WHALEY ፖ. LAING. [ *484 ] [ *485 ] riparian owner is not a possessory right until he has appropriated the water. (MARTIN, B.: If a person allows his neighbour to water his cattle in his pond, and a third person poisons the water whereby the cattle *die, would he not be responsible?) * The fouling of the water was not wrong as against the plaintiffs: for they had no title to the water at the time it was fouled; and the allowing foul water to flow into their pit was their own act. Secondly, the plaintiffs had no right to the water under the licence from Lancaster. * * Thirdly, the declaration is bad on the face of it. Where one person claims a benefit from the land of another, he is bound to show the manner in which he claims it: Hilton v. Whitehead (1). Cur, adv. vult. The judgment of the COURT was now delivered by BRAMWELL, B.: We are of opinion judgment should be *for the plaintiff, though not without considerable doubt, arising from the form of the declaration, the ambiguity of which has hitherto prevented our coming to a determination on the case. The facts material to be mentioned are, that the plaintiff, by permission of a Canal Company, made a communication from the canal to his own premises, by which water got to those premises, and with which water he fed his boilers; that the defendant fouled the water in the canal, whereby the water as it came into the plaintiffs' premises was fouled, and by the use of it the plaintiffs' boilers were injured; the defendant having no right or permission to do this from the canal owners. We think these facts establish a cause of action in the plaintiff. The plaintiff had, by permission of the canal owners, got possession of a certain quantity of water, which he was entitled to pump up from his cistern or reservoir, as much as he would have been entitled to use it if he had taken it in a pail or bucket. The consequence of his doing so, that is of emptying his cistern or reservoir, is that other water flows in from the canal to supply its place. This water the defendant has fouled; and consequently by his act foul water flows into the plaintiff's cistern, the plaintiff only contributing thereto by removing the water already there; which, as we have said, he had a clear right to do. This being without justification by the defendant, gives the plaintiff a cause of action. It is true that the great injury the plaintiff sustains, is by his own act in feeding the boilers with the fouled water; but he was (1) 12 Q. B. 734. v. LAING. [ *486] not bound to let it remain in his cistern, and we do not know WHALEY that merely pumping it away would have been less costly than using it as he did. Besides, it is to be observed, there is no question on the plea of Not guilty *or the amount of damages. But there is an allegation in the declaration, traversed by the defendant, viz. that the water "ought to flow without being fouled in the canal." We consider this to mean, not an assertion of title in the plaintiff, but that the defendant had no right to foul the water there. In the result then, we think the declaration good, and the allegation traversed proved, and consequently give judgment for the plaintiff. We give no opinion on many of the questions discussed on the argument; particularly on whether the plaintiff had any possessory title to the water in the canal, so that if the defendant had stopped its flow to the plaintiff, or if the plaintiff, in order to get the water, had to go to the canal with a bucket or engine and draw it foul from the canal, any action would have been maintainable. Our opinion proceeds, as we have stated, on the ground that the defendant caused foul water to flow on to the plaintiffs' premises without right to do so. And this opinion is warranted by the cases cited, which show that though there may be no right to water, there may be a right, if it comes or is sent, to have it come or sent without pollution. Judgment for the plaintiff. GLOVER v. HALKETT. (2 H. & N. 487-490; S. C. 26 L. J. Ex. 416; 3 Jur. N. S. 1083; 29 L. T. O. S. 264; 5 W. R. 881.) The following document given by the plaintiff to the defendant was held to require a stamp as an agreement: "August 2. According to Mr. H.'s (the defendant) request, the land at B. under Mr. E., I will be bound for till next Lady Day. Rent 487.” ACTION for money paid. Plea: Never indebted. At the trial before Channell, B., at the Middlesex sittings in last Trinity Torm, it appeared that the action was brought to recover a sum of money paid by the plaintiff to the landlord of the defendant, on account of rent due from him. In order to prove that the money was paid at the defendant's request, the plaintiff tendered in evidence the following document given. to the defendant's landlord, which was unstamped: "August 2. According to Mr. Halkett's request, the land at Blackfords by under Mr. Elstead, I will be bound for till next Lady Day. Rent 481. "J. GLOVER." It was objected on behalf of the defendant, that the docu 1857. June 26. [487] ment was a guarantee and not admissible in evidence for want of a stamp. The learned Judge was of that opinion; and nonsuited the plaintiff. J. Walter Smith moved to set aside the nonsuit and for a new trial on the ground of the improper rejection of the evidence (June 12th): First, the document in question is not a guarantee within the meaning of the 4th section of the Statute of Frauds. It is not addressed to Elstead, nor does it purport to render the plaintiff liable to him, but is a mere undertaking by the plaintiff to be answerable for rent, not to the person to whom it is due, but to the person who is liable to pay it. The 4th section of the Statute of Frauds only contemplates promises made to the person to whom another is liable: Eastwood v. Kenyon (1), Smith on *Contracts, p. 86. Secondly, before the Mercantile Law Amendment Act, 1856, (19 & 20 Vict. c. 97,) this document would have been clearly void as a guarantee, inasmuch as no consideration is expressed on the face of it, nor can any be implied from its terms, as in Newbury v. Armstrong (2). Therefore, before that Act, it would have been admissible without a stamp as an imperfect guarantee. By the 3rd section of that Act, the consideration for the promise need not appear in writing, but it must nevertheless be proved. The effect of that enactment is, not to render the party liable without proof of consideration, but only to prevent his being exempt from liability because the consideration does not appear on the face of the instrument, either expressly or by