[C. B.

that he should consider it a bargain, if he did not hear to the contrary. His nephew did not reply, and having a sale shortly afterwards of some of his effects, the horse was sold by mistake, the auctioneer having had instructions from the nephew not to sell it. Two days after the sale, the nephew wrote to the plt., the contents of which letter showed that he intended to accept his uncle's offer:

Held, in an action of trover by the plt. against the auctioneer, that there had been no such acceptance by the nephew of the plt.'s offer as to vest the property in the horse in him until after the sale, and that such acceptance could not relate back so as to give the plt. a right of action for conversion.

This was an action for the wrongful conversion of a horse of the plt. The casue was tried at the Stafford assizes last summer, when a verdict was entered for the plt. for 334, subject to leave to move to enter a nonsuit if the court should be of opinion that there was no contract within the Statute of Frauds.

March 21.-The VICE-CHANCELLOR now gave judgment, and after reviewing at great length the various authorities and cases which had been cited during the arguments, said that it was singular that the question raised by this special case had never been directly determined. The authorities however, in his opinion, rather preponderated in favour of such a condition being lawful in the case of a testator's own widow. The doctrine that a condition in restraint of marriage by either maid or widow attached to such a gift was void, was origi- The facts of the case were as follows:-The plt. is nally derived from the civil or canon law, the Eccle- a builder in London, and the deft. an auctioneer at siastical Courts founded on which exercising jurisdic-Tamworth; and the latter, whilst selling by auction tion over personal legacies. This doctrine had not, the farming-stock of a Mr. John Felthouse (nephew however, been adopted by our own courts, but had of the plt.), sold the horse in question. It appeared been subjected to various modifications. If such a that about Christmas last the plt. came to his nephew, condition were opposed to the policy of the law, it who was about to leave his farm, and offered to buy was open to the observation that there could be no a horse which he had to sell. John Felthouse asked reason why a testator should be allowed the liberty of 30 guineas for the horse, and the plt. offered 304, forcing his own widow to a life of celibacy any more eventually going away without the horse. The plt. than a mere stranger. It was not very apparent what afterwards told the father of John Felthouse that he interest a husband could have in his widow not mar- had bought the horse for 301., upon which John Felt-rying a second time. In the present case it was abun-house wrote on the 1st Jan. to the plt., stating that he dantly clear that the testator was anxious to make had not bought the horse for 30l., as his price was. provisions for his late nephew's children, and that 30 guineas; to this plt. replied that he would split they should be brought up by their mother. This was the difference between pounds and guineas, and that he a very good and rational reason why the testator had (the plt.) should consider the horse his unless he heard imposed the restriction upon that mother's not marry- to the contrary. John Felthouse did not reply to this, ing. It had not the character of a mere arbitrary neither did any money pass. The horse was put in restriction, as the testator might well think that the the sale with the intention that it should be bought in, relation between the mother and children would be but by some mistake it was sold for 331. changed by the widow's acquiring new ties, and entering upon the care of probably a new family, and so not be able to give that care and attention to the children of her former marriage which they had formerly obtained from her. These children were the special objects of the testator's bounty. There had been no decided authority for holding that a restraint upon the marriage of a widow was actually void, and it did not appear desirable in his (the V.C.'s) opinion, that the policy of the law in this respect should, if it existed, be extended. He must therefore hold that the widow by her marriage with the deft. Marsden had forfeited the benefits which she would otherwise have derived under the testator's will. As to the first and second questions in the special case, the answers would be in the affirmative. As to the third, that the rents, &c. were apportionable. As to the fourth, the costs should be borne by the residuary estate. Solicitors, Boys and Tweedie.

Common Law Courts.

COURT OF COMMON BENCH. Reported by DANIEL THOMAS EVANS and W. MAYD, Esqrs., Barristers-at-Law.

Friday, Feb. 7.

FELTHOUSE V. BINDLEY.

