closed at the time of contracting, subsequently interferes and sues upon the contract, justice requires, that, if the defendant has credited and acquired a set-off against the agent before the principal interposed, the latter should be bound by the set-off, in the same way that the agent would have been had he been the plaintiff on the record; and that the defendant should be placed in the same situation at the time of the disclosure of the real principal, as if the agent had been in truth the principal. This right of set-off, however, could not be maintained, if the purchaser had either express notice, or the means of knowing that the vendor was a mere agent in effecting the sale before the completion of the contract.3

An innkeeper was requested by his guest to allow him the use of a private room for the purpose of showing his goods in; and to this. request the innkeeper acceded, at *the same time telling the guest that there was a key, and that he might lock the door, [*556] which, however, the guest neglected to do; it was held, that the jury were justified in concluding that plaintiff received the favour cum onere, that is, that he accepted the chamber to show his goods in upon. condition of taking the goods under his own care, and that by so taking them under his own care the innkeeper was exonerated from responsibility."

Again, it is a very general and comprehensive rule, to which we have already adverted, and which likewise falls within the scope of the maxim now under consideration, that the assignee of a chose in action takes it subject to all the equities to which it was liable in the hands of the assignor; and the reason and justice of this rule, it has been observed, are obvious, since the holder of property can only alienate or transfer to another that beneficial interest in it which he himself possesses. If, moreover, a person accepts anything which he knows to be subject to a duty or charge, it is rational to conclude

1 George v. Claggett, 7 T. R. 359; Carr v. Hinchliff, 4 B. & C. 547; E. C. L. R. 10; Taylor v. Kymer, 3 B. & Ad. 334; E. C. L. R. 23; Warner v. M'Kay, 1 M. & W. 591.(*) See Gordon v. Ellis, 8 Scott, N. R. 290.

2 Judgment, Sims v. Bond, 5 B. & Ad. 393; E. C. L. R. 27; and in Bonzi v. Stewart, 5 Scott, N. R. 1. See Bastable v. Poole, 1 C., M. & R. 410, 413.(*)

3 Moore v. Clementson, 2 Camp. 22; Maans v. Henderson, 1 East, 335; Estcott v. Milward, cited, 7 T. R. 361; Warner v. M'Kay, 1 M. & W. 591. (*) See stats. 6 Geo. 4, c. 94, s. 4, and 5 & 6 Vict. c. 39, ss. 1, 3; Hatfield v. Phillips, 12 Cl. & Fin. 343. 4 Burgess v. Clements, 4 M. & S. 306, 313; E. C. L. R. 30; Richmond v. Smith,

8 B. & C. 9; E. C. L. R. 15; Dawson v. Chamney, 5 Q. B. 164, 169; E. C. L. R. 48; Calye's case, 8 Rep. 32, is a leading case as to the liability of innkeepers.

51 Johns. R. (U. S.) 552, 553; 11 Id. 80.

that he means to take such duty or charge upon himself, and the law may very well imply a promise to perform what he has so taken upon himself.1

The above maxim may also be applied2 in support and explanation of that principle of the law of estoppel in accordance with which the record of a verdict, followed by a judgment in a suit inter partes, will estop, not only the original parties, but likewise those claiming under them. A man will be bound by that which would have bound those under whom he claims quoad the subject-matter of the [*557] claim; for, qui sentit commodum sentire debet et onus: and no man can, except in certain cases, which are regulated by the statute law and the law merchant, transfer to another a better right than he himself possesses ;3 the grantee shall not be in a better condition than he who made the grant; and, therefore, privies in blood, law, and estate shall be bound by, and take advantage of, estoppels."

In administering equity, the maxim, qui sentit commodum sentire debet et onus, may properly be said to merge in that yet more comprehensive rule that equality is equity, upon the consideration of which it is not, however, within the scope of our present plan to enter; we may, nevertheless, give a few instances to which the more limited form, which is familiar in courts of common law, seems peculiarly applicable. It has been held, for example, that the legatee of a house, held by the testator on lease at a reserved rent, higher than it could be let for after his death, cannot reject the gift of the lease and retain an annuity under the will, but must take the benefit cum onere.

