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general principle of quieting the possession, they will not permit it to be disturbed by claims long dormant, and, therefore, determine in the same manner as they would determine if the very instrument of grant or release were produced; and, secondly, that a toll upon the public, per se, could never have been good by any grant; but it does not follow that it might not have been raised upon some other consideration, which may operate in lieu of a grant, and, consequently, may be claimed by prescription (1 T. Rep. 660; anl see Co. Litt. 114 b, where a toll is expressly mentioned among those things that may be claimed by prescription; also, Burton, pl. 1037, as annexed to a fair or market; First Book, pp. 11, 161). Thus, where the soil and the toll have been in the same hands, from before time of memory, it will be presumed that the soil was originally granted to the public in consideration of the toll; and, in that case, the original grant will be held to be a good consideration to support the demand. And so it is in the case of prescription for exclusive common of pasture, for the same reason. The law will not suppose, that, at the original grant of the common, the lord meant to exclude himself (Co. Litt. 122 b); and yet, the freeholders by prescription, and the copyholders by custom (which in this instance is equivalent to and in lieu of prescription), may have sole and separate pasture against the lord; for, where such exclusive common has immemorially subsisted, it will be presumed that the lord had origin ly granted away the seigniory to the freeholders, ad afterwards resumed it again, by their regrant, divested of the commonage (Saunders, 1, 59; Ibid. 2, 5).

Several fishery.-By the same rule, again, the ownership of the soil does not appear to be essential (as Blackstone states it) to a several fishery (2 Com. 39); for there is no inconsistency in supposing the sole right of fishery to have been originally granted with a reservation of the soil; and, consequently, a man may prescribe for a several fishery, against the owner of the soil, upon the same principle that sole and separate pasture may be prescribed for against the lord; indeed, Lord Coke distinctly tells us, they may be in different persons (Co. Litt. 4 b, and 122 a). And, secondly, it may also be doubted whether Blackstone is quite accurate in defining a free fishery, to be the exclusive right of fishing in a public river (2 Com. 39); for whether the franchise or liberty to fish be exclusive or not,. and whether the stream be private or public, it seems to be equally, in the language of the law, a free fishery (see the authorities cited in the note 181 to Co. Litt. 122 a; also Holford v. Bailey, 13 Jur. 278; First Book, 143).

Sovereign's right to game-Ownership of wild

animals.-Again, it is contended that the sole and exclusive property of those animals that come under the denomination of game has been originally vested in the king, upon the common-law maxim of their being bonâ vacantia, and having no other owner (2 Com. 415). Mr. Christian, in his notes on B. C. has entered largely into the refutation of this doctrine. My reason for introducing it is, therefore, only to show how it stands contradicted by Blackstone's own admissions; First Book, 201; 1 L. C. 343, 344; 2 Id. 230). But how does this stand with the admission that every man had, originally, a qualified ownership in all animals feræ naturæ, as a necessary consequence of possession, ratione soli? For, originally, there was no distinction between one species of wild animals and another. Or how comes it that the common law should have, originally, overlooked this qualified ownership in hares and partridges, any more than in squirrels and butterflies? For these are all animals feræ naturæ alike, and the notion of their being bona vacantia cannot apply to one species more than to another. With respect to waifs and estrays, and the like, these indeed are bona vacantia, for they are things out of possession, and in which no man claims any property; and, therefore, the law has attached them to the royal prerogative, upon a principle of general policy, for the sake of avoiding the contention of occupancy, and to prevent temptations to commiting theft. But, in the present instance, there originally existed a qualified ownership, ratione soli: and the supervenient restraints imposed on the exercise of that qualified ownership have merely arisen from positive laws since made, and subject to the restrictions of which the original qualified ownership still exists (2 Com. 403); and I, therefore, apprehend the conclusion to be, that this species of property was attached to the royal prerogative in restriction and infringement of the common right, and not as bona vacantia, or things in which no man claimed a property.

