they were not liable. Board of Works, 50 Dixon v. Metropolitan L. J., Q. B. 772; 7 Q. B. D. 418; 45 L. T. 312; 30 W. R. 83; 46 J. P. 4. The defendant was the owner of a series of artificial lakes, which had existed for a long time without causing damage. Upon a most unusual rainfall occurring, the bank at the end of the higher lake gave way, and the water rushing with great violence into the lakes below caused their banks also to give way, and the aggregate volume of water from the lakes rushing down the valley, caused damage to certain county bridges lower down the stream. On the trial of an action by the surveyor of the county against the defendant to recover for the damage done to the bridges, the jury found that there had been no negligence in the construction or the maintenance of the lakes, but that if the flood had been anticipated, the effect might have been prevented :-Held, that the rainfall being so unusual as to amount to vis major or the act of God, the defendant was not liable. Nicholls v. Marsland, 46 L. J., Ex. 174; 2 Ex. D. 1; 35 L. T. 725; 25 W. R. 173— C. A. The principle that if a man brings and accumulates upon his land anything which, if it escapes, may cause damage to his neighbour, he does so at his peril, is not applicable to the case of water stored in tanks in India, which have existed from time immemorial, and are preserved and repaired by the landowners by reason of their tenure, as essential to the welfare and existence of the people. Madras Ry. v. Carvetinagarum (Zemindar), 30 L. T. 770; 22 W. R. 865-P. C. Where water escaped from the pipes of a company owing to an extraordinary frost and caused damage, the company were held not liable. Blyth v. Birmingham Waterworks, 11 Ex. 781; 25 L. J., Ex. 212; 2 Jur. (N.S.) 333; 4 W. R. 294. Underground.]-A.'s mine was flooded by water which had, after an unusual rainfall, accumulated in an excavation made by B. on his land, and had escaped thence through his mine into A.'s, which was situated at a lower level-Held, that although B. in making the excavation had no intention of collecting water therein, and although he had provided an outlet for such an amount of water as might be looked for in ordinary seasons, he was liable for the damage sustained by A. Fletcher or Musgrave v. Smith, 47 L. J., Ex. 4; 2 App. Cas. 781; 37 L. T. 367; 26 W. R. 83-H. L. And see WATER AND WATERWAYS. Personal Incapacity.] In a contract of apprenticeship, by which it is agreed that the apprentice shall honestly remain with and serve his master during the term fixed, there is in law an implied condition that the apprentice shall not be prevented from serving by the act of God. Boast v. Firth, 38 L. J., C. P. 1; L. R. 4 C. P. 1; 19 L. T. 264; 17 W. R. 29. The plaintiff contracted with a wife as her husband's agent that she should play the piano at a concert. She was unable to attend owing to illness. In an action against the husband for breach of contract :-Held, that his wife's illness and consequent incapacity excused him. Robinson v. Davison, 40 Ï.. J., Ex. 172; L. R. 6 Ex. 269; 24 L. T. 755; 19 W. R. 1036. An order in bastardy was made on February 8. On the 12th the appellant entered into the proper recognizance, and on the same day sent a written notice of his having done so by the post, addressed to the mother of the child. The mother died on February 9-Held, that the sessions were bound to hear the appeal, the appellant being excused from performing the duty of giving notice, under 8 & 9 Vict. c. 10, s. 3, by its becoming impossible by the act of God. R. v. Leicestershire Justices, 15 Q. B. 88; 4 New Sess. Cas. 124; 19 L. J., M. C. 209; 14 Jur. 550. See also CONTRACT (D). Inevitable Accident-Charterparty.]-By the terms of a charterparty a ship was to be loaded in regular and customary turn, except in cases of riot, strikes or any other accident beyond the freighter's control, which might prevent or delay the loading :-Held, that a fall of snow, which rendered it impossible to bring the cargo to the place of shipment, was not an accident within the meaning of the exception. Fenwick v. Schmalz, 37 L. J., C. P. 78; L. R. 3 C. P. 313; 18 L. T. 27; 16 W. R. 481. Collision.]