38

trolled by Acts of Parliament. A grantor may bind himself by covenant to allow any right he pleases over his property, but he cannot annex to it a new incident so as to enable the grantee to sue in his own name for an infringement of such a limited right as that now claimed" (8).

"This grant is perfectly valid as between the plaintif and the canal company; but in order to support this action, the plaintiff must establish that such an estate or interest vested in him that the act of the defendant amounted to an eviction. None of the cases cited are at all analogous to this, and some authority must be produced before we can hold that such a right can be created. To admit the right would lead to an infinite variety of interests in land, and an indefinite increase of possible estates. The only consequence is that, as between the plaintiff and the canal company, he has a perfect right to enjoy the advantage of the covenant or contract; and, if he has been disturbed in the enjoyment of it, he must obtain the permission of the canal company to sue in their name

(t).

This case deserves particular notice. A. (the plaintiff) had no right of action, because X. had neither broken any contract with him, nor invaded any right which he possessed as against X. independently of contract. X. was a wrongdoer, but the wrong he committed was an invasion of the rights not of A. but of the company, who had granted to A. the sole use of the canal. A., on the other hand, possessed rights with regard to the canal, but these rights arose out of the contract between him and the company, and were rights against the company only. A. therefore might probably have sued the company for a breach of their contract with him in allowing X. to use the canal, or might have obtained from the company permission to sue X. in their

name.

(8) Hill v. Tupper, 2 H. & C. 127, 128, judgment of Pollock, C. B.
(t) Ibid. 128. Judgment of Martin, B.

The case would have been different if X., instead of merely rowing on the canal, had attempted to exclude A. from it. Under such circumstances a distinct right of A.'s, sc., to go freely on the canal, would have been violated, and A. might have brought an action against X. in his own name.

"It was competent for the grantors in Hill v. Tupper to grant the plaintiff a right of rowing boats on the canal, and had anyone interfered with that right, the grantee might have maintained an action against him. But the 'plaintiff in that case did not sue because his rowing was ro-, interfered with, but because the defendant used a boat d. on the water. Now suppose the grantors had granted to of the plaintiff a right to row boats, and to [B.] a right (as far as the word is sensible) that no one but the plaintiff should row boats on the canal; clearly [B.] could not have maintained any action. He would not have sued in respect of any estate or of any easement, or of any mode of enjoyment which was disturbed, nor did the plaintiff in that case. It makes no difference that the two rights, as far as possible, were in him, viz., a right to row and a right to exclude others. It was in respect of the latter he sued, and it mattered not he possessed the former" (u).

The rule

applies to actions on

The cases which have been cited in illustration of the principle that no one can sue who has not sustained an injury, have been taken from actions for tort. The prin- contract. ciple itself applies equally to actions on contract. As, however, a person's right under a contract depends upon its terms, the inquiry what, if any, is the right of the plaintiff, resolves itself, in actions ex contractu, into the question, "what are the terms of the contract?"-the reply to which is a matter depending either upon direct evidence, or upon what is called the "interpretation" of documents.

If, however, the terms of a contract are not in fact

(u) Nuttall v. Bracewell, L. R. 2 Ex. 11, 12, per Bramwell, B.

What is the test whether an act is injuri

ous?"

fixed upon by the parties, but are affixed by the law to the relation in which they have agreed to stand towards one another, the so-called inquiry into the terms of the contract is obviously nothing more than an inquiry into the nature of the right, if any, possessed by the plaintiff.

Thus, where it is sought to determine how far a common carrier is liable for the safety of passengers (x), or a person who lets out seats on a stand for the safety of the sight-seers by whom the seats are hired (y), the point for determination is in reality whether the plaintiff has or has not suffered an interference with his legal rights, and in short gives rise to a question of the same kind as that which has to be decided when it is necessary to ascertain what is the right, if any, which a landowner has to support from his neighbour's adjacent ground. Actions, however, brought on account of the breach of some condition, superadded by law or custom to the terms of a contract, are, though in essence actions on contract, most frequently, in form, actions for tort.

Since, of acts which cause damage some are "injurious," and others are not, it is natural to seek for a criterion to determine whether damage has or has not been occasioned by what the law esteems an injury, and the rule which has been laid down is "to consider whether any rights existing in the party damnified have been infringed upon, for if so the infringement thereof is an injury" (z). But this maxim is in reality only a repetition of the rule that mere damage without injury does not give a cause of action. Another maxim which aims at defining the limits of different rights (and to do this is in reality to point out what acts are injurious), is so to use your own property as not to injure the rights of another" (a). It has been criticised on the ground that "a party may damage the property of another where

66

(x) Readhead v. Midland Ry., L. R. 4 Q. B. 379; 38 L. J. 169, Q. B. (Ex. Ch.).