Sheriff acting as returning officer of members of Parliament-Judicial and ministerial duties.—Again, in distinguishing between the judicial and ministerial capacities of sheriff, Blackstone considers it to be in the former of these capacities, and not in the latter, that he (the sheriff) is to decide the election of knights of the shire, and to return such as he shall determine to be duly elected (2 Com: 403; and see contra, Blackstone's Answer to Sir William Meredith's Pamphlet, 1769, p. 23). Now, if a magistrate or other public officer, in the discharge of a ministerial duty, mistakes the law, he renders himself personally responsible for all the consequences, and is liable to an action in which damages shall be recovered at the suit of the party aggrieved; but

otherwise it is if he mistakes the law in a thing within his jurisdiction, acting as judge and not as minister (1 Hawk. P. C. 192; 2 Ibid. 4 and 85). For example, if my servant is robbed, and a justice refuses to examine him concerning the robbery, by which I am prevented from proceeding against the hundred, I may have an action on the case against him. Why? Because the examination by him in this case is not as judge, but as a particular minister appointed by the act for that purpose (1 Leon. 323). Upon the same principle, if justices of the peace adjudge a child to be a bastard who is not so, an action lies against them. For here, again, they are acting in the discharge of a ministerial function, and not as judges (Comberb. 482; sed qu. now). The escheator who returns a false office, contrary to what was found by the jury, is liable to an action upon the case at the suit of the party aggrieved, upon the same principle (4 Inst. 226; 1 Roll. Abridgm. 92). And why then is a different conclusion to be drawn with respect to the sheriff acting as the returning officer at the election of knights of the shire? Does he not subject himself to an action by his false return, in the same manner as the escheator does? And why, but because in the eye of the law he is considered like the escheator, to be acting in that capacity, not as judge, but as minister? And if he fails in the performance of his duty, by not making the return in due time, or by returning others than those who are duly elected, he is not only liable to an action in which double damages are given, but incurs a heavy penalty (1 Com. 180; 2 Will. 4, c. 45, s. 76; 6 Vic. c. 18, s. 7; Shaw's Elect. 75). Since Blackstone's time, the question as to whether the sheriff, acting as a returning officer, was discharging a judicial or ministerial office has been discussed: Lord Tenterden thought he filled a mixed character, partly judicial, partly ministerial (Cullen v. Morris, 2 Stark. N. P. C. 577). Several statutes have stripped the sheriff of judicial functions at parliamentary elections (Shaw's Elect. 75).

Actions for slander and libel-Truth-Damnum absque injuria.-Again, we read, that "no action will lie for slander or libel where the defendant can prove the facts to be true. As, if I can prove the tradesman a bankrupt, the physician a quack, the lawyer a knave, and the divine a heretic, this will destroy their respective actions. For though there may be damage sufficient accruing from it, yet if the fact be true, it is damnum absque injuria, and where there is no injury, the law gives no remedy. Eum qui nocentem infamat, non est æquum et bonum ob eam rem condemnari; delicta enim nocentium nota esse oportet et expedit (3 Bl. Com. 125, 306; 4 Id. 125). That the truth of a libel may be pleaded specially, in justification, is said to be warranted by the opinion

of the profession, and the practice of the present day; but this is to be understood with certain restrictions; and the defendant cannot, upon the general issue of "not guilty," prove the facts to be true in justification, but only in mitigation of the damages (Selwyn's Law of Nisi Prius, p. 935; Buller, N. P. p. 9). On a motion for an information in the Court of King's Bench, for a libel (Mich. Term, 8 Geo. 2), Lord Chief Justice Hardwicke expressly declared that it was a mistake to suppose that if an action were brought, the fact, if true, might be justified; that he had never heard of a justification in an action for a libel even hinted at; that the law was too careful in discountenancing such practices; and that the only favour which the truth afforded in such case was, that it might be shown in mitigation of damages in an action, and of the fine upon an indictment or information. [A MS. remark on this in our copy, runs thus: "There does not appear to be any express decision to this effect, though it has latterly grown into practice, and seems now to be admitted; yet if the subject be duly considered, the policy of the rule may, perhaps, appear very questionable; we must be careful not to confound the principles of slander and libel. The writer reasons very ably on the subject below."] I presume then, with submission, that the law is much too generally stated, when it is said, that no action will lie if the defendant can prove the facts to be true; but that which I principally object to, in the present instance, is the general tenor of the reasoning from the dictum of the civil law. Eum qui nocentem infamat, &c., is one of those loose dicta of the civilians, in which there is neither justice nor policy, and which has accordingly been rejected by our neighbours of the Continent, as may be seen by the following extract from the Introduction to their new Penal Code:-"Depuis longtemps on desirait que le legislateur mit un frein à de tels exces; car ou le fait qu'on s'est permis d' imputer à quelqu'un est defendu par la loi, ou il ne l'est pas. S'il est defendu, c'est aux juges qu'il appartient de verifier le fait et d'appliquer la peine. Tout bon citoyen doit le denoncer, et si au lieu de le declarer à la justice, il le répand dans le public, soit par ses propos, soit par ses écrits, il est evident que cette conduite est dirigée par la mèchanceté plutôt que par l'amour du bien. La malignité qui saisit avidement ce qu'on lui presente comme ridicule ou odieux, convertit bientôt les allegations en preuves, et bientôt le poison de la calomnie a fait des ravages qui souvent ne s'arrêtent pas à la personne calomniće, mais portent la desolation dans toute la famille. En vain pretendraient-ils que les faits sont notoires; en vain demanderaient-ils qu'on les admette à la preuve; ils ne seraient point écoutés; de parcils débats ne

