did not think it worth while to insist upon a test which was certain in his favor, because he had another uncertain one on which he might succeed. The opinion of so eminent a judge would, no doubt, take from the weight of the other authorities; but whatever his opinion at the time of the last cited case was as to what the rule ought to be, the effect of it is entirely removed by his clear opinion in a subsequent case as to what the rule really was; and what is the result of the decision in the case of Leigh v. Hind (1) last referred to? I refer to the case of Atkyns v. Kinneir.(2) The defendant, in addition to a covenant not to carry on the business of a surgeon within a certain distance from 28, Dorset Square, to be measured in a particular manner, also covenanted generally not to reside within the distance of two miles and a half from that place. The following is Baron Parke's judgment: "The question was, whether the defendant resided within two miles and a half from the plaintiff's residence, measuring by any of the usual ways of communication. *The rule laid down in Leigh v. Hind (1) is, [82 that when there is a stipulation as to non-residence within a prescribed distance, the true principle of admeasurement is to take the nearest mode of access according to the existing state of the streets. The object of this covenant was to prevent the defendant from residing within two miles and a half of the plaintiff, measuring by any of the usual and ordinary modes of communication." So that Baron Parke distinctly recognizes, in 1850, the rule laid down in 1829 by Lord Tenterden and Mr. Justice Littledale, in Leigh v. Hind (), as the proper one, though at variance with the opinion then expressed by him. And this rule, as applied to such a case, appears to have been regarded as a settled rule by the Court of Queen's Bench, in the Saffron Walden Case (3) already referred to, in which they applied the straight line test to the Act relating to settlements. Lord Denman says in that case: "In Leigh v. Hind (1) one learned judge, my Brother Parke, thought that the natural mode of estimating the distance was as the crow flies; but there with reference perhaps to the object of the contract, the measurement by the nearest accessible route was adopted. Here we are very much. at large, and without materials for judgment; we find no words referring to any particular object. We have, therefore, to lay (1) 9 B. & C., 774. ( 9 Q. B., 76.

(2) 4 Ex., 776.

down a fixed and absolute rule." It is going a great way to cite this as an authority for the straight line rule as applicable to such a case as the present, when the reason for adopting it was that there were not such materials as the present case presents for any other rule. Mr. Justice Patteson's judgment is to the same effect, and founded entirely upon there being in that case no other guide except the words "ten miles."

We have therefore, it is submitted, a remarkable concurrence of authority, dating from the year 1817, and reaching to 1850, upon which it would be supposed men could act with a feeling of perfect security.

The authorities in favor of the straight line rule, as applied to such a case as the present, are, first, the incidental remarks of Mr. Justice Maule in Stokes v. Grissell ('). He says in his judgment (2), “ As to the mode in which the twenty miles are to be 83] *measured, I think that pointed out by my Brother Parke is the right one, and that they are to be measured by a straight line drawn from point to point." He then goes on to say, after referring to the words of the 128th section of the Act of Parliament, that there is no manifest inconvenience in giving to the words their plain unambiguous meaning, and that the distance should be measured as the crow flies. Without detracting from the value of anything said by that eminent judge, it may be observed, first, that the mode of measurement was not the subject for discussion; and, secondly, that so far as it arose incidentally, Mr. Justice Maule was applying it to an Act of Parliament, and not to an agreement where the object of the parties is to be considered.

The only other authority in favor of the plaintiff is a case in equity, Duignan v. Walker. (3) It was much relied on as being in point in his favor. It arose upon an application to commit a man for breach of an injunction not to practise as an attorney, or clerk to an attorney within seven miles from the plaintiff's office. The report is in a few lines, and no case was cited except Lake v. Butler (1), which decided that the twenty miles mentioned in the County Court Act must be measured in a straight line. The learned judge (Wood, V.C.), is reported to have said, "The distance must be measured in a straight line upon a

(1) 14 C. B., 678; 21 L. J. (C.P.), 141. (2) 23 L. J. (C.P.), at p. 143.

() Joh. 446; 28 L. J. (Ch.) 867.
(4) 5 E. & B. 92 ; 24 L. J. (Q.B.) 273.

horizontal plane," and as the facts were disputed, all that the judge did was to direct an inquiry. eradandleft home for a

Upon this case it may be fairly observed (without relying upon any supposed distinction between that case and the present), that all that was done was to direct an inquiry, and when the question of committal came forward the case might perhaps be more carefully considered, and further that the court was dealing with the terms of its own injunction; and as the case of Lake v. Butler (1) was the only one referred to, the conclusion arrived at would naturally follow. And it is tolerably clear that Lake v. Butler (1) (though, as has been already shown inapplicable) was implicitly followed, for the words of the judgment are identically the same as those of Lord Campbell in that case, including the horizontal plane.

