BLACKBURN, J.-I think our judgment ought to be for the defendants. There are two admitted facts in the case: the plaintiff is owner of the soil of the lake, and the public have the right of navigating the lake in ships of which there is no limit in size. We may take it as a well-established rule of law that where there is a public highway, either upon land or water, any private person has a right to enter upon it at any part from his own adjoining land. The right of access to a highway is at every point of its boundary. Here, therefore, everyone having land upon any part of the lake's banks may embark and disembark from and to his own land. Where a right of this sort has been granted to the public, the necessary incidents are involved in the grant; there must, therefore, be a reasonable mode of getting from the ships which the public have a right to use to the shore: for instance, by boats or by planks temporarily placed from the ships to the bank, but no person has a right to disturb the soil by a permanent erection. We must consider the effect of the building of this pier. Mr. Askew erected it partly on his own land adjoining the lake; and he carried it out into the lake, so as to constitute a trespass upon the plaintiff's right to the soil. This being so, that part of the pier which was constructed upon the soil of the lake has become the property of the plaintiff. He might have removed it, but he has done that which is equally in accordance with his right-he has adopted it as his own; he now complains that the defendants use it although it is his property. It is an obstruction to the incidents of the public navigation of the lake, and it seems to me that the plaintiff maintains it as an obstruction. It is not disputed that, if the plaintiff had himself erected this pier, the public could, according to the case of The Eastern Counties Railway Company v. Dorling, use it for the purpose of passing to and from the steamboats and the defendants' land on the bank. By that case one of the public would have a right to say he found this obstruction to his use of the navigation of the lake wrongfully placed there by the plaintiff, and he justifiably went across it as it was the only means he had of reaching a piece of land where he had a right to be. He must do no more damage to the plaintiff than is necessary for that purpose, but it is not here suggested that the defendants have improperly used the pier. Mr. Manisty says the defendants are availing themselves of their own wrong; but it is not so. The pier was originally put up in aid of navigation, for the purpose of its use by the people who go on board the defendants' steamers; and it is impossible to land at that particular part of the shore except by going over the pier. The plaintiff by allowing the pier to remain where the defendants placed it, has maintained the obstruction to the navigation, and is in the same position as if he o iginally built it. I think it would be a good plea if the defendants were to say, in effect, that the plaintiff so maintained this pier that it was impossible for the defendants to use their right of navigating the lake without knocking it down or walling over it; and that the trespass complained

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of was that the defendants walled over the pier for the purpose of enjoying their right, doing no more injury to the plaintiff than was necessary for that

purpose.

MELLOR, J.-I have come to the same conclusion, but I am not free from doubt about the matter. This decision seems to be good sense, and I will not differ from my learned brethren. The circumstances of the erection of the pier seem to me to make the case very different from that of The Eastern Counties Railway Company v. Dorling. At all events, however, the plaintiff must be now taken to say that the pier is his, and although the defendants put it up, that he has maintained the obstruction. He cannot, therefore, keep the public off it.

LUSH, J.-I do not share in the doubts of my brother Mellor. I think this a clear case. Mr. Marshall might have had this obstruction abated by the wrong doer if he had liked, or might have removed the pier himself; but as he has left it as it was, and now claims it as his, and also damage for the use of it, he has the same liability as if he had made it. The defendants say, this pier obstructs us in our use of the lake, and we cannot enjoy our right without using it. To use it, therefore, is a necessary incident to the public right of navigation, and the pier being an obstruction upon the plaintiff's soil, the case is exactly like that cited by Mr. Holker.

Judgment for defendants. Attorneys for plaintiff, Bell, Brodrick, and Grey. Attorneys for defendants, James, Curtis, and James.

Tuesday, Nov. 28, 1871. SWEETING (app.) v. TURNER (resp.) Auctioneers' implied authority-Claim of landlord -Passing of property on sale.

Two partners authorised an auctioneer to sell the effects of the partnership, and to hold the proceeds as stakeholder until they should join in directing him as to the disposition thereof The sale took place under conditions, one of which was, "Each and all lots shall be taken to be delivered at the fall of the hammer, after which time they shall remain, and be at the exclusive risk of the purchaser, and the auctioneer shall not be called upon for compensation for any injury or loss sustained after that time." When the sale was over, but before the lots had been all removed, the landlord demanded rent from the auctioneer, who promised to pay it out of the proceeds of the sale, in order to avert the distress which the landlord threatened.

