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*CHAPTER II.

1. LANDLORD AND TENANT, ss. 306–313.

2. PRINCIPAL AND AGENT-MASTER AND SERVANT, ss. 314-320.

1.-LANDLORD AND TENANT.

Who should be sued for a Nuisance erected on the Land, ss. 306-308. For an Injury resulting from the Non-repair of Fences or of a House, s. 309. Joinder of Parties, JointTenants, Coparceners, Tenants in Common, ss. 310, 311. Who Liable for a Nuisance after an assignment of the Reversion, s. 312. Liability of the Tenant for Waste, &c., s. 313.

306. WHERE the owner of land erects on it a nuisance, and subsequently to such erection, demises the land for a term, the lessor will be liable for the erection, and either lessor or lessee for the continuance of the nuisance at suit of the party injured thereby, the demise operating as an affirmance of the nuisance. (a) And though the plaintiff, having recovered in one action for the erection of the nuisance, cannot have another action for the same erection, yet he may maintain a new action for continuing the nuisance. (b) 307. Where a person lets premises with a nuisance upon them, and subsequently receives rent, he is liable for the continuance of the [*254] nuisance.(c) But a landlord is not liable in respect of a nuisance erected by the tenant during the term, unless the natural consequence of the regular use of the premises is that they will become a nuisance unless properly attended to, in which case the landlord will be liable, if they afterwards become a nuisance by such regular use; and he ought in such a case either to stipulate with his tenants that they will do that which is necessary to prevent the premises from becoming a nuisance, or to reserve to himself the power of entering for the purpose.(d)

308. Where a nuisance was erected by the defendants on land belonging to a corporation of which the defendants were members, it was held, that they were liable for its continuance, although they had no right to enter on the land for the purpose of removing it, the apparent hardship being a consequence of their own original wrong ;(e) and in the case of the continuance of a nuisance, every occupier after the erection is equally subject to an action for the nuisance.(g)

309. An action on the case for injury resulting from the non-repair of fences, can only be maintained against the occupier, and not against the owner of the fee who is not in possession; for it is notoriously the duty of the actual occupier to repair.(h) So, the tenant of a house *is primâ [*255] facie bound to repair, and therefore liable; but if the owner is to

(a) Rosewell v. Prior, 2 Salk. 460, recognized in Cheetham v. Hampson, 4 T. R. 320 ; Brent v. Haddon, Cro. Jac. 555; Rippon v. Bowles, Id. 373.

(b) Shadwell v. Hutchinson, 2 B. & Ad. 97;w Holmes v. Wilson, 10 A. & E. 503;1 Johnson v. Long, 1 Lord Raym. 370.

(c) Supra, n. (a); Woodfall, L. &. T. 4th ed. 671.

(d) Woodfall, L. & T. 4th ed. 671, 672. (e) Thompson v. Gibson, 7 M. & W. 456. (g) Brent v. Haddon, Cro. Jac. 555. See Salmon v. Bensley, Ry. & Mo. 189.

(h) Cheetham v. Hampson, 4 T. R. 318; Reg. v. Bucknall, 2 Lord Raym. 804; Rider

v. Smith, 3 T. R. 766; Russell v. Shenton, 11 Law Journ., N. S., Q. B. 289.

Eng. Com. Law Reps. 22. *Id. 37.

repair, the action must be brought against him and not against the tenant.(i) So, case lies against a landlord of a house demised by lease, who employs workmen to repair, (although not bound by covenant so to do,) for a nuisance in the house occasioned by the negligence of his workmen ;(k) the landlord being liable on the ground of his personal interference with his own property.(1)

310. Joint-tenants and tenants in common should, it is laid down, be sued jointly in trespass, trover, or case, for anything respecting the land held in common.( .(m) In the case of an avowry the rule is, that one who is not sole seised or has not sole title to the entire rent, cannot avow alone ;(n) and therefore joint-tenants and co-parceners should join in an avowry or cognizance for rent, (o) or for taking cattle damage feasant,(p) or one joint-tenant should avow in his own right, and as bailiff to the other.(q) So, an avowry by one of several co-heirs in gavelkind, with a cognizance as bailiff for the other co-heirs, is sufficient without averring an authority from them to distrain.(r)

