Gambar halaman

Jones v. Yates, 9 B. & C. 538; Doe v. Roberts, 2 B. & (a) When concealment is made the basis of an action Ald. 367), and where both parties are in the wrong, the

at law, moral fraud must always be alleged and proven. court will decline to interfere. Holman v. Johnson, Vane v. Cobbold, 1 Exch. 798; Hamrick v. Hogg, 1 Dev. supra. The right to disaffirm a contract may, how- 350; Hanson v. Edgerly, 29 N. H. 343. This doctrive ever, be lost by neglecting so to do after discovering appears to be founded upon the maxim, potior est conthe fraud (Selway v. Fogg, 5 M. & W.85-6), and the right ditio defendentis. is not afterward called to life by the discovery of (b) Courts of equity will always decline to interfere another incident in the fraud. Campbell v. Fleming, 1 unless strong reasons are presented for their action. A. & E. 40. When the person aggrieved elects to re- The reason is that when their jurisdiction was at first pudiate the contract, he must place the other party so entirely discretionary, they refused to act unless some far as possible in statu quo (Masson v. Boret, 1 Denio, moral wrong was being perpetrated, and they are now 69; see Frost v. Lowry, 15 0. 200), and if he affirms the guided in their decrees by ancient precedents. (1) contract, he may sue for damages on account of the Hence they are averse to the specific enforcement of loss which he has sustained. Martin v. Roberts, 5 contracts, when fraud is made a defense. The agree('ush. 126. In one case (Queen v. Saddlers' Co., 10 H. ment ought to be “certain, fair and just in all its L. C. 420-1) the court held that if a party has acted parts." Buxton v. Lister, 3 Atk. 385. In cases of this under a contract without knowing of fraud, his only kind “the principles of ethics have a more extensive remedy upon finding it out is an action for damages. sway" (2 Kent's Com, 490), and it is, therefore, to be

(B) Our second general rule is as follows: An action presumed that any kind of moral fraud would be a on the case will lie against a person who suppresses the sufficient defense. (2) When the aid of a court of truth on the part of a person, not a party to a contract,

equity is sought to rescind a contract on the ground of who alleges special damage. Thus in Levy v. Langridge, fraud, we are again met by reluctance. It will not 4 M. & W. 338, Lord Denman says, quoting Baron

rescind without the clearest proof of fraud, and unParke: “As there is fraud, and damage, the result of

less it is showu that the contract was based, at least, parthat fraud, not from an act remote and consequential,

tially upon the fraud (Atwood v. Small, 6 C. & F. 232; but one contemplated by the defendant at the time as Smith v. Kay, 7 H. L. 775), and this fraud must be one of its results, the party guilty of the fraud is re

moral (Lord Wensleydale in Smith v. Kay, supra), but sponsible to the party injured." Kidney v. Stoddard,

circumstantial evidence may be successful even where 7 Metc. 252; see Longmeid v. Holliday, 6 Exch. 761,

it would not suffice at law, King v. Moon, 42 Mo. 555. and Martin v. Morgan, 1 Brod. & B. 289; Corbett v.

Courts of equity will not generally set aside a coutract Brown, 8 Bing. 33. The rules and definitions which we unless the parties to it can be placed in the same situahave ascertained and examined under the former title tion which they occupied when they made the con(a) will apply to this branch of the subject so far as

tract. Schaeffer v. Sleade, Blackf. 178; Judge Story the nature of the cases included by it admits. All in Veazie v. Williams, 3 Story, 631; Oakes v. Turquand, that has been said of concealments in tbis essay is a

L. R., 2 H, L. 316. It has been held that simple supfortiori, true of assent signified by silence. Qui tacet pression not accompanied by any thing further will consentire videtur. Pilmore v. Hood, 5 Bing. N. C. not form ground for rescission in equity (Livingston v. 97, 109; Wright v. Crookes, 1 Scott (N. R.), 685. It is Peru Iron Co., 2 Paige, 390), but the law is different in also well settled that the suppressio veri of an agent is

Tennessee (Perkins v. McGarock, Cooke, 415), and chargeable to his principal (Doe v. Martin, 4 T. R. 18; wherever the latter case is of authority the principles IIill v. Gray, 1 Stark. 352; Fitzsimmons v. Joslin, 21

which we have examined will prevail. See Fry on Vt. 129) as well as to the agent. Arnot v. Biscoe, 1 Spec. Perf., $ 461. The case in Paige does not appaVes., Sr., 95.