serviraient qu'à donner plus d'éclat à cette publicité même qui cstitue le délit (Code Penal, liv. 3, tit. 2, ch. 1). It is true, that where there is damage without injury, ubi damnum absque injuriâ, the law gives no remedy. But then it is to be understood that the act, from which the damage arises, is itself perfectly innocent and lawful. For example, suppose I have a mill, and my neighbour builds a mill upon his own ground, by which the profit of my mill is diminished, yet no action lies against him; for, in building the mill upon his own ground, he does a lawful act (1 Roll. Abridg. 107; Noy's Maxims, 84). And so if one set up a school in the neighbourhood of an ancient school, by which the ancient school receives damage, yet no action lies; for this is a lawful act, and the public are benefitted by the competition in such cases (1 Roll. Abridgm. 107; Noy's Maximus, 84). But, with respect to defamation of character, which is the ground of an action upon the case, for slander or libel, the conclusion is widely different; for, in order to support the action, the defamation must be shown to be from malice, and unconnected with the ends of public justice, and, consequently, in no point of view can be said to be an innocent and lawful act (1 Lev. 82; Roll. Abridgm. 58; Finch L. 186). On the contrary, the very essence of this offence is the malus animus, the malicious and wicked intention to defame and vilify, which is no more capable of being justified by the eventual truth of the suggestion, upon the general issue of "not guilty," than the act of wilfully and maliciously killing an attainted or outlawed felon or traitor, is to be justified by the production of the record of his attainder or outlawry (1 Hale. P. C. 497). But although it is strictly no justification of the defamer, that the alleged matter is true, yet the law having, in this particular, a respect to the weaknesses and frailties of human nature, allows him either to plead specially some traversable fact, which, by disproving the falsity of the accusation, is tantamount to a justification (and that indeed has only been settled by very late decisions), or to give evidence to that effect upon the general issue, not in justification, but in mitigation of the damages to be rendered by way of compensation to the party aggrieved; for it is evident that this must always depend in a great measure upon the relative innocence and credit of him to whom the compensation is to be made. And though, as a general proposition, it is no doubt expedient that offences should be made known, it is not so by means of slander and libel; not by defamatory accusations promulgated in malice, and unconnected with the ends of public justice. If a person has been guilty of a crime, he ought to be proceeded against in a legal way, and not reflected upon in this manner (Buller, N. P. 9). In

Selw. N. P. 1052, 11th edit., it is said that if the matter of the libel be true, the defendant may plead it in justification; but in such justification if there be anything specific in the subject, issuable facts ought to be stated, and not general charges of misconduct. So speaking of slander, it is said (p. 1265), if the charge be true, the defendant may plead it in justification (see 1 L. C. 336; First Book, 242). "His faults lie open to the laws, let those,

Not you, correct them!"

Civil law maxims.—And here, perhaps, I may be allowed to remark, that the maxims borrowed from the Roman or civil law are sometimes very unnecessarily introduced in Blackstone's Commentaries, when the suggestions of plain common sense may Of this serve our purpose a great deal better. description, the foregoing is a remarkable example. Upon another occasion, instead of explaining that the inn-keeper is bound to restitution, if the guest is robbed in his house, by any person whatever, unless by his own servant or comparion, because of the public employment he exercises (1 Ld. Raym. 917; 1 Salk. 143; 12 Mod. 487), he refers us to the vague maxim of qui non prohibet cum prohibere possit, jubet. And instead of explaining, that the husband and wife were not formerly, even in civil proceedings (see First Book, 274), admitted to be witnesses for each other, because it might be a temptation to perjury, nor against each other, because it would be against the policy of marriage, he assigns the more remote reasons, concluded, in the first instance, from the maxim, nemo in propriâ causâ testis esse debet; and in the second, from the maxim, nemo tenetur seipsum accusare (see 1 L. C. 267).



