2. By an Executor for Trover and Conversion in the Testator's Life

time, &c.

2 Chit. on Pleading, 643, 7th ed.

3. By the Executor of a Passenger who was killed by the Negligence of the Defendants as Carriers of Passengers. (b)

Ante, 492. For other forms, see Manley v. St. Helen's Canal Co. 27 L. J. Ex. 159; 2 H. & N. 840; Binks v. South Yorkshire Ry. & Dock Co. 3 B. & S. 244; Cotton v. Wood, 27 L. J. C. P. 333; 8 C. B. N. S. 568; Hutchinson v. Yorkshire & North British Ry. Co. 5 Ex. 343; Dalton v. South Eastern Ry. Co. 27 L. J. C. P. 227; [4 C. B. N. S. 296.]

FALSE IMPRISONMENT. See "Trespass to the Person," post.

FALSE REPRESENTATION. See "Fraud," post.

FENCES AND PARTY-WALLS.

OBS. - A wall separating adjoining premises belongs primâ facie to the owners in equal moieties, as tenants in common. Cubitt v. Porter, 8 B. & C. 257. But this presumption may be rebutted, as where the land upon which the wall stands can be ascertained and identified, in which case each party owns so much of the wall as stands on his own land. Watts v. Hawkins, 5 Taunt. 20. "In general, however, party-walls will be found to be built on the common property of both;' and in the absence of any further proof than that which is afforded by evidence of a common user, such will be presumed to be the case." Gale on Easements, by Willes, 412; [3 Kent, 438, and note (a); Washburn Easements and Servitudes (2d ed.), 535, [454] et seq.] Every hedge, separating two estates, is reputed common to both unless there be proof to the contrary.

Every owner of land is bound to maintain such fences as shall prevent his cattle from trespassing on the lands of his neighbors. See Boyle v. Tamlyn, 6 B. & C. 337, per Bayley J. But this liability to fence against cattle only applies to the cattle of a neighbor. Dovaston v. Payne, H. Bl. 527. See Rooth v. Wilson, 1 B. & Ald. 59; Lee v. Riley, 34 L. J. C. P. 212; [18 C. B. N. S. 722; 3 Kent, 438; Washburn Easements and Servitudes (2d ed.), 601, [514] et seq.; 1 Chitty, Pl. 159, and cases in note (o); Lyons v. Merrick, 105 Mass, 71, 75, 76; Cate v. Cate, 50 N. H. 146.] The remedy being against the occupier of the land. Cheetham v. Hampson, 4 T. R. 318. But where cattle had strayed from a field through a fence, which A. was liable to repair, and ultimately strayed into A.'s close, and were there taken damage feasant, it was held that A. was in the wrong, the trespass of the cattle being the result of his own negligence in not keeping the fence through which they first passed in repair. Singleton v. Williamson, 31 L. J. Ex. 17; [7 H. & N. 410. See Lyons v. Merrick, 105 Mass. 71; Cate v. Cate, 50 N. H. 144, 146.] If a man dig a pit in his own close, he is not under any obligation to fence it, but if the pit be substantially adjacent to a highway, he is bound to do so. See Barnes v. Ward, 9 C. B. 392; 19 L. J. C. P. 195; Hardcastle v. South Yorkshire Ry. Co. 28 L. Ex. 139; [4 H. & N. 67; Jordin v. Crump, 10 M. (b) The declaration need not negative the the action is brought. Barnes v. Ward, 9 C. existence of any other relations entitled to B. 392; 19 L. J. C. P. 195. recover, other than those on whose behalf

OBS. & W. 988; Hounsell v. Smyth, 7 C. B. N. S. 731; 29 L. J. C. P. 203. [But see Howland v. Vincent, 10 Met. 371; Knight v. Abert, 6 Penn. St. 472 ;] see, also, post, "Negligence.'

The railway clauses consolidation act (8 & 9 Vict. c. 20, s. 68) throws upon railway companies the obligation of making and maintaining fences; and, in conjunction with that act, the same rule of law applies as in ordinary cases affecting private individuals. See Ricketts v. East & West India Docks Ry. Co. 12 C. B. 160; Manchester &c. Ry. Co. v. Wallis, 14 C. B. 230. As to ditches, no man making a ditch can cut into his neighbor's soil, but only to the very extremity of his own. Vowles v. Miller, 3 Taunt. 137. [But it has been held in Massachusetts that partition fences and ditches are to be placed on the lands of both parties equally. Newell v. Hill, 2 Met. 180.] The venue is local. See, generally, Gale on Easements, by Willes; forms, 2 Chit. on Pl. 7th ed.; Powell v. Salisbury, 2 Y. & J. 391; Rooth v. Wilson, 1 B. & Ald. 59.