rently affect the rule when concealment is accompa(C) With regard to evidence, it is never to be forgot- nied by aggravating circumstances. It is by no means ten that the law will not imply fraud. It must be true that courts of equity will rescind all contracts proved (Fleming v. Slocum, 18 Johns. 403), but this which they will not specifically enforce. There are proof may be indirect. 2 Pars. on Cont. 784, 6. As many cases in which they will decline to interfere fraud is naturally difficult to detect, evidence of all and the parties are then left to find justice at law. the circumstances may be produced in each case. Lin- Willan v. Willan, 16 Ves. 83; Mortlock v. Buller, 10 id. coln v. Claflin, 7 Wall. 132.

308. (D) According to the common law the statute of The subject of suppressio veri is one which might limitations runs from the time at which fraud is con- well fill volumes. Many cases involving suggestio falsi summated. Troup v. Smith, 20 Johns. 33; Northrop v. are of equal authority in this branch of fraud which Ilill, 61 Barb. 136. In Massachusetts it has been held we have discussed. These subjects are not entirely that the statute does not run until the fraud is discov- separate and distinct. The principles which govern ered (Turnpike v. Field, 3 Mass. 201), while in New them are not precisely fixed, and the minor points York the same result is partially gained by statute. have called forth the opposing arguments of leading Code of Civ. Proc., $ 382.

jurists for centuries. The writer of a short paper (E) The measure of damages, in those cases of con- upon such a topic labors under manifest disadvantcealment in which damages are awarded, is easily fixed ages. It would be as unfair to form any conceptiou of in principle, but is often uncertain in application. the law of concealment from a bare statement of its To sustain a claim for daniages on the ground of fraud, rules as to judge of the beauties of a country from an actual injury must be shown (Ide v. Gray, 11 Vt. 615), outline map. We have unfortunately been unable to but the fraud may only be the main and substantial consider the cases under this title which enrich the cause of it. Patton v. Wade, 18 C. B. 370.

reports. It is in such explorations that the reader is (F) All the foregoing remarks of a general character struck with admiration for the grand system of the are applicable to suppressio veri, alike as a cause of ac- common law. Then at last he finds that the principles tion or a defense, at law or iu equity, with certain upon which this system is founded are endowed not exceptions which we will now proceed to consider. only with enduring firmness, but also with inexhaust


ible adaptability, and that their remarkable univer- barrier to the other, and so the road was effectually sality is combined with marvelous particularity. blocked. Amongst the houses and grounds to which Such rules are indeed the offspring of eternal justice, this private road led was that of a Mr. Bruen. On while they have been tempered by that practical wis- the evening on which the accident wbich gave rise to dom which recognizes human exigencies.

the present action occurred, the plaintiff, who occuERNEST H. CROSBY. pied the premises in the immediate neighborhood, ac

companied Mr. Bruen, by the invitation of the latter, LIABILITY OF WRONG-DOER FOR INDIRECT

to Bruen's house. It was extremely dark, but being CONSEQUENCE OF HIS ACT.

aware of the barrier and the opening in it, they found

the opening, the pole not being then set across it, and ENGLISH HIGH COURT OF JUSTICE, QUEEN'S BENCH

passed through it in safety. But on his return later DIVISION, APRIL 15, 1878.

in the evening, the plaintiff was not equally fortunate.

It appears that in the course of that day or the day CLARK V. CHAMBERS.

previous, some one had removed one of the chevaux The defendant had placed in a private road adjoining his

de frise hurdles from the place where it had stood, ground a hurdle with a chevaux de frise on the top in and had placed it in an upright position across the footorder to prevent the public from looking over the barrier at athletic sports in his ground. Some one, not

path. Coming back along the middle of the road, the known, removed the hurdle to another spot without plaintiff, feeling his way, passed safely through the the defendant's authority, and the plaintiff, passing of right along the road, soon afterward, in the dark, and

opening in the center of the barrier. Having done knowing the original position of the hurdle, but not which, being wholly unaware - it being much too dark that it was moved, ran his eye against the chevaux de frise, and lost his sight. The jury, in an action for