Held, in an action by the partner, who was entitled, according to the joint direction of both of them, to the whole proceeds, against the stakeholder, that the property in the goods sold had passed to the purchasers at the time of the the promise to pay rent, and therefore the stakeholder was liable to the plaintiff for the amount he had so promised. APPEAL from the County Court of Suffolk. This was an action to recover the sum of 371. 158. 7d. The following were the particulars of the plaintiff's claim delivered in the action:

"The plaintiff claims 377. 158. 7d. for money payable to the plaintiff for money received by the defendant to the use of the plaintiff.

"The plaintiff claims the same sum, for that on the 3rd Dec. 1870 the plaintiff and one Josiah Garrard Matthews, being then about to dissolve partnership by the hands of their respective attorneys, wrote and delivered a joint note or letter of instructions to the defendant in the words and to the effect following:

"We authorise and request you to take possession of the stock in trade and effects belonging to Messrs. Matthews and Sweeting, and to realise the same with all convenient despatch, and to hold the proceeds as stakeholder until we shall join in directing you as to the disposition thereof.

"Whereupon the defendant took possession of the said chattels and effects, and on the 7th Dec 1870 realised the same by public auction; and the net proceeds thereof, as appearing by the account stated by the said defendant, amounted to the sum of 761. 6s. 10d.; and on the 10th Dec. 1870 the plaintiff and the said Josiah Garrard Matthews, by the hands of their respective attorneys, wrote and delivered a further joint note to the defendant in the words and to the effect following:

"We direct you to pay the net proceeds of your sale on the 7th inst. in pursuance of our instructions of the partnership effects of Messrs. Matthews and Sweeting to Messrs. Aldous and Pearce on behalf of Mr. George Alfred Sweeting, he being entitled to receive the whole of such net proceeds. Yet the defendant did not so pay such proceeds, though lawfully demanded, but wrongfully and contrary to such directions paid the said sum of 371. 15s. 7d., part of such proceeds, to one Cobbold, for rent, as appears by the said account stated, remitting to the plaintiff only the sum of 381. 11s, 3d., the balance after such wrongful payment."

The facts proved at the hearing were as follows: On the 1st Sept. the plaintiff and Josiah Garrard Matthews entered into partnership for the term of ten years as auctioneers, carrying on business upon premises known as the Auction Mart, Upper Orwell-street, Ipswich. The deed of partnership was put in. It did not contain any arrangement about the rent of the premises, which w e then, and had previously been, in the occupation of Matthews as tenant, at 801. per annum, payable quarterly (on the 1st Jan., the 1st April, the 1st July, and the 1st Oct.). Subsequently to the 1st Sept., it was verbally agreed between Matthews and the plaintiff, but without communicating with the landlords, that part of the rent should be borne by the firm, Matthews paying 201. per annum for such part of the premises as were in his own occupation, and not required for the partnership purposes.

Within three months after the commencemeut of the partnership, violent quarrels arose between the partners, and in Nov. last it was arranged between them that the partnership should be dissolved, and the partnership effects sold.

With this view, the following authority was given to the defendant, an auctioneer, residing in Ipswich.

To. Mr. G. A. Turner.

This authority was drawn up by the two solicitors, Mr. Vulliamy and Mr. Peace, in the defendant's office, and he was made fully aware

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effects, to hold them against Matthews, as the plaintiff did not live at the auction mart, and the partners had become extremely hostile to each other.

On the same 3rd Dec. the defendant, in pursuance of his authority, took possession of the goods, except some fixtures, which the plaintiff claimed as partnership property, but Matthews alleged did not belong to the firm. Defendant was present at a violent altercation between the partners about these fixtures.

On Wednesday, the 7th Dec., the defendant, in pursuance of the authority of the 3rd Dec. 1870, held an auction, at the auction mart, of the effects of which he had taken possession, selling them under certain printed particulars and conditions of sale, containing, amongst other stipulations, the following:

Each lot shall be paid for immediately after the sale and previously to its removal. Each and all lots shall be taken to be delivered at the fall of the hammer, after which time they shall remain and be at the exclusive risk of the purchaser; and the auctioneer shall not be called upon for compensation for any injury or loss sustained after that time.