For forms, see Marfell v. South Wales Ry. Co. 8 C. B. N. S. 525; Ellis v. London & South Western Ry. Co. 2 H. & N. 424; Fawcett v. Yorkshire & North Midland Ry. Co. 16 Q. B. 610. See, also, Besant v. Great Western Ry. Co. 8 C. B. N. S. 368; Sharrod v. London & North Western Ry. Co. 4 Ex. 580.

OBS.

FERRY.

See Hussey v. Field, 2 Cr., M. & R. 432, for a form and law. It is sufficient for the plaintiff to prove that he was in possession of the ferry at the time when the cause of action arose. Peter v. Kendall, 6 B. & C. 703; Trotter v. Harris, 2 Y. & J. 285. And it is not necessary to allege or prove the payment of any specified sum for passage-money. Peter v. Kendall, 6 B. & C. 703. The owner of a ferry must have the right to use the land on both sides of the water for the purpose of embarking his passengers, but he need not have any property in the soil. Ib. See, also, Pim v. Curell, 6 M. & W. 234; Blacketer v. Gillett, 9 C. B. 26; 19 L. J. C. P. 307; Giles v. Groves, 12 Q. B. 721; 17 L. J. Q. B. 323; Newton r. Cubitt, [2 C. B. N. S. 627;] 28 L. J. C. P. 176. See a form for loss of goods intrusted to a ferryman to carry, Walker v. Jackson, 10 M. & W. 161; 12 L. J. Ex. 165. The venue is local.

[Count for disturbing the Plaintiff's Ferry,

Venue local.] That the plaintiff was possessed of an ancient ferry, called Ferry, for the carriage [of foot passengers and their goods] across the river from to, taking for the carriage of such [passengers and goods] across such ferry certain reasonable freights and ferryages; and the defendant wrongfully disturbed the plaintiff in the possession of his said ferry by carrying divers [foot-passengers and their goods] for hire across the said river near to the said ferry of the plaintiff, whereby the plaintiff has lost the profits of his said ferry.]

FISHERY AND FISHING.

OBS. Trespass may be maintained for breaking and entering, &c. a several fishery, though no fish are taken, and though in the soil of another. Holford v. Bailey, 8 Q. B. 1000; in error, 13 Q. B. 426; Marshall v. The Ulswater Steam Navigation Company, 3 B. & S. 732; 32 L. J. Q. B. 139. A custom for all the inhabitants of a parish to angle for, catch, and carry away fish, is a bad custom. Bland v. Lipscombe, 4 El. & Bl. 713, note; 24 L. J. Q. B. 155, note.

The venue is local.

Where a plaintiff, while fishing for pilchards, had nearly encompassed the fish

OBS. with a net, and the defendant, by rowing his boat to the entrance, disturbed the fish and prevented the capture, it was held that he could not maintain trespass, as he did not prove any special custom of the fishery. Young v. Hichens, 6 Q. B. 606.

As to the whale fishery, and where a fish may be considered fast, see Fennings v. Grenville, 1 Taunt. 241; Littledale v. Scaith Ib. 243, note; Hogarth v. Jackson, 2 C. & P. 595; Skinner v. Chapman, 1 M. & M. 59, note. Where a statute confers a right, and annexes a penalty for its infringement, no remedy is available to the party aggrieved but that prescribed by the statute. Stevens r. Jeacocke, 11 Q. B. 741 ; 17 L. J. Q. B. 163.

See a form of trespass in a fishery, Mannall v. Fisher, 5 C. B. N. S. 856. See a form for injuring oyster beds, Mayor of Colchester v. Brooke, 7 Q. B. 339; 15 L. J. Q. B. 59. See the statutes 24 & 25 Vict. c. 109, applicable to salmon fisheries in England; 29 & 30 Vict. c. 85, applicable to Great Britain; and 29 & 30 Vict. c. 97, applicable to Ireland. [See Garnett v. Backhouse, L. R. 3 Q. B. 30; Rawstorne v. Backhouse, L. R. 3 C. P. 67.] See a form in trespass for throwing down a weir appurtenant to a fishery, Williams v. Wilcox, 8 Ad. & E. 314.

[Count for Trespass to Plaintiff's Fishery.

Venue local.] That the defendant, on divers days and times, broke and entered the several fishery of the plaintiff in the river and fished in the said fishery for fish, and chased and disturbed the fish therein, and caught, took, and carried away and converted to his own use divers quantities of the plaintiff's fish therein.

Like counts. Smith v. Kemp, 2 Salk. 637; Richardson v. Mayor of Orford, 2 H. Bl. 182.]