to see — that there was any obstruction on the footnegligence, held that the defendant's original erection path, he turned on to the latter, intending to walk of this hurdle was unauthorized and wrongful, that the chevaux de frise was dangerous to the safety of persons

along it the rest of the way. He had advanced only using the road, and that there was no contributory neg- two or three steps when his eye came into collision ligence. They gave the plaintiff a substantial verdict Held, that the plaintiff's injury was not an improbable

with one of the spikes, the effect of which was that consequence of the defendant's act; that it was the de- the eye was forced out of its socket. It did not apfendant's duty to take all necessary precautions under the circumstances to protect persons exercising their

pear by whom the chevaux de frise hurdle had been right of way; and that the action was maintainable. thus removed; but it was expressly found by the jury HIS was an action tried before Cockburu, C. J., in that this was not done by the defendant or by his au

which the plaintiff obtained a verdict for £200. A thority. The question is whether the defendant can be rule had been obtained ou behalf of the defendant for

held liable for the injury thus occasioned. It is ada new trial on the ground of misdirection.

mitted that what the defendant did in erecting this The facts and the arguments upon the rule are suffici

barrier across the road was unauthorized and wrongently stated in the considered judgment of the court.

ful; and it is not disputed that the plaintiff was lawWillis, Q. C., and Glyn, for the plaintiff, showed fully using the road. There is no ground for imputing cause.

to him any negligence contributing to the accident. Hannen (with A. L. Smith) supported the rule.

The jury have expressly found, in answer to a question COCKBURN, C. J., delivered the judgment of himself put to them by me, that the use of the chevaux and MANISTY, J. This was a case of considerable

de frise in the road was dangerous to the safety of nicety, and which, so far as the precise facts are con- persons using it. The ground of defense in point of cerned, presents itself for the first time. The defend- law taken at the trial and on the argument on the rule ant is in the occupation of premises which abut on was that, although if the injury had resulted from the a private road leading to certain other premises as well use of the chevaux de frise hurdle, as placed by the as to his. It consisted of a carriage road and a foot- defendant on the road, the defendant, on the facts as way. The soil of both is the property of a different admitted or as found by the jury, might have been owner; the defendant has no interest in it beyond the liable, yet as the immediate cause of the accident was right of way to and from his premises. The defend- not the act of the defendant, but that of the person, ant uses his premises as a place where athletic sports whoever he may have been, who removed the spiked are carried on by persons resorting thereto for that hurdle from where the defendant had fixed it, and purpose, for their own amusement. His customers, placed it across the footway, the defendant could not finding themselves annoyed by persons coming along be held liable for an injury resulting from the act of the road in question in carts and vehicles, and station- another. On the part of the plaintiff it was contended ing themselves opposite to his grounds and overlooking that, as the act of the defendaut in placing a dangerthe sports, the height of the carts and vehicles en- ous instrument on the road had been the primary cause abling them to see over the fence, the defendant of the evil by affording the occasiou for its being reerected a barrier across the road for the purpose of moved and placed on the footpath, and so causing the preventing vehicles from getting as far as his grounds. | injury to the plaintiff, he was responsible in law for This barrier consisted of a hurdle set up lengthways, the consequences. Numerous authorities were cited next to the footpath; then two wooden barriers, armed in support of this position. The first is the case of with spikes, commonly called chevaux de frise; then Scott v. Shepherd, 3 Wils. 403; 2 W. Bl. 892. In that there was left an open space through which a vehicle case the defeudant threw a lighted squib into a marcould pass; then came another large hurdle set up ket-house where several persons were assembled. It lengthways, which blocked up the rest of the road. At fell upon a standing, the owner of which in self-deordinary times the space between the two divisions of fense took it up and threw it across the market-house. the barrier was left open for vehicles to pass which It fell upon another standing, the owner of which in might be going to any of the other premises to which self-defense took it up and threw it to another part of the road in question led. But at the times when the the market-house, and in its course it struck the sports were going on, a pole attached by a suitable ap- plaintiff and exploded, and put out his eye. The deparatus was carried across from the one part of the fendaut was held liable, although without the inter