(y) Francis v. Cockrell, L. R. 5 Q. B. 184; 39 L. J. 113, Q. B.
(z) Ashby v. White, notes, 1 Smith L. C., 6th ed., 263.

(a) Broom, Maxims, 4th ed., 357.

the law permits, and he may not where the law prohibits,
so that the maxim can never be applied till the law is
ascertained, and when it is, the maxim is superfluous "(b).

On the whole it may be doubted whether any general principle by which to discriminate acts which merely cause damage from those which amount to injuries, i. e., are an infringement of legal rights, can be obtained.

RULE 3.-No action can be brought except for RULE 3. the infringement of a common law right (c).

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No action

where no

common

Courts of only

law notice

A person may possess rights which cannot be enforced law right. by an action; for our courts of law only consider legal rights. Our courts of equity have other rules by which they sometimes supersede or supplement legal rules" (d). The rights enforceable in courts of equity only are termed "legal" equitable rights, and are never the basis of an action at law (e), though their existence (f) is to some extent recognised by the common law courts.

Hence, a cestui que trust cannot bring an action against his trustee for his acts as trustee. Thus a trustee who has received trust money is accountable for it to the cestui que trust in the Court of Chancery (g), but in the courts of law he is treated, for most purposes, as the absolute owner, and no action can in general be maintained by the cestui que trust against him to recover trust-money, for "it is quite clear that so long as no other relation subsists between two parties, except that of trustee and cestui que trust, no action can be main

(b) Tozer v. Child, 26 L. J. 151, Q. B.; 7 E. & B. 377.

(c) As contrasted with an equitable right. Rights at common law are also frequently contrasted with rights given by statute.

(d) Bauerman v. Radenius, 2 Smith L. C., 6th ed., 367, per Kenyon, C. J.

(e) Bartlett v. Wells, 1 B. & S. 836; 31 L. J. 57, Q. B.

(f) Maberly v. Robins, 5 Taunt. 625; Powles v. Innes, 11 M. & W. 10; D'Arnay v. Chesneau, 13 M. & W. 796.

(g) Pardoe v. Price, 16 M. & W. 451.

right.

tained by the latter against the former for any money in his hands. The trustee is in such a case the only person entitled at law to the money, and the remedy of the cestui que trust is exclusively in a court of equity. . . . . So long as there is no liability except as trustee, the cestui que trust has no legal remedy" (h). A husband therefore cannot recover the property of his wife in the hands of a trustee (i), and an executor or administrato is in the position of a trustee, and the legacies or distributive shares, payable out of the estate of the deceased. cannot be recovered at law as debts (j). And it should be borne in mind that persons are legally considered as trustees who would not be so called in ordinary language. Thus a person who assigns the interest in a debt or other contract to another is as assignor trustee for the assignee.

A trustee may, however, make himself liable to an action by an acknowledgment or an admission that he holds a specific sum for his cestui que trust (k), since after such an admission the trustee is debarred from setting up his character of trustee, and becomes liable at law to the cestui que trust for the money as for money received to his use. Thus, though a husband cannot recover the separate property of his wife in the hands of a trustee, he can recover it as money received to his use in an action against an agent of the wife to whom the trustee has paid it over (1), and an executor may have an action brought against him by a legatee, to whom he has admitted that he has received the money and holds

(h) Pardoe v. Price, 458, 459, per Curiam; Edwards v. Bates, 7 M. & G. 590.

(i) Bird v. Peagrum, 13 C. B. 639; 22 L. J. 166, C. P.

(j) Deeks v. Strutt, 5 T. R. 690; Jones v. Tanner, 7 B. & C. 542; Williams, Executors, 5th ed., 1746.

(k) Remon v. Hayward, 2 A. & E. 666; Roper v. Holland, 3 A. & E. 99. (1) Bird v. Peagrum, 13 C. B. 639; 22 L. J. 166, C. P. Compare Sloper v. Cottrell, 6 E. & B. 479; 26 L. J. 7, Q. B.; Fleet v. Perrins, L. R. 3 Q. B. 536; L. R. 4 Q. B. 500 (Ex. Ch.). Topham v. Morecroft, 8 E. & B. 972.