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*311. Tenants in common must sever in an avowry for rent :(s) but tenant in common cannot avow the taking of the cattle of a stranger upon the land damage feasant without making himself bailiff or servant to his companion; for if one were to distrain without the other, as there could not be a double satisfaction for the same injury, the other would have no remedy; and as to any supposed hardship in one denying his consent to the other avowing as bailiff to him, if he dislikes his situation, he may put an end to the tenancy by making partition.(1)

312. If a nuisance be created, and a man purchase the premises with the nuisance upon them, though there be a demise for a term at the time of the purchase, so that the purchaser has no opportunity of removing the nuisance, yet, by purchasing the reversion, he makes himself liable for the nuisance.(u) But if, after the reversion is purchased, the nuisance be erected by the occupier, the reversioner incurs no liability; though in such a case, if there were only a tenancy from year to year, or any short period,(x) and the landlord chose to renew the tenancy after the tenants had erected the nuisance, that would make the landlord liable, for he is not to let the land with the nuisance upon it. Therefore, if *A. recover damages against B. for stopping his lights, and afterwards B. assign the lands

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(i) Payne v. Rogers, 2 H. Bla. 350. Sed quære, see the remarks on Payne v. Rogers,

in 11 Law Journ., N. S., Q. B. 291.

(k) Leslie v. Pounds, 4 Taunt. 649.

(1) Per Littledale, J., Laugher v. Pointer, 5 B. & C. 561.a

(m) 1 Wms. Saund. 291 e; Chitt. Plead. 6th ed. 83; ante, s. 304.

(n) Woodfall, L. & T. 4th ed. 728.

(0) Pullen v. Palmer, 3 Salk. 207; Stedman v. Bates, 1 Salk. 390. (p) Bac. Ab. Joint-Tenants, (K.)

(r) Leigh v. Shepherd, 2 B. &. B. 465.b

(9) Pullen v. Palmer, 3 Salk. 207.

(s) Litt. s. 317; Pullen v. Palmer, 3 Salk. 207; Dalson v. Tyson, Id. 204; Com. Dig. Abatement, (E. 10), (F. 6); Per Tindal, C. J., Wilkinson v. Hall, 1 Bing. N. C. 718; Per Lord Kenyon, C. J., Harrison v. Barnby, 5 T. R. 249.

(t) Per Buller, and Heath, JJ., Culley v. Spearman, 2 H. Bla. 388, 389; Bac. Ab. Replevin, (K.); Com. Dig. Abatement, (F. 6). As to a demise by tenants in common, ante, ss. 32-34.

(u) Per Littledale, J., Rex v. Pedly, 1 A. & E. 827.d

(x) Id.

Eng. Com. Law Rep. 12. bld. 6. cId. 27. dId. 28.

in which the nuisance is erected, A. may maintain another action against B. for the continuance of the nuisance; for, before the assignment, B. was answerable for all the consequential damage, from which he cannot discharge himself by assigning over, yet A. may bring the action against the assignee who took the land with the nuisance(y) upon it.

313. In addition to the previous remarks as to the liability of the tenant for a nuisance on the land demised,(z) we may add, with respect to the action for mesne profits, that this seems not to lie against a tenant whose under-tenant retains possession after the term; (a) and with regard to the action on the case for waste, that this is a concurrent remedy with an action of covenant, where there is a special covanant to repair,(b) and lies accordingly against either the lessee for waste done during the term, (c) or against the assignee ;(d) and although some recent decisions have made it doubtful whether an action in the nature of waste for permissive waste can be maintained against tenants for years, yet *the better opinion seems to [*258] be, that the action is maintainable against all except tenants from year to year and strict tenants at will.(e)

2. PRINCIPAL AND AGENT-MASTER AND SERVANT.

Liability of Principal and Agent.-General Rule, on what Principles founded, ss. 314— 317. Limitation of the Rule, s. 318. In the case of Master and Servant, s. 319. Joint Tort-Feasors, s. 320. Liability of Person hiring Horses, &c., s. 321. Owner and Charterer of Ship, ss. 322, 323. Liability of Master for Tort of Servant, ss. 324, 325. Liability of Servants of the Crown, Justices of the Peace, Trustees, &c., ss. 326-329. Sheriff, when liable for Act of Officer, s. 330.

