veyed from the Medway to London; the master of the barge deviated unnecessarily from the usual course, and, during the deviation, a tempest wetted the lime, and the barge taking fire in consequence thereof, the whole was lost. It was held, that the defendant was liable, and that the cause of loss was sufficiently proximate to entitle plaintiff to recover under a declaration alleging the defendant's duty to carry the lime without unnecessary deviation, and averring a loss by unnecessary deviation, a duty being implied on the owner of a vessel, whether a general ship, or hired for the express purpose of the voyage, to proceed without unnecessary deviation in the usual course (x). The above rule, however, does not apply to any transaction originally founded in fraud or covin; for the law will look to the corrupt beginning, and considers it as one entire act, it being a principle, that dolus circuitu non purgatur—fraud is not purged by circuity (y). But if A., for an usurious consideration, give his promissory note to B., who transfers it to C. for a valuable consideration, without notice of the usury, and, afterwards, A. gives to C. a bond for the amount, the bond is good, the notes being destroyed after they got into the plaintiff's hands, and the bond in question being given to plaintiff, without knowledge, on his part, of the usury between defendant and B. (z) Rule does not transaction fraud; apply to founded in inal cases. Neither does the above rule hold in criminal cases, be- nor in crimcause in them the intention is matter of substance, and, therefore, the first motive, as shewing the intention, must be principally regarded (a). As, if A., of malice prepense, discharge a pistol at B., and miss him, whereupon he throws down his pistol and flies, and B. pursues A. to kill him, on (x) Davis v. Garrett, 6 Bing. 716. (y) Bac. Max., reg. 1; Noy, Max., 9th ed., p. 12; Tomlins's Law Dict., tit. "Fraud." (z) Cuthbert v. Haley, 8 T. R. 390. which he turns and kills B. with a dagger; in this case, if the law considered the immediate cause of death, A. would be justified as having acted in his own defence; but, looking back, as the law does, to the remote cause, the offence will amount to murder, because committed in pursuance and execution of the first murderous intent (b). Definition and meaning of term. Liability to repair seawall. ACTUS DEI NEMINI FACIT INJURIAM. (2 Bla. Com. 122). -The act of God is so treated by the law as to affect no one injuriously. The act of God signifies, in legal phraseology, any inevitable accident occurring without the intervention of man, and may be considered to mean something in opposition to the act of man, as, storms, tempests, and lightning (c). The above maxim may, therefore, be paraphrased and explained as follows:-it would be unreasonable that those things, which are inevitable by the act of God, which no industry can avoid, nor policy prevent, should be construed to the prejudice of any person in whom there was no laches (d). Thus, if a sea-bank or wall, which the owners of particular lands are bound to repair, be destroyed by tempest, without any default in such owners, the commissioners of sewers may order a new wall to be erected at the expense of the whole level (e); and the reason of this is, that although, by the law, an individual be bound to keep the wall in repair, yet that which comes by the act of God, and is so inevitable, that it can by no providence or industry of him (b) Bac. Max., reg. 1. (c) Per Ld. Mansfield, C. J., Forward v. Pittard, 1 T. R. 33; Bell, Dictionary and Digest of Scotch Law, p. 11; Trent Navigation v. Wood, 3 Esp. 131. (e) Rex v. Somerset (Commission- that is bound be prevented, shall not charge such party (ƒ). But there must be no default in the owner; for, where the owner of marsh lands was bound by the custom of the level to repair the sea-walls abutting on his own land, and, by an extraordinary flood-tide, the wall was damaged, the Court refused to grant a mandamus to the commissioners of sewers to reimburse him the expense of the repairs, it appearing, by affidavit, that the wall had been previously presented for being in bad repair, and was out of repair at the time the accident happened (g). liability. In another and a very recent case, it was held, that a land- Prescriptive owner may be liable, by prescription, to repair sea-walls, although destroyed by extraordinary tempest; and, therefore, on presentment against such owner for suffering the walls to be out of repair, it ought not, in point of law, to be left as the sole question for the jury, whether the walls were in a condition to resist ordinary weather and tides; but it is a question to be determined on the evidence, whether the proprietor was bound to provide against the effects of ordinary tempests only, or of extraordinary ones also (h). On the same principle, where part of land demised to a tenant is lost to him by any casualty, as, the overflowing of the sea, this appears to be a case of eviction, in which the tenant may claim an apportionment of the rent, provided that the loss be total; for, if there be merely a partial irruption of water, the exclusive right of fishing, which the lessee would thereupon have, would be such a perception of the profits of the land as to annul his claim to an apportionment (i). Where, also, land is surrounded suddenly by the rage or violence of the sea, without any default of the tenant, or if the surface of a meadow be destroyed by the (f) Keighley's case, 10 Rep. 139. (g) Rex v. Essex (Sewers), 1 B. & C. 477. (h) Reg. v. Leigh, 10 A. & E. 398. (i) Woodf. L. and T., 5th ed., 303; 1 Roll. Abr. 236, 1. 40; Bac. Abr. "Rent," (M. 2). See Dyer, 56. Apportion ment of rent, when land lost by casualty. Destruction of premises by fire, &c. eruption of a moss, this would be no waste, (if the injury be repaired in a convenient time), but the act of God, that vis major for which the tenant is not responsible (k). With respect to the liability of either landlord or tenant, where premises under demise are destroyed by fire, the rule is, that, in the absence of any special contract between the parties, the landlord is never liable to rebuild, even if he has received the value from an insurance office (); neither is the tenant, since the stat. 6 Ann. c. 31, s. 6; but the latter is liable to the payment of rent until the tenancy is determined (m). Where there is a general covenant by the lessee to repair, and leave repaired at the end of the term, the lessee is liable to rebuild in case of the destruction of the premises by accidental fire, or by any other unavoidable contingency, as, lightning, or an extraordinary flood. And the principle on which this rule depends is, that, if a party, by his own contract, creates a duty or a charge upon himself, he is bound to make it good, if he can, notwithstanding any accident by inevitable necessity; for, if he had chosen to guard against any loss of this kind, he should have introduced it into the contract by way of exception (n); and, accordingly, an exception of accidents by fire and tempest is now usually introduced into leases, in order to protect the lessee (o). Where the lessee covenants to pay rent, he is bound to pay it, whatever injury may happen to the demised pre (k) Per Tindal, C. J., Simmons v. (1) Pindar v. Ainsley, cited per (m) Paradine v. Jane, Aleyn. R. see Lord Lyndhurst's judgment in Viscount Canterbury v. Reg., 7 Jurist, 226. (n) Paradine v. Jane, Aleyn. R. 27; cited per Lord Ellenborough, C. J., 10 East, 533; argument, Brecknock Company v. Pritchard, 6 T. R. 751; recognised per Lord Kenyon, C. J., Id. 752. (0) Woodf. L. and T., 5th ed., 417. mises; and it seems, that the best plan for the tenant to free himself from liability in such a case would be, to tender to his landlord an abandonment of his lease, upon either the refusal or the neglect of the latter to rebuild (p). The principle under consideration is also applicable to other contracts than those between landlord and tenant. Thus, if the condition of a bond was possible at the time of making it, and afterwards becomes impossible by the act of God, the obligor shall be excused (q); and it is said, that, if the condition be in the disjunctive, with liberty to the obligor to do either of two things at his election, and both are possible at the time of making the bond, and afterwards one of them becomes impossible by the act of God, the obligor shall not be bound to perform the other (r). So, if a lessee covenants to leave a wood in as good plight as the wood was in at the time of making the lease, and afterwards the trees are blown down by tempest, he is discharged from his covenant (s). Further, where the law prescribes a means to perfect or settle any right or estate, if, by the act of God, which no industry can avoid, or policy prevent, this means becomes impossible in any circumstance, no one who was to have been benefited, if the means had been with all circumstances executed, shall be prejudiced for not executing it in that which has thus become impracticable, unless he has been guilty of some laches, and has neglected something possible for him to perform (t). Where con dition of bond becomes im possible. In a devise or conveyance of lands, on a condition an- Condition in (p) Woodf. L. and T., 5th ed., 418. (g) Com. Dig. "Condition," L. 12, D. 1; 2 Bla. Com. 340, 341; Co. Litt. 206. a.; Williams v. Hide, Palm. R. 548. See Roll. Abr. 450, 1. 20, 451; 1. 40. (r) Com. Dig. "Condition," D. 1; Laughter's case, 5 Rep. 22; Wing. Max., p. 610. See this subject discussed at length, Law Magazine, No. 58, p. 349. (8) 1 Rep. 98. (t) Shelley's case, 1 Rep. 97 b. |