed four several bills of lading for the 
goods in the usual form unto orders or assigns ; two of which 
were indorsed by Turing and Son, in blank, and sent, on the 
22nd of July, 1786, by them to Freeman, together Avith an in- 
voice of the goods, who afterwards received them ; another of 
the bills of lading was retained by Turing and Son ; and the 
remaining one was kept by Holmes. On the 25th of July, 
1786, Turing and Son drew four several bills of exchange upon 
Freeman, amounting in the whole to 477Z., in respect of the 
price of the goods, which were afterwards accepted by Free- 

• 1045 



1046 LICICBARROW Y. MASON. 

man. On the 25th of July, 178G, Freeman sent to the plaintiffs 
the two bills of lading, together with the invoice which he had 
received from Turing and Son, in the same state in which he 
received them, in order that the goods might be taken posses- 
sion of and sold by them on Freeman's account ; and on the 
same day Freeman drew three sets of bills of exchange to the 
amount of 520/. on the plaintiffs, mIio accepted them, and have 
since duly paid them. The plaintiffs are creditors of Freeman 
to the amount t)f 542/. On the 15th of August, 1786, and 
before the four bills of exchange drawn by Turing and Son on 
Freeman became due, Freeman became a bankrupt : those bills 
were regularly protested, and Turing and Son have since been 
obliged, as drawers, to take them up and pay them. The price 
of the goods so shipped by Turing and Son is wholly unpaid. 
Turing and Son, hearing of Freeman's bankruptcy on the 21st 
of August, 1786, indorsed the bill of lading so retained by them 
to the defendants, and transmitted it to them, with an invoice 
of the goods, authorising them to obtain possession of the goods 
on account of, and for the use and benefit of, Turing and Son, 
which the defendants received on the 28th of August, 1786. 
On the arrival of the vessel Avith the goods at Liverpool, on the 
28th of August, 1786, the defendants applied to Holmes for the 
goods, producing the bill of lading, who thereupon delivered 
them, and the defendants took possession of them and for and 
on account of Turing and Son. The defendants sold the goods 
on account of Turing and Son, the proceeds whereof amounted 
to 557Z. Before the bringing of this action the plaintiffs de- 
manded the goods of the defendants, and tendered to them the 
freight and charges ; but neither the plaintiffs nor Freeman 
have paid or offered to pay the defendants for the goods. To 
this evidence the defendants demurred ; and the plaintiffs 
joined in demurrer. 

This was argued in last Trinity Term by Erskine in support 
of the demurrer, and Manly against it; and again, on this day, 
by Shepherd, in support of the demurrer, and Bearcroft contra. 

Shepherd (a), after observing that, as the defendants were 
the agents of Turing and Son, the general question was to be 
considered as between the consignor and the indorsee of the 

(a) As the second argument, with the subject, the former argument is 
the judgment of the court, compre- omitted, 
hended everything tliat was said upon 



LICKBARROW V. MASON. 1047 

bill of lading, contended, first, that, as between the vendor and 
vendee of goods, the former has a right to stop the goods in 
transitu, if the latter become insolvent before the delivery of 
them. And, secondly, that such right cannot be divested by 
the act of the vendee's indorsing over the bill of lading to a 
third person. The first question has been so repeatedly deter- 
mined, that it is scarcely necessary to cite any authorities in 
support of it. (The plaintiff's counsel admitted the position.) 
Then, in order to determine the second, it is material to con- 
sider the nature of a bill of lading. A bill of lading cannot by 
any means be construed into a contract on the part of the con- 
signor to deliver the goods mentioned in it to the consignee ; 
it is only an undertaking by the captain to deliver the goods to 
the order of the shipper. As between the consignor and con- 
signee, it is a bare authority to the captain to deliver, and 
to the consignee to receive them. That this is the true nature 
of a bill of lading appears from all the writers upon mercantile 
law, as MoUoy, Postlethwayte, and Beawes. If it be any sort 
of instrument, it must be contended to amount to a contract by 
the consignor to deliver the goods to the consignee ; but no 
such contract arises upon it, because the consignor is not even 
a party to it ; and no action could be framed upon it against 
the consignor. Then, if it be only a bare authority to the one 
to carry, and to the other to receive the goods, the consignee 
cannot transfer a greater right than he has ; neither can the 
right of the consignor be divested by the act of the consignee. 
If a bill of lading be a negotiable instrument, and conve}^ an 
indefeasible property in the goods, it must be so by the custom 
of merchants ; but such custom is not to be found in any of the 
books treating upon the subject. There are cases which estab- 
lish a contrary doctrine, in which the courts have held that the 
rights of the assignees are the same as the rights of the original 
consignees. It cannot, indeed be disputed but that, as between 
the consignee and the indorsee, the indorsement of a bill of lading 
is a complete transfer of the property which the consignee has 
in it ; but the cases go no further. The case of Snee and Pres- 
cot (a) is precisely similar to the present. There the bill of 
lading was indorsed in blank, and afterwards indorsed over by 
the consignee to his assignees : those assignees were some of 

(a) 1 Atk. 245. 



1048 LICKBARROW V. MASON. 

tlie defendants in that suit, and the}" stood in the same situa- 
tion "with the present phxintiffs. In that ease, before the goods 
arrived, and after tlie indorsement of the bill of lading by the 
consignee, the consignee having become a bankrupt, the goods 
were stopped in transitu by order of the consignor, by an 
indorsement of the bill of lading, which was left with him, to 
another of the defendants ; there Lord HardwieTce decreed that 
the indorsement did not absolutely transfer the property in the 
goods in the event of the consignee's becoming a bankrupt 
before the arrival of the goods ; that as the goods had been 
stopped in transitu, by order of the consignor, he had a right 
to detain them till the sum which he was to advance to the 
consignee on account of them was paid ; and that the surplus 
arising from the produce of the goods should be paid to the 
indorsees of the consignee. Now, unless Lord Hardivicke had 
been of opinion that the indorsement by the consignee did 
not absolutely transfer the property in the goods, he would 
have decreed that the indorsees should have been first paid 
the money wliieh they had advanced upon the credit of the bill 
of lading, and then that the surjilus should have been paid 
to the consignor; but instead of that he gave a priority to 
the consignor. This doctrine is not only laid down in a court 
of equity, but confirmed in a court of law in the case of 
Savignac and Guff (^a), where the same question was tried 
between the same parties as at present. There Salvetti, a mer- 
chant in Italy, consigned a quantity of skins to Lingham, residing 
in London, and sent him a bill of lading indorsed in blank. Ling- 
ham, the consignee, indorsed it to Savignac for a valuable con- 
sideration, at the invoice price, showing him at the same time 
the letters of advice and the bills of parcels. The consignee 
not accepting the bills of exchange which the consignor had 
di-awn upon him for the amount of the goods, the consignor 
indorsed the bill of lading remaining in his hands to Cuff, the 
defendant, with orders to seize the goods before they got into 
the hands of the consignee, which he did ; and the action was 
brought against him by the indorsee of the consignee to recover 
the value of the goods. Wallace, Solicitor-General, there argued 
that b}" the indorsement of the bill of lading the property was 
transferred. But Lord Mansfield was of opinion that the con- 

(a) Sittings at Guildhall, cor. Lord MiDisfieUl, Tr. 1778. 



LICKBARKOW V. MASON. 1049 

signor had a right to stop the goods in transitu in the case of 
the insolvency of the consignee, and that the plaintiff, standing 
in the situation with the original consignee, had lost his lien. 
Lord Mansfield Avas first of opinion, that there was a distinction 
between bills of lading indorsed in blank and otherwise ; but he 
afterwards abandoned that ground. But in that case, as the 
consignor had in point of fact received 150?. from the consignee, 
there was a verdict for the plaintiff for that sum. So that the 
result of the verdict was, that the consignor was entitled, under 
those circumstances, to retain all the goods consigned, deduct- 
ing only the sum which he had actually received for part. 
Both these cases establish the construction of the bill of lading 
contended for : and it is to be observed that the verdict in the 
latter was acquiesced in. And indeed to construe it otherwise 
would be opening a great door to fraud, and would be placing 
the indorsee of a consignee of a bill of lading in a better situa- 
tion than the consignee himself in case of his insolvency. 
Suppose the consignee assign over to a third person, who be- 
comes insolvent before the delivery of the goods, such assignee 
would then, notwithstanding his insolvency, have a right to 
get the goods into his possession ; for if the act of indorsement 
absolutely divests the property out of the consignor, he can 
never afterwards get possession of the goods again ; or else 
this consequence would follow, that vendor would have a 
right to seize the goods in transitu till the indorsement, by 
which his right would be divested, and that by the act of in- 
solvency of the indorsee it would be revested. This has never 
been considered to be the same sort of instrument as a bill of 
exchange ; they are not assimilated to each other in any treatise 
upon the subject: nay, bills of exchange are said to be sui juris. 
In their nature they are different : a bill of exchange always 
imports to be for value received; but the very reverse is the 
case with a bill of lading. For in few, if any, instances, is the 
consignor paid for his goods till delivery ; and bills of exchange 
were first invented for the purpose of remitting money from 
one country to another, which is not the case with bills of 
lading. As to the case of Wright and Campbell (a), which may 
be cited on the other side, it will perhaps be said that the 
court awarded a new trial only on the ground of fraud ; but 

(rt) 4 Burr. 2046. 



1050 LICKHAUKOW V. MASON. 

non constat that, if there had been no suspicion of fraud, a new 
trial would not have been granted. So that the law cannot be 
considered to have been decided in that case ; for when a new 
trial is moved for, if the facts Avarrant it, the court awards a 
new trial without going into the law arising upon those facts. 
In such cases tlie law is still left open to be considered on a 
different finding ; since it would be nugatory to determine the 
point of law, wliich may not perha[)S be applicable to the facts 
when found. At the most, there is only an inference of law to 
be drawn from that case, which is not sufficient to overturn 
established principles. Besides, this case is distinguishable 
from that ; for there it appeared that the consignee was the 
factor of the consignor, and as such might bind his principal 
by a sale. 

Beareroft, eontrd. — The question is whether the bond fide 
indorsement for a valuable consideration of a bill of lading to a 
third person is not an absolute transfer of the whole property ? 
This question is of infinite importance to the mercantile world, 
and has never yet been put in a way to receive a solemn de- 
cision in a court of law. For at most it has only been con- 
sidered in a court of equity upon equitable principles, or at 
Nisi Prius in a case the correct state of which is to be doubted. 
The form of tlie ])ill of ladingf is material to bo attended to in 
determining this case ; it is, that the goods are to be delivered 
" to order or to assigns " ; therefore, on the very face of the in- 
strument, there is an authority to the captain to deliver them 
to the consignee or to his assigns; and the question here is, 
who are his assigns ? As between the consignor and consignee 
the rule contended for is not now to be disputed, since it has 
been confirmed by so many authorities ; though, perhaps, it 
were much to be wished that it had never been established: 
but there will be danger in extending it farther. With respect 
to the case of Snee and Prescot^ when it is considered who 
were the parties to the cause, in what court, and upon what 
principles it was decided, it will not be found sufficient to de- 
termine the present case. The actors, the plaintiffs, were not 
the innocent purchasers of a bill of lading ; they were the 
assignees of a bankrupt, and prayed by their bill to get posses- 
sion of the goods, notwithstanding they had not paid for them. 
But this is a case between the consignor and third persons who 
have paid a valuable consideration for the goods ; that case was 



LICKBAEROW Y. MASON. 1051 

likewise in a court of equity, where tlie leading principle is, 
tliat he tvho seeks equity^ must first do what is equitable ; there 
too the decision was founded in some measure, on the custom 
of the Leghorn trade, and the construction of the statute re- 
latinsr to mutual credit ; so that there were united a number 
of circumstances which, taken altogether, induced Lord Hard- 
u'icke's decree, and which do not exist in the present case. And 
it is to be remarked that Lord Hardwicke, thinking it a harsh 
demand against the consignors, said, "he would lay hold on 
anything to save the advantage" which the consignors had, by 
regaining the possession of the goods before they got into the 
hands of the indorsees of the consignee. Then, as to the case 
of Savignac v. Cuff, that had not even the authority of a Nisi 
Prius determination. Lord Mansfield gave no opinion upon 
the question ; for though he said there was no doubt but that, 
as between the vendor and the vendee, the former might seize 
the goods in transitu., if the latter became insolvent before they 
were delivered, yet there he stopped: so that the inclination of 
his mind may be presumed to have been against extending the 
rule. And, after all, the whole circumstance of that case were 
left to the consideration of a jury. Since Lord Raymond''s 
time («) it has been taken to be clear and established law that 
a general indorsement of a bill of lading does transfer the 
propert}'. And Holt, C. J., then said, " that a consignee of a 
bill of lading has such a property that he may assign it over." 
It has now been contended that the right of the consignor 
ought not to be divested by the act of the consignee : but it is 
not by the act of the consignee alone ; for the consignor has 
by his own act enabled the consignee to defeat his right. If 
he had been desirous of restraining the negotiability of the bill 
of lading, instead of making a general indorsement, he should 
have made a special indorsement to his own use. And then 
the holder of the bill of lading would have been considered 
as a trustee for the consignor. The custom of merchants has 
established that the delivery of a bill of lading transfers the 
whole property, Evans v. Martlett, 1 Lord Raym. 271 ; Wright 
V. Campbell, 4 Burr. 2046 ; and Caldwell v. Ball, ante, 1 vol. [T. 
Pt.] 205 (5). Then it has been said, that a bill of lading is not 
transferable like a bill of exchange : but the custom of mer- 

(a) Lord Raym. 271. {h) Vide Hihhert v. Carter, 1 T. R. 745. 



1052 LICKBARROW Y. MASON. 

chants has made that transferable which in its nature perhaps 
is not so ; and the cases above referred to decide that point. 
Though a new trial in the case of Wright v. Campbell was 
granted on a suspicion of fraud, and the law was not expressly- 
adjudged ; yet from Avliat was said by the Court it may be col- 
lected that no new trial would have been awarded, if no fraud 
had existed; and the opinion of Lord Mansfield^ as far as it 
goes, is expressly in point. But, above all arguments, public 
convenience ought to have a considerable influence in the de- 
cision of this question. B}^ the constant course and the uni- 
versal consent and opinion of merchants, bills of lading are 
negotiable : it is highly convenient to trade that they should 
be so ; and if this ease should be determined against the plain- 
tiffs, one of the principal currents of trade will be stopped: 
besides, it will be a hardship on an innocent vendee. 

Shepherd^ in reply. — Though there may be some hardship 
on the vendee if he be to suffer, yet the hardship would be 
equally great on the vendor, who would by a decision against 
him be compelled to deliver up the possession of his goods, 
though at the time of the delivery he knew that he should not 
receive any consideration for them. But convenience requires 
that, if one of these two innocent persons must suffer, the loss 
should be sustained by the consignee. For when a vendor 
consigns his goods, he knows that by the general law he has a 
right to stop them in transitu^ if the consignee become insolvent 
before delivery. But when an indorsee takes an assignment 
of a bill of lading, he takes it with the knowledge of, and sub- 
ject to, that general right which the vendor has. Though the 
case of Snee v. Prescot was determined in a court of equity, yet 
that court could not alter the effect and nature of a legal 
instrument ; which it must have done in that case if the right 
of an indorsee is to be preferred to the consignor. Suppose A. 
sends a bill of lading of goods to B., and the goods themselves 
are in fact never sent out of his possession ; if the indorsement 
of the bill of lading can be said to transfer the property, the 
indorsee would have a right to recover the goods as against the 
original consignor, who had never parted with the possession of 
them. So that the rule contended for would not only divest 
the right which the consignor has to seize the goods in transitu, 
but would also compel him to part with his goods, without 
receiving any consideration, although he had never relinquished 



LICKBAREOW V. MASON. 1053 

his possession. The meaning of the dictum of Lord Holt, in 
Evans v. Martlett, is only that the consignee may assign over 
that right which he has. The case of Caldwell v. Ball was 
merely a question between two solvent indorsees, both of whom 
had an equitable title ; and that case only decided that he who 
first got possession of one of the bills of lading was entitled to 
the goods ; and there, too, the Court determined in favour of 
him who had the possession. 

Ashiirst, J. — As this was a mercantile question of very 
great importance to the public, and had never received a 
solemn decision in a court of law, we were for that reason 
desirous of having the matter argued a second time, rather than 
on account of any great doubts which we entertained on the 
first argument. We may lay it down as a broad general prin- 
ciple, that wherever one of two innocent persons must suffer hy 
the acts of a thirds he who has enabled such third person to occa- 
sion the loss must sustain it (a). If that be so, it will be a 
strong and leading clue to the decision of the present case. It 
has been argued, that it would be very hard on a consignor, 
who had received no consideration for his goods, if he should 
be obliged to deliver them up in case of the insolvency of the 
consignee, and come in as a creditor under his commission for 
what he can get. That is certainly true : but it is a hardship 
which he brings upon himself. When a man sells goods, he 
sells them on the credit of the buyer : if he delivers the goods, 
the property is altered, and he cannot recover them back 
again, though the vendee immediately become a bankrupt. 
But where the delivery is to be at a distant place, as between 
the vendor and vendee, the contract is ambulatory till delivery; 
and therefore, in case of the insolvency of the vendee in the 
meantime, the vendor may stop the goods in transitu. But, as 
between the vendor and third persons, the delivery of a bill 
of lading is a delivery of the goods themselves ; if not, it would 
enable the consignee to make the bill of lading an instrument 
of fraud. The assignee of a bill of lading trusts to the indorse- 
ment ; the instrument is in its nature transferable ; in this 
respect, therefore, this is similar to the case of a bill of ex- 

(«) [See Sioan v. The British Aus- N. 881 ; Ddell v. Atherton, 7 H. & N. 

tralasian Co., 7 H. &N. 603; 31 L. J. 786; Collingu'ood v. Berkeley, 15 C. 

Exch. 425, S. C. ; affirmed in error, B. N. S. 145; Babcock v. Lawson, 4 

32 L. J. 280; Foster v. Green, 7 H. & Q. B. D. at p. 400.] 



1054 LICKBAKROW V. MASON. 

change. If the consignor had intended to restrain the negotia- 
bility of it, he shoukl have contiued the delivery of the goods to 
the vendee only : but he has made it an indorsable instrument. 
So it is like a bill of exchange ; in Avhich case, as between the 
drawer and the payee, the consideration may be gone into, yet 
it cannot between the di-awer and the indorsee ; and the reason 
is, because it would be enabling either of the original parties to 
assist in a fraud. The rule is founded purely on principles of 
law and not on the custom of merchants. The custom of mer- 
chants only establishes that such an instrument may be in- 
dorsed ; but the effect of that indorsement is a question of law, 
which is, that as between the original parties the consideration 
may be int^uired into ; though when third persons are con- 
cerned, it cannot. This is also the case with respect to a bill 
of lading. Though the bill of lading, in this case was at first 
indorsed in blank, it is precisely the same as if it had been 
originally indorsed to this person ; for when it was filled up 
with his name, it was the same as if made to him only. Then 
what was said by Lord Mansfield in the case of Wright v. 
Campbell goes the full length of this doctrine : " If the goods 
be bond fide sold by the factor at sea (as they may be where no 
other delivery can be given), it will be good notwithstanding 
the statute 21 Jac. 1, c. 19. The vendee shall hold them by 
virtue of the bill of sale, though no actual possession is de- 
livered: and the owner can never dispute with the vendee, 
because the goods were sold bond fide, and by the owner's 
own authority." Now in this case the goods were transferred 
by the authority of the vendor, because he gave the vendee a 
power to transfer them ; and being sold by his authority, the 
property is altered. And I am of opinion that this right of the 
assignee could not be divested by any subsequent circum- 
stances. 

Buller, J. — This case has been very fully, very elaborately, 
and very ably argued, both now and in the last term ; and 
though the former arguments on the j^art of the defendant did 
not convince my mind, yet they staggered me so much that I 
wished to hear a second argument. Before I consider the 
effect of the several authorities which have been cited, I will 
take notice of one circumstance in this case which is peculiar 
to it ; not for the purpose of founding my judgment upon it, 
but because I would not have it supposed in any future case 



LICKBARKOW Y. MASOX. 1055 

that it passed unnoticed, or tliat it may not liereafter have any 
effect which it ought to have. In this case it is stated that 
there were four bills of lading : it appears by the books treating 
on this subject, that according to the common course of mer- 
chants there are only three ; one of which is delivered to the 
captain of the vessel, another is transmitted to the consignee, 
and the third is retained by the consignor himself, as a testi- 
mony against the captain in case of any loose dealing. Now, if 
it be at present the established course among merchants to have 
only three bills of lading, the circumstance of there being a 
fourth in this case might, if the case had not been taken out of 
the hands of the jury by the demurrer, have been proper for 
their consideration. I am aware that that circumstance appears 
in the bill, on wliich is written, "in witness the master hath 
affirmed to four bills of lading, allot this tenor and date." But 
we all know that it is not the practice either of persons in trade 
or in the profession to examine very minutely the words of an 
instrument wliich is partly printed and partly written ; and if 
we only look at the substance of such an instrument, this may 
be the means of enabling the consignee to commit a fraud on an 
innocent person. Then how stood the consignee in this case ? 
He had two of the bills of lading, and the captain must have a 
third ; so that the assignee could not imagine that the consignor 
had it in his power to order a delivery to any other person. 
But I mean to lay this circumstance entirely out of my consid- 
eration in the present case, which I think turns wholly on the 
general question : and I make the question even more general 
than was made at the bar, namely, whether a hill of lading is hy 
law a transfer of the prope^-ty (a). This question has been 
argued upon authorities : and before I take notice of any par- 
ticular objections which have been made, I will consider those 
authorities. The principal one relied on by the defendants is 
that of Snee v. Prescot. Now, sitting in a court of law, I should 
think it quite sufficient to say, that that was a determination in 
a court of equity, and founded on equitable principles. The 
leading maxim in that court is, that he ivho seeks equity must 
first do equity. I am not disposed to find fault with that deter- 
mination as a case in equity ; but it is not sufficient to decide 
such a question as that now before us. Lord Hardwicke has, 

(a) [See on this question Seicell v. Burdick, 10 App. Ca.] 



1056 LICKBAEEOW V. MASON. 

with liis usual caution, enumerated every circumstance which 
existed in the case : and, indeed, he has been so particular, that 
if the printed note of it be accurate, which I doubt, it is not an 
authority for any case which is not precisely similar to it. The 
only point of law in that case is upon the forms of the bills of 
lading ; and Lord Hardwieke thought there was a distinction 
between bills of lachng indorsed in blank, and those indorsed to 
particular persons : but it Avas properly admitted at the bar that 
that distinction cannot now be supported. Thus the matter 
stood till within these tliirty years ; since that time the com- 
mercial law of this country has taken a very different turn from 
what it did before. We find in Snee v. Prescot that Lord 
Harchvicke himself was proceeding with great caution, not 
establishing any general principle, but decreeing on all the 
circumstances of the case put together. Before that period we 
find that in courts of law all the evidence in mercantile cases 
were thrown together ; they were left generally to a jury, and 
they produced no established principle. From that time we all 
know the great study has been to find some certain general 
principles, which shall be known to all mankind, not only to 
rule the particular case then under consideration, but to serve 
as a guide for the future. Most of us have heard these princi- 
ples stated, reasoned upon, enlarged, and explained, till we 
have been lost in admiration at the strength and stretch of the 
human understanding. And I should be very sorry to find 
myself under a necessity of diifering from any case on this 
subject which has been decided by Lord Mansjield, who may 
be truly said to be the founder of the commercial law of this 
country. I hope to show, before I have finished my judgment, 
that there has been no inconsistency in any of his determina- 
tions : but if there had, if I could not reconcile an opinion 
which he had delivered at Nisi Prius with his judgment in this 
court, I should not hesitate to adopt the latter in preference to 
the former ; and it is but just to say, that no judge ever sat 
here more ready than he was to correct an opinion suddenly 
given at Nisi Prius. First, as to the case of Wright v. Camp- 
hell, that was a very solemn opinion delivered in tins court. In 
my opinion that is one of the best cases that we have in the law 
on mercantile subjects. There are four points in that case, 
which Lord M(msfield has stated so extremely clear that they 
cannot be mistaken : The first is, what is the case as between 



LICKBAREOW V. MASON. 1057 

the owner of the goods and the factor ; the second, as between 
the consignor and the assignee of the factor with notice ; 
thirdly, as between the same parties without notice ; and, 
fourthly, as to the nature of a bill of sale of goods at sea in 
general. It is to be recollected that the case of Wright v. 
Oamphell was decided by the judge at Nisi Prius upon the 
ground that the bill of lading transferred the whole property at 
law : and when it came before this court on a motion for a new^ 
trial. Lord Mansfield confirmed that opinion : but a new trial 
was granted on a suspicion of fraud ; therefore it is fair to 
infer, that if there had oeen no fraud, the delivery of the bill of 
lading would have been final. If there be fraud, it is the same 
as if the question were tried between the consignor and the 
original consignee. According to a note of Wright v. Camp- 
hell^ which I took in court, Lord Mansfield said, that since the 
case in Lord Raymond, it had always been held that the de- 
livery of a bill of lading transferred the property at law ; if so, 
every exception to that rule arises from equitable considera- 
tions which have been adopted in courts of law. The next 
case is that of Savignac v. Cuff, the note of which is too loose 
to be depended upon : but there is a circumstance in that case 
which might afford ample ground for the decision ; for I can- 
not suppose that Lord Mansfield had forgotten the doctrine 
which he laid down in this court in Wright v. Campbell. There 
he observed very minutely on what did not appear at the trial, 
that no letters were produced, and that no price was fixed for 
the goods : but in Savignac v. Cuff, the plaintiff had not only 
the bills of lading and the invoice, but he had also the letters 
of advice, from which the real transaction must have appeared ; 
and if it appeared to him that Selvetti had not been paid for 
the goods, that might have been a ground for the determination. 
The case of Hunter v. Beal (a) does not come up to the j)oint 
now in dispute ; it only determines what is admitted, that, as 
between the vendor and vendee, the property is not altered till 
delivery of the goods. With respect to the case of Stokes v. 
La Riviere (b), perhaps there may be some doubt about the 
facts of it: however, it was determined upon a different 
ground; for the goods were in the hands of an agent for both 
parties : that case, therefore, does not impeach the doctrine 

(a) Sittings after Trin. 1785, at Guild- (b) Hil. 25 G. 3. 
haU, before Lord Mansfield, C. J. 



1058 LICKBAREOW V. MASON. 

laid down in Wright v. Campbell. It has been argued at the 
bar, that it is impossible for the holder of a bill of lading to 
bring an action on it against the consignor ; perhaps that argu- 
ment is well founded : no special action on the bill of lading 
has ever been brought (a) ; for if the bill of lading transfer the 
property, an action of trover against the captain for non-deliv- 
ery, or against any other person who seizes the goods, is a 
proper form of action. If an action be brought by a vendor 
against a vendee, between whom a bill of lading has passed, the 
proper action is for goods sold and delivered. Then it has 
been said that no case has yet decided that a bill of lading does 
transfer the property : but in answer to that it is to be observed, 
that all the cases upon the subject — Evans v. Martlett, Wright 
v. Campbell, and Caldivell v. Ball, and the universal under- 
standing of mankind — preclude that question. The cases 
between the consignor and consignee have been founded 
merely on principles of equity, and have followed up the 
principle of Snee v. Prescot ; ior if a man has bought goods and 
has not paid for them, and cannot pay for them, it is not equi- 
table that lie should prevent the consignor from getting his 
goods back again, if he can do it before they are in fact de- 
livered. There is no weight in the argument of hardship on 
the vendor : at any rate that is a bad argument in a court of 
law ; but in fact there is no hardship on him, because he has 
parted with the legal title to the consignee. An argument was 
used with respect to the difficulty of determining at what time 
a bill of lading shall be said to ti-ansfer the property, especially 
in a case where the goods were never sent out of the merchant's 
warehouse at all : the answer is, that under those circumstances 
a bill of lading could not possibly exist, if the transaction 
were a fair one ; for a bill of lading is an acknowledgment by 
the captain, of having received the goods on board his ship : 
therefore it would be a fraud in the captain to sign such a bill 
of lading, if he had not received goods on board ; and the con- 
signee would be entitled to his action against the captain for' 
the fraud. As the plaintiff in this case has paid a valuable con- 
sideration for the goods, and there is no colour for imputing 
fraud or notice to him, I am of opinion that he is entitled to 
the judgment of the Court. 

(a) [See now as to the right to sue by statute, post, in not^.'\ 



LiCKBAKKuw V. :\rASON. 1059 

Grose., J. — After tins case had been so elaborately spoken to 
by my brethren, it is not necessary for me to enter fully into the 
questio2i, as I am of the same opinion with them. But I think 
that the impoi'tance of the subject requires me to state the gen- 
eral grounds of my opinion, I conceive this to be a mere ques- 
tion of law, whether, as between the vendor and the assignee of 
the vendee, the bill of lading transfers the property. I think 
that it does. With respect to the question as between the orig- 
inal consignor and consignee, it is now the clear, known, and 
established law that the consignor may seize the goods in tran- 
situ, if the consignee become insolvent before the delivery of 
them. But that Avas not always the law. The first case of that 
sort was that of Wiseman v. Vandeputt in Chancery (a), when, 
on the first hearing, the Chancellor ordered an action of trover 
to be brought, to try whether the consignment vested the prop- 
erty in the consignees ; and it was then determined in a court 
of law that it did ; but the Court of Equity thought it right to 
interpose and give relief : and since that time it has always 
been considered, as between the original parties, that the con- 
signor ma}^ seize the goods before they are actually delivered to 
the consignee in case of the insolvency of the consignee. But 
this is a question between the consignor and the assignee of the 
consignee, who do not stand in the same situation as the orig- 
inal parties. A bill of lading carries credit with it ; the con- 
signor by his indorsement gives credit to the bill of lading, and 
on the faith of that, money is advanced. The first case that I 
find where an attempt was made to introduce the same law be- 
tween the consig-nor and the indorsee of the consio-nee, is that 
of Snee v. Prescot ; but as my brother BnJler has already made 
so many observations on that case, it would be but repetition in 
me to go over them again, as I entirely agree mth him in them 
all, as well as in those which he made on the other cases. 
Therefore I am of opinion that there should be judgment for 
the plaintiff. 

Judgment for the plaintiff (5). 



(a) 2 Vern. 203. the record being afterwards removed 

(6) This jiulgiiient was afterwards into the House of Lords, a venire de 

reversed in tlie Exchequer Chamber, novo was awarded in June, 1793. 

vide Mason v. Lickbarrow, infra. But Vide post, p. 79i. 



1060 LICKBAREOAV V. MASOX. 

MASON AND OTHERS V. LICKBARROW AND OTHERS, IN THE EX- 
CHEQUER CHAMBER, IN ERROR. 

The defendants in the original action, having brought a tvrit of 
error in the Exchequer Chamber, after tivo arguments, the follow- 
ing judgment of that court was then delivered by (a) 

Lord Loughborough. — This case comes before the court on a 
demurrer to the evidence ; the general question, therefore, is, 
whether the facts offered in evidence by the plaintiffs in the 
action are sufficient to warrant a verdict in their favour? 

The facts are shortly these : On the 22nd of July, 1786, Messrs. 
Turing shipped on board -the ship Endeavour, of which Holmes 
was master, at Middleburg, to be carried to Liverpool, a cargo 
of croods bv the order and directions and on the account of Free- 
man, of Rotterdam, for which, of the same date, bills of lading 
were signed on behalf of the master, to deliver the goods at 
Liverpool, specified to be shipped by Turings to order or to 
assigns. On the same 22nd of July, two of the bills of lading, 
indorsed in blank by Turings, were transmitted by them, to- 
gether with an invoice of the goods, to Freeman at Rotterdam, 
and were duly received by him, that is, in the course of post, 
one of the bills being retained by Turings. I take no notice of 
there being four bills of lading, because on that circumstance 
I lay no stress. On the 2oth of July, bills of exchange for a 
sum of 477?., being the price of the goods, were drawn by 
Turings, and accepted by Freeman at Rotterdam ; and Freeman 
on the same day transmitted to the plaintiffs in the action, mer- 
chants at Liverpool, the bills of lading and invoice, which he 
had received from Turings, in order that the goods might be 
sold by them on his account ; and of the same date drew upon 
them bills to the amount of 520?., which were duly accepted, 
and have since been paid by them ; and for which they have 
never been reimbursed by Freeman, who became a bankrupt on 
the 15th of August following. The bills accepted by Freeman, 

(a) Held in Cam. Scacc. that where the bills of lading to a third person 

the consignee of goods becomes in- for a valuable consideration ; the 

solvent, the consignor may stop them right of the consignor not being di- 

in transitu before the consignee gains vested by the assignment. But this 

possession. In such cases also the judgment Avas reversed, and the latter 

consignor may stop the goods in point is now settled otherwise. 
transitu, though the consignee assign 



LICKBARROW V. MASOX. 1061 

for the price of the goods shipped by Turings, had not become 
due on the loth of August, but on notice of his bankruptcy 
they sent the bill of lading which remained in their custody to 
the defendants at Live7yool, with a special indorsement to de- 
liver to them and no other: which the defendants received on 
the 28tli of August, 1786, together with the invoice of the goods 
and a power of attorney. The ship arrived at Liverpool on the 
28th of August, and the goods were delivered by the master, on 
account of Turings, to the defendants, who, on demand and 
tender of freight, refused to deliver the same to the plaintiffs. 

The defendants, in this case, are not stakeholders, but they 
are in effect the same as Turings, and the possession they have 
got is the possession of Turings. The plaintiffs claim under 
Freeman; but though they derive a title under him, they do 
not represent him, so as to be answerable for his engagements ; 
nox are they affected by any notice of those circumstances 
which would bar the claim of him or his assignees. If they 
have acquired a legal right, they have acquired it honestly ; 
and if they have trusted to a bad title, the}' are innocent suf- 
ferers. The question then is, whether the plaintiffs have a 
superior legal title to that right which, on principles of natural 
justice, the original owner of the goods not paid for has to 
maintain that possession of them, which he actually holds at 
the time of the demand? 

The argument on the part of the plaintiffs, asserts that the 
indorsement of the bill of lading by the Turings is an assign- 
ment of the property in the goods to Freeman, in the same 
manner as the indorsement of a bill of exchanofe is an assio-n- 
ment of the debt: that Freeman could assign over that prop- 
erty, and that by delivery of the bill of lading to the plaintiffs 
for a valuable consideration, they have a just right to the prop- 
erty conveyed by it, not affected by any claim of the Turings, 
of which they had no notice. On the part of the defendant it is 
argued, tliat the bill of lading is not in its nature a negotiable 
instrument ; that it more resembles a chose in action ; that tlie 
indorsement of it is not an assignment that conveys any inter- 
est, but a mere authority to the consignee to receive the goods 
mentioned in the bill ; and therefore it cannot be made a secur- 
ity by the consignee for money advanced to him ; but the per- 
son who accepted it must stand in the place of the consignee, 
and cannot gain a better title than he had to give. As these 



1062 LICKBARROW V. MASON. 

propositions on eitlier side seem to be stated too loosely, and as 
it is of great importance that the natnre of an instrument so 
frequent in commerce as a bill of hiding should be clearly de- 
fined, I think it necessary to state my ideas of its nature and 
effect : — 

A bill of lading^ is the written evidence of a contract for the 
carriage and delivery of goods sent by sea for a certain freight. 
The contract in legal language is a contract of bailment; 2 
Lord Rayra. 912. In the usual form of the contract the 
undertaking is to deliver to the order or assigns of the shipper. 
By the delivery on board, the ship-master acquires a special 
property to support that possession which he holds in the right 
of another, and to enable liim to perform his undertaking. The 
general property remains with the shipper of the goods until he 
has disposed of it by some act sufficient in law to transfer prop- 
erty. The indorsement of the bill of lading is simply a direc- 
tion of the delivery of the goods. When this indorsement is in 
blank, the holder of the bill of lading may receive the goods,, 
and his receipt will discharge the ship-master ; but the holder 
of the bill, if it came into liis hands casually without any just 
title, can acquire no property in the goods. A special indorse- 
ment defines the person appointed to receive the goods ; his 
receipt or order would, I conceive, be a sufficient discharge to 
the ship-master ; and in this respect, I hold the bill of lading to 
be assignable. But what is it that the indorsement of the bill 
of lading assigns to the holder or the indorsee ? A right to 
receive the goods and to discharge the ship-master, as having 
performed Iris undertaking. If any further effect be allowed to 
it, the possession of a bill of lading would have greater force 
than the actual possession of the goods. Possession of goods 
is primd facie evidence of title ; but that possession may be 
precarious, as of a deposit ;' it may be criminal, as of a thing 
stolen ; it may be qualified, as of things in tlie custody of 
a servant, carrier, or a factor. Mere possession, without a 
just title, gives no jjroperty ; and the person to whom such 
possession is transferred by delivery, must take his hazard 
of the title of his author. The indorsement of a bill of lading 
differs from the assignment of a chose in action^ that is to say, 
of an obligation, as much as debts differ from effects. Goods in 
pawn, goods bought before delivery, goods in a warehouse, or 
on ship-board, may all be assigned. The order to deliver is an 



LICKB ARROW V. MASON. IO60 

assignment of the thing itself, which ought to be delivered on 
demand, and the right to sue if the demand is refused, is at- 
tached to the thing. The case in 1 Lord Raym. 271 was well 
determined on the principal point, that the consignee might 
maintain an action for the goods, because he had either a 
special property in them, or a right of action on the contract : 
and I assent to the dictum^ that he might assign over his rig-ht. 
But the question remains, What right passes by the first in- 
dorsement, or by the assignment of it? An assignment of 
goods in pawn, or of goods bought but not delivered, cannot 
transmit a right to take the one without redemption, and the 
other without the payment of the price. As the indorsement 
of a bill of lading is an assignment of the goods themselves, it 
differs essentially from the indorsement of a bill of exchange ; 
which is the assignment of a debt due to the payee, and which, 
by the custom of the trade, passes the whole interest in the 
debt so completely, that the holder of the bill for a valuable 
consideration without notice, is not affected even by the crime 
of the person from whom he received the bill. 

Bills of lading differ essentially from bills of exchange in 
another respect. 

Bills of exchange can only be used for one given purpose, 
namely, to extend credit by a speedy transfer of the debt which 
one person owes another, to a third person. Bills of lading 
may be assigned for as many different purposes as goods may 
be delivered. They may be indorsed to the true owner of the 
goods by the freighter, who acts merely as his servant. They 
may be indorsed to a factor to sell for the owner. They ma}^ 
be indorsed by the seller of the goods to the buyer. They are 
not drawn in any certain form. They sometimes do and some- 
times do not express on whose account and risk the goods are 
shipped. They often, especially in time of war, express a false 
account and risk. They seldom, if ever, bear upon the face of 
them any indication of the purpose of the indorsement. To 
such an instrument, so various in its use, it seems impossible to 
apply the same rules as govern the indorsement of bills of ex- 
change. The silence of all authors treating of commercial law 
is a strong argument that no general usage has made them 
negotiable as bills. Some evidence appears to have been given 
in other cases (a) that the received opinion of merchants was 
(a) Snee v. Prescot, 1 Atk. 245 ; Fearon v. Bowers, post. 



10G4 LICKBAKROW V. MASON. 

against their being so negotiable. And unless there was a 
clear, established general usage to place the assignment of a 
bill of lading upon the same footing as the indorsement of a bill 
of exchange, that country which should lirst adopt such a law 
Avould lose its credit with the rest of the commercial world. 
For the immediate consequence would be to prefer the interest 
of the resident factors and their creditors, to the fair claim of 
the foreign consignor. It would not be much less pernicious to 
its internal commerce ; for every case of this nature is founded 
in a breach of confidence, always attended with a suspicion of 
collusion, and leads to a dangerous and false credit, at the haz- 
ard and expense of the fair trader. If bills of lading are not ne- 
gotiable as bills of exchange, and yet are assignable, what is the 
consequence ? That the assignee by indorsement must inquire 
under what title the bills have come to the hands of the person 
from whom he takes them. Is this more dithcult than to in- 
quire into the title by which the goods are sold or assigned? 
In the case of (a) Hartop v. Hoare^ jewels deposited with a 
goldsmith were pawned by him at a banker's. Was there any 
imputation, even of neglect, in a banker trusting to the appar- 
ent possession of jewels by a goldsmith? Yet they were the 
property of another, and the banker suffered the loss. It is re- 
ceived law, that a factor may sell, but cannot pawn, the goods 
of his own consignor, Patterson v. Tash^ 2 Str. 1178. The per- 
son, therefore, who took an assignment of goods from a factor 
in security, could not retain them against the claim of the con- 
signor ; and yet, in this case the factor might have sold them 
and embezzled the money. It has been argued, that it is neces- 
sary in commerce to raise money on goods at sea, and this can 
only be done by assigning the bills of lading. Is it then 
nothing, that an assignee of a bill of lading gains by the 
indorsement ? He has all the right the indorser could give 
him : a title to the possession of the goods when they arrive. 
He has a safe security, if he has dealt with an honest man. 
And it seems as if it could be of little utility to trade, to extend 
credit by affording a facility to raise money by unfair dealing. 
]\Ioney will be raised on goods at sea, though bills of lading 
should not be negotiable, in every case where there is a fair 
ground of credit: but a man of doubtful character will not find 
it so easy to raise money at the risk of others. 

(ffi) 2 str. 1187: 1 Wils. 8. 



LICKBARROW V. MASON. 1065 

The conclusions which follow from this reasoning, if it be 
just, are — 1st. That an order to direct the delivery of goods 
indorsed on a bill of lading is not equivalent, nor even analogous, 
to the assignment of an order to pay money by the indorsement 
of a bill of exchange. 2ndly. That the negotiability of bills, 
and promissory notes, is founded on the custom of merchants, 
and positive law ; but, as there is no positive law, neither can 
any custom of merchants apply to such an instrument as a bill 
of lading. 3rdly. That it is, therefore, not negotiable as a bill, 
but assignable ; and passes such right, and no better, as the 
person assigning had in it. 