necessary inference. The document itself does not constitute an entire agreement, but the liability depends partly on it, and partly on evidence aliunde. Therefore, if a stamp is necessary, a document which would be admissible without a stamp, as an imperfect guarantee, would become inadmissible immediately parol evidence was given of its consideration. It is only as an agreement that this document can require a stamp; it is not a perfect agreement, and cannot be said to require a stamp merely because sect. 3 of the Act renders it a good guarantee and dispenses with the necessity of its being a good agreement. (He also referred to Alexander v. Barker (3).) CHANNELL, B., now said: This was a motion to set aside a nonsuit. Cur. adv. vult. The cause was tried before me at the sittings in last Term, and the ground (1) 52 R. R. 400 (11 Ad. & El. 438). (3) 37 R. R. 658 (2 Cr. & J. 133). of the application was the improper rejection of evidence tendered on behalf of the plaintiff. The action was brought to recover money *paid by the plaintiff on account of rent due from the defendant to his landlord, and which the plaintiff alleged that he had become liable to pay under the document tendered in evidence. That document appeared to me a guarantee rendering the plaintiff liable for the rent to become due from the defendant up to a day named. I thought that the document required a stamp, and after consulting my brother MARTIN, who agreed with me, I rejected it. My ruling was objected to on the ground that the document was not a binding agreement; and the principal objection urged was, that if the document was considered with reference to the state of the law before the passing of the Mercantile Law Amendment Act, there was no sufficient consideration apparent on the face of it, so as to render it a binding guarantee. It was also argued, that though under the 3rd section of the Mercantile Law Amendment Act, a guarantee may be binding notwithstanding the consideration does not appear on the face of it, yet the consideration must still be proved, and that the effect of that section is, not to render the party liable without proof of consideration, but only not to exempt him from liability because that consideration does not appear on the face of the instrument. Then assuming that this document was signed subsequently to the passing of the Mercantile Law Amendment Act, it was contended that it did not of itself constitute an entire agreement or show any liability on the part of the plaintiff, but that such liability must be established, in part by the use of the document, and in part by parol evidence of consideration. The COURT took time to consider whether that prevented the necessity of having the document stamped, and we are of opinion that the objection ought not to prevail. The ground of our decision is based on the authority of Ramsbottom *v. Mortley (1). There a paper was tendered in evidence, and it was objected that it required a stamp. THOMSON, C. B., ruled that it ought to be stamped, and thereupon directed a nonsuit. Best, Serjt., applied to set aside the nonsuit on the ground that the paper was neither a contract nor evidence of a contract, inasmuch as the name of one of the contracting parties, the lessor, was wanting to it; in other words, that there was an objection to the contract as a valid contract under the Statute of Frauds, and that therefore it did not require a stamp. Lord ELLENBOROUGH replied: “It may not be evidence of the whole contract, but it is evidence of a material part. If a necessary part in the proof of the con(1) 15 R. R. 304 (2 M. & S. 445). GLOVER v. HALKETT. [ *489 ] [490] DAMPIER, J., tract, I think that it ought to be stamped." Rule refused. CROUCH v. THE GREAT WESTERN RAILWAY COMPANY (2). (2 H. & N. 491–508; S. C. 26 L. J. Ex. 418; 3 Jur. N. S. 796; 5 W. R. 831.) Where goods are tendered by a carrier to the consignee who refuses to pay the carriage, whereupon the carrier refuses to deliver the goods, it is the duty of the carrier to retain the goods at their place of destination, at least for a reasonable time, and during that time to await any directions from, if not to communicate with the consignee: So held per POLLOCK, C. B., MARTIN, B., and CHANNELL, B.; BRAMWELL, B., dissentiente. The plaintiff delivered in London, to the defendants, a Railway Company, a parcel directed to the plaintiff's agent at Plymouth. The defendants' railway terminates at Bristol from whence they forwarded the parcel to Plymouth by the South Devon Railway. The parcel was tendered by a servant of that Company to the consignee at Plymouth who refused to pay the amount demanded for carriage, whereupon the servant took the parcel away. The next day the consignee went to the office of the South Devon Railway and demanded the parcel and tendered the amount of carriage, when he was told that the parcel had been returned to London, but though he made repeated applications at the office in Loudon, the parcel never was delivered. The jury having found that the tender was made within a reasonable time and that the parcel was sent back to London before a reasonable time had elapsed: Held, per POLLOCK, C. B., MARTIN, B., and CHANNELL, B., that the defendants were responsible for the act of the South Devon Company, and that the sending the parcel to London at the time they did, followed by the non-delivery of it to the plaintiff, upon or subsequent to the several applications, afforded sufficient evidence of a breach of duty by the defendants in not taking care of the parcel for the plaintiff, even supposing their duty qua carriers ended with the tender of the goods. BRAMWELL, B., dissentiente. Per BRAMWELL, B., that assuming the act of the South Devon Railway Company was the defendants' act, the defendants were not responsible, inasmuch as they had performed their duty by carrying and tendering the parcel, and that upon the refusal of the consignee to receive it, the defendants had a right to send it back to London. Also that the defendants were not responsible for the act of the South Devon Railway Company. THE first count of the declaration stated that the defendants, at the time of the occurrences hereinafter mentioned, were common carriers of goods for hire from London to Plymouth, and the plaintiff, heretofore, to wit, on, &c., delivered to the defendants as such common carriers at London aforesaid, and they received of him as such, a parcel containing goods of the (1) See now the Stamp Act, 1891. (2) Affirmed in Exchequer Chamber, 3 H. & N. 183. |