for waste. For all ordinary acts of waste, the person injured The remedy thereby had his remedy at law for damages, and in equity for an injunction either to restrain threatened waste or the continuance of waste already commenced; and by the Common Law Procedure act, 1854 (y), power was also given to the courts of common law to grant an injunction, and by a still later act (2) power was given to the courts of equity to award damages. Now under the provisions of the Judicature Act, 1873 (a), the remedy, for either an injunction or damages, or for both, is by action in any division of the High Court of Justice. Now as to the other division of waste, viz., legal and Distinction between legal equitable. Waste was said to be legal when there was and equitable a remedy at law for it, and therefore all ordinary cases waste. of waste are, whether voluntary or permissive, equally legal waste. But waste was said to be equitable when it was only recognised as waste and relieved against in equity. It occurred in this way: If an estate was given to a limited owner expressly without impeachment for waste, at law he was allowed to commit without restriction any act of waste he chose, this being indeed strictly according to the manner in which it was given to him; but in equity, notwithstanding it was so given, the Court would interfere to prevent the pulling down of the family mansion-house or the cutting down of ornamental timber, such acts being considered by the Court to be either malicious, extravagant, or humorsome, and this was called equitable waste. As to the remedy in this case, the distinction Provision of is certainly now done away with by the Judicature Act, 1873, as Act, 1873 (b), that statute providing (c) that “an to equitable Judicature waste. (y) 17 & 18 Vict. c. 125, s. 79. (2) 21 & 22 Vict. c. 27. (a) 36 & 37 Vict. c. 66. (b) 36 & 37 Vict. c. 66. General remarks. Slander of estate for life without impeachment for waste shall not confer or be deemed to have conferred upon the tenant for life any legal right to commit waste of the description known as equitable waste, unless an intention to confer such right shall expressly appear by the instrument creating the estate." This provision arises naturally from the union effected by the act of the different courts, for it would have been an anomaly to have allowed a remedy for this kind of waste to have existed in the Chancery Division of the High Court of Justice and not in the Queen's Bench Division; and therefore now, whatever is the nature of the waste committed, the action in respect of it can be commenced indiscriminately in either division, but, notwithstanding this, wrongful acts committed by limited owners holding without impeachment for waste would yet appear to be properly described as equitable waste (d). It was stated at the commencement of the present chapter that trespass, nuisances, and waste were the most ordinary and important kinds of torts affecting land, and of these instances might be enumerated and dwelt upon at great length, but to do this is not the object of the present work, neither does space permit. The student will also have noticed that various points touched upon pertain more especially to conveyancing and the law of real property, and such matters have therefore been considered as cursorily as possible. Another tort indirectly affecting land may here be shortly referred to, viz. :-slander of title. If lands or chattels are about to be sold by auction, and a person declares in the auction-room or elsewhere that the vendor's title is defective, or makes other statements (d) As to equitable waste, see Garth v. Cotton, 1 White and Tudor's Equity Cases, 697, and the notes thereon. Snell's Principles of Equity, calculated to deter, and which do deter people from buying, or from buying at as high a price as would otherwise have been the case, this is actionable unless the truth of the statement can be proved. In all such cases, however, the plaintiff must prove special damage caused to him by the defendant's act. This right of action for slander of title does not only exist as regards land, but also as regards chattels (e). (e) Addison on Torts, 231, 232. &c., come under the heads of tresasportatis, or pass de bonis conversion. CHAPTER III. OF TORTS AFFECTING GOODS AND OTHER PERSONAL PRO- Torts to goods, TORTS to goods and other personal property mainly come under one of two divisions, viz.: (1) Trespass, which is called trespass de bonis asportatis; and (2) Conversion. The former may be defined as the wrongful meddling by a person with the goods of another, either by removing them or otherwise dealing with them (ƒ); and the latter as the removal by a person of goods from the possession of another with the design either of depriving that other of them, or of exercising some dominion or control over them for his own benefit or the benefit of some third person (g). Mode of considering torts to goods, &c., adopted in this chapter. We will consider the subject in the following manner: 1. The title necessary to enable a person to sue in respect of a tort. 2. The distinction between trespass and conversion, and particular cases of each. 3. Justification of the tortious act. 4. Some miscellaneous points connected with the subject. (f) See Addison on Torts, 457. (g) Ibid. 458. raises a The mere fact of a person having goods in his pos- I. Title. session generally raises a presumption that they are his property, and that he has a perfect title to them, Possession so that he can dispose of and deal with them to the presumption fullest extent; and generally speaking the mere fact of of title. bare possession constitutes a sufficient title to enable the party enjoying it to maintain an action against a mere wrongdoer (h); but this is not always so, for a person may have possession of goods, and yet have no real title to them, or an imperfect one. As to stolen goods, the thief naturally has no good As to stolen title to them, and the law is (except in the case of bills goods. of exchange, promissory notes, and other negotiable instruments (i)) that he can give no title to them except by a sale in market overt (i.e. open market), and not even then if the thief is prosecuted to conviction. By a sale in market overt is meant selling goods What is meant in open market as opposed to selling them privately. overt." by market In the country, the market-place or piece of ground set apart by custom for the sale of goods, is in general the only market overt there; but in London, and in other towns when so warranted by custom, a sale in an open shop of proper goods is equivalent to, and in fact amounts to, sale in market overt (k). This advantage The advantage of a sale in market overt existed at common law (), and is of material importance, enabling as it does a person to give a good title to goods where he could not have done so by a private sale of them; but it must also be carefully borne in mind, as stated above, that there is one case in which even this kind of sale by a wrongful owner will not have this effect, it being of a sale in market overt existed at common law. (h) Armory v. Delamirie, 1 S. L. C. 374, I Strange, 504; per Lord Campbell, C.J., in Jeffries v. Great Western Ry. Co., 5 E. & B. 805. (2) As to which, see ante, p. 155, and the case of Miller v. Race, there referred to. (k) Brown's Law Dict. 332. (1) See the case of Market Overt, Tudor's L. C. Mer. Law, 713, and also see Crane v. London Dock Co., 33 L. J. (Q.B.) 224. |