vention of a third person the squib would not have injured the plaintiff. In Diron v. Bell, 5 M. & S. 198, the defendant, baving left a loaded gun with another man, sent a young girl to fetch it, with a message to the man in whose custody it was to remove the priming, which the latter as he thought did, but, as it turned out, did not do effectually. The girl brought it home, and thinking that the priming having been removed the gun could not go off, pointed it at the plaintiff's son, a child, and pulled the trigger. The gun went off, and injured the child. The defendant was held liable. "As by this want of care," says Lord Ellenborough — that is, by leaving the gun without drawing the charge, or seeing the priming had been properly removed — "the instrument was left in a state capable of doing mischief, the law will hold the plaintiff responsible. It is a hard case, undoubtedly, but I think the action is maintainable." In Ilott v. Wilkes, 3 B. & A. 304, the well-known case as to springguns, it became unnecessary to determine how far a person setting spring-guns would be liable to a person injured by such a gun going off, even though such person were a trespasser, inasmuch as the plaintiff, having had notice that spring-guns were set in a particular wood, had voluntarily exposed himself to the danger. But both Mr. Justice Bayley and Mr. Justice Holroyd appear to have thought that without such notice the action would have lain, the use of such instruments being unreasonably disproportioned to the end to be attained, and dangerous to the lives of persons who might be innocently trespassing. Looking to their language, it can scarcely be doubted that, if instead of injuring the plaintiff, the gun which he caused to go off had struck a person passing lawfully along a path leading through the wood, they would have held the defendant liable. In Jordin v. Crump, 8 M. & W. 782, the use of dog-spears was held not to be illegal, but there the injury done to the plaintiff's dog was alone in question. If the use of such an instrument had been productive of injury to a human being, the result might have been different. In Ilidge v. Goodwin, 5 C. & P. 190, the defendant’s cart and horse were left standing in the street without any one to attend to them. A person passing by whipped the horse which caused it to back the cart against the plaintiff's window. It was urged that the man who whipped the horse, and not the defendant, was liable. It was also conteuded that the bad management of the plaintiff's shopman had contributed to the accident. But Tindal, C. J., ruled that, even if this were believed, it would not avail as a defense. “If," he says, “a man chooses to leave a cart standing in the street he must take the risk of any mischief that may be done." Lynch v. Nurdin, 1 Q. B. 29, is a still more striking case. There, as in the former case, the defendant's cart and horse had been left standing unattended in the street. The plaintiff, a child of seven years of age, playing in the street with other boys, was getting into the cart when another boy made the horse move on; the plaintiff was thrown down and the wheel of the cart went over his leg and fractured it. A considered judgment was delivered by Lord Denman. He says: “It is urged that the mischief was not produced by the mere negligence of the servant as asserted in the declaration, but at most by that negligence in combination with two other active causes -the advance of the horse in consequence of his being excited by the other boy, and the plaintiff's improper conduct in mounting the cart, and s9 committing a

trespass on the defendant's chattel. On the former of these two causes no great stress was laid, and I do not apprehend that it can be necessary to dwell on it at any length. For, if I am guilty of negligence in leaving any thing dangerous where I kuow it to be extremely probable that some other person will unjustifiably set it in motion to the injury of a third, and if that injury should be so brought about, I presume that the sufferer might have redress by action against both or either of the two, but unquestionably against the first.” And then, by way of illustration, the Chief Justice puts the case of a gamekeeper, leaving a loaded gun against the wall of playground where schoolboys were at play, and one of the boys, in play, letting it off and wounding another. “I think it will not be doubted,” says Lord Denman, “that the gamekeeper must answer in damages to the wouuded party. This," he adds, "might possibly be assumed as clear in principle, but there is also the authority of the present Chief Justice of the Common Pleas in its support in Illidge v. Goodwin. It is unuecessary to follow the judgment in the consideration of the second part of the case, namely, whether the plaintiff, having contributed to the accident by getting into the cart, was prevented from recovering in the action, as no such question arises here. In Daniels v. Potter, 4 C. & P. 262, the defendants had a cellar opening to the street. The flap of the cellar had been set back while defendant's men were lowering coals into it, as the plaintiff contended, without proper care having been taken to secure it; the flap fell and injured the plaintiff. The defendant maintained that the flap had been properly fastened, but also set up a defense that its fall had been caused by some children playing with it. But the only question left to the jury by Tindal, C. J., was whether the defendant's men had used reasonable care to secure the flap. His direction implies that in that case only would the intervention of a third party causing the injury be a defense. The cases of Hughes v. Macfie and others and Abbott v. Macfie and others, 2 H. & C. 744, two actions arising out of the same circumstances, and tried in the Passage Court at Liverpool, though at variauce with some of the foregoing so far as relates to the effect of the plaintiff's right to recover where his own act as a trespasser has contributed to the injury of which he complains, is in accordance with them as respects the defendant's liability for his own act where that is the primary cause, though the act of another may have led to the immediate result. The defeudants had a cellar opening to the street. Their men had taken up the flap of the cellar for the purpose of lowering casks into it, and, having reared it against the wall nearly upright with its lower face, on which there were cross-bars, toward the street, had gone away. The plaintiff in one of the actions, a child of five years old, got upou the crossbars of the flap, and, in jumping off them, brought down the flap on himself and another child (the plaintiff in the other action), and both were injured. It was held that while the plaintiff whose act had caused the flap to fall could not recover, the other plaintiff who had been injured could, provided he had not been playing with the other, so far as to be a joint actor with him. Bird v. Holbrook, 4 Bing. 628, is another striking case, as there the plaintiff was undoubtedly a trespasser. The defendant being the owner of a garden, which was at some distance from his dwellinghouse, and which was subject to depredations, had set

