entry also, my mind is equally free from doubt. Finding the premises in a dilapidated state, the landlord comes upon them and enters into an agreement with a man he finds in possession, to become his tenant,intending thereby to act upon the forfeiture and to oust the lessee. I think that was quite sufficient to constitute an entry by the landlord so as to put an end to the lease.

WILLIAMS, J.-I am quite of the same opinion. Roe *d. Goatly v. Paine, 2 Campb. 520, is distinctly recognised in Doe [*555 d. Morecraft v. Meux, 4 B. & C. 606 (E. C. L. R. vol. 10), 7 D. & R. 98 (E. C. L. R. vol. 16); and the two cases together show that the law is clearly settled, that the general covenant to repair, and also to repair within a certain time after notice, are separate and independent covenants. Such has undoubtedly been the understanding of the profession for several years. (a) As to the other point, if Barnewell had entered and desired the person he found upon the premises to go out, and then desired him to resume possession as his tenant, the case would have been clear beyond all doubt.(b) They did not go through that idle ceremony: but the facts set out in the special case show a re-entry by the landlord, and something more.

years.(a)

CROWDER, J.-I also am clearly of opinion that the general covenant to repair, and the covenant to repair after a three months' notice, are separate and independent covenants. I never heard it doubted before. If Mr. Wood is desirous of questioning the propriety of the decision in Doe d. Morecraft v. Meux, he must do so in a court of error. Then it is said there has been no re-entry. The landlord, however, is in and occupying the premises by a tenant who is paying him rent. that is the strongest possible case of entry.

I think

Judgment for the defendants.

(a) See Woodfall's Landlord and Tenant, 7th edit. by Horn, 93; Smith's Landlord and Tenant, by Maude, 201.

(b) See Doe d. Baker v. Coombes, 9 C. B. 714 (E. C. L. R. vol. 67).

*CORBY v. HILL. May 25.

[*556

The owner of land having a private road for the use of persons coming to his house, gave permission to A., who was engaged in building on the land, to place materials upon the road. A. availed himself of this permission, by placing a quantity of slates there in such a manner that the plaintiff in using the road sustained damage:-Held, that A. was liable to an action. Held also that the declaration was not objectionable for not averring that the obstruction was placed on the road without permission; inasmuch as such an allegation, if traversed, would have presented an immaterial issue.

THIS was an action against the defendant for negligently leaving certain slates upon a certain road, whereby the plaintiff's horse was injured.

The declaration stated, that, before and at the time when, &c., the plaintiff was lawfully possessed of a certain carriage, and of a certain horse drawing the said carriage, which said horse and carriage were under the government and direction of a servant of the plaintiff, and which said horse and carriage were then, with the consent of the owners and occupiers of the land and road and carriage line thereinafter mentioned, during the night-time, under such care and government as afore

said,. lawfully in and lawfully being driven along certain land and a certain road or carriage line, part of and crossing the said land then belonging to and occupied by certain persons other than the plaintiff and the defendant, and leading to a certain public building known as the Hanwell Lunatic Asylum, for the purpose of proceeding to the said building; that the defendant then negligently, carelessly, and improperly kept and continued upon and across the said road or carriage line, part of the said land, a stack of slates, and divers other things and materials, without placing or keeping any light or signal near them, or adopting any means whatever to show that the said slates and other materials were upon or across the said land, road, or carriage line; by reason whereof it was then impossible for the servant of the plaintiff to see or avoid the said slates, materials, or other things; and that, by reason thereof, the said horse drawing the said carriage, while being driven by the said servant as aforesaid, ran into, upon, *and *557] against the said stack of slates or other materials and things, and was greatly bruised, wounded, and injured: special damage.

The fourth plea stated that the defendant had lawfully placed, kept, and continued the said slates and other things and materials across the said land and road or carriage line by the license of the owners and occupiers of the said land, road, or carriage line, before the consent of the owners and occupiers of the said land, road, or carriage line as in the declaration alleged; and that the said consent so given to the defendant was in full force at the time when, &c.; and that the alleged damage was not sustained by any breach of duty of the defendant. Issue thereon.

