TIT. I. as a rescission of the original agreement. PART II. (Noble v. Ward, L. R. 1 Ex. 117; 2 Ex. (Ex. Ch.) 135.) 258. of contract Unless there is an express or implied Dissolution stipulation to the contrary, there is an im- by death. plied condition, in contracts for personal services, that the death of either shall dissolve the contract. (Farrow v. Wilson, L. R. 4 C. P. 744.) 259. If the subject-matter of an agreement Stamps. is of less value than 57., a stamp is not requisite; and a mere acknowledgment of money or property requires no stamp. And the Stamp Acts are to be construed strictly, and not to be extended to cases not clearly falling within their provisions. (Chit. Con. 109, 114, 115; Rosc. 12th ed. 266-7; Vacher's Pocket Digest of Stamp Duties.) 260. An instrument requiring a stamp is not receivable in evidence, for the purpose for which it was made, until it is stamped; but it may be received in evidence for a collateral purpose. And it may be stamped at any time before it is produced for trial, on payment of a penalty in most cases. (Chit. Con. 108, 123-4; Griffiths & Holmes on Bankruptcy, 112; Ponsford v. Walton, L. R. 3 C. P. 167.) 261. 112 TITLE II. OF INJURIES TO PROPRIETARY RIGHTS. CHAPTER I. OF INJURIES TO REAL PROPERTY. PART II. THE injuries to real property are principally TIT. II. CAP. I. Six: 1. Ouster; 2. Trespass; 3. Nuisance; 4. Waste; 5. Subtraction; 6. Disturbance. 262. Ouster, how effected. I. Of Ouster. 1. Ouster is the deprivation of the possession. It is effected by abatement, intrusion, disseisin, or deforcement. (3 Ste. Com. 473-6.) Abatement is a wrongful entry by a stranger, on the death of the owner of the inheritance. Intrusion is a wrongful entry by a stranger, on the determination of a particular estate of freehold, before the remainderman or reversioner enters, or a wrongful entry on the demesnes of the Crown, and taking the profits thereof. Disseisin is a wrongful putting out of a person seised of the freehold in actual possession. Deforcement is a detainer of the freehold from the person entitled, in other cases. (Sm. Law of Prop. 5th ed. par. 1460-1474.) 263. II. Of Trespass. PART II. TIT. II. CAP. I. a trespass. In a wide sense, a trespass is an injurious Definition of act, not amounting to treason or felony. (Ad. Torts, 139; Wharton.) 264. trespass. But a trespass on land, in the generic sense of the term land, is an unwarrantable entry on it, or an unwarrantable use of it, either personally or by one's servants or cattle. (Selw. 1295; 3 Ste. Com. 487, 489; Rosc. 613.) Thus, the throwing a heap of Instances of stones, or pouring water out of a pail, or planting posts or rails, on another's land, and even the mere walking upon it, without damage to the soil or grass, is a trespass. (Ad. Torts, 139, 142-3.) When a footpath is dedicated to the public, it has been held that there is a reservation of the right to plough it up! (Arnold v. Blaker, L. R. 6 Q. B. (Ex. Ch.) 433); and that if it becomes impassable after being ploughed up, the public have no right to pass over the adjoin PART II. TIT. II. ing part of the field! (Arnold v. Holbrook, CAP. L. L. R. 8 Q. B. 96.) 265. Action by tenant and for injury to buildings, If buildings are tortiously and permanently reversioner injured by a third person, the tenant may sue in respect of the injury in an occupation point of view, and the reversioner in respect of the diminution in the saleable value of the property. (Ad. Torts, 158.) 266. and for injuries to trees. Expelling a trespasser. Damages for trespass. Where trees are injured, damages are recoverable by the occupier and by the reversioner-damages for the loss of shade, shelter, and fruit, by the former; damages for the loss of the timber, by the latter. (Ad. Torts, 181; Mayne, 238.) 267. A mere trespasser may be ejected, and if necessary, by force; unless he is permitted to remain without effort to remove him; in which case he will gain a possession. (Ad. Torts, 141; Ad. Con. 365; see supra, par. 14.) 268. In actions for trespass, the jury are not limited to the actual injury inflicted, and may take any circumstances of aggravation into account. Thus, substantial damages may be recovered against a wilful intruder into a dwelling-house, though no actual injury has been done either to person or property. (Rosc. 615; Mayne, 242; Ad. Torts, 179.) III. Of Nuisances. A nuisance has been already defined. (See supra, par. 20.) (a). 270. PART II. TIT. II. CAP. I. affecting property, or his reason ment of it. A person will become liable to an action Injuriously for a nuisance, by erecting a building which another's overhangs another's house or land: or by able enjoyfixing a spout or projection which tends to cause a quantity of water to descend on another's house or land; or by firing off explosive substances, close to his neighbour's land, in order to frighten the game; or by setting up a noisy, noxious, or offensive trade, such as a smith's forge, a brewery, a soapboilery, a tallow-furnace, a dye-house, or smelting works, or by burning bricks; unless it is in a place where it does not amount to a nuisance to the party complaining, or the person exercising it can establish a prescriptive right, by showing that he has exercised it without molestation or interruption in the same manner for twenty years. So a person will be liable by erecting a privy or hogstye, to the annoyance of his neighbour, or allowing the filth of his cesspool or drain to percolate through his neighbour's land and contaminate the water of his well or (a) As to a nuisance in a river, see White v. Phillips, 15 C. B. (N. S.) 245. |