FOR VALUABLE CONWITHOUT NOTICE. - Legal estate obtained from a trustee-Mistake-Forfeiture— Estoppel.-In the notorious case of Faussett v. Carpenter (2 Dow. and Cl. 232), it is generally agreed that the House of Lords came to a wrong decision, which at one time it was intended to remedy by an act of Parliament, though this was never done. The question was, as to the legal effect of a conveyance in which the parties were thus situated one party, P., happened to be, under a settlement, a trustee for one of the parties to the conveyance, N. He also, in right of his wife, had himself a beneficial intere t in one-third, and a sale was made of all the three parts to a purchaser, all the parties conveying, N. and P. conveying at the same time; and the House of Lords held that the effect of the deed was not to pass in law the interest which

P. held as trustee under N.'s settlement-a position clearly erroneous, as pointed out in the following decision of Vice-Chancellor Wood, where his Honour held that the doctrine of estoppel by deed only applies between the parties to the deed, and to matters arising out of the deed. In collateral matters, the deed would be evidence, but no estoppel. A purchaser for valuable consideration, without notice, getting in the legal estate from a trustee, takes it subject to all those trusts upon which the trustee held it, and appearing upon the face of the instrument under which the trustee takes. It appeared that a testator gave all his real estates to three trustees, of whom his brother J. C. was one, upon trust, amongst other things, to pay to each of his brothers the annual value of £100 during his life, or until he should take the benefit of any act for the relief of insolvent debtors, or become bankrupt or do any act which, but for that condition, would have the effect of giving the benefit of his annuity to any other person; and in the event of either of such last-mentioned events happening, then his annuity should from thenceforth cease; and upon trust, after paying certain other annuities, for the benefit of the testator's sisters, to pay the whole of the surplus rents and profits to J. C. for his life, with remainders in trust for the children of J. C.; and in default of such issue, upon trust to pay the same unto and equally between such of the testator's brothers and sisters as might be then living, and the survivors and survivor of them, during their respective lives, but subject to the same restrictions respecting bankruptcy and insolvency, and against alienation as thereinbefore contained with reference to the annuities. This will, not having been discovered for several years after the death of the testator, another will was acted on in the meantime, whereby the testator had given all his real estates equally amongst his brothers and sisters; and acting on the belief that this was the last will, J. C. joined some of his brothers in mortgaging all their interest in the testator's estate: Held, first, that the whole interest given by the last will passed by the mortgage; and secondly, that the annuities given by the will to such as joined in the mortgage, ceased upon the execution of the mortgage. Carter v. Carter, 27 Law Journ. Ch. 74.

ASSIGNEES PURCHASING DIVIDENDS. -Creditor and assignee-Solicitor purchasing-Trustee and cestui que trust-Sale of dividend.-A purchase by an assignee under a bankruptcy of a creditor's dividends under a proof is valid as between the assignee and that creditor, supposing that the transaction is fair, that the creditor is sui juris, and that there is no undue exercise of power or influence on the part of the assignee. Where an assignee pur

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chases a creditor's dividends, conjointly with another person whose position is known to the creditor, although by reason of concealment of the facts that the assignee is purchasing for his own benefit, the transaction is not valid as to the assignee: it is valid as between the creditor and such other person. Semble, a trustee merely as such may purchase of his cestui que trust, a solicitor of his client, or an assignee of a creditor, supposing that the transaction is fair, and that there is no superior means of knowledge of which the cestui que trust is not aware (Pooley v. Quilter, 6 Week. Rep. 216). As this is a very important matter we will give such part of the judgment of Vice-Chancellor Kindersley, as will explain the decision, premising that the plaintiff was a creditor entitled to dividends under a bankrupt's estate, and the defendant was one of the creditor's assignees. His Honour said that it was clear that Quilter (the defendant) was made aware of the plaintiff's desire to sell, being in want of ready money, and that he wrote to Quilter saying that he was ready to sell, not to Quilter specially, but that be was ready to sell generally. Whidborne was the solicitor of Hennet before the bankruptcy, and therefore had knowledge more or less of his affairs; but he was not employed on the commission. It did not appear that it was communicated to the plaintiff at first who was buying, but Whidborne became the purchaser. There was then the negotiation by Mackenzie for Whidborne; and it now appeared that as to a moiety, Whidborne was purchasing on behalf of Quilter, one c? the assignees-that was beyond all doubt with respect to the first transaction; and in respect of the moiety purchased by Whidborne, one-third was for the benefit of Brunskell, who had no interest in the subsequent sales. The first question was, what were the grounds upon which the plaintiff sought to impeach the transaction? It was very clear that a person in the situation of an assignee had a greater means of knowledge of matters relating to the bankrupt's estate than a mere creditor, unless there were special circumstances; and it must be well known to every creditor, and every one else, that he had such means of knowledge. First, as to the amount of the assets, as to their nature, what they might realise, and what debts due from other persons might produce, and as to the probability of the amount of debts to be established on the whole against the estate. There were also superior means of forming a judgment as to the time which must elapse before the assets were realised. He must know the value of any given creditor's claim; and it was therefore justly said that when the plaintiff was dealing with Quilter, he was dealing with a person having better means of knowledge than himself. On the other