FIXTURES. See post, "Landlord and Tenant."

OBS.

FRAUD.

Either an action on contract or tort lies for the breach of an express warranty. Williamson v. Allison, 2 East, 446. See ante, "Warranty," 256 et seq.; [Fisk v. Hicks, 31 N. H. 535, 540, 541; Webster v. Hodgskins, 25 N. H. 128, 142; Cooper v. Landon, 102 Mass. 58, 60.] The rule is now settled that, "Where upon the sale of goods the purchaser is satisfied, without requiring a warranty, he cannot recover upon a mere representation of the quality by the seller, unless he can show that the representation was bottomed in fraud; if, indeed, the representation was false to the knowledge of the party making it, this would, in general, be conclusive evidence of fraud; but if the representation was honestly made and believed at the time to be true by the party making it, though not true in point of fact, this does not amount to fraud in law; the rule of caveat emptor applies, and the representation itself does not furnish a ground of action." Ormrod v. Huth, 14 M. & W. 664. See Horsfall v. Thomas, 1 H. & C. 90; 31 L. J. Ex. 322; [Mahurin e. Harding, 28 N. H. 128; 1 Chitty Contr. (11th Am. ed.) 639, 640; Childers v. Wooler, 2 El. & El. 287; Behn v. Kemble, 7 C. B. N. S. 260; Pettigrew v. Chellis, 41 N. H. 95; Page v. Parker, 40 N. H. 47; S. C. 43 N. H. 363; Bigelow C. J. in King v. Eagle Mills, 10 Allen, 548, 551, 552; Collins v Evans, 5 Q. B. 826; Attwood v. Small, 6 Cl. & Fin. (Am. ed.) 232, and notes; Colt J. in Milliken v. Thorndike, 103 Mass. 385; Stone v. Denney, 4 Met. 151; Page v. Bent, 2 Met. 371; Hanson v. Edgerly, 29 N. H. 343; Tryon v. Whitmarsh, 1 Met. 1; Russell v. Clark, 7 Cranch, 69; Lord v. Goddard, 13 How. (U. S.) 196; Weeks v. Burton, 7 Vt. 67; Young v. Covell, 8 John. 25; Boyd v. Brown, 6 Barr, 310; Marshall v. Gray, 47 Barb. 414; Staines v. Shore, 16 Penn. St. 200; Taylor v. Frost, 39 Miss. 528; Holmes

OBS.

