Quod ab initio non valet in tractu temporis in the way of one's ordinary calling, so that it will not apply to an act done by one of the persons within its provisions, but which act is not of the kind that he ordinarily does; thus, if a person who is a horse-dealer sells a horse on a Sunday and gives a warranty with it, no action lies against him on his warranty, but if he is not a person who usually deals in horses, but simply a private person selling a horse, it would be different, for the sale and the warranty are not in the course of his ordinary calling. It has been decided under this statute that a person can commit but one offence on one Sunday by exercising his ordinary calling contrary to the statute; but this pertains to criminal law (i). Where an instrument is illegal, either by the common law or by statute, it cannot be afterwards confirmed, non convalescit. the maxim being, Quod ab initio non valet in tractu temporis non convalescit. Effect of an instrument within the proper time. The mere fact that an instrument which ought to not stamping have been stamped, has not been stamped within the proper time, is not at all to render it illegal, but it cannot be given in evidence until stamped; and it is the duty of the officer of the Court to call the attention of the Court to any want of or insufficiency of a stamp (k). An ordinary agreement requires a stamp of 6d., and must be stamped within fourteen days of execution, or afterwards can only be stamped on payment of a penalty of £10, and if paid in court, a further penalty of £1. The following agreements, however, are exempted from stamp duty: 1. An agreement or memorandum, the matter whereof is not of the value of £5. (1) Crepps v. Darden, 1 S. L. C. 716; Cowp. 640. (k) 33 & 34 Vict. c. 97, s. 16. 2. An agreement or memorandum for the hire of any labourer, artificer, manufacturer, or menial servant. 3. An agreement, treaty, or memorandum made for or relating to the sale of any goods, wares, or merchandise. 4. An agreement or memorandum made between the master and mariners of any ship or vessel for wages on any voyage coastwise from port to port in the United Kingdom (1). A cognovit or I.O.U. does not require stamping, unless it contains some special terms of agreement (m). () 33 & 34 Vict. c. 97, tit. "Agreement." (m) Ames v. Hill, 2 B. & P. 150; Fisher v. Leslie, 1 Esp. 426; Chitty on Contracts, 116; and see generally as to stamping agreement, Chitty on Contracts, 109-130. 238 PART II. OF TORTS. CHAPTER I. a tort. OF TORTS GENERALLY. Definition of A TORT may be defined as some wrongful act, consisting in the withholding or violating of some legal right (a), and the following are a few instances-under the divisions subsequently adopted-of torts in respect of which an action will lie : Instances of torts, 1. Torts affecting land (b), such as, Waste; 2. Torts affecting goods and other personal property (c), such as, Wrongful taking or detention of goods; 3. Torts affecting the person (d), such as, Assault; Battery; Libel and Slander; Seduction. (a) See Broom's Coms. 638. (b) Post, ch. ii. (c) Post, ch. iii. (d) Post, chs. iv. and v. 4. Torts arising peculiarly from negligence (e), such as, Injuries by carriers to goods or passengers; right of action. Now in all the above instances it must follow, that, Every tort as a person has a right to the due protection of his produces a person and his property, both real and personal, that, these rights being infringed, he has a right of action in respect of the infringement, and all torts will be found to come in some way under one at least of the above heads. But different torts might be enumerated almost without end, for they may be infinitely various in their nature, and it is impossible to lay down any fixed rule of what will or what will not amount to a tort for which an action will lie (g). It is no good ground of objection to The newness an action that injury of such a kind has never been made of a tort is no objection to the subject of any prior action, for provided it comes an action. within any principle upon which the courts act, it is sufficient, although the instance may be new; but if it embraces some entirely new principle, and it is sought to make an act a tort which does not come within any former principle, then of course this can only be done by the interference of the legislature. This is expressed in the case of Pasley v. Freeman (h), by Ashurst, J., Remarks of who "Where the cases are new in their principle, in Pasley v. says, there I admit that it is necessary to have recourse Freeman. to legislative interposition in order to remedy the grievance; but where the case is only new in the instance, and the only question is upon the application of a principle recognised in the law to such new case, it will be just as competent to courts of justice to apply the principle to any case that may arise two (e) Post, ch. vi. (f) See hereon Addison on Torts, ch. i. (g) See Ashby v. White, 1 S. L. C. 251; Lord Raymond, 938. Ashurst, J., 240 Langridge v. Injuria sine damno, and damnum sine injuria. Distinction between torts and crimes. centuries hence, as it was two centuries ago." That this is so is well shown by a case of Langridge v. Levy (i), which presents a highly novel instance of a tort. In that case the father of the plaintiff had bought a gun of the defendant, stating at the time of buying it that it was required for the use of himself and his sons, of whom the plaintiff was one, and the defendant gave him a warranty that it was made by a particular maker. The plaintiff used the gun and it burst and injured him, and it appearing that it was not made by the person named in the warranty, this action was brought for damages in respect of the breach of duty of the defendant, and it being proved that the defendant had knowingly made the false warranty, and that the gun had been used on the faith of that warranty, it was held that the defendant was liable for his deceit, and that the plaintiff was entitled to recover. A tort may be committed although no actual injury is done by the tortious act, for if a person has what in the eyes of the law is considered as a legal right and that right is infringed, he has an action in respect of it, even though it has not hurt him, and this is said to be injuria sine damno (k). On the other hand, some substantial injury may be done to a person but yet he may have no right of action in respect of it, because although damage has been done to him, yet no legal right has been infringed and therefore no injury done to him in the eyes of the law, and this is said to be damnum sine injuria (1). This subject has already been somewhat considered at the pages referred to below. Some torts may amount to crimes, but many do not, () 2 M. & W. 519; in error, 4 M. & W. 337. (k) See ante, p. 4, and case of Ashby v. White there cited and referred to. to. (1) See ante, p. 4, and case of Acton v. Blundell there cited and referred |