This last proposition I confirm by the consideration, that 
actual delivery of the goods does not of itself transfer an 
absolute ownership in them, without a title of property ; and 
that the indorsement of a bill of lading, as it cannot in any 
case transfer more right than the actual delivery, cannot in 
every case pass the property ; and I therefore infer, that the 
mere indorsement can in no case convey an absolute property. 
It may, however, be said, that admitting an indorsement of a 
bill of lading does not in all cases import a transfer of the 
property of the goods consigned, yet where the goods, when 
delivered, would belong to the indorsee of the bill, and the in- 
dorsement accompanies a title of property, it ought in law to 
bind the consignor, at least with respect to the interest of tliird 
parties. This argument has, I confess, a very specious appear- 
ance. The whole difficulty of the case rests upon it ; and I am . 
not surprised at the impression it has made, having long felt 
the force of it myself. A fair trader, it is said, is deceived by 
the misplaced confidence of the consignor. The purchaser sees 
a title to the delivery of the goods placed in the hands of the 
man who offers them to sale. Goods not arrived are every 
day sold without any suspicion of distress, on speculations of 
the fairest nature. The purchaser places no credit in the con- 
signee, but in the indorsement produced to him, which is the 
act of the consignor. The fii'st consideration which affects this 
argument is, that it proves too much, and is inconsistent with 
the admission. But let us examhie what the legal right of the 
vendor is, and whether, with respect to him, the assignee of a 
bill of lading stands on a better ground than the consignee 
from whom he received it. I state it to be a clear proposition, 
that the vendor of goods not paid for may retain the possession 



1066 LICKBAEROW V. MASOX. 

against the vendee ; not by aid of any equity, but on grounds 
of law. Our oldest books (a) consider the payment of the price 
(day not being given (5)) as a condition precedent implied in 
the contract of sale ; and that the vendee cannot take the 
goods, nor sue for them, without tender of the price. If day 
had been given for payment, and the vendee could support an 
action of trover against the vendor, the price unpaid must be 
deducted from the damages, in the same manner as if he had 
brought an action on the contract, for the non-delivery. Snee v. 
Prescot, 1 Atk. 245. The sale is not executed before delivery : 
and in the simplicity of former times, a delivery into the actual 
possession of the vendee or iiis servant was alwa3's supposed. 
In the variety and extent of dealing which the increase of 
commerce has introduced, the delivery may be presumed from 
circumstances, so as to vest a property in the vendee. A 
destination of the goods by the vendor to the use of the 
vendee ; the marking them, or making them up to be delivered ; 
the removing them for the purpose of being delivered, may 
all entitle the vendee to act as owner, to assign, and to main- 
tain an action against a third person, into whose hands they 
have come. But the title of the vendor is never entirely 
divested, till the goods have come into the possession of the 
vendee. He has therefore a complete right, for just cause, to 
retract the intended delivery, and to stop the goods in transitu. 
The cases determined in our courts of law have confirmed this 
doctrine, and the same law obtains in other countries. 

In an action tried before me at G-idldhall, after the last Trin- 
it}^ Term, it appeared in evidence, that one Bowering had 
brought a cask of Indigo of Verrulez and Co. at Amsterdam^ 
which was sent from the warehouse of the seller, and shipped 
on board a vessel commanded by one Tulloh, by the appoint- 
ment of Bowering. The bills of lading were made out, and 
signed b}' Tulloh, to deliver to Bowering or order, who imme- 
diately indorsed one of them to his correspondent in London, 
and sent it by the post. Verrulez, having information of Bow- 
ering's insolvency before the ship sailed from the Texel, sum- 
moned Tulloh the ship-master before the court at Amstei'dam, 
who ordered him to sign other bills of lading, to the order of 



(a) See Hob. 41, and the Year Book (Jt) [See Martindale v. Smith, 1 Q. 

there cited. B. 380.] 



LICKBARKOW V. MASON. 



1067 



Verrulez. Upon the arrival of the ship in London, the ship- 
master delivered the goods, according to the last bills, to the 
order of Verrulez. This case, as to the practice of merchants, 
deserves particular attention, for the judges of the court at 
Amsterdam are merchants of the most extensive dealings, and 
they are assisted by very eminent lawyers. The cases in our 
law, which 1 have taken some pains to collect and examine, are 
very clear upon this point. Snee v. Prescot, though in a court 
of equity, is professedly determined on legal grounds by Lord 
SardivicJce, who was well versed in the principles of law ; and 
it is an authority, not only in support of the right of the owmer 
unpaid to retain against the consignee, but against those claim- 
ing under the consignee by assignment for valuable considera- 
tion, and without notice. But the case of Fearon v. Bowers (a), 



(rt) Fearon v. Bowers, Gnildliall, 
March 28, 1753, coram Lee, C. J. 

Detinue against the master or cap- 
tain of a ship. On the general issue 
pleaded, the case appeared to be, that 
one Hall, of Salishunj, had written to 
Askell and Co., merchants at Malaga, 
to send him 20 butts of olive oil, 
which Aslsell accordingly bought, and 
shipped on board tlie ship Tavistoclv, 
of which the defendant was com- 
mander, who signed tliree bills of 
lading aclsnowledging the receipt of 
the goods, to be delivered to tlie 
order of the shipper. In the bills 
was the usual clause — that one being 
performed, the other two should be 
void. 

The goods being thus shipped, 
Askell sent an invoice thereof, and 
also one of the bills of lading, to 
Hall, indorsed by Askell, to deliver 
the contents to Hall; and Asl-cell at 
the same time sent to Jones, his part- 
ner in England, a bill of exchange 
drawn on Hall for the amount of tlie 
price of tlie oil ; and also another of 
the bills of lading indorsed by Askell 
to deliver the contents to Jones. The 
bill of exchange was presented to 
Hall, but not being paid by him it 
was returned protested; whereupon 
Jones, on the 1st of September, 1752 



(a day or two after the ship arrived) , 
applied to the defendant to deliver 
the oils to him, and having produced 
his bill of lading, the defendant 
promised to deliver them accord- 
ingly. But the ship not being re- 
ported to the custom-house, the oils 
could not be then delivered ; and be- 
fore they were delivered, the plaintiff, 
on the 3rd of September, produced 
the bill of lading sent to Hall, with 
an indorsement thereon by Hall to 
deliver the contents to the plaintiff, 
and also the invoice, upon the credit 
of which he liad advanced to Hall 
200?. — Notwithstanding this, tlie de- 
fendant afterwards delivered the oils 
to Jones, and took his receipt for 
them on the back of the bill of lad- 
ing. 

For the plaintiff it was contended, 
that the bill of lading indorsed to 
Hall, and by him to the plaintiff, had 
fixed the property of tlie goods in 
the plaintiff. That the consignee of a 
bill of lading has such a property that 
he maj' assign it over ; Evans v. Mart- 
lett. 1 Lord Raym. 271. There it is 
laid down, if goods are by bill of lad- 
ing consigned to A., A. is the owner, 
and must bring the action against the 
master of the ship if they are lost : 
but if the bill be special to deliver to 



1068 



LICKBAEROW Y. MASON. 



tried before Lord Chief Justice Lee^ is a case at law, and it 
is to tlie same effect as Snee v. Prescot. So also is the 
case of the Assignees of Burgltall v. Howard («), before Lord 



A. foi" the use of B., B. ought to 
bring the action; but if the bill be 
genei'al, and the invoice only shows 
they ai"e upon the acconnt of B., A. 
ought to bring the action, for the 
property is in him, and B. has only a 
trust ; jje»' totani curiam. Holt, C. J., 
said the consignee of a bill of lading 
has such a property that he may 
assign it over; and Shoicer said, it 
had been adjudged so in the Ex- 
chequer. It has been furtlier in- 
sisted, that the plaintifl'had advanced 
the 200?. on the credit of the bill of 
lading, in the course of trade, and no 
objection was made that the oils had 
not been paid for; for that would 
prove too much, namely, that the bill 
of lading was not negotiable. And 
the indorsement was compared to the 
indorsement of a bill of exchange, 
which is good, though the bill origi- 
nally was obtained by fraud. Mer- 
chants were examined on both sides, 
and seemed to agree that the indorse- 
ment of a bill of lading vests the 
property; but that the original con- 
signor, if not paid for the goods, liad 
a right, by any means that he could, 
to stop their coming to the hands of 
the consignee till paid for. One of 
the witnesses said, he had a like case 
before the Chancellor, who upon that 
occasion said, he tliought the con- 
signor had a right to get the goods 
in such a case back into his hands 
in any way, so as he did not steal 
tliem. 

It also appeai'ed by the evidence of 
merchants and captains of sliips, tliat 
the usage was, where three bills of 
lading were signed by the captain, 
and indorsed to different persons, the 
captain had a right to deliver the 
goods to whichever he thought prop- 
er ; that he was discharged by a de- 
livery to either with a receipt on the 



bill of lading, and was not obliged to 
look into the invoice or consider the 
merits of the different claims. 

Lee, C. J., in summing up the evi- 
dence, said that, to be sure, nakedly 
considered, a bill of lading transfers 
the property, and a right to assign 
that property by indorsement : that 
the invoice strengthens that right by 
showing a farther intention to trans- 
fer the property. But it appeared in 
this case, that Jones had the other 
bill of lading to be as a curb on Hall, 
who in fact had never paid for the 
goods. And it appeared by the evi- 
dence, that, according to the usage of 
trade, the captain was not concerned 
to examine who liad the best right on 
the diflerent bills of lading. All he 
had to do was to deliver the goods 
upon one of the bills of lading, which 
Avas done. The jury therefore were 
directed by the Chief Justice to And a 
verdict for the defendant, which they 
accordingly did. [Accord, as to dis- 
charge of the master by delivery un- 
der either bill, The Tigress, Brown & 
Lushington, Adm. Ca. 38; 32 L. J. 
Adm. i)7. But that Fearon v. Boioers 
cannot be supported to its full extent 
in protecting a master who delivers to 
one indorsee with notice that another 
part of the bill of lading is outstand- 
ing Avitli another indorsee, see Glyn 
V. East and West India Duck Co., 7 
App. Ca. 591.] 

(a) Assignees of BuryhaJI, a bank- 
rupt, V. Howard. At Guildhall sit- 
tings after Hil. 32 G. 2, coram Lord 
Mansfield. One Burghall at London 
gave an order to Bromley at Liverpool 
to send him a quantity of cheese. 
Bromley accordingly shipped a ton of 
cheese on board a ship there, where- 
of Howard, tlie defendant, was mas- 
ter, wlio signed a bill of lading to 
deliver it in good condition to Burg- 



LICKBARROW Y. MASON. 1069 

Mansfield. The right of the consignor to stop the goods is 
here considered as a legal right. It will make no difference in 
the case whether the right is considered as springing from the 
original property not yet transferred by delivery, or as a right 
to retain the things as a pledge for the price unpaid. In all 
the cases cited in the course of the argument, the right of the 
consignor to stop the goods is admitted as against the con- 
signee. But it is contended that the right ceases as against 
a person claiming under the consignee for a valuable considera- 
tion, and without notice that the price is unpaid. To support 
this position, it is necessary to maintain that the right of the 
consignor is not a perfect legal right in the thing itself, but 
that it is only founded upon a personal exception to the con- 
signee, which would preclude his demand as contrar}- to good 
faith, and unconscionable. If the consignor had no legal title, 
the question between him and the bond fide purchaser from the 
consignee would turn on very nice considerations of equity. 
But a legal lien, as well as a right of property, precludes these 
considerations ; and the admitted right of the consignor to stop 
the goods in transitu as against the consignee, can only rest 
upon his original title as owner, not divested, or upon a legal title 
to hold the possession of the goods till the price is paid, as a 
pledge for the price. It has been asserted in the course of the 
argument, that the right of the consignor has by judicial de- 
terminations been treated as a mere equitable claim in cases 
between him and the consignee. To examine the force of this 
assertion, it is necessary to take a review of the several de- 
terminations. 

The first is the case of Wrk/ht v. Campbell, 4 Burr. 2046, on 

hall in London. The ship arrived in Mansfield was of opinion that the 
the Thames, but Burghall having be- plaiutifl's had no foundation to re- 
come a bankrupt, the defendant was cover; and said he had Icnown it sev- 
ordered, on behalf of Bromlej', not eral times ruled in Chancer}-, that 
to deliver the goods, and accordingly Avhere the consignee becomes a bank- 
refused, though the freight was ten- rupt, and no part of the price had 
dered. It appeared by the plaintiflTs been paid, that it was lawful for the 
witnesses that no particular ship v\as consignor to seize the goods before 
mentioned whereby the cheese should thej' come to the hands of the con- 
be sent, in which case the shipper signee or his assignees ; and that this 
was to be at the risk of the peril of was ruled, not upon principles of 
the seas. The action was on the case equity only, but the laws of property, 
upon the custom of the realm against The plaintifls were nonsuited, 
the defendant as carrier. Lord 



1070 LICKBARROW V. MASON. 

which the chief stress is laid. The first observation that occurs 
upon that case is, that nothing was determined by it. A case 
was reserved by the judge at JVisi Prins, on the argument of 
which the Court thought the facts imperfectly stated, and di- 
rected a new trial. That case cannot therefore be urged as a 
decision upon the point. But it is quoted as containing in the 
report of it an opinion of Lord 3Iansfield, that the right of the 
consignor to stop the goods cannot be set up against a third 
person claiming under an indorsement for value and without no- 
tice. The authority of such an opinion, though no decision had 
followed upon it, would deservedly be very great, from the high 
respect due to the experience and wisdom of so great a judge. 
But I am not able to discover that his opinion was delivered 
to that extent, and I assent to the opinion as it was deliv- 
ered, and very correctly applied to the case then in question. 
Lord Mansfield is there speaking of the consignment of goods 
to a factor to sell for the owner ; and he very truly observes, 
1st, that as against the factor, the owner may retain the goods.; 
2ndly, that a person into whose hands the factor has passed the 
consignment with notice, is exactly in the same situation with 
the factor himself; 3rdly, that a bond fide purchaser from the 
factor shall have a right to the delivery of the goods, because 
they were sold bond fide, and by the owner's own authority. If 
the owner of the goods entrust another to sell them for him, 
and to receive the price, there is no doubt but that he has 
bound himself to deliver the goods to the purchaser ; and that 
would hold equally, if the goods had never been removed from 
his warehouse. The question on the right of the consignor to 
stop and retain the goods, can never occur where the factor has 
acted strictly according to the order of his principal, and where, 
consequently, he has bound him by his contract. There would 
be no possible ground for argument in the case now before the 
court, if the plaintiffs in the action could maintain, that Turing 
and Co. had sold to them by the intervention of Freeman, and 
were therefore bound ex contractu to deliver the goods. Lord 
Mansfield' s opinion upon the direct question of the right of the 
consignor to stop the goods against a third party, who has ob- 
tained an indorsement of the bill of lading, is quoted in favor 
of the consignor, as delivered in two cases at Nisi Prius ; (cl) 
Savignac v. Civff in 1778, and (5) Stokes v. La Riviere in 1785. 
(a) Ante, p. 741. {h) Ante, p. 753. 



LICKBAEROW V. MASON. 1071 

Observations are made on these cases, that they were gov- 
erned by particular circumstances ; and undoubtedly when there 
is not an accurate and agreed state of them, no great stress can 
be laid on the authority. The case of (a) Caldwell v. Ball is 
improperly quoted on the part of the plaintiffs in the action, 
because the question there was on the priority of consiguments, 
and the right of the consignor did not come under consideration. 
The case of (J) Hihhert v. Carter was also cited on the same 
side, not having decided any question upon the consignor's 
right to stop the goods, but as establishing a position that by 
the indorsement of the bill of lading, the property was so com- 
pletely transferred to the indorsee, that the shipper of the goods 
had no longer an insurable interest in them. The bill of lacUng 
in that case had been indorsed to a creditor of the shipper ; and, 
undoubtedly, if the fact had been as it was at first supposed, 
that the cargo had been accepted in payment of the debt, the 
conclusion would have been just : for the property of the goods, 
and the risk would have completely passed from the shipper to 
the indorsee ; it would have amounted to a sale executed for a 
consideration paid. But it is not to be inferred from that case, 
that an indorsement of a bill of lading, the goods remaining at 
the risk of the shipper, transfers the property so that a policy of 
insurance upon them in his name would be void. The greater 
part of the consignments from the West Indies, and all countries 
where the balance of trade is in favour of England, are made to 
a creditor of the shipper ; but they are no discharge of the debt 
by indorsement of the bill of lading ; the expense of insurance, 
freight, duties, are all charged to the shipper, and the net pro- 
ceeds alone can be applied to the discharge of liis debt. The 
case, therefore, has no application to the present question. And 
from all the cases that have been collected, it does not appear 
that there has ever been a decision against the leo^al right of the 
consignor to stop the goods in transitu, before the case now 
brought before this court. When a point in law which is of 
general concern in the dailv business of the world is directlv 
decided, the event of it fixes the public attention, directs the 
opinion, and regulates the practice of those who are interested. 
But where no such decision has in fact occurred, it is impossible 
to fix any standard of opinion upon loose reports of incidental 
arguments. The rule, therefore, which the court is to lay down 
(a) 1 Term Rep. B. R. 205. (b) 1 Term Rep. B. R. 745. 



1072 LICKB ARROW V. MASON. 

in this case, Avill have the effect, not to disturb, but to settle, 
the notions of tlie commercial part of this country, on a point 
of very great importance, as it regards the security and good 
faith of their transactions. For these reasons we think the 
judgment of the Court of King's Bench ought to be reversed. 

The foUou'ing account of the further proceedings in this case 
is given hy Mr. Uast, in a note to his Reports, Vol. 2, p. 19. 

This case lirst came on upon a demurrer to evidence, on which 
there was judgment for the plaintiff; this court holding, that 
though the vendor of the goods might, as between himself and 
the vendee, stop them in transitu to the latter, in case of his 
insolvency, not having paid for them ; yet that if the vendee, 
having in his possession the bill of lading indorsed in blank by 
the vendor, before such stopping in transitu, indorse and deliver 
it to a third person for a valuable consideration and without 
notice of the non-payment, the right of the vendor to stop in 
transitu is thereby divested as against such bond fide holder of 
the bill. This judgment was reversed upon a writ of error in 
the P^xchequer Chamber, where it was considered that a bill of 
lading was not a negotiable instrument, the indorsement of 
which passed the property proprio vigore, like the indorsement 
of a bill of exchange ; though to some purposes it was assignable 
by indorsement, so as to operate as a discharge to the captain 
who made a delivery bond fide to the assignee. 1 H. Black. 357. 
The latter judgment was in its turn reversed in the House of 
Lords in T. 33 Geo. 3, and a venire facias de novo directed to be 
awarded by B. R. 5 Term Rep. 367, and 2 H. Black. 211. The 
ground of that reversal w^as, that the demurrer to evidence ap- 
peared to be informal on the record MS. The very elaborate 
opinion delivered by Mr. Justice Buller, upon the principal 
question before the House, a copy of which he afterwards per- 
mitted me to take, I shall here subjoin, as it contains the most 
comprehensive view of the whole of this subject which is any- 
where to be found. A venire facias de novo having been accord- 
ingly awarded by B. R., a special verdict was found upon the 
second trial, containing in substance the same facts as before ; (a) 
with this addition, that the jury found, that hy the custom of mer- 

(a) [See as to the effect of this finding, Seicell v. Burdick, 10 App. Ca. 74.] 



LICKBARKOW V. MASON. 1073 

chants^ bills of lading for the delivery of goods to the order of the 
shipper or his assigns, are, after the shipment, and before the voy- 
age performed, negotiable and transferable by the shipper'' s indorse- 
ment and delivery, or transmitting of the same to any other p>erson ; 
and that by such indorsement and delivery or transmission the 
property in such goods is transferred to such other person. And 
that by the custom of merchants, indorsements of bills of lading in 
blank may be filled up by the person to whom they are so delivered 
or transmitted, with words ordering the delivery of the goods to be 
made to such person : and according to the practice of merchants, 
the same, when filled tq:>, have the same operation and effect as if 
it had been done by the shipper. On this special verdict, the 
court of B. R., understanding that the case was to be carried up 
to the House of Lords, declined entering into a discussion of it ; 
merely saying, that they still retained the opinion delivered 
upon the former case, and gave judgment for the plaintiffs. 5 
Term Rep. 683. 



LICKBAREOW AND ANOTHER V. MASON AND OTHERS, IN ERROR. 
— DOM PROC. 1793. 

Buller, J. — Before I consider what is the law arising on this 
case, I shall endeavour to ascertain what the case itself is (a). 
It appears that the two bills of lading were endorsed in blank by 
Turing, and sent so indorsed in the sahie state by Freeman to 
the plaintiffs, in order that the goods might, on their arrival at 
Liverpool, be taken possession of, and sold by the plaintiffs, on 
Freeman's account. I shall first consider what is the effect of a 
blank indorsement ; and secondly, I will examine whether the 
words, " to be so sold by the plaintiffs on Freeman's account," 
make any difference in the case. As to the first, I am of 
opinion that a blank indorsement has precisely the same effect 
that an indorsement to deliver to the plaintiffs would have. 
In the case of bills of exchange, the effect of a blank indorse- 
ment is too universally known to be doubted ; and, therefore, 
on that head I shall only mention the case of Russel v. Lang- 
staffe, Dougl. 496, where a man indorsed his name on copper- 

(a) [See as to this opinion per burn in Seidell v. Burdick, 10 App. Ca. 
Field, J., in Burdick v. Seicell, 10 Q. at p. 98.] 
B. D. at p. 371, and per Lord Black- 



1074 LICE:JiAllKo^v v. :mason. 

plate checks, made in the form of promissory notes, hut in 
blank, i.e., without any sum, date, or time of paj^ment : and 
the court held, that the indorsement on a blank note is a letter 
of credit for an indefinite sum ; and the defendant was liable 
for the sum afterwards inserted in the note, whatever it might 
be. In the case of bills of lading, it has been admitted at your 
lordships' bar, and was so m the Court of King's Bench, that a 
blank indorsement has the same effect as an indorsement filled 
up to deliver to a particular person by name. In the case of 
Snee v. Prescot, Lord Hardwicke thought that there was a dis- 
tinction between a bill of lading indorsed in blank, and one that 
was filled up ; and upon that ground part of his decree was 
founded. But that I conceive to be a clear mistake. And it 
appears from the ease of Savignac v. Cuff, (of which case I 
know notliing but from what has been quoted by the counsel, 
and that case having occurred before the unfortunate year 
1780 (a), no further account can be obtained,) though Lord 
Mansfield at first thought that there was a distinction between 
bills of lading indorsed in l)lank and otherwise, yet he after- 
wards abandoned that ground. In Solomons v. Nysseri, Mich. 
1788, 2 Term Rep. 674, the bill of lading was to order or as- 
signs, and the indorsement in blank ; but the court held it to 
be clear that the property passed. He who delivers a bill of lad- 
ing indorsed in blank to another, not only puts it in the power 
of the person to whom it is delivered, but gives him author- 
ity to fill it up as he pleases ; and it has the same effect as if it 
were filled up with an order to deliver to him. The next point 
to be considered is, what difference do the words "to be sold 
by the plaintifi"s on Freeman's account " make in the present 
case ? It has been argued that they prove the plaintiffs to be 
factors only. But it is to be observed that these words are not 
found in the bill of lading itself : and, therefore, they cannot alter 
the nature and construction of it. I say they were not in the 
bill of lading itself ; for it is expressly stated that the bill of 
lading was sent by Freeman in the same state in which it was 
received, and in that there is no restriction or qualification 
whatever ; but it appeared by some other evidence — I suppose 
by some letter of advice, that the goods were so sent, to be 
sold by the- plaintiffs on Freeman's account. Supposing that 

(a) Lord MansfieUTs papers were in the riots of that period. Solomonl 
then burnt, together with his house, v. Nyssen. 



LICKBAKKOW V. 3IASON. 1075 

the plaintiffs are to be considei'ed as factors, yet if the bill of 
lading, as I shall contend presently, passes the legal property 
in the goods, the circumstance of the plaintiffs being liable to 
render an account to Freeman for these goods afterwards, will 
not put Turing in a better condition in this case ; for a factor 
has not only a right to keep goods till he is paid all that he has 
advanced or expended on account of the particular goods, but 
also till he is paid the balance of his general account («). The 
truth of the case, as I consider it, is that Freeman transferred 
the legal propert}- of the goods to the plaintiffs, who were to 
sell them, and pay themselves the 520/. advanced in bills out of 
the i3roduce, and to be accountable to Freeman for the re- 
mainder, if there were any. But if the goods had not sold for 
so much as 510/., Freeman would still have remained debtor 
to the plaintiffs for the difference ; and so far only they were 
sold on Freeman's account. But I hold that a factor who has 
the legal property in goods can never have that property taken 
from him, till he is paid the utmost farthing which is due to 
him. Kruger v. Wilcocks^ Ambl. 252. 

This brings me to the two great questions in the cause, which 
are undoubtedly of as much importance to trade as an}" ques- 
tions which ever can arise. The first is, whether at law the 
proj)erty of goods at sea passes by the indorsement of a bill of 
lading? The second, whether the defendant, who stands in 
the place of the original owner, had a right to stop the goods 
in transitu ? And as to the first, every authority which can 
be adduced from the earliest period of time down to the present 
hour, agree that at law the property does pass as absolutely and 
as effectually as if the goods had been actually delivered into 
the hands of the consignee (5). In 1690 it was so decided in 
the case of Wiseman v. Vandeputt, 2 Vern. 203. In 1697, the 
court determined again in Evans v. Martlett that the property 
passes by the bill of lacUng. That case is reported in 1 Lord 
Eaym. 271, and in 12 Mod. 156 ; and both books agree in the 
points decided. Lord Raymond states it to be, that if goods 
by a bill of lading are consigned to A., A. is the owner, and 
must bring the action : but if the bill be special to be delivered 



(a) Ace. Houghton v. Mattheics, 3 B 
& P. 488 ; Mann v. Shifner, 2 East, 529 
Hudson V. Grainger, 5 B. & Ad. 27 
Drinkioater v. Goodicin, Cowp. 251. 



(6) [See as to this Burdick v. Sewell^ 
10 App. Ca. 74.] Wiseman v. Vande- 
putt. 



107») LICKBAREOW V. MASON. 

to A., to the use of B., B. ought to bring the action : but if the 
bill be general to A., and the invoice only shows that they are on 
account of B. (which I take to be the present case), A. ought 
always to bring the action ; for the property is in him, and B. 
has only a trust. And Holt, C. J., says the consignee of a bill 
of lading has such a property as that he may assign it over ; 
and Shower said it had been so adjudged in the Exchequer. 
In 12 ]\Iod. it is said that the court held that the invoice signi- 
fied nothing ; but that the consignment in a bill of lading gives 
the property, except where it is for the account of another ; 
that is, where on the face of the bill it imports to be for another. 
In Wright v. CamphelU in 17G7 (4 Burr. 2046), Lord Mansfield 
said, "■ If the goods are bond fide sold by the factor at sea (as 
they may be where no other delivery can be given) it will be 
good notwithstanding the stat. 21 Jac. 1. The vendee shall 
hold them by virtue of the bill of sale, though no actual pos- 
session be delivered ; and the owner can never dispute with the 
vendee, because the goods were sold bond fide, and by the 
owner's own authority." His lordship added (though that is 
not stated in the printed report) that the doctrine in Lord 
Raymond was right, that the i)roperty of goods at sea was 
transferable. In Fearon v. Bowers (jci), in 1753, Lord Chief 
Justice Lee held that a bill of lading transferred the property, 
and a right to assign that property by indorsement ; but that 
the captain was discharged by a delivery under either bill. In 
Snee v. Prescot, in 1743 (1 Atk. 245), Lord Hardwicke says, 
"• Where a factor, by the order of his principal, buys goods with 
his own money, and makes the bill of lading absolutely in the 
principal's name, to have the goods delivered to the principal, 
in such case the factor cannot countermand the bill of lading ; 
but it passes the property of the goods fully and irrevocably to 
the principal." Then he distinguishes the case of blank in- 
dorsement, in which he was clearly wrong. He admits, too, 
that if upon a bill of lading between merchants residing in dif- 
ferent countries, the goods be shipped and consigned to the 
principal expressly in the body of the bill of lading, that vests 
the property in the consignee. In Caldwell v. Ball, in 1786, 
(1 Term Rep. 205,) the court held that the indorsement of the 
bill of lading was an immediate transfer of the legal interest in 

(a) [Accord. The Tigress, Brown Adm. 97. See, however, Glyn v. E. & 
& Lushington's Adm. Ca. 38 ; 32 L. J. W. I. Dock Co., 7 App. Ca. 591.] 



LICKBARROW V. MASON. 1077 

the cargo. In Hibhert v. Carter^ in 1787, (1 Term Rep. 745,) 
the court held again that the indorsement and dehvery of the 
bill of lading to a creditor primd facie, conveyed the whole 
property in the goods from the time of its delivery. The case 
of G-odfrey v. Farzo, 3 P. Wms. 185, was quoted on behalf of 
the defendant. A merchant at Bilhoa sent goods from thence 
to B., a merchant in London, for the use of B., and drew bills 
on B. for the money. The goods arrived in London, which B. 
received, but did not pay the money, and died insolvent. The 
merchant beyond sea brought his bill against the executors of 
the merchant in London, praying that the goods might be ac- 
counted for to him, and insisted that he had a lien on them till 
paid. Lord Chancellor says, — " When a merchant beyond sea 
consio-ns sroods to a merchant in London on account of the 
latter, and draws bills on him for such goods, though the money 
be not paid, yet the property of the goods vests in the mer- 
chant in London, who is credited for them, and consequently 
they are liable to his debts. But where a merchant beyond sea 
consigns goods to a factor in London, who receives them, the 
factor in this case, being only a servant or agent for the mer- 
chant beyond sea, can have no property in such goods, neither 
vvdll they be affected by his bankruptcy." The whole of this 
case is clear law ; but it makes for the plaintiffs and not the 
defendants. The first point is this very case ; for the bill of 
lading here is generall}- to the plaintiffs, and therefore on their 
account ; and in such case, though the money be not paid, the 
property vests in the consignee. And this is so laid down 
without regard to the question, whether the goods were re- 
ceived by the consignee or not. The next point there stated 
is, what is the law in the case of a pure factor, without any 
demand of his own? Lord King says he would have no prop- 
erty. This expression is used as between consignor and con- 
signee, and obviously means no more than that, in the case put, 
the consignor may reclaim the propert}' from the consignee. 
The reason given by Lord Kiny is, because in this case the 
factor is only a servant or agent for the merchant beyond sea. 
I agree, if he be merely a servant or agent, that part of the 
case is also good law, and the principal may retain the property. 
But then it remains to be proved that a man who is in advance, 
or under acceptances on account of the goods, is simply and 
merely a servant or agent ; for which no authority has been, 



1078 LICKBARROW V. MASON. 

or, as I believe, can be produced. Here the bills were drawn 
by f'reeman upon the plaintiffs upon the same day, and at the 
same time, as he sent the goods to them ; and therefore this 
must, by fair and necessary intendment, be taken to be one 
entire transaction ; and that the bills were drawn on account 
of the goods, unless the contrary appear. — So far from the 
contrary appearing here, when it was thought proper to allege 
on this demurrer that the price of the goods was not paid, it is 
expressly so stated ; for the demurrer says, that the price of 
the oroods is noAV due to Turinsf and Son. But it finds that the 
other bills were afterwards paid by the plaintiffs ; and conse- 
quently they have paid for the goods in question. As between 
the principal and mere factor, who has neither advanced nor 
engaged in anything for his principal, the jjrincipal has a right 
at all times to take back his goods at will : whether they be 
actually in the factor's possession, or only on their passage, 
makes no difference ; the principal may countermand his order : 
and though the property remain in the factor till such counter- 
mand, yet from that moment the propert}^ revests in the prin- 
cipal, and he may maintain trover. But in the present case the 
plaintiffs are not that mere agent or servant ; they have ad- 
vanced 510/., on the credit of those goods, which at a rising 
market were worth only 557/. ; and they have besides, as I 
conceive, the legal property in the goods under the bill of 
lading. But it was contended at the bar, that the property 
never passed out of Turing ; and to prove it, Hob. 41 was 
cited. In answer to this I must beg leave to say, that the 
position in Hobart does not apply ; because there no day of 
payment was given ; it was a bargain for ready mone}^ ; but 
here a month was given for payment. And in Noy's Maxims, 
87, this is laid down : " If a man do agree for a price of wares, 
he may not carry them away before he hath paid for them, if he 
have not a day expressly gis^en to him to pay for them." Thorpe 
V. Thorpe, Rep. temp. Holt, 96, and Brice v. James, Rep. temp. 
Lord Mansfield, S. P. So Dy. 30 and 76. And in Shep. Touch. 
222, it is laid down, that " If one sell me a horse, or anything 
for money, or any other valuable consideration, and the same 
thing is to be delivered to me at a day certain, and by our 
agreement a day is set for the payment of the money, it is a 
good bargain and sale to alter the property thereof ; and I may 
have an action for the thing, and the seller for his money." 



LICKBARROW V, MASON. 1079 

Thus stand the authorities on the point of legal property ; and 
from hence it appears that for upwards of 100 years past it has 
been the universal doctrine of Westminster Hall, that by a 
bill of lading, and by the assignment of it, the legal property 
does pass. And, as I conceive, there is no judgment, nor even 
a dictum, if properly understood, which impeaches this long 
string of cases. On the contrary, if any argument can be 
drawn by analogy from older cases on the vesting of property, 
they all tend to the same conclusion. If these cases be law, 
and if the legal property be vested in the plaintiffs, that, as it 
seems to me, puts a total end to the present case ; for then it 
will be incumbent on the defendants to show that they have 
superior equity which bears down the letter of the law ; and 
which entitles them to retain-the goods against the legal right 
of the plaintiffs, or they have no case at all. I find myself 
justified in saying that the legal title, if in the plaintiffs, must 
decide this cause by the very words of the judgment now ap- 
pealed against ; for the noble lord who pronounced that judg- 
ment, emphatically observed in it, " that the plaintiffs claim 
under Freeman ; but though they derive a title under him, they 
do not represent him, so as to be answerable for his engage- 
ments : nor are they affected by any notice of those circum- 
stances which would bar the claims of him or his assignees." 
This doctrine, to which I fully subscribe, seems to me to be a 
clear answer to any supposed lien which Turing may have 
on the goods in question for the original price of them. 

But the second question made in the case is, that however 
the legal property be decided, the defendants, who stand in the 
place of the original owner, had a right to stop the goods in 
transitu^ and have a lien for the original price of them. Before 
I consider the authorities applicable to this part of the case, 
I will beg leave to make a few observations on the right of 
stopping goods m transitu, and on the nature and principle of 
liens. 1st, Neither of them are founded on property ; but they 
necessarily suppose the property to be in some other person, 
and not in him who sets up either of these rights (a). They 
are qualified rights, which in given cases may be exercised over 
the property of another : and it is a contradiction in terms to 
say a man has a lien upon his own goods, or right to stop his 

(ffl) See the distinction drawn by session and that of property, post in 
Bayley, J., between the riglit of pos- notis. 



1080 LICKBAKROW V. MASON. 

own goods in transitu. If the goods be his, he lias a right to 
the possession of them whether the}- be in transitu, or not: he 
has a right to sell or dispose of them as he pleases, without the 
option of any other person : but he who has a lien only on 
goods, has no right so to do ; he can only retain them till 
the original price be paid : and therefore if goods are sold for 
500Z., and by a change of the market, before they are delivered, 
they become next day worth 1000?., the vendor can only re- 
tain them till the 500?. be paid, unless the bargain be absolutely 
.rescinded by the vendee's refusing to pay the 500?. — 2ndly, 
Liens at laAv exist only in cases where the party entitled to 
them has the possession of the goods ; and if he once part with 
the possession after the lien attaches, the lien is gone (a). 
Srdly, T/ie rii/ht of stop piny in transitu is founded only on equitable 
principles^ which have been adopted in courts of law ; and as far 
as they have been adopted, I agree they will bind at law as 
well as in equity. So late as the year 1090, this right, or 
privilege, or Avhatever it may be called, was unknown to the 
law. The fii'st of these propositions is self-evident, and re- 
quires no argument to prove it. As to the second, which 
respects liens, it is known and unquestionable law, that if a 
carrier, a farrier, a tailor, or an inn-keeper, deliver up the 
goods, his lien is gone. So also is the case of a factor as to 
the particular goods : but, by the general usage in trade, he 
may retain for the balance of his account all goods in his 
hands, without regard to the time when or on what account he 
received them. In Snee v. Prescot, Lord Kardtvicke says that 
which not only applies to the case of liens, but to the right of 
stopping goods in transitu under circumstances similar to the 
case in judgment : for he says, where goods have been nego- 
tiated, and sold again, there it would be mischievous to say 
that the vendor or factor should have a lien upon the goods for 
the price ; for then no dealer would know when he purchased 
goods safely. So in Lempriere v. Pasley^ (2 Term R. 485,) 
the court said it would be a great inconvenience to commerce 
if it were to be laid down as law, that a man could never take 
up money upon the credit of goods consigned till they actually 
arrived in port. There are other cases which in my judgment 
apply as strongly against the right of seizing in transitu to the 
extent contended for by the defendants : but before I go into 
(a) See Levy v. Barnard, 8 Tauut. 149. See post, in notd,. 



LICKBAREOW V. MASON. 1081 

them, with your lordships' permission, I will state shortly the 
facts of the case of Snee v. Prescot, with a few more observa- 
tions upon it. The doctrine of stopping in transitu owes its 
origin to courts of equity ; and it is very material to observe 
that in that case, as well as many others which have followed 
it at law, the question is not, as the counsel for the defendants 
would make it, whether the property vested under the bill of 
lading? for that was considered as being clear: but whether, 
on the insolvency of the consignee, who had not paid for the 
goods, the consignor could countermand the consignment? or, 
in other words, divest the property which was vested in the 
consignee? Snee and Baxter, assignees of John Toilet, v. 
Prescot and others, 1 Atk. 245. Toilet, a merchant in London, 
shipped to Ragueneau and Co., his factors at Leghorn, serges 
to sell, and to buy double the value in silks ; for which the 
factors were to pay half in ready money of their own, which 
Toilet would repay by bills drawn on him. The silks were 
bought accordingly, and shipped on board Dawson's ship, 
marked T. ; Dawson signed three bills of lading, to deliver at 
London to factors' consignors, or their order. The factors in- 
dorsed one bill of lading in blank, and sent it to Toilet, wjio 
filled up the same and pawned it. The bills drawn by the 
factors on Toilet were not paid, and Toilet became a bankrupt. 
The factors sent another bill of lading, properly indorsed, to 
Prescot, who offered to pay the pawnee, but he refused to 
deliver up the bill of lading ; on which Prescot got possession 
of the goods from Dawson, under the last bill of lading. The 
assignees of Toilet brought the bill to redeem by paying the 
pawnee out of the money arising by sale, and to have the rest 
of the produce paid to them : and that the factors, although 
in possession of the goods, should be considered as general 
creditors only, and be driven to come in under the commission. 
Decreed, 1st, That the factors should be paid; 2nd, the pawnees; 
and 3rd, the surplus to the assignees. The decree was just and 
right in saying that the consignor, who never had been paid 
for the goods, and the })awnees, Avho had advanced money upon 
the goods, should both be paid out of the goods before the con- 
signees or his assignees should derive any benefit from them. 
That was the whole of the decree ; and if the circumstance 
of the consignor's interest being first provided for be thought 
to have any weight, I answer, 1st, That such provision was 



1082 LICKBARROW V. MASON. 

founded on what is now admitted to be an apparent mistake 
of the hxw, in supposing that there was a difference between a 
full and a blank indorsement. Lord Hardwicke considered the 
legal property in that case to remain in the consignor, and, 
therefore, gave him the preference. 2ndly, That whatever 
might be the law, the mere fact of the consignor's being in 
possession was a sufficient reason for a court of equity to say, 
We will not take the possession from you till you have been 
paid what is due to you for the goods. Lord Hardwicke ex- 
pressly said — "This court will not say, as the factors have 
re-seized the goods, that they shall be taken out of their hands 
till payment of the half-price which they have laid down upon 
them. He who seeks equity must do equiti/ ; and, if he Avill not, 
he must not expect relief from a court of equity. It is in vain 
for a man to say in that court, I have the law with me, unless 
he will show that he has equity with him also. If he mean to 
rely on the law of his case, he must go to a court of law ; and 
so a court of equity will always tell him under those circum- 
stances." The case of Snee v. Prescot is miserably reported 
in the printed book : and it was the misfortune of Lord Hard- 
tvicke, and of the public in general, to have many of his deter- 
minations published in an incorrect and slovenly way : and, 
perhaps, even he himself, by being very diffuse, has laid a foun- 
dation for doubts which otherwise would never have existed. 
I have quoted that case from a MS. note taken, as I collect, 
by ]Mr. John Cox, who was counsel in the cause : and it seems 
to me that, on taking the whole of the case together, it is appar- 
ent that, whatever might have been said on the law of the case 
in a most elaborate opinion. Lord Hardwicke decided on the 
equity alone, arising out of all the particular circumstances of 
it, without meaning to settle the principles of law on which the 
present case depends. In one part of his judgment he says 
that, in strictness of law, the property vested in Toilet at the 
time of the purchase : " but, however that may be," says he, 
'• this court will not compel the factors to deliver the goods 
without being disbursed what they have laid out." He begins 
by saying, " the demand is as harsh as can possibly come into a 
court of equity." And in another part of his judgment he says, 
" Suppose the legal property in these goods was vested in the 
bankrupt, and that the assignees had recovered, yet this court 
would not suffer them to take out execution for the whole 



LICKBAREOW V. MASON. 1083 

value, but would oblige them to account." But further, as to 
the right of seizing or stopping the goods in transitu^ I hold 
that no man, who has not equity on his side can have that 
right. I will say with confidence, that no case or authority, till 
the present judgment, can be produced to show that he has. 
But on the other hand, in a very able judgment delivered by 
my brother Ashurst^ in the case of Lempriere v. Pasley^ in 1788, 
2 Term Rep. 485, he laid it down as a clear principle, that, as 
between a person who has an equitable lien, and a third person 
who purchases a thing for a valuable consideration and without 
notice, the prior equitable lien shall not overreach the title of 
the vendee. This is founded on plain and obvious reason : for 
he who has bought a thing for a fair and valuable consideration, 
and without notice of any right or claim by any other person, 
instead of having equity against him has equity in his favour ; 
and if he have law and equity both with him he cannot be beat 
by a man who has equal ec[uity only. Again, in a very solemn 
opinion, delivered in this house by the learned and respectable 
judge (a), who has often had the honour of delivering the sen- 
timents of the judges to your lordships, when you are pleased 
to require it, so lately as the 14th of Ma}-, 1790, in the case of 
Kinloeh v. Craig ^ 3 Term Rep. 787, it was laid down that the 
right of stopping goods in transitu never occur but as between 
vendor and vendee ; for that he relied on the case of Wright v. 
Campbell, 4 Burr. 2050. Nothing remains in order to make 
that case a direct and conclusive authority for the present, but 
to show that it is not the case of vendor and vendee. The 
terms vendor and vendee necessarily mean the two parties to a 
particular contract : those who deal together, and between 
whom there is privity in the disposition of the things about 
which we are talking. If A. sell a horse to B., and B. after- 
wards sell him to C, and C. to D., and so on through the alpha- 
bet, each man who buys the horse is at the time of buying him 
a vendee ; but it would be strange to speak of A. and D, 
together as vendor and vendee, for A. never sold to D.. nor did 
D. ever buy of A. These terms are correlatives, and never 
have been applied, nor ever can be applied, in any other sense 
than to the persons who bought and sold to each other. The 
defendants, or Turing, in whose behalf and under whose name 

(a) Eyre, then Lord C. B. 