in it without notice a spring-mun for the protection of

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his property. The plaintiff, who was not aware that a whether rightful or wrongful, of those who removed spring-gun was set in the garden, in order to catch a the obstructions placed in the culvert under the cirpea-fowl, the property of a neighbor which had escaped cumstances found in this case." "The primary and into the garden, got over the wall, and his foot coming, substantial cause of the injury,” says Brett, J., in his pursuit of the bird, into contact with the wire the negligence of the defendants, and it is not compewhich communicated with the gun, the latter went off tent to them to say that they are absolved from the and injured him. It was held, though his own act consequence of their wrongful act by what the plainhad been the immediate cause of the gun going off, tiff or some one else did." “I do not see how the deyet that the unlawful act of the defendant in setting fendants can excuse themselves by urging that the it, rendered the latter liable for the consequences. In plaintiff was prevented by other wrong-doers from the course of the discussion a similar case of Jay v. preventing part of the injury.” The case of HarriWhitfield, at p. 644, was mentioned, tried before Rich- son v. The Great Northern Railway Company, 3 H. & ards, C.B., in which a plaintiff, who had trespassed upon C. 231, belongs to the same class. The defendants were premises in order to cut a stick, and had been simi- bound under an act of Parliament to maintain a delph larly injured, had recovered substantial damages, and or drain with banks for carrying off water for the prono attempt had been made to disturb the verdict. In tection of the adjoining lauds. At the same time cerHill v. New River Company, 9 B. & S. 303, the defend- tain commissioners appointed under an act of Parliaants created a nuisance in a public highway by allow- ment were bound to maintain the navigation of the ing a stream of water to spout up, open, and unfenced River Witham with which the delph communicated. in the road. The plaintiff's horses, passing along the There having been an extraordinary fall of rain, the road with his carriage, took fright at the water thus water in the delph rose nearly to the height of its spouting up, and swerved to the other side of the road. banks, when one of them gave way, and caused the It so happened that there was in the road an open damage of which the plaintiff complained. It was ditch or cutting which had been made by contractors