Proposal to purchase-Acceptance of proposal after conversion-Effect of as against third party. The nephew of the plt. having a horse to sell, some negotiations took place between them; but, as they could not agree as to price, the horse was not sold; subsequently, however, the plt. wrote to his nephew, making an offer for the horse, stating in his letter

On the 27th Feb. 1861, John Felthouse wrote the following letter to the plt.:

66

"Dear Uncle,-My sale took place on Monday, and we are very much annoyed in one instance. When Mr. Bindley came over to take an inventory of the stock, I said that horse (meaning the one sold to you) is sold. Mr. B. said it would be better to put it in the sale, and he would buy it in without any charge. Father stood by whilst he was running it up, but had no idea but that he was doing it for the good of the sale, and according to his previous arrangement, until he heard him call out Mr. Glover; he then went to Mr. B., and said that horse was not to be sold; he exclaimed he had quite forgotten, but would see Mr. Glover, and try to recover it, and says he will give 57. if he will give it up; but we fear it doubtful. I have kept one horse for my own accommodation, and if you like to have it for five or six months, you are welcome to it free of any charge except the expenses of travelling; and if at the end of that time you like to return him you can, or you can keep him, and let me know what you think he is worth, &c. I am very sorry that such has happened, but hope we shall make matters all right, and would have given 5. rather than that the horse should have been put up. JOHN FELTHOUSE.” A letter was also produced at the trial written by the deft. to the plt. after the sale:

"Dear Sir,-I am sorry I am obliged to acknowledge myself in the matter of one of Mr. John Felthouse's horses. Instructions were given me to reserve thehorse, but that lapse of time and a multiplicity of business pressing upon me caused me to forget my previous promise. I hope you will not experience any great inconvenience. I will do all I can to get the horse again, but shall know on Saturday if I have suc

of ordinary caution on his part, came in contact with the said shaft, which was then revolving in and by being so used as aforesaid, and by reason of the premises his said left arm was by the said shaft greatly crushed and lacerated, so that thereupon it became and was necessary for the preservation of his life that his said arm should be amputated, and the same was then amputated, whereby the plt. has undergone great pain and suffering, and has been and is incapacitated from earning his livelihood; and plt. claims 10007.

Pleas:-1. Not guilty. 2. As to the first count, no public road, as alleged. 3. As to the first count, that at the time of the happening of the said injury the said shaft was not raised above the surface of the road, and did not obstruct the said road as alleged. 4. As to the second count, that at the time &c., plt. was not lawfully on and passing and walking upon and along the said close of land, nor was he then using the same as a road or footway with the consent and permission of the lawful possessor thereof as alleged.

Issues thereon.

[Ex.

employed at the dockyard, there had been a platform on which was a tramway passing over the shaft, from south to north, for the purpose of conveying stores and other materials, in waggons and barrows, for the use of the contractor, and that this tramway afforded a complete protection from and covering to the shaft; but it becoming unnecessary to continue the use of this tramway, and it being inconvenient that it should remain, it was removed, when the shaft consequently became exposed, whereupon deft. caused three boards to be laid down, covering the middle portion of the shaft only. These boards were not laid close together, but with interstices of two or three inches between them, and they were, according to the deft.'s evidence, so put down for the protection of his workmen." The entire width occupied by them was about three feet six inches-sufficient to enable workmen to drive a barrow across; but some two feet or more of the shaft on each side of these boards was left uncovered and unprotected. The shaft had been in that spot, and more or less covered or protected, for four or five years.

The plt.'s case was, that he was lawfully passing along the path, on which he had a right to be, and that the accident happened through the negligence of deft. in leaving the shaft altogether unfenced. The deft.'s case, on the other hand, was, that the shaft was not unfenced, and that plt. had no business or right to be where he was at the time of the accident; that, in common with all other persons working in the dockyard, except the contractor's own men, he had been strictly forbidden to go there, and that there were other and more convenient ways to the closets by which he ought to have gone. On all these points there was a considerable conflict of evidence. At the close of the plt.'s case the learned judge ruled