314. When an agent commits a tortious act under the direction or with the assent of his principal, either is liable at suit of the party injured, for the authority of the principal is no justification of the wrongful act of the agent; (g) and this principle, viz. that a servant cannot justify a tortious

(y) Woodfall L. & T. 4th ed. 672; Bul. N. P. 75. (z) Ante, s. 306.

(a) Burne v. Richardson, 4 Taunt. 720.

(b) It has been held that case for permissive waste will not lie against a tenant, for a term, who has not covenanted to repair, Herne v. Benbow, 4 Taunt. 764. Nor is case the proper form of action for not repairing, where there is a covenant to leave the premises in such repair as plaintiff should put them into, Jones v. Hill, 7 Taunt. 392; Burnett v. Lynch, 5 B. & C. 603; Chitt. jun. Pl. 541, n. (a)

(c) Kinlyside v. Thornton, 2 W. Bla. 1111.

(d) Torriano v. Young, 6 C. & P. 8; Sanders v. Norwood, Cro. Eliz. 683.

(e) Gibson v. Wells, B. & P. N. R. 290; Martin v. Gilham, 7 A. & E. 540 ;h Herne v. Benbow, 4. Taunt. 764; Jones v. Hill, 7 Taunt. 392; 1 Wms. Saund. 323 b, n. (7); Woodfall, L. & T. 4th ed. 435. See, however, Coote, L. & T. 571, where it is said that permissive waste lies probably against all, except strict tenants at will.

(g) Sands v. Child, 3 Lev. 352; Jones v. Hart, 1 Lord Raym. 738; Britton v. Cole, 1 Salk. 408; per Littledale, J., Laugher v. Pointer, 5 B. & C. 559;k Perkins v. Smith, 1 Wils. 328, cited 1 Bing. N. C. 418; Stephens v. Elwall, 4 M. & S. 259; Com. Dig. Trespass, (C. 1).

•Eng. Com. Law Reps. 2. Id. 12. Id. 25. bld. 34. ¡Id. 2. *Id. 12. 1Id. 27.

act under the authority derived from his master, seems equally to apply when the injury is sustained in consequence of the servant's negligent performance of the lawful orders of his master, in *which case likewise an action may be brought against either. (h)

[*259] 315. The remedy against the master for the act of the servant is usually by an action on the case ;(i) where, however, they are co-trespassers in law, they may be jointly charged as principals, and the damages must be assessed against all jointly, though all may not have been equally culpable.(k) Hence, where the owner of a carriage is sitting by the side of his servant who is driving, and the servant does an act immediately injurious to the plaintiff, trespass will lie against either or both jointly, for the act of driving by the servant is, in law, the act of the master. (1) So, case lies against all the proprietors of a coach for an injury resulting from the careless driving of one of them.(m) And an agent, as an attorney, is liable in trover for a conversion to which he is a party, though it be for the benefit of his principal.(n)

*315 a. It must be observed, moreover, that an express authority from the principal need not be shown in order to render him liable [*260]

for the tortious act of his servant or agent, for, as observed in a recent case, it is the known and well established rule of law, that an act done for another by a person not assuming to act for himself, but for such other person, though without any precedent authority whatever, becomes the act of the principal if subsequently ratified by him. In that case the principal is bound by the act, whether it be for his detriment or his advantage, and whether it be founded on a book or a contract to the same extent, and with all the consequences, which follow from the same act if done by his previous authority; thus if a bailiff wrongfully take a heriot as bailiff for the lord, though without any command from him, a subsequent ratification of this act by the lord will render the last named party liable for the trespass. Where however the person does not at the time assume to act as agent, a party will not become liable by a subsequent ratification of the act; thus if the sheriff acting under a valid writ by the command of the court, and as the servant of the court, seizes the wrong person's goods, a subsequent declaration by the plaintiff in the original action, ratifying and approving the taking, does not alter the character of the original taking, and make it a wrongful taking by the plaintiff in the original action. (0)

(h) 1 Bla. Com. 16th ed. 431, n. (11). As to ejectment against a mere agent, see Doe d. Earl of Carlisle v. Wood, 8 East, 228.

(i) Chitt. jun. Pl. 496, n. (a); Morley v. Gaisford, 2 H. Bla. 442; Randleson v. Murray, 8 A. & E. 109;m Gibson v. Inglis, 4 Camp. 72.