A testator gives a specific bequest to A., and directs that, in consideration of the bequest, A. shall pay his debts, and makes A. his residuary legatee and executor, the payment of the debts is, in this case, a condition annexed to the specific bequest, and if A. accepts the bequest he is bound to pay the debts, though they should far exceed the amount of the property bequeathed to him.7

We may here further observe, that the Scotch doctrine of "appro

bate and reprobate," is strictly analogous to that *of election [*558] in our own law, and may, consequently, be properly referred

1 Abbott, Shipp., 5th ed. 286; cited, Lucas v. Nockells, 1 Cl. & Fin. 457.

2 2 Smith, L. C. 440, 441.

4 Mallory's case, 5 Rep. 113.

5 Co. Litt. 352, a; Outram v. Morewood, 3 East, 346.

6 Talbot v. Earl of Radnor, 3 My. & Ky. 252.

7 Messenger v. Andrews, 4 Russ. 478.

3

Ante, p. 352, et seq.

to the maxim now under consideration. The principle on which this doctrine depends is, that a person shall not be allowed at once to benefit by and to repudiate an instrument, but that, if he chooses to take the benefit which it confers, he shall likewise discharge the obligation or bear the onus which it imposes. "It is," as was remarked in an important case upon this subject, "equally settled in the law of Scotland as of England, that no person can accept and reject the same instrument. If a testator gives his estate to A., and give A.'s estate to B., courts of equity hold it to be against conscience that A. should take the estate bequeathed to him, and at the same time refuse to give effect to the implied condition contained in the will of the testator. The Court will not permit him to take that which cannot be his but by virtue of the disposition of the will, and at the same time keep to what, by the same will, is given or intended to be given to another person. It is contrary to the established principles of equity that he should enjoy the benefit, while he rejects the condition of the gift." Where, therefore, an express condition is annexed to a bequest, the legatee cannot accept and reject, approbate and reprobate the will containing it. If, for example, the testator possessing a landed estate of small value, and a large personal estate, bequeaths by his will the personal estate to the heir, who was not otherwise entitled to it, upon condition that he shall give the land to another, the heir must either comply with the condition, or forego the benefit intended for him. We may add, that the above rule as expressed by the maxim-quod approbo non reprobo, likewise holds where the condition is implied merely, *provided there be clear evidence of an intention to make the [*559] bequest conditional; and in this case, likewise, the heir will be required to perform the condition, or to renounce the benefit3-qui sentit commodum sentire debet et onus.

The converse of the above maxim also holds, and is occasionally cited and applied; for instance, inasmuch as the principal is bound by the acts of his authorized agent, so he may take advantage of them, qui sentit onus sentire debet et commodum.$

In like manner, it has been observed, that, wherever a grant is

1 Kerr v. Wauchope, 1 Bligh. 21.

3

Ib., s. 187.

2 Shaw, on Obligations, s. 184.

4 Seignior v. Wolmer, Godb. 360; Judgment, Higgins v. Senior, 8 M. & W. 844.(*)

5 1 Rep. 99.

Per Story, J., 11 Peters, R. (U. S.) 630, 631.