At the trial, before Channell, B., at the Winchester summer assizes, 1861, the following appeared to be the circumstances under which the accident occurred: -The plt. was a hired millwright in the service of the Government, and was employed by them in that capacity, at the time of the accident, in certain works in her Majesty's dockyard at Portsmouth, distinct and apart from the deft.'s works there, next mentioned. The deft. was a builder and contractor for public and other works, and at the time in question was engaged on a contract with the Government for making a dock in Portsmouth dockyard. In order to carry on his works deft., or the previous contractor whom he succeeded in Jan. 1858, had, by permission of the dockyard authorities, erected a steam engine-house, a mortar-that there was no evidence for the jury in support of mill and pumps, the mill and pumps being worked by the first count, and it was abandoned by plt.'s counsel.. the engine. The engine-house was erected on the The deft.'s counsel then contended, on the authority western side of a practicable road or pathway, nine feet of Hounsell v. Smyth, 7 C. B., N. S., 731; 2 L. T. wide, and the mortar-mill on the opposite side, having Rep. N. S. 440; 29 L. J. 203, C. P.; and Cornman the nine feet pathway between them. The mill was worked v. Eastern Counties Railway, 4 H. & N. 781; 29 by a square shaft, which passed in a direction from west L. J. 94, Ex., that no ground of action had been to east from the engine-house to the mill across the shown on the second count; that plt. was merely said pathway, and about six inches above the level permissively using the way, and so must use it with of the ground, and when working revolved at the rate of its attendant dangers; and that no duty lay on deft. some fifty revolutions a minute. On the morning of to cover the shaft, and therefore there could be no the accident plt. was employed with some fifty other negligence in not covering it, and they submitted that men in the wood mills. According to the evidence on the plt. should be nonsuited. Plt.'s counsel, on the the plt.'s part, it seemed that certain closets were ap- other hand, cited Corby v. Hill, 4 C. B., N. S., 556;. propriated for the use of the millwrights and men 31 L. T. 181; 27 L. J. 318, C. P., and contended that working at the wood mills, and to get to them the men the case came within the decision there. The learned were in the habit of using the pathway betwen the en-judge entertained some doubt on the matter, and gine-house and mortar-mill; and although there were other practicable ways of getting to the closets, which did not cross the deft.'s works, it appeared that this was altogether the most convenient, or at all events the most usual, way taken by the plt. and the other men employed in the wood mills. It was in evidence also on plt.'s part, that shipwrights and others, in going to and from their work in that part of the dockyard, not unfrequently used this path as a thoroughfare, and that the Government workmen were not permitted to leave the dockyard during the day. Plt. had occasion on this morning to go to one of the closets, and to get there he passed over the pathway and the revolving shaft, which was then at work; on his return, owing to an accidental turning aside of his foot, as he supposed, he slipped and fell to the ground, within some two feet of the shaft, and, throwing out his left hand to save himself, it was caught by the shaft and his left fore arm drawn in and crushed. On being released, he was removed to the surgery, where it was found necessary to amputate his arm near the elbow, and he was removed to the Royal Navy Hospital at Haslar, where he remained five months.

It appeared that, at a time before the plt. was

though thinking that the case fell rather within the ruling in Corby v. Hill than that in Hounsell v. Smyth, he thought it would be better to have the facts on both sides, and leave it to the jury, reserving leave to deft. to move for a nonsuit if necessary. The deft.'s case was then gone into, and at its close the plt.'s counsel declined to accede to a nonsuit, with leave to move. The declaration was amended to meet the evidence which had been given on the deft.'s part, by inserting the words "sufficiently" and "proper or sufficient," as herein before appears in italics and between brackets in the second count, and the following questions were left by the learned judge to the jury: 1st. Whether plt. was lawfully using the way in question, and whether he had a right to use it in the way he was using it at the time the accident occurred. 2ndly. Whether in leaving the shaft in the way it was left on that day deft. was chargeable with. negligence? and on that would arise two points, viz., was it covered at all? and if it was, was it sufficiently covered?