(k) Cranch v. White, 1 Bing. N. C. 418; Eliot v. Allen, 1 C. B. 18; Laugher v. Pointer, 5 B. & C. 559; Michael v. Alestree, 2 Lev. 172.

(1) Chandler v. Broughton, 1 Cr. & M. 29; Brucker v. Fromont, 6 T. R. 659. See Booth v. Mister, 7 C. & P. 66.°

(m) Moreton v. Hardern, 4 B. & C. 223 ;P Ogle v. Barnes, 8 T. R. 188.

(n) Davies v. Vernon, 6 Q. B. 448, recognising Cranch v. White, 1 B. N. C. 414; Perkins v. Smith, 1 Wils. 328. See also Alexander v. Southey, 5 B. & Ald. 247;r Catterall v. Kenyon, 3 Q. R. 310.s

(0) Wilson v. Tummon, 6 Scott, N. R. 894, and cases there cited; Lewis v. Read, 13 M. & W. 834; Walker v. Hunter, 15 L. J., N. S., Q. B. 12. 16; Wright v. Crookes, 1 Scott, N. R. 685.

mEng. Com. Law Reps. 35. "Id. 27. Id. 32. Id. 10. Id. 27. Id. 7. Id. 43. MAY, 1847.-12

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*316. It must now be considered as settled, notwithstanding some conflicting dicta and decisions, that for a misrepresentation by an agent, the principal will not be answerable unless he has been guilty of some moral fraud. The case of Cornfoot v. Fowke(o) affords a remarkable instance of the application of this doctrine, which of course depends upon the general question, whether or not moral fraud must be proved in order to support an action for damages occasioned by a false statement, or affirmation; this question was answered in the affirmative by the Court of Exchequer Chamber, in the recent case of Ormrod v. Huth,(p) which was an action for misrepresentation, as to the quality of goods sold, and in which all the previous authorities upon the subject were reviewed. In Smout v. Ilbery, (q) it was laid down that an unauthorized agent professing to bind his principal, will be liable if he has stated as true what he did not know to be true, omitting at the same time to give such information to the other contracting party, as would enable him equally with himself to judge as to the authority under which he proposed to act;" the rule thus expressed, refers to the case of an agent, who believes that he has authority to make a statement when, in fact, he has not such authority, and renders it incumbent on him to communicate to the other party every material fact from which an inference may be drawn as to the existence, *non-existence, or revocation [*262] of the authority under which he assumes to act. We conceive that the rule laid down in Smout v. Ilbery is in no respect at variance with the decision in Ormrod v. Huth; there the false statement alleged was that samples of certain cotton were fair samples of the bulk, whereas they were not; the statement was made bonâ fide; there was no undue concealment nor reservation of facts from which any inference might be drawn as to the quality of the cotton, and the vendors were therefore held not to be liable for the statement, which was false in fact, but not fraudulently made. It may be that a professed agent is more stringently required to communicate facts respecting the existence of his authority as agent, than a vendor is to afford facilities for ascertaining the quality and condition of the article sold, but the principle applicable in each of these cases is believed to be the

same.

317. The servant or agent, as already stated, is liable for a tortuous act, because he cannot justify under the command of his master: the liability of the latter for the act of the servant when acting under his implied authority, results from the fact that servants and agents are hired and selected by the master or principal to do the business required of them, and their acts consequently stand upon the same footing as his own;(r) as in the case of coach proprietors, who are answerable for an injury sustained by a passenger through the misconduct of their driver.(s)

(0) 6 M. & W. 358. See also, Wilson v. Fuller, 3 Q. B. 68 and 1009, reversing the udgment in S. C. Id. 58. (p) 14 M. & W. 651. v. Bell, 14 L. J., N. S., C. P. 267.

(q) 10 M. & W. 10.

See Bailey v. Walford, Q. B., Trin. T., May 26, 1846; Rawlings

(r) Per Littledale, J., Laugher v. Pointer, 5 B. & C. 554, 555,"

(s) White v. Boulton, Peake, N. P. C. 81; Jackson v. Tollett, 2 Stark. N. P. C. 37. See the cases, 2 Selw. N. P. 10th ed. 1097.

Eng. Com. Law Reps. 43. "Id. 12. Id. 3,

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