the roads in repair, have been guilty of negligence, whereby he has been injured; and the facts appear to be, that when the trustees entered upon their duties as such trustees, they found open drains; and the objection to them was, that when a heavy fall of rain came there was a gush of water on the road, but which these open drains carried away to the canal, or it dispersed itself in such a way as to be wholly innocuous. to the adjoining owners; that being so, in order to prevent the gush of water on the road, they are advised to disturb the state of things then existing and cover the drains, which had the effect of turning the water on to the adjoining owner's land, as the catchpits made to prevent that were not sufficient, and the plaintiff says that the trustees have been guilty of negligence and carelessness in so changing the state of things as to make the water accumulate on the adjacent lands, by reason of the catchpits being insufficient, and that they are further guilty for continuing them in such insufficient state; and I think that is a state of things upon which the jury might rightly have been asked, whether the defendants had been guilty of negligence, and I understand that it was so left to them, that supposing they found such a state of things to exist, that then they were to say whether the defendants had been guilty of negligence, and the jury have found that they were, and in this direction I can see nothing wrong. Then as to the question whether or not the plaintiff is bound to rely on the negligence of the defendants when the damage first occurred, or whether he can maintain his action after three months have elapsed from the first damage, I am of opinion that where the defendants have been guilty of negligence in the management of the highway over which they have charge, and that by reason of such negligence damage has been caused, which has been accompanied by a fresh damage, such a state of things brings the plaintiff within the time limited by the statute. There is no doubt that a fresh damage is no cause of action, and the case of Fetter v. Beale, 1 Salk. 11, is an authority upon that point. In that case an action was brought by the plaintiff for a blow he had received on the head, and which at the time appeared slight, and he obtained damages accordingly; but afterwards it turned out that the injury was of a more serious nature, and the plaintiff then brought a second action, but it was held that it would not lie, Holt, C. J., saying, "Every new dropping is a new nuisance, but here is not a new battery, and in trespass the grievousness or consequence of the battery is not the ground of the action, but the measure of the damages which the jury must be supposed to have considered at the trial;" but here the plaintiff has been again damaged by reason of the defendants neglecting their duty, and is he to have no remedy at all? It seems impossible to suppose that such was contemplated by the act. Here it is not only the fresh damage, but the continuance of the original neglect that constitutes a new cause of action, and I think that this wrongful act may be a fresh cause of action. And I therefore am of opinion that on both points our judgment should be for the plaintiff. And now as to the verdict being against the weight of evidence, without going so far as to say that this verdict was against the evidence, yet, looking at it in all its bearings, I think it would be more satisfactory that they should be reinvestigated, on the condition that the defendants pay the costs of the former trial.

WILLES, J.-I am of the same opinion. As to the misdirection, it

appears that the jury were told to find for the plaintiff if they were of opinion that the defendants had, by the negligent construction of the catchpits, occasioned injury to the plaintiff. I assumed, therefore, that the jury found negligence on the part of the defendants, therefore there can be no reason for granting a new trial on the ground of misdirection. Then, as to the question on the Statute of Limitations, that is a question of considerable nicety. Certain expressions have fallen from the courts, and have been used, which have not applied to the particular facts of the cases in which they were made. After what my brother Williams has said, I do not think it necessary to refer to more than one decision, and that is the case of Bonomi v. Backhouse. The cause of action there was in respect of injury occasioned by the support to land being taken away. There the court threw out that it did appear the support was taken away, and that the cause of action was then complete. Then compare that case with the present. Here the cause of action is the injury to the land. It cannot be said that the plaintiff in this case had a right to say that the trustees should not make this work on the road. In Bonomi v. Backhouse, it was said that the plaintiff had a right to prevent the ground from being taken away where it would. interfere with his supports. All that the plaintiff could do here was to demand that the works should be done in such a manner as not to injure his land; and each action was to be limited to such injury; and it appears to me that the Statute of Limitations ought to run from the time the damage was effected. With regard to the verdict being against the evidence, I need add nothing to what has already been said by my brother Williams.

BYLES, J.—I shall say nothing as to the misdirection, but I wish to say a word as to the limitation of time for bringing the action. The case of Bonomi v. Backhouse is a decision of the Court of Exchequer Chamber, and is binding upon us, and clearly establishes the law that the period rura, not from the act done, but from the damage itself, but it leaves the question open-does it run from the first damage, excluding all subsequent damage? or does it not say, may not there be a case where new damage gives a new cause of action? There the damage was one act; but here the damage arises from every shower, and every time there is a storm there is a new and distinct injury. With regard to the verdict being against the weight of evidence, I do not think that that was so; but, as this is a case of great importance, I think that in justice to both parties there should be a new trial, if the defendants are willing to pay the costs of the former one.