v. Clark, 10 Iowa, 423; Bendurant v. Crawford, 22 Iowa, 40; Allen v. Wanumaker, 2 Vroom, 370; Morton v. Scull, 23 Ark. 289; Bond v. Clark, 35 Vt. 577; Peers v. Davis, 29 Missou. 184; Zehner v. Kipler, 16 Ind. 290; Simar v. Canaday, 53 N. Y. 298, 306, 307; Collins v. Denison, 12 Met. 549.] "An action cannot be supported, for telling a bare naked lie, where no loss or damage is caused; but if it be attended with damage, it then becomes the subject of an action." Pasley v. Freeman, 3 T. R. 65; 2 Smith's L. Cases; [Hubbard J. in Medbury v. Watson, 6 Met. 246; Tryon v. Whitmarsh, 1 Met. i; Colt J. in Randall v. Hazelton, 12 Allen, 412, 414 et seq. "The gravamen of the charge is, that the plaintiff has been deceived to his hurt; not that the defendant has gained an advantage." Wells J. in Fisher v. Mellen, 103 Mass. 505; Stiles v. White, 11 Met. 356.] Where a representation, false to the knowledge of A., has been made by him for his benefit to B., and is acted on by B. to B.'s injury, an action will lie at his suit against A. Barley v. Walford, 9 Q. B. 197; 15 L. J. Q. B. 369. See Rawlings v. Bell, 1 C. B. 951; Langridge v. Levy, 2 M. & W. 529; Levy v. Langridge, 4 M. & W. 338; Behn v. Kemble, 7 C. B. N. S. 260. And if such false representation be communicated by B. to C., with notice to A., and C. acts upon it, an action will lie by C. against A. Pilmore v. Hood, 4 Bing. N. C. 97. [See Irving v. Thomas, 18 Maine, 418; Paddock v. Strobridge, 29 Vt. 470; Crocker v. Lewis, 1 Sumner, 1, 8; Bowens v. Johnson, 10 Sm. & M. 169; Hunt v. Moore, 2 Barr, 105; Thom v. Bigland, 8 Ex. 725, 731; Gerhard v. Bates, 2 El. & Bl. 476; Bedford v. Bagshaw, 4 H. & N. 538; New Brunswick &c. R. Co. v. Conybeare, 9 H. L. Cas. 711.] Where there is no express warranty but a representation false to the knowledge of the maker of it, an action-lies for the fraud and deceit. Powell v. Edmunds, 12 East, 11; Meyer v. Everth, 4 Camp. 28; Ormrod v. Huth, ubi sup. So, if the false representation_substantially lead to the giving credit for goods. Wade r. Tatton, 25 L. J. C. P. 240. [The presumption, in the absence of evidence to the contrary, would be that the vendor did rely on the representation. Holbrook v. Burt, 22 Pick. 546.] If a party makes a representation for a fraudulent purpose, and intending to induce another to do something which, when done, is to his prejudice, an action will lie; and it is not necessary that the defendant knew the representation to be false if he communicated it for a deceitful purpose. Taylor v. Ashton, 11 M. & W. 401; 12 L. J. Ex. 363; [2 Chitty Contr. (11th Am. ed.) 1044, 1045, and note (d).] A statement is fraudulent if made dishonestly or with a reckless ignorance of whether it is true or false. Behn v. Burness, 32 L. J. Q. B. 204; [3 B. & S. 751; Hazard v. Irwin, 18 Pick. 95; Stone v. Denny, 4 Met. 151; Ames J. in Cooper v. Lovering, 106 Mass. 79; Brown v. Castles, 11 Cush. 348; Attwood v. Small, 6 Cl. & Fin. (Am. ed.) 233, note (1) and cases cited to this point; Fisher v. Mellen, 103 Mass. 503, 506; Page v. Bent, 2 Met. 371; Hammatt v. Emerson, 27 Maine, 308, 326; Harding v. Randall, 15 Maine, 332; Smith v. Mitchell, 5 Geo. 458; Mitchell v. Zimmerman, 4 Texas, 75; Bennett v. Judson, 21 N. Y 238; Wilcox v. The Iowa Wesleyan University, 32 Iowa, 367; Rawlins v. Wickham, 3 De G. & J. 313; 2 Chitty Contr. (11th Am. ed.) 1045, note (p) and cases cited; Atwood v. Wright, 29 Ala. 346; Craig v. Ward, 36 Barb. 377; Sharp v. New York, 40 Barb. 256; Evans v. Edmonds, 13 C. B. 777; Mason v. Chappell, 15 Grattan, 572; Cabot v. Christie, 42 Vt. 121, 126. But, if the false representation was made bonâ fide, the defendant believing in its truth, the plaintiff cannot maintain an action. Shrewsbury e. Blount, 2 M. & G. 475; Rawlins v. Wickham, 28 L. J. Ch. 188; [3 De G. & J. 304;] Slim v. Crouch, [1 De G., F. & J. 518;] 29 L. J. Ch. 273; [2 Chitty Contr. (11th Am. ed.) 1044, and cases in note (m).] And an untrue representation, not embodied in a contract, will not render it void unless it also be fraudulent. Cornfoot v. Fowke, 6 M. & W. 358; Collins v. Evans, 5 Q. B. 820; Childers v. Wooler, 29 L. J. Q. B. 136; [2 El. & El. 287.]

In order to maintain the action, it must be proved that the plaintiff acted on the faith of the false representation, and sustained damage arising therefrom. Eastwood v. Bain, 28 L. J. Ex. 74. [If the plaintiff chose to act on his own judgment, with full knowledge or means of knowledge of the facts, he cannot be heard to say he was deceived by the defendant's representations respecting them. Attwood v. Small, 6 Cl. & Fin. (Am. ed.) 233, and note (2), and

OBS. cases cited. Hoitt v. Holcomb, 32 N. H. 202-205; Aberaman Iron Works v. Wickens, L. R. 4 Ch. Ap. 101; Veasey v. Doten, 3 Allen, 380; Stephens v. Qrman, 10 Florida, 9; Mooney v. Miller, 102 Mass. 220; Dickinson v. Lee. 106 Mass. 557; 2 Chitty Contr. (11th Am. ed.) 1039, and note (z), 1040, note (a). But see, how far one, who has received from another a positive representation respecting a material fact, is bound to inquire into the truth of it, 2 Chitty Contr. (11th Am. ed.) 1041, and note (c); Attwood v. Small, 6 Cl. & Fin. (Am. ed.) 233, note (2); Rose v. Hurley, 39 Ind. 83; Mead v. Bunn, 32 N. Y. 275; Vandewalker v. Osmer, 65 Barb. 556.] There is no necessity for any privity between the parties. Gerhard v. Bates, 2 El. & Bl. 746; 22 L. J. Q. B. 364. [See Thomas v. Winchester, 2 Selden, 397; Davidson v. Nichols, 11 Allen, 514; McDonald v. Snelling, 14 Allen, 290, 295.] The alleged damage must arise from the alleged wrongful act. Collins . Cave, 6 H. & N. 131; 30 L. J. Ex. 55.