found that the bank of the delph was not in a proper who were constructing a sewer, and which had beeri left condition; but it was also found, and it was on this that unfenced and unguarded, which it ought not to have defendants relied as a defense, that the breaking been. Into this ditch or cutting, owing to its being of the bank had been caused by the water in it having unfenced, the horses fell and injured themselves and been penned back owing to the neglect of the commisthe carriage. It was contended that the remedy, if sioners to maintain in a proper state certain works any, was against the contractors, but it was held that which it was their duty to keep up under their act. the plaintiff was entitled to recover against the com- Nevertheless, the defendants were held liable. These pany. In Burrows v. March Gas und Coke Company, authorities would appear to be sufficient to maintain L. Rep., 7 Ex. 96, in the Exchequer Chamber, affirm- the plaintiffs' right of action under the circumstances ing a judgment of the Court of Exchequer, where, of this case. It must, however, be admitted that in through a breach of contract by the defendants in not one or two recent cases the courts have shown a disserving the plaintiff with a proper pipe to convey gas position to confine the liability arising from unlawful from their main into his premises, an escape of gas had acts, negligence, or omissions of duty witbin narrower taken place, whereupon the servant of a gas-fitter, at limits by bolding a defendant liable for those consework on the premises, having gone into the part of the quences only which in the ordinary course of things premises where the escape had occurred with a lighted were likely to arise, and which might, therefore, reacaudle, and examining the pipe with the caudle in his sonably be expected to arise, or which it was contemhand, an explosion took place, by which the premises plated by the parties might arise from such acts, negwere injured, the defendants were held liable, though ligence, or omissious. In Greenland v. Chaplin, 5 the explosion had been immediately caused by the im- Exch. 248, Pollock, C. B., says: “I entertain considprudence of the gas-fitter's man in examining the pipe erable doubt whether a person who is guilty of negliwith a lighted candle in his hand. In Collins v. The gence is responsible for all the consequences which Middle Level Commissioners, L. Rep., 4 C. P. 279, may under any circumstances arise, aud in respect of the defendants were bound under an act of Parlia- mischief which could by no possibility have been forement to construct a cutting with proper walls, gates, seen, and which no reasonable person would have anand sluices to keep out the waters of a tidal river, ticipated." Acting on this principle, the Court of and also a culvert under the cut to carry off the drain- Common Pleas, in a recent case of Sharp v. Powell, L. age of the lands lying east of the cut, and to keep the Rep., 7 C. P. 253, held that the action would not lie same open at all times. In consequence of the de- where the injury, though arising from the unlawful fective construction of the gates and sluices, the act of the defendant, could not have been reasonably waters of the river flowed into the cut, and, bursting expected to follow from it. The defendant had, conits western bank, flooded the adjoining lands. The trary to the provisions of the Police Act, washed a plaintiff and other proprietors on the eastern side van in the street, and suffered the water used for the closed the culvert, and so protected their lands; but purpose to flow down a gutter toward a sewer at some the proprietors on the western side, to lessen the evils little distance. The weather being frosty, a grating to themselves, reopened the culvert, and so increased through which water flowing down the gutter passed the overflow on the plaintiff's land, and caused injury into the sewer had become frozen over, in consequence to it. The defendant sought to ascribe the injury to of which the water seut down by the defendant, inthe act of the western proprietors in removing the ob- stead of passing into the sewer, spread over the street, struction which those on the other side had placed at and became frozen, rendering the street slippery. The the culvert. But it was held that the negligence of plaintiff's horse coming along fell in consequence, and the defendants was the substantial cause of the mis- was injured. It was held that, as there was nothing chief. “The defendants,” says Montague Smith, J., to show that the defendant was aware of the obstruc

cannot excuse themselves from the natural conse- tion of the grating, and as the stoppage of the water quences of their negligence by reason of the act, was not the necessary or probable consequence of the defendant's act, he was not responsible for what had Moreover, we are of opinion that if a person places a happened. Bovill, C. J., there says: • No doubt one dangerous obstruction in a highway or in a private who commits a wrongful act is responsible for the road, over which persons have a right of way, he is ordinary consequences which are likely to result there- bound to take all necessary precautions to protect from; but generally speaking he is not liable for dam- persons exeroising their right of way, and that if he age which is not the natural or ordinary consequence

neglects to do so he is liable for the consequences. It of such an act, unless it be shown that he knows or is unnecessary to consider how the matter would have has reasonable means of kuowing that consequences

