previous notice to the occupier (a); except perhaps where there is such immediate danger to life or health as to render it unsafe to wait (b). Probably in no other case is previous notice to the occupier necessary (c). Thus, an owner of land overhung by trees growing on his neighbour's land is entitled to cut the overhanging branches without any previous notice if he can do so without going on to his neighbour's land (d). nuisances. In the case of an obstruction to a public way, such as the Public placing of posts and rails across it, any member of the public may abate the nuisance and pull the obstruction down (e), so far as is necessary to the exercise of his right of passage (f). But he cannot justify doing more than the necessity of the case requires. Thus, where property is wrongfully placed in the channel of a navigable river so as to cause a nuisance to the public right of passage, a private individual navigating a vessel in the river cannot justify damaging such property by wilfully passing over that portion of the channel where it is placed, if he might with reasonable convenience have exercised his right of passage by going over some other portion of the channel (g). The subject of distress damage feasant will be found dealt with Distress in the chapter on Distress (h). (a) Jones v. Williams, 11 M. & W. 176. (b) Per Lord Abinger, Ibid., p. 182. (c) There is a dictum of Best, J., in Earl of Lonsdale v. Nelson (2 B. & C. 302), to the effect that in case of nuisances of omission, notice is necessary except in the case of cutting trees. This point was left open by the House of Lords in Lemmon v. Webb, (1895) A. C. 1. (d) Lemmon v. Webb, (1895) A. C. 1. (e) Webber v. Sparkes, 10 M. & W. 485. (f) Dimes v. Petley, 15 Q. B. p. 283. The proposition in the head-note to this (g) Mayor of Colchester v. Brooke, (h) p. 273 sqq. damage feasant. Waiver by election. Trespass waived by suing in trover. Trover waived by suing for money had and received. CHAPTER VIII. DISCHARGE OF TORTS. WHEN there is a vested right of action for a tort it may be discharged by the death of one of the parties, by waiver, by accord and satisfaction, by release, by judgment recovered, and by the Statute of Limitations. Discharge by death has been dealt with in the chapter on Parties; it remains to consider the other methods (a). 1. If a man has more than one remedy for the same wrong and elects to pursue one of them, giving the go-by to the others he must stand and fall by his election; the other remedies are waived. "If a man's goods are taken by an act of trespass, and are subsequently sold by the trespasser and turned into money, he may maintain trespass for the forcible injury; or waiving the force he may maintain trover for the wrong; or waiving the tort altogether he may sue for money had and received" (b). Thus, if a trespass to realty is committed, and portions of it, such as minerals, timber, or fixtures, are severed, the injured party, waiving the unlawfulness of the severance, may sue in trover for the value of the severed chattels (c). So, if a man is unlawfully deprived of the possession of his property, which is afterwards sold or pledged (d), the owner may affirm the transaction and sue the wrongdoer on a contract implied in law to refund the proceeds (e). The commencement of an action or of proceedings in bankruptcy to recover the money is evidence of an (a) By 46 & 47 Vict. c. 52, s. 37 (1), damages for a tort are not provable in bankruptcy; bankruptcy, therefore, can never discharge a tort. The decision in Jack v. Kipping (9 Q. B. D. 113), does not, it is apprehended, constitute any exception to this rule. (b) Per cur. Rodgers v. Maw, 15 M. & W. p. 448. (c) Dalton v. Whittem, 3 Q. B. 961. (d) Allanson v. Atkinson, 1 M. & S. 583. (e) Smith v. Hodson, 4 T. R. 211; Smith v. Baker, L. R. 8 C. P. 350. election to waive the tort, but not necessarily conclusive evidence. If, however, a final judgment or order is obtained in the action or proceedings then the election is final (a). A mere demand of By agreeing to accept the money does not amount to an election (b); but in a case payment. where the demand was assented to and a sum paid on account, it was held that the tort was waived (c). It would seem that the result would have been the same even though no payment had been made. In Brewer v. Sparrow (d), the defendant had sent to the plaintiff an account of the proceeds of certain goods converted by him, and after deducting expenses had paid over the balance, and it was held that the plaintiff's had waived their right to treat him as a wrongdoer. It is not, however, in every case that the mere receipt of the proceeds of a conversion operates as an election not to sue in tort. Thus, where the finder of a note had cashed it, and he being afterwards arrested on a charge of larceny some of the money was handed over to the owner, the latter sued successfully in trover for the balance. The plaintiff, by the receipt of money under the circumstances, did not elect to treat the case as one of debt (e). satisfaction. 