1084 LICKBARKOW V. MASON. 

and authority they have acted, never sold these goods to the 
phiintiffs ; the plaintiffs never were the vendees of either of 
them. Neither do the plaintiffs (if I may be permitted to re- 
peat again the forcible words of the noble judge who pro- 
nounced the judgment in question) represent Freeman so as to 
be answerable for his engagements, or stand affected by any 
notice of those circumstances Avhich would bar the claim of 
Freeman or his assignees. These reasons, which I could not 
have expressed with equal clearness, without recurring to the 
words of the two great authorities by whom they were used, 
and to whom I always bow with reverence, in my humble judg- 
ment put an end to all questions about the right of seizing in 
transitu. Two other cases were mentioned at the bar which 
deserve some attention. One is the case of the assignees of 
Bnrghall v. Howard Qa^, before Lord Mansfield at Guildhall, in 
1759 ; where the only point decided by T>ord Mansfield was, 
that if a consignee become a bankrupt, and no part of the price 
of the goods be paid, the consignor may seize the goods before 
they come to the hands of the consignee or his assignees. This 
was most clearly right ; but it does not apply to the present 
case ; for when he made use of the word assignees, he un- 
doubtedly meant assignees under a commission of bankruptcy, 
like those who were then before him, and not persons to whom 
the consignee sold the goods ; for in that case it is stated that 
no part of the price of the goods was paid. The whole cause 
turns upon this point. In that case no part of the price of the 
goods was paid, and therefore the original owner might seize 
the goods. But in this case the plaintiffs had paid the price of 
the goods, or were under acceptances for them, which is the 
same thing ; and therefore the original owner could not seize 
them again. But the note of that case says. Lord Mansfield 
added, " and this was ruled, not upon principles of equity only, 
but the laws of property." Do these words fairly import that 
the property was not altered by a bill of lading, or by the in- 
dorsement of it ? That the liberty of stopping goods in transitu 
is originally founded on principles of equity, and that it has, in 
the case before him, been adopted by the law, and that it does 
affect property are all true : and that is all that the words mean ; 
not that the property did not pass by the bill of lading. The 

(a) 1 H. Bla. 3G5, n. 



LICKBARROW V. MASON. 1085 

commercial law of this country was never better understood, 
or more correctly administered, than by that great man. It 
was under his fostering hand that the trade and the commer- 
cial law of this country grew to its present amazing size : and 
when we find him in other instances adopting the language and 
opinion of Lord Chief Justice Holt, and saying, that since the 
cases before him it had always been held, that the delivery of a 
bill of lading transferred the property at law, and in the year 
1767 deciding that very point, it does seem to me to be abso- 
lutely impossible to make a doubt of what was his opinion and 
meaning. All his determinations on the subject are uniform. 
Even the case of Savignac v. Cuff (a), of whicli we have no ac- 
count besides the loose and inaccurate note produced at the 
bar, as I understand it, goes upon the same principle. The 
note states that the counsel for the plaintiff relied on the prop- 
erty passing by the bill of lading ; to which Lord Mansfield 
answered, the plaintiff had lost his lien, he standing in the 
place of the consignee. Lord Mansfield did not answer mer- 
cantile questions so ; which, as stated, was no answer to the 
question made. But I think enough appears on that case to 
show the grounds of the decision, to make it consistent with 
the case of Wright v. Campbell, and to prove it a material 
authority for the plaintiffs in this case. I collect from it that 
the plaintiff had notice by the letter of advice, that Lingham 
had not paid for the goods ; and if so, then, according to the 
case of Wright v. Campbell, he could only stand in Lingham's 
place. But the necessity of recurring to the question of notice 
strongly proves, that, if there had been no such notice, the 
plaintiff, who was the assignee of Lingham the consignee, 
would not have stood in Lingham's place, and the consignor 
could not have seized the goods in transitu : but that, having 
seized them, the plaintiff would have been entitled to recover 
the full value of them for him. This way of considering it 
makes that case a direct authority in point for the plaintiffs. 
There is another circumstance in that case material for con- 
sideration ; because it shows how far only the right of seizing 
in transitu extends, as between the consignor and consignee. 
The plaintiff in that action was considered as the consignee; 
the defendant, the consignor, had not received the full value 
for his goods ; but the consignee had paid 150Z., on account of 
(a) Cited in 2 Term Rep. 66. 



1086 LTCKBARROW V. MASON. 

them. Upon the insolvency of the consignee, the consignor 
seized the goods in transitu ; but that was holden not to be 
justiliable, and therefore there was a verdict against him. 
That Avas an action of trover^ which could not have been sus- 
tained but on the ground that the property was vested in the 
consignee, and could not be seized in transitu as against him. 
If the legal property had remained in the consignor, what 
objection could be stated in a court of law to the consignor's 
takinof his own g^oods ? But it was holden that he could not 
seize the goods ; which could only be on the ground contended 
for by ]\Ir. Wallace, the counsel for the plaintiff, that the prop- 
erty was in the consignee : but though the property were in 
the consignee, yet, as I stated to your lordships in the outset, if 
the consignor had paid to the consignee all that he had ad- 
vanced on account of the goods, the consignor would have had 
a right to the possession of the goods, even though they had 
got into the hands of the consignee : and upon paying or 
tendering that money, and demanding the goods, the property 
would have revested in him, and he might liave maintained 
trover for them : but admitting that the consignee had the legal 
property, and was therefore entitled to a verdict, still the ques- 
tion remained what damages he should recover ; and in ascer- 
taining them, regard Avas had to the true merits of the case, 
and the relative situation of each party. If the consignee had 
obtained the actual possession of the goods, he would have had 
no other equitable claim on them than for 150/. He was en- 
titled to no more, the defendant was liable to pay no more ; 
and therefore the verdict was given for that sum. This case 
proceeded precisely upon the same principles as the case of 
Wisemaii v. Vandeputt ; where, though it was determined that 
the legal property in the goods, before they arrived was in 
the consignee, yet the Court of Chancery held that the con- 
signee should not avail himself of that beyond what was due to 
him: but for what was due, the court directed an account; 
and if anything were due from the Italians to the Bonn ells, 
that should be paid the plaintiffs. The plaintiffs in this cause 
are exactly in the situation of the plaintiffs in that case ; for 
they have the legal property in the goods ; and therefore, if 
anything be due to them, even in equity, that must be paid 
before any person can take the goods from them ; and 520L 
was due to them, and has not been paid. 



LICKBAHROW V. MASOIST. 1087 

After these authorities, taking into consideration also that 
tliere is no case whatever in which it has been holden that 
goods can be stopped in transitu-, after they have been sold and 
paid for, or money advanced upon them bond fide, and without 
notice, I do not conceive that the case is open to any arguments 
of policy or convenience ; but if it should be thought so, I beg 
leave to say, that in all mereaiitile transactions^ one great point to 
he kept uniformly in view is to make the circulation and negotia- 
tion of property as quick., as easy., and as certain as possible. If 
this judgment stand, no man will be safe either in buying or in 
lending money upon goods at sea. That species of property 
will be locked up ; and many a man who could support himself 
with honour and credit, if he could dispose of such property to 
supply a present occasioii, would receive a check which indus- 
try, caution, or attention could not surmount. If the goods are 
in all cases to be liable to the original owner for the price, what 
is there to be bought ? There is nothing but the chance of the 
market ; and that the buyer expects as his profit on purchasing 
the goods, without paying an extra price for it. But Turing 
has transferred the property to Freeman, in order that he 
might transfer it again, and has given him credit for the value 
of the goods. Freeman having transferred the goods again for 
value, I am of opinion that Turing had neither property, lien, 
nor a right to seize in transitu. The great advantage which 
this country possesses over most, if not all other parts of the 
known world, in point of foreign trade, consists in the extent 
of credit given on exports, and the ready advances made on 
imports : but amidst all these indulgences, the wise merchant is 
not unmindful of his true interests and the security of his 
capital. I will beg leave to state, in as few words as possible, 
what is a very frequent occurrence in the city of London : — A 
cargo of goods of the value of 2000/. is consigned to a merchant 
in London ; and the moment they are shipped, the merchant 
abroad draws upon his correspondent here to the value of that 
cargo ; and by the first jDOst or ship he sends him advice, and 
incloses the bill of lading. The bills, in most cases, arrive 
before the cargo ; and then the merchant in London must 
resolve what part he will take. If he accepts the bills, he 
becomes absolutely and unconditionally liable ; if he refuses 
them, he disgraces his correspondent, and loses his custom 
directly. Yet to engage for 2000Z., without any security from 



1088 LICKBAKROW V. MASON. 

the drawer, is a bold measure. The goods may be lost at sea ; 
and then the merchant here is left to recover his money against 
the drawer as and when he may. The question then with the 
merchant is, how can I secure myself at all events? The 
answer is, I will insure ; and then if the goods come safe I shall 
be repaid out of them ; or, if they be lost, I shall be repaid by 
the underwriters on the policy ; but this cannot be done unless 
the property vest in him by the bill of lading ; for otherwise 
his policy will be void for want of interest (a) ; and an insur- 
ance, in the name of the foreign merchant, would not answer 
the purpose. Tliis is the case of the merchant who is wealthy, 
and has the 2000/. in his. banker's hands, which he can part 
with, and not find any inconvenience in so doing ; but there is 
another case to be considered, viz. — Suppose the merchant 
here has not got the 2000Z., and cannot raise it before he has 
sold the goods ? — the same considerations arise in his mind as 
in the former case, with this additional circumstance, that the 
money must be procured before the bills become due. Then 
the question is, how can that be done ? If he have the property 
in the goods, he can go to market with the bill of lading and 
the policy, as was done in Snee v. Prescot ; and upon that idea 
he has hitherto had no difficulty in doing so ; but if he have 
not the property, nobody will buy of liim ; and then his trade 
is undone. But there is still a third case to be considered; for 
even the wary and opulent merchant often wishes to sell his 
goods whilst they are at sea. I will put the case, by Avay of 
example, that barilla is shipped for a merchant here, at a time 
when there has been a dearth of that commodity, and it pro- 
duces a profit of 25/. per cent., whereas, upon an average, it 
does not produce above 12/. The merchant has advices that 
there is a great quantity of that article in Spain, intended for 
the British market ; and when that arrives, the market will be 
glutted, and the commodity much reduced in value. He wishes, 
therefore, to sell it immediately whilst it is at sea, and before it 
arrives ; and the profit which he gets by that is fair and hon- 
ourable : but he cannot do it if he have not the property by the 
bill of lading. Besides, a quick circulation is the life and soul 
of trade ; and if the merchant cannot sell with safety to the 
buyer, that must necessarily be retarded. From the little expe- 

(«) St. 19 G. 3, c. 37, s. 1. 



LICKBARROW V. MASON. 1089 

rience which I acquired on this subject at Guildhall, I am con- 
fident that if the goods in question be retained from the plam- 
tiff without repaying him what he had advanced on the credit 
of them, it will be mischievous to the trade and commerce of 
this country ; and it seems to me that not only commercial 
interest, but plain justice and public policy, forbid it. To sum 
up the whole in very few words : the legal property was in the 
plaintiff ; the right of seizing in transitu is founded on equity. 
No case in equity has ever suffered a man to seize goods in 
opposition to one who has obtained a legal title, and has 
advanced money upon them; but Lord Hardwickes opinion 
was clearly against it ; and the law, where it adopts the 
reasoning and principles of a court of equity, never has and 
never ought to exceed the bounds of equity itself. I offer to 
your lordships, as my humble opinion, that the evidence given 
by the plaintiff, and confessed by the demurrer, is sufficient in 
law to maintain the action. 

Ashurst and Grose, Justices, also delivered their opinions 
for reversing the judgment of the Exchequer Chamber. 

Eyre, C. J., Gould, J., Seath, J., Hotham, B., Perryn, B., and 
Thomson, B., contra. 

This case stood over from time to time in the House : and 
was postponed, in order to consider a question which arose in 
another case of Gibson v. 3Iinet, upon the nature and effect of 
a demurrer to evidence, which was thought to apply also to the 
present case ; and, finally, the House reversed the judgment of 
the Exchequer Chamber, which had been given for the defend- 
ant ; and ordered the King's Bench to award a venire de novo 
(upon the ground that the demurrer to evidence appeared to 
be informal upon the record) and that the record be remitted. 



This celebrated case involves two important propositions. The former is, 
that the unpaid vendor may, in case of the vendee's insolvency, stop the goods 
sold in transitu. The latter, that the nght to stop in transitu may be defeated 
by negotiating the bill of lading v;ith a bona fide indorsee. 

The right of a vendor to stop in transitu is bestowed upon him in order to 
prevent the injustice which would take place, if, in consequence of the 
vendee's insolvency, while the price of the goods was yet unpaid, they were 
to be seized upon in satisfaction of his liabilities, and so the property of one 
man were to be disposed of in payment of the debts of another. The doctrine 
was first introduced in Equity by the cases of Wiseman v. Vandeputt, 2 Vera. 



1090 LICKBARROW V. MASON. 

203; Snee v. Prescot, 1 Atk. 246, and D'Aquila v. Lambert. 2 Eden, 75; Arab. 
39. It has since been rcpeatedlj' discussed in courts of common law ; and 
it appears strange that though stoppage in transitu has been for many years 
one of the most practically important branches of commercial law, yet its 
precise eftect upon tlie contract of sale has never as yet been ascertaiued. 

A highl}' interesting disquisition upon its history and character will be 
found in Lord Ahiixjer's judgmeut in Gibson v. Carrnthcrs, 8 M. & W. 336. 

Tlie question whether stoppage in transitu rescinds the contract of sale 
altogether, or only puts the vendor in possession of a lien on the goods 
defeasible on payment of the price agreed on, has often been matter of 
controversy, particularly in Clay v. Harrison, 10 B. & C. 99, and was said 
in Stephens v. Wilkinson, 3 B. &. Ad. 323, to be still undetermined. See also 
Wilmhtirst v. Boioker, 5 Bing. N. C. 547 ; in error, 8 Scott, N. R. 570 ; [7 M. & 
G. 882, S. C. ;] Gibson v. Carruthers, 8 M. &, W. 321 ; Wentworth v. Outlnoaite, 
10 M. & \V. 451 ; and Edwards v. Bre.icer, 2 M. & W. 375. 

Lord Kenyan in Hodgson \. Loy, 7 T. R. 445, was of opinion that it was not 
a rescission oi" the sale, but was (to use his lordship's own Avoi'ds) "an 
eciuitable lien adopted by the law for the purpose of substantial justice," 
Avhence it was held to follow that part payment of the price by tlie vendee 
would not destroy the right to stop in transitu, but only diminish the lien 
pro tanto. 

Confusion has sometimes arisen on this subject, from its being assumed 
that a vendor's right over the goods in respect of his price is subject to the 
same rules as an ordinary lien which cannot exist without both the right and 
the fact of possession, and is lost and cannot be resumed if the party claim- 
ing it abandon either the possession, or the right to j-yossess the thing over 
which it is claimed: whereas "the vendor's right in respect of his price," 
says Bayley, J., delivering judgment in Bloxam v. Sanders, 4 B. & C. 948, " is 
not a mere lien wliicli he will forfeit if he parts with the possession, but 
grows out of his original ownership and dominion. If goods are sold on 
credit, and nothing is agreed on as to the time of delivering the goods, the 
vendee is immediately entitled to the possession; and the right of possession, 
and the right of property, vest at once in him ; but his right of possession is 
not absolute, it is liable to be defeated if he becomes insolvent before he 
obtains possession, Tooke v. HoUingicortJi, 5 T. R. 215. If the seller has 
dispatched the goods to the buyer, and insolvency occur, he has a right 
in virtue of his original ownership to stop them in transitu. Mason v. Lick- 
barroiv, 1 H. Bl. 357 ; Ellis v. Hunt, 3 T. R. 464 ; Hodgson v. Lay, 7 T. R. 440 ; 
Inglis V. Ushericaod, 1 East, 515; Bathlingk v. Inglis, 3 East, 381. Wliy? 
Because the j)roperty is vested in the buyer, so as to subject him to the risk 
of an3^ accident, but he has not an indefeasible riglit to the possession, and 
his insolvency without i^ayment of the price defeats that right. The buyer, 
or those who stand in his place, may still obtain the right of possession, if 
they will pay or tender the price, or they may still act on their right of prop- 
erty rf anything unwarrantable is done to that right. If, for instance, the 
original vendor sell when he ought not, they may bring a special action 
against him for the damage they sustain by such wrongful sale, and recover 
damages to the extent of that injury ; but they can maintain no action in 
which tlie right of property and right of possession are both requisite, unless 
they have both those rights. Gordon v. Harper, 7 T. R. 9." 

This luminous view of the principles upon which an unpaid vendor's right 
depends is, as will have been soen, totally inconsistent with the idea that 



LICKBARItOW V. MASON. 1091 

Stoppage in transitu operates as a rescission of the contract of sale, and 
deserves the more attention because it is contained in tlie written judgment 
of the court delivered after a curia advisari vult ; see, too, Edwards v. Brewer, 
2 M. & W. 875; Martindale v. Smith, 1 G. & D. 1, 1 Q. B. 397, S. C. ; [the 
opinion of Buller, J., in the text, p. 781, and the judgment of WilUams, J., 
in Johnston v. Stear, 15 C. B. N. S. 330, 339.J 

In Wentworth v. Oiithicaite, 10 JNI. & W. 451, Parke, B., in delivering the 
judgment of the Court of Exchequer, stated that the question discussed 
above, " what the effect of stoppage in transitu is, whether entirely to rescind 
the contract^or only to replace the vendor in the same position as if he had 
not parted with the possession, and entitle him to hold the goods until the 
price be paid down, is a point not yet finally decided," and that " there are 
difficulties attending each construction." In that case one of several parcels 
of goods sold under an entire contract had reached the place of destination ; 
and upon the stoppage of the rest in transitu, the vendor insisted that the 
effect was to rescind the contract of sale altogether, and consequently to 
revest in him the property in the part which had reached the place of destina- 
tion. The barons of the Exchequer decided against that argument, but for 
different reasons ; the majority of the court, Parke, Alderson, and Eolfe, BB., 
being strongly inclined to think, that upon the weight of authority a stoppage 
in transitu must be considered, not as a rescission of the contract, but as 
merely replacing the vendor in the same position as if he had not parted with 
the possession ; from which it followed that the vendor's right of lien on the 
part stopped was revested ; and no more ; whilst Lord Abinyer expressed an 
opinion, to which on consideration he adhered, that the effect of stoppage 
in transitu is to rescind the contract ; but he did not think that that affected 
the right of the vendee in the case before the court, to retain the portion of 
the goods which had been actually delivered to him; or, in other woi'ds, had 
reached the place of their destination ; more especially when the goods and 
the price might be apportioned and a new contract be implied from the 
actual delivery and retention of a part. 

The arguments in Wentv:orth v. Outhioaite contain the authorities on either 
side of the question, to which may be added, that in the latter case of Jen- 
kyns V. Usborne, 8 Scott, N. R. 522, 81G, Tindal, C. J., in delivering a consid- 
ered judgment of the Court of Common Pleas, spoke of stoppage in transitu 
as a right to rescind the contract; but the nature of the right was not there 
in question. 

It is conceived (notwithstanding the weight of Lord Abinger's opinion on a 
subject in which his practised and sagacious mind was eminently calculated 
to arrive at a correct conclusion) that the preponderance of reason and au- 
thority is in favour of the opinion expressed bj^ the majority of the court in 
Wentworth v. Outhicaite. [And it would seem to be in accordance with this 
view that the right of stoppage has been held to be a proper subject of a bill 
in equity. See Scotsman v. Lancashire and Yorkshire Railway Co., per Lord 
Cairns, L. R. 2 Ch. 332, 36 L. J. Ch. 361. In Kemp v. Falk, 7 App. Ca., at p. 
581, Lord Blackburn says : " It is pretty well settled now that a stoppage in 
transitu would not rescind the contract." 

The right of stoppage is not only to countermand delivery to the vendee, 
but to order delivery to the vendor, and the master on receiving such order is 
bound to deliver to the latter as soon as he knows that the order was given 
by him. TJie Tigress, Brown & Lush., Adm. Ca. 38 ; 42 L. J. Adm. 97.] 

Supposing the contract of sale not to be rescinded, it seems to follow, that 



1092 LICKBARROW V. MASON. 

the goods, while detained, remain at tlie rislt of the vendee, and that the ven- 
doi' can have no x'ight to resell them, at all events until the period of credit is 
expired ; after that period, indeed, the refusal of the vendee or his represen- 
tatives to receive the goods and pay the price, would probably be held to entitle 
the vendor to elect to rescind the contract. See Laiujford v. Tiler, Salk. 113. 

But what, it will be said, if the goods bo of so perisli:il:)lo a nature that the 
vendor cannot keep them till the time of credit has expired? In such a case 
it is submitted that courts of law having originally adopted this doctrine of 
stoppaije in transitu from equity, would act on equitable principles by holding 
the vendor invested Avith an implied authority to make the necessary sale. 

[For the right of an unpaid vendor somewhat analogous to that of stop- 
page in transitu, see Ex parte Chalmers, L. E. 8 Ch. 289, 41 L. J. Ch. 37, where 
it was held that "when a purchaser becomes insolvent before the contract 
for sale has been completely performed, the seller, notwithstanding he may 
have agreed to allow credit for the goods, is not bound to deliver any more 
goods under the contract until the price of the goods not yet delivered is 
tendered to him ; and that, if a debt is due to him for goods already de- 
livered, he is entitled to refuse to deliver any more till he is paid the debt due 
for those already delivered, as well as the price of those still to be delivered." 
It has been held by the Judicial Connnittee of tlie I'rivy Council that the 
above right is not destroj'ed, though the vendor retain the goods as ware- 
houseman for the vendee. Grice v. Richardson, 3 App. Cas. 319 ; 47 L. J. P. 
C. 48. It exists independently of the question whether there has not been an 
actual rescission of the contract, for it must not be overlooked that mere in- 
solvency by itself does not operate to dissolve the contract. Insolvency, 
however, coupled with other facts, is evidence of the vendee's intention not 
to stand by the contract, upon which the vendor may act, so that by the con- 
sent of both parties the contract may be rescinded. Morgan v. Bain, L. R. 10 
C. P. 15; 44 L. J. C. P. 47; (runn v. Bolckoio, L. 11. 10 Ch. 491; 44 L. J. Ch. 
733; In re Phoenix Co., 4 Ch. D. 108; 44 L. J. Ch. 683; Imperial Bank v. Lon- 
don and St. Katherine's Dock Co., 5 Ch. D. 195 ; 46 L. J. Ch. 335.] 

It is hardly necessary to add, that a wrongful stoppage i?t transitu has not 
the effect of rescinding the contract of sale, or of affecting the vendor's right 
to sue for the price, acquired before the stoppage. In re Humhertson, 1 De 
Gex, 262 ; and see Gillard v. Brittan, 8 M. & W. 575. 

[The acceptance of a bill for the price of the goods l)y the A^endee does not 
take away his right to stop, unless the bill is taken in payment whether paid 
or not. Feise v. Wray, 3 East, 93 ; Edwards v. Breioer, 2 M. & W. 375.] 

The person who stops in transitu must be a consignor [or vendor]. A 
mere surety for the price of the goods has no right to do so. Siffken v. Wray, 
6 East, 371. [Though perhaps where the suret,y has paid the vendor, he may 
obtain the right to stop in his name under the Mercantile Law Amendment 
Act, 19 &, 20 Vict. c. 97, s. 5. See Imperial Bank v. London and St. Katherine's 
Dock Co., 5 Ch. D. 195 ; 46 L. J. Ch. 335.] But a person residing abroad, who 
purchases goods for a correspondent in England, whom he charges with a 
commission on the price, but whose name is unknown to those from whom 
he makes the purchases, may stop the goods in transitu if his correspondent 
fail while they are on their passage, for the [purchaser] abroad [may] be 
considered as a new vendor, selling the goods over again to the merchant in 
England, and only adding to the price the amount of his commission. Feise 
V. Wray, 3 East, 93; see ^Falke v. Fletcher, 18 C. B. N. S. 403; 34 L. J. C. P. 
146; and] Neiosom v. Thornton, 6 East, 17, where a person who had consigned 



LicKBARRow V. :masox. 1093 

goods to be sold on the joint account of himself and the consiijnee, was held 
entitled to stop them in transitu, tlie consignee becoming insolvent. [So 
a person who buys goods for another on his own credit and takes Ijills of 
lading indorsed for deliverj^ to his own order, and then indorses the bills to 
the party for whom he bought, is a vendor for the purpose of stoppage in 
transitu : The Tigress, Brown & Lush. Adm. Ca. 38 ; 32 L. J. Adm. 97 ; and 
where a vendee's broker, being liable by custom for the price of goods, paid 
the vendor, it was held that " having regard to the terms of the Mercantile 
Law Amendment Act, (19 & 20 Vict. c. 97, s. 5,) and to the justice of the case, 
the lien of the unpaid vendors was a security which subsisted for the benefit 
of the broker who paid the money, and therefore he could in their name have 
stopped the goods : " Imperial Bank y. London and St. Katherine's Dock Co., 
5 Ch. I). 195; 46 L. J. Ch. 335. In Hathesing v. Laing, L. R. 17 Eq. 92; 43 
L. J. Ch. 233, Bacon, V.-C, would seem to have held that a broker who had 
paid the price of goods for his principal the vendee, and had shipped them in 
the vendee's name, was not in the position of a vendor, so as to stop in tran- 
situ ; but the case was decided also on other grounds, and as regards this 
point is perhaps hardly reconcileable in principle with those last cited] 

In Jenkyns v. Ushorne, 8 Scott, N. R. 522; 7 M. & G. 678, S. C, it was 
attempted, but without success, to confine the right to vendors in whom the 
property in the goods has actually vested at the time of tlie stoppage, and to 
exclude from it a vendor in whom the property in the goods had not vested 
at the time of the stoppage, but only an interest in and right to receive a 
certain portion of a cargo to be aftei-wards ascertained and appropriated to 
the parties interested in it, of whom he was one. Tindal, C. J., in giving 
judgment said : " We see no sound distinction, with reference to the right of 
stoppage in transitu, between the sale of goods the property of which is in 
the vendor, and the sale of an interest which he has in a contract for the 
delivery of goods to him; if he may rescind the contract in one case, for the 
insolvency of the purchaser, he must, by parity of reasoning, have the right 
to rescind it in the other." As to Avhat is a sufficient authority from the 
vendor to enable another person on his behalf to stop goods in transitu, see 
Whitehead v. Anderson, 9 M. & W. 518; [A>m^? v. Falk, 7 App. Ca. 585.] 

Stoppage in transitu, as its name imports, can only take place while the 
goods are on their way; if they once arrive at the termination of their jour- 
ney, and come into the actual or constructive possession of the consignee, 
there is an end of the vendor's riglit over them. And, therefore, in most of 
the cases the dispute has been whether the goods had or had not arrived at 
the termination of their journey. The rule to be collected from all the cases 
is, that tliey are in transitu so long as they are in the hands of the carrier as 
such, whether he was or was not appointed by the consignee, [Ex parte Rose- 
vear China Clay Co., 2'>er Brett, L. J., 11 Ch. D., at p. 570,] and also so long as 
they remain in any place of deposit connected with their transmission. But 
that, if, after their arrival at their place of destination, they be warehoused 
with the carrier, whose store the vendee uses as his own, or even if they be 
warehoused with the vendor himself, and rent be paid to him for them, that 
puts an end to the right to stop in transitu. See Nicholls v. Lefevre, 2 Bing. 
N. C. 83 ; James v. Griffin, 1 M. & W. 20 ; Edwards v. Brewer, 2 M. & W. 375 ;. 
\_Nicholson v. Bower, 1 E. & E. 172, per Lord Campbell, C. J. ;] and James v- 
Griffin, iterum, 2 M. & W. 623, (where the court differed on the question 
whether evidence of the vendee's intention not to take possession uncom- 
municated to the wharfinger was admissible,) Mills v. Ball, 2 B. & P. 457; 



1094 LICKBARROW V. MASON. 

Hodgson v. Loy, 7 T. R. 440; Smith v. Goss, 1 Camp. 282; Coats v. Bailton, 6 
B. & C. 422; [as to which case, however, see Kendal v. Marshall, 11 Q. B. I)., 
at p. 360, per Brett, L. J. ;] Richardson v. Goss, SB. &, P. 127 ; Scott v. Pp^iY, 3 
B. & P. 469; Foster v. Frampton, 6 B. & C. 109; Rowe v. Picl-ford ; [8 Taunt. 
83;] Hurry v. Mangles, 1 Camp. 452; Stoveld v. Hughes, 13 East, 408; 
[Heinekey v. Earle, 8 E. & B. 410, affirmed in error, /6id., 427; ^x par^e CaN 
Zin(7, 29 L. T. N. S. 431 ; Bolton v. ZniHC. tfc Y. Rail. Co., L. R. 1 C. P. 431 ; 35 
L. J. C. P. 137; Rodger v. The Comptoir d'Escompte da Paris, L. R. 2 P. C. C. 
398; Ex parte Watson, In re Love, 5 Ch. D. 35 ; 46 L. J. Bank. 71 ; Merchant 
Banking Co. v. rha'uix Bessemer Steel Co., 5 Ch. D. 205, 46 L. J. Ch. 419; and 
see Cooper v. Bill, 3 II. & C. 722; 34 L. J. Excli. 161.] 

The arrival of tlie goods at a place wliere they are to be at the ordei's of 
the buj-er, in the hands of persons who are to keep them for liim, is an end of 
the transitus, although the place be not that of their ultimate destination, 
Wentworth v. Outhicaite, 10 M. & W. 436; Dodson v. Wentworth, 5 Scott, N. R. 
821 ; 4 M. & Gr. 1080, S. C. ; [see Cusack v. Rohinson, 1 B. & S. 299 ; 30 L. J. 
Q. B. 261 ;] because in such a case the goods liave got into tlie liands of agents 
for the buyer, not concerned merely in the carriage of tlic goods. And the 
same, as it seems, where tine goods have got into the liands of a person em- 
ployed by the buyer to receive tliem from the first carrier or out of the ware- 
house where they were wlien sold, and give tliem a new destination, as in 
Valpy V. Gibson, [4 C. B. 837,] where tlie goods had been ordered for the 
Valparaiso market, and the Court of Common Pleas expressed their opinion 
that the transit was at an end upon the arrival of the goods in the hands of 
the vendee's shipping agent at Liverpool. [See also Ex parte Gibbs, In re 
Whitworth, 1 Ch. D. 101 ; 45 L. J. Bank. 10. 

Secus where the goods are only arrived in a vessel at a port for orders, 
though the vendee is to give the orders for the ultimate destination, Fra.'<er v. 
Witt. L. R. 7 Eq. 64, and also where the goods were delivered at the port of 
destination to a warehouseman not named by the consignee, but who consid- 
ered himself to be acting as agent for the consignee. Ex parte Barroiv, 6 Ch. 
D. 783; 46 L. J. Bank. 71; and see Ex parte Watson, 5 Ch. I). 35; 46 L. J. 
Bank. 97, where goods were forwarded by the vendor from Yorkshire to 
London, to be there shipped for Shanghai by the vendee, on the terms of a 
special arrangement between the vendor and vendee, whereby inter alia, the 
former was to have a lien on the bill of lading and shipment. It was held 
that the t)-ansitus continued from Yorkshire to Shanghai. 

On the other hand, where the purchaser, Loeffler, of goods at Bolton 
directed the vendor Kendal to send the goods to Garston, and at the same 
time instructed his agents Mar.sliall, Stevens & Co. at Garston, to forward 
them to Rouen, it was held that the transit ceased when the goods reached 
Garston and were lying there in the warehouses of the railway company who 
had given Marshall, Stevens & Co. the usual notice that the goods had 
arrived, and that if delivery were not taken in due course the company would 
hold them as Avarehousemen and would charge rent; Kendal v. Marshall, 11 
Q. B. D. 356; 52 L. J. Q. B. 313. Ex parte Miles, 15 Q. B. D. 39, is a some- 
what similar case, in which the transit was held as a matter of fact to be 
over on the arrival of the goods at a place short of their final destination.] 

In Coimsjee v. Thompson, 5 Moo. P. C. 165, the goods were purchased in 
London " free on board," to be paid for upon delivery on board, in a bill at 
six months, or cash less two and a half per cent, discount, at the seller's 
option. The goods were delivered by the seller into a vessel indicated by 



LICKBAEROW V. MASON. 1095 

the purchaser, and a receipt for them was obtained from the mate, which the 
seller kept. The seller elected to be paid hj bill, which was accordingly 
given, and the master, icithout requiring the return of the mate's receipt, signed 
bills of lading for the goods as shipped by the purchaser. By the custom of 
the port, the phrase " free on board" imports that the buyer is considered as 
the shipper, though the seller is to bear the expense of shipment. The Judi- 
cial Committee held that the transit was at an end, and the right to stop gone, 
so soon as the goods were put on board, and the bill given for the price. 
Quaere. [See Ex parte Rosevear China Clay Co., 11 Ch. D. 5G0.J 

See also Van Casteel v. Booker, 2 Exch. 691, [Key v. Cotesimrth, 7 Ex. 695; 
Browne v. Hare, 3 H. & N. 484, affirmed in error, 4 H. & N. 822 ; 29 L. J. 
Exch. 6; Schuster v. M'Kellar, 7 E. & B. 705; Green v. Sichel, 7 C. B. N. S. 
747; Moakes v. Nicholson, 19 C. B. N. S. 290, 34 L. J. C. P. 273; Shepherd v. 
Harrison, L. R. 5 H. L. 116, 40 L. J. Q. B. 148,] as to how far the intention 
with which the goods were shipped may affect the question, and when and 
how far in this sort of case it is one of fact for the jury even though the 
documents are not express upon the point. [For a case where the facts were 
in a court of equity, held to negative a transit, the ship belonging to the 
buyer, see Schotsmans v. L. & Y. Bail. Co., L. R. 2 Ch. 332, 36 L. J. Ch. 361. 
For the reverse case, where the ship was only chartered by the buyer, Berntd- 
soH V. Strang, L. R. 4 Eq. 481, 3 Ch. 588, 37 L. J. Ch. 665 ; Ex parte Rosevear 
China Clay Co., 11 Ch. D. 560.] 

Whilst, however, goods sold remain in the hands of a carrier employed to 
convey them to their original destination as between the buyer and seller, no 
case of constructive possession in the buyer arises, unless " where the carrier 
enters expressly or by implication into a new agreement distinct from the 
original contract for carriage, to hold the goods for the consignee as his 
agent, not for the purpose of expediting them to the place of original destina- 
tion pursuant to that contract, but in a new character for the purpose of 
custody on his account, and subject to some new or further order to be given 
to him." Whitehead v. Anderson, 9 M. & W. 518. [Ex parte Cooper, 11 Ch. D. 
77, per James, L. J.] And in the absence of such a new agreement, it seems 
that the mere acts of marking or sampling the goods, or giving notice to the 
carrier to hold the goods for the buyer, though done with the intention to 
take possession, do not establish a constructive possession in the buyer, or 
affect the i-ight to stop in transitu, Ibid.; [Coventry v. Gladstone, L. R. 6 Eq. 
44, 37 L. J. Ch. 492,] and see Dixon v. Yates, 5 B. & Ad. 313. [In the case 
of Ex parte Golding, Davis & Co., Limited, 13 Ch. D. 628, it was held that the 
signature by the ship-master of the bill of lading made out in the name of a 
sub-purchaser did not terminate the transitus indicated by the original pur- 
chaser.] 

The same law holds in the case of goods which, when sold, are on a wharf 
or in a dock, where they are intended to remain until taken away^ by the 
buyer. In such a case the goods are considered as constructively in transitu 
(see the remarks of Lord Abinger in Gibson v. Carruthers, 8 M. & W. 341), 
and the right of the vendor to stop in transitu remains so long as the goods 
are not taken away, and the warehouse keeper or dock owner has not become 
the agent of the buyer, see Dixon v. Yates, 5 B. & Ad. 313; Tanner v. Scovell, 
14 M. & W. 28, where the wharfinger, upon orders received direct from the 
seller, to weigh and deliver the goods to the buyer, had accordingly furnished 
the seller with the weights and delivered a portion of the goods to the buyer's 
order; yet, inasmuch as the wharfinger had not received warehouse rent 



1096 LICKBAREOW V. MASON. 

from the buyer, or transferred the goods into his name, or done any other 
act to become liis agent, the rest of the goods, without regard to wliether tlie 
property in them had vested in the buyer or not, were considered subject to 
the seller's right of stopping in transitu; and Lackington v. Atherton, 8 Scott, 
N. R. 38; 7 M. & Gr. 360, S. C, where the seller, who had himself bought 
the goods of the importer, in wliose name they were warehoused in tlie West 
India Docks, gave the buyer a delivei'y order upon wliich the dock company 
refused to act, because not given by the importer; and upon the subsequent 
insolvency of the buyer, the seller himself obtained a delivei'y order from 
the importer and possessed himself of the goods ; [and see Impenal Bank v. 
London tC St. K. Duck Co., 5 Ch. D. 195, 40 L. J. Ch. 335]. 

The question in all such cases seems to be, whether the warehouseman at 
the time of the stoppage held the goods as agent fur the consignor, or as agent 
for the consignee. 

As to the effect of a delivery order both with respect to stoppage in transitu 
and otherwise, see Harman v. Anderson, 2 Camp. 243; Stonard v. Dunkin, 
Ibid. 344; Bentall v. Burn, 3 B. & C. 423; {Farina v. Home, IG M. & W. 119;] 
Searle v. Keeves, 2 Esp. 598 (qncere) ; Akerman v. Humphrey, 1 C. «&. P. 53; 
Tucker v. Huston, 2 C. & P. 86; Svmnicick v. Sotheron, 9 A. A. & E. 895 ; Mel- 
ling V. Kelshaic, 1 C. & J. 184; M'Eican v. Smith, 2 M. of Lords, 365; [Dixon 
V. Bovill, 3 Macq. H. of L. 1 ; Godts v. Rose, 17 C. B. 229; Pearson v. Dawson, 
E. B. & E. 448 ; Kingsford v. Merry, 1 H. & N. 503 ; Coventry v. Gladstone, L. 
R. 6 Eq. 44, 37 L. J. Ch. 492 ; Young v. Lambert, L. R. 3 P. C. 142, 39 L. J. P. 

C. 21 ; Imperial Bank v. London & St. K. Dock Co., 5 Ch. D. 195; 46 L. J. Ch. 
335; Merchant Banking Co. v. Phoenix Co., 5 Ch. D. 205, 46 L. J. Ch. 418; 40 
& 41 Vict. c. 39, s. 5]. 

If the vendor allow the vendee to take possession of part of the goods 
sold under an entire contract, without intending to retain the rest, his right 
to stop in transitu is gone. Hammond v. A)id(irson, 1 N. R. 69. See Shd^y v. 
Hayicard, 2 H. Bl. 504; Hanson v. Meyer, 6 East, 614 [Ex parte Gihbes, 1 Ch. 

D. 101; 45 L. J. Bank. 10. See, however, Bolton v. The Lancashire, &c., Bail. 
Co., L. R. 1 C. P. 431, 35 L. J. C. P. 137]. But it is otherwise if he do intend 
to retain the remainder- Bunny v. Poyntz, 4 B. & Ad. 570; see Wentworth v. 
Outhwaite, 10 M. & W. 451; Tanner v. Scovell, 11 M. & W. 28. [Ex parte 
Chalmers, L. R. 8 Ch. 289, 42 L. J. Ch. 37.] 

It [has been] said that, prima facie, a delivery of part imports an intention 
to deliver tlie w^hole. Per Taunton, J., Belts v. Gibhins, 2 A. & E. 73. That 
dictum, however, which had been questioned by the author in his work on mer- 
cantile law (fifth edition, 488, 530), has been overruled by the Court of Ex- 
chequer in Tanner v. Scovell, 14 M. & W. 28, [and in Ex parte Cooper, 11 Ch. 
D., at p. 73, Lord Esher, M. R., (then Brett, L. J.,) laid it down "that those 
who rely upon the part delivery as a constructive delivery of the whole are 
bound to show that the part delivery took place under such circumstances as 
to make it a constructive delivery of the whole," and in Kemp v. Falk, 7 
App. Ca. 573, Lord Blackburn says that " if either of the parties dissent the 
part delivery is not a constructive delivery of the whole," and that he " rather 
thinks the onus is upon those who say it was so intended"]. In Tannery. 
Scovell it was laid down that if the buyer takes possession of part, not 
meaning thereby to take possession of the whole, but to separate that part 
only, it puts an end to the transitus o\\\j with respect to that part and no 
more. In that case, under a general order to deliver the goods, the buyer 
procured the actual delivery of certain portions of them which he had resold, 



LICKBARROW V. MASON. 1097 

and the delivery of those portions was held not to operate as a delivery of 
the whole, or to afl'ect the vendor's right as to the rest. 