The jury found a verdict for plt., damages 2301., and, in answer to a question by the learned judge, the foreman said, "some of the jury feel doubtful if there

Coleridge, Q.C. accordingly, in Michaelmas Term, moved for a rule to set aside the verdict and enter a nonsuit, pursuant to such leave; and also for a new trial, on the grounds that the learned judge misdirected the jury as to the duty of the deft. to fence the shaft, and that the verdict was against evidence; when the court, thinking there was no reason for saying the amendment ought not to have been made, refused the rule for a nonsuit on that ground, but granted it for a new trial on the other grounds moved. Against which rule,

[Ex.

was any covering at all, but all are agreed that at any | shop were to fall through the hole which is commen rate there was an insufficient covering.' The learned in the front of a house for shooting coal through iste judge then gave leave to deft. to move for a nonsuit if the cellar, by reason of an insufficient cover, that might the court should be of opinion, that the amendment if come within Corby v. Hill. He would not be a tresrequired, ought not to have been made. passer, having the permission of the owner to cross the hole, and he would have been allured or invited to enter the shop; but it may be there is a distinction between a bare permission and a permission and allurement. MARTIN, B. referred to Seymour v. Maddox, 16 Q.B. 326.] Suppose the danger had been entirely concealed, the court would have no difficulty in dealing with it. If it be visible, and the workmen have so to use the yard that they must necessarily pass over it, the deft. is bound to fence it, and he has shown that he thought himself so bound by his partially, although insufficiently, doing so. There was here an appropria tion of the place and of the way to it. [WILDE, B.When you say that there was an "appropriation," you do not mean that the owners of the soil might not have put a gate across the way, and stopped it, or dug a sawpit there?] No. Then the jury were directed that, if there was another equally convenient way to the closets, which did not cross deft.'s works, the plt. was bound to use it; and they found that this was the most conve nient way, and so it is immaterial that there were other ways. [POLLOCK, C. B.-It may have been the more convenient way; but a man, using it for his own convenience, must take it with its attendant dangers MARTIN, B.-The owner of the soil may, if he please so to do, provide conveniences for the men, but I know of no legal obligation upon the men to go them. WILDE, B.-It is clear that there was no obli gation on the plt. to go by this particular way. Pot LOCK, C.B.-The dockyard authorities may be said s far to have sanctioned plt.'s going this way, that be had liberty to use it at his own peril. Suppose it was a way over a mill-race, across which a man with a steady eye and strong instep hops safely, but another man slips, falls in, and is nearly drowned; would a action lie there ?] That, it is submitted, is not an analogous case. When there was the continuous tramway, it was a safe way for any one to walk over. It was not shown that plt. had any notice of the existence of the danger. Caswall v. Worth, 5 El. & Bl. 849; 26 L. T. Rep. 216; 25 L. J. 121, Q. B., shows the an action would lie at common law in case of an accident arising from unfenced machinery: (per Coleridge, J., Ib. 5 El. & Bl. 855.) [WILDE, B.-The stat. 7 & 8 Vict. c. 15, makes the omission of a certain act illegal, and then a person receiving injury through such omission has the right of suing at common law, but it was never intended by that case to decide that, independently of the statute, there was an obligation to fence all machinery.] In Hounsell v. Smyth, 7 C. B. N. S., 731; 2 L. T. Rep. N. S. 440; 29 L.J. 203, C. P. which is relied on by defts., there was no arrangement as here, about works, or about the use of any place, &c. That was a mere open common, lying between two public roads, over which common people had liberty to go; and it was held that the existence of a quarry on the waste, which was dangerous to perseas who might "accidentally deviate or stray" across the waste, gave no right of action unless the excavation were so near the road as to amount to a public nuisance: (judgment of Williams, J., Ib.) In Cornman v. Eastern Counties Railway Company, 4 H. & N. 781; 29 L. J. 94, Ex., the thing which caused the injury was stationary. [WILDE, B.-The present is a peculiar case in this respect; plt. fell, not into the shaft or over it, but stumbling at some distance from it, in falling he put out his hand and put it into the shaft. It is somewhat the same as if he had fallen on a glass bottle in the road; it comes to this, that it was not safe ground to tumble upon. MARTIN, B.-My difficulty is not removed. To support this action you must establish an obligation on deft. to use this road and his works