made for a valuable consideration, which involves public duties and charges, the grant shall be construed so as to make the indemnity coextensive with the burthen-qui sentit onus sentire debet et commodum. In the case, for instance, of a ferry, there is a public charge and duty. The owner must keep the ferry in good repair, upon the peril of an indictment. He must keep sufficient accommodation for all travellers, at all reasonable times. He must content himself with a reasonable toll-such is the jus publicum. In return, the law will exclude all injurious competition, and deem every new ferry a nuisance, which subtracts from him the ordinary custom and toll. The franchise is, therefore, construed to extend beyond the local limits, and to be exclusive within a reasonable distance, this being indispensable to the fair enjoyment of the right of toll; and the same principle applies equally to the grant of a bridge, for the duties attaching to the [*560] grantee are, in this case, also publici juris, and pontage and *passage are but different names for exclusive toll for trans

port.3

We may add, that the maxim to which we have above mainly adverted likewise applies to throw the burthen of partnership debts upon the partnership estate, which is alone liable to them in the first instance, for the joint estate has shared the profits of the concern and must be made available, as far as it will suffice, to discharge the partnership liabilities, but the converse of the maxim holds with regard to the partnership creditor.

Lastly, as the practical application of the maxim, qui sentit commodum sentire debet et onus, has been in part explained by reference to equity decisions, so the converse of that maxim may likewise be illustrated from the same source. Thus, a feme sole having made a mortgage, and afterwards married, the mortgage was transferred during coverture, the husband joining in the transfer, and covenanting to pay the mortgage money; during the coverture the husband reduced the money due upon the mortgage by gradual payments; he also made a disposition by will of the mortgaged premises, and died in the wife's lifetime. Upon a bill by the wife, who claimed to be entitled by survivorship to redeem the mortgage, the redemption was decreed upon the terms, that the husband's estate should stand in the place of the mortgagee for the sums paid by him out of his own property in reduction of the mortgage debt; and this decision is in

1 Paine v. Patrick, 3 Mod. 289, 294.

2 Com. Dig. Pischary, (B.)

3 Charles River Bridge v. Warren Bridge, 11 Peters, R. (U. S.) 630, 631. 4 Ante, p. 554.

5 Pitt v. Pitt, 1 T. & R. 180.

strict accordance with the principle just mentioned-Quod sentit onus sentire debet et commodum. It is equity that that should have the satisfaction which sustained the loss.1

*IN ÆQUALI JURE MELIOR EST CONDITIO POSSIDENTIS. [*561] (Plowd. 296.)

Where the right is equal, the claim of the party in actual possession shall prevail.

The general rule is, that possession constitutes a sufficient title against every person not having a better title. "He that hath possession of lands, though it be by disseisin, hath a right against all men but against him that hath right;" for, "till some act be done by the rightful owner to divest this possession and assert his title, such actual possession is prima facie evidence of a legal title in the possessor, and it may, by length of time and negligence of him who hath the right, by degrees ripen into a perfect and indefeasible title."3

It is, therefore, a familiar rule, that, in ejectment, the party controverting my title must recover by his own strength, and not by my weakness; and that, "when you will recover anything from me, it is not enough for you to destroy my title, but you must prove your own better than mine; for, without a better right, melior est conditio possidentis."s

And, accordingly, mere possession will support trespass qu. cl. fr., against any one who cannot show a better title. To the [*562] like effect, also, are the rules of the civil law,-Non posses

sori incumbit necessitas probandi possessiones ad se pertinere, and in pari causâ possessor potior haberi debet.

1 Francis, Max. 5.

2 Doct. & Stud. 9. "I take it to be a sound and uncontroverted maxim of law, that every plaintiff or demandant in a court of justice must recover upon the strength of his own title, and not because of the weakness of that of his adversary; that is, he shall not recover without showing a right, although the adverse party may be unable to show any. It is enough for the latter that he is in possession of the thing demanded until the right owner calls for it. This is a maxim of common justice as well as of law." Per Parker, C. J. Goodwin v. Hubbard, 15 Tyng., R. (U. S.) 204. 32 Bla. Com. 196.

4 Hobart, 103, 104; Jenk. Cent. 118.

5 Vaughan, R. 58, 60; Hobart, 103.

6 Whittington v. Boxall, 5 Q. B. 139; E. C. L. R. 48. See Young v. Hichens, 6 Q. B. 606; E. C. L. R. 51.

7 C. 4, 19, 2.

8 D. 50, 17, 128, 1.