And in Jones v. Jones, 8 M. & W. 431, the assignee of a cargo of goods 
under a trust deed took possession of part of the cargo upon its arrival, and 
directed the rest to be conveyed to a designated place, with the intention of 
obtaining possession of the whole for the purposes of the trust ; and it was 
held that such taking i^ossession of part did put an end to the transit ; but it 
was in that case assumed to be clear law that the mere delivery of jsart to 
the buyer, if he means to separate that part from the remainder, does not 
amount to a delivery of the whole so as to defeat the right to stop in transitu. 

In Tanner v. Scovell, supra, the whole question was stated to depend on the 
intention of the huyer ; but perhaps that statement was intended to apply only 
to cases like Tanner v. Scovell, where it was in the power of the buyer at the 
time, if he pleased, to take all. [See the judgment in Bolton v. The Lan- 
cashire, &c., Rail. Co., L. R. 1 C. P. 431 ; 31 L. J. C. P. 137, where the buyer took 
part, having the power to take all, and refused to take the rest, and the right 
to stop was held not to be gone, and Ex parte Catling, 29 L. T. N. S. 431, also 
per Lord Blackburn, in Kemp v. Falk, 7 App. Ca. 586, cited sxipra. In Ex 
parte Gibbes, 1 Ch. D. 101 ; 45 L. J. Bank. 10, it was held that there was a 
constructive delivery to the purchaser of the whole of the goods by a 
delivery of part. In Ex parte Cooper, sup. it was held that part delivery did 
not amount to a constructive delivery of the whole where freight had not 
been paid on part of the undelivered goods, and in Kemp v. Falk, 7 App. Ca. 
573, 52 L. J. Ch. 167, the facts were also held to exclude the notion of a con- 
structive delivery of the whole cargo. 

It was once thought that,] although the determination of the transit puts 
an end to the vendor's right to stop the goods, the vendee [could not] 
anticipate its natural determination, as for instance, by going to meet the 
goods at sea. Hoist v. Pownall, 1 Esp. 240. Vide tamen, the judgment in 
Mills V. Ball, 2 B. & P. 461 ; Oppenheim v. Russell, 3 B. & P. 54 ; Foster v. 
Frampton, 6 B. & C. 107; and Whitehead v. Anderson, 9 M. & W. 518, where 
it was laid down as indisputable, that if the vendee take the goods out of the 
possession of the carrier into his own before their arrival, the right to stop 
in transitu is at an end ; though if he were to take them without the consent 
of the carrier, it might be a wrong to him for which he would have a right of 
action. [See also The London and North Western Rail. Go. v. Bartlett, 7 H. 
& N. 400.] 

The carrier cannot prolonrj the transit of the goods after arrival at the 
port of destination, by refusing to give them up to the consignee upon 
demand and tender of freight. Bird v. Broicn, 4 Exch. 786 [but "Transit 
embi-aces not only the carriage of the goods to the place where delivery is to 
be made, but also delivery of the goods there according to the terms of the 
contract for convej-ance," jjer Lord Fitzgerald in Kemp v. Falk, 7 App. Ca. at 
p. 588.] 

Nor can the vendor's right be defeated by the enforcement of the claim 
against the vendee, as, for instance, by process of foreign attachment at the 
suit of his creditor, or by the carrier's assertion of a general lien against 
him. Smith v. Goss, 1 Camp. 282 ; Butler v. Woolcot, 2 N. R. 64 ; Nicholls v. 
Lefevre, 2 Blng. N. C. 83. .[And see Mercantile Bank v. Gladstone, L. R. 3 Ex. 
233; 37 L. J. Ex. 130.] 

To make a notice effective as a stoppage in transitu, it must be given to the 
person who has the immediate custody of the goods ; or if given to the priu- 



1098 LICKBAREOW V. MASON. 

cipal whose servant has the custody, it must be given at such a time and 
under such circumstances that the principal, bj' tlie exercise of reasonable 
diliii;ence, ma}^ communicate it to his servant, in time to prevent the delivery 
of the goods to the consignee. Whitehead v. Anderson, 9 M. & W. 518. [See 
also Ex parte Watson, in re Love, 5 Ch. D. 35; 46 L. J. Bank. 97, and Phelps, 
Stokes, and Co., v. Comber, 29 Ch. D. 813. As to whether there is a duty on 
the shipowner to communicate, see per Lord BramwcU, Ex parte Falk, 14 Ch. 
D. 455; per Lord Blackburn, Kemp v. Falk, 7 App. Ca. 585.] 

A stoppage by an unauthorised pci'son professing to act for the seller is 
inoperative, though ratirted by the seller, if such ratification be after the 
period during which the seller himself could have stopped in transitu. Bird 
V. Brown, 4 Exch. 786. 

The second vendee of a chattel cannot, generally speaking, stand in a 
better situation than his immediate vendor. Small v. Moate, 9 Bing. 574. 
IKerne v. Deslandes, 10 C. B. N. S. 205; 30 L. J. C. P. 297, S. C; Sheridan v. 
New Quay Co., 4 C. B. N. S. 618; Schuster v. M'Kellar, 7 E. & B. 704.] If, 
therefore, the vendee sell the goods before they have been delivered to him, 
he sells them, generally speaking, subject to the vendor's right to stop 
in transitu. Dixon v. Yates, 5 B. & Ad. 313; Jenkyns v. Usborne, 8 Scott, 
N. R. 505 ; 7 M. & G. 678, S. C. [though see per Lord Fitzgerald, Kemp v. 
Falk, 7 App. Ca. at p. 590. Subject to the vendor's rights the subvendee 
would of course be entitled to tlie goods, Kemp v. Falk, nbi sup. ; Ex parte 
Golding, Davis, and Co., Limited, 13 Cli. D. 628.] 

But on [tlie above] rule the principal case has engrafted an exception ; fbr 
the second and main point in Lirkbarroic v. Mason is, that the vendee may, 
by negotiating tiie bill of lading to a bonct fide transfei'ee, defeat the vendor's 
right to stop in transitu. [And the recent act to amend the Factors' Acts, 40 
& 41 Vict. c. 39, has extended this doctrine bj' enacting (s. 5) that: " Where 
any document of title to goods has been lawfully indorsed or otherwise 
transferred to any person as a vendee or owner of the goods, and such person 
transfers such document by indorsement (or by delivery where the document 
is b}' custom, or by its expi'ess terms transferable by delivery, or makes the 
goods deliverable to the bearer), to a person who takes the same bona fide 
and for valuable consideration, tlie last-mentioned transfer shall have the 
same effect for defeating any vendor's lien or right of stoppage in transitu 
as the transfer of a bill of lading has for defeating the right of stoppage in 
transitu." As to Avhat is or is not a document of title to goods, see Gttnn v. 
Bulckow, L. R. 10 Ch. 491; 44 L. J. Ch. 732; Kemp v. Falk, 7 App. Ca. 573; 
52 L. J. Ch. 167.] 

A succinct history of the law on this point is given by Lord Tenterden, in 
his admirable work on Shipping, [p. 388, 11th ed. by Shee, 442,] where he 
remarks, that "the earliest mention of the subject in our law books is the 
case of Evans v. Martlett, 1 Lord Raym. 271, 12 Mod. 156; in which Holt, 
C. J., said ' the consignee of a bill of lading has such a property that he may 
assign it over : ' and Shower said ' that it had been adjudged so in the 
Exchequer.' But in that case, the effect of such an assignment was not 
properly before the court, and does not appear to have been discussed or 
argued; and the case supposed to be referred to by Shower has not been 
found. In the case of Snee v. Prescot, 1 Atk. 246, the right of the pawnee of 
the bill of lading as against the consignor was not noticed or insisted upon." 
He then proceeds to comment on the cases of Wright v. Campbell, 2046, 1 Bl. 
628 ; Hibbert v. Carter, 1 T. R. 445 ; Caldwell v. Ball, Ibid. 205 ; and Lickbarrow 



LICKBARROW V. MASON. 1099 

V. Mason; and concludes by stating, [p. 435, 11th ed.], that " that cause was 
tried again, and tliat the Court of King's Bencli, at the head of wliicli Lord 
Kenyon had in tlie meantime been phiced, and who had, in anotlier cause, 
expressed liis approbation of the first judgment in tliis case, as being founded 
on principles of justice and common honesty, again decided the case without 
argument, in conformity to the first decision of that court; 5 T. R. 683; and 
In order that the question might again be carried to the other tribunals, 
another writ of error was brought ; but it was afterwards abandoned, and it 
is now the admitted doctrine in our courts that the consignee may, under the 
circumstances before stated, confer an absolute right and property 7tpon a third 
person, indefeasible by any claim on the part of the consignor." 

[To defeat the vendor's right of stoppage, the indorsement of the bill of 
lading must be for value. In Rodger v. The Comptoir d'Escompte de Paris, 
L. R. 2 P. C. 393; 38 L. J. P. C. 30, it was held by the Privy Council that an 
antecedent debt was not a sufticient consideration to defeat the right of stop- 
page in transitu. But the Court of Appeal have expressly dissented from this 
case. Leask v. Scott, 2 Q. B. D. 876; 46 L. J. Q. B. 329, 576. In the former 
case, Lyall, Still & Co. being pressed by the respondents, who were their 
creditors to a large amount, executed an assignment of all goods and bills of 
lading, or other documents for goods to arrive in December, 1866. In pursu- 
ance of their agreement in the assignment, L. S. & Co., on the subsequent 
arrival of goods, indorsed the bills of lading to the respondents without 
receiving any consideration for sucli indorsement except an existing debt and 
the release of an antecedent agreement by L. S. and Co. to furnisli liills and 
shipping documents, on the faith of which the advances were made by the 
respondents to L. S. & Co. At the time of the assignment it was notorious 
that the assignors were in difficulties ; and by the assignment, if not before, 
they were made insolvent. It was held that the indorsement of the bills of 
lading did not defeat the vendor's right to stop in transitu. See The Char- 
tered Bank of India v. Henderson, L. R. 5 P. C. 501, a somewhat similar case, 
in which it was held that the indorsement was for a sufficient consideration. 

In Leask v. Scott {sitpra) the facts were as follows : On the 22nd December, 
1875, Geen, Stutchbury & Co., fruit merchants in London, agreed to purchase 
of the defendants a shipment of nuts from Naples to London, by tlie Trini- 
dad, "reimbursement as usual," which was by acceptance at tliree months on 
delivery of the shipping documents. On Saturday the 1st of January, 1876, 
being prompt day, Geen & Co. being already indebted to the plaintifl", their 
fruit broker, in between 10,000Z. and 11,000Z., Mr. Geen applied to him for a 
further advance of 2,000Z. The plaintiff" said, "You may have it, but you 
must first cover up your account." Geen said he would give him cover, and 
the plaintiflf's cashier at once handed Geen a cheque for 2,000Z. On Tuesday 
the 4th day of January, the bill of lading, dated the 29th of December, 1875, 
indorsed by defendants in blanlv (tlie nuts being made deliverable to their 
order), was handed by their agent to Geen & Co., and they at once accepted a 
draft for tlie price, 224Z. \Gs. 2d. : and on the next day Geen & Co. handed to 
the plaintiff" the bill of lading and other similar documents to tlie value of 
about 5,000L in performance of their promise on the Saturday to give the 
plaintiff" cover. On Saturday the 8tli of January, Geen & Co. stopped pay- 
ment. The Trinidad arrived off" Liverpool on the 3rd of February, and the 
defendants sought to stop the nuts in transitu, the plaintiff" claiming them 
under the bill of lading. The nuts were landed, warehoused, and sold, the 
price being held to abide the result of the interpleader action. 



1100 LICKBAEROW V. MASON. 

In answer to questions by the judije, the jury found that the plnintif!* 
received the bill o{ lading honestly and fairly : that valuable consideration 
was given on the uudei'standing of security being given : and that tlie security 
given was to secure the 2,000/., and also the old account. 

On behalf of the defendant it was contended, on the authority of Iiodger v. 
TTie Comptoir d'Escompte de Paris, that the equitable right of stoppage pre- 
vailed against a legal title acquired by receiving the bill of lading for a con- 
sideration, no part of which was caused to be given by the bill of lading. 
The Court of Appeal, whilst of opinion that the defendant's ai'gument was 
the same as the ratio decidendi in Rudtjer v. 77/e Comptoir d'Escompte de Paris, 
distinctly declined to follow that case, holding that there was "not a trace of 
such distinction between cases of past ami present consideration to l)e found 
in the books : and further, that practically such a past consideration " 
{quaere, transaction) "as was then inuler discussion had always a present 
operation by staying the hand of the creditor." Tlie judgment of Field, J., 
based upon the above case of Rodf/er v. I'he Comptoir, &(•.., was accordingly 
reversed. Another view of both of these cases might perhaps be that the 
giving of security should be treated as relating back to the agreement to give 
it, in which case it would have been given for a present consideration. 
Qucere, how far Leask v. Scott is consistent with or overrules Spaldiiuj v. 
Budinrf, r> Beav. 37G. 

Furtlier, " although the shipper may have indorsed in l^lank a 1)111 of lad- 
ing, deliverable to his assignees, his right is not aftected by an appropriation 
of it without his authority. It is not a negotiable instrument like a bill of 
exchange." Per Campbell, C. J., Gurney v. Behrend, 3 E. & B. G33. See fur- 
ther that case, also Schuster v. M'Kellar, 7 E. & B. 704; (T/te Marie Joseph) 
Pease v. Gloahec, L. R. 1 P. C. 219; 35 L. J. P. C. 66; Uathesing v. Laing, L. 
R. 17 Eq. 92; 43 L. J. Ch. 233; Gilhert v. Guignon, L. R. 8 Ch. 16; Gaharron 
V. Ereeft, L. R. 10 Ex. 274 ; 44 L. J. Ex. 238 ; Ogg v. Shuter, L. R. 10 C. P. 159 ; 
1 C. P. D. 47 ; 45 L. J. C. P. 44 ; Mirahita v. Imperial Ottoman Bank, 3 Ex. D. 
164; 47 L. J. Ex. 418; Glyn v. E. & W. India Dock Co., 7 App. Ca. 591, 52 L. 
J. Q. B. 146, as to what state of facts has been held sufhcient to estal)lish the 
ability of the indorser to confer a good title on a bond fide indorsee, and also 
the Factors' Acts, which will be more fully noticed hereafter.] 

If the assignee of a bill of lading act mala fide ; for instance, if he knows 
that the consignee of the goods is insolvent, and takes the assignment of the 
bill of lading for the purpose of defeating the right to stop in transitu, and 
so defrauding the consignor out of the price ; he will be held to stand in the 
same situation as the consignee : and the consignor will preserve his right of 
stoppage. Per Lord EUenborough, delivering judgment in Gumming v. 
Brown, 9 East, 514. 

And if the bill of lading contain a condition, ex gr., if it be indorsed upon 
it that the goods are to be delivered, provided E. F. pay a certain draft, every 
indorsee takes it subject to that condition, and will have no title to the goods, 
unless it be performed. Barrow v. Coles, 3 Camp. 92. 

[Where the shipper takes and keeps in his own or his agents' hands a bill 
of lading, making the goods deliverable to his own order to protect himself, 
the hold retained under the bill of lading is not merely a right to retain 
possession till the conditions upon which it was given are fulfilled, but in- 
volves in it a power to dispose of the goods on the vendee's default, so long 
at least as the vendee continues in default, Ogg v. Shuter, 1 C. P. D. 47 ; 44 L. 
J. C. P. IGl.] 



LICKBAEEOW V. ZSIASOX. llUl 

Where the goods are shipped under such circumstances as to show an in- 
tention that the property or right of possession sliould not vest in the con- 
signee until some further act is done, such as payment, or handing over the 
bill of lading, no question of stoppage in transitu can arise before that act is 
done. See Turner x. Liverpool Docks, 6 Exch. 543: [Sheridan \. Xeic Quay 
Co., i C. B. N. S. 618.] 

In cases -where a bill of lading may be, and has been, pledged by the con- 
signee of the goods, as a security for his own debt, the legal right to the 
possession of the goods passes to the pledgee ; but the right to stop them in 
transitu, in case the consignee should become insolvent, is not absolutely 
defeated, as it is in the case of a sale of the bUl of lading by the consignee ; 
for the vendor may still resume his interest in them, subject to the rights of 
the pledgee, and will have a right, at least in equity, to the residue which may 
remain, after satisfying the pledgee's claim. And further, if the goods com- 
prised within the bill of lading be pledged along with other goods belonging 
to the pledgor himself, the vendor will have a right to have all the pledgor's 
own goods appropriated to the discharge of the pledgee's claim before any of 
the goods comprised within the bill of lading are so. 

This was decided In re Westzinthus, 5 B. & Ad. 817, where Lapage & Co. 
having purchased oil from Westzinthus. paid for it by acceptance : and be- 
ing in possession of the bills of lading, pledged them with Hardman & Co., 
as a security for certain advances. Lapage «& Co. became bauki-upt, and 
their acceptance in the plaintiff's favour was dishonoured. At the time of 
their bankruptcy they owed Hardman & Co. 9271/. on account of advances; 
as a security for which they held, besides the bill of lading, goods to the 
value of 99617. Is. 7d., belonging to Lapage himself. The court held that 
"Westzinthus, who had. upon the bankruptcy of Lapage & Co., given notice to 
the master of the ship that he claimed to stop the oil in transitu, had a right 
to insist upon the proceeds of Lapage's own goods being appropriated to the 
discharge of Hardman's lieu. and. as they proved sufficient to satisfy it. had 
a right to receive the entire pi'oceeds of his oils. 

" As Westzinthus." said Lord Denman. delivering the judgment of the 
court. •• would have had a clear right at law to resume the possession of the 
goods on the insolvency of the vendee, had it not beeu for the transfer of the 
property and right df possession, for a valuable consideration to Hardman, it 
appears to^us, that in a coiu't of equity, such transfer would be considered as 
a pledge or mortgage only ; and Westzinthus would be considered as having 
resumed his former interest in the goods, subject to that pledge or mortgage, 
in analogy to the common case of a mortgage of real estate, which is con- 
sidered as a mere security, and the mortgagor, the owner of the laud. We, 
therefore, think that Westzinthus, by his attempted stoppage in transitu, ac- 
quired a right to the goods in equity (subject to Hardman's lien thereon), as 
against Lapage and his assignees, who are bound by the same equity that 
Lapage himself was : and this view of the case agrees with the opiuion of 
Mr. Justice Buller, in his comment on the case of Snee v. Prescot in Lickbar- 
row V. Mason. If then Westzinthus had an equitable right to the oil subject 
to Hardman's lien thereon for his debt, he would, by means of his goods, 
have become a surety to Hardman for Lapage's debt; and would then have a 
clear equity to oblige Hardman to have recourse against Lapage's own goods 
deposited with him to pay his debt in ease of the suretj". And all the goods, 
both of Lapase and Westzinthus. having been sold, he would have a right to 
insist upon the proceeds of Lapage's goods being appropriated, in the first 



1102 LICKBARROW V. MASON. 

instance, to the payment of the debt." [See this last point followed in Ex 
parte Alston, L. R. 4 Ch. 168 ; and see Coventry v. Gladstone, L. R. 6 Eq. -i-l ; 37 
L. J. Ch. 492.] 

Sjmldinf/ v. liiidinff, 6 Beav. 376, confirms Westziiithus's case, and shows 
that the goods cannot be retained as security for a (jeneral balance of account, 
but only for the specific advance made upon securitj' of the bill of lading. 
[But compare as to the latter point, Rodger v. The Comptoir d" Escompte de 
Paris overruled by Leask v. Scott, ante, p. 809. In Kemp v. FalJc, 7 App. Ca. 
573, 52 L. J. Ch. 167, and Ex parte Golding, Davis & Co., Limited, 13 Ch. D. 
628, the cases of Spalding and Euding and Ex parte Westzinthits are followed 
and approved.] 

AVliilst, however, the indorsement of a bill of lading might defeat the right 
of stoppage in transitii, still before the statute 18 & 19 Vict. c. Ill, the 
transfer of a bill of lading did not, like that of a bill of exchange, confer any 
right on the assignee to sue upon the contract expressed thereby. Ttiompson 
V. Dominy, 14 M. & W. 403: Howard v. Shepherd, 9 C. B. 296. 

That statute, however, has altered the law in this respect. By tlie first 
section rights of action and liabilities upon the bill of lading are to vest in 
and bind the consignee or indorsee to whom the property in the goods shall pass. 
[See Fox v. Xott, 6 H. & N. 630; 30 L. J. Exch. 259, showing that the section 
was not intended to exonerate the original shipper; Short v. Simpson, li. R. 
1 C. r. 248; 35 L. J. C. P. 147; and The St. Cloud, Brown & Lush., Adm. Ca. 
4. As to what is primd, facie evidence that the property passed, see Dracachi 
V. The Anglo-Egyptian Bank, L. R. 3 C. T. 190; 37 L. J. C. P. 71; and see 
The Freedom, L. R. 3 P. C. 594. 

The (juestion whether indorsement and delivery of the bill of lading by way 
of security for an advance passes " the property in the goods " witliin this 
section, so as to make the indorsee liable for freight, has been vei'y fully dis- 
cussed in Bnrdick v. Sewell, 10 Q. B. D. 363, 13 Q. B. 1). 159, and 10 App. Ca. 
74. In that case it was eventually decided by the House of Lords that where 
such indorsement and delivei'y operates merely by way of pledge, so as to 
give a special property onl}' to the pledgee and not as an assignment of the 
whole property in the goods, the pledgee is not an indorsee to whom the 
property passes within the act. And semble {per Lord Selborne at p. 85, and 
Lord Blackburn at p. 96), it would be the same if the ''transaction were in 
fact a mortgage, thougli that point was not decided by the House of Lords 
(see p. 103). 

The pledgee would, however, be liable, irrespectively of the Act, on the 
bill of lading if and when he should take deliver}' of the goods under the bill 
of lading, per Lord Selborne, ib. at pp. 86-89, and Allen v. ddtart, 31 W. R. 
841, and 48 L. T. 944, on the ground that the fact of so doing is evidence of 
a new agreement by him with the shipowner to comply with the terms of 
the bill of lading.] 

B}' the second section it is provided that the act is not to afiect the right of 
stoppage in transitu, or claims for freight against the shipper or owner of 
the goods, or the consignee or indorsee as OAvner, or by reason of his receipt 
of the goods. It should seem that the statute has not altered the rule, that 
the indorsement of a bill of lading gives no better right to the indorsee than 
the indorser himself had, and that in this respect a bill of lading still difters 
from a bill of exchange in the same way as it did befoi-e the statute; see 
Gurney v. Behrend, 3 E. & B. 622. In that case the bill of lading was sent in 
a letter from a shipper, stating tliat he had drawn against the cousigumeut, 



LICKBARROW V. MASOX. 1103 

and it was held that the acceptance of the draft was not thereby made a con- 
dition precedent to the right to negotiate the bill of lading, though if it had 
been, and had not been complied with, an indorsement of the bill of lading 
would not have defeated the seller's title. And see Key v. Cotesv:orth, 7 Exch. 
595; \_The Argentina, L. R. 1 A. & E. 370, and the cases on this point cited 
ante, p. 810. 

If the shipper indorses the bill as a pledge, and whilst it is so held the 
■goods are misdelivered, he may, on reindorsement of the bill to him on paj^- 
ment of the advance for which it was pledged, sue for the misdelivery. Short 
V. Simpson, 35 L. J. C. P. 147; L. R. 1 C. P. 248. 

The rights and liabilities of the consignee or indorsee under the act, pass 
from him by indorsement over. Smurthiraite y. Wilkins, 11 C. B. N. S. 842; 
31 L. J. C. P. 214; if the indorsement be such as to pass the property under 
the act, Burdick v. Seivell, supra. 

But a consignee who has sold the goods, but has not indorsed the bill of 
lading to the purchaser, remains a consignee within the act, so as to be liable 
under the bill of lading, Fov:ler v. Knoop, 4 Q. B. D. 299; and conversely an 
indorsee has a right to sue thereon, although he has sold the cargo before 
taking proceedings : The Marathon, 40 L. T. N. S. 168.] 

The third section provides that a bill of lading in the hands of a consignee 
or indorsee for value without notice shall be conclusive evidence of shipment 
against the master or other person signing the same, notwithstanding that such 
goods, or some part thereof, may not have been so shipped, provided that he 
may exonerate himself in respect of such misrepresentation by showing that 
it was caused without any default on his part, and wholly by the fi'aud of the 
shipper, or holder, or some person under whom the owner claims. [It has 
been held that this section does not estop an owner who has not personally 
signed the bill of lading. Jessel v. Bath, L. R. 2 Ex. 267; 36 L. J. Ex. 149; 
M'Lean v. Fleming, L. R. 2 H. L. Sc. App. 128 ; Blanchet v. PoweU's Llantwit 
Collieries Co., L. R. 9 Ex. 74; 43 L. J. Ex. 50; Brown v. Powell Coal Co., L. 
R. 10 C. P. 562 ; 44 L. J. C. P. 289. 

See as to the negotiability of a bill of lading after the landing of the cargo 
at the port of destination, Barber v. Meyerstein, L. R. 4 H. L. 317; 39 L. J. 
C. P. 187.] 

A factor to whom a pledge was consigned, stood in a dift'erent position 
from a vendee with respect to his power to pass the property therein by an 
indorsement of the bill of lading. Eor, though he might bind his principal 
by a sale thereof, he could not by a pledge, that not being within the usual 
scope of his authority. Martin v. Coles, 1 M. & S. 140; Shipley v. Kymer, 
Ibid. 484 ; Newsom v. Jliornton, 6 East, 17 [and see Thackrah v. Hardy, 25 
W. R. 307]. 

But by statutes 4 Geo. 4, c. 83, 6 Geo. 4, c. 94, 5 & 6 Vict. c. 39 [and 40 & 
41 Vict. c. 39] usually called the Factors' Acts, the law" upon this subject was 
altered. [As to sect. 1 of 6 Geo. 4, c. 94, which does not deal directly with 
the subject of this note but with the position and authority of persons in- 
trusted with goods and of persons in whose names goods shall have been 
shipped, see Mildred v. Maspons, 8 App. Ca. 874, per Lord Blackburn.] 

By sect. 2, a person intrusted with, and in possession of any bill of lading, 
is to be deemed the true owner of the goods described in it, so far as to give 
validity to any contract made by him, for the sale or disposition of the goods, 
or any part thei'eof , or for the deposit or pledge thereof, or any part thereof, 
as a security for any money, or negotiable instrument, provided the buyer, 



1104 LICKBARROW V. MASON. 

disponee, or pawnee, have no notice by the bill, oi' otlierwise, tliat he was 
not the actual bona fide owner of tlie goods. Upon the question who is to be 
considered a "person intrnstecl" within tlie meaning of this section, see Close 
V. Holmes, 2 M. & Rob. 23; Phillips v. Huth, 6 M. & W. 605; Hatfield v. 
Phillips, 9 M. & W. 647 ; 14 M. & W. GGo ; 12 CI. & Fin. 343 ; Bonzi v. Stewart, 
5 Scott, N. R. 1 ; 4 M. & G. 525 [Baines v. Sicainson, 4 B. & S. 270; 32 L. J. 
C. B. 2S1 ; Johnson v. Credit Lyonnais, 3 C. P. D. 32; 47 L. J. C. P. 241, per 
Braniwell, L. J., Avho elaborately shows that "person intrusted" means 
'• factor or agent intrusted as such." As to the nature of the agency, see 
infra, p. 818] ; and as to what is a " disposition," see Taylor v. Kymer, 3 B. & 
Ad. 337. 

But by sect. 3, if the deposit or pledge be as a security for a pre-eofistiny 
demand, the depositee or pawnee ac(iuires only the same interest in them that 
was possessed by the person making the deposit or pledge. [See on this sec- 
tion Jeican v. Whitirorth, L. R. 2 Eq. 692; Macnee v. Gorst, L. R. 4 Eq. 315; 
Kaltenhach v. Lewis, 10 App. Ca. 617. 

As to the 4th section, see Baines v. Swainson, snpra.^ 

Sect. 5 enacts that any person may accept such goods or document as afore- 
said, on deposit or pledge, from any factor or agent, notioitkstnndinii he shall 
have notice that the party is a factor or agent; but in sucli case he sliall 
acquire such interest, and no further or other, as was possessed by the factor 
or agent at the time of the deposit or pledge; and, therefore, in this last 
case, if the agent's interest be defeasible, so is the pledgee's. Blandy v. Allen, 
Dans. & Lloyd, 22; Fhtcher v. Heath, 7 B. & C. 517. A fraudulent sale can- 
not be upheld as a pledge under this section. Thompson v. Farmer, 1 M. «& 
M. 48. 

The provisions of this statute (6 Geo. 4, c. 94), being found insullicient to 
meet the wi.shes or convenience of merchants, stat. 5 & G Vict. c. 39, " An act 
to amend the law relating to advances bona fide made to agents intrusted with 
goods," was passed (30th June, 1842). 

The 1st section, after reciting inter alia, that by 6 Geo. 4, c. 94, " validity is 
given, under certain circumstances, to contracts or agreements made with 
persons intrusted with and in possession of the documents of title to goods 
and merchandize, and consignee making advances to persons aljroad who are 
intrusted with any goods and merchandize are entitled, imder certain circum- 
stances, to a lien thereon, but under the said act and the present state of the 
law, advances cannot safely be made upon goods or documents to persons 
known to have possession thereof as agents only;" and that "advances on 
the security of goods and merchandize had become an usual and ordinary 
course of business, and it was expedient and necessary that reasonal)le and 
safe facilities should be afforded thereto, and that the same protection and 
validity should be extended to bona fide advances upon goods and merchan- 
dize as by the 6 Geo. 4, c. 94, is given to sales, and that owners intrusting 
agents with the possession of goods and merchandize, or of documents of 
title thereto, should in all cases where such owners by the 6 Geo. 4, c. 94, or 
otherwise, would be bound by a contract or agreement of sale, be in like 
manner bound by any contract or agreement of pledge or lien for any 
advances bona fide made on the security thereof; " and that " much litigation 
had arisen on the construction of the 6 Geo. 4, c. 94, that it did not extend to 
protect exchanges of securities bona fide made, and so ranch uncertainty 
existed in respect thereof, that it was expedient to alter and amend the same, 
and to extend the provisions tliereof , and to put the law on a clear and certain 



LICKBAEROW V. MASON^. 1105 

basis ; " enacts ' ' that from and after the passing of this act any agent who 
shall hereafter be intrusted with the j>ossessio)i of goods " IFreeman v. Apple- 
yard, 32 L. J. Exch. 175] , "or of the documents o/ title to goods, shall be deemed 
and taken to be owner of snch goods and documents, so far as to give validity 
to an J' contract or agreement by way of pledge, lien, or security hand fide 
made bj' an}' person with such agent so intrusted as aforesaid, as well as for 
any original loan, advance, or payment made upon the security of such goods 
or documents, as also for any further or continuing advance in respect thereof, 
and such contract or agreement shall be binding upon and good against the 
owner of such goods, and all other persons interested therein, notwithstanding 
the person claiming such pledge or lien may have had notice tJiat the person with 
whom such contract or agreement is made is only an agent." 

This, as well as the other provisions of the statute, though wide enough in 
terms to include manj' other cases, has been limited in construction to mer- 
cantile transactions. So that in Wood v. Rowcliffe, 6 Hare, 191, where it was 
contended that advances made upon the securit}^ of furniture in a furnished 
house, not in the way of trade, to the apparent owner of the furnitui'e, who 
in fact was an agent inti'usted with the custody of it bj' the true owner, were 
within the protection of 5 & 6 Vict. c. 39, Sir James Wigram, V.-C, held the 
contrary, saying in the course of his judgment: " the first act (6 Geo. 4, c. 
94), is for the ' protection of the property of merchants and others,' and the 
property referred to is 'goods, wares, and merchandize,' intrusted to the 
agent ' for the pui'pose of consignment or sale,' or ' shipped ' ; " [see the first 
section of the act;] " and upon a judicial construction of the act it has been 
held that the generality of the expressions must be restricted. Every servant 
of the owner of goods employed in the care or carriage of such goods, is in 
one sense ' an agent intrusted with goods,' but still he is not an agent within 
the meaning of the statute; Monk v. Whittenbury, 2 B. & Ad. 484. The title 
of the second act (5 & 6 Vict. c. 39) is more general; but it appears to me to 
relate to 'agents,' and to ' goods and merchandize,' in a sense which is not 
applicable to the agencj' or the property in this case." 

In Monk v. Whittenbury, supra, it Avas considered that a carrier, warehouse- 
man, i^acker, or wharfinger is not " an agent," within 6 Geo. 4, c. 94 ; and Sir 
James Wigram, V.-C, appears to have treated that decision as applicable also 
to the construction of 5 & 6 Vict. c. 39. 

[In Lamb v. Attenhorough , 1 B. & S. 831 ; 31 L. J. Q. B. 41, a wine-merchant's 
clerk was held not to be his " agent" within the meaning of the Factors Acts, 
but only his servant; but in Hayman v. Flewker, 13 C. B. N. S. 519; 32 L. J. 
C. P. 132, a person intrusted with pictures for sale on commission, and whose 
ordinary business did not extend to selling on commission, was held to be an 
"agent" within 5 & 6 Vict. c. 39, s. 1, as his employment on the occasion 
corresponded with that of a factor. In the two cases of Johnson v. Credit 
Lyonnais Co. and Johnson v. Blumenthal, 3 C. P. D. 32, 47 L. J. C P. 241, the 
Court of Appeal affirmed two judgments of Denman, J., and Field, J., in 
which those learned judges respectively held that a vendor who had been left 
by his vendee in possession of documents of title to goods till it suited the 
convenience of the buyer to accept delivery, could not under the Factors 
Acts confer a good title upon a bona fide pledgee. These judgments, though 
clearly in accordance with preA'ious decisions, created some consternation 
amongst commercial men, and led to the passing of another Factors Act, 40 
& 41 Vict. c. 39, whereby it is provided (sect. 3) that " where any goods have 
been sold, and the vendor or any person on his behalf continues or is in pos- 



1106 LICKBARROW V. MASON. 

session of the documents of title thereto, any sale, pledge, or other disposi- 
tion of the goods or documents made by such vendor or any person or agent 
intrusted by the vendor with the goods or documents within the meaning of 
the principal acts as amended by this act, so continuing or being in posses- 
sion, sliall be as valid and effectual as if such vendor or person were an agent 
or person intrusted by the vendee with the goods or documents Avithin the 
meaning of the principal acts as amended by this act, provided the person to 
whom the sale, pledge, or other disposition is made has not notice that the 
goods have been previously sold."] 

In Jenki/ns v. Csbonie, 8 Scott, N, R. 505; 7 M. & G. 678, S. C, confirmed 
by Van Casteel v. Booker, 2 Exch. 691, a vendee who had received from the 
vendor a delivery order for the goods was considered not to be a person in- 
trusted with a delivery order within the 6 Geo. 4, c. 94, s. 2, so as to be capa- 
ble of making a valid pledge of the delivery order, and so defeating the right 
of stoppage in transitu. [But the law in this respect also has been altered by 
the last Factors Act, 40 & 41 Vict. c. 39, which provides (sect. 4) " that where 
anj^ goods have been sold or contracted to ])e sold, and the vendee, or any 
person on his behalf, obtains the possession of the documents of title thereto 
from the vendor or his agents, any sale, pledge, or disposition of such goods 
or documents by such vendee so in possession, or by any otlier person or 
agent intrusted by the vendee with the documents within the meaning of the 
principal acts as amended by this act, shall be as valid and eflectual as if such 
vendee or other person Avere an agent or person intrusted by the vendor with 
the documents within the meaning of the principal acts as amended by this 
act, provided the person to whom the sale, pledge, or other disposition is 
made has not notice of any lien or other I'ight of the vendor in respect of the 
goods." In Joseph v. Webb, Cab. & El. 262, it was held by Iluddleston, B., 
that a mortgagor in possession, with power to sell on his own account, did 
not come within the Factors Acts. 

Questions of nicety have arisen as to liow far it is necessary that the agent 
at the time when he pledges the goods should be intrusted with the goods 
for the purpose of sale. 

In Baines v. Sicainson, 4 B. & S. 270, the transaction Avas held protected, 
though the instructions given to the agent Avere, " We send you (the factor) 
the goods for the purpose of effecting this sale, Avhich Ave shall ratify and 
approve through you, and Ave intrust you Avith the possession of the goods 
to see if they ansAver the description Ave liaA^e given." The agent in that case 
was by trade a factor. 

In Fuentes v. Montis, L. E. 3 C. P. 268; 37 L. J. C. P. 137, the subject is 
elaborately' discussed in the judgment of Willes, J. It Avas there held that 
the agent must be intrusted for the purpose of or in connection Avith the 
sale, and, therefore, that Avhere the poAver of sale had been revoked at the 
time of the pledge, the transaction was not protected. This decision was 
upheld in the Exchequer Chamber, L. R. 4 C. P. 93 ; 38 L. J. C. P. 95. (It 
should be observed, however, as regards revocation, that by 40 & 41 Vict. c. 
39, s. 2, it is provided that "where any agent or person has been intrusted 
with and continues in the possession of any goods or documents of title to 
goods within the meaning of the principal acts as amended by that act, any 
revocation of his intrustment or agency shall not prejudice or affect the title 
or rights of any other person avIio Avithout notice of such revocation pur- 
chases such goods, or makes advances upon the title or security of such 
goods or documents.") 



LICKBAEROW V, MASON. 1107 

Notwithstanding a dictum of Lord Westbury in Vickers v. Hertz, L. R. 2 
Sc. xVpp. 113, tlie decision in Fuentes v. Montis was followed by the Court of 
C. P. in Cole v. The X. iV. Bank, L. R. 9 C. P. 470, where it was vainly con- 
tended that the omission of the words "intrusted for sale " and " consign- 
ment for sale" in 5 & 6 Vict. c. 39, ss. 1, 4, altered the law upon this point, as 
it existed under the previous statutes. That case was affirmed on appeal to 
the Exchequer Chamljer, L. R. 10 C. P. 354, 44 L. J. C. P. 233, and has since 
been followed in the important case of Johnson v. Credit Lyonnais Co., 2 C. 
P. D. 224; 3 C. P. D. 32; 47 L. J. C. P. 241, and also in Hellings v. Russell, 
33 L. T. N. S. 380, where Lord Justice Brett says, " The question is, Did the 
agent carry on a commercial agency business of the nature of a factor ? " 
The decision in Cole v. North Western Bank comes to this : that an agent who 
can pledge or sell must be an agent of that class which, like factors, have a 
business which, when carried to its legitimate result, would properly end in 
selling or in receiving payment for goods. Per Lord Blackburn, City Bank 
V. BarroiK, 5 App. Ca., at p. 678. 

For the purposes of the acts the fact of the goods having been obtained 
from the principal by fraud is immaterial. Sheppard v. The Union Bank of 
London, 7 H, & N. G61 ; 31 L. J. Ex. 154.] 

The 2nd section [of 5 & 6 Vict. c. 39] authorises the substitution of other 
goods, documents of title, or negotiable securities for those first deposited 
in consideration of a previous advance ; but provides that the lien acquired 
upon the substituted property sliall not exceed the then value of the property 
given up. The decision which pointed out the necessity for that section was 
Bonzi V. Stewart, 4 M. & G. 525, 5 Scott, N. R. 1, S. C. [See upon tlie con- 
struction of it, Sheppard v. Union Bank of London, 7 H. & N. 661.] 