2. Anyone who has a cause of action may agree with the party Accord and against whom the action lies to accept in substitution for the right any good legal consideration, and by such acceptance his cause of action is satisfied and he can proceed with it no further. This is called an accord and satisfaction. without A bare accord amounts simply to an understanding between Accord the parties that something shall be done in future which the satisfaction. aggrieved person shall take in satisfaction of his claim, and so long as it remains executory cannot be enforced by either party. The plaintiff cannot sue upon it in substitution for his original cause of action (ƒ), nor can the defendant set it up as a defence to that cause of action. "If divers things are to be performed by the accord, the performance of part is not sufficient but all ought to be performed. . . . . Also, if the thing be to be performed at (a) Smith v. Baker, supra; Curtis v. Williamson, L. R. 10 Q. B. 57; Scarf v. Jardine, 7 App. Cas. 345. (b) Valpey v. Sanders, 5 C. B. 886. (e) Burn v. Morris, 4 Tyr. 485. As to the effect of waiver where the cause of action is by or against joint parties, see below, p. 151. (f) Lynn v. Bruce, 2 H. Bl. 317. Mere agreement taken in satisfaction. Self-executing accord. Accord without binding contract. There must be good consideration. a day to come, tender and refusal is not sufficient without actual satisfaction and acceptance" (a). If one man agree to take a bill of exchange from another in satisfaction of a claim and receive it by post, he may, nevertheless, at once repudiate the transaction, for the mere receipt is not an acceptance; and unless he assent to the receipt he is not satisfied (b). The arrangement, however, may be that the cause of action. shall be satisfied, not in the future on certain things being done, but forthwith by the mere agreement to do certain things. "There may be two kinds of accord: the making of the agreement itself may be what is stipulated for, or the doing the things mentioned in the agreement. In the latter case the plea . . ought to aver that the things have been done, and the agreement without that affords no answer. Where the making of the agreement is itself the thing looked to, the plea must aver that it has been accepted in satisfaction; that averment in truth carries with. it the fact of the performance of all that was to be done in order to settle the action; it leaves nothing in fieri, nothing incomplete" (c). Sometimes the accord is self-executing, as, for instance, where parties agree mutually to relinquish claims which they have against each other. Such agreement ipso facto puts an end to the rights of action on either side (d). An executory accord need not fulfil all the requirements of a binding contract, since ex hypothesi till it is executed it binds neither side, and after execution the question is not whether it could have been enforced but whether it has in fact been accepted (e). But where a party agrees to take in satisfaction of his cause of action not the fulfilment of a promise but the promise itself, all conditions must be present to make that promise legally binding, since otherwise he will obtain nothing in return for the surrender of his cause of action (f). In both cases alike there (a) Peytoe's case, Rep. p. 79 b; Wray v. Milestone, M. & W. 21; Gabriel v. Dresser, 15 C. B. 622. (b) Hardman v. Bellhouse, 9 M. & W. 596. (c) Per Coleridge, J., Flockton v. Hall, 14 Q. B. p. 386. (d) Jones v. Sawkins, 5 C. B. 142; Crowther v. Farrer, 15 Q. B. 677; cp. James v. David (5 T. R. 141), where there was an agreement to settle matters in dispute, and to execute bonds not to sue. Here the accord was clearly executory because it was contemplated that further steps should be taken. (e) Lavery v. Turley, 6 H. & N. 239. (f) Case v. Barber, T. Raym. 450. must be good legal consideration. "In an action upon the statute of Richard II., if the defendant saith that after the entry an accord was made between them that the plaintiff should reenter the land and the defendant should deliver the evidence of the plaintiff to the plaintiff, this is not any bar of the action, for the delivery of the plaintiff's evidences cannot be any satisfaction of the tortious entry. But, otherwise, it is if he says that the accord was that he should deliver certain evidence concerning the land to the plaintiff and that he delivered them accordingly, this is a good bar if he makes title to the evidences" (a). satisfaction If a claim for damages be referred to arbitration and the Accord and award be made, it may be pleaded as an accord and satisfaction by arbitrathough not performed; but before award the pendency of an arbitration is no defence to an action, though it may be a ground of stay (b). tion. accord and It would appear that it is possible to make an accord and satis- Conditional faction conditional. A man may accept a sum as satisfaction of satisfaction. personal injuries on the understanding that if the mischief should turn out worse than it appears to the medical men at the time, he is not precluded from bringing his action (c). 3. Any surrender of a right of action may be spoken of as a Release. release; but the term is usually applied where the surrender is by deed, and, therefore, requires no consideration (d). A release by indenture is only available in favour of those who are expressed as parties thereto (e). An absolute covenant not to sue is equivalent to a release, and may be so pleaded (ƒ). recovered. 4. When an action is brought and proceeds to final judgment, Judgment the original right of action is in any case destroyed. If the plaintiff fails, he is estopped from asserting his alleged right in any other form of legal proceedings against the same party. If (a) Vin. Ab. Accord. A 4, citing 9 Ed. IV. 19. As to consideration, see McManus v. Bark, L. R. 5 Ex. 65; Boosey v. Wood, 3 H. & C. 484. The abandonment of claims bond fide made though in fact unfounded is good consideration; Callisher v. Bischoffsheim, L. R. 5 Q. B. 449. (b) Allan v. Milner, 2 C. & J. 47; Harris v. Reynolds, 7 Q. B. 71. (c) Lee v. Lancashire & Yorkshire R. Co., L. R. 6 Ch. 527. (d) For an example of a release of an (e) Storer v. Gordon, 3 M. & S. 308. |