in Jordin v. Crump, it must be observed that, in these instances, the existence of the pit in the waste or field adjoining the road, is not said to have been dangerous to the persons or cattle of those who passed along the road, if ordinary caution were employed.

In the present case, the jury expressly found the way to have existed immemorially; and they must be taken to have found that the state of the area made the way dangerous for those passing along it, and that the deceased was using ordinary caution in the exercise of the right of way, at the time the accident happened.

The result is, considering that the present case refers to a newlymade excavation adjoining an immemorial public way, which rendered the way unsafe to those who used it with ordinary care,-it appears to us, after much consideration, that the defendant, in having made that excavation, was guilty of a public nuisance, even though the danger consisted in the risk of accidentally deviating from the road; for, the danger thus created may reasonably deter prudent persons from using the way, and thus the full enjoyment of it by the public is, in effect, as much impeded as in the case of an ordinary nuisance to a highway. With regard to the objection, that the deceased was a trespasser on the defendant's land at the time the injury was sustained,-it by no means follows from this circumstance that the action cannot be main

tained. A trespasser is liable to an action for the injury which he does but he does not forfeit his right of action for an injury sustained. Thus, in the case of Bird v. Holbrook, 4 Bingh. 628 (E. C. L. R. vol. 13, 15), 1 M. & P. 607 (E. C. L. R. vol. 17), the plaintiff was a trespasser, and indeed *a voluntary one, but he was held entitled *421] to an action for an injury sustained in consequence of the wrongful act of the defendant, without any want of ordinary caution on the part of the plaintiff, although the injury would not have occurred if the plaintiff had not trespassed on the defendant's land. This decision was approved of in Lynch v. Nurdin, 1 Q. B. 37, 4 P. & D. 677, and also in the case of Jordin v. Crump, in which the court, though expressing a doubt as to whether the act of the defendant in setting a springgun was illegal, agreed that, if it were, the fact of the plaintiff's being a trespasser would be no answer to the action.

For these reasons, we are of opinion that the declaration in this case discloses a good cause of action; and also that the third issue was properly found for the plaintiff.

The rule, therefore, must be discharged.

Rule discharged. (a)

(a) As to the rule cited from the Digest, suprà (which purports to be a translation of a law of Solon), see note C. at the end of this volume.

An owner of land made an excavation therein, within a foot or two of a public street, and used no precaution against the danger of falling

into it: A person, passing in the night time, went over the line of the street, fell into the excavation and was injured: held that the owner of

the land was not liable to an action for the injury thus caused. Howland v. Vincent, 10 Metcalf, 371. But see to the contrary, and

conforming to the law as laid down in the case in the text: Birge v. Gardiner, 19 Connecticut, 507.

*In the Matter of JOHN FOSTER, a Bankrupt.

Feb. 13. [*422

By a settlement made on the 13th of July, 1841, in contemplation of a marriage between A. and B., C. covenanted to pay to the trustees, so long as A. and B., or either of them, or any issue of the said intended marriage, should be living, an annuity of such an amount, as would, either alone, in the mean time and until any real or personal estate should devolve upon or vest in A. and B., in B.'s right, or any issue of the marriage, under the settlement of her father and mother, or otherwise, or together with the annual produce to arise from any such real or personal estate, after any such devolution or vesting should take place, make up an annuity of 1507., payable half-yearly. The marriage took place. No real or personal estate had devolved upon or become vested in A. and B. in right of the latter, or in any issue of them. On the 24th of October, 1842, a fiat issued against C., under which he was declared bankrupt, and under which he obtained his certificate on the 6th of March, 1843. The trustees proved against C.'s estate, on the 25th of March, 1843, for 1057., being partly for arrears due at the time of the bankruptcy, and partly for a proportionate part of the current halfyear, up to the time of tendering the proof. They at the same time tendered a proof for the value of the annuity as a contingent debt, but such proof was rejected, on the ground that the contingencies were such that the value of the annuity could not be ascertained. The instalments of the annuity accruing after the date of the said proof, down to the 21st of September, 1848, amounted to $231. 168. 8d.; on account of which, C. had, since his bankruptcy, made payments amounting to 120. In February, 1849, the trustees petitioned, praying to be admitted as creditors for the remaining 7037. 16s. 8d., and to receive dividends thereon, not disturbing former dividends:

Held, that the trustees were not entitled to prove against the estate of C. in respect of such subsequent instalments.