Sect. 3 provides and enacts that the act shall be deemed and construed to 
give validit}^ to such contracts and agreements only, and to protect only such 
loans, advances, and exchanges, as shall be made bona fide, and loithout notice 
that the agent making such contracts or agreements is acting loithout au- 
thority or mala fide against the owner; that "it shall not be construed to 
extend to or protect any lien or pledge for an antecedent debt ; " \_Jewan v. 
Whiticorth, L. R. 2 Eq. 692; Macnee v. Gorst, L. R. 4 Eq. 315; Kaltenbach v. 
Lewis, 10 App. Ca. 617; a sale for an antecedent debt was held good, Thackrah 
v. Fergusson, 25 W. 11. 307] — " nor to authorise any agent in deviating from 
any expressed order or authority received from the owner — but tliat, for the 
purpose and to the intent of protecting all such bona fide loans, advances, 
and exchanges as aforesaid (though made with notice of such agent not 
being the owner, but without any notice of the agent's acting without 
autliority), and to no further or other intent or purpose, such contract or 
agreement as aforesaid shall be binding on the owner and all other persons 
interested in such goods." It has been held upon the construction of this 
section, that notice that the factor had the goods for sale was not of itself 
notice that he had no authority to pledge. Xavulshaw v. Brownrigg, 21 Law 
J. Chanc. 57, Vice-Chancellor (Lord Cranworth), Ibid. 908, [2 De G. Mac. & 
G. 441,] on appeal. Lord Chancellor (Lord St. Leonards). [As to the proper 
mode of putting the question of notice to a jury, see Gobind v. Chunder Sein, 
app., Valentine Ihjan, resp., 9 Moore, Ind. App. 140; 5 L. T. N. S. 559, S. C] 

By the 4th section " any bill of lading, India xoarrant, dock warrant, loare- 
house keeper's certificate, warrant or order for the delivery of goods, or any other 
document used in the ordinary course of business as proof of the possession or 
control of goods, or authorising or purporting to authorise either by indorsement 



1108 LICKBAEEOW V. MASON. 

or by deliveri/, the possessor of such document to transfer or receive goods 
thereby represented, shall be deemed and taken to beadocmneiU of title within 
the meaning of this act: — and any agent intrusted as aforesaid, and pos- 
sessed of any such document of title, whether derived immediately from the 
owner of such goods, or obtained by reason of such agent's having been 
intrusted with the possession of the goods, or of any other document of title 
thereto, shall be deemed and taken to have been intrusted with the possession 
of the goods represented by such document of title as aforesaid:" — (This 
legislative interpretation of the word "intrusted" was rendered necessary 
by the decisions in PhHlips v. Huth, 6 :\r. & W. 605, and IMfiehl v. Phillips, 9 
M. & W. (U7, atlirmed in the H. of Lords, U M. & W. 647, 12 CI. & Fin. 343, 
S. C, tliat a factor intnisted with a bill of lading, and who, by reason of 
having the bill of lading, was enabled to and did (but not in pursuance of 
the instructions of his principal) possess himself of a dock waiTant, was 
not to be considered a person intrusted with the dock warrant within the 
meaning of 6 Geo. 4, c. 94 : [see the distinction between intrusting with and 
enabling to obtain possession of, illustrated by Crompton, J., in Baines v. 
Swainson, 4 B. & S. 270, and Johnson v. Credit L'jonnais, 3 C. P. D. 32, 47 L. 
J. C. P. 241, per Bramwell, L. J.]) — And " all contracts plcdrjing or (jiving a 
lien upon such ducument of title as aforesaid shall be deemed and taken to be 
respectively pledges of and liens upon the goods to which the same relates : " — 
" And such agent shall be deemed to be possessed of such goods or docu- 
ments, whether the same shall be in his actual custody, or shall be held by any 
other person subject to his control or for him or on his behalf : " — And 
" where any loan or advance shall be bona fide made to any agent intrusted 
with and in possession of any such goods or documents of title as aforesaid, 
on the faith of any contract or agreement in icriting to consign, deposit, trans- 
fer, or deliver such goods or documents of title as aforesaid, and sucii goods 
or documents of title shall actually he rereired by the person making such loan 
or advance, vithnut notice that such agent was not authorised to make such 
pledge or security, every such loan or advance shall be deemed and taken to 
be a loan or advance on the security of such goods or documents of title 
within the meaning of this act, thoUgh such goods or documents of title shall 
not actually be received by the person making such loan or advance till the period 
subsequent thereto : " — (This enactment may have sprung from the inclination 
of opinion expressed upon the second point argued but not decided, in Bonzi 
V. Stewart, 4 M. & G. 295; 5 Scott, N. R. 1. [See also Portalis v. Tetle.y, L. 
R. 5 Eq. 140; C'o/e v. N. W. Bank, suj).'\ :) — And "any contract or agree- 
ment, whether made direct with such agent as aforesaid, or vnth any clerk or 
other person on his behalf, shall be deemed a contract or agreement with such 
agent : " — And " any payment made, whether by money or bills of exchange or 
other negotiable securitj% shall be deemed and taken to be an advance within 
the meaning of this act:" — " negotiable security," that is, for the payment of 
money, semhle, Taylor v. Kymer, 3 B. & Ad. 320; and although the words are 
any payment, yet with reference to the object of this act they must be con- 
strued to mean any payment by way of loan or advance, and not to include a 
case where the real object of the parties is not a loan or advance, such as was 
Learoyd v. Bobinson, 12 M. & W. 745, Avhere the factor, being liable with the 
defendant on a bill of exchange, obtained a sum of money from tlie defendant 
to take up the bill, at the same time depositing with him the plaintiff's goods. 
In that case the direction of the judge, Coltman, J, to the jury to find for 
the plaintiff if they considered what was done to be " only a circuitous mode 



LICKBARKOW V. MASON. 1109 

of paying tlie bill on which the defendant was liable," was upheld by the 
Court of Exchequer. —And -'an agent in x)osspssion as aforesaid of such 
goods or documents shall be taken, for the purposes of this act, to have been 
intrusted therewith by the owner thereof, unless the contrary can be shovm in 
evidence. 

The oth section provides that nothing in the act contained shall lessen, 
vary, alter, or affect the civil responsibility of an agent for any breach of 
duty or contract or non-fulfilment of his orders or authority. 

[The 6tli section has been repealed by 24 & 25 Vict. c. 95, but, with some 
alteration, re-enacted by an act consolidating and amending the statutes 
relating to larceny and like offences, viz., 24 & 25 Vict. c. 9G, by the 78th 
section of which a factor or] agent exercising the powers virtually con- 
ferred upon him by [5 & 6 Vict. c. 39] mala fide, and without the authority 
of his principal, [is] subject to punishment by [penal servitude or impris- 
onment] , as for a misdemeanor, unless where the property dealt with is not 
made a security for or subject to the payment of any greater sum of money 
than the amount which at the time Avas justly due and owing to such agent 
from his principal, together with the amount of any bills of exchange 
drawn by or on account of such principal, and accepted by such agent: or 
[by s. 85 of the 24 & 25 Vict. c. 96] unless he shall, previously to his being 
[charged with the offence], have disclosed it, [/?. v. Skeen, I Bell, C. C. R. 97; 
28 L. J. M. C. 91] on oath, in consequence of compulsory process in any pro- 
ceeding bond fide instituted by any party aggi'ieved, or in an examination or 
deposition before any court of bankruptcj" or insolvency. 

Sect. 7 [of the 5 & 6 Vict. c. 39] preserves the right of the owner to re- 
deem, and enables him to prove under the bankruptcy of the agent for the 
amount paid to redeem, or the value of, the goods. [See on this section, 
Kaltenbach v. Lewis, 10 App. Ca. 617, 55 L. J. Ch. 58.] 

The 8th section is the common interpretation clause, and the 9th and last 
excludes a retrospective application of the provisions of the act. 

This act, 5 & 6 Vict. c. 39, it may be observed, relates to advances upon the 
security of goods, and it will still be necessary to resort to the 2nd and 4th 
sections of 6 Geo. 4, c. 94, in cases not falling within that category. 



Stoppage in transitu. — The right of stoppage in transitu, says 
Chief-Justice Shaw in Rowley v. Bigelow, 12 Pick. 313, is noth- 
ing more than an extension of the right of lien, which by the 
common law the vendor has upon the goods for the price, origi- 
nally allowed in equity and subsequently adopted as a rule of 
law. See, also, Stubbs v. Lund, 7 Mass. 453, 9 Mass. 65 ; Scho- 
field V. Bell, 14 Mass. 40 ; Stanton v. Eager, 16 Pick. 467 ; Bab- 
cock V. Bonnell, 80 N. Y. 244 ; Newhall v. Vargas, 15 Me. 314 ; 
Ludlow V. Bowe, 1 Johns. 16, 5 Denio 629. When, by the terms 
of the sale, the price is to be paid on delivery, the vendor has a 
right to retain the goods till payment is made. But when the 



1110 LICKBAREOW Y. MASON. 

vendor and vendee are at a distance from each other, and 
if, while the goods are on the way from the vendor to the 
vendee, the latter becomes insolvent and the vendor can re- 
possess himself of the goods before they reach the vendee, he 
has a right to do so, and thereby regain his lien ; Rowley v. 
Bigelow, i(hi supra. 

The general doctrine of the decisions on this branch of the 
law is, that the right depends solely npon the insolvency/ of the 
vendor. Bnt the term insolvency in this connection denotes 
more than merely having taken the benefit of an insolvent or 
bankrupt law ; it also includes a failure to pay his debts as 
they become due, or his inability to pay for the goods, if he 
was to pay on delivery; Rogers v. Thomas, 20 Conn. 54, 123 
Mass. 12 ; Thompson v. Thompson, 4 Cush, 127 ; Lee v. Kil- 
burn, 3 Gray 594 ; Herrick v. Borst, 4 Hill 650 ; Chandler v. 
Fulton, 10 Texas 2; Atkins v. Colby, 20 N. H. 154; Nayler v. 
Dennie, 8 Pick. 198 ; Hays v. Movoille, 14 Penn. 51 ; Secombe 
V. Mill, 14 B. Monroe 324. 

In Rogers v. Thomas, ubi supra, it was held that it was essen- 
tial to the right of stoppage in transitu, that the insolvency 
should intervene between the time of sale and the exercise of 
the right of stoppage. But this is not the prevailing doctrine 
of the American cases ; Benedict v. Schaettle, 12 Oliio 515 ; 
1 Disney 445; O'Brien v. Norris, 16 Md. 122; Loeb v. Peters, 
63 Ala. 243 ; Blum v. Marks, 21 La. Ann. 2G8 ; Reynolds v. B. 
& M. R. Co., 43 X. H. 580. If the vendee Avas insolvent at the 
date of the sale, but the vendor did not discover it till after- 
wards, his right of stoppage remains ; Benedict v. Schaettle, 12 
Ohio 515 ; Gustine v. Phillips, 38 Mich. 675 & 390 ; Blum v. 
Marks, 21 La. Ann. 268 ; Schwabacker v. Kane, 13 Mo. App. 
126 ; Bender v. Bowman, 2 Pearson (Pa.) 517 ; More v. Lott, 
13 Nev. 380 ; White v. Welsh, 38 Pa. St. 396. It is not nec- 
essary to show that the price for the goods is due and pay- 
able ; Clapp V. Sohmer, 55 Iowa 273. 

The right of stoppage in transitu does not exist where the 
goods are consigned to a creditor of the consignor in payment 
of the debt of the consignor ; Clark v. Mauran, 3 Paige (N. Y.) 
373 ; Wood v. Roach, 1 Yeates (Pa.) 177. Nor does the right 
exist against a bond fide indorsee of a bill of lading for value ; 
Dows V. Perrin, 16 N. Y. 325. See Summeril v. Elder, 1 Binn. 
106 ; Eaton v. Cook, 32 Vt. 58. 



LICKBAEROW V. MASON. 1111 

Continuance of the right. — The right continues SO long as 
the goods are in the possession of the carrier as such, and so 
long as they remain in any place of deposit connected with 
their transmission ; 2 Kent Com. 544-5 : Buckley v. Stick- 
ney, 15 Wend. 137, 23 Wend. 611 ; White v. MitcheU, 38 Mich. 
390, It was held in Saw3-er v. Joslin, 20 Yt. 172, that the right 
ceases whenever the goods, in pursuance of the original desti- 
nation given them by the consignor, have come into either the 
actual or constructive possession of the consignee ; Becker v. 
Hallgarten, 86 N. Y. 167. A delivery of the goods to forward- 
ing agents, employed by the vendee to remain with them until 
the vendee should send orders respecting their destination, was, 
in legal effect, a delivery to the vendee, the ft'cmsitus complete, 
and the right to stop the goods was terminated. But if the 
goods, at the time they were delivered to the forwarding agents, 
were destined to a foreign port, under an assignment already 
"made, and the goods were to be forwarded to their destmation 
without any further orders from the vendee, the transitus was 
not ended when the goods came into the possession of the for- 
warding agents, but continued until the goods reached their 
final destination ; Biggs v. Barry, 2 Curtis 262 ; Cobeen v. 
Campbell, 30 Penn. 254. 

Goods were sold by marks and numbers, lying in the vendor's 
warehouse on six months' credit ; and it was a part of the con- 
sideration of the purchase that they might lie, rent free, in the 
warehouse, at the option of the vendee and for his benefit, till 
the vendor should want the room. Jleld, the delivery was com- 
plete, and the right of stoppage at an end : Barrett v. Goddard, 
3 Mason 107. See also Bradford v. Morbuy, 12 Ala. 520. 

The right of stopping goods shipped on the credit and at the 
risk of the consignee continues until they come into his actual 
possession at the end of the voyage, unless he shall have sold 
them previously bond fide, and indorsed the bills of lading to 
the purchaser ; Stubbs v. Lund, ubi supra ; Ilsley v. Stubbs, 
9 Mass. 71-4, 16 Pick. 467; Arnold v. Delano, 4 Cush. 33, 8 
Cranch 418 ; Grant v. Hill, 4 Gray 361 ; Rowly v. Bigelow, ubi 
supra. See Bolin v. Huffnagle, 1 Rawle (Pa.) 9 ; Castanola v. 
Missouri Pacific R. Co., 24 Fed. Rep. 267. The same rule, says 
Ch. J. Parsons, m Stubbs v. Lund, must govern, if the con- 
signee be the shipowner sed qucere. See Abbott on Shipping, 
5 ed. 394, and Rand's note (c7). 9 Mass. pp. 71-2, 13 Me. 93. 



1112 LICKBARROW V. MASON. 

Goods shipped on board a vessel are still in transitu after the 
arrival of the vessel at the port of destination, until they are 
taken possession of by or on behalf of the assignee ; Nayler v. 
Dennie, 8 Pick. 198. 

An attachment of goods so situated as the property of the 
consignee, will not defeat the consignor's right to stop them ; 
Mason v. Wilson, 43 Ark. 172 ; Seymour v. Newton, 105 Mass. 
272; -C. B. & Q. R. Co. v. Painter, 15 Neb. 394. But if the 
vendor attaches the goods while in transit, as the property of 
the vendee, his right of stoppage in transitu ceases ; Woodruff 
V. Noyes, 15 Conn. 335 ; Hiller v. ElUott, 45 N. J. L. 564, 60 
Tex. 373; Inslee v. Lane, 57 N. H. 454; Mississippi IMills v. 
Union & Planters' Bank, 9 Lee (Tenn.) 735 ; Sherman v. 
Rugee, 55 Wis. 346. 

The vendee, acting in good faith, may intercept the goods 
before they reach their destination, and, by taking actual pos- 
session of them, defeat the vendor's lien ; Mohr v. B. & A. R. 
Co., 106 Mass. 72. But the interception must be in good faith; 
Poole V. Houston, &c., R. Co., 58 Tex. 134. See Brooke Iron 
Co. V. O'Brien, 135 Mass. 447. If the vendee intercept the 
goods on their passage to him, and take possession as owner, 
the t ran situs is at an end; 2 Kent Com. 547; Jordan v. James, 
5 H. (Ohio) 88 ; Wood v. Yeatman, 15 B. Mon. 270. But a 
demand for the goods made by the vendee upon the carrier, 
with which he does not comply, does not terminate the vendor's 
right of stoppage ; Jackson v. Nichol, 5 Bing. (N. C.) 508. 

A common carrier, who surrenders the possession of goods, 
entrusted to him for carriage, to an officer who attaches upon a 
legal process against the consignee, is not liable to the consignor, 
after notice to him to hold the goods, for not notifying the offi- 
cer or taking steps to stop the goods in transitu; French v. 
Star Union Trans. Co., 134 Mass. 285. But the carrier is liable 
if he delivers the goods to an officer who attaches them on a 
writ against a person not the owner ; Edwards v. White Line 
Transit Co., 104 Mass. 159. The stopping of goods in tra^isitu 
does not rescind the contract of sale ; Grant v. Hill, 4 Gray 
361 ; Newhall v. Vargas, ubi supra ; Rowly v. Bigelow, ubi supra, 
16 Pick. 475; Chandler v. Fuller, 10 Texas 2; Rogers v. 
Thomas, 20 Conn. 53 ; Babcock v. Bonnell, 80 N. Y. 244 ; Pot- 
ter's App., 45 Penn. 151. 

The vendor does not take possession of the goods as his own, 



LICKBAEROW V. MASON. 1113 

but as those of the vendee and upon due notice and time he 
may resell the goods and apj^ly the proceeds of the sale in part 
payment and sue the vendee for the balance ; 2 Kent Com. 
541, 15 Me. 314 ; Howatt v. Davis, 5 Munf . (Va.) 34 ; House 
V. Judson, 4 Dana (Ky.) 10. 

If the consignee dies, his personal representative, may, on the 
arrival of the goods, take possession and so terminate the tran- 
sit; Conyers v. Ennis, 2 Mason 236. 

The consignor's right of stopjmge in transitu is not defeated 
by the assignee's accepting bills for the value of the goods ; Bell 
V. Moss, 5 Wharton (Pa.) 189; Donath v. Broomhead, 7 Barr. 
310; Newhall v. Vargas, uhi supra, see 9 Mass. 65. Nor is the 
consignor's right defeated by the payment of part of the price, 
by the assignee. See Peters v. Ballister, 3 Pick. 495. But 
where goods are sold bond fide while in transit, b}' assignment 
of the bill of lading, the right of the original vendor to stop 
the goods in transit ceases; Walter v. Ross, 2 Wash. 283 ; Lee 
V. Kimball, 45 Me. 172; Haggerty v. Palmer, 6 Johns. 437; 
Boyd V. Mosely, 2 Swan (Tenn.) 661. See Andenreid v. Ran- 
dall, 3 Cliff. 99. But an assignment by the vendee to pay liis 
debts will not affect the right of stoppage in transitu ; Harris 
V. Hart, 6 Duer (N. Y.) 606. 

It is not necessary that the vendor should obtain actual pos- 
session of the goods, but is sufficient if he give notice of his 
claim to the person in whose custody they are during the tran- 
sit ; Mottram v- Heyer, 5 Denio 629 ; Bell v. Moss, uhi supra. 

In Grant v. Hill, 4 Gray 367, Ch. J. Shaw says : " What 
amounts to a stoppage m transitu, in a particular case, may he 
a question of difficulty. But if the vendee finding he shall not 
be able to pay for the goods, gives notice thereof to the vendor, 
and leaves the goods in possessioji of any person, when they 
arrive, for the use of the vendor, and the vendor on such notice 
assents to it, that is a good stoppage in transitu. 

The question as to Avhen the transit begins and ends is con- 
sidered in the cases ; Thompson v. B. & O. R. Co., 28 Mo. 396 ; 
Mohr V. B. & A. R. Co., 106 Mass. 67; Brooke Iron Co. v. 
O'Brien, 135 Mass. 442; Hall v. Deamond, 63 N. H. 565; 
Durgy Cement & Umber Co. v. O'Brien, 123 Mass. 14; Harris 
V. Pratt, 17 N. Y. 249; Muskegan Booming Co. v. Underbill, 
43 Mich. 629 ; Bunn v. Valley Luml)er Co., 51 Wis. 376. The 
right of stoppage ceases when the entry of goods in a bonded 



1114 LICKBARROW V. MASON. 

warehouse is perfected; Cartwriglit v. Wilmerding, 24 N. Y. 
521 ; Frazer v. Hilliard, 2 Strobh. (S. C.) 309. See Hoover v. 
Tibbets, 13 Wis. 79 ; Parker v. Mclver, 1 Desau. (S. C.) 274 ; 
Gilford V. Smith, 30 Vt. 48 ; Bhxckmaii v. Pierce, 23 Cal. 508 ; 
Aguirre v. Parmelee, 22 Conn. 473. But if the goods be in a 
public store, awaiting the completion of the entry, the con- 
signors right to stop them in transit continues ; Western Trans. 
Co. V. Hawley, 1 Daly (N. Y.) 327. See Clapp v. Peck, 55 Iowa 
270. If the transit is once at an end, it cannot commence 
again, because the goods are sent to a new destination; Pattin- 
ger V. Hecksher, 2 Grant (Pa.) 309. 

Where the consifjnee ac^reed with the carrier to set the coods 
aside in its depot to be sold, to pa}- past due freights and pay 
the balance to the assignee, it was held this was not such a 
delivery to the assignee as to defeat the consignor's right of 
stoppage in transitu ; Macon & Western R. R. v. Meador, 65 
Ga. 705. After goods have been sold by the vendee in good 
faith and by the carrier delivered to his vendee, the original 
vendor's right of stoppage in transitu is gone. United States 
Wind Engine, &c., Co. v. Oliver, 16 Neb. 612. 

Goods may be stopped in transitu after their arrival at the 
carrier's warehouse, and there awaiting payment of the freight ; 
Symns v. Schotten, 35 Kan. 310 ; Harding Paper Co. v. Allen, 
65 Wis. 576. 

B}^ and against whom, and how the right may be exercised 
is discussed in the following cases ; Newhall v. Vargas, ubi 
supra ; Seymour v. Newton, 105 Mass. 275 ; 5 Daly 476 ; Mul- 
len V. Pander, 55 N. Y. 325 ; Hays v. Monille, 14 Penn. 48 ; 
Gustine v. Phillips, 38 Mich. 674 ; Reynolds v. B. & M. R. Co., 
43 N. H. 324; Roche v. Donovan, 13 Ivans. 251. 

A creditor of an insolvent vendee cannot, by paying the 
freight on the goods and attaching them, defeat the vendor's 
right to stop them in transitu ; Greve v. Dunham, 60 Iowa 108. 
When one through his agent sells goods to another, and they 
are shipped to the purchaser, the agent has no right to stop the 
goods in transitu, because his principal owes him for money 
advanced in the purchase of the goods ; Gwyn v. Richmond «& 
Danville R. Co., 85 N. C. 429. 



MASTER V. MILLER. 



TRINITY. — 3 GEO. 3, K. B. & CAM. SCACO. 

[reported 4 T. R. 320 AND 2 HEN. BL. 140.] 

A71 unauthorized alteration of the date of a bill of exchange, 
after acceptance, whereby the payment would be accelerated, 
avoids the instrument ; and 7io action can be afterwards brought 
upon it, even by an innocent holder for a valuable considera- 
tion (a). 

[But see now the Bills of Exchange Act, 1882, s. 64, post in 
notis.^ 

The first count in this declaration was in the usual form, by 
the indorsees of a bill of exchange against the acceptor; it 
stated that Peel and Co., on the 20th of March, 1788, drew a 
bill for 974/. 10s. on the defendant, payable three months after 
date to Wilkinson and Cooke, who indorsed to the plaintiffs. 
The second count stated the bill to have been drawn on the 
26th of March. There were also four other counts : for money 
paid, laid out, and expended ; money lent and advanced ; money 
had and received ; and on an account stated. The defendant 
pleaded the general issue ; on the trial of which a special ver- 
dict was found. 

It stated that Peel and Co., on the 26th March, 1788, drew 
their bill on the defendant, payable three months after date to 
Wilkinson and Cooke, for 974L 10s., "which said bill of ex- 
change, made by the said Peel and Co., as tlie same hath been 
altered, accepted, and written upon, as hereinafter mentioned, 
is now produced, and read in evidence to the said jurors, and 
is now expressed in the words and figures following ; to 

(a) See Hntcliins v. Scott, 2 M. & of the person producing it was held 
W. 809, where an agreement which admissible in evidence for some pur- 
had been altered while in the custody poses. 



1116 MASTEU V. MILLER. 

wit, 'June 23rd, 974^ 10^'., Manchester, March 20,1788, three 
months after date pay to the order of Messrs. Wilkinson and 
Coolve, 974/. lO.s-., received, as advised, Peel, Yates, and Co. 
To Mr. Cha. Miller, C. M. 23rd June, 1788.' That Peel and 
Co. delivered the said bill to Wilkinson and Cooke, which the 
defendant afterwards and before the alteration of the bill here- 
inafter mentioned accepted, that Wilkinson and Cooke after- 
wards indorsed the said bill to the plaintiffs for a valuable 
consideration before that time given, and paid by them to 
Wilkinson and Cooke for the same. That the said bill of ex- 
change, at the time of making thereof and at the time of the 
acceptance, and when it came to the hands of Wilkinson and 
Cooke, as aforesaid, bore date on the 26th day of March, 1788, 
the day of making the same ; and that after it so came to and 
whilst it remained in the hands of Wilkinson and Cooke, the 
said date of the said bill, without the authority or privity of 
defendant, was altered by some person or persons to the jurors 
aforesaid unknown, from the 26th day of March, 1788, to the 
20th day of March, 1788. That the words ' June 23rd,' at the 
top of the bill, were there inserted to mark that it would be- 
come due and payable on the 23rd of June next after the date ; 
and that the alteration hereinbefore mentioned, and the blot 
upon the date of the bill of exchange, now produced and read 
in evidence, were on the bill of exchange when it was carried 
to and came into the hands and possession of the plaintiffs. 
That the bill of exchange was on the 23rd of June, and also 
on the 28th of June, 1788, presented to the defendant for 
payment; on each of which days respectively he refused to 
l^ay." The verdict also stated that the bill so produced to 
the jury and read in evidence was the same bill upon which 
the plaintiffs declared, &c. 

This case was argued in Hilary Term last, by Wood for the 
plaintiffs, and 3Iingay for the defendant; and again on this day 
by Ghamhre for the plaintiffs, and Erskine for the defendant. 

For the plaintiffs it was contended that they were entitled, 
notwithstanding the alteration in the bill of exchange, to re- 
cover, according to the truth of the case, which is set forth in 
the second count of the declaration, namely, upon a bill dated 
the 26th March ; which the special verdict finds was in point of 
fact accepted by the defendant. More especially as it is clear 
that the plaintiffs are holders for a valuable consideration, and 



MASTER V. MILLEK. 1117 

had no concern whatever in the fraud that was meditated, sup- 
loosing any such appeared. The only ground of objection which 
can be suggested is upon the rule of law relative to deeds, by 
which they are absolutely avoided, if altered even by a stranger 
in au}^ material part, and upon a supposed analogy between 
those instruments and bills of exchange ; but upon investigating 
the grounds on which the rule stands as applied to deeds, it will 
be found altogether inapplicable to bills : and if that be shown, 
the objection founded on the supposed analogy between them 
must fall with it. The general rule respecting deeds is laid 
down in Pir/ofs Case (a), where most of the authorities are 
collected; from thence it appears, that if a deed be altered in a 
material point, even by a stranger, without the privity of the 
obligee, it is thereby avoided ; and if the alteration be made by 
the obligee, or with his privity, even in an i^nmaterial part, it 
will also avoid the deed. Now that is confined merel}^ to the 
case of deeds, and does not in the terms or principle of it apply 
to any other instruments not executed with the same solemnity. 
There are many forms requisite to the validity of a deed, which 
were originally of great importance to mark the solemnity and 
notoriety of the transaction ; and on that account the grantees 
always were, and still are, entitled to many privileges over the 
holders of other instruments. It was therefore reasonable 
enough that the party in whose possession it was lodged, should, 
on account of its superior authenticit}-, be bound to preserve it 
entire with the strictest attention, and at the ]Deril of losing the 
benefit of it in the case of any material alteration even by a 
stranger ; and that he is the better enabled to do from the 
nature of the instrument itself, which, not being of a negotiable 
nature, is not likely to meet with any mutilation, unless through 
the fraud or negligence of the owner ; whereas bills of exchange 
are negotiable instruments, and are perpetually liable to acci- 
dents in the course of changing hands, from the inadvertence of 
those by whom they are negotiated, without any i^ossibility of 
their being discovered by innocent indorsees, who are ignorant 
of the form in which they were originall}' ch'awn or accepted; 
and the present is a strong instance of that ; for the plaintiffs 
cannot be said to be guilty of negligence in not inquiring how 
the blot came on the bill, which mere accident might have oc- 
casioned. That the same reasons upon wliich the decisions of 

(a) 11 Co. 27. 



Ills mastp:u y. miller. 

the courts upon deeds have been grounded, will not support 
such judgments upon bills, will best appear by referring to the 
authorities themselves. When a deed is pleaded, there must be 
a profert in curiam («), unless, as in Read v. Brookman (?>), it 
be lost or destroyed by accident, which must however be stated 
in the pleadings. The reason of which is, that anciently the 
deed was actually brought into court for the purpose of inspec- 
tion ; and if, as is said in 10 Co. 92, b, the judges found that it 
had been rased or interlined in any material part, they adjudged 
it to be void. Now, as that was the reason why a deed was 
required to be pleaded with a profert^ and as it never was neces- 
sary to make a profert of a bill of exchange in pleading, it fur- 
nishes a strong argument that the reason applied solely to the 
case of deeds. So deeds, in which were erasures, were held 
void, because the^' appeared on the face of them to be suspi- 
cious, 13 Vin. Abr. tit. Faits, 37, 38 ; Bro. Abr. Faits, pi. 11, re- 
ferring to 44 Edw. 3, c. 42. Nor could the supposition of fraud 
have been the ground on which that rule was founded with re- 
spect to deeds ; for in Moore, 35, pi. 116, a deed which had been 
rased was held void, although the party himself who made it 
had made the erasure ; which was permitting a party to avail 
himself of his own fraud : but it is impossible to contend that 
the rule can be carried to the same extent as to bills ; nor is it 
denied but that if the blot here had been made by the acceptor 
himself, he would still have been bound. In Keilw. 162, it is 
said that if A. be bound to B. in 20/. and B. rase out 10/. all 
the bond is void, although it is for the advantage of the obligor ; 
and even where an alteration in a deed was made by the con- 
sent of both the parties, still it was held to avoid it, 2 Rol. Abr. 
29, letter U., pi. 5 (Lord Kenyan observed that there had been 
decisions to the contrary since). Fraud could not be the prin- 
ciple on which those cases were determined: whereas it is the 
only principle on which the rule contended for can be held to 
extend to bills of exchange, but which is rebutted in the pres- 
ent case by the facts found in the special verdict. According 
to the same strictness, where a mere mistake was corrected in a 
deed, and not known by whom, it was held to avoid it, 2 Rol. 
Abr. 29, pi. 6 ; and it does not abate the force of the argument 
that the law is relaxed in these respects, even as to deeds, for 

(a) [Not so now; C. L. P. Act, 1852, s. 55 ; St. Law Rev. Act, 1883, s. 6.] 
(6) 3 T. R. 151. 



MASTER V. MILLER. 1119 

the question still remains, whether at any time bills of exchange 
were construed with the same rigour as deeds ? The principle 
upon which all these cases relative to deeds were founded was, 
that nothing could work any alteration in a deed, except an- 
other deed of equal authenticity; and as the party who had 
possession of the deed was bound to keep it securely, it might 
well be presumed that any material alteration even by a stran- 
ger was with his connivance, or at least through his culpable 
neglect. In many of the cases upon the alteration of deeds, the 
form of the issue has weighed with the court ; as in 1 Rol. Rep. 
40, which is also cited in Pigot's Case, 11 Co. 27, and Michael v. 
Scockwith, Cro. El. 120, in both which cases the alteration was 
after plea pleaded; and on that ground the court held it was 
still to be considered as the deed of the party on non est factum. 
Now the form of the issue in actions upon deeds and those 
upon bills is very different ; in the one case, the issue simply is, 
whether- it is the deed of the party which goes to the time of the 
plea pleaded ? as appears from the case before cited, and from 5 
Co. 119, b, and Dy. 59 ; but here the issue is, whether the defend- 
ant jyi'Oinised at the time of the acceptance, to pay the contents P 
The form of the issue is upon his promise, arising by implication 
of law from the act of acceptance, which is found as a fact by the 
special verdict agreeable to the bill declared on in the second 
count : and in no instance, where an agreement is proved 
merely as evidence of a promise, is the party precluded from 
showing the truth of the case. Not only therefore the forms 
of pleading are different in the two cases, but the decisions 
which have been made upon deeds, from whence the rule 
contended for as to erasures and alterations is extracted, are 
altogether inapplicable to bills. The reasons for such rigorous 
strictness in the one case, do not exist in the other. On the 
contrar}', all the cases upon bills have proceeded upon the 
most liberal and equitable principles witli respect to innocent 
holders for a valuable consideration. The case of 3Iinet v. 
G-ihson («) goes much farther than the present : for there this 
Court, and afterwards the House of Lords, held that it was 
competent to inquire into circumstances extraneous to the 
bill, in order to arrive at the truth of the transaction between 
the parties ; although such circumstances operated to estabUsh 
a different contract from that which appeared upon the face 

(a) 3 T. K. 481, in B. R.. and 1 IL Bl. :)(;;>. in Dom. Proc. 



1120 MASTER V. MILLER. 

of the bill itself ; whereas the evidence given in this case, and 
the facts found by the special verdict, are in order to show 
what the bill really was ; which it is competent for these par- 
ties to do against whom no fraud can be imputed, if any exist. 
If the blot had fallen on the paper by mere accident, it cannot 
be pretended that it would have avoided the bill , non constat 
upon this linding that it did not so happen. Even if felony 
were committed by a third person, through whose hands the 
bill passed, although that party could not recover upon it 
himself, yet his crime shall not affect an innocent party, to 
whom the bill is indorsed or delivered for a valuable consider- 
ation. In Miller v. Race (a), where a banknote had been stolen, 
and afterwards passed bond fide to the plaintiff, it was held 
that he might recover it in trover against the person who had 
stopped it for the real owner. And the same point was held 
in Peacock v. Rhodes (i), where the bill was payable to order. 
Again, in Price v. Neale (c), it was held that an acceptor, who 
had i)aid a forged bill to an innocent indorsee, could not re- 
cover back the money from him. Now if it be no answer to 
an action upon a bill against the acceptor to show that it was 
a forgery in its original making by a third person's having 
feigned the handwriting of the drawer, still less ought any 
subsequent attempt at forgery, even if that had been found 
which is not, to weigh against an innocent holder. But it 
would have been impossible to have recovered in any of these 
cases if the deed had been forged in any respect, even by 
strangers to it ; which shows that these several instruments 
cannot be governed by the same rules. And so little have the 
forms of bills of exchange and notes been observed, Avhen put 
in opposition to the truth of the transaction, that in Russell v. 
Langstaffe QT) the Court held, in order to get at the justice of 
the case, that a person, who had indorsed his name on blank 
checks, which he had entrusted to another, was liable to an 
indorsee for the sums of which the notes were afterwards 
drawn ; and yet the form of pleading supposes the note to 
have been a perfect instrument, and drawn before the indorse- 
ment. But the case which is most immediately in point to 
the present, is that of Price v. Shute, E. 33 Car. 2 in B. R. (e) ; 

(a) 1 Burr. 452. (d) Dongl. 514. 

(b) Dougl. 633. (e) 2 Moll. c.lO, s. 28. 

(c) 8 Burr. 1354. 



MASTER V. MILLER. 1121 

there a bill was drawn payal^le the 1st of January ; the person 
upon whom it was drawn accepted it to be paid the 1st of 
March ; the holder, upon the bill's being brought back to him, 
perceiving this enlarged acceptance, struck out the 1st of 
March, and put in the 1st of January ; and then sent the bill 
to be paid, which the acceptor refused; whereupon the payee 
struck out the 1st of January, and put in the 1st of March 
again ; and in an action brought on this bill, the question was, 
whether these alterations did not destroy it ; and it was ruled 
they did not. This case therefore has settled the doubt ; and 
having never been impeached, but on the contrary recognised, 
as far as general opinion goes, by having them inserted in 
every subsequent treatise upon the subject, it seems to have 
been acted on ever since. And it would be highly mischievous 
if the law were otherwise : for however negligent the owner of 
a deed may be supposed to be, who lets it out of his possession, 
the holder of a bill of exchange is by the ordinar}- course of 
such transactions obliged to trust it, even in the hands of 
those whose interest it is to avail themselves of this sort of 
objection. For it is most usual for the bill to be left for 
acceptance, and afterwards for payment, in the hands of the 
acceptor, who ma}- be tempted to put such a blot on the date 
as may not be observed at the time, through the confidence 
of the parties. But even if the alteration should be con- 
sidered as having destroyed the bill, why may not evidence 
be given of its contents, upon the same principle as governed 
the case of Read v. Brookman (a) ? where it was held that 
pleading that a deed is lost b}^ time and accident, supersedes 
the necessity of a profert. But at any rate the plaintiffs are 
entitled to recover on the general counts for money paid, and 
money had and received, on the authority of Tatlock v. Har- 
ris (5) ; for though it is not expressly stated that so much 
money was received by the defendant, yet that is a necessary 
inference from the fact of acceptance Avhich is found. 

For the defendant it was contended, that the broad principle 
of law was, that any alteration of a written instrument in a 
material part thereof, avoided such instrument; and that the 
rule was not merely confined to deeds, though it happened that 
the illustration of it was to be found among the old cases upon 
deeds only because formerly most written undertakings and 

(a) 3 T. R. 15L (6) 3 T. R. 174. 



1122 MASTER V. MILLEK. 

obligations were in that form. This principle of law was 
founded in sound sense ; it was calculated to prevent fraud, 
and deter men from tampering with written securities : and it 
would be directly repugnant to the policy of sucli a law to 
permit the holder of a bill to attempt a fraud of this kind with 
impunity ; which would be the case, if, after being detected in 
the attempt, he were not to be in a worse situation than he was 
before. If any difference were to be made between bills of 
exchange and deeds, it should rather be to enforce the rule 
with greater strictness as to the former : for it would l)e strange 
that because they Avere more open to fraud from the circum- 
stance of passing tlirough many hands, the law should relax 
and open a wider door to it than in the case of deeds where 
fraud was not so likely to be practised. The principle laid 
down in J-^igot's Case (a) is not disputed as applied to deeds. 
But the first answer attempted to be given is, that the rule as 
to deeds is sui generis, and does not extend to other instruments 
of an inferior nature, because it arises from the solemn sanction 
attending the execution of instruments under seal. As to this, 
it is sufficient to say that no such reason is suggested in any of 
the books ; but the rule stands upon the broad ground of policy, 
which applies at least as strongly to bills as to deeds, for the 
reason above given. Then it is said that there is a material 
distinction between the several issues in the two cases. But 
the difference is more in words than in sense ; the substance 
of the issue in both cases is, whether in point of law the party 
be liable to answer upon the instrument declared on? and 
therefore any matter which either avoids it ab initio, or goes 
in discharge of it. may be shown as much in the one case as in 
the other. Upon non est factum the question is, whether in law 
the deed produced in evidence be the deed of the party ? so on 
non assumpsit the question is, whether the bill given in evi- 
dence be in point of law the bill accepted by the defendant? 
because the promise only arises by implication of law upon 
proof of the acceptance of the identical bill accepted, and 
given in evidence. Now neither of the counts in the declara- 
tion was proved by the facts found. For in the first count 
the bill is dated the 20tli of ]\Iarch ; but as there is no evidence 
of the defendant's having accepted such a bill, of course the 
plaintiffs are not entitled to recover on that count. Neither 

(«) 11 Co. 21. 



MASTEE V. 31ILLER. 1123 

can they recover on the second, because thougli it is found 
that he accepted a bill dated the 26th of March, as there stated, 
yet inasmuch as the bill stated to have been produced in evi- 
dence to the jmy is dated the 20th, of course the evidence did 
not support the count. AVith respect to the cases cited of bills 
of exchange having been always construed by the most liberal 
principles, and particularly in the case of Minet v. G-ihson, the 
same answer may be given to all of them, which is, that so far 
from the original contracts having been attempted to be altered, 
all those actions were brought in order to enforce the observ- 
ance of them in their genuine meaning against the party who, 
in the latter case particularly, endeavoured by a trick to evade 
the contract : whereas here the contract has been substantially 
altered by the parties who endeavoured to enforce it; or at 
least by those whom they represent, and from whom they de- 
rive title. Then the case in MoUoy^ of Price v. Shute, is chiefly 
relied on, by the plaintiffs ; to which several answers may be 
given. First, the authenticity of it may be questioned ; for it 
is not to be found in an}- reports, although there are several 
contemporaneous reporters of that period. In the next place, 
the bill, as originally drawn, was not altered upon the face of 
it ; and therefore, as against all other persons at least than the 
acceptor, it might still be enforced. But principally it does 
not appear but that the action was brought against the drawer, 
who, as the acceptor had not accepted it according to the tenor 
of the bill, was clearly liable ; as the payee was not bound to 
abide by the enlarged acceptance, btit might consider it as no 
acceptance at all. Then if this bill be void for this fraud, no 
e^ddence could be given to prove its contents, as in the case of 
a deed lost ; because in that there is no fraud. But even if 
any other evidence might have been given, it is sufficient to 
say that in this case there Avas none. And as to the common 
counts, if the general principle of law contended for applies 
to bills of exchange, it will prevent the plaintiffs from recover- 
ing in any other shape. Besides which, it is not stated that the 
defendant has received any consideration : upon which ground 
the case of Tatlock v. Harris was decided. 

In reply it was urged, that the issue was not whether the 
defendant had accepted this bill in the state in which it was 
shown to the jury, but whether he had promised to pay. in 
consequence of having acee[)ted a bill dated the 2i)tli March, 



1124 MASTER V. .MILLER. 

drawn by? &c. ; and those facts being found, the promise nec- 
essaril}^ arises. It is said that the policy of the hxw will extend 
the same rule to the avoidance of bills of exchange whicli have 
been altered as to deeds ; because there is even greater reason to 
guard against fraudulent alterations in the former than in the 
latter case. To which it maj- be answered that the foundation 
of the rule fails in this case ; for no fraud is found, and none can 
be presumed : and it is admitted, that if the blot had been made 
by accident, it would not have avoided the bill ; and nothing is 
stated to show that it was not done by accident. Besides, the 
policy of the law is equally urgent in favour of the plaintiffs, 
it being equally politic to compel a performance of honest en- 
gagements. Here the defendant is only required to do that 
Avhich in fact and in law he has promised to do. And if he be 
not liable on this contract, he will be protected in withholding 
payment of that money which he has received, and which by 
the nature of his engagement he undertook to repay. No an- 
swer has been given to the case cited from Molloy : for though 
the case is not reported in any other book, it bears every mark 
of authenticity, h\ noting the names of the parties, the court in 
which it was determined, and the time of the decision : and it 
has been adopted by subsequent writers on the same subject. 
Again, the alteration there was full as important as this, for it 
equally tended to accelerate the day of payment ; and, lastly, it 
is not denied but that the action might have been maintained on 
the bill against any other j)erson than the acceptor ; which is an 
admission that the policy of the law does not attach so a,s to 
avoid such instruments upon any alteration, for otherwise it 
would have avoided the bill against all parties. 

