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made the law, that an innkeeper cannot detain the person of his guest, or take off his clothes, to secure payment of his bill, for that, as Lord Abinger says (at p. 254):-'If an innkeeper has a right to detain the person of his guest for the non-payment of his bill, he has the right to detain him until the bill is paid, which may be for life. . . . The proposition is monstrous.' With this the other judges concurred, Parke B. remarking (at p. 253) that were the law otherwise, then if the innkeeper take the coat off the guest's back, and that prove to be an insufficient pledge, he may go on and strip him naked, and that would apply either to a male or to a female. That is a consequence so utterly absurd, that it cannot be entertained for a moment.'

Here, too, it would seem proper to place certain cases where the expressions 'natural right' or 'right by nature' seem, at least to the writer, to be used by English judges, not so much with reference to the jus naturale of the Roman lawyers, as to conditions of physical nature, and the configuration of the soil, which suggests as reasonable and proper, if not necessary, the recognition of certain rights or liabilities in adjoining proprietors. The law here can at any rate scarcely be said to be based on considerations of right and wrong in the moral sense. Thus with reference to the reciprocal right of adjoining owners to have each his soil supported by the soil of his neighbour, whether adjacent or below, so that any act done by one which destroys that support, whether done by him maliciously, or simply in the exercise of his own right to use his own property, is an actionable wrong, Fry J. says, in Dalton v. Angus1:—' There is no doubt on the authorities that, as the support of soil by soil is in fact a result of nature, so the right to such support is given by the law as ex jure naturae, and as a proprietary right.' So per Selborne L. C. (S. C. at p. 792):-'Support to that which is artificially imposed upon land cannot exist ex jure naturae, because the thing supported does not itself so exist'; per Thesiger L. J. (S. C., 4 Q. B. D. at pp. 167-9):—' It is clear that the support of a building cannot be claimed as a natural right of property. Natural rights of property must be rights which attach to property in its primitive state, and cannot, without a contradiction in terms, be applied to an artificial subject matter like a house'; per Brett L. J. (S. C. at p. 191):

'Such rights must have been always in nature from the beginning. They are attributes of nature given for the common benefit of mankind.... The reason why the right is admitted in all those cases [sc. the right to lateral support of land, and to the use

1 (1881) 6 App. Cas. 740 at p. 772.

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of light and air as between adjacent land owners] is that without such a right the owner cannot enjoy his land, if he so pleases, in the condition in which it was given for the enjoyment of man by nature.'

And so again in Sampson v. Hoddinott1, Cresswell J. says:-'It appears to us that all persons having land on the margin of a flowing stream have, by nature, certain rights to use the water of the stream, whether they exercise those rights or not.' So likewise in Smith v. Kenrick Cresswell J., delivering the judgment of the Court of Common Pleas, lays down the ratio decidendi thus:

Treating the question as a new one, not governed by the authority of any decided case-for all those referred to are distinguishable--it would seem to be the natural right of each of the owners of two adjoining coal-mines-neither being subject to any servitude to the other-to work his own in the manner most convenient and beneficial to himself, although the natural consequence may be that some prejudice will accrue to the owner of the adjoining mine, so long as that does not arise from the negligent or malicious conduct of the party.'

And common sense and the reason of the thing as primary sources of case-law are also illustrated by the way in which, even where a legal principle has been clearly established, the Courts will not carry its application to the point of absurdity. Thus in Dalton v. Angus 3, Fry J. (at p. 775), after stating that the whole law of prescription, and the whole law which governs the presumption or inference of a grant or covenant, rest upon acquiescence, and that 'it is plain good sense to hold that a man who can stop an asserted right, or a continued user, and does not do so for a long time, may be told that he has lost his right by his delay and negligence,' goes on to say :

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In the case of air, it is physically possible for the adjoining owners to build a lofty wall round a windmill, and shut out access to air; and in case of underground water it would, at least in some cases, be physically possible to construct a watertight barrier through all the water-bearing strata of the soil; but such cases would require such an unreasonable waste of time and money that the not doing of them has been held to impart no acquiescence in the flow of air and water respectively.'

And with respect to the question which was, in that case, up for decision, as to one who has built a house upon his land acquiring a right to support to his house as against the owner of the adjoining land, he says:

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It is, of course, physically possible for one man so to excavate his own soil as to let down his neighbour's building, and a man may or may not have occasion to excavate his own land for his own purposes, but such an excavation for the sole purpose of letting down a neighbour's house is of so expensive, so difficult, and so churlish a character, that it is not reasonably to be required in order to prevent the acquisition of a right'.'


So also in those cases where the law requires the presence vis major, or the act of God, to exempt a man from liability, it has been decided that anything may be held to amount to vis major if it is practically impossible to resist it, even though not physically impossible so to do. Thus in Nichols v. Marsland", where one who had stored water on her land, and had used all reasonable care to keep it safely there, was held not liable for injury caused to her neighbour by an escape of the water, which was the result of an extremely severe storm, Bramwell B., delivering the judgment of the Court of Exchequer, says (at pp. 258-9):

Every one understands that a storm, supernatural in one sense, may properly, like an earthquake in this country, be called an act of God, or vis major. No doubt not the act of God or vis major in the sense that it was physically impossible to resist it, but in the sense that it was practically impossible to do so. Had the banks

been twice as strong, or if that would not do, ten times, and ten times as high, and the weir ten times as wide, the mischief might not have happened. But those are not practical conditions, they are such that to enforce them would prevent the reasonable use of property in the way most beneficial to the community 3.'