-In order to constitute an inevitable accident it is necessary that the accident should not have been capable of being prevented by ordinary skill and diligence-not extraordinary skill or extraordinary diligenceby that degree of diligence and skill which is generally to be found in persons who properly discharge their duty. The Thomas Powell v. The Cuba, 14 L. T. 603. Inevitable accident, in a cause of damage to a ship, is that which a party could not possibly prevent by the exercise of ordinary care, caution and maritime skill. The Uhla, 19 L. T. 89. When damage might have been avoided by shipping cable and setting sail :-Held, that it was not an inevitable accident, but the result either of negligence or the absence of proper nautical skill. Ib. A sailing ship in a gale drove from her anchors across a sand, and her rudder was so damaged as to render the ship unmanageable : in this condition she came into collision after sunset with a brig at anchor. At the time of the collision the ship had her anchor light exhibited and no other light. In an action of damage by the owners of the brig against the ship it was held that the collision was occasioned by inevitable accident, and that the ship, in the circumstances of the case, was not to be deemed in fault for not carrying side lights or the three red lights prescribed by article 5 of the Regulations for Preventing Collisions at Sea, and that the suit ought to be dismissed without costs. The Buckhurst, 6 P. D. 152; 30 W. R. 232. Inevitable accident is where the collision could not possibly have been prevented by proper care and seamanship under the particular circumstances of the case. So that 1. DEFINITION. 2. CAUSE OF ACTION. where the defence of inevitable accident is set up on behalf of a vessel prima facie to blame for a collision, the defence to succeed, must be supported by proof that everything was done which could and ought to have been done to avoid the collision; and this, though the vessel is in some degree disabled, and so less manageable than she would otherwise have been. The Calcutta, 21 L. T. 768-P. C. Inevitable accident is that which the party charged with the damage could not possibly prevent by the exercise of ordinary care, caution and maritime skill. The Marpesia, 8 Moore, P. C. (N. s.) 468; L. R. 4 P. C. 212; 26 L. T. 333. See SHIPPING. See CONTRACT-IMPOSSIBILITY. ACT OF PARLIAMENT. ACT OF STATE. See PUBLIC OFFICER, CROWN. ACTION. 1. Definition, 211. 2. Cause of Action, 211. 3. Election of Remedy, 213. traversed, in order to enable a plaintiff to sustain his action. Read v. Brown, 58 L. J., Q. B. 120; 22 Q. B. D. 128; 60 L. T. 250; 37 W. R. 131-C. A. The defendants agreed to transfer to the plaintiff shares of the nominal value of £6,000 in a projected company as soon as the company was incorporated. The company was afterwards incorporated by registration under the Companies Acts at Somerset House, which is outside the jurisdiction of the Mayor's Court, London. The plaintiff commenced an action in the Mayor's Court for specific performance of the agreement :-Held, that the defendants were entitled to prohibition, as part of the cause of action-namely, the incorporation of the company-arose outside the jurisdiction. Bowler v. Barberton Development Syndicate, 66 L. J., Q. B. 144; [1897] 1 Q. B. 164; 75 L. T. 620; 45 W. R. 162-C. A. See also MAYOR'S COURT. In an action for the price of goods sold and delivered, non-payment of the price is part of the cause of action, and therefore the county court of the district in which the plaintiff resides has (on leave being given by the registrar) jurisdiction under s. 74 of the County Courts Act, 1888. Northey Stone Co. v. Gidney, [1894] 1 Q. B. 99; 10 R. 16; 70 L. T. 82; 42 W. R. 99. Affirmed in C. A. See also COUNTY COURT. Time of Accrual of.1-Where trustees of a turnpike road negligently made and continued improper catchpits for water, so that on some occasions the waer flowed over and injured 4. What Destroys or Suspends Right of land-Held, that the continuing the catch Action, 216. Action" is a general term which would properly include informations and other proceedings by the Crown. Bradlaugh v. Clarke, 52 L. J., Q. B. 505; 8 App. Cas. 354; 48 L. T. 681; 31 W. R. 677; 47 J. P. 405-H. L. (E.) An interpleader issue is not an action within the meaning of s. 100 of the Judicature Act, 1873, and the rules of court made under that act. Hamlyn v. Betteley, 50 L. J., Q. B. 1; 6 Q. B. D. 63; 43 L. T. 790; 29 W. R. 275C. A. 2. CAUSE OF ACTION. What is.]