in Denmark put an end, the year it was introduced, to the vast majority of suits; and even in France, where it was adopted with less effectual rules, to three-fourths of all actions brought. But the profession have an incurable prejudice against every such means, a prejudice in many instances, I fear, not unconnected with motives of interest; and we may complain, as Cromwell did two centuries ago, that the sons of Zeruiah are too strong for us. They say it will do no good, and may even increase the cost of the parties. But this is not easily done, if the very principle of the plan is, that the judge shall hear the parties themselves alone. At least there may be a trial given to the scheme-this can injure nobody; if it fails no one is the worse; if it succeeds, what a blessed consummation is effected! With the profession I will compound; they shall have, so far as I am concerned, no more law amendment to do them injury, no more of costs reduced, no more of litigation prevented. Let them give me this, and Í will lay down my head in peace and comfort, as indeed before long I must whether I choose or not-in peace and comfort, because I shall feel that I have not lived in vain."

BROUGHAM, 9th Oct., 1860.

nearly the whole were afterwards accommodated by the parties who had first held out. This was the average of the whole. But at some places, as St. Etiennes (the Birmingham of France), all but 1-40th were settled in the first instance.

Notes of Recent Leading Cases.

COMMON LAW.

1. SOLOMON V. THE VINTNERS' COMPANY (4 H. and N., 585; 28 L. J. Exch., 370.)

2. BONOMI V. BACKHOUSE (E. B. and E., 622; 27 L. J. Q. B. 378; in Error, E. B. and E. 646; 28 L. J. Q. B. 378.)

The Right to the Support of Land and Buildings-Time when Right of Action accrues.

(Continued from vol. viii. p. 402.)

HAVING recently considered the cases relating to the nature, the acquisition, and the modification by agreement, of rights to support of land and buildings, we now proceed to the examination of the cases which deal with questions arising on the Statutes of Limitation, with respect to the time when the right of action accrues for an injury to any of those rights; that is, whether the right of action accrues, and time under the statute begins to run, upon the doing of the act which ultimately causes. the damage, or upon the actual happening of the damage itself.

Those who contend that the statute begins to run upon the doing of the act which occasions the damage, rely upon the principle that, where the cause of action is an injury to a right, the law imputes damage though none has occurred; or, to use the words of Lord Holt, "every injury to a right imports a damage in the nature of it, though there be no pecuniary loss; and therefore the statute must begin to run from the time when the right was infringed, although no actual damage may ensue till long after.

On the other hand, it is urged by those who entertain the opposite view, that the cause of action in these cases is not the injury to the right, but the consequential damage, and therefore that the statute begins to run from the time of the happening of such damage.

There are but two cases which bear directly upon the branch of the subject reserved for consideration in this Number, and these cases are Nicklin v. Williams (10 Exch. 259), and Bonomi v. Backhouse. In the earlier cases, the points in question did not arise under a general statute of limitation, but under particular statutes, which contain sections limiting the time within

1

Ashby v. White, Ld. Raym. 938; S. C. 1 Smith's Lead. Cas. 104. See also Embrey v. Owen, 6 Exch. 353, 368.

which actions may be brought for injuries done in carrying out the provisions of the particular statutes; but the wording of these sections is not the same as that used in the statutes of limitation.

Thus, in Roberts v. Read (16 East. 215), a wall belonging to the plaintiff abutted on a highway, which, by order of the defendants, in their capacity of surveyors of highways, had been dug up under the authority of the General Highway Act, 13 .Geo. III. c. 78. By the 81st section of that Act, it is enacted, that if any action should be commenced against any person, "for any thing done or acted" in pursuance of the Act, such action should be commenced "within three calendar months after the fact committed, and not afterwards." The digging of the highway had so weakened the foundation of the plaintiff's wall, that part of it fell down, and thereupon the plaintiff brought his action against the defendants. The action was commenced more than three months after the highway had been dug up, but within three months after the fall of the wall; and the question was, whether, under the above Act, it was brought too late. The court held that it was not. Lord Ellenborough said, that "it was sufficient that the action was brought within three months after the wall fell, for that was the gravamen; the consequential damage was the cause of action. If it had been trespass, the action must have been brought within three months after the act of trespass complained of; but, being an action on the case for the consequential damage, it could not have been brought till the specific wrong had been suffered." 1

'

In Sutton v. Clarke (6 Taunt.), a similar point arose but was not decided. Sir Vicary Gibbs, however, in the course of the argument, observed (p. 40, note) that Lord Ellenborough's judgment attained the justice of the case, but that he himself would have had great difficulty in coming to that decision. So, again, Abbott C. J., in Gillon v. Boddington (1 Ry. and Moo. 161, 164), said that he had "great pleasure in finding such a decision in the books;" it appeared to him to be one in which the wisdom of the common law had been interposed, to prevent the injustice which might arise from too literal an adherence to the words of an Act of Parliament.