The cause was tried before Byles, J., at the sittings in London after the last term. The facts which appeared in evidence were as follows:The carriage-road or way in question was a private road leading from the turnpike-road to the Hanwell Lunatic Asylum and to the residence of the superintendent, Dr. Saunders. The defendant, a builder, was employed to do certain work at the asylum, and, with the consent of the owners of the land, stacked certain slates and other materials upon a portion of the road, without taking the precaution of placing a light near them at night; in consequence of which, the plaintiff's servant, who was driving a horse and carriage along the private road to the residence of Dr. Saunders, not seeing the slates, drove against them, and seriously injured the horse.

In answer to questions put to them by the learned judge, the jury found that the defendant had the consent of the owners of the property for placing the slates and materials where he placed them, but upon the usual terms of properly providing for the safety of the public, or of such of the public as had permission to use the way; that there was *558] negligence in leaving the stack without a proper light; and that that negligence was chargeable upon the defendant, in conjunction with the owners of the soil.

It was insisted, on the part of the defendant, that the fourth plea was an answer to the action.

The learned judge directed a verdict to be entered for the plaintiff, reserving leave to the defendant to move to enter a verdict for him upon the fourth plea, if the court should be of opinion that the action would not lie under the circumstances.

Huddleston, Q. C., now moved to enter a verdict for the defendant pursuant to the leave reserved, or to arrest the judgment. The declaration discloses no cause of action; or, at all events, the fourth plea, with the finding of the jury thereon, affords a complete answer. [COCKBURN, C. J.-If the proprietors of the lunatic asylum hold out a road to such of the public as have occasion to go there, it hardly lies in their mouth to say that they could place or permit another to place thereon an obstruction calculated to render the way dangerous.] Stone v. Jackson, 16 C. B. 199 (E. C. L. R. vol. 81), comes very near this case. There, in an action for an injury to the wife of the plaintiff through the negligence of the defendant in leaving an open vault or cellar on his own premises unfenced, whereby she fell in and was injured, the evidence was, that many persons were in the habit of going across the spot where the vault was, for the purpose of making a short cut from a street to the main road, by avoiding an angle, but that the owner of the premises, as often as he saw them, turned them back and it was held that the defendant was not liable. [WILLIAMS, J.-The plaintiff was not a trespasser here, as the woman was in that case.] In Deane v. Clayton, 7 Taunt. 489 (E. C. L. R. vol. 2), 1 J. B. Moore *203 (E. C. L. R. vol. 4),-the dog-spear case, where the law was much considered, but without any definite result to the [*559 parties, (a)-Dallas, J., in the course of a very elaborate judgment, thus propounds the law: "If I place a log across a public path, and injury be thereby sustained, the soil being my own, but the public or individuals having a right of way over it, an action will lie, because there is a right in others to pass along without interruption; but, if there be no right of way, I may with any view, and for any purpose, place logs on my own land, and a party having no right to be there, and sustaining damage by his own trespass, cannot bring an action for the damage so sustained. So, in the case put, of a ditch, I may not dig it so as to interfere with any public or private right; but, within the limit of my own property adjoining a common, and not separated from it by any actual fence, I may dig a ditch, however wide; and man or beast sustaining harm, having no right to be there, no action will lie. Such was the case cited, of the horse straying from the common and falling into the pit,(b) and in which it was determined that no action would lie, first, because the owner had a right to do what he pleased with his own land, and next, that the plaintiff could show no right for the horse to be there; and yet that a horse might, in the night or day, stray from an open common into adjoining land, not separated by any fence, was, as a probable consequence, as much to be foreseen as that a hare might spring up, and a dog chase; or, if the horse had escaped from the owner, and he had sustained damage in the pursuit, would *that have given him a [*560 right to damages for the consequences of an escape, which he ought in strictness to have prevented? I may not keep a mischievous bull in a field through which there is a right of way; but, when there is no right of way, I am entitled so to do, as was stated by Lord Kenyon

(a) Except that the plaintiff retained his verdict, the court, on a motion for a new trial, being equally divided in opinion.