Lord Kenyon^ C. J. — The question is not whether or not 
another action may not be framed to give the plaintiffs some 
remedy, but whether this action can be sustained by these 
parties on this instrument ? — for the instrument is the only 
means by which they can derive a right of action. The right 
of action which subsisted in favour of Wilkinson and Cooke, 
could not be transferred to the plaintiffs in any other mode 
than this, inasmuch as a chose in action is not assignable at law. 
No case, it is true, has been cited either on one side or the 
other, except that in Molloy, of which I shall take notice here- 
after, that decides the question before us in the identical case 
of a lull of exchange. But cases and jirinciples have been cited 



MASTER V. MILLER. 1125 

at the bar, which, in point of law, as well as policy, ought to 
be applied to this case. That the alteration in this instrument 
would have avoided it, if it had been a deed, no person can 
doubt. And why, in point of policy," would it have had that 
effect in a deed? Because no man shall be permitted to take the 
chance of committing a fraud ivithout running any risk of losing 
by the events when it is detected. At the time when the cases 
cited, of deeds, were determined, forgery was only a misde- 
meanour : now the punishment of the law might well have been 
considered as too little, unless the deed also were avoided ; and 
therefore the penalty for committing such an offence was com- 
pounded of those two circumstances, the punishment for the 
misdemeanour, and the avoidance of the deed. And thouo-h 
the punishment has been since increased, the principle still re- 
mains the same. I lay out of my consideration all the cases 
where the alteration was made by accident : for here it is stated 
that this alteration was made while the bill was in the posses- 
sion of Wilkinson and Cooke, who were then entitled to the 
amount of it ; and from whom the plaintiffs derive title ; and it 
was for their advantage (whether more or less is immaterial 
here) to accelerate the day of payment, which in this commer- 
cial countr}- is of the utmost importance. The cases cited, 
which were of all deeds, were decisions which applied to and 
embraced the simplicity of all the transactions at that time ; 
for at that time almost all written engagements were by deed 
only. Therefore those decisions, which were indeed confined to 
deeds, applied to the then state of affairs : but they established 
this principle, that all written instruments which were altered 
or erased should be thereby avoided. Then let us see whether 
the policy of the law, and some later cases, do not extend this 
doctrine farther than to the case of deeds. It is of the greatest 
importance that these instruments, which are circulated through- 
out Europe, should be kept with the utmost purity, and that 
the sanctions to preserve them from fraud should not be les- 
sened. It was doubted so lately as in the reign of George the 
First, in Ward's Case (a), whether forgery could be committed 
in any instrument less than a deed, or other instrument of the 
like authentic nature ; and it might equally have been decided 
there that, as none of the preceding determinations extended 
to that case, the i3olicy of the law should not be extended to 

(a) 2 Str. 747, and 2 Lord Rayra. 14G1. 



1126 MASTER V. MILLEK. 

it. But it was there held that the principle extended to other 
instruments as well as to deeds, and that the law went as far 
as the policy. It is on the same reasoning that I have formed 
my opinion in the present case. The case cited from Molloy, 
indeed, at first made a different impression on my mind : but on 
looking over it with great attention, I think it is not applicable 
to this case. No alteration was there made on the bill itself; 
but the party to whom it was directed, accepted it as payable 
at a different time, and afterwards the payee struck out the 
enlarged acceptance ; and on the acceptor refusing to pay, it is 
said that an action was maintained on the bill. But it does not 
say against whom the action was brought ; and it could not have 
been brought against the acceptor, whose acceptance was struck 
out by the party himself who brought the action. Taking that 
case in the words of it, " that the alterations did not destroy 
the bill," it does not affect this case : not an iota of the bill itself 
was altered ; but on the person to whom tlie bill was directed 
refusing to accept the bill as it was originally drawn, the holder 
resorted to the drawer. Then it was contended that no fraud 
was intended in this case ; at least that none is found ; but I 
think that, if it had been done by accident, that should have 
been found, to excuse the party, as in one of the cases where 
the seal of the deed was torn off by an infant. With respect 
to the argument drawn from the form of the plea, it goes the 
length of saying, that a defendant is liable, on 7ion assumpsit, 
if at any time he has made a promise, notwithstanding a subse- 
quent payment : but the question is, whether or not the defend- 
ant promised in the form stated in the declaration? and the 
substance of that plea is, that according to that form he is not 
bound by law to pay. On the whole, therefore, I am of opinion 
that this falsification of the instrument has avoided it ; and that, 
whatever other remedy the plaintiffs may have, they cannot 
recover on tliis bill of exchange. 

Ashurst, J. — It seems admitted that, if this had been a 
deed, the alteration would have vitiated it. Now I cannot see 
any reason why the principle on which a deed would have been 
avoided should not extend to the case of a bill of exchange. 
All written contracts, whether by deed or not, are intended 
to be standing evidence against the parties entering into them. 
There is no magic in parchment or in wax ; and a bill of ex- 
change, though not a deed, is evidence of a contract as much 



MASTER V. MILLER. 1127 

as a deed; and the principle to be extracted from the cases 
cited is, that any alteration avoids the contract. If indeed the 
plaintiffs, who are innocent holders of this bill, have been de- 
frauded of their money, they may recover it back in another 
form of action : but I think they cannot recover upon this 
instrument, which I consider to be a nullity. It is found by 
the verdict that the alteration was made while the bill was in 
possession of Wilkinson and Cooke ; and it certainly was for 
their advantage, because it accelerated the day of payment. 
Now, upon these facts, the jury would perhaps have been war- 
ranted in finding that the. alteration was made by them : at all 
events, it was their business to preserve the bill without any 
alteration. If Wilkinson and Cooke had brought tliis action 
they clearly could not have recovered, because they must 
suffer for any alteration of tlie bill while it was in their cus- 
tody : then, if the objection would have prevailed in an action 
brought by them, it must also hold with regard to the plaintiffs 
who derive title under them. For whenever a party takes a 
l)ill under such suspicious circumstances appearing on the face 
of it, it is his duty to inquire how the alteration was made ; he 
takes it at his risk, and must take it subject to the same objec- 
tion as lay against the party from whom he received it. Upon 
the whole, there seems to be no difference between deeds and 
bills of exchange in this respect in favour of the latter : but, on 
the contrary, if there be any difference, the objection ought to 
prevail with greater force in the latter than in the former ; for 
it is more particularl}^ necessary that bills of exchange, which 
are dail}" circulated from hand to hand, should be preserved 
with greater purity tlian deeds wliich do not pass in circulation. 
It would be extremely dangerous to permit the party to re- 
cover on a bill as it was originally drawn, after an attempt to 
commit a fraud, by accelerating the time of payment. For 
these reasons, therefore, I concur in opinion with my Lord. 

Bailer, J. — In a case circumstanced as the present is, in 
which it is apparent, as found, and has been proved beyond all 
doubt, that the bill of exchange in question was given for a full 
and valuable consideration, that the plaintiffs are honest and 
innocent holders of it, and that the defendant has the amount 
of the bill in his hands, it is astonishing to me that a jury of 
merchants should hesitate a moment in finding a verdict gen- 
erally for the plaintiffs, more especially as I understand it was 



1128 MASTER V. xMlLLER. 

left to them by the Chief Justice to read the bill as it un- 
doiibtedl}- was drawn, and by that means to put an end to the 
question at once. It was rightly so left to the jury by his 
Lordship; for that was the furtherance of the justice of the 
case, and it tended to prevent expense, litigation and delay, 
which are death to trade. That the defendant cannot be suf- 
fered to pocket the money for which this bill was drawn, or to 
enable the drawer to do so, but that sooner or later, provided 
a bankruptcy do not intervene, it must be paid, I presume no 
man will doubt. The drawer has received the value, the plain- 
tiffs have paid it, and the defendant, has it in his hands. On 
tills short statement, every one who hears me must anticipate 
me in saving that the defendant must pay it. Nay, if actual 
forgery had been committed, the defendant could not be per- 
mitted to retain the money: he must not get 9000^. by the 
crime of another ; but, in such a case, I agree it would be 
difficult to sustain the present or any action for the money till 
something further had ha})pened than lias yet been done. The 
law, proceeding on principles of public policy, has wisely said 
— That where a case amounts to felony, you shall not recover 
against the felon in a civil action ; but that rule does not ap- 
pear by any printed authority to have been extended beyond 
actions of tresi)ass or tort^ in which it is said that the trespass is 
merged in the felony. That is a rule of law calculated to bring 
offenders to justice. But whether that rule extend to any case 
after the offender is brought to justice, or whether at any time 
it may be resorted to in an action between persons guilty of no 
crime, are questions upon which I have formed no opinion, 
because this case does not require it. Upon this special verdict 
there is no foundation for saying that any one has been guilty 
of forgery, nor even of a fraud, as it strikes my mind. Fraud 
or felony is not to be presumed ; and, unless it be found by the 
jur}', the Court cannot imply it. Minet v. Gibson is a most 
decisive authority for that proposition, if any be wanted, and 
I do not think there is any foundation for the distinction at- 
tempted to be taken between that case and the present. It has 
been contended that the party there recovered, because the 
nature of the obligation was not altered : but the determina- 
tion did not proceed entirely on that ground, but on this, that, 
according to the true intent and meaning of the parties, the 
'nil was intended to be made i):iya])le to bearer: so here the 



MASTEK V. MILLER. 1129 

plaintiffs do not attempt to enforce the contract according to 
the terms of it, but according to that form by which the de- 
fendant originally consented to be bound, as stated in the sec- 
ond count. The special verdict finds that Peel and Co., on the 
26th of March, 1788, drew a bill of exchange on the defendant 
for 947?. 10.S., pa^-able to Wilkinson and Co. : which bill as the 
same has been altered, accepted, and written upon, is set out in 
hcec verba. Upon the fac-sim lie copy of the bill set out in the ver- 
dict, there appears to be a blot over the date : and the jury have 
thought fit to read it as it now stands, the 20th. I must con- 
fess I should never have read it so ; for seeing that there was 
something above the figure 0, that is the last reading which I 
should have given to it. I should have said on the face of the 
bill, this must have been either a 6 or an 8 ; it could not have 
been 8, because the is as high as the 2, and therefore it must 
be a 6 : but the jury have found no difficulty in saying it was a 
6 ; and I will examine presently whether there be any objection 
to let it remain as a 6. The verdict further finds that the 
defendant, before any alteration of the bill, accepted it; and 
Wilkinson and Co. indorsed it to the plaintiffs, who paid a 
valuable consideration for it. Then it was stated, that whilst 
the bill was in the hands of Wilkinson and Cooke, the date, 
without the authority of the defendant, Avas altered by persons 
unknown from the 26th to the 20th of March. They further 
find that the words " 23rd of June " were inserted at the top of 
the bill, to mark that the bill would then become due ; and that 
the alteration and the blot were on the bill when it was de- 
livered to the plaintiffs. This is the full substance of the spe- 
cial verdict ; and there is neither forgery, felony, nor fraud, 
found or supposed by the jury ; we therefore can neither in- 
tend nor infer it. The verdict amounts only to saying there is 
a blot on the bill, but how it came there we don't know ; and 
we beg to ask the Court whether the circumstance of a blot 
being on the bill which we cannot account for makes the bill 
void. Provided I have accurately stated the question, surely 
such a verdict is without precedent. Suppose a child had torn 
out a bit of the bill on which the top of the 6 is written, is the 
holder of the bill to loose his 974?. ? or is the defendant to get 
974?. by such an accident? But to decide whether I have 
accurately stated the question in the cause, it is necessary to 
examine the words of the special verdict minutely, and by 



1130 MASTER V. JiIILLER. 

degrees. The jury have said that the bill was altered. The 
word " altered " may raise a suspicion and alarm in our minds ; 
but let not our judgment be run away with by a word, without 
examining the true sense and meaning of it as it is used in the 
place where we find it. How Avas it altered, Avhat was the 
alteration, when was it made, and for what purpose ? The jury 
have said it was altered by means of putting a blot over the 
date : but by whom or when that was done we don't know, 
further than that it was done whilst the bill was in the posses- 
sion of Wilkinson and Cooke : but we do not find that it Avas 
done for any bad purpose, or with any improper view whatever. 
Upon this finding, the Court are bound to say it was done in- 
nocently. But the jury have also said, that " June 23rd " was 
inserted at the top of the bill to mark when the bill would 
become due. When and by whom was that done ? The jurj^ 
have not said one word upon the subject. Was that done even 
during any part of the time whilst the bill was in the possession 
of Wilkinson and Cooke ? No. It is consistent with the find- 
ing, that the plaintiffs, who are found to be bond fide holders of 
the bill, upon reading the date to be the 20th, and calculating 
the time which it had to run from that date, put down " June 
23rd " with the most perfect innocence. If the bill had been 
originally dated on the 20th, the 23rd June would have been 
the true time of payment. But admitting that a wrong date 
had been put down, as denoting the time of payment, is there 
any case or authority which says that that circumstance shall 
render the bill void? Every bill which has been negotiated 
within the memor}' of man is marked by some holder or another 
with the day when it will become or is supposed to become due. 
That in some sense of the word is an alteration ; for it makes 
an addition to the bill which was not there when it was drawn 
or accepted. But was it done fraudulently ? The answer is — 
It was not, and therefore it is of no avail. So here the jury 
have not said it was done fraudulently, and therefore it affords 
no objection. When the jury have stated what the alteration 
is, and how it was made, namely, by making a blot, and having 
fixed no sinister or improper motive for so doing, it is the same 
as if they had said only "here is a blot on the bill." Suppose 
the jury had said in a few words that this bill was drawn, in- 
dorsed, and accepted, by the defendant, as the plaintiffs allege, 
but here is a blot upon it which makes the date look like the 



MASTER V. MILLER. 1131 

20th instead of the 26th. The true answer would have been — 
Blot out the blot by 3-our own understanding and conviction, 
and pronounce your verdict according to the truth of the case. 
It was nobly said in another place, (I heard it with pleasure, 
and thought it becoming the dignity of the person who pro- 
nounced it, and the place in which it was pronounced,) " That 
the Imv is best applied when it is subservient to the honesty of the 
case. And if there be any rule of law which says you cannot 
recover on any instrument but according to the terms of it, 
forlorn would be the case of plaintiffs. By the temperate rules 
of law we must square our conduct." The honesty of the 
plaintiffs' case has been questioned by no one ; and therefore I 
should imagine the wishes of us all would have been in favour 
of their claim, j)rovided we are not bound down by some stub- 
born rule of law to decide against them. Here again I must 
beg leave to resort to what was forcibly said in another place, 
upon a similar subject, and which I shall do as nearly in the 
words which passed at the time as I can : because they carried 
conviction to my mind ; because they contain my exact senti- 
ments, and because they are more emphatical than any which I 
could substitute in the place of them. " The question (it was 
said) is whether there be any rule of law so reluctant that it 
will not recede from words to enforce the intention of the 
parties. I believe there is no such rule. For half a century 
there have been various cases which have left the question of 
forgery untouched. If a bill be forged, the acceptor is bound." 
Speaking of the case of Stone v. FreeJand., it was said, " if any 
one say that a case is not law, let him show why it is not so. 
Judges can only look to former decisions. This has been a 
rule in the commercial world above 20 years." This reasoning 
seems to me to be sound and decisive, if it apply to the present 
case ; and to prove that it does apply, I need only quote the 
case, mentioned at the bar, of Price v. Shute, reported in 
Beawes's Lex. Mercat. tit. Bill of Exchange, pi. 222, and Moll. 
109. There a bill was payable 1st January, and the person to 
whom it was directed accepted it to pay on the 1st of March, 
with which the servant returned to his master, who, perceiv- 
ing this enlarged acceptance, struck out the 1st of March 
and put in the 1st of January, and at that time sent the bill 
for payment, which the acceptor refused ; whereupon the 
possessor struck out the 1st of January and inserted the 



1132 MASTER y. MILLER. 

1st of March again. In an action brought on this bill, the 
question was whether these alterations did not destroy the 
bill; and ruled by Lord Chief Justice Pemberton^ that they 
did not. Xow, on reading this case, I cannot consider it 
in any other light than as an action brought against the ac- 
ceptor ; for it only states what passed between those parties. 
Here then is a rule which has prevailed in the commercial 
world for 110 years : it stands uncontradicted and unimpeached : 
it was decided by great authority ; and as, I take it, on deliber- 
ation. For when it is said to have been in B. R., that must 
either have been in this court, or on a case saved by Chief 
Justice Pemherton for his own opinion : which was a common 
way of proceeding in those days. In that case the term "alter- 
ation " is used, and therefore we need not be frightened or 
alarmed at that word. The effect of the alteration was to 
accelerate the payment; so it is here. But in one respect that 
case goes beyond the present; for there the alteration was 
made by the 2)laintiff himself ; here it was not. It is true, in 
that case, when the plaintiff found he could not receive the 
money on the 1st of January, he altered it back to the 1st of 
March ; but if the first alteration vitiated the bill, no subse- 
quent alteration could set it up against the acceptor without 
his consent. Here the plaintiffs have not re-altered the bill ; 
but they have acted a more honest part; they have left the 
bill as it was to speak for itself ; but they have treated it as a 
bill of the 26th of March ; they have proved that it w^as a bill 
of the 26th of March ; they demanded payment according to 
that date ; and the jury have found all these facts to be true. 
And it is material to consider what was the issue joined be- 
tween the parties ; for there is a great deal of difference be- 
tween the plea of non est factum and the present : here the 
question is, whether the drawer made such a bill, and whether 
the defendant accepted it ; and this is found by the jury. Then 
the case of Price v. Shute, in sense and substance, is a direct 
authority in point with the present ; though it vary in a minute 
and immaterial circumstance. The plaintiffs in treating the 
bill, and making a demand as they have done, seem to have 
followed the sober advice and directions given by Beawes in 
pi. 190 ; where he says, " he that is possessor of a bill which 
only says ' pay,' without mentioning the time when, or that 
is without a date, or not clearly and legibly written, payable 



MASTEK V, MILLER. 1133 

some time after date, &c., so that the certain precise time of 
payment cannot be calculated or known, must be yevj circum- 
spect, and demand the money whenever there is any proljable 
appearance of the time being completed that was intended for 
its pajanent : or that he can demonstrate any circumstance that 
may determine it, or make it likely when it shall be paid." It 
is impossible that this writer could have supposed that the bill 
was rendered void by any blot, obliteration, or erasure : on the 
contrary, he tells you that it must be demanded in time, and 
that you may make out by circumstances or other evidence 
when it was, or was likely to be, payable. That has been 
made out by evidence in the present case. Upon this head I 
shall only add one authority more, which is Carth. 460, where 
a bill Avas accepted after a day of payment was elapsed. It 
was objected that it was impossible in such a case for the 
defendant to pay according to the tenor of the bill, and there- 
fore the declaration was bad ; but the Court held it good, and 
said the effect of the bill was the payment of the money, and 
not the day of payment. So here the defendant having ac- 
cepted this bill, whatever may be the construction as to the 
date, must pay the money. I hold that in this case there is 
no fraud either express or implied ; and that, as the plaintiffs 
have proved that they gave a valuable consideration for the 
bill, and that it was indorsed to them by those through whose 
hands it passed, their case is open to no objection whatever. 
But I will suppose for a moment, though the case do not war- 
rant it, that Wilkinson and Cooke did mean a fraud; still I 
am of opinion that would not affect the case between the 
plaintiffs and the defendant. It is a common saying in our law- 
books, that fraud vitiates everything. I do not quarrel with 
the phrase, or mean in the smallest degree to impeach the 
various cases which have been founded on the proof of fraud. 
But still we must recollect that the principle which I have 
mentioned is always applied ad hominem. He who is guilty 
of a fraud shall never be permitted to avail himself of it ; and 
if a contract founded in fraud be questioned between the par- 
ties to that contract, I agree, that, as against the person who 
has committed the fraud, and who endeavours to avail himself 
of it, the contract shall be considered as null and void. But 
there is no case in which a fraud intended by one man shall 
overturn a fair and bond fide contract between two others. 



1134 MASTER V. MILLER. 

Even as betAveen the parties themselves we must not forget 
the figurative language of Lord Chief Justice Wllniot, who 
said that " the statute law is like a tyrant ; where he comes he 
makes all void; but the common law is like a nursing father, 
and makes void only that part where the fault is, and preserves 
the rest." 2 Wils. 351. If an alteration be made to effect a 
fraud, the alteration shall be laid out of the (question ; but still 
the contract shall exist to its original and honest purpose, and 
shall be carried into execution as if the fraud had never ex- 
isted. A case somewhat similar to this is to be found in the 
book which I have before quoted, and which though not a 
binding legal authority, yet, where its propositions are founded 
on practice and good sense, is deserving of some attention. 
Beawes, tit. Bill of Exchange, pi. 185, says, " where the pos- 
sessor of a bill payable to his order fails, and to defraud his 
creditors indorses it to another, who negotiates it, and effect- 
ually receives the value, indorsing it again to a third, &c., and 
though the creditors, having discovered the fraud, oppose it, 
yet the acceptant must pay it to him who comes to receive it, 
on proof that he paid the real value for it." But it has been 
contended that there is an analogy between bills of exchange 
and deeds, and that in the case of deeds any erasure or alter- 
ation will avoid the deed. In answer to this, first, I deny the 
analog}' between bills of exchange and deeds, and there is no 
authority to support it. In the case of deeds, there must be 
a profert (a), and, as we learn from 10 Co. 92 b., in ancient 
times the jvidges pronounced upon view of the deed, though 
Lord Coke says that practice was afterwards altered. But 
there never is a -profert of a bill of exchange ; the judges 
cannot determine on a view of that, but it must be left to a 
jury to decide upon the whole of the evidence, according to 
the truth of the case. Again, in the case of joint and several 
bonds the objection was founded on its being a substantial 
injury to the defendant; for if it were considered as a sole 
bond, the defendant would be answerable for the whole d'ebt ; 
but if it were a joint bond, he would be liable to only half or 
other proportionable part of it. So far in those days did the 
Court look into the equity of the case. But the blot on this 
bill is no injury to the defendant ; he is not liable to pay till 

(rt) [By the "Common Law Procedure Act, 1852," s. 55, it was made 
unnecessary to make profert.^ 



MASTER V. MILLEK. 1135 

the bill became due, computing the time from the original 
date ; then he must pay it : he alone is liable ; and he never 
can be charged a second time on the bill. Secondly, it is not 
universally true that a deed is destroyed by an alteration, or by 
tearing off the seal. In Palm. 403, a deed which had erasures 
in it, and from which the seal was torn, and was held good, it 
appearing that the seal was torn off by a little boy. So in any 
case where the seal is torn off by accident after plea pleaded, 
as appears by the cases quoted by the plaintiff's counsel. And 
in these days, I think even if the seal were torn off before the 
action brought, there would be no difficulty in framing a 
declaration, which would obviate every doubt upon that point, 
by stating the truth of the case. The difficulty which arose 
in the old cases depended very much on the technical forms 
of pleading aj)plicable to deeds alone. The plaintiff made a 
frofert of the deed under seal, which he still must do, unless 
he can allege a sufficient ground for excusing it ; when that 
is done, the deed or the profert must agree with that stated 
in the declaration, or the plaintiff fails. But a 'profert of a 
deed without a seal will not support the allegation of a deed 
with a seal. For these reasons I am of opinion that the plain- 
tiffs are entitled to judgment on the second count, which is 
drawn upon the bill, stating it to bear date the 26th March. 

But supposing there could be any doubt on this part of the 
case, I am also of opinion that the plaintiffs are entitled to their 
judgment on either of the two counts for money paid, or for 
money had and received. Here it is material to recall to our 
minds the facts found by the verdict. The bill produced to the 
jury was drawn for value, and was accepted by the defendant. 
He is not found to have no effects of the drawer's in his hands ; 
and liis accepting the bill imports, and is at the least prima 
facie evidence, that he had : and on this verdict he must be 
taken to have the amount in his hands. In Burr. 1675, Aston^ 
J., said, it is an admission of effects. By his acceptance he 
gave faith to the bill ; and the plaintiffs, giving credit to that 
fact, have actually paid the value of the bill on receiving it. 
On this case the money paid by the plaintiffs is money paid for 
the use of the defendant ; for the money was advanced on the 
credit of the defendant, and in consequence of his undertaking 
to pay the bill. Again, the money in the defendant's hands is 
so much money received by him for the use of the plaintiffs, 



1136 MASTER V. MILLER. 

who were holders of the bill when it became due. The defend- 
ant has got that mone}^ in liis pocket, which in justice and 
conscience the plaintiffs ought to have, and therefore they are 
entitled to recover it in an action for money had and received. 
In answer to this, it was in the last term susfgrested for con- 
sideration, whether this bill after the alteration were not a 
cliose in action, which could not be assigned ? It is laid down 
in our old books, that for avoiding maintenance a cliose in ac- 
tion cannot be assigned, or granted over to another. Co. Litt. 
214 a., 266 a.; 2 Roll. 45. 1. 40 («). The good sense of that 
rule seems to me to be very questionable ; and in early as well 
as modern times it has been so explained away, that it remains at 
most only an objection to the form of the action in any case (6). 
In 2 Roll. Abr. 45 &; 46, it is admitted that an obligation or 
other deed may be granted, so that the Avriting passes : but it is 
said that the grantee cannot sue for it in his own name. If a 
third person be permitted to acquire the interest in a thing, 
whether he is to bring the action in his own name, or in the 
name of the grantor, does not seem to me to affect the question 
of maintenance. It is curious, and not altogether useless, to 
see how the doctrine of maintenance has from time to time 
been received in Westminster-hall. At one time, not only he 
who laid out money to assist another in his cause, but he that 
by his friendship or interest saved liim an expense which he 
would otherwise be put to, was held guilty of maintenance (<?). 
Bro. tit. Maintenance, 7, 14, 17, &c. Nay, if he officiously gave 
evidence, it was maintenance ; so that he must have had a sub- 
poena, or suppress the truth. That such doctrine, repugnant 
to every honest feeling of the human heart, should be soon laid 
aside must be expected. Accordingly a variety of exceptions 
were soon made ; and, amongst others, it was held, that if a 
person has any interest in the thing in dispute, though on con- 
tingency only, lie may lawfully maintain an action on it ; 2 Roll. 

(a) [See a curious passage in N. S.308; and now by the Judicature 
Termes de la Ley, tit. Chose in Act, 1873, s. 25, subs. 6, an assign- 
Action.] ment in writing with notice to the 

(6) [The doctrine that there can- debtor is effectual in law.] 
not be an assignment of a debt has (f) [See the judgment of Lord 

been long ago exploded. See Noy's AMnrjer, in Finden v. Parker, 11 M. 

Maxims, p. 72; the judgment of & W. 675, 682; 4 Ken. Comra. 10th 

Willes, J., in Balfour v. The Sea, ed., 31, note; Williamson \ . Henley , Q 

Fire, and Life Assurance Co., 3 C. B., Bing. 299.] 



MASTER V. MILLER. 1137 

Abr. 115 ; but in the midst of all these doctrines on maintenance, 
there wa,s one case in which the courts of law allowed of an 
assignment of a chose in action^ and that was in the case of the 
crown; for the courts did not feel themselves bold enough to 
tie up the property of the crown, or to prevent that from being 
transferred. 3 Leon. 198; 2 Cro. 180. Courts of equity from 
the earliest times thought the doctrine too absurd for them 
to adopt it, and therefore they always acted in direct contradic- 
tion to it; and we shall soon see that courts of law also altered 
their language on the subject very much. In 12 Mod. 554, the 
Court speaks of an assignment of an apprentice, or an assign- 
ment of a bond, as things which are good between the parties, 
and to which they must give their sanction and act upon. So 
an assignment of a eliose in action has always been held a good 
consideration for a promise. It was so in 1 Roll. Abr. 29 ; Sid. 
212, and T. Jones, 222 ; and lastly, by all the judges of Eng- 
land in 3Iouldsdah v. Birchall^ 2 Black. 820, though the debt as- 
signed was uncertain. After these cases, we may venture to say 
that the maxim was a bad one, and that it proceeded on a foun- 
dation which fails. But still it must be admitted, that though the 
courts of law have gone the length of taking notice of assign- 
ments of choses in action and of acting upon them, yet in many 
cases they have adhered to the formal objection that the action 
shall be brought in the name of the assignor, and not in the 
name of the assignee. I see no use or convenience in preserv- 
ing the shadow when the substance is gone ; and that it is merely 
a shadow, is apparent from the latter cases, in which the Court 
have taken care that it shall never work injustice. In Bottomley 
v. Brooke, C. B. Mich. 22 G. 3 (a), which was debt on bond, the 
defendant pleaded that the bond was given for securing 103/. 
lent to the defendant by E Chancellor; and was given by her 
direction in trust for her, and that E. Chancellor was indebted 
to the defendant in more money. To this plea there was a de- 
murrer, which was withdrawn by the advice of the Court. In 
Budge v. Birch (5), K. B. Mich. 25 G. 3 (c?), on the same plead- 
ings there was judgment for the defendant. And in Winch v. 

(a) 1 T. R. 621. them was rather to be restrained than 

(h) But these cases have been dis- extended. [This is, however, at vari- 

approved of. Tucker v. Tucker, 4 B. ance with the policy of the Second C. 

& Ad. 745. And see Wake v. Tinkler, L. P. Act, 1854, and the Judicature 

16 E. 36, where Lord EUenhorough Acts.] 

said, that the doctrine laid down in (c) 1 T. K. G22. 



1138 MASTER V. MILLER. 

Keeley^ K. B. Hil. 27 G. 3 (a), where the ohligee assigned over 
a bond and afterwards became a bankrupt, the Court held that 
he might notwithstanding maintain the action. Mr. J. At>hurst 
said, '' It is true that formerly courts of law did not take notice 
of an equit}^ or a trust ; but of late years, as it has been found 
productive of great expense to send the parties to the other 
side of the hall, wherever this Court have seen that the justice 
of the case has been clearly with the plaintiff, they have not 
turned him round upon this objection. Then if this Court will 
take notice of a trust, why should they not of an equity ? It 
is certainly true that a chose in action cannot strictly be as- 
signed ; but this Court will take notice of a trust, and see who 
is beneficially interested." But admitting that on account of 
this quaint maxim there may still be some cases in which an 
action cannot be maintained by an assignee of a chose in action 
in his own name, it lemains to be considered, whether tliat ob- 
jection ever did hold or ever can hold in the case of a mercan- 
tile instrument or transaction. I'he law-merchant is a system 
of equity, founded on the rules of equity, and governed in all 
its parts by plain justice and good faith. In Plllan v. Van 
Mierop, Lord Mansfield said, if a man agree to do what if finally 
executed would make him liable, as in a court of equity, so, in 
mercantile transactions, the law looks on the act as done. I 
can find no instance in which the objection has prevailed in a 
mercantile case ; and in the two instances most universally 
in use, it undoubtedly does not hold ; that is, in the cases of 
bills of exchange and policies of insurance. The first is the 
present case ; and bills are assignable by the custom of mer- 
chants ; so in the case of policies of insurance ; till the late act 
was made, requiring that the name of the person interested 
should be inserted in the policy, the constant course was to 
make the policy in the name of the broker ; and yet the owner 
of the goods maintained an action upon it. Circulation and 
the transfer of property are the life and soul of trade, and must 
not be checked in any instance. There is no reason for con- 
fining the power of assignment to the two instruments which I 
have mentioned ; and I will show you other cases in which the 
Court have allowed it : 1st, In Fenner v. Mears, where the de- 
fendant, a captain of an East Indiaman, borrowed 1000/. of 
Cox, and gave two Respondentia bonds, and signed an in- 

(a) Ante, 1 T. 11. 619. 



MASTEli V. MILLER. 1139 

dorsement on the back of them, acknowledging that, in case 
Cox chose to assign the bonds, he held himself bound to 
pay them to the assignees. Cox assigned them to the plain- 
tiff, who was allowed to recover the amount of them in an 
action for money had and received. De G-rey, Chief Justice, 
in disposing of the motion for a new trial, said (a), Responden- 
tia bonds have been found essentially necessary for carrj-ing 
on the India trade ; but it would clog these securities, and be 
productive of great inconvenience, if they were obliged to 
remain in the hands of the first obligee. This contract is 
therefore devised to operate upon subsequent assignments, and 
amounts to a declaration, that upon such assignment the money 
which I have borrowed shall no longer be the money of A., but 
of B., his substitute. The plaintiff is certainly entitled to the 
money in conscience, and, therefore, I think, entitled also at 
law : for the defendant has promised to pay any person who is 
entitled to the money. So in the present case, I say the plain- 
tiffs are in conscience entitled to the money, and the defend- 
ant has promised to pay, or, which is the same thing, is by law 
bound to pay the money to any person who is entitled. The 
very nature and foundation of an action for money had and 
received is, that the plaintiff is in conscience entitled to the 
money ; and on that ground it has been repeatedly said to be 
a bill in equity. We all remember the sound and manly opin- 
ion given by my Lord Chief Justice here in the beginning of 
the last term on a motion made by ]\Ir. Bearcroft for a new 
trial, wherein he said, if he found justice and honesty on the 
side of the plaintiff here, he would never turn him round, in 
order to give him the chance of getting justice elsewhere. — 
2ndly, Clarke v. Adair, sittings after Easter, 4 Geo. 3 : Debray, 
an officer, drew a bill on the agent of a regiment payable out of 
the first mone}^ which should become due to him on account 
of arrears or non-effective money. Adair did not accept the 
bill, but marked it in his book, and promised to pay Avhen 
effects came to hand. Debray died before the bill was paid; 
and the administratrix brought an action against Adair for 
money had and received. It was allowed by all parties that 
this was not a bill within the custom of merchants : but Lord 
Mansfield said that it is an assignment for valuable considera- 
tion, with notice to the agent ; and he is bound to pay it. He 

(a) 2 Bl. Kep. 1272. 



1140 MASTER V. :MILLEli. 

said he remembered a case in Chancery, where an agent under 
the like circumstances had paid the money to the administrator, 
and was decreed notwitlistanding to pay to the person in whose 
favour the bill was drawn. — 3rdly, In Israel v. Douglas, C. B. 
East. 29 G. 3 (a), A. being indebted to B., and B. indebted to 
C, B. gave an order to A. to pay C". the money due from A. to 
B. : whereupon C. lent B. a further sum, and the order was 
accepted by A. On the refusal of A. to com})ly with the order, 
it was held that C. might maintain an action for money had 
and received against him. And ^Ir. J. Heath expressly said he 
thought in mercantile transactions of this sort such an under- 
taking may be construed to make a man liable for money had 
and received. This opinion was cited with approbation in the 
House of Lords in Gribson v. Minet. Lastly, I come to the 
case of Tatlock v. Harris, (3 T. R. 182,) in which Lord Kenyan 
in delivering the judgment of the court, said it " was an appro- 
priation of so much money to be paid to the person who should 
become the holder of the bill. We consider it as an agreement 
between all the parties to appropriate so much property to be 
carried to the account of the holder of the bill ; and this Avill 
satisfy the justice of the case, without infringing any rule of 
law." All these cases prove that the remedy will be enlarged, 
if necessary, to attain the justice of the case ; and that if the 
plaintiff has justice and conscience on his side, and the defend- 
ant has notice only, the plaintiff shall recover in an action for 
money had and received. Let us not be less liberal than our 
predecessors, and even we ourselves, have been on former occa- 
sions. Let us recollect, as Lord Chief Justice Wilmot said in 
the case I have alluded to, that not only honi judicis est ampli- 
are jurisdictionem, but ampliare justitiam : and that the common 
law of the land is the birthright of the subject, under which we 
are bound to administer him justice, without sending him to his 
writ of subpoena, if he can make that justice appear. The jus- 
tice, equity, and good conscience of the case of these plaintiffs 
can admit of no question; neither can it be doubted but that 
the defendant has got the money which the plaintiffs ought to 
receive. For these reasons, I am of opinion that the plaintiffs 
are entitled to judgment on either of these three counts in the 
declaration, namely, on the count on the bill of exchange, 
stating the date to be the 26th ; or on the count for money 
paid ; or on the count for money had and received. 

(a) 1 H. Bl. 242. 



MASTER ^^ MILLER. 1141 

Crrose, J. — The onl}- question in this case is, whether there 
appears on the face of this special verdict a right of action in 
the phiintiffs on any of the counts. The first count is on a bill 
of exchange dated the 20th of March ; but, there being no proof 
of any bill of that date, there is clearl}- an end of that count. 
The second is on a bill dated the 26th of March ; but the de- 
fendant objects to the plaintiffs' recovering on this count also, 
because the bill having been altered while it was in the hands 
of Wilkinson and Cooke, it is not the same bill as that which 
was accepted ; and that is the true and only question in the 
cause. My idea is, that the plaintiffs' right of action, as stated 
in this count, cannot be maintained at common law, but is sup- 
ported only on the custom of merchants, which permits these 
particular cJioses in action to be transferred from one person to 
another. The plaintiffs, as indorsees, in order to recover on this 
bill, must prove the acceptance by the defendant, the indorse- 
ment from Wilkinson and Cooke to them, and that this was 
the bill which was presented when it became due. Now has all 
this been proved? The bill was drawn on the 26th of March, 
23ayable at three months' date ; the defendant's engagement by 
his acceptance was, that it should be paid when it became due, 
according to that date ; but afterwards the date was altered ; the 
date I consider as a verj^ material part of the bill, and by the 
alteration the time of payment is accelerated several days : 
according to that alteration, the payment was demanded on the 
23rd of June, which shows that the plaintiffs considered it as a 
bill ch-awn the 20th of March ; tlien the bill wliich was produced 
in evidence to the jury was not the same bill which was drawn 
by Peel and Co., and accepted by the defendant ; and here the 
cases which were cited at the bar apply. Pigot's is the leading 
case ; from that I collect, that when a deed is erased, whereby 
it becomes void, the obligor may plead non est factum, and give 
the matter in evidence, because at the time of plea pleaded it 
was not his deed ; and, 2ndly, that when a deed is altered in a 
material point by himself, or even by a stranger, the deed there- 
by becomes void. Now the effect of that determination is, that 
a material alteration in a deed causes it no longer to be the 
same deed. Such is the law respecting deeds (a) : but it is said 

(a) In Dr. Leyfield's Case, 10 Eep. it be not rased or interlined in material 
92, one of the reasons for requirino: points or places, and that the judges in 
profert of a deed is stated to be that ancient time did judge uvon their view 



1142 MASTER V. :millek. 

that that law does not extend to the case of a bill of exchange ; 
AA'hether it do or not must depend on the principle on which 
this law is founded. The policy of the law has been already- 
stated, namely, that a man shall not take the chance of commit- 
ting a fraud, and, when that fraud is detected, recover on the 
instrument as it was originally made. In such a case the law 
intervenes, and says, that the deed thus altered no longer con- 
tinues the same deed, and that no person can maintain an action 
upon it. In reading that and the other cases cited, I observe 
that it is nowhere said that the deed is void merely because it 
is the case of a deed, but because it is not the same deed. A 
deed is nothincf more than an instrument or agreement under 
seal : and the principle of those cases is, that any alteration in a 
material j^art of any instrument or agreement avoids it, because 
it thereby ceases to be the same instrument. And this principle 
is founded on great good sense, because it tends to prevent the 
party, in whose favour it is made, from attempting to make any 
alteration in it. This principle too appears to me as applicable 
to one kind of instrument as to another. But it has been con- 
tended that there is a difference between an alteration of bills 
of exchange and deeds ; but I think that the reason of the rule 
affects the former more strongly, and the alteration of them 
should be more penal tlian in the latter case. Supposing a bill 
of exchange were drawn for lOOZ., and after acceptance the sum 
was altered to 1000^. : it is not pretended that the acceptor shall 
be liable to pay the 1000?. : and I say that he cannot be compelled 
to pay the 100?., according to his acceptance of the bill, because 
it is not the Same bill. So if the name of the payee had been 
altered, it would not have continued the same bill. And the 
alteration in every respect prevents the instrument's continuing 
the same, as well as when applied to a bill as to a deed. It was 
said that Pigofs Case only shoAvs to Avhat time the issue relates : 
but it goes further, and shows, that if the instrument be altered 
at an}' time before plea pleaded, it becomes void. It is true the 
Court will inquire to what time the issue relates in both cases. 

the deed to he void, hut of late times 200. But if the grantee be sufficiently 

have left that to he tried hy the jury if identified, such an addition as filling 

the rasing or interlining ii;ere hefore up a blank left for his Christian name 

delivery. On similar principles a deed, will not hurt. EaglHnnx. Gutteridge, 

the name of the grantee in which is 11 M. & W. 465. So filling in a blank 

introduced after delivery, is void. with the date does not vitiate. Keane 

HibbUichite v. M'Morine, G M. & W. v. Smallboue, 17 C. B. 179. 



MASTER V. .MILLER. 114S 

Then to what time does the issue relate here ? The phiintiffs in 
this case undertook to prove everything that woukl support the 
assumpsit in law, otherwise the assumpsit did not arise. It was 
incumbent on them to prove that, before the action was brought, 
this identical bill, which was produced in evidence to the jury, 
was accepted by the defendant, presented, and refused : but if 
the bill, Avhich was accepted by the defendant, were altered be- 
fore it- Avas presented for payment, then that identical bill, 
which was accepted by the defendant, was not presented for 
payment ; the defendant's refusal was a refusal to pay another 
instrument : and therefore the plaintiffs failed in proving a 
necessary averment in their declaration. If the bill had been 
presented and refused payment, and it had been altered after 
the action was brought, then it might have been like the case 
mentioned at the bar. It was contended at the bar, that the 
inquiry before a jury in an action like the present should be, 
whether or not the defendant promised to pay the bill at the 
time of his acceptance : but granting that he did so promise, 
that alone will not make him liable unless that same l)ill were 
afterwards presented to him. I will not repeat the observations 
which have been already made by my lord on the case in ]\Iol- 
loy : but the note of that case is a very short one ; and the prin- 
ciple of it is not set forth in any other book, nor indeed do the 
facts of it sufficiently appear. I doubt also whether it was a de- 
termination of this Court : it only appears that there was a point 
made at Nisi Prius, but not that it was afterwards argued here. 
But it has been said that a decision in favour of the plaintiffs will 
be the most convenient one for the commercial world ; but that 
is much to be doubted ; for if, after an alteration of this kind, 
it be competent to the Court to inquire into the original date 
of the instrument, it will also be competent to inquire into the 
original sum and the original payee, after they have been altered, 
which would create much confusion, and open a door to fraud. 
Great and mischievous neglects have already crept into these 
transactions ; and I conceive that keeping a strict hand over the 
holders of bills of exchange, to prevent any attempts to alter 
them, may be attended with many good effects, and cannot be 
productive of any bad consequences, because the party who has 
paid a value for the bill may have recourse to the person who 
immediately received it from him. On these grounds, there- 
fore, I am of the opinion that the plaintiffs cannot recover on 



1144 :mastek v. miller. 

the second count. Neither do I think that they can recover 
on the general count, because it is not stated as a fact in the ver- 
dict that the defendant received the money, the value of the bill. 
Per curiam. Judsfnient for the defendant. 



3LA.STER V. ^HLLEE, LN THE EXCHEQLTiR CHAIMBER, IX ERROR. 