It will be observed that the wording of the 81st section of the

1 Blackstone, and, since his time, a multitude of writers have cited the illustration of the distinction between Case and Trespass, first invented by Fortescue J. (1 Str. 634):-" If I throw a log of timber into the highway (which is an unlawful act), and another man falls over it and is hurt, an action on the case only lies, it being a consequential damage; but if, in throwing it, I hit another man, he may bring trespass, because it is an immediate wrong."Scott v. Shepherd, W. Bl. 894.

Highway Act (as also of the sections of statutes referred to in Sutton v. Clarke, and Gillon v. Boddington), makes the act done, and not, as in the statutes of limitation, the cause of action, the criterion of the time; and this fact would seem indeed to make the decision and dicta in these cases more, rather than less, favourable to the contention of the respective plaintiffs in Nicklin v. Williams, and Bonomi v. Backhouse, to which cases we now proceed.

In Nicklin v. Williams (10 Exch. 259), the plaintiffs were entitled to the support of their lands and houses by contiguous land belonging to the defendant, and by the strata under the same, and also by the strata of minerals which belonged to the defendant under the plaintiffs' land. The defendant so worked the minerals under his own and the plaintiffs' land as to cause the plaintiffs' land to sink in, and to render their houses ruinous. An action was brought, and by agreement proceedings were stayed, upon condition that the defendant should repair the houses. The defendant fulfilled the condition, but subsequently the plaintiffs' land sank still further, and the repaired houses were damaged, and for this damage the action was brought. The court held that the action was for an injury to a right, and consequently that there was a complete cause of action when the wrong was done, and not a new cause of action when damage was sustained by reason of the original wrong. And the court held that the cases of Roberts v. Read, Gillon v. Boddington, and Sutton v. Clarke did not apply, because in those cases the causes of action were not for injuries to rights, but solely for consequential damages where the original acts themselves were no wrongs, and only became so by reason of those damages.

In Bonomi v. Backhouse the circumstances were almost the same as those in the case of Nicklin v. Williams. The plaintiffs were entitled to have their land and buildings supported by the underlying minerals, and by the surrounding land and the minerals thereunder. The defendant worked the mines under the plaintiffs' land and buildings, and also under all the lands surrounding and adjoining the plaintiffs' land and buildings, and finished the workings in 1850, except as to some mines 280 yards from the plaintiffs' property, the working of which was executed after that time, and within six years before the commencement of the action. These last mines were worked in such a manner that the surface fell in and caused a "thrust," which gradually extended through the intervening workings to those under the plaintiffs' property, causing the surface to subside, and the plaintiffs' buildings to be damaged. The question was, whether the statute of limitation was a bar to the action brought by the plaintiffs?

In the Queen's Bench, Wightman J. differed from the rest of the Court. He thought that the cause of action was founded upon a breach of duty on the part of the defendant, by so using his own property as to injure that of his neighbour, and not upon any right of the plaintiffs' to an easement; and was of opinion that the cause of action arose when their property was injured, and, as no actual damage occurred more than six years before the action brought, that the statute of limitation was no bar.

The rest of the court (Campbell C. J., and Erle and Coleridge JJ.), entertained opinions opposed to that of Wightman J., and followed Nicklin v. Williams, and judgment was accordingly given for the defendant.

Against this decision the plaintiffs appealed, and the decision of the Queen's Bench was reversed by the Court of Exchequer Chamber. The whole question was thoroughly examined in the masterly judgment of the court delivered by Willes J., from which we have extracted the following passages

"The question in this case depends upon what is the character of the right, namely, whether the support must be afforded by the neighbouring soil itself, or such a portion of it as would be, beyond all question, sufficient for present and future support; or whether it is competent for the owner to abstract the minerals, without liability to an action, unless and until actual damage be thereby caused to his neighbour. The most ordinary case of withdrawal of support is in town property, where persons buy small pieces of land frequently by the yard or foot, and occupy the whole of it with buildings. They generally excavate for cellars, and in all cases make foundatious; and, in lieu of the support given to their neighbour's land by the natural soil, they substitute a wall. We are not aware that it has ever been considered that the mere excavation of the land for this purpose gives a right of action to an adjoining owner, and is itself an unlawful act; although it is certain that, if damage ensues in such a case, a right of action would accrue. So also we are not aware that, until the case of Nicklin v. Williams, it had ever been supposed that the getting coal or minerals, to whatever extent, in a man's own land, was an unlawful act, although, if he thereby caused damage to his neighbour, he was undoubtedly responsible for it. The right of action was supposed to arise from the damage, not from the act of the adjoining owner on his own land.

"If the defendant is right, this consequence follows:-Wherever a mine or quarry is worked, the worker may be subjected to actions by all surrounding owners, nay, they would in self-defence

Coram Martin, Bramwell, and Watson BB., and Willes and Byles JJ.