No. 10.-Kirk v. Gregory. —Notes.

ENGLISH NOTES.

Another case which shows that benevolent intention affords no excuse for unwarrantable dealing with another's goods is Hiort v. Bott (1874), L. R. 9 Ex. 86, 43 L. J. Ex. 81, 30 L. T. 25, 22 W. R. 414, where the plaintiff had sent an invoice and delivery order for barley, to the defendant who had not ordered any, but who was induced on the representation of G. (the broker who had acted in the matter) to indorse the order, so that G. (who subsequently absconded) was enabled to appropriate the barley.

On a somewhat similar principle an English company who paid over dividends to the persons entitled as representatives of a shareholder who died domiciled abroad, but who did not and did not intend to take out administration in England, have been held liable to the statutory penalties as persons who had "taken possession of and administered" part of the testator's estate. New York Breweries Co. v. Attorney-General (H. L. 1898), 1899, A. C. 62, 68 L. J. Q. B. 135.

AMERICAN NOTES.

Although it was formerly held strictly that no one could interfere with a deceased person's estate, it is now determined that there are many acts which do not make one thus liable, such as locking up the deceased's goods for preservation, directing his funeral and paying the expenses thereof, or feeding his cattle. Perkins v. Ladd, 114 Massachusetts, 420. If he dies intestate, his widow, being entitled by preference to administration, may properly intermeddle with his estate, and attend to such things as must be done before letters of administration can be taken out, as, for instance, providing a suitable place of burial. Pettengill v. Abbott, 167 Massachusetts, 307; see Morris v. Lowe, 97 Tennessee, 243. Intermeddling with an intestate's realty will not make one an administrator de son tort. Ela v. Ela (N. H.), 47 Atlantic Rep. 414. An executor de son tort cannot by his wrongful act acquire any benefit for himself; he cannot be charged beyond the assets which come to his hands, but against those he may set off the just debts which he has paid. Parker, 12 Connecticut, 212; Bellows v. Goodall, 32 New Hampshire, 97; Roggenkamp v. Roggenkamp, 68 Federal Rep. 605; 1 Williams on Executors (7th Am. ed.), c. 5; see Weaver v. Williams, 75 Mississippi, 945; First National Bank v. Lewis, 12 Utah, 84; Winfrey v. Clarke, 107 Alabama, 355. New obligations created by him bind him personally, but not the estate. Kelley v. Kelley, 84 Federal Rep. 420; Griffin v. Condon, 41 New York Supplement, 380. A factor's power to sell ends with his principal's death; yet a sale by him to reimburse himself for advances and expenses does not necessarily make him an executor in his own wrong; and here, as always, the intermeddling must be of such a character as to indicate that the wrong-doer is endeavoring to perform an act which should be performed only by the legal representative. Willingham v. Rushing, 105 Georgia, 72; Boring v. Jobe (Tenn.),

Bacon v.

No. 11. — Bryant and another v. Herbert, 3 C. P. D. 389. —Rule.

53 Southwestern Rep. 763. But any unreasonable and unauthorized assumption of the control of another's property may make one responsible as a trustee ex maleficio. See 1 Perry on Trusts (4th ed.), s. 245, and note (a); 2 Pomeroy, Eq. Jur. s. 1055. There must, however, be an actual holding of, or, at least, dominion over, the property. Thus, e. g., in Kellum v. Smith, 33 Pennsylvania State, 158, 164 (see also Barry v. Hill, 166 id. 344), where it was held that a promise to purchase property at a sheriff's sale, and to convey it to the defendant in the execution upon repayment of the purchaser's advances, does not raise a trust, STRONG, J., said: "The fraud which will convert the purchaser at a sheriff's sale into a trustee ex maleficio, of the debtor, must have been fraud at the time of the sale. Subsequent covin will not answer, any more than subsequent payment of the purchase-money will convert an absolute purchase into a naked trust;" and that, under the statute of frauds, the mere breach of a promise to convey does not create in the promisor a trust which the contract itself was insufficient to raise.

WHETHER an action is "founded on tort" within the meaning of the English County Court Acts, depends on the substantial character of the cause of action and not on any forms of pleading.

Bryant and another v. Herbert.

3 C. P. D. 389-393 (s. c. 47 L. J. C. P. 670; 39 L. T. 17; 26 W. R. 898).

Detinue. Costs where Verdict under £20.

County Court Acts, 8 & [389]

9 Vict. c. 95, s. 129; 13 & 14 Vict. c. 61, s. 11; 30 & 31 Vict. c. 142, s. 5.

In an action, claiming the return of a picture or its value and damages for its detention, the plaintiffs recovered a verdict of £10, being its value as assessed by the jury, and 1s. damages for its detention :

Held, reversing the decision of the Common Pleas Division, that the action was founded on tort, within the meaning of 30 & 31 Vict. c. 142, sect. 5, and the plaintiffs were entitled to their costs.

Appeal from the judgment of the Common Pleas Division in favour of the defendant. (3 C. P. D. 189.)

Action claiming the return of a picture or its value, and damages for its detention. The jury assessed the value of the picture at £10, and the damages for its detention at 18.

No. 11. Bryant and another v. Herbert, 3 C. P. D. 389, 390.

May 30 Finlay (Day, Q. C., with him), for the plaintiffs. H. Matthews, Q. C., and Bagnall Wild, for the defendant. The arguments and cases cited were the same as in the Court below. Cur, adv. vult.

July 2. The following judgments were delivered.