The lots, 118 in all, fetched 911. 11s. 4d. No single lot fetched 101. After the sale was over, but before all the things had been removed by the respective purchasers, Mr. Henry Sidney, the agent of the landlords of the premises, stopped the defendant just as he was leaving the mart, and said he could not allow the things to go until he was paid the rent then in arrear.

The defendant said he had sold all the things, and could not pay it without some authority, and both Sidney and defendant went to speak to Matthews, who was on the premises, and Sidney said to him he must distrain unless the rent were

paid. Matthews said it had better be paid out of the proceeds of the sale, and asked defendant to pay it. Defendant without further inquiry, and without seeing either of the solicitors, Mr. Vulliamy, or Mr. Pearce, or the plaintiff, at once said to Sidney he would pay the rent out of the proceeds of the sale, and Sidney went away satisfied. The rent then due was the private debt of Matthews, and was 401. for two years' rent, which was in arrear on the 1st Oct. 1870, less certain allowances which reduced it to 37l. 15s. 7d., the amount claimed in this action.

There was at the time defendant promised to pay Sidney furniture belonging to Matthews on the part of the premises in his own exclusive occupation.

Not until the following day, the 8th Dec., did the plaintiff become aware of this arrangement about the rent, and then his solicitor immediately informed the defendant that if he paid it he would be held responsible, and negotiations took place to induce Sidney to seize Matthews' furniture, or to induce him to pay the rent. Pending these negotiations, a letter giving defendant notice not to pay the rent was on the 9th Dec. sent to him by the plaintiff's solicitors.

On the 10th Dec., as Matthews could not pay the rent, Mr. Vulliamy and Mr. Pearce joined in the following direction to the defendant:

To Mr. G. A. Turner.

Ipswich, 10th Dec. 1870.

Vol. XXV., N.S., No. 6or*.

On the trial Mr. Vulliamy stated in his evidence that at the time he signed this note of the 10th Dec., he was aware that the defendant had paid or had agreed to pay the rent claimed, and Mr. Pearce knew it as well.

Messrs. Cobbold and Yarington, the landlord's solicitors, gave the defendant an indemnity, and he then paid them the 371. 158. 7d. Subsequently he tendered to the plaintiff's solicitors an account of the auction, showing the net proceeds to be 761. 68. 10d., and a balance of 387. 11s. 3d. after paying 371. 158. 7d. to Cobbold for rent. In pursuance of the direction of the 10th Dec., the defendant paid the balance of 381. 118. 3d. to the plaintiff's solicitors; they immediately issued the plaint in this action.

Rent for the whole premises had, previously to the partnership, been paid by Matthews to Messrs. Cobbold.

From the foregoing facts the County Court judge drew the following inferences of fact:First, that Matthews became tenant by estoppel of the whole of the premises to Messrs. J. C. and Alfred Cobbold, and that the firm of Messrs. Matthews and Sweeting became and were undertenants to Matthews of the part of the premises upon which the business of the firm was carried on, and that the goods and effects which Mr. Sidney threatened to distrain were on such lastmentioned part of the premises; secondly, that in consideration that Sidney, as agent for Messrs. Cobbold, would abstain from distraining such goods and effects, the defendant promised, with the concurrence of Matthews, to pay the 371. 158. 7d. to Messrs. Cobbold, and being of opinion that the defendant was entitled to set up the jus tertii existing in Messrs. J. C. Cobbold and Alfred Cobbold, the judge gave judgment for the defendant with costs.

The question for the opinion of the court was whether under the circumstances above stated the defendant was justified in paying over the 371. 158. 7d. to Messrs. Cobbold? If the court should be of opinion that he was so justified, the judgment of the court below was to be affirmed; but if the court should be of opinion that he was not so justified, then the judgment of the court below was to be reversed and judgment entered for the plaintiff for 371. 158. 7d. and costs.