As to false representations made by directors, see Scott v. Dixon, 29 L. J. Q. B. 69, note; Clarke v. Dixon, 7 C. B. N. S. 453; 28 L. J. C. P. 225; Bedford v. Bagshaw, 29 L. J. Ex. 59; [4 H. & N. 538.]

As to false representation of authority by agents, see Collen v. Wright, 8 El. & Bl. 647; 26 L. J. Q. B. 147; 27 Ib. 215; Pow v. Davis, 7 El. & Bl. 220; 30 L. J. Q. B. 257; Oxenham v. Smythe, 6 H. & N. 690; 31 L. J. Ex. 110; Hughes v. Græme, 33 L. J. Q. B. 335; [ante, 45, note (c).] False and fraudulent representation made by an agent do not affect the principal unless the principal adopts them with knowledge. Udell v. Atherton, 7 H. & N. 181; 30 L. J. Ex. 337; [Bennett v. Judson, 21 N. Y. 238; Crans e. Hunter, 28 N. Y. 389; Mundorff v. Wickersham, 63 Penn. St. 87; Haseler v. Lemoyne, 5 C. B. N. S. 530; Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259; 2 Chitty Contr. (11th Am. ed.) 1036, and note (h); 1 Chitty Contr. (11th Am. ed.) 281, note (1), 291, and notes (n) and (m); Grant r. Beard, 50 N. H. 129. As to the effect of the fraud of an authorized agent in negotiating a contract on behalf of his principal, see ante, 392.] As to the use of trade-marks, see 25 & 26 Vict. c. 88; and see The Leather Cloth Co. v. The American Cloth Co. 33 L. J. Ch. 199; [11 H. L. Cas. 523;] M'Andrew v. Bassett, 33 L. J. Ch. 568; Hall v. Burrows, [10 Jur. N. S. 55;] 33 L. J. Ch. 204; [Perry v. Truefitt, 6 Beav. 66; Seixo v. Provezende, L. R. 1 Ch. Ap. 192, 196; 2 Chitty Contr. (11th Am. ed.) 1043, note (i); Bradley v. Norton, 33 Conn. 157; Emerson v. Badger, 101 Mass. 82; Edelsten v. Edelston, 1 De G., J. & S. 185, and cases in note (*); Walton v. Crowley, 3 Blatchf. C. C. 440; 10 Am. Law Reg. N. S. 694, 707, 708, in note; Hostetter v. Vowinkle, 1 Dillon, 329; Burnett v. Phalon, 3 Keyes, 594; Lord Westbury L. C. in Leather Cloth Co. v. American Leather Cloth Co. 4 De G., J. & S. 137, 139.]

As to what amounts to fraud in obtaining a deed, see Spencer v. Hardley, 4 M. & S. 414; ante, pt. 1, p. 392. A contract procured by fraud is voidable only at the election of the party defrauded; Murray v. Mann, 2 Ex. 538; 17 L. J. Ex. 256; and if a sale of goods be not avoided before the goods are resold, the property passes. White v. Garden, 20 L. J. C. P. 166; [10 C. B. 919; Kingsford v. Merry, 11 Ex. 577, 579; Titcomb v. Wood, 38 Maine, 561; Stevenson v. Newnham, 13 C. B. 285, 303; Parke B. in Powell v. Hoyland, 6 Ex. 67, 72; Load v. Green, 15 M. & W. 216, 219; Bean v. Smith, 2 Mason, 252; Hall v. Hicks, 21 Md. 406; Hardman v. Booth, 1 H. & C. 803; Oakes v. Turquand, L. R. 2 H. L. 325; Sinclair v. Healy, 40 Penn. St. 417; 1 Chitty Contr. (11th Am. ed.) 566, and note (e); Williams v. Given, 6 Gratton, 268.] But where goods are delivered to one person upon a fraudulent representation that he is purchasing for or is another person, no property passes, and the goods or their proceeds may be recovered from a bona fide holder for value. Higgons Burton, 26 L. J. Ex. 342; Hardman v. Booth, 32 L. J. Ex. 105; [1 H. & C. 803;] and see Milne v. Leisler, 31 L. J. Ex. 257. A fraud of the testator is a good answer to an action by the executor Connop v. Levy, 11 Q. B. 769; 17 L. J. Q. B. 125.