THE following case was sent by Vice-Chancellor KNIGHT BRUCE for the opinion of this court:

By indenture bearing date the 13th of July, 1841, and made between William Aggas of the first part, John Foster, the bankrupt, of the second part, Maria Foster, daughter of the said John Foster, of the third part, and Rowland Evans, Thomas Foster, and Charles Crompton, of the fourth part,—after reciting that the said Maria Foster, by virtue of the settlement executed on the marriage of the said John Foster with her mother, and of the will of Thomas Oldham, deceased, her late grandfather, was, or might become, entitled, expectant on the respective deccases of her said father and *mother, to certain moneys and [*423 other estate and property, and the said Maria Foster might also, by other means, become entitled to other real and personal property; and reciting that a marriage had been agreed upon, &c., between the said William Aggas and Maria Foster, and, upon the treaty for the marriage, it was agreed that the said John Foster should, by his covenant, secure the payment, during so long as the said William Aggas and Maria Foster, or either of them, or any issue of the said intended marriage immediately entitled under the provisions thereinafter contained, should be living, of an annuity or yearly sum of such an

amount, but no more, as, either alone, or together with the yearly income to arise or be payable from any real or personal estate, or both conjointly, which should at any time or times, or from time to time. devolve upon or vest in the said William Aggas and Maria Foster, in her right, or any issue of the said intended marriage, would, after any such devolution or vesting as aforesaid, make up the yearly income or sum of 150l. for the time being, to the intent that 150l. a year should be always enjoyed by means of the said covenant and real and personal estate so to devolve or vest as aforesaid, or either of them respectively, -it was witnessed, that, in pursuance of the said agreement, and in consideration of the said intended marriage, the said John Foster did thereby, for himself, his heirs, executors, and administrators, covenant, promise, and agree with and to Evans, Foster, and Crompton, their executors, administrators, and assigns, that, in case the said intended marriage should be solemnized, he, the said John Foster, his heirs, &c., should and would pay or cause to be paid, to Evans, Foster, and Crompton, their executors, &c., during such time and as long as the said Wil*424] liam Aggas and Maria Foster, or either of them, or any *issue of the said intended marriage immediately entitled under the provisions thereinafter contained, should be living, at or in the common dining-hall of Lincoln's Inn in the county of Middlesex, between the hours of twelve at noon and two in the afternoon, an annuity or yearly sum of such an amount as, either alone in the mean time and until any real or personal estate should devolve upon or vest in the said William Aggas and Maria Foster, in her right, or any issue of the said intended marriage, under the said settlement of her said father and mother, and the said thereinbefore-mentioned will, or either of them, or otherwise howsoever, or together with the clear annual produce to arise or be payable from any such real or personal estate, as the case might be, after any such devolution or vesting as aforesaid should take place for the time being, would, from time to time, make up one full annuity or yearly sum of 150l. of lawful money of Great Britain, and should and would pay the same by two equal half-yearly payments, on the 13th of January and the 13th of July in every year, without any deduction or abatement whatsoever out of the same or any part thereof, for or on account of any present or future taxes, charges, and impositions.

[A copy of the deed accompanied, and was to be taken as part of, the case.]

The said marriage between William Aggas and Maria Foster was duly solemnized shortly after the date of the said indenture, and before the bankruptcy hereinafter mentioned; and there has been issue born, one child only, who is now living, and is of the age of six years, or thereabouts.

The said William Aggas, and Maria, his wife, are both living.

No real or personal estate has yet devolved upon, or become vested

[*425

in, the said William Aggas, and Maria, *his wife, in her right or any issue of them, or the said Rowland Evans, Thomas Foster, and Charles Crompton, as such trustees under the said indenture, under or by virtue of the said settlement executed on the marriage of the said John Foster, the bankrupt, or the will of the said Thomas Oldham, or otherwise howsoever.

On the 24th of October, 1842, a fiat in bankruptcy was duly issued against the said John Foster, together with the said Rowland Evans and the said Thomas Foster, under which the said John Foster, Rowland Evans, and Thomas Foster, were declared bankrupts: and, on the 8th of November, 1842, George Rowe (since deceased), Thomas Moore, and Robert Minter, were chosen creditors' assignees, and Thomas Massa Alsager (since deceased), was appointed official assignee, under the said fiat.