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BRAMWELL, L. J. — It seems to me that the question in this case is, what is the meaning of the words "in any action founded on contract," and "on any action founded on tort." Before discussing that it should be noticed that the statute1 applies, [*390] whether the case is decided by verdict, demurrer, or other means. It seems, therefore, inasmuch as no facts are known when the decision is on demurrer, except those stated on the pleadings, that "founded on contract," or "founded on tort," must mean so founded on the face of the pleadings. If so, there seems to me less difficulty than if the facts of the case are to be considered. But either way, what is the meaning of "founded on contract," and "founded on tort?" The words are not words of art even as much as ex contractu or ex delicto would be. They are plain English words, and are to have the meaning ordinary Englishmen would give them. What is the foundation of an action? Those facts which it is necessary to state and prove to maintain it, and no others. This really seems a truism: unless those necessary facts exist, the action is unfounded. All other facts are no part of the foundation. There is a further observation. This statute passed after the Common Law Procedure Acts. They did not abolish forms of action in words. The Common Law Commissioners recommended that: but it was supposed that, if adopted, the law would be shaken to its foundations; so that all that could be done was to provide as far as possible that, though forms of actions remained, there never should be a question what was the form. This was accomplished save as to this very question of costs in actions within the county court jurisdiction.

1 By 30 & 31 Vict. c. 142, s. 5, "If in any action, commenced after the passing of this Act, in any of the superior Courts of record, the plaintiff shall recover a sum not exceeding £20 if the action is founded on contract, or £10 if founded on tort, whether by verdict, judgment by default, or on

demurrer or otherwise, he shall not be entitled to any costs of suit unless the Judge certify on the record that there was sufficient reason for bringing such action in such superior Court, or unless the Court or a Judge at Chambers shall by rule or order allow such costs."

No. 11. — Bryant and another v. Herbert, 3 C. P. D. 390, 391.

Until the passing of the statute we are discussing, it was necessary to see if an action was assumpsit, case, &c. But the Common Law Procedure Act having passed, and forms of actions being practically abolished, the Legislature pass this Act, dropping the words assumpsit, case," &c., and using the words "founded on contract," "founded on tort." This shows to me that the substance of the matter was to be looked at. One may observe there is no middle term; the statute supposes all actions are founded either on contract or on tort. So that it is tort, if not contract, contract,

*

if not tort. Then is this action on the face of the state- [* 391] ments of claim and defence founded on contract or on tort. All that is alleged is that the plaintiffs are owners of the picture, and that the defendant detains it. This means wrongfully detains it, not merely has in his possession, and negatively does not give it up. Then the action is manifestly founded on a tort on the pleadings. But so it is if the facts are looked at. I doubt if there was any contract between the parties. It is said that the defendant agreed to give up the picture. I think not; he was to let the owner take it away; but that is an obligation the law casts on every one who has another's property in his possession. But assuming there was some agreement, the action is not founded on it. Mr. Matthews was driven to contend that it was, and that the property was still in the plaintiffs who could come and seize it or maintain another action for it. This is impossible, and shows therefore that the action was for the tortious detention of the picture, and that the action was founded on the tort to be right of property, and not on any contract. Suppose the plaintiffs had sold the picture to A. B., he might have maintained this action. On what would it then have founded? Clearly not on contract, therefore on tort. So it is now. These are the considerations on which I think this case ought to be decided, and not by inquiries whether detinue is an action ex contractu or ex delicto. think that the Legislature intended that the substance of the action and not its form should be looked at. It leaves out what was in the former Act, "assumpsit, case," &c., and uses the general words "founded on contract," "founded on tort." But if the old learning as it was called is to be brought to help us, I should come to the same conclusion. No doubt dicta and decisions are to be found that detinue is an action ex contractu or ex quasi contractu, &c., but there are dicta and decision the other way. It is not easy

I

No. 11. Bryant and another v. Herbert, 3 C. P. D. 391, 392.

to make sense of them: perhaps the nature of the thing does not admit of it. It cannot be settled by saying that debt and detinue could be joined, and that actions of tort could not be joined with actions on contract. Actions on contract could not be joined, e. g. debt and assumpsit. The reason being unconnected with the question whether the action was ex contractu or ex delicto. The

last case I know of is Clements v. Flight, 16 M. & W. [*392] 42. This clearly holds that the action is founded on a tortious detention. I should therefore come to the same conclusion if these considerations governed the case. But I believe that it was intended that all this useless, and worse than useless, learning should be disregarded, and the matter decided on its substance.

BRETT, L. J.-I concur in the judgment of my learned Brother, but I cannot agree with the reasons given. The question is what is the meaning of the words "founded on contract and founded on tort" in sect. 5 of 30 & 31 Vict. c. 142. With the greatest deference to my Brother Bramwell, I cannot conceive that those words are what he calls plain English, because they seem to me to be technical terms. The conclusion to which I have come is this, that the action of detinue is technically an action founded on contract. The action was invented to avoid the technicalities of the old law: the invention was to state a contract which could not be traversed. Therefore I think the action of detinue, or the form of the action of detinue, so far as the remedy is concerned in its legal signification, was founded on contract.

But then, did the statute which we have to construe mean to use these terms in that sense? I have had great doubts whether it did not, and whether using the terms "founded on contract," or "founded on tort," it was not having regard to the form of action. But I am not prepared to disagree with the conclusion that the statute meant to deal not with the form of action, but with the facts with reference to which the form of action is to be applied. Now, if that be so, the question then is, whether the cause of action in fact here is a cause of action founded on contract in the sense of its being a breach of contract, or whether it is founded on tort in the sense of its being founded on a wrongful act. I certainly have come to a very clear conclusion that where persons are sued in detinue for holding goods to which another person is