—A cause of action includes every fact which it would be necessary to prove, if pits was a new cause of action every time such damage was caused, and that a three months' limitation for commencing an action against them for such damage ran from the time the damage was effected. Whitehouse v. Fellowes, 10 C. B. (N.s.) 765; 30 L. J., C. P. 306; 4 L. T. 177; 9 W. R. 557. In working a mine under a house a party left insufficient support to the house, but no actual damage resulted until some years after the workings had ceased-Held, that the cause of action accrued when the damage actually occurred, and not at the time when the act was done. Backhouse v. Bonomi, 9 H. L. 503; 34 L. J., Q. B. 181; 7 Jur. (N.S.) 809; 4 L. T. 754; 9 W. R. 769. See LIMITATIONS (STATUTES OF) (A). The foundations of the plaintiff's houses, which fronted a street within the district of the defendants, an urban authority under the Public Health Act, 1875, fested upon an old ditch which crossed the street. The defendants in excavating the street for the purpose of constructing a sewer along it, cut across the ditch, and, the excavations being lightly filled up, the oozy matter from the ditch, gradually escaping, carried away with it the sandy soil on which the foundations of the houses rested, and thereby set up a constant cause of subsidence. The defendants' works, which were negligently done, were completed in March, 1886. Cracks in the walls of the houses first appeared in March, 1886, and plaintiff having commenced thenceforward continued to increase. The an action in August, 1889, the defendants contended that 3. ELECTION OF REMEDY. his claim was barred by s. 264 of the Public Health Act, 1875, inasmuch as the action was not commenced within six months next after the accruing of the cause of action :Held, that the cause of action in respect of damage sustained by the houses within six months prior to the commencement of the action did not accrue until that damage had occurred, and that in respect of such damage the plaintiff was entitled to recover, notwithstanding the lapse of six months from the completion of their works by the defendants. Darley Main Colliery v. Mitchell (11 App. Cas. 127) explained. Crumbie v. Wallsend Local Board, 60 L. J., Q. B. 392; [1891] 1 Q. B. 503; 64 L. T. 490; 55 J. P. 421-C. A. Whether Retrospective-Crown Grant of Land-Waiver of Rights of Crown.]-The respondent, who held land under a grant from the Crown by which all mines and minerals were expressly reserved to the Crown, brought an action against the appellants for the removal of minerals from under his land. After the commencement of the action he obtained a statement in writing from the Crown that no claim was made on the part of the Crown to the minerals in question Held, that this statement had no retrospective effect so as to vest in the respondent a title to the minerals at the commencement of the action, and that the action would not lie. Fernando v. De Silva, 82 L. J., P. C. 111; 107 L. T. 670-P. C. No Title at Date of Issue of Writ-Subsequent Acquirement of Title Amendment.] -A., believing that X. died intestate, took out administration to him, and commenced an action as administrator against C. C. who had been aware that X. left a will appointing him executor, declared that fact for the first time in his defence, and thereupon A. took out administration with the will annexed (C. having renounced), and sought to amend the pleadings accordingly-Held, that A.'s application must be refused, as at the date of the issue of the writ she had no title to sue. Creed v. Creed, [1913] 1 Ir. R. 48. In debt for an annuity payable at the Annunciation, or within twenty days after, the writ was brought April 8, and held bad; for no cause of action had then arisen. Bludden's Case, [1597] Cro. Eliz. 565. Place of Accrual.]-A. resided and carried on business at M., and B., who had various places of business elsewhere, agreed with A. to carry on a partnership business in certain transactions at M., where the books were kept, and where the advances were made by A. At the close of the partnership affairs, which were attended with loss, a balance was struck, shewing a debt due by B. to A. :Held, that the cause of action accrued at M. Luchmeechund v. Mull, 3 L. T. 603-P. C. See PRACTICE (D). make his election upon which he will rely. Jones v. Clay, 1 Bos. & P. 191. S. P., Murphey v. Cadell, 2 Bos. & P. 137. A person who has preferred an indictment for an assault, from which he did not suffer any personal injury, and has succeeded in it, and has received from the Treasury a portion of the fine imposed upon the defendant, is not entitled, in an action against the same