Graham and McKellar for plaintiff.-At the time Sidney demanded the rent of the defendant, the property in all the goods upon the premises had passed to the purchasers. The words of the conditions of sale were sufficient to terminate all the interest of Matthews and the plaintiff in the goods before the defendant promised to pay the amount of the rent out of the proceeds. No jus tertii therefore arises here; the last case in which the subject was considered is Biddle v. Bond (6 B. & S. 225), where the plaintiff seized certain goods for rent, and directed the defendant, an auctioneer, to sell them. Before the sale the owner of the goods asserted that the plaintiff was not in the position of landlord, and had no right to seize the goods,

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The

and the owner gave defendant notice to retain the proceeds for him. It was held that the defendant had a right to set up the title of the owner of the goods against the plaintiff, who claimed as bailor. No such right, however, can be set up for money in the hands of a bailee. [BLACKBURN, J.-This is not so much a question of jus tertii, as of the implied authority to an auctioneer to protect goods entrusted to him for sale from seizure.] goods were here sold, and by the time of the threat to distrain might have been removed but for the fault of the purchasers. If they had been seized, the plaintiff would not have been affected; the loss would have devolved upon the purchasers; or even if not upon them upon Matthews. Moreover, this promise in the sale room was a promise to pay the debt of another, and, not being in writing, was not binding after the notice to pay the proceeds of the sale to the plaintiff. [MELLOR, J.-It was a promise on good consideration, viz,, that the landlord would not distrain the goods.] At this time the property in the goods had passed to the purchasers:

Benjamin's Sale of Personal Property, p. 213, et seq.

Kemplay for defendant.-This condition of sale must be read only as relating to injury or loss of the nature of fire or theft, not as an exoneration of the plaintiff's liability for the paramount claim of the landlord to distrain. The auctioneer, by the course of his trade, was bound to deliver the goods to the purchasers, and in this case the defendant could not do so without payment of the rent. He could not have sued the purchasers for the price of the goods if the landlord had seized the goods as he threatened. [BLACKBURN, J.-I am not aware of that; the condition says "all lots shall be taken to be delivered at the fall of the hammer, after which time they shall remain and be at the exclusive risk of the purchaser."] At all events, what was done by the defendant was within the implied authority to every auctioneer.

BLACKBURN, J.-This is a very nice question, and I am not at all surprised at the judge coming to the conclusion which he has formed. I think, however, he has somewhat mistaken the position of the parties at the time the defendant's promise was made. It is a thoroughly established rule of the English law that upon a bargain and sale of goods, where everything which has to be done by the vendor is completed, the property vests in the purchaser. After that, if any accident happen to the goods the loss is the purchaser's, not the vendor's. So if any benefit happen to the goods and they become more valuable, the advantage is entirely the purchaser's. The defendant here sold under conditions of sale which clearly point out at what time the property in and responsibility for the goods passed from the vendor to the purchaser. The vendor may have had some lien upon the goods until payment, but his duty to deliver was completed upon the fall of the hammer. This was held to pass the property by the considered judgment of the Queen's Bench delivered by Lord Ellenborough in Hinde v. Whitehouse, 7 East 558. The condition of sale then proceeds to give notice of the consequence of the bargain which a buyer would enter into from the fall of the hammer; "after which time they (the lots) shall remain and be at the exclusive risk of the purchaser; and the auctioneer shall not be called upon for compensation for any injury or loss sustained after that time." It was

contended that this injury or loss must be in the nature of fire or accident, and did not include the rightful claim which the landlord had upon the goods for his rent. He did not here actually distrain, but in order to prevent his carrying out his threat to distrain, the defendant thought he was entitled to pay the rent, and thereby save the vendors from greater expense. He therefore made a promise, which had the same effect as actual payment, to hand over the amount claimed out of the proceeds of the sale. He made a mistake, however, in imagining that his refusal to pay would have caused expense to the vendors; if the goods had been seized by the landlord, their loss would not have fallen upon the vendors, for the property in the goods had by that time passed to the purchasers, and the risk of seizure like that of fire or accident would have devolued upon the purchasers. The plaintiff, therefore, is, in my opinion, entitled to this money. I should have thought it incidental to an auctioneer's authority to pay rent claimed upon goods entrusted to him for sale, if it were necessary to do so in order to save his principal's interest; but here that interest had terminated, and the defendant's promise was beyond his authority. The judgment therefore must be reversed.