On behalf of tlie plaintiff. Wood argued as follows : It has 
been contended, on the other side, in the court below, that the 
acceptor of the bill was discharged from his acceptance by the 
alteration of the date, though made without the knowledge of 
the holder : but no case has been cited to show, that an altera- 
tion, such as was made in the present instance, would vitiate 
a written instrument, except it were a deed. But there is a 
material difference between deeds and bills of exchange. Deeds 
seldom if ever pass through a variety of hands, and are not 
liable to the same accidents to which bills are, from their nego- 
tiability, exposed. There is therefore good reason in the rule, 
which requires that deeds should be strictly kept, and which 
will not suffer the least alteration in them ; but tlie same rule is 
not applicable to bills. In ancient times the Court decided on 
the inspection of deeds, for which reason a profert was neces- 
sary, that they might see whether any rasure or alteiation had 
taken place : but bills oi exchange were always within the cog- 
nizance of the jury. The form of the issue on a deed, also, is dif- 
ferent from that on a bill ; in the one it is, that it is not then, i.e., 
at the time of plea pleaded, the deed of the party ; 11 Co, 27, a, 
Bigot's Case ; but the issue on a bill is, that the defendant did 
not undertake and promise. Here the jury have expressly 
foiuid that the defendant did accept the bill, and the promise 
arises by implication of law from the acceptance. An alteration 
in the date, subsequent to the acceptance, ^^'ill not do away the 
implied promise. In Price v. Shufe, " a bill was drawn payable 
the 1st of January ; the person upon whom it was diaAvn ac- 
cepts the bill to be paid the 1st of March ; the serA'ant brmgs 
back the bill ; the master, perceiving the enlarged acceptance, 
strikes out the 1st of March, and puts in the 1st of January, 
and then sends the bill to be paid ; the acceptor then refuses : 
whereupon the person to whom the monies were to be paid strilces 
out the 1st of January, and puts in the 1st of March again. In 



MASTER V. MILLER. 1145 

an action brought on this bill, the question was, Whether these 
alterations did not destroy the bill ? and ruled the};" did not." 2 
MoUoy, 109. In Nichols v. Haytvood, Dyer, 59, it was holden 
in the case of a bond, that where the seal was destroyed by 
accident before the trial, the jury might find the special matter, 
and being after plea pleaded, it could not be assigned for error, 
but the plaintiff recovered. To the same point also is Cro. Eliz. 
120, 3Iichael v. Scoehrith. So in the present case, it was com- 
jDetent to the jury to find the special matter, and an alteration in 
the bill, subsequent to the time of the acceptance, ought not to 
prevent the plaintiff from recovering. In Dr. LeyfiehTa Case^ 
10 Co. 92, b, it is said, "in great and notorious extremities, as 
by casualties of fire, that all his evidences were burnt in his 
house, there, if that should appear to the judges, they may, in 
favour of him who has so great a loss by fire, suffer him upon 
the general issue to prove the deed in evidence to the jury by 
witnesses:" the casualty by fire is only put as an instance, for 
the principle is applicable to all cases of accident. Thus also in 
Read v. Brookman., 3 Term Rep. B. R. 151, a deed was pleaded 
as being lost by time and accident, without a profert : and the 
present case is within the reason and spirit of that determination. 

BearcrofU contra. — -On principles of law and sound policy, 
the plaintiff ought not to recover. The reason of the rule, that 
a material alteration shall vitiate a deed, is applicable to all 
written instruments, and particularly to bills of exchange, 
which are of universal use in the transactions of mankind. 
And here there was a material alteration in the bill inasmuch 
as the time of payment was accelerated. As to the case of 
Price V. Shute, it is but loosely stated, and that not in any book 
of reports ; and it does not appear against whom the action was 
brought. 

Lord Chief Justice Eyre. — I cannot bring myself to enter- 
tain any doubt on this case ; and if the rest of the court are of 
the same opinion it is needless to put the parties to the delay 
and expense of a second argument. When it is admitted that 
the alteration of a deed would vitiate it, the point seems to me 
to be concluded ; for by the custom of merchants duty arises on 
bills of exchange from the operation of law, in the same manner 
as a duty is created on a deed by the act of the parties. With 
respect to the argument from the negotiabilit}^ of bills of ex- 
change and their passing through a variety of hands, the infer- 



114l3 MASTER V. MILLER. 

ence is directly the reverse of that which was drawn by the 
counsel for the plaintiff : there are no witnesses to a bill of ex- 
change, as there are to a deed; a bill is more easily altered 
than a deed ; if therefore courts of justice were not to insist on 
bills being strictly and faithfully kept, alterations in them 
highly dangerous might take place, such as the addition of a 
cipher in a bill for 100/., by which the sum might be changed 
to 1000/., and the holder having failed in attempting to recover 
the lOOOZ., might afterwards take his chance of recovering the 
100/., as the bill originally stood. Rut such a proceeding would 
be intolerable. It was said in the argument that the defendant 
could not dispute the finding of the jury, that they found he 
accepted the bill, and therefore that the substance of the issue 
was proved against him. But the meaning of the plea of non 
assumpsit is, not that lie did not accept the bill, but that there 
was no duty binding on him at the time of plea pleaded (a). 
There are many ways by which the obligation of the acceptance 
might l)e discharged ; for instance, by payment. And it was 
certainly competent to him to show, that the duty which arises 
primd facie from the acceptance of a bill, was discharged in the 
present case by the bill itself being vitiated by the alteration 
which was made. 

Lord Chief Baron Macdonald. — I see no distinction as to the 
point in question between deeds and bills of exchange : and I 
entirely concur with my Lord Chief Justice, in thinking there 
would be more dangerous consequences follow from permitting 
alterations to be made on bills than on deeds. 

The other Judges declared themselves of the same opinion. 

Judgment afhrmed. 



Since the decision of this case it never has been donbted that [at common 
law] a material alteration in a bill or note not satisfactorily accounted for 
operates as a satisfaction thereof, except as ayainst parties consenting to such 
alteration; [even though made by a stranger. See Davidson v. Cooper, 11 M. 
& W. 795, 13 M. & W. 343 ; Pattinson v. Lucldey, L. R. 10 Ex. 830, 44 L. J. Ex. 
180. The question of materiality has been held to be one of law and not to 
be judged of by surrounding circumstances, Vance v. Loiother, 1 Ex. D. 176, 
45 L. J. Ex. 200. In the case of bills of exchange and promissory notes it 
was b}^ the Bill of Exchange, 1882, sect. 64, enacted as follows : — 

64. (1) " Where a bill or acceptance is materially altered without the assent 
of all parties liable on the bill, the bill is avoided except as against a party 

(a) See Douge. Ill and 112, 8vo. Sullivan v. Montague, and the notes there. 



MASTER V. MILLER. ' 1147 

who has himself made, authorised, or assented to the alteration, and subse- 
quent indorsers. 

Provided that. 

Where a bill has been materially altered, but the alteration is not apparent " 
{Leeds Bank v. Walker, 11 Q. B. D. 84, 52 L. J. Q. B. 590), " and the bill is in 
the hands of a holder in due course, such holder may avail himself of the 
bill as if it had not been altered, and may enforce payment of it according to 
its original tenour. 

(2.) In particular the following alterations are material, namely, any alter- 
ation of the date, the sum payable, the time of payment, the place of pay- 
ment, and, where a bill has been accepted generally, the addition of a place 
of payment without the acceptoi''s assent." 

In Leeds Bank v. Walker, 11 Q. B. D. 84, 52 L. J. Q. B. 590, it was held by 
Denman, J., that this act is not x-etrospective, and that a Bank of England 
note does not come within the section cited above. 

In Alderson v. Langdale, 3 B. & Ad. 660, the doctrine [of Master v. Miller'] 
was carried still further, and it was held that such an alteration made by the 
plaintiff operated as a satisfaction not only of the bill, but of the debt which 
it was given to secure. In Alderson v. Langdale, the debtor was the drawer 
of the bill altered ; but in Atkinson v. Hawdon, 2 A. & E. 628, it was held that 
where the debtor, being himself the maker or acceptor, could have had no 
remedy on the instrument against any other party to it, his liability to pay 
the debt secured thereby wovild not be extinguished by the alteration. In 
that case the declaration, so far as is material to the point, was for goods 
sold and delivered, and on an account stated. Plea, that the defendant 
accepted a bill at two months for the debt; Replication, that it was not paid 
when due ; Rejoinder, that the plaintiff had altered it without the defendant's 
assent. Demurrer, and judgment for the plaintiff, the defendant's counsel 
admitting that the rejoinder could not be supported. It is obvious that this 
case has no bearing upon the effect of such an alteration in an action on the 
bill itself. 

Alterations in the date, sum, or time for payment, or the insertion of words 
authorising transfer or expressing the value to be received on some particular 
account, adding the name of a maker or drawer, or an unwarranted place for 
payment [had been before the passing of the Bills of Exchange Act, 1882, 
held to be] , material alterations within the above rule. See Walton v. Hast- 
ings, 4 Camp. 223, 1 Stark. 215 ; Outhwaite v. Luntly, 4 Camp. 179 ; Bowman v. 
Nicholl, 5 T. R. 537 ; Cardwell v. Martin, 9 East, 190 ; Kershaio v. Cox, 3 Esp. 
246; /inzVZ v. Williams, 10 East, 431; Clark v. Blackstock, Holt, N. P., 474; 
Tidmarsh v. Grover, 1 M. & 8. 735; Coioie v. Halsall, 4 B. & Ad. 197; R. v. 
Treble, 2 Taunt. 328 ; Alderson v. Langdale, 3 B. & Ad. 660 ; Taylor v. Moseley, 
6 C. & P. 278; Grotty v. Hodges, 4 M. & Gr. 561, 5 Scott, N. R. 221, S. C. ; 
Harrison v. Cotgreave, 4 C. B. 562, where the defendant pleaded his infancy 
at the time of the alteration (not stating it to have been made without his 
consent), and that he had not ratified the contract as altered after he came of 
full age; Mason v. Bradley, 11 M. & W. 590, where the name of one of the 
makers of a promissory note was cut off; [ Warrington v. Early, 2 E. & B. 
763, where the addition was of the words "interest at six per cent, per 
annum," in the corner of a note for the payment of a sum " with lawful in- 
terest;"] Burchfield v. Moore, 3 E. & B. 683, where a place of payment was 
added to the acceptance, and the acceptor was held not to be liable even to a 
bona fide holder for value [(see this explained below) Hirschfeld v. Smith, L. 



1148 MASTER V. MILLER. 

R. 1 C. P. 340; 35 L. J. C. P. 177, where an addition was made of the rate of 
exchange at which a bill drawn on Paris, Avas to be paid; and llirschman v. 
SncUl L. R. S Ex. 171 ; 42 L. J. Ex. 113, where the date of a bill payable four 
months after date was altered from the 1st to the 11th of October, and the 
alteration was held material notwithstanding observations to the contrary, 
which are attributed to Parke, B., in Parnj v. Nichohori, 13 M. & W. 778; 
Vance v. Loxcther, 1 Ex. D. 176, 45 L. J. Ex. 200, where the alteration of the 
date of a cheque was held material; and SufcU v. Bank of England, 9 Q. B. 
D. 555, where the alteration of the number on a Bank of England note was 
held material by the C. A., overruling the decision of Lord Coleridge, C. J. 

In this case the Court disapproA ing of Caldv-cU v. Parker, Ir. R. 3 Eq. 519, 
17 W. R. 0.")5, overruled the contention that the alteration to be material 
witliin the rule must be an alteration of some part of the contract contained 
in the altered instrument, and held that the rule would apply even to an 
instrument not containing a contract at all.] 

AVhen an acceptance Is altered by inserting a place of payment, without 
adding the words, " there only," or " not elsewhere," the alteration is, in an 
action against the acceptor, immaterial if made by his consent [the Bills of 
Exchange Act, 1882, s. 19, sub-s. 2 (c)], having rendered the above words 
necessary in order to a special acceptance. Walter v. Cubley, 2 C. & M. 151, 
[decided upon st. 1 & 2 G. 4, repealed, but re-enacted by the above Act]. 
But if made without his sanction, it avoids the bill, being the unauthorised 
appointment of an agent to pay the bill. Taylor v. Moseley, 6 C & P. 278; 
Macintosh v. Haydon, R. & M. 362; Deshroio v. Wetherby, 1 M. & Rob. 438; 
Calvert v. Baker, 4 M. & W. 417; Crotty v. Hodges, 4 M. & G. 561 ; 5 Scott, N. 
R. 221, S. C. Bnrchfield v. Moore, 3 E. & B. 683. [" Such words, although 
they do not alter the direct liability of the acceptor, do vary the contract 
between others who are parties to the bill ; therefore if interpolated without 
his consent, they may prejudice the acceptor; they amount to a material 
alteration of the bill," per Campbell, C. J., in the last case. And see now the 
Bills of Exchange Act, 1882, s. 64, sect. 2, ante. 

In Ilanbury v. Lovett, 16 \V. R. 795, 18 L. T. N. S. 366, the defendant had 
given his acceptance in blank to the plaintiff', which the latter filled up " pay- 
able at 145, Euston Road;" it was held that this was equivalent to a mate- 
rial alteration, and discharged the acceptor, at any rate as against the 
plaintifl'. 

An alteration made to carry out the original intention of the parties does 
not vitiate the instrument. Cariss v. Tattersall, 2 M. & G. 890 ; London and 
Provincial Bank v. Roberts, 22 AV. R. 402.] 

If the alteration be material, it makes no difference that it would operate, 
if at all, to the benefit of the maker. Gardner v. Walsh [5 E. & B. 83], 24 L. 
J. 285, overruling Catton v. Simpson, 8 A. & E. 136. 

Even if the alteration be made imth the consent of all the parties to the bill 
or note; still, as it thereby becomes a new contract, the old stamp will not 
suffice, Boicrnan v. Nicholl, 5 T. R. 537; [Bathe v. Taylor, 15 East, 412;] un- 
less, indeed, the alteration was merely to correct a mistake, and so render the 
instrument what it was originally intended to have been. Kershaw v. Cox, S 
Esp. 246 ; Jacob v. Hart, 6 M. & S. 142 ; Clark v. Blackstock, Holt, N. P. 474 ; 
Byron v. Thomson, 11 A. & E. 31 ; Cariss v. Tattersall, 3 Scott, N. R. 257, 2 M. 
& G. 890, S. C. which see as to the evidence sufficient to prove an assent to 
the alteration ; Wright v. Inshaxo, 1 Dowl. N. S. 802 ; [the intent of the alter- 
ation is a question for the jury; Byles on Bills, 14th Ed. 339.] 



MASTER V. MILLER. 1149 

The addition of a new contractor with the assent of all parties does not 
hurt, accoi'ding to Zouch v. Clay, 1 Vent. 185, 2 Lev. 35, S. C ; [or where he 
was originally intended to be added. Dodge v. Pringle, 29 L. J. Exch. 115;] 
and according to Catton v. Simpson, 8 A. & E. 136, 3 N. & P. 241, S. C, the 
addition of a contracting party without consent is merely inoperative, but 
according to the later authority of Gardner v. Walsh, supra, it vitiates the 
instrument. 

The addition [however] of a thing perfectly immaterial does not affect the 
liability of the parties, Catton v. Simpson, 8 A. & E. 136. [Where the altera- 
tion is an immaterial one, the Court of Queen's Bench declining to be bound 
by the second resolution in Pigot's Case, 11 Rep. at fol. 27a, have decided 
that though made by a party to the instrument it does not vitiate the instru- 
ment. Aldous V. Cornwell, L. R. 3 Q. B. 573, 37 L. J. Q. B. 201. That was an 
action by the payee against the maker of a promissory note, and the altera- 
tion proved was the addition of the words " on demand," which was held to 
be immaterial. 

See also Garrard v. Lewis, 10 Q. B. D. 30, decided before the Bills of 
Exchange Act, 1882, where it was held that no alteration (even it be fraudu- 
lent and unauthorised) of the marginal figure in a bill vitiates it as a bill for 
the full amount inserted in the body when the bill reaches the hand of a 
holder who is unaware that the marginal index has been improperly altered. 
In Caldioell v. Parker, 3 Ir. Rep. Eq. 519, 526, 17 W. R. 955, a deed had been 
executed between one Parker of the one part, and was executed by all four. 
Subsequently J. Caldwell drew his pen through his own and M. Caldwell's 
signatures, the seals remaining untouched. It was admitted that the erasure 
was made wilfully, and under the impression that it might influence claims 
to be made dehors the deed, but no fraud was intended, and the deed con- 
tained no grant or covenant by the Caldwells, and imposed no liability upon 
them. They were simply covenantees. It was held that the erasure was 
immaterial, and did not avoid the deed. But this case was disapproved by 
the C. A. Sriffell v. Banl: of England, 9 Q. B. D. 555, 51 L. J. Q. B. 401. 

In Sellin v. Price, L. R. 2 Ex. 189, 36 L. J. Ex. 93, a composition deed had 
been registered under the Bankruptcy Act, 1861, s. 192, between a debtor, a 
surety, and " the several persons whose names or firms are set forth in the 
schedule hereto, hereinafter styled creditors." At the time of the registra- 
tion there was no schedule of creditors annexed, and it was held that the 
subsequent addition of a schedule was a material alteration which vitiated 
the deed. 

But in Wood v. Slack, L. R. 3 Q. B. 379, 37 L. J. Q. B. 130, where the deed 
was made between the debtor of the first part, and " the several other per- 
sons named in the schedule thereto as creditors, and all other the creditors, 
if any, of the defendant of the second part," and was executed before 
registration by a sufficient majority of creditors to make it binding under the 
Act, it was decided that the addition to the schedule subsequently to the 
registration of the names of two creditors was not a material alteration 
of the deed so as to vitiate it, the deed when registered being "as much 
binding upon the two creditors before as it was after their names were 
inserted in the schedule." See also Harris v. Tenpany, Cab. & El. 65. 

In Ex parte Yates, 2 De G. & J. 191, 27 L. J. Bank. 9, the executor of the 
payee of a pi'omissory cote forbore, at the request of one of the makers, to 
press for payment of it on his procuring additional security, and accordingly 
another party placed his name on the note, not under the signatures of the 



11^0 MASTEK V. .MILLER. 

makers, but in the opposite corner. The Lords Justices held the addition to 
be not an alteration but an indorsement.] 

An alteration made with the consent of parties before a bill or note has 
issuiil is of no importance, for, up to the time of issue, it is in Jicri ; Doicnes 
V. liicharilson, Bayle}' on Bills, oth ed. 116; Johnson v. D. of Mai'lborough, 
2 Stark. 313; so when made by an agent of all parties. Sloman v. Cox, 
5 Tyrw. 175, 1 C. M. & R. 471, S. C. And a bill or note is said to be issued 
when it is in the hands of some party entitled to make a claim upon it. 
Duirni's v. Richardson, rdn supra ; Cardicell v. Martin, i) East, 190; Kcnnersley 
V. Xash, 1 Stark. 352. 

If a bill or note exhibit the appearance of alteration, it lies upon the 
holder to account for it. Henman v. Dickenson, 5 Bing. 183; Bixhop v. 
Chawhre. 1 M. & W. llfi; Knight v. Clements, 8 A. & E. 213; Clifford 
V. Lady Parker, 2 M. & G. 909, 3 Scott, N. R. 233, S. C. [See the observations 
as to this in Byles on Bills, 14th Ed. 341.] Whether an interlineation like an 
alteration raises a primcl facie case of suspicion, so that the onus of explain- 
ing it is thrown upon the partj' producing the instrument, see 2 "Wnis. 
Saund. 200 c. n. (/-). It has been laid down by the Court of Queen's Bench 
that altliougli in tlie case of a bill of exchange there is a distinct rule that an 
alteration must be explained, yet tliat in the case of a deed the presumption 
is tliat tlie alteration was made before execution. Doe d. Tatnm v. Catomore, 
1() Q. B. 745. 

Contra of a will, because that may be altered by the testator, without 
wrong, after it is executed. Doc d. Shalcross v. Palmer, 16 Q. B. 747. 
[Accord. Christmas v. Whinyates, 3 Sw. & Tr. 81 ; 32 L. J. Prob. 73, where tlie 
same principle was applied to the case of the mutilation of a will.] Quwre 
whether the distinction l)etween an alteration and an interlineation was much 
considered in Doc d. Tatum v. Catomore. 

A cancellation by mi.'<tnke does not affect the liability of the parties whose 
signatures are cancelled. Paper v. Birkbeck, 15 East, 17; Wilkinson v. John- 
son. 2 B. & C. 428; Xovelli v, Possi, 2 B. & Ad. 765; Accord. Wanrick v. 
Pnyirs, 5 M. & G. 352, 6 Scott, X. R. 1, S. C, where an unsuccessful attempt 
was made to flx a banker who had made such a cancellation, with the amount 
of the bill. [See as to mistake annulling the cancellation of a deed, Perrott 
V. Perrott, 14 East, 423. " If the absence of intention to cancel be clearly 
shown, the thing is not cancelled." Bamberger v. The Commercial, &c. Co., 
15 C. B. 693, ;)er Maule, J.] * 

Although for a long time PigoVs Case, 11 Rep. 26 a, and Master v. Miller, 
were the authorities always referred to upon questions of alteration, and 
although such questions seldom arose except in actions upon deeds, bills of 
exchange, and promissory notes, yet the doctrine of those two cases has been 
extended to other written instruments. 

In Porrell v. Divett, 15 East, 29, the Court of Queen's Bench applied it to 
the case of bought and sold notes, and held that a vendor who, after the 
bought and sold notes had been exchanged, prevailed on the broker, without 
the consent of the vendee, to add a tenn to the bought note for his the ven- 
dor's benefit, thereby lost all right against the vendee. The same law was 
acted upon in Mollett v. Wackei-barth, 5 C. B. 181. 

And in Davidson v. Cooper, 11 M. & W. 795, Avliere to a count in assiimpsit 
on a guaranty, the defendant pleaded that after it was given to the plaintiflT, 
it was altered in a material particular by some person to the defendant unknovni, 
without his consent, by affixing a seal so as to inake it appear to be the deed 



MASTER V. MILLER. 1151 

of the defendant, and upon a motion of judgment iwn abstante veredicto, the 
Court of Exchequer reviewed and expounded the law upon the general subject 
of alteration, and holding the case to fall within the doctrine of PigoVs Case, 
gave judgment for the defendant. And that judgment w'as affirmed by the 
Conrt of Exchequer Chamber, "after much doubt," 13 M. & W. 343. The 
doubt at first entertained by the Court of Exchequer Chamber may however 
be considered as fortifying their ultimate decision, which was founded on the 
principle, " that a party toho has the custody of an instrument made for his bene- 
fit, is bound to preserve it in its original state." "It is," said Lord Denman, in 
delivering the judgment, '• highly important for preserving the purity of 
legal instruments, that this principle should be borne in mind, and the rule 
adhered to. The party who may sufler has no right to complain, since there 
cannot be any alteration except through fraud or laches on his part." 

[Davidson v. Cooper, was acted upon in Croockewit v. Fletcher, 1 H. & N. 
893, in which case the instrument vitiated by altei'ation was a charter-party 
(see also Fazakerly v. McKnirjht, 6 E. & B. 795), and in Pattinson v. Luckley, L. 
R. 10 Exch. 330 ; 44 L. J. Ex. 180, in which case it was a building contract.] 

An instrument which, by reason of an alteration, becomes invalid as the 
foundation of an action, is not however thereby necessarily avoided for all 
purposes. For instance, the alteration of a deed of conveyance, though it 
may deprive the covenantee of all right to sue upon the covenants therein con- 
tained, does not affect the ownership of the property conveyed; and the deed 
may, it seems, still be adduced in evidence, to show what Avas oi'iginally con- 
veyed thereby. West v. Steicard, 14 M. & W. 47. 

In such cases, to use the words of Lord Abinger, in delivering the judgment 
of the Court, in Davidson v. Cooper, 11 M. & W. 800, " the deed is produced 
merely as a proof of some right or title created by or resulting from its hav- 
ing been executed.'" [See Green v. Attenborough, Cam. Scac. 3 H. & C. 4G8 ; 
w^here this distinction was adopted, and alsope?' Lord Esher, M. R., in Suffell 
V. Bank of England, 9 Q. B. D. at p. 568.] 

Also, in the Earl of Falmouth v. Roberts, 9 M. & W. 4G9, the rule as to the 
destructive effect of altering a written instrument was stated by Parke, B., 
to apply where the obligation sought to be enforced is by reason of the instru- 
ment. That was an action by landlord against tenant for mismanagement of 
a farm, and an instrument purporting to be a written agreement for the let- 
ting of the farm with stipulations as to the mode of tillage, though exhib- 
iting an erasure and interlineation of the term of years not satisfactorily 
accounted for, was admitted as evidence of the terras upon which the defend- 
ant (who had become tenant from year to year under a contract, implied from 
the fact of occupation, to abide by all the terms of the written agreement 
applicable to a tenancy from year to year) held the premises. In that case 
the instrument given in evidence does not appear to have operated specifically 
as an agreement upon the terms of the existing tenancy ; it did not contain 
the contract which the plaiutifl' sought to enforce ; it was only part of the 
evidence to prove that such a contract existed, though not in writing; as 
such evidence, only that part of the written instrument which stated the 
mode of tillage was material, and that part had not been altered. It was like 
the printed paper in Lord Bolton v. Tomlin, 5 A. «& E. 856, 1 N. & P. 247, S. 
C, with the additional circvnnstance that it was identified by the tenant's 
signature. 

In Gould V. Coombs, 1 C. B., 543, also, a promissory note, assumed to have 
been avoided as a contract by adding the name of a maker, was yet admitted 



1152 MASTER V. MILLER. 

in evidence tojjether Avith an " I O U " for tlie amount a;iven Avliilst the note 
■was valid, to sustain a count upon an account stated. In Sutton v. Toomes, 
7 B. & C. 41(;, an altered promissory note was admitted in evidence to show 
the terms of deposit of mouej' for which it had been ji;iven. In The Arjri- 
cultural Insurance Company v. Fitzgerald, 16 Q. B. 432, the deed of settlement 
of the company was admitted in evidence to prove that the defendant was a 
shareholder, though the names of other shareholders, who signed before he 
did, had l)een envsed since his execution of it. In Hutchins v. Scott, 2 M. «& 
W. 809, likewise, an altered agreement was admitted in evidence for a col- 
lateral purpose; but some of the observations in that case nuist l)c taken 
subject to correction by Davidson \ . Cooper. 

[In Pattinson v. Luckley, L. R. 10 Ex. 330, 44 L. J. Ex. 180, the plaintitt" had 
done work for the defendant after the execution of a written buikling con- 
tract. That instrument was after execution altered in a material part by the 
defendant's aix-hitect. By the contract no work was to be paid for until 
after the architect had given a certificate. But the plaintifl", whilst admitting 
that a certificate had not been given for the Avork in respect of which he 
sued, contended that the alteration of the instrument annulled the contract 
and that lie might sue upon a quantum meruit. The court, however, entered 
the judgment for the defendant, holding that though the defendant might 
have been disentitled to sue upon the contract as such, the instrument must 
still be looked at in that action to see what were the terms of the contract. 
See also Stewart v. Aston, 8 Irish C. L. Hep. 35, Cam. Scac. ; Reynolds v. Hall, 
28 L. J. Exch. 2,57 ; Caldwell v. Parker, Ir. Rep. 3 Eq. 519, 17 W. R. 955. 

The cancellation of a deed of lease Avith the mutual consent of the lessor 
and lessee, does not defeat the right of the former to recover the rent in an 
action of debt on the demise, Lord Ward v. Lumley, 5 H. & N. 87, and in such 
action the cancelled instrument is admissible in evidence for the plaintifl' on 
the issue joined on a ])lea of non-demisit. Same v. Same, lb. 05(1; 29 L. J. 
Exch. 322.] 

In pleading an alteration the defendant [was bound before the passing of 
the Judicature Acts] to show that it was in writing, Harden v. Clifton, 1 Q. 
B. 522; that it was made after his contract was complete (as, for instance, in 
the case of the acceptor of a bill, \>y acceptance), Lanyton v. Lazarus, 5 M. 
& W. 629 ; and, either that it was made Avithout his consent, or that it was 
of such a character as to render a ncAA' stamp necessary, and made under cir- 
cumstances in Avhich a ncAV stamp could not legally be afllxed ; see Bradley v. 
Bardsley, 14 M. & W. 873, 3 DoavI. & L. 476, S. C. [and also, perhaps, that tlie 
alteration Avas made Avhen the instrument Avas in the plaintifl''s custody, 
tliough made by a sti'anger, Davidson v. Cooper, 13 M. & W. 343 ; Pattinson v. 
Liicldey, L. R. 10 Ex. 330, 44 L. J. Ex. 180. As to Avhen a defence under the 
Stamp Acts AA^as aA'ailable by plea, see Lazarus \. Coicie, 3 Q. B. 459 ; Marc v. 
Ilntiy, 23 W. R. 89; and also the last named case as to the cancellation of 
stamps on foreign bills of exchange.] 



1. General rule. — The rule of laAv in the United States is, 
that the material alteration of a written contract, made by a 
party claiming under it, or by his privity, avoids it as to him, 
as against parties not consenting thereto. The courts of the 



MASTER V. MILLER. 1153 

several states have differed widely in the application of this 
universally accepted principle to individual cases, and in this 
note an endeavor will be made to classify the conflicting au- 
thorities, with special reference to the more recent decisions. 

2. Intent. — If an alteration l)e immaterial, the tendency of 
the later decisions seems to be that the instrument is not 
avoided thereby, although there be fraudulent intent ; Moye v. 
Herndon, 30 Miss. 110 ; Robinson v. Phoenix Bank, 25 la. 430 ; 
Fuller V. Green, 64 Wis. 159 (1885). Many decisions and 
dicta, however, are to the effect that a fraudulent immaterial 
alteration vitiates a written contract ; Adams v. Frye, 3 Met. 
103; Ames v. Colburn, 11 Gray 390; Bliss v. Mclntyr, 18 
Term. 466; Keen v. Monroe, 75 Va. 424 (1881); Milbery v. 
Storer, 75 Me. 69 (1883). In Commonwealth v. Emigrant In- 
dustrial Bank, 98 Mass. 12, while admitting this general doc- 
trine, the court declined to apply it to negotiable bonds, in the 
hands of a bond fide purchaser for value, which had been pre- 
viously fraudulently altered in an immaterial part. On the 
other hand, the decisions are almost unanimously agreed that 
a material alteration, though innocently made, avoids the in- 
strument, the only question being whether as a matter of law 
the alteration be material; Taylor v. Taylor, 12 Lea (Tenn.) 
714 (1883). See, also, language of Sharswood, C. J., in Craig- 
head V. McLoney, 99 Pa. St. 211 (1881). But see infra as to 
restoration of altered notes. 

3. Immaterial alterations made by party claiming under instru- 
ment. — The old doctrine laid down in Pigot's case (11 Rep. 26) 
that an immaterial alteration avoids an instrument, if made by 
a party claiming under it, has never received much favor in 
this country ; Hatch v. Hatch, 9 Mass. 307 ; Chessman v. Whitte- 
more, 23 Pick. 231 ; NichoUs v. Johnson, 10 Conn. 192 ; Hale v. 
Russ, 1 Me. 334 ; Dunn v. Clements, 7 Jones (N. C.) L. 58 ; 
Burnham v. Ayer, 35 N. H. 351 ; Robertson v. Hay, 91 Pa. St. 
242 (1879). But in some of the earlier cases the rigorous rule 
of Pigot's case was approved as to immaterial alterations in 
deeds ; Morris's Lessee v. Vanderen, 1 Dall. 64 ; Smith v. Weld, 
2 Penn. 54 ; Malin v. Malin, 1 Wend. 625 ; Van Brunt v. Y-An 
Brunt, 3 Edw. Ch. 14. See, also, dicta in Hunt v. Adams, 6 
Mass. 519. Recently in England the old rule has been severely 
denounced, and the court refused to apply it to negotiable paper; 
Aldous V. Cornwell, L. R. 3 Q. B. 573 (1868). 



1154 MASTER V. MILLEK. 

4. Spoliation. — Another doctrine announced in Pigot's case, 
that a material alteration, made by a stranger, avoids the in- 
strument, lias never been introduced into the jurisprudence of 
this country : Rees v. Overbaugli, (3 Cow. 746 ; Piersol v. Grimes, 
30 Ind. 120 ; Lubbering v. Kohlbrechei', 22 Mo. 59G ; Gorden v. 
Robertson, 48 Wis. 493 (1879) ; Drum v. Drum, 133 Mass. 
biM'i (1882) ; Moore v. Ivers, 83 Mo. 29 (1883) ; Gondict v. 
Flower, 10(3 111. 105 (1883) ; Pry v. Pry, 109 111. 4G(3 (1884) ; 
Church V. Fowle, 142 Mass. 12 (188G). And even in England, 
if the spoliation takes place wliile the instrument is out of the 
custody of the plaintiff, it seems that his rights are not im- 
paired thereby; 2 Tajlor's Evidence, § 1820 (8th edition); Dav- 
idson V. Cooper, 11 M, & W. 778. The burden of proof is upon 
the holder to show that the alteration was made by a stranger ; 
Waring v. Smyth, 2 Barb. Ch. 119; Lee v. Alexander, 9 B. 
Mon. 25; Eckert v. Louis, 84 Ind. 99 (1882). The instrument 
must be declared upon in its original shape ; Union National 
Bank v. Roberts, 45 Wis. 373 (1878). 

Most of the recent decisions on this branch of the subject 
have been with reference to the question who is to be deemed 
a stranger, and there is some conflict among the authorities. In 
Brooks V. Allen, 62 Ind. 401 (1878), the court say that unless 
an agent is authorized by his principal to make an alteration, 
the instrument altered by him is not avoided. In Nickerson v. 
Sweet, 135 ^Nlass. 514 (1883), it was decided that an unauthor- 
ized alteration, made by a general agent, without fraudulent 
intent, and of such a nature that no injury could result there- 
from, might be reformed in equity. See, also, Van Brunt v. 
Eoff, 35 Barb. 501. In Hunt v. Gray, 35 N. J. Law 227 (1871), 
it was held that an alteration made by an agent intrusted with 
a note for the purpose of getting it discounted, was a mere 
sjioliation. In Bigelow v. Stilphen, 35 Verm. 521, an agent 
authorized to sell the plaintiff's goods and take therefor notes 
payable to the plaintiff, altered a note so received without 
authority, and it was adjudged to be the act of a stranger. To 
like effect was Laugenberger v. Kroeger, 48 Cal. 147 (1874). 

But in Eckert v. Louis, 84 Ind. 99 (1882), it was held that 
a material alteration, made by an agent of the payee before 
delivery to him, avoided the note. And to like effect was Lunt 
V. Silver, 5 Mo. App. 186 (1878). Here the agent added his 
own name as maker before delivery to the payee, and the note 



MASTER Y. MILLER. 1155 

was held to be avoided. See, also, the language of the court 
in Marcy v. Dunlap, 5 Lans. 365 (1871), and in Drum v. 
Drum, 133 Mass. 566 (18<S2). In Church v. Fowle, 142 ISlass. 
82 (1886), it was held where, at the request of both parties, a 
third person drew up a note, and without the knowledge of 
either appended his signature as a witness, the note was not 
avoided. As to the effect of alterations of bonds by officials 
while in their custody, see Harris v. Bradford, 4 Ala. 214 ; 
United States v. Hatch, 1 Paine (C. C.) 336. 

In several cases it has been held, where a material alteration 
was made in a note by a principal, after signing by a surety, 
before delivery to the paj'ee, and without his knowledge, that 
this did not avoid the note, since the alteration was not made 
by a party claiming under it, and since the note had not then 
become operative ; FuUerton v. Sturges, 4 Ohio St. 529 ; Bing- 
ham V. Reddy, 5 Ben. 266 (1871). See, also, Worrall v. Gheen, 
39 Penn. St.^388; Ogle v. Graham, 2 Penn. 132. But accord- 
ing to the great weight of authority the note is thereby 
avoided ; Goodman v. Eastman, 4 N. H. 455 ; Wood v. Steele, 
6 Wall. 80 ; Draper v. Wood, 112 Mass. 315 ; Hert v. Oehler, 
80 Ind. 83 (1881); Jones v. Bangs, 40 Ohio St. 139 (1883). 
See, however, Whitmore v. Nickerson, 125 Mass. 496 (1878). 
In a recent Minnesota case it was held that a note was not 
avoided by the principal's securing another surety without the 
consent of the first surety, the payee being ignorant of the facts 
in the case; Ward v. Hackett, 30 Minn. 150 (1883). See, also, 
Snyder v. Van Doren, 46 Wis. 602 (1879). In Wihnington & 
Weldon R. R. Co. v. Kitchin, 91 N. C. 39 (1884) it was even held, 
where the name of one surety on a bond was erased by the prin- 
cipal, that a second surety was not discharged, if the obligee 
was ignorant of the erasure. 

5. Alteration of parol contracts by consent of parties. — All con- 
tracts not under seal may be altered or changed in their terms 
by oral agreement, and alterations so made, if founded upon a 
valuable consideration, are the foundation of a new contract 
ingrafted upon the old; Prouty v. Williams, 123 Mass. 297 
(1877) : Boston v. Benson, 12 Cush. 61 ; Pelton v. Prescott, 13 
la. 567 (as to a new consideration). 

A note altered by consent upon a condition subsequent 
remains valid, though the condition never be performed ; Stod- 
dard V. Penniman, 113 Mass. 386. An instrument remains 



1156 MASTKi; V. 3I1LLKU. 

valid against parties who consent to an alteration, though 
avoided as to those not consenting : AVaring v. Wilianis, 8 Pick. 
322 ; Smith v. Weld, 2 Penn. 04 f Wills v. Wilson, 3 Oreg. 308 
(1871); Craighead v. AIcLoney, 99 Pa. St. 211 (1881). See, 
also, Myers ik Nell, 84 Penn. St. 369 (1877). If one maker 
voluntarily pays an altered note, he cannot recover of a non- 
assenting maker; Davis v. Bauer, 41 Ohio St. 257 (1884). 
The plaintiff is liable for costs to parties not consenting to 
the alteration, though he recover judgment against those who 
have consented ; Broughton v. Fuller, 9 Verm. 373 ; Wills v. 
Wilson, 3 Oreg. 308. Consent to an alteration may be implied, 
both from the acts of the party and from a custom ; Bowers v. 
.JcxA-cll 2 X. H. 548 ; Clute v. Small, 17 Wend. 238 ; Wood worth 
V. Hank of America, 19 Johns. 391. In Taddikin v. ('antrell, 69 
N. Y. 597 (1877), it was held that the payee of a note, given 
by a married woman, had no implied authority to add words 
which would bind her separate estate, but that su(;h an author- 
ity might be implied, if at the time of signing the note, she 
expressed the desire that the note might be made legal and 
binding. See, also. Reeves v. Pierson, 23 Hun 185 (1880). 

An unauthorized alteration may be ratilied by subsequent 
acts of the party to be charged. Thus in Prouty v. Wilson, 
cited supra, it was decided, where a note was altered by a 
payee by the addition of the words " at eight per cent.," with 
the consent of the maker, in consideration of forbearance to 
sue, that evidence of the payment of the interest at eight per 
cent, by a surety, would w^arrant a jury in finding that he had 
ratified the alteration. In a very recent Illinois case. Canon v. 
Grigsby, 116 111. 151 (1886), the court held, where a joint 
note was given for the purchase of goods, and one of the 
makers, without the consent of the other, altered it in a mate- 
rial part, at the request of the payee, that a failure to return 
the goods, after knowledge of the alteration, within a reasonable 
time, would constitute a ratification on the part of the other 
maker. See, also, Grimsted v. Briggs, 4 la. 557 ; King v. Hunt, 13 
Mo. 97 ; Humphreys v. Guillow, 13 N. H. 385 ; Gardiner v. Har- 
back, 21 111. 129 ; State Bank v. Rising, 4 Hun 793. A renewal 
note given for one that had been altered would not constitute 
a ratification, unless given with knowledge of the fact ; Fraker 
V. Cullum, 21 Kans. 555 (1879). Whether the alteration was 
made by consent, or was subsequently ratified, is a question of 



MASTER V. MILLER. 1157 

fact for tlie jury, and the burden of proof is on the plaintiff ; 
Stahl V. Berger, 10 S. & R. 170; Barrington v. Bank of Wash- 
ington, 14 S. & R. 405; Overton v. Mathews, 35 Ark. 147 
(1879). 

6. Filling up blanks in specialties. — In jNIassachusetts and a 
few other states tire law is that material blanks in an instrument 
under seal, cannot be filled up, after signing and sealing, by an 
agent acting under a parol authority, except in the presence of 
the grantor or obligor, without a redelivery ; Burns v. Lynde, 6 
Allen 305 ; Basford v. Pearson, 9 Allen 387 ; Skinner v. Brigham, 
126 Mass. 132 (1879) ; Upton v. Archer, 41 Cal. 85 ; Preston 
V. Hull, 23 Gratt. 605 (1873) ; Arguello v. Bours, 67 Cal. 447 
(1885) ; Adamson v. Hartman, 40 Ark. 58 (1882) ; Viser v. 
Rice, 33 Tex. 139 (1870). See, also, State v. Boring, 15 Ohio 
507 ; Evarts v. Steger, 6 Oreg. 55 ; Davenport v. Sleight, 2 
Dev. & B. 381 ; Bragg v. Fessenden, 11 111. 544 ; Cummins v. 
Cassilly, 5 B. Lion. 74 ; Williams v. Crutcher, 5 How. (Miss.) 
71; Lockwood v. Bassett, 49 Mich. 546 (1883). A deed of 
conveyance is operative as to all parties who have propeily exe- 
cuted it, though invalid as to others ; Furnass v. Durgin, 119 
Mass. 501 (1876.) In two very recent Massachusetts cases, 
the doctrine of Burns v. Lynde has been modified, where the 
grantee or obligee is ignorant of the defective filling up of the 
blanks; Phelps v. Sullivan, 140 Mass. 36 (1885); White v. 
Duggan, id. 18. The former case was in regard to the assign- 
ment of a mortgage. " When a grantor signs and seals a deed, 
leaving unfilled blanks, and gives it to an agent with authority 
to fill the blanks and deliver it, if the agent fills the blanks as 
■authorized, and delivers it to an innocent grantee without 
knowledge, we think the grantee is estopped to deny that the 
deed as delivered was his deed." Morton, C. J., in Phelps v. 
Sullivan. Pence v. Arbuckle, 22 Minn. 417 (1876) accord; 
Preston v. Hull, 23 Gratt. 605, semble, contra. White v. Duggan 
goes much farther, and decides that where the penal sum of a 
probate bond is filled in by the principal in a greater amount 
than the surety, who executed the bond in blank, has author- 
ized, the surety is estopped, where the obligee is ignorant of the 
fact, to deny not only the validity of the execution of the bond, 
but also the authority of the agent. The language of the court, 
however, is very guarded, and except in the case of official 
bonds, it seems that they would hardly carry the doctrine of 



1158 MASTER V. MILLER. 

estoppel in pais so far. In Phelps v. Sullivan this point is ex- 
pressl}- left undecided. But in Owen v. Perry, 25 la. 412, and 
Field V. Stagg, 52 Mo. 534 (1873), it was decided that a grantor 
who executed a deed of conveyance containing material blanks, 
was estopj^ed as to an innocent grantee, where the agent had 
deviated from his authority in filling up the blanks. See, how- 
ever, Hammerslough v. Cheatham, 84 Mo. 13 (1884). 