Both these cases, however, might as well have been included in the next division of our subject, as illustrating practical considerations as a primary source of case-law.

(To be continued.)


1 See, however, per Lord Selborne L. C., S. C. 6 App. Cas. at p. 797, who says:— 'It would not be reasonably consistent with the policy of the law in favour of possessory titles, that they should depend, in each particular case, upon the greater or less facility or difficulty, convenience or inconvenience, of practically interrupting them.'

2 (1875) L. R. 10 Ex. 255.

9 It may be noted, however, on the other hand, that limitations to the application of a principle may be so firmly established by precedent, that Courts cannot extend it to cases to which otherwise they would have deemed it just and right so to do: Britain v. Rossiter (1879) 11 Q. B. D. 123 (taking a contract out of the Statute of Frauds on the ground of part-performance), in connexion with which case, McManus v. Cooke (1887) 35 Ch. D. 681, may also be referred to. And even if there be a conflict of authorities, a judge is not at liberty to follow one set rather than the other, merely because the former gives the law as he thinks it ought to be. He is bound to consider what is the general tendency of the law upon the point before him, and decide in accordance with that; Usill v. Hales (1878) 3 C. P. D. 319.


T is proposed in this article to state in Digest-form the principles

supplementary remarks by way of comment.


Where a paramount creditor has a definite enforceable charge against separate properties created either expressly or by operation of law1 whilst they remained in the same ownership 2, then any person interested in the equity of redemption of a portion only of the entirety of the properties charged who is prejudiced by the exercise of the paramount creditor's rights against that portion is entitled to the extent of the value of such portion 3 to stand in his place by way of marshalling against the other property charged.


(a) Whiteacre and Blackacre are both mortgaged to 4, and then Blackacre only is mortgaged to B. If A exhausts Blackacre, B can stand in his place against Whiteacre to the value of Blackacre.

(b) A has a charge on a ship only. Ba bottomry bondholder has a charge on both ship and cargo, since their ownership is different the Court will not marshal against the cargo owners in favour of 45.

(c) 4 mortgages Blackacre and B mortgages Whiteacre to C to secure the same debt. The equity of redemption of Blackacre having been sold to D, he can marshal against B as to Whiteacre for the value of Blackacre exhausted by C.

(d) Defendants had a lien on the proceeds of sale of a brewery for their charges as auctioneers, and plaintiff held a subsequent equitable charge thereon. The brewery belonged to a principal for whom defendants also held the proceeds of furniture belonging to him, but on which they had no lien. The right as to the furniture-fund as between defendants and their principal being a mere set off, held that plaintiff had no right to marshal against it".

1 Moxon v. The Berkeley, &c., 62 L. T. 252.

? Except in cases like illustration (c).

3 Cradock v. Piper, 74 R. R. 87.

As to right of subrogation see head note Aldrich v. Cooper, 7 R. R. 86.

The Chioggia [1898] P. 1.

7 Webb v. Smith, 30 Ch. D. 192.

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The Court will only enforce marshalling having regard to the rights of all parties interested in the property affected, but a right to marshal which would otherwise arise may be affected by prior contractual rights of the parties1.

(Sub-rule 1.)

The Court will not when directing marshalling interfere with the rights of the paramount creditor against all or any portion of the property on which he holds security2.

(Sub-rule 2.)

The Court will not marshal to the prejudice of the rights of persons interested in the equity of redemption of the property affected claiming through the mortgagor, though not acquired for valuable consideration. A trustee in bankruptcy is in the same position as the mortgagor himself3.

The principle applicable to this branch of the subject appears to be that a man shall not derogate from his grant, and was stated by Lord Hatherley thus:

'A person having three estates, which we will call A, B, and C, with mortgages upon all three, executes a voluntary settlement of one of the estates, say C, and afterwards creates a mortgage upon B alone, I apprehend that he cannot. . . affect the interests created in third parties by this doctrine of marshalling, that is to say, he cannot throw the mortgages of A, B, and C upon the estate conveyed away by voluntary settlement in order that he may have B entirely clear and free from mortgage debt 4.'

(Sub-rule 3.)

The Court in marshalling will adjust the rights of the respective assignees of the mortgagor by directing the claim of the paramount creditor to be apportioned between the assignees of the various properties according to their values 5.

If Blackacre and Whiteacre are mortgaged to A, and the equity of redemption of Blackacre is afterwards sold to B, should A in realizing his security exhaust Blackacre only, then B can clearly, as against the mortgagor, marshal against Whiteacre to the extent of the value of Blackacre-indeed this is but a simple example of the ordinary rule-but should the mortgagor have subsequently

1 As in re Mower, L. R. 8 Eq. 110.

2 Webb v. Smith (supra); Moxon v. Berkeley, &c. (supra); Wallis v. Woodyear, a Jur. (N. S.) 179.

Re Cornwall, 61 R. R. 39.

Dolphin v. Aylward, L. R. 4 H. L. 486.

5 Flint v. Howard [1893] 2 Ch. 54; Moxon v. Berkeley, &c. (supra).

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