It is submitted that this authority does not balance the weight *of authority already given for the other conclusion, and [84 I am, in my judgment in this case, much influenced by the consideration that, if the distance were so far extended by now adopting the radius rule, many persons would be exposed to actions for large amounts of unliquidated damages who had regulated their conduct by a rule founded upon ample authority. They would not relieve themselves from this liability by removing their business, in consequence of a different rule being now laid down.

I think the rule should be made absolute to enter a nonsuit.

Rule discharged.

Attorneys for plaintiff: Stileman & Neate.

Attorneys for defendant; Shum & Crossman.

(1) 5 E. & B. 92; 24 L. J. (Q.B). 273.

When the course of a deed is from line. Jenks v. Morgan, 6 Gray, 448. one point to another it calls for a straight Allen v. Kingsbury, 16 Pick., 235.

1872

Wilson v. Hodson.

Jan. 17, 1872.

WILSON V. HODSON and another.

Law Reports, 7 Exchequer, 84.

Executor.of Executrix de son Tort-Liability for breaches of Contract by Person with whose Assets Executrix de son Tort has intermeddled.

The executor of an executrix de son tort is not liable for a breach of contract committed by the person with whose property the executrix de son tort has intermeddled.

DECLARATION against the defendants as executors of Anne Browne, who was the executrix of Warham Browne, alleging that on the 23d of June, 1853, an agreement in writing was made between the plaintiff and Warham Browne in the words following [here followed the agreement, which was for a demise for a term of certain furnished premises, with stipulations (among others) that the furniture, &c., should be kept in the same state as when delivered to the lessee, and that the premises should be kept in good and tenantable order, and so given up.] That Warham Browne occupied until his death, whereupon Anne Browne entered and occupied as executrix until her death, after which the defendants surrendered the premises and quitted occupation thereof; that Warham Browne did not, nor did Anne Browne as executrix, keep the furniture in the same state as when delivered to Warham Browne, nor did they, or either of them, keep or give up the premises in good and tenantable repair.

85] *Plea 12: That Warham Browne died intestate, and Anne Browne was never his executrix otherwise than executrix de son tort, and that the defendants never had notice or knowledge that Anne Browne entered upon or occupied the premises otherwise than in her own right, or that she had ever rendered herself liable to be charged as such executrix de son tort of Warham Browne.

Demurrer and joinder in demurrer.

Trevelyan, in support of the demurrer. The executrix de son tort would have been liable in her lifetime for breaches committed by Warham Browne; and her executors are liable as such, although she was not executrix otherwise than de son

Anne Browne having intermeddled with the intestate's assets would have been estopped from denying her liability, and that estoppel binds the defendants. Again the provisions of 30 Car. 2, c. 7, s. 2, explained and made perpetual by 4 & 5 W. & M. c. 24, s. 12, apply. By those statutes it is enacted that the executors or administrators of any executor or administrator whether rightful or of his own wrong, who should waste, or convert to his own use, the goods of his testator or intestate, should be liable and chargeable in the same manner as their testator or intestate would have been if they had been living; and in this declaration there is an allegation that Anne Browne entered and occupied the premises, and did not perform the stipulations in the memorandum of agreement. This is equivalent to a suggestion of waste, or, at all events, of conversion of the plaintiff's goods. [He cited Browne v. Collins (1); Wells v. Fydell (); Carmichael v. Carmichael (3); Oxenham v. Clapp (); Meyrick v. Anderson (5).]

Ridley, contrà. The declaration does not sufficiently allege a devastavit by the executrix de son tort, so as to bring the case within 30 Car. 2, c. 7; so that the question is, whether, apart from statute, the executors of the executrix de son tort are liable for a breach of contract committed by the person with whose assets the executrix de son tort has intermeddled. They are free from liability, just as the executors of an administrator are held to be free, because the executrix de son tort, like an administrator, is not *a person in whom the deceased has [86 reposed any trust. Indeed their case is stronger than that of an administrator, for the executrix de son tort is appointed neither by the Court nor the testator. Again, there is no such estoppel, as is suggested. The executrix would have been herself estopped, because she had actually meddled with the property of the deceased. But with her death the reason of the estoppel ceases, and her representatives upon whom the property does not devolve, are not bound by it. [He cited Shep. Touch. by Preston, vol. ii. 464; Viner's Abr. tit. Executors, C. (a), F. (a, 5); Anon. Case (6); Wheatley v. Lane (7).

Trevelyan, in reply.

(1) 1 Vent, 292.

(*) 10 East, 315.

(3) 2 Ph., 101.

(*) 2 B. & Ad., 309.
(°) 14 Q. B., 719.

(*) 2 Mod., 293.

(7) Notes to Wms. Saund., 239.