In the other states the strict technical rule is repudiated, 
and the law^ is that an agent under a parol authority may, after 
execution by the principal, fill up material blanks in a deed ; 
Duncan v. Hodges, 4 McCord (S. C.) 137 ; Wooly v. Constant, 4 
Johns. 54 ; Kerwin's case, 8 Cow. 118 ; Wily v. Moore, 17 S. 
& R. 438 ; White v. Verm. «& Mass. Railroad, 21 How. 575 ; 
South Berwick v. Huntress, 53 Me. 89 ; Van Etta ?>. Evenson, 
28 Wis. 33 (1871); Swarz v. Ballon, 47 Iowa 188 (1877); 
Garland v. Wills, 15 Neb. 298 (1883) ; Allen v. Withrow, 110 
U. S. 119 (1884.) 

Many courts, however, have been inclined to narrow the 
application of this doctrine as much as possible. In Allen 
V. Withrow, snpra, j\Ir. Justice Field, while recognizing the 
general principle, says : " One condition essential to make a 
deed thus executed in blank operate as a conveyance of the 
property described in it, is that the blank be filled before, or 
at the time of the delivery of the deed to the grantee named." 
Chauncey v. Arnold, 24 N. Y. 330 ; Whittaker v. Miller, 83 111. 
381 (1876), accord. In the former case, however, two of the 
judges thought that a mortgagee, if authorized by a previous 
parol authority, might fill up a material blank in a mortgage, 
even after delivery, and such was the decision in Vleit v. Camp, 
13 Wis. 198, in reference to a warrant of attorney. See, also, 
Devin v. Himer, 29 Iowa 297 (1870.) 

In Simms v. Hervey, 19 Iowa 273, Dillon, C. J., thought that 
this doctrine should be confined to bonds, but this distinction is 
not borne out by the authorities. In this case it was decided, 
however, that where none of the blanks in a printed form of a 
deed of conveyance are filled up before execution, the instru- 
ment does not become operative by the subsequent filling up 
of the blanks by an agent under a parol authority ; and it is 
believed that it has never been decided that such a deed of 
conveyance would be operative. It seems, however, difficult 
on principle to distinguish between filling up all the blanks in 



MASTER Y. MILLER. 1159 

a printed form and the filling up of one material blank. In 
most of the cases in regard to deeds of conveyance, the blank 
has been for the name of the grantee ; and it is held that this 
blank may be filled up by an agent under a parol authority 
with the name of any purchaser he may be able to secure. In 
Schintz V. McManamy, 33 Wis. 299 (1873), it was held that the 
deed would be invalid, when the agent was authorized to fill 
up the blank with the name of a specified grantee, but wrote 
in the name of a different grantee. But see cases cited supra 
as to estoppel. In some of the states it has been decided that 
an implied authority to fill up blanks is sufficient; South 
Berwick v. Huntress, suijra ; Drury v. Foster, 2 Wall. 24 ; 
Clark V. Allen, 34 Iowa 190. But see Chauncey v. Arnold, 
supra; United States v. Xelson, 2 Brock. (C. C.) 64; Smith v. 
Fellows, 9 Jones & Sp. (N. Y.) 36 (1876), contra. 

7. Alteration of contracts under seal by consent of parties. — 
In Speake v. United States, 9 Cranch 28, it was decided that 
an official bond, altered in a material part by the obligee after 
delivery to him, with the oral consent of the obligor, was bind- 
ing in its altered form, Livingston J., dissenting. See, also, 
Barrington v. Bank of Washington, 14 S. & R. 405 ; Camden 
Bank v. Hall, 2 Green (X. J.) 583. In Sans v. The People, 
8 111. 327, it was held that a previous assent was necessary to 
make the bond binding in its altered form. In Drury v. Foster, 
2 Wall. 24, Nelson, J., says: "-Although it was at one time 
doubted whether a parol authority was adequate to atithorize 
an alteration or adthtion to a sealed instrument, the better 
opmion at this date is that the power is sufficient." In Howe 
V. Peabody, 2 Gray 556, a probate bond altered by parol 
authoiity after delivery, was adjudged bincUng in its new form, 
on the authority of Speake v. United States. In this case, how- 
ever, the evidence showed a redelivery. See, also, opinion of 
Parsons, C. J., in Smith v. Crooker, 5 Mass. 538. And this 
seems to have been accepted as law in respect to alterations in 
bonds, in all the states where the question has arisen. 

But the doctrine that contracts under seal ma}- be altered or 
changed after they have become operative b}" delivery, by the 
parol authority of the obligor, without a redelivery and in his 
absence, has never been extended to deeds of conveyance, and 
the statutes of the several states in regard to the formalities 
necessary for the transfer of land, would probably be considered 



IIGO M.VSTEK V. MLLLER. 

an insuperable obstacle. Tluis in Collins v. Collins, 51 Miss. 
311, it was held, Avliere a deed of trust given by way of mortgage 
was altered after delivery and recording, so as to cover a new 
loan, that the alteration was inoperative without a redelivery, 
although the change was entered upon the record. But in Bas- 
sett V. Bassett, 55 ]Me. 127, an unrecorded deed of an undivided 
half of a piece of land, was held to convey the Avhole estate, 
when the grantor, long after the first deliver}', struck out the 
words *•' one undivided half of,"' and redelivered the instrument. 
See also Prettyman v. Goodrich, 23 111. 330 ; Cary v. O'Hara, 
Rowe (Irish) 51 ; Keiley v. Ahearne, Batty (Irish) 18 (n.). 
Even in the case of bonds it is hard to understand how on 
common law principles they can be changed or altered, without 
the same formalities which were necessary to their inception. 
" After perfecting a deed m one form, no material alteration 
should be set up, unaccompanied by a new delivery, and a note 
or memorandum thereof. . . . The terms in Avhich the deed 
is originally executed should alone be binding until alterations 
are introduced into it by the same formalities." Livingston, J., 
in dissenting opinion, supra. The case of Hudson v. Revett, 5 
Ring. 308, often cited in support of the doctrine of Speake v. 
United States, had reference to the filling up of material blanks 
in a bond after execution, and as the obligor was present when 
the blanks were filled up, there was evidence of a redelivery. 
Some of the dicta of Best, C. J., however, went much farther 
than the decision required, and are difficult to reconcile with 
the reasoning of Baron Parke, in Hibble white v. M'^NIorine, 6 
M. & W. 200, which finally established in England the rule 
that material blanks in specialties could not be filled up hy 
parol authority ; and in this country it does not seem probable 
that those courts at least which have adopted the doctrine of 
this latter case, would be inclined to hold that specialties can 
be changed or altered in their terms by parol authority, with- 
out a redelivery. 

8. Effect of alteration. («) As to deeds of conveyance. — It is 
well settled both in England and in this country, that if a deed 
of conveyance is materially altered by a party claiming under 
it, its j)ast operation is not affected, and titles vested by it are 
not disturbed ; Lewis v. Payn, 8 Cow. 71 ; Chessman v. Whit- 
temore, 23 Pick. 231 ; Herrick v. Malin, 22 Wend. 388 ; AVal- 
lace V. Armstead, 44 Penn. St. 492 ; Woods v. Hilderbrand, 



MASTER V. MILLER, 1161 

46 Mo. 284 ; Wheeler v. Single, 62 Wis. 380 (1885). See, also, 
Burnett v. McCluey, 78 Mo. 676 (1883). In Williams v. Van- 
Tuyle, 2 Ohio St. 336, it was held, where a bond given by a 
trustee by way of a declaration of trust, was altered by the 
cestui que trust, the equitable estate was not divested thereby. 
The altered deed may be introduced in evidence to show the 
premises conveyed by it ; Hatch v. Hatch, 9 Mass. 307 ; Bur- 
nett V. McCluey, cited supra. 

In those states where a mortgage is considered an absolute 
conveyance of the title upon a condition subsequent no altera- 
tion will defeat a suit for foreclosure ; Kendall v. Kendall, 12 
Allen 92. But in those states where a mortgage is treated as a 
mere chose in action or incident to the note, any material altera- 
tion of the mortgage or of the mortgage note, will be a good 
defence to a foreclosure suit ; and the assignee of the mortgagee 
is in no better position ; Waring v. Smyth, 2 Barb. Ch. 119 ; 
Marcy v. Dunlap, 5 Lans. 365 (1872) ; Mersman v. Werges, 
1 McCrary (C. C.) 528 (1880) ; Toomer v. Rutland, 57 Ala. 
379 ; Bowman v. INIitchell, 79 Ind. 84 (1881) ; Tate v. Fletcher, 
77 Ind. 102 (1881) ; Pereau v. Frederick, 17 Neb. 117 (1885) ; 
Johnson v. Moor, 33 Kan. 90 (1885) ; Osborne v. Andrews, S. C. 
Kan. Oct. 8, 1887. But it has been decided by several courts 
that a mortgage may be foreclosed, when the note has been 
altered without fraudulent intent ; Vogle v,- Ripper, 34 111. 100 ; 
Clough V. Seay, 49 Iowa 111 (1878). Bowman v. Mitchell, 
cited supra, contra. And in Plyler v. Elliott, 19 S. C. 257 
(1882), it was held that the mortgage might be enforced, 
although the note had been fraudulently altered. When a 
lessee for a term of years materially alters his lease, it has been 
held that the lease is avoided, and that the lessor may enter at 
once ; Bliss v. Mclntyre, 18 Verm. 466. See also Burguin v. 
Bishop, 91 Pa. St. 336 (1879). 

(?>) Right to sue on original consideration. — When negotiable 
paper, which has been altered by a party claiming under it, is 
itself the sole ground of action, not having been given in satis- 
faction of a precedent debt or claim, it seems clear on principle 
that on a material alteration of the paper, all remedy whatso- 
ever is lost. But it is very generally held, where there is a 
cause of action independent of the note, which is only tempora- 
rily merged thereby, that this is not forfeited, if the alteration 
in the nesrotiable instrument Avas made without fraudulent in- 



1162 MASTEll V. MILLEK. 

tent; Clute v. Small, 17 Weiul. 242; Booth v. PoAvers, 56 N. Y. 
22 (1874) ; Morrison i\ Welty, 18 :Md. 169; Warren v. Layton, 
3 Harr. 404 ; State Savinga Bank v. Shaffer, 9 Neb. 1 (1879) ; 
Sullivan v. Ruddisill, 63 Iowa 158 (1888) ; Wallace v. Wallace, 
8 111. App. 69 (1880); Matteson v. Ellsworth, 33 Wis. 488 
(1873) ; Meyer v, Huneke, 55 N. Y. 419 (1874). But the sui-- 
render of the altered instrument is a condition precedent to an 
action on the original consideration, and the note cannot itself 
be put in evidence in such an action. See cases cited supra. 
The burden of proof is upon the holder to show that the altera- 
tion was innocently made ; Ilobinson v. Reed, 46 Iowa 219 
(1877); Black v. Bowman, 15 111. App. 166 (1884). But see 
Vogle V. Ripper, 34 111. 100. In Morrison r. Higgins, 53 Iowa 
76, it AA^as held that an action would lie for goods sold and 
delivered, when a note given for the price by the buyer had 
been imiocently altered. The only cause of action originally 
was upon the note, and it is hard to understand how even an 
innocent alteration can confer a new right; and this case is 
opposed to the great weight of authority. But see Vogle v. 
Ripper, supra. In those states where it is held that negotiable 
paper given on account of a precedent claim, is presumptively 
a satisfaction of that claim, it would seem that this presumption 
must be rebutted, before the original consideration can be sued 
upon ; and it is believed that in Massachusetts and the other 
states where the above doctrine is law, it has never been ex- 
pressly decided that the original consideration can be resorted 
to in any case. In fact there are some strong dida to the con- 
trary; Martendale v. FoUet, 1 N. H. 99; Smith v. Mace, 44 
N. H. 553 ; Bigelow v. Stilphen, 35 Verm. 525 ; White v. Hass, 
32 Ala. 430. See, also, Wheelock v. Freeman, 13 Pick. 165. 

((?) Right of holder to restore note to its original form. — In 
Nevins v. Le Grand, 15 Mass. 436, where a special indorsement 
was innocently erased in order that the indorsee might transfer 
the note by delivery without indorsing it, the court allowed the 
instrument to be restored to its original form, and held that a 
suit might be maintained upon the reformed instrument against 
the maker. " Justice requires and the law allows it to be 
done." Parsons, C. J. In Horst v. Wagner, 43 Iowa 373 
(1876), it was held where a payee, ignorant of the proper 
method of transferring the instrument, substituted for his own 
name the name of the transferee, and subsequently before 



ZVIASTEE V. MILLER. 1163 

delivery restored it to its original form and then indorsed it, 
that the indorsee could maintain an action upon it against the 
maker. These decisions may, perhaps, be sustained on the 
ground that the alteration was with reference to the transfer 
of the title, and in no wise affected the rights of the maker. 
But see infra as to material alterations affecting the operation 
of negotiable paper. In Whitmore v. Xickerson, 125 Mass. 496 
(1878), where a maker made a material alteration in a note 
indorsed for his accommodation, but restored it to its original 
form before delivery to the pajee, it was held that the alteration 
did not affect the liability of the indorser, since when the 
note first became ojierative it was in the same state as when 
indorsed. See, also, Xickerson v. Sweet, 135 Mass. ol-i (1883), 
which held that a note materially altered by an unauthorized 
agent might be refoinned in equity. 

Kounz V. Kennedy, 63 Penn. St. 187, and Shepard v. Whet- 
stone, 51 Iowa 457 (1879), go much further than the cases 
above cited, and hold that where the words " with interest " 
were added to the face of the note b}' a holder without fraudu- 
lent intent, an action may be maintained thereon on its restora- 
tion to its original shaj)e. Sharswood, J., dissented from the 
decision in Kounz v. Kennedy, and it has been criticised in 
sevei-al later decisions of the same cotu-t. But see Lynch v. 
Hicks, S. C. Ga. Oct. 15th, 1887. 

9. Materiality of alteration. — An alteration which changes 
the terms of a written contract so as to vary its legal effect 
and operation is material ; and the mstrument is none the less 
avoided because the effect of the alteration is beneficial to the 
party to be charged. The destruction of the identity of the 
contract in its legal effect vitiates the instrument. See Schwarz 
V. Oppold, 74 X. Y. 307 (1878); Osgood v. Stevenson, 143 
Mass. 399 (1886), which was a case of the material alteration 
of a written contract for the purchase of a book. 

(a) Material alterations. — -(1) Date and time. — The date and 
time of performance of a written contract are essential jnirts of 
it; hence any alteration in this respect avoids the instrument; 
Master v. Miller, principal case : Wheelock v. Freeman, 13 
Pick. 165 ; Miller v. Gilleland, 19 Penn. St. 119 ; Lisle v. Rogers, 
18 B. Mon. 528; Britton v. Dierker, 46 Mo. 592; Brown v. 
Straw, 6 Neb. 536 (1876); Taylor v. Taylor, 12 Lea (Tenn.) 
714 (1883). See, also, Lemay\'. Johnson, 35 Ark. 225 (1879). 



11Q4: PIASTER V. MILLER. 

And the alteration is fatal even tliough the time of performance 
be extended thereby ; Davis v. Jenny, 1 Met. 221 ; Wood v. 
Steele, 6 WaU. 80 ; Wyman v. Yeomans, 84 111. 403 (1877) ; 
Rogers v. Yosburgh, 87 N. Y. 228 (1881). An alteration in 
the date of a check avoids it; Vance v. Lowther, 1 Ex. D. 
176 (1876); Crawford v. West Side Bank, 100 N. Y. 50 
(1885). So an alteration in the date of a contract for the sale 
of goods was held material in Getty v. Shearer, 20 Penn. St. 12. 
In Stephen v. Graham, 7 S. & R. 505, it was decided \\hcrc the 
date of a note was altered to the day before, the note was 
avoided, although the note would otherwise have fallen due on 
Sunday, so that the effect would have been the same. But see 
Ames V. Colburn, 11 Gray 390. It was decided that an altera- 
tion of the date of an indorsement wa« immaterial in Griffith v. 
Cox, 1 Tenn. 210; but qucere. See, also, on the subject of altera- 
tions in the date of a contract, Hamilton v. Wood, 70 Ind. 306 
(1880), and (iill v. Hopkins, 19 111. App. 74 (1886). 

(2) Place of performance. — Adding, erasing, or changing the 
place of payment, is a material alteration of a bill or note ; and 
the law in this regard is not affected by the statute provisions 
existing in many states as to general acceptances ; Nazro v. 
Fuller, 24 Wend. 374; Woodworth v. Bank of America, 19 
John. 391; Hill v. Cooley, 46 Penn. St. 259; Whitesides v. 
Northern Bank, 10 Bush 501 (1874) ; Toomer v. Rutland, 
57 Ala. 379 (1877); Townsend v. Star Wagon Co., 10 Neb. 
615 (1880) ; Cronkhite v. Nebker, 81 Ind. 319 (1882) ; Charl- 
ton V. Reed, 01 Iowa 166 (1883). As to drawee's right to 
write in a place of payment on accepting the bill, without 
discharging the drawer, see Troy City Bank v. Lauman, 19 
N. Y. 4hO ; Niagara District Bank v. Fairman, 31 Barb. 404. 
It was held in Mahairoe Bank v. Douglass, 31 Conn. 170, that 
an alteration of the place of date was material. 

(3) Alterations in the principal or interest. — Any alteration 
in the principal of a written contract for the payment of money, 
avoids it, wdiether it be increased by the alteration, Goodman 
V. Eastman, 4 N. H. 455 ; Bank of Commerce v. Union Bank, 3 
Corns. 230 ; iEtna Bank v. Winchester, 43 Conn. 391 (1875) ; 
Batchelder v. White, 80 Va. 103 (1886); Osborne v. Van 
Houten, 45 jNIich. 444 (1881) (as to a guaranty); Jolmson v. 
Moore, 33 Kans. 90 (1885) (as to the consideration of a mort-, 
gage) ; or lessened, Hewins v. Cargill, 67 Me. 554 (1877) ; 



MASTER T. MILLER. 1165 

State Savings Bank v. Shaffer, 9 Xeb. 1 (1879). In an early 
case in Pennsylvania it was held where the amount of a 
note was lessened by the principal, after execution by the 
surety, and before delivery to the payee, that the note was not 
avoided ; but as the identity of the contract is now considered 
the test of materiality, this decision seems clearly to be wrong ; 
Ogle V. Graham, 2 Penn. 132. In Doane v. Eldridge, 16 Gray, 
254, a collector's bond was held to be avoided by an alteration 
of the penal sum to a smaller amount. 

So any change in the rate of interest, or the addition of the 
words " with interest," or similar words, to a non-interest bear- 
ing note, avoids the instrument ; Fa}" v. Smith, 1 Allen 477 ; 
Draper v. Wood, 112 Mass. 315 ; Waterman v. Vose, 43 Me. 
504 ; Lee v. Stairbird, 55 Me. 491 ; McGrath v. Clark, 56 N. Y. 
34 (1874) ; Schwarz v. Oppold, 74 N. Y. 307 (1878) ; Lamar 
V. Brown, 56 Ala. 157 (1876) ; Neff v. Horner, 63 Penn. St. 
327 ; Craighead v. McLoney, 99 Pa. St. 211 (1881) ; Schnewind 
V. Racket, 54 Ind. 248 (1876) ; Brooks v. Allen, 62 Ind. 401 
(1878); Bowman v. Mitchell, 79 Ind. 84 (1881); Jones v. 
Bangs, 40 Ohio St. 139 (1883) ; Thompson v. Massie, 41 Ohio 
St. 307 (1884) ; Ivory v. Michael, 33 Mo. 400 ; Long v. Mason, 
84 X. C. 15 (1881) (of a bond) ; Kennedy v. Moor, 17 S. C. 
464 (1882) ; Canon v. Grigsby, 116 111. 151 (1886). In Whit- 
mer v. Frye, 10 Mo. 348, a bond was held to be avoided by an 
alteration wliich lessened the rate of interest. So where a note 
bore interest "• at one per cent." and " one " was erased ; Moore 
V. Hutchinson, 69 Mo. 429 (1879). So where the words "after 
maturity " were added to the interest clause ; Coburn v. Webb, 
56 Ind. 96 (1877). See, also, Patterson v. ]McXeely, 16 Ohio 
St. 348, and Leonard v. Phillips, 39 :\Iich. 182. In Woodward 
V. Anderson, 63 Iowa 503 (1884). it was decided that the altera- 
tion of the rate of interest in a certifieate of deposit avoided it. 

(4) Alterations in the medium of payment. — The insertion of 
words fixing the medium of payment, or the erasure of such 
words, is a material alteration ; Darwin v. Rippey, 63 X. C. 318 ; 
Laugenberger v. Kroeger, 48 Cal. 135 ; Bogarth v. Breedlove, 39 
Tex. 561 ; Wills v. Wilson, 3 Oreg. 308. But it was held in 
Bridges v. Winters, 42 Miss. 135, that the insertion of the words 
" in gold " after the amount in a note, was not a material alter- 
ation, if gold was the only legal tender. See, also, Hanson v. 
Crawley, 41 Ga. 303. In the Supreme Cotirt of the Ignited 



11G6 MASTER V. MILLER. 

States, it was decided, where an order was made payable "in 
drafts to the order of H. G. A.," and these words were erased, 
and '' in current funds " inserted in their pLice, that the instru- 
ment was avoided; Angle v. N. W. &c. Insurance Co., 92 U. S. 
330 (1875). See also :\iartindale v. Follet, 1 N. H. 95 ; Schwalm 
V. Mclntyre, 17 Wis. 232. 

(5) Alterations in respect of parties. — Any chanoj'e in the 
parties to a contract, either as to their personality, number, or 
their legal relations to one another, is a material alteration. 
As to alterations of this description avoiding negotiable paper, 
see Haskell v. Champion, 30 jNIo. 136 ; JNIcCramer v. Thompson, 
21 Iowa 244 ; Davis v. Bauer, 41 Ohio St. 257 (1884) ; Morrison 
V. Garth, 78 :\Io. 484 (1883) ; Robbinson v. Berryman, 22 Mo. 
App. 509 (1886). As to bonds, see Smith v. Weld, 2 Penn. 54 ; 
State V. Polke, 7 Blackf. 27 ; Dolbin v. Norton, 17 Me. 307 ; 
Smith V. United States, 2 Wall. 219 ; United States v. O'Neill, 
19 Fed. Rep. 56 (1884). But see Hale v. Russ, 1 Me. 334; 
Wilmington & Weldon R. R. Co. v. Kitchin, 91 N. C. 39 (1884). 
As to contracts of guaranty see Wilde v. Armsby, 6 Cush. 314. 
Striking out tlie word " surety " appended to the name of one 
of two joint makers has been held to be a material alteration. 
Laul) V. Paine, 46 Iowa 550 (1877). But where the holder 
strikes out the name of the surety with his consent, it has been 
held that the principal is not discharged ; Huntingdon v. Finch, 
3 Ohio St. 445. Changing a joint note to a joint and several 
note, or a joint and several note to a joint note, avoids it; 
Humphreys v. Guillow, 13 N. H. 385; Draper v. Wood, 112 
Mass. 315; Eckert v. Louis, 84 Ind. 99 (1882). And other 
written contracts are avoided in like manner ; Waring v. Wil- 
liams, 8 Pick. 322; Kline v. Raymond, 70 Ind. 271 (1880). 
But where by statute a joint note has the effect of a joint and 
several note, such an alteration is immaterial ; Miller v. Reed, 
27 Penn. St. 244. Adding or erasing the word "junior" is a 
material alteration ; Broughton v. Fuller, 9 Verm. 373. So 
adding the word " collector " to a payee's name ; York v. Janes, 
43 N. J. L. 332 (1881). But see Manufacturers' Bank v. 
Follett, 11 R. I. 92 (1876), where the word " agent," appended 
to a maker's name, was treated as merely descriptio personce^ and 
held not to avoid the note. 

Effect of the addition of another maker. — As to the addition 
of a new maker or surety, the cases are conflicting. The 



MASTER V. MILLER. 1167 

addition of a new surety by the principal, without the consent 
of the first surety, before delivery to the payee, is generally held 
to be a material alteration. When the instrument first becomes 
operative, it is different in its legal effect from that signed by 
the first surety ; Whitmore v. Nickerson, 125 Mass. 496 (1878) ; 
Hall V. McHenry, 19 Iowa 521 ; Haskell v. Champion, 30 Mo. 
136. In Ward v. Hackett, 30 Minn. 150 (1883), it was held, 
where the payee was ignorant of the addition of the second 
surety, that the note was not avoided thereby. See, also, Snj-der 
V. Van Doren, 46 Wis. 602 (1879). If a new surety is pro- 
cured by the jDayee or a subsequent holder after delivery by the 
maker, it is held in ^Massachusetts that tliis constitutes a 
collateral and independent contract, and that the note is not 
avoided thereby; Stone v. White, 8 Gray 589. Monson v. 
Drakely, 40 Conn. 552 (1873) ; Mersmau v. Werges, 112 U. S. 
139 (1884), accord. In McCaughey v. Smith, 27 N. Y. 39, and 
Brownell v. Winnie, 29 X. Y. 400, it was held that the addition 
of a new maker did not avoid the note, and that his liability 
was that of a joint and several promisor. Muir v. Demaree, 
12 Wend. 468 ; Patridge v. Colby, 19 Barb. 248 ; Card i-. Miller, 
1 Hun 504 ; Deniek v. Hubbard, 27 Hun 347 (1882) ; ^Miller 
V. Finley, 26 Mich. 249 (1872), accord. In the following cases, 
however, such an alteration was held to avoid the note ; Chap- 
pell V. Spencer, 23 Barb. 534 ; McVean v. Scott, 46 Barb. 379 
(overruled in Deniek v. Hubbard, supra} : Hamilton v. Hooper, 
46 Iowa 515 ; Lunt v. Silver, 5 Mo. App. 186 (1878) ; Sullivan 
V. Ruddisin, 63 Iowa 158 (1883); Nicholson v. Combs, 90 
Ind. 515 (1883). The new surety-, howcA-er, will be bound ; 
Hamilton v. Hooper, supra. As to the addition of a new surety 
in a bond avoiding the instrument, see Harper v. The State, 
7 Blackf. 61 ; 0"Xeal v. Long, 4 Cranch 60. 

(6) Alterations affecting the operation. — A parol contract is 
avoided by the appending of a seal ; ^Morrison v. Welt}-, 18 Md. 
169 ; United States v. Linn, 1 How. 104 ; Yaughan v. Fowler, 
14 S. C. 355 (1880). See, also, Fullerton v. Sturges, 4 Oliio St. 
529. And it would seem that a specialty must be avoided by 
detaching a seal, and it was so decided in Piercy v. Piercy, 5 
W. Va. 199. See, also, Cutts v. United States, 1 Gall. (C C.) 
69 ; United States v. Spaulding, 2 Mas. (C. C.) 478. Where a 
seal is appended to the signature of one of several joint prom- 
isors, the instrument is avoided as to all ; Bierv v. Haines, 5 



1168 MASTER V. ]\IILLER. 

Whart. 5G3. As to the effect of erasing a scroll, see Keen v. 
Monroe, 75 \^. 424 (1881). 

The addition of witnesses. — As to the effect of adding to 
written contracts the names of parties purporting to be wit- 
nesses thereto, it is held, where if attested they are affected by 
no statute of limitations, that the alteration is innntitcrial, and 
does not avoid the instrument unless made with fraudulent 
intent ; Adams v. Frye, 3 jNIet. 103 (as to bonds) ; Blackwell v. 
Lane, 4 Dev. & B. (N. C.) L. 113. But in Fuller v. Green, 
64 Wis. 159 (1885), as to notes (there being no statute of 
limitations in regard to attested notes), it was decided that 
a note was not avoided by such an alteration, though made with 
fraudulent intent. But see INIarshall v. Gougler, 10 S. & R. 164. 
Where there is a statute of limitations concerning attested 
notes, such an alteration avoids the instrument ; Homer v. 
Wallis, 11 Mass. 309; Eddy v. P,ond, 19 Me. 461; and it would 
seem that the question of intent would be irrelevant ; but it has 
been decided, tliat if the attesting witness was actually present 
when the note Avas executed, that such an alteration does not 
avoid it ; Rollins v. Bartlett, 20 Me. 319 ; Thornton v. Apple- 
ton, 29 Me. 298 ; Milberry v. Storer, 75 Me. 09 (1883). See, 
also, Smith v. Dunham, 8 Pick. 256. In Ford v. Ford, 17 Pick. 
418, it was held that the addition of a second witness to an 
attested note did not avoid it. See, also, Willard v. Clark, 
7 Met. 435 ; Church v. Fowle, 142 Mass. 82 (1886). In Sharpe 
V. Bagwell, 1 Dev. Eq. 115, where a payee cut off" the name of 
an attesting witness, it was held that the note was avoided. 

It has been held, where words are added to the general con- 
sideration clause in a note, describing the special consideration, 
that the note is avoided ; Knill v. Williams, 10 East 413 ; Low 
V. Argrave, 30 Ga. 129. Adding words of negotiability to a 
non-negotiable note avoids it ; Brute v. Westcott, 3 Barb. 274 ; 
Johnson v. Bank of LTnited States, 2 B. Mon. 310 ; State v. 
Stratton, 27 Iowa 424. See, also, Hollis v. Vandergrift, 5 Del. 
521 ; McCoy v. LockAvood, 71 Ind. 319 (1880). In Byrom v. 
Thompson, 11 Ad. & El. 31, it Avas held that such words might 
be inserted where they had been omitted by a mutual mistake. 
The substitution of the words " or bearer " for the Avords " or 
order " in a note is a material alteration ; Belknap v. National 
Bank of America, 100 Mass. 376 ; Union National Bank v. 
Roberts, 45 Wis. 373 ; Booth v. PoAvers, 56 N. Y. 22 (1874) ; 



MASTER Y. MILLER. 1169 

Needles v. Shaffer. 60 Io\va 65 (1882). But in Weaver v. 
Bromley (IMieh.) 31 N. W. Rep. 839 (1887), it ^yas adjudged 
that writing in the words " or bearer " without the erasure of 
the words " or order " did not avoid the note. In Flint v. 
Craig, 59 Barb. 330, it was decided that it was not a material 
alteration to change a note payable to bearer to one payable to 
order. In Stoddard v. Penniman, 108 Mass. 366, where a note 
payable to the maker's order, and indorsed in blank for his 
accommodation, was altered by the maker so as to be payable 
to the plaintiff who advanced money upon it, the court decided 
that the indorser was discharged, since his liability was thereby 
changed from that of an indorser to that of an original prom- 
isor. See, also, Davis v. Bauer, 41 Ohio St. 257 (1884). In 
Grimes v. Piersol, 25 Ind. 246, where an indorsee, without the 
consent of the indorser, substituted for his own name in the full 
indorsement the name of a transferee, it was held that the 
indorser was not liable to such transferee. But see supra as to 
the restoration of altered instruments. See, also. Mechanics' 
Bank V. Valley Packing Co., 70 Mo. 643 (1879). Filling up a 
blank indorsement contrary to the tenor of the bill is a mate- 
rial alteration; Hirshfeld v. Smith, L. R. 1 C. P. 340. So 
adding a waiver of demand and notice to an indorsement ; 
Farmer v. Rand, 14 Me. 225. But qucere whether the note 
would be avoided as to the maker. So even adding the words 
"" without recourse " to an indorsement discharges the indorser ; 
Luth V. Stewart, 6 Victorian Rep. 383. The insertion or oblit- 
eration of a material memorandum, whether written in the body 
of the instrument, or in the margin, or indorsed upon it, is a 
material alteration ; Warrington v. Early, 2 El. & B. 763 ; 
Gerrish v. Glines, 56 N. H. 9 (1877) ; Johnson v. Heagan, 
23 Me. 329; Woodworth v. Bank of America, 19 John. 381; 
Benedict v. Cowden, 49 X. Y. 396 ; Wlieelock v. Freeman. 
13 Pick. 165 ; Wait v. Pomeroy, 20 Mich. 425 ; Blake v. Cole- 
man, 22 Wis. 415 ; Price v. Tallman, 1 N. J. Law 447. See, 
also, Johnston v. May, 76 Ind. 293 (1881). As to immaterial 
memoranda, see ivfra. In Dietz v. Harder, 72 Ind. 208 (1880), 
it was held that the material alteration of an instrument in suit 
avoided it. See, also, Rhoades v. Castner, 12 Allen 130. 

Qi) Immaterial alterations. — The addition, or striking out, of 
words in a written contract does not avoid it, if the legal effect 
remains unchano-ed. Thus writino- in the name of the bank 



1170 MASTER Y. MILLER. 

after the word " cashier," appended to signature on a note ; Bank 
of Genesee v. Patohin Bank, o Kern. 309. See, also, Mannfac- 
turers' Bank v. Follett, 11 li. I. 92. So cutting off the word 
" trustees " appended to the signatures of the makers of a note, 
since their liability was not affected thereby ; Burlingame v. 
Brewster, 79 111. 515; Hayes v. Matthews, 63 Ind. 412. So sub- 
stitutingf the firm style for the words " Providence Steam Co.," 
when the parties did business under both names ; Arnold v. 
Jones, 2 R. I. 345, So adding the Christian name of the drawer 
of a bill ; Blair v. Bank of Tennessee, 11 Humph. 84. So the 
mterlineation of the surname of the payee ; Manchet v. Cason, 
1 Brev. 307. So changing the Christian name of payee so as 
to conform to the fact; Desby v. Thrall, 44 Verm. 414. So 
crossing out the middle letter of payee's name which had l)een 
accidentally inserted ; Cole v. Hills, 44 N. H. 227. Retracing 
faded name in clear ink; Dunn v. Clements, 7 Jones (N. C.) 
Law 58. See also Reed v. Roark, 14 Tex. 329 ; Turner v. Bella- 
gram, 40 Mo. 404. So an attempted obliteration in lead pencil ; 
Chase v. Washington Insurance Company, 12 Barb. 595. So 
writing in the words " and executed " after the word " signed ; " 
Langdon v. Paul, 20 Verm. 217. An alteration in the marginal 
numbers of negotiable bonds is held to be immaterial ; Com- 
monwealth V. Emigrant Industrial Bank, 98 ]\Iass. 12 ; Bersdell 
V. Russell, 29 N. Y. 220 ; City of Elizabeth v. Force, 29 N. J. 
Eq. 591. But the alteration of the number of a Bank of Eng- 
land note was held to be material ; Suffell v. Bank of England, 
9 Q. B. D. 555 (1882). It is an immaterial alteration to change 
the marsfinal fig-ures of a note so that thcA' shall conform to the 
written amount ; Smith v. Smith, 1 R. I. 398. So the insertion 
of dollar mark before marginal figures; Houghton v. Francis, 
29 111. 244. So adding v/ords to a deed of conveyance which 
simply express the legal effect of the instrument; Brown v. 
Pinkham, 18 Pick. 172; Sharpe v. Orme, 61 Ala. 263. So writ- 
ing in such words in a note; Scott v. Calkin, 139 Mass. 529 
(1885). See, also, Belden v. Hann, 61 Iowa 42 (1883). So 
filling up immaterial blanks in a deed, or interlining or altering 
immaterial words ; Vose v. Dolan, 108 Mass, 155 ; Harsky v. 
Blackmarr, 20 Iowa 171; Burnham v. Ayer, 35 N. H. 351; 
Gordon v. Sizer, 39 Miss. 805 ; Crawford v. Dexter, 5 Sawyer 
(C. C.) 201. So inserting the Christian name of the party by 
whose land the granted premises are bounded ; Hatch v. Hatch, 



MASTER V. MILLER. 1171 

9 Mass. 307. So substituting for the name of the sheriff as 
obligee of a bail bond, the name of the constable who served 
the writ. Hale v. Russ, 1 Me. 334. So writing in mere sense- 
less words. Thus in Granite Railway Co. v. Bacon, 15 Pick. 
239, the payee of a note indorsed in blank, wrote the name of 
the accommodation indorser over his own name, and it was held 
to be an immaterial alteration. " As mere senseless words, 
written on a subsisting instrument complete in itself, they did 
not affect the terms, the effect, or the identity of the contract." 
Shaw, C. J. Compare Weaver v. Bromley (Mich.) 31 N. W. 
Rep. 839 (1887). The insertion of the name of the obligor in 
the body of the bond after execution is an immaterial altera- 
tion ; Smith tJ. Crooker, 5 Mass. 538; Wilder v. Butterfield, 50 
HoAv. (N. Y.) 385; Bird v. Bird, 40 Me. 398. An alteration 
made to correct a mutual mistake is generally held to be imma- 
terial. But see Taylor v. Taylor, 12 Lea (Tenn.) 714 (1883), 
contra. Thus changing the date to correspond with the inten- 
tion of the parties ; Duker v. Franz, 7 Bush 273. But see 
Bowers v. Jewell, 2 N. H. 543 ; Hamilton v. Wood, 70 Ind. 306 
(1880); Gill v. Hoj^kins, 19 111. App. 74 (188(3). See in sup- 
port of this principle, Clute v. Small, 17 Wend. 242 ; Connor 
V. Routh, 7 How. (]Miss.) 176; Hunt v. Adams, 6 Mass. 519; 
Boyd V. Brotherson, 10 Wend. 93 ; Pease v. Dwight, 6 How. 
190 ; Harvey v. Harvey, 15 ^le. 357 ; McRaven v. Harve}', 53 
Miss. 542. In Rhodes v. Castner, 12 Allen 130, whei'e a party 
to a contract for the sale of goods added his own signature to a 
memorandum signed by the other party, it was held that the 
alteration was immaterial. 

Mere explanatory memoranda written on an instrument do 
not avoid it. Thus, "left with Mr. B. as collateral," indorsed 
upon a note ; Bachellor v. Priest, 12 Pick. 399 ; so " subject 
to a contract made"; Gushing v. Field, 70 Me. 50 (1880). 
See also Struthers v. Kendall, 5 Wright 214 : Hubbard v. 
Williamson, 5 Ired. 397 ; Warlter v. Cubley, 2 Cr. & M. 151. 
So a memorandum of an independent and collateral agree- 
ment is immaterial. Thus in Cambridge Savings Bank v. 
H^-de, 131 Mass. 77 (1881) it was held, where a payee indorsed 
upon a note an agreement with the principal that after a cer- 
tain date the rate of interest should be less, that this was 
merely collateral to and independent of the note, and that the 
surety would not be discharged thereby. See, also, Stone v. 



1172 IklASTER V. ISIILLER. 

White, 8 Gray 589 ; Tremper v. Wempliill, 8 Leigh (Ya.) 62 ; 
Robinson v. Pho?nix Insniance Co., 25 Iowa 480; Krouch v. 
Shonz, 51 \Vis. 204 ; Jackson v. Boyles, G4 Iowa 428. In 
Drexler v. Smith, 30 Fed. Rep. 754 (1887), this principle was 
extended to a memorandum of extension of time of payment 
written on the face of the note ; and in Moore v. Macon Savings 
Bank, 22 ]\Io. App. 684 (1886), the decision was to the same 
effect, where a simihxr memorandum was indorsed upon the 
note. In Littlefield v. Coombs, 71 Me. 110 (1880), this prin- 
ciple was even applied to a memorandum of a greater rate of 
interest written on the note with the consent of the principal, 
and the surety was held not to be discharged. Compare Nick- 
erson v. Sweet, 135 Mass. 514 (1883). It has been held that 
the cutting off of a receipt from a bond does not avoid the 
instrument; CJoodfellow v. Insler, 12 N. J. Eq. 355; Simms 
V. Paschall, 5 hvd. Law 276; Bryan v. Dyer, 28 111. 188. See, 
also, Warner v. S|)encer, 7 J. J. Marsh. 340; but in Hert v. 
Oehler, 80 Ind. 83 (1881), it w^as held that the erasure of an 
indorsement of payment of interest avoided the note. See, also, 
Johnston v. Ma}-, 76 Ind. 293 (1881). As to immaterial altera- 
tions in subscriptions of stock see Whittlesey v. Franz, 74 N. Y. 
597. As to immaterial alterations in policies of insurance see 
Robinson v. Phoenix Insurance Co., 25 Iowa 430 ; Martin v. 
Insurance Co., 101 N. Y. 498 (1886). 

10. Bona fide holders of negotiable paper. Estoppel. — The 
general principle is well established that the material alteration 
of negotiable paper avoids it, even in the hands of a subse(;[uent 
innocent holder, and although the alteration cannot l)e discov- 
ered by the closest inspection ; and in regard to altered jjaper, 
bond fide purchasers for value and innocent payees stand on pre- 
cisely the same footing ; Agawam Bank v. Sears, 4 Gray 95 ; 
Wade V. Withington, 1 Allen 561 ; Adair v. England, 58 Iowa 
314 ; ^tna Bank v. Winchester, 43 Conn. 391 ; Bank of Ohio 
Valley v. Lockw^ood, 13 W. Ya. 392 (1878) ; Savings Bank v. 
Shaffer, 9 Neb. 1 (1879) ; Suffell v. Bank of England, 9 Q. B. 
D. 555 (1882) ; Hert v. Oehler, 80 Ind. 83 (1881) ; Jones v. 
Bangs, 40 Ohio St. 139 (1883) ; and most courts follow the 
views of the majority of the court in Master v. Miller in hold- 
ing that a re