hand, it was obvious that Pooley, who was not weak in intellect or incapacitated, but a man of business, must have known that Quilter had such means of knowledge. There was no fixed rule that a person might not purchase from his cestui que trust-some additional ingredient must be introduced. A trustee for sale could not purchase so long as such relation continued; nor could a trustee who had by means of his office superior knowledge as to value, deal with his cestui que trust who had not such means, and who did not know that the trustee had them. The mere naked proposition, however, could not be enunciated as the rule of the court. There might be trustees in various positions-as, for instance, trustees to preserve contingent remainders, or where there was an estate in A. in fee in trust for B. in fee, B. being adult, and sui juris, where the proposition would not hold good; or, to go further, the case of a solicitor who was not absolutely precluded from purchasing from his client merely because he was a solicitor, although no doubt he filled a sort of fiduciary character. At the same time the court looked with great jealousy to see that all was fair. Perhaps the strongest case was that of an assignee, because there was scarcely a case where a trustee (for he was such) had greater means in dealing with creditors of availing himself of his position. But still even there, where the party dealing was adult and there was no undue influence, there was no reason why a creditor might not deal with an assignee, or why an assignee should be disqualified from dealing with a creditor. Another question was, whether the assignee might purchase for himself? Let it be assumed that there was a direct dealing with Quilter, there was no rule entitling the plaintiff to say, "Although I knew whom I was dealing with" (alleging no concealment or undue influence) "the sale must be set aside," merely because it was the case of creditor and assignee. There was here no suggestion of misrepresentation by Quilter, nor of concealment intentional or unintentional of any fact which he ought to have communicated to the plaintiff. It was said, he knew there would be an early dividend, but that did not appear, nor that there was any undue exercise of the power of the assignee or inadequacy of purchase money. It was true the money paid was 6s., and not 8s. in the pound, but the fact of the probability of the dividend exceeding 8s. was known to both parties, and indeed it was recited in the assignment-the £7,000 was given for that chance. There were no extrinsic circumstances of undue influence, or exercise of the power of the assignee, or inadequacy of price, to induce the court to say that the transaction ought not to stand. Therefore if there had been a direct assignment from the plaintiff to Quilter, he (the

Vice-Chancellor), much as he disapproved of such a transaction on the part of an assignee, would be under the necessity of saying that the plaintiff at least was not the person who had a right to impeach it, being adult and sui juris, and there being no extrinsic circumstances. The most important point, however, was, suppose Pooley conceived he was dealing with Whidborne, and then after the transaction was completed in 1856, discovered that he was dealing with him as agent and trustee for Quilter, that would give the matter a very different aspect. If the court should conclude that Pooley was not aware till after the transaction was completed that Quilter was beneficially interested in the purchase made by Whidborne, at least to the extent of the interest of Quilter, he could not maintain that as against Pooley, and if so, an assignee of general creditors would have no such right. How did the matter stand on that point? Quilter represented that he never told Pooley that he was interested. There was nothing on the face of the transactions to show that any one but Whidborne was interested. Quilter said that the plaintiff had in the course of the interviews that took place offered to sell to him. It was very remarkable that no one mentioned the circumstance to Pooley. Taylor in his letter did not say that the plaintiff did not know it; and although inferences might be drawn from those circumstances, it was not inconsistent with the probability that the plaintiff did not know the fact that Quilter was interested in the purchase. Then there was the unequivocal oath of Pooley, that until some time in 1856 he was not aware that Quilter was interested. Upon the evidence as it stood, therefore, he (the Vice-Chancellor) should not decide the point. The affidavits were made at the last moment, and every one who could give evidence was living. The fact might be got at in three ways: by an inquiry in chambers, in which case the parties could be cross-examined upon their affidavits, by vivâ voce examination in court under the new practice, and by directing an issue; in which case there would not only be examination and cross-examination personally, but the matter would be decided by that tribunal which was considered the very best to judge of the truth in such a With respect to the case of Whidborne, there was no doubt that the plaintiff knew the fact of his being the solicitor of the bankrupt previously to the bankruptcy. Therefore, as between Pooley and Whidborne, there was no question but that the plaintiff would have no relief as against him. But if the transaction with Quilter ought not to stand, the question was whether the plaintiff was entitled to set aside the transaction as to Whidborne; it appeared to his Honour he was not. The same observation applied to the case of Brunskell. The


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