KEATING, J., concurred.

Rule absolute.

INDEX

THE PRINCIPAL MATTERS.

(The additional cases in this volume are indexed in [ ].)

one T. C. as follows,-"I agree to take over the quarter of the ship Conrad on account of your debt to me, it being understood between us that I take delivery from the discharge of the cargo she has now on board after her arrival at S., all liabilities, &c., after being discharged to belong to me."

T. C. subsequently made an arrangement with his creditors, which was embodied in the following memorandum,-"July 14, 1858. We the undersigned agree to purchase the ships in the annexed statement, at the prices there put down, in the proportions set down opposite to our names, it being understood as part of this agreement that the debts owing by you to us as annexed be taken to their full amount in payment or part payment of the said purchases."

This memorandum was signed by the plaintiff as purchaser of sixteen sixtyfourths of the Conrad for 7741. on account of his debt of 8101. T. C. executed a bill of sale of the shares to the plaintiff on the 14th of September, which was registered on the 18th.

On the 30th of September, the defendant entered into the following contract with the plaintiff," I have this day bought from you sixteen sixty-fourth shares of the barque Conrad, now registered in your name at the custom-house, for the sum of 7001. and all

doing that which a man is already bound to do, is invalid; and it is not necessary, in order to invalidate the consideration, that the plaintiff's prior obligation to afford that consideration should have been an obligation to the defendant: it may have been an obligation to a third person. Per Byles, J. Shadwell v. Shadwell, 159 6. A. wrote to B. as follows,-"I am glad to hear of your intended marriage with E. N.; and, as I promised to assist you at starting, I am happy to tell you that I will pay to you 1507. yearly during my life and until your annual income derived from your profession of a chancery barrister shall amount to 600 guineas. Your ever affectionate uncle, A." In an action against A.'s executors for arrears of the annuity, the declaration alleged the consideration for the promise to be, "that the plaintiff would marry E. N."

liabilities or profits on the said shares from 1.
the time of your purchase from Mr. T. C. for
which you are liable as owner in any way, or
entitled to if there be any profits or balance
in your favour. It is understood and agreed
that the said liabilities, if any, are to be
assumed and paid by me over and above the
aforesaid sum of 7007.; and if, on the other
hand, there is any balance or profits coming
to you on the said shares, the same is to be-
long to me, and I am to receive the same for
my own private benefit."

The terms of this agreement were afterwards embodied in a bill of sale, which was registered on the 15th of November.

The ship's husband having incurred certain debts for necessaries supplied to the ship between the 31st of July and the 8th of August, the plaintiff paid the amount, and sued the defendant, who it appeared had notice of the memorandum of the 14th of July, but not of the letter of the 4th of June:-Held, that the plaintiff was not entitled to recover, inasmuch as there was no evidence to show that he had incurred any legal liability to T. C. in respect of the goods so supplied. Chapman v. Callis, 769 4. Whether the plaintiff was precluded by the 55th section of the Merchant Shipping Act, 1854, 17 & 18 Vict. c. 104, from suing upon the agreement of the 30th of September,quære?

Id.

Consideration for. 5. A promise based on the consideration of

2.

Heid, by Erle, C. J., and Keating, J., that the promise was binding, and made upon good consideration. Held, by Byles, J., that the letter was no more than one of kindness, creating no legal obligation.

Held, by the whole court, that B.'s continuance to practise was not a condition precedent to his right to the annuity. Id.

AMENDMENT.

Of Record at the Trial.
Where an amendment at the trial merely

consists in the correction of a blunder in the
statement of the contract, and does not vary
the real question the parties came to try, the
judge is warranted in allowing it without im-
posing any condition. St. Losky v. Green, 370
A count stated that the defendants con-
tracted to sell to the plaintiffs a cargo of
"Merthyr coal of the description called
through and through, to be hand-picked."
This description being proved at the trial to
be inconsistent and unintelligible, and the
real contest being whether or not the con-
tract was for "hand-picked coal," the judge
amended by striking out the words in italics,
the costs of the amendment being defendants'
costs in the cause. The jury having found
for the plaintiffs,-Held, that the amend-
ment was properly made.
Id.

ANCIENT LIGHTS.
Alteration in Position of, on rebuilding Pre-

mises.

In an action for obstructing ancient lights, the facts stated in a special case were as follows: -The plaintiffs and defendants possessed premises opposite to each other in the city of London; the plaintiffs' premises, in which were windows which had been used for more than twenty years, having been burnt down, the plaintiffs rebuilt them, but, in the newly erected building, the windows were placed in different situations, were of different sizes,