On the 25th of March, 1843, the said Rowland Evans, Thomas Foster, and Charles Crompton, as such trustees as aforesaid, tendered a proof under the said fiat, against the separate estate of the said John Foster, for the value of the said annuity, as a contingent debt: but such proof was rejected, on the ground that the contingencies on which the said annuity depended, were such that the value of the said annuity could not be ascertained.

At the date and issuing of the said fiat, the sum of 421. 8s. 4d. was due and owing to the said Rowland Evans, Thomas Foster, and Charles Crompton, as such trustees as aforesaid, for arrears of the said annuity; and on the said 25th of March, 1843, there was due and owing to the said Rowland Evans, Thomas Foster, and Charles Crompton, for and in respect of the said annuity, the sum of 105l., including the amount of such arrears, and a proportional part of the current half-year, up to the time of tendering the said proof.

The said Rowland Evans, Thomas Foster, and Charles *Cromp[*426 ton, were, on the said 23d of March, 1843, allowed to prove, and were admitted as creditors, against the separate estate of the said John Foster, for such sum of 1052.

Under the joint-estate, dividends, amounting in the whole to 6s. 1d. in the pound have been paid to the joint-creditors. The creditors upon. the separate estate of the said John Foster, including the said Rowland Evans, Thomas Foster, and Charles Crompton, in respect of their said claim for 1057., were paid in full; and a surplus from his separate estate was carried over to the credit of the joint-estate.

On the 6th of March, 1843, the said John Foster obtained his certificate.

In and during the year 1848, and after such distribution as aforesaid, a further sum of 12117. 48. 6d. was received by Herbert Harris Cannan, as the official assignee under the said fiat, as part of the separate estate

of the said John Foster, to which he became entitled in right of his wife.

The whole of the said annuity of 150l. per annum hath continued to be, and still is, payable under and by virtue of the said indenture. The instalments of the said annuity which accrued after the date of the hereinbefore-mentioned proof, down to the 21st of September, 1848, amount to 8231. 16s. 8d.

The said John Foster has, since his bankruptcy, paid to the said William Aggas four several sums of 301. each on account of such lastmentioned instalments, leaving a balance of 7037. 16s. 8d. due in respect of the said annuity.

On the 5th of February last, the said Rowland Evans, Thomas Foster, and Charles Crompton presented their petition to Vice-Chancellor KNIGHT BRUCE, alleging, that, under the circumstances herein before stated and appearing, the contingencies upon which the said *427] *annuity or debt was payable, had happened, as to the successive payments thereof which had accrued due and become payable since the said bankruptcy; and praying that they might be admitted as creditors for the said sum of 7031. 16s. 8d., and might receive dividends thereon (not disturbing former dividends): and, by the order of His Honour, made, upon the hearing of the said petition, on the 14th of February last, it was ordered that a case should be stated for the opinion of the justices of Her Majesty's Court of Common Pleas, upon the following question,

Whether the said Rowland Evans, Thomas Foster, and Charles Crompton, are entitled to prove against the separate estate of John Foster, the bankrupt, in respect to the said annuity, for the instalments thereof accrued since the 25th of March, 1843, the date of the firstmentioned proof, or any or either of them, and receive dividends with the other creditors, not disturbing any former dividends.

Channell, Serjt. (with whom was Hardy), in support of the claim of the trustees to prove under the fiat.-The annuity in question was, before and at the date of the fiat against Foster, "a debt payable upon a contingency," within the first branch of the 6 G. 4, c. 16, s. 56,(a) which is in substance re-enacted in the 12 *& 13 Vict. c. 106, s. 177.(6) The authorities are distinct. Thus, in Ex parte Tindall,

*428]

(a) That section enacted, that, "if any bankrupt shall, before the issuing of the commission [fiat, or the filing of a petition for adjudication of bankruptcy], have contracted any debt payable upon a contingency which shall not have happened before the issuing of such commission [fiat, or the filing of such petition], the person with whom such debt has been contracted may, if he think fit, apply to the court to set a value upon such debt, and the commissioners are [court is] hereby required to ascertain the value thereof, and to admit such person to prove the amount so ascertained, and to receive dividends thereon; or, if such value shall not be ascertained before the contingency shall have happened, then such person may, after such contingency shall have happened, prove in respect of such debt, and receive dividends with the other creditors, not disturbing any former dividends; provided such person had not, when such debt was contracted, notice of any act of bankruptcy by such bankrupt committed."

(b) This section is substantially the same as the former, the only difference being the substitution of the words within brackets for those in italics.