M. Smith, Q. C. and H. T. Cole now showed cause.-Plt. was lawfully using the way in question, with the permission of the dockyard authorities, who were owners of the soil. Deft. had like permission to erect a dangerous machine across the way, and he was bound to keep it sufficiently fenced, so as to prevent injury to persons, like the plt., lawfully using the way. The closet was one appropriated to the plt. and his fellow-workmen in that part of the yard; and which, as they were not allowed to quit the yard during the day, they were forced to use. Although there was contradictory evidence as to two other practicable ways to the closet being nearer, the way in question was, as the jury found, the usual and most convenient one. Here the plt. was no trespasser, and that distinguishes the present case from those cited for deft., and brings it within the principle of Corby v. Hill. It is just as if the owners of the soil themselves had done it, having held out an inducement to the men to go to the place. Corby v. Hill, 4 C. B., N. S., 556, is in point, and a cogent authority in favour of plt. The remarks of Cockburn, C. J., in that case, are applicable: "The proprietors of the soil held out an inducement, whereby plt. was induced to come upon the place in question; they held out this road to all persons having occasion to proceed to the asylum as the means of access thereto. Could they have justified placing an obstruction across the road whereby an injury was occasioned to one using the way by their invitation? Clearly they could not. It was not competent to them to place thereon any obstruction calculated to render the road unsafe and likely to cause injury to those persons to whom they had held it out as a way along which they might safely go. If that be so a third person could not acquire the right to do so under their licence or permission." [MARTIN, B.If the owner of a private road to his house puts an obstruction in the way which every one can see, no action will lie against him for that. Any person using such road must use it subject to what he may find there. WILDE, B.-Suppose A. gives B. the right, for the purpose of using a certain convenience, to cross his yard across which there are twenty routes, may not A. put a heap of stones in the yard? and if B. tumbles over it, is an action maintainable against A ?] That is not exactly this case. Here the thing is dangerous in itself, and placed in the very path where plt. had a right and was accustomed to go. Here there was allurement held out to plt. to go that way. [WILDE B.-I cannot understand the allurement in this case. But suppose that instead of the stones A. had dug a hole there which he usually kept covered. If the cover were broken only the night before and B. not knowing it fell into the hole, I can understand A.'s liability; but if the hole had been uncovered for a month and B. with his eyes open in broad day walked into it, would A. then be liable?] It is apprehended that if B. stumbled and fell in he would be. [CHANNELL, B.-A shopkeeper may be said in some sense to allure people into his shop. If a customer in entering the

an

Ex.}

BOLETT v. SMITH.

[Ex. there otherwise than he did, and that, in my judg- I that then he would be liable; and it was conment, you have not succeeded in doing. This was not tended that that was what deft. had done. Now, a way at all; not a way of necessity. A right to go if the deft. had put down boards so thin as to be over a large space of land is not a way at all, it is unable to sustain the weight of any one passing over only that he was not a trespasser.] This was more them, although apparently to the eye sufficient for the the case of a trap than of a visible obstruction, for purpose, or if there had been any other concealed along with the obstruction was seen the proposed pro- and non-apparent defect in the visible protection, that tection, which proved to be insufficient; and, as was said would have brought the case within what is said by by Willes, J., in Corby v. Hill," one who comes upon Willes, J., in Corby v. Hill: it would be "a trap.” another's land by the owner's permission or invitation, Here the jury have found that the fence was inhas a right to expect that the owner will not dig, or complete; but if the deft. was not bound to fence at permit another to dig, a pit therein, so that persons all, he is not made liable by putting up an insufficient lawfully coming there may receive injury. The deft. fence, if such insufficiency was visible. Here the inhad no right to set a trap for the plt: that is so ob- sufficiency was to be detected by the eye; the defect vious that it is needless to dwell upon it." Cowley v. was plainly visible. The deft. was under no obligation Mayor of Sunderland, 6 H. & N. 565; 4 L. T. Rep. to fence at all, and I ought to have ruled that there N. S. 120; 30 L. J. 127, Ex., was also cited. Then, was no evidence for the jury on the second count, and as to the verdict being against evidence. [POLLOCK, to have nonsuited the plt. at Nisi Prius. C. B. We do not wish to hear you on that point.] Coleridge, Q. C. and T. Thring, contra, were not called upon.

his case.

is not liable to be treated as a trespasser. Having leave and licence to use this way, though having other ways to use, he voluntarily adopted this way, and has therefore no ground of action for the obstruction which the deft. lawfully put across it. The learned judge should have nonsuited the plt. at the trial, and as that is so, this rule for a new trial must be made absolute.