defendant, to recover more than nominal damages. Jacks v. Bell, 3 Car. & P. 316. After an acquittal of a defendant upon an indictment for a felonious assault upon the plaintiff by stabbing him, the plaintiff may maintain trespass to recover damages for the civil injury, if not shewn to have colluded in procuring such acquittal. Crosby v. Leng, 12 East, 409; 11 R. R. 437. In an action by a woman for assaulting her and forcibly violating her person, whereby she was delivered of a child, the judge, upon her evidence, directed a nonsuit :-Held, that the direction was right, for if a rape had been committed no action would lie until after the defendant had been prosecuted, and if the plaintiff had consented she could not maintain an action for the assault. Wellock v. Constantine, 2 H. & C. 146; 32 L. J., Ex. 285; 9 Jur. (N.s.) 232; 7 L. T. 751. Cause of Criminal Offence - Felony Application to Dismiss Action-Stay of Proceedings until Defendant Prosecuted.]— Where a statement of claim is based on a felony alleged to have been committed by the defendant against the plaintiff, the court will stay further proceedings in the action until either the defendant has been prosecuted for the felony or a reasonable excuse has been shewn for his not having been so prosecuted. Smith v. Selwyn, 83 L. J., K. B. 1339; [1914] 3 K. B. 98; 111 L. T. 195—C. A. A plaintiff, having sued at law and in equity for the same cause of action, was, after issue joined, ordered by a court of equity to elect in which suit he would proceed, and he elected to proceed in equity, and withdrew the record. An order was afterwards made by the same court for the defendant to pay the plaintiff his costs at law, which order was, on appeal, rescinded by the Lord Chancellor, who directed that the defendant should be at liberty to proceed at law. A judge's order having been made for the plaintiff to pay the defendant's costs in the action :-Held, that this order was wrong, for that the plaintiff's election to proceed in equity did not amount to a discontinuance, and the defendant, if entitled to his costs at all, must apply to the court of equity. Simpson v. Sadd, 16 C. B. 26; 3 C. L. R. 917; 24 L. J., C. P. 156; 1 Jur. (N.S.) 736. Where a plaintiff has proceeded at law and in equity for the same subject-matter, and after issue joined has, under an order of a court of equity, elected to proceed in equity, the court will not, under 15 & 16 Vict. c. 76, s. 226, prevent the defendant from proceeding to obtain judgment in the action for his costs. Mortimore v. Soares, 1 El. & El. 399; 28 L. J., Q. B. 133; 5 Jur. (N.s.) 574. A. filed a bill in equity against B. for the cancellation of bills of exchange drawn by B. 4. WHAT DESTROYS OR SUSPENDS RIGHT OF ACTION. and accepted by A. in part performance of a contract, of which B. failed to perform his part, and for an injunction to restrain B. from parting with or suing on the bills; and, pending the suit, A. commenced an action against B. for damages for breach of the contract-Held, that the suit and action were not for the same matter, and an order to elect obtained by B. was discharged. AngloDanubian Steam Navigation Co. v. Rogerson, 36 L. J., Ch. 667; L. R. 4 Eq. 3; 16 L. T. 262: 15 W. R. 729. When a rule nisi, obtained for a criminal information for a libel in the Queen's Bench is discharged on shewing cause, the applicant may bring an action in another court for publication of the libel. Wakley v. Cooke, 16 M. & W. 822; 4 D. & L. 702. A party against whom a commission of bankruptcy had been maliciously obtained, and to whom, after superseding the commission, the Lord Chancellor had assigned the petitioning creditor's bond, having afterwards brought an action on the case against the petitioning creditor, and a rule of court having been made by consent, referring the matters in dispute, except the bond assigned, to the award of an arbitrator, and an award having been made with an exception of the bond, an action cannot be maintained on the bond. An action on the case is a waiver of a right of action on the bond; and to restore that right the agreement of the parties must be unequivocal. Holmes v. Wainwright, 1 Swan. 20. Separate actions cannot be maintained against the master and the owner of a ship for the same identical cause of action. The creditor has an election to sue either one or the other; but he cannot, after he has sued the one to judgment, maintain another action against the other. Priestley V. Fernie, 3 H. & C. 977; 34 L. J., Ex. 173; 13 W. R. 1089. Tort or Contract.]