stood had the plaintiff been a trespasser. The case of not usually resulting from the act are by reason of Mangan v. Atterton, 4 H. & C. 388; L. Rep., 1 Ex. 239, some existing cause likely to intervene so as to occa- was cited before us as a strong authority in favor of sion damage to a third person. Where there is no rea- the defendant. The defendant had there exposed in son to expect it, and no knowledge in the person do- a public market-place a machine for crushing oil ing the wrongful act that such a state of things exists cake without its being thrown out of gear or the handle as to render the damage probable, it injury does re- being fastened, or any person having the care of it; sult to a third person it is generally considered that the plaintiff, a boy of four years of age, returning the wrongful act is not the proximate cause of the in- from school with his brother, a boy of seven, and jury so as to render the wrong-doer liable to an ac- some other boys, stopped at the machine. One of the tion." And Grove, J., said: “I am entirely of the boys began to turn the handle; the plaintiff, at the same opinion. I think the act of the defendant was suggestion of his brother, placed his hand on the cogs not the ordinary or proximate cause of the damage to of the wheels, and the machine being set in motion, the plaintiff's horse, or within the ordinary conse- three of his fingers were crushed. It was held by the quences which the defendant may be presumed to Court of Exchequer that the defendant was not liable : have contemplated, or for which he is responsible. first, because there was no negligence on the part of The expression the natural consequence' which has the defendaut, or if there was such negligence, it was been used in so many cases, and which I myself have too remote; secondly, because the injury was caused no doubt often used, by no means conveys to the mind by the act of the boy who turned the handle, and of an adequate notion of what is meaut; 'probable' the plaintiff himself, who was a trespasser. With the would perhaps be a better expression. If on the pres- latter ground of the decision we have in the present case ent occasion the water had been allowed to accumu- nothing to do, otherwise we should have to consider late round the spot where the washing of the van took whether it should prevail against the cases cited with place and had there frozen obviously within the sight which it is obviously in conflict. If the decision as to of the defendant, and the plaintiff's horse had fallen negligence is in conflict with our judgment in this case, there, I should have been inclined to think that the we can only say we do not acquiesce in it. It appears defendant would have been responsible for the conse- to us that a man who leaves in a public place along quences which bad resulted,” and Keating, J., said: which persons, and among them children, have to *The damage did not immediately flow from the pass a dangerous machine which may be fatal to any wrongful act of the defendant, nor was such a proba- one who touches it, without any precaution against misble or likely result as to make him responsible for it. chief, is not only guilty of negligence, but of negliThe natural consequence, if that be a correct expres- gence of a very reprehensible character, and not the sion, of the wrongful act of the defendant would less so because the imprudent and unauthorized act of have been that the water would under ordinary cir- another may be necessary to realize the mischief to cumstances have flowed along the gutter or channel, which the unlawful act or negligence of the defendand so down the grating to the sewer. The stoppage ant has given oocasion. But be this as it may, the and accumulation of the water was caused by ice or case caunot govern the present. For the decision proother obstruction at the drain, not shown to have ceeded expressly on the ground that there had been been known to the defendant, and for which he was in no default in the defendant; here it cannot be disno degree responsible. That being so, it would obvi-l puted that the act of the defendant was unlawful. On ouely be unreasonable to trace the damage indirectly the whole, we are of opinion, both on principle and back to the defendant.” We acquiesce in the doctrine authority, that the plaintiff is entitled to our judgthus laid down as applicable to the circumstances of ment. the particular case; but we doubt its applicability to

Rule discharged. the present, which appears to us to come within the principle of Scott v. Shepherd, Dixon v. Bell, and other

COVENANT OF LESSEE NOT TO ASSIGN NOT cases to which we have referred. At the same time

A USUAL ONE. it appears to us that the case before us will stand the test thus said to be the true one. For a man who un


DIVISION, JANUARY 29, 1878. lawfully places an obstruction across either a public or private way may anticipate the removal of the ob

HAMPSHIRE V. WICKENS, 38 L, T. Rep. (N. S.) 408. struction by some one entitled to use the way as a thing likely to happen; and if this should be done, the The defendant entered into an agreement to take a lease

of a dwelling-house in Kensington, to contain all usual probability is that the obstruction so removed will, in

covenants and provisoes. The lease tendered to the stead of being carried away altogether, be placed defendant contained a covenant not to assign without somewhere near; thus, if the obstruction be to the

the lessors' consent, such consent not to be withheld to

a respectable and responsible tenant. In an action to carriage-way, it will very likely be placed, as was the enforce the agreement, held, that the covenant was not

a usual covenant. case here, on the footpath. If the obstruction be a dangerous one, wheresoever placed, it may, as was also THIS was action to enforce specific performance of an the case here, become a source of danger from which, agreement for a lease. At the date of the agreeshould injury to an innocent party occur, the original ment the plaintiff was lessee of a house in Elsham-road, author of the mischief should be held responsible. Kensington, for the term of twenty-one years from


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