MARTIN, B.-I am of the same opinion. The real objection to this action is, that the plt. has failed to establish any duty or obligation on the deft. to have CHANNELL, B.-I am of opinion that the rule this place other than it was. If he had been able to must be made absolute for a new trial-not on the establish any such obligation on the deft. the matter nonsuit, for the reason that the plt. having declined to would have worn a very different aspect. A case, consent to such a course, no point was reserved at the somewhat similar to the present one, was tried before trial on which a nonsuit could now be entered. There me in Yorkshire some time since, in which the River were two counts in the declaration: the first alleged Dun Company were defts. Some one in the night had the way in question along which the plt. was lawfully strayed from the regular path and fallen into the river, walking to be a public road. It appeared to me, and but the defts. were not made liable, as no obligation I so ruled at the trial, that there was no evidence to was shown on them to fence the river. The present sustain that count, and that ruling was assented to by was like the case of any person's private yard. Plt. both sides. The second count was substantially the night have seen the machinery; the accident happened same as the first, except that it alleged the way or in clear daylight, at nine in the morning. The deft. path in question to be, not a public way, but a was carrying on work that he had a right to carry on, close of land, along which the plt. was lawfully and doing it in a manner in which he well might do it. passing by permission of the owners of the soil. As What is the plt.'s condition? It is said that he had a to this second count Mr. Coleridge, on the deft.'s part, right and liberty to use this way; that is a mistake, objected at the close of plt.'s case that the plt. was not and one that involves a fallacy. Assuming that plt. entitled to recover, on the ground that there was no obliga- had a perfect right to go in that part of the yard, he tion on the deft. to fence or cover the shaft which ran across was there in the exercise of a licence, and not of a the way, and I then thought that the case of Corby v. right. A permission to use a certain way confers no Hill presented sufficient reason for my holding the ob-right in any other sense than that the person so using it jection to be good; but I thought going into the deft.'s evidence and getting at all the facts on both sides, and reserving the point of law, by giving leave to move, a preferable course to nonsuiting the plt. at the close of At the close of deft.'s case, however, the plt. declined to accede to any reservation of the question of nonsuit, and thus it is that the case now comes before us. The question is, was there any obligation WILDE, B.-I concur in the opinion which has on the deft. to fence? If not, there was no ground been expressed by my learned brothers, that this rule of action, and so there would be misdirection; and if for a new trial must be made absolute. In these so there would be no necessity for considering whether cases it is very important that the material facts on the verdict was or not against the weight of evidence. which the decision of the court proceeds should be On more mature consideration of the case than made plain, and be clearly understood. The plt. here I was able to give to it at Nisi Prius, I am was a man who, in common with several other perclearly of opinion that there was no such obli- sons, had leave and licence from the owners of the gation at all. I think the case comes within the yard to walk across it, not being confined to any one ruling in the case of Hounsell v. Smyth. It must particular track. The deft. also had liberty, from the be taken that plt. was not a trespasser, and that he had same owners, to put up machinery and works in the the permission of the owners of the soil to take the same yard. On the occasion in question the plt., way in question, and that although he had other ways whilst walking along, from one part of the yard to by which he could go, that this was the usual and more another, by the most usual path, although it was not convenient way; but, with all these points found in his the only path by which he might have gone, fell down, favour, he would still not be entitled to recover. The not by reason of any obstruction or of the machinery case of Corby v. Hill appears to me to be quite displaced there, but by accident, and in falling he put out tinguishable, on the ground that the deft. in that case, who, but for the permission given to him to place the slates where he did, would have been a trespasser, had leave so to place them there on condition that he should do what was proper in providing for the safety of the public using the road; the particular act complained of in that case being in violation of such condition. It was argued by Mr. Smith that, supposing there was no obligation to fence at all, yet, if the deft. did fence the shaft, and put an incomplete fencing,

3

his hand to save himself, when it came in contact with, and was caught by, the revolving shaft of the deft.'s machinery. Now, we must look at this case as if it were one between the plt. and the owners of the yard, and, if the owners would not be liable, à fortiori the deft. is not. The question is then, was there any prohibition against the owners of the yard putting up the machinery and works in question? I apprehend that no such prohibition has been made out, and that there are no facts shown in this case on