-A party entitled to sue in contract has his election to sue in tort only where a duty ultra the contract is imposed by law on the defendant. Legge v. Tucker, 1 H. & N. 500; 26 L. J., Ex. 71; 2 Jur. (N.s.) 1235; 5 W. R. 78. An action against a carrier for the breach of his duty to carry safely goods delivered to him, as such, to be carried for hire, whereby the goods are lost, is an action not of contract but of tort, as well in substance as in form; the duty being imposed upon him by the custom of the realm, and being distinct from and independent of his obligation under the contract of carriage, in respect of which latter he may also be sued in an action of contract. Tattan v. G. W. Ry., 2 El. & El. 844; 29 L. J., Q. B. 184; 6 Jur. (N.s.) 800; 8 W. R. 606. In an action against proprietors of a stage coach, to recover damages for an injury sustained by a passenger, in consequence of their coachman having upset the coach on which he was riding, the declaration may be framed, for a breach of duty by the negligence of the proprietors' servants; and proof of a contract is not necessary to support such action, as against common carriers, as they may be sued for the injury, as arising ex delicto; and such actions are not necessarily to be considered quasi ex contractu, or founded on contract. Bretherton v. Wood (in error), 6 Moore, 141; 3 Br. & B. 54; 9 Price, 408; 23 R. R. 556. See also CARRIERS. Whenever there is a contract, and something is to be done in the course of the employment which is the subject of that contract, if there is a breach of duty in the course of that employment, the party injured may recover either in tort or in contract. Brown v. Boorman, 11 Cl. & F. 1; 3 Q. B. 511. Where the liability to do an act arises merely from an agreement to do it upon a good consideration, and there is no such relation between the contracting parties as would involve a common law duty in the performance, the non-performance of the act is not such a breach of duty as can be made the subject of an action of tort. Courtenay v. Earle, 10 C. B. 73; 20 L. J., C. P. 7; 15 Jur. 15. An action on the case will not lie for every neglect to perform a contract. Wood v. Finnis, 7 Ex. 363; 21 L. J., Ex. 138; 16 Jur. 936. In an action against three, wherein the plaintiff declared that they had the loading of a hogshead of his, for a certain reward to be paid to one of them, and a certain other reward to the other two, and that they so negligently conducted themselves in the loading, that the hogshead was damaged :and not the contract out of which it arose; Held, that the gist of the action was the tort, and, therefore, that on a plea of not guilty, the two being acquitted, judgment might be against the third, who was found guilty. Govett v. Radnidge, 3 East, 63; 6 R. R. 539. In an action for a deceit in a warranty made by two upon a joint sale by both of sheep their joint property, the plaintiff cannot recover upon proof of a contract of sale and warranty by one only, as of his separate propery; the action, though laid in tort, being founded on the joint contract alleged. Weall v. King, 12 East, 452; 11 R. R. 445. See also COSTS (I). 4. WHAT DESTROYS OR SUSPENDS RIGHT OF ACTION. Release and Satisfaction.]-A right of action, once vested, can only be destroyed by a release under seal, or by the receipt of something in satisfaction of the wrong done. Willoughby v. Backhouse, 4 D. & R. 539; 2 B. & C. 821; 26 R. R. 566. S. P., Sells v. Hoare, 8 Moore, 451; 1 Bing. 401; 1 Car. & P. 28. When a wrongful act has been completed without the knowledge or assent of the party injured, his right of action is not ordinarily barred by mere submission to the injury, or even by a voluntary promise not to seek redress; some conduct amounting to release or accord and satisfaction must be shewn; although, on account of laches, relief may be refused under special circumstances. De 4. WHAT DESTROYS OR SUSPENDS RIGHT OF ACTION. Bussche v. Alt, 47 L. J., Ch. 381; 8 Ch. D. 286; 38 L. T. 370-C. A. See ACCORD AND SATISFACTION. Suspension of Right.]