MELLOR, J. I am of the same opinion. I think the auctioneer mistook the position of the parties at the time he promised to pay this money. He should have said, in answer to the landlord's claim, "I have sold the goods, and you have no right to the money which I hold." The property in the goods had by that time clearly passed to the purchasers, but the defendant apparently was not aware of that fact. Upon his mistaken view of that matter, he did what, if he had been right, he would have been perfectly justified in doing.

LUSH, J.-I am of the same opinion. The question is whether the defendant, the auctioneer, had any authority to pay this rent at the time he promised. Express authority he certainly had not, but whether it was implied in the instructions given to him to sell the goods depends upon the time of the promise. I think that after the sale of the goods he could not be said to have an agency by necessity for this purpose.

Judgment for appellant.

Attorney for plaintiff, Edward Sweeting. Attorneys for defendant, Patteson and Cobbold, for Cobbold and Yarington, Ipswich.

Wednesday, Nov. 29, 1871.

DAVIES AND WIFE v. SOLOMON. Slander of wife-Chastity-Special damage. Declaration alleged that defendant had spoken of the female plaintiff that she had connection with a certain man two years ago; whereby she was injured in her character and reputation, became alienated from and deprived of the cohabitation of her husband, lost and was deprived of the companionship, and ceased to receive the hospitality of divers friends, of whom her husband and three other persons were named.

Held, upon demurrer, that the declaration was good, the special damage being sufficient to sustain the action.

THE declaration stated that before and at the time of the committing of the grievance hereinafter complained of, the plaintiff Isabella Davies was a

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person of unblemished character and repute, and had always conducted herself with decorum, chastity, modesty, and propriety, living and cohabiting with her husband, and was on terms of intimate relationship and companionship with her husband, and with divers good and worthy friends, and was in the habit of visiting and partaking of their hospitality, and being received by them as a companion; yet the defendant well knowing the premises falsely and maliciously spoke and published of the plaintiff, Isabella Davies, the words following, that is to say, "I can prove that John Davies's wife (meaning thereby the plaintiff Isabella Davies) had connection with a man named Labrach two years ago, but I would rather have the tongue cut out of my mouth than separate man and wife," whereby the plaintiff Isabella Davies was injured in her character and reputation, and became alienated from and deprived of the cohabitation of her husband, and lost and was deprived of the companionship, and ceased to receive the hospitality of divers friends, and especially of her husband John Davies, and one Morrice Davies, and one George Henry Turner (clerk), and one Abraham Joseph Murray, who have by reason of the premises withdrawn from the companionship, and ceased to be hospitable to, or be friendly with, the plaintiff Isabella Davies.

This declaration was demurred to, the ground stated on the record being that the alleged slander was not actionable without special damage, the natural and reasonable consequence of it; and the damages alleged were not such.

Lawrence, for the defendant, supported the demurrer. In the case of Lynch v. Knight (9 H. of L. Cas. 577) the decision of the majority of the Irish judges was overruled by the House of Lords, and the action was held not to lie upon various grounds. Lord Wensleydale based his judgment on the ground that the loss of the consortium of her husband was not special damage upon which a woman might bring an action for words not otherwise actionable. He further said "That the loss of the comfort, of the society, and attention of friends by a wrongful act does not support an action for slander is fully settled by the case of Moore v. Meagher (1 Taunt. 39.)" Moreover, if the wife's loss of hospitality was a damage at all, it was so to the husband, who alone would receive pecuniary benefit thereby; he ought therefore to sue by himself. In Roberts v. Roberts (5 B. & S. 384), it was held that exclusion from a private society and congregation of a religious sect of which plaintiff was a member was not such special damage as would support an action for slander. Starkie's Law of Libel and Slander (3rd edit), p. 318.

Prentice, Q.C. (with him Hume Williams), for the plaintiff was not heard.

BLACKBURN, J.-The only difficulty which we can at all see in this case is the opinion of Lord Wensleydale in Lynch v. Knight. He is always an authority of so much weight, that if we considered the point upon which he differed from the other Lords in that case were raised, we should certainly hear the other side before we decided in opposition to his opinion. But here the declaration does not only, as in that case, allege the loss of cohabitation, but it further avers that the female plaintiff was deprived of the companionship and ceased to receive the hospitality of divers friends, three of whom, besides her husband, are distinctly