-To an action by payee against maker of a note, a plea that, after it had become due, it was agreed between the plaintiff, the defendant and A., that A. should pay to the plaintiff in trust for C. £200 for her sole use, or £25 per annum so long as the £200 should remain unpaid, and that the rights and causes of action of the plaintiff upon and in respect of the note should be suspended so long as A. should continue to pay the £25 : and that A. had paid that sum-Held, that the plea was bad, the legal effect of the agreement being not to suspend the plaintiff's right of action upon the note, but only to subject him to an action if he sued contrary to the terms of the agreement. Ford v. Beech, 11 Q. B. 852; 17 L. J., Q. B. 114; 12 Jur. 310-Ex. Ch. The doctrine of a right of action being gone by suspension, applies only to the case where there has once been a subsisting right of action, and not to a case where the objection is that if it had accrued earlier it could not have been enforced from the fact of the same person then being the party both to sue and to be sued. Badeley v. Vigurs, 4 El. & Bl. 71; 2 C. L. R. 1627; 23 L. J., Q. B. 377; 1 Jur. (N.s.) 159. A rule of court giving specific relief in a case where, by law, the party is not entitled to two different remedies, is a bar to an action for the same cause. Cameron v. Reynolds, Cowp. 406. A written agreement to secure a debt, by a mortgage on land, which was to be paid with interest by instalments, is no extinguishment or suspension of the right of action for the debt. Allies v. Probyn, 2 C. M. & R. 408; 4 D. P. C. 153; 1 Gale, 255; 5 Tyr. 1097. Deposit of Negotiable Instrument-Action upon it.]-If a plaintiff deposits a negotiable instrument on which he is suing, at the same time giving notice of the action, he does not thereby part with his right of action; and, if the depositary sues on the same instrument, the court will not, at the instance of the defendant, stay the proceedings in the first action. Marsh v. Newell, 1 Taunt. 109. See Deuters v. Townsend, 5 B. & S. 613; 33 L. J., Q. B. 301; 10 Jur. (N.s.) 1072; 10 L. T. 603; 12 W. R. 1062. Waiver of Tort no Bar to Action.]-In an action by assignees of a bankrupt to recover the value of goods, it appeared at the trial that, after the bankruptcy, eight-five bundles of yarn had been delivered by the bankrupt to the defendant to meet an accom was The plaintiff's mother had for some time received parochial relief; but there being ground to suspect that her poverty feigned, an overseer and a constable went to her house for the purpose of searching for money. The overseer alone entered, and found in a cupboard a sum of money, which he took away, and it was subsequently paid into a bank by the overseer and constable to their joint account. The money was proved to belong to the plaintiff :-Held, that he might waive the trespass, and recover it in an action against both as money had and received to his use. Neate v. Harding, 6 Ex. 349; 20 L. J., Ex. 250. If an owner of goods, after a tortious sale of them, waives the conversion and claims theproceeds after sale, part of which is paid to him, he cannot afterwards treat the seller as a wrongdoer and maintain trover against him. Lythgoe v. Vernon, 5 H. & N. 180; 29 L. J., Ex. 164. A master of an apprentice who has been seduced from his service to work for another person, may waive the tort, and bring an action for work and labour done by his appren. tice against the person who tortiously employed him. Lightly v. Clouston, 1 Taunt. 112; 9 R. R. 713. S. P., Foster v. Stewart, 3 M. & S. 191; 15 R. R. 459. After the death of a sheriff, and before the appointment of his successor, the under-sheriff sold goods under a writ delivered to him before the death of the sheriff. He did not pay over all the proceeds to the execution creditor, who more than six months after the death of the under-sheriff, and also more than six months after they had undertaken administration, sued his executors for money had and received, and also for the tort :Held, that the action for money had and received would lie; and that as that action did not require the same evidence to support it as the action for tort, it was not necessary to waive the tort. Gloucestershire Banking Co. V. Edwards, 56 L. J., Q. B. 514; 19 Q. B. D. 575; 35 W. R. 842. Another Suit Depending.]-See PRACTICE. Judgment Previously Obtained.] See ESTOPPEL. when a Witness.] - See modation bill which he was about to give the ADEMPTION OF LEGACY. bankrupt. The goods were accompanied by an invoice which stated them to be bought by the defendant of the bankrupt :-Held, that the assignees might waive the tort, and bring an action for goods sold and delivered. Russell v. Bell, 10 M. & W. 340. See WILL. ADJUDICATION. See BANKRUPTCY. |