(b) Blithe v. Topham, 1 Roll. Abr. Action sur Case (N), translated, 1 Vin. Abr. 554, pl. 4; Cro. Jac. 158.

in one of the cases cited at the bar, (a) and this, by way of illustration, for the very purpose of showing the distinction in question. The only case cited on this part of the subject as bearing the other way, is that of Townsend v. Wathen, 9 East 277; but in facts and circumstances it has no resemblance to the present. The object in the former was, to attract, in order to destroy the dog; and in this, the immediate purpose was to keep the dog from a situation in which he might incur destruction. In Townsend v. Wathen, the enticement was made to operate beyond the line of the defendant's property, and to the destruction of the dog where the dog had a right to be; and this enticement constituted the foundation of the action. It is, in effect, but the common case of nuisance. But no decision has established that a trap placed by a man in his own land, and not calculated to operate so as to allure beyond, or even within the limit of such land, would be a trap unlawfully placed." Jordin v. Crump, 8 M. & W. 782,† supports the same view. [COCKBURN, C. J.These cases are a long way off the present. Suppose the owner of the premises himself places the obstruction upon a road which he holds out as the access to his house,-could he justify it?] That, it is submitted, is not this case. [COCKBURN, C. J.-I think it is. The place where these slates and rubbish were negligently stacked and left was the way commonly used by all persons having lawful occasion to go to the house.]

The fourth plea alleges that *permission was given to the defend

*561] ant to place the slates where they were deposited before the permission given to the plaintiff to use the way. Suppose this had been a new district, with a road in the course of formation, and a person lawfully proceeding along it fell into a hole on the side of it, would he have any remedy? [BYLES, J.-Yes, if there was a right of way there: Barnes v. Ward, 9 Č. B. 392 (E. C. L. R. vol. 67).(b)] In Deane v. Clayton, Gibbs, C. J., says: "Considering the case upon the general principles of law, I conceive, that, as far at least as civil rights are concerned, every man may guard his own land by any means he pleases, provided he does not thereby invade or interfere with the legal rights of others. I know it is a rule of law that I must occupy my own so as to do no harm to others; but it is their legal rights only that I am bound not to disturb." What legal right of the plaintiff did the proprietors of this asylum invade when they gave the defendant permission to place his slates upon the road in question? [WILLIAMS, J.-In that case, as in Jordin v. Crump, the only question was, to what extent a man may employ dangerous means for the purpose of protecting his own property: those cases have nothing whatever to do with the principle which must govern this case. COCKBURN, C. J.-We all entertain a very strong opinion against you upon this point. What have you to urge in arrest of judgment?] The declaration does not allege that the slates were improperly placed upon the land without the consent of the owners, nor does it state anything to show that they were placed there under circumstances which imposed upon the defendant any duty towards the plaintiff or any other person who might obtain permission to use the way in question. *[WILLIAMS, J.-The declaration shows that the plaintiff was lawfully using the way with the permission of the

*562]

(a) Brock v. Copeland, 1 Esp. N. P. C. 203.

(b) See Hardcastle v. The South Yorkshire Railway and River Dun Company, 4 Hurlst. & N. 67.t

owners, and that he sustained an injury from the defendant's negligence.] In Southcote v. Stanley, 1 Hurlst. & N. 247,† the declaration alleged that the defendant was possessed of an hotel into which he had invited the plaintiff to come as a visitor, and in which there was a glass door, which it was necessary for the plaintiff to open for the purpose of leaving the hotel, and which the plaintiff by the permission of the defendant and with his knowledge, and without any warning from him, lawfully opened for the purpose aforesaid, as a door which was in a proper condition to be opened; and that, by and through the mere carelessness, negligence, and default of the defendant, the door was then in an insecure and dangerous condition and unfit to be opened, and by reason of the said door being in such insecure and dangerous condition, and of the then carelessness, negligence, default, and improper conduct of the defendant in that behalf, a large piece of glass fell from the door and wounded the plaintiff and it was held that no cause of action was disclosed. [COCKBURN, C. J.-There, the declaration charged no act of commission: here it does.]

COCKBURN, C. J.-I am of opinion that there should be no rule in this case. This action is brought by the plaintiff on the ground that whereas there was a road leading from the main or turnpike road to the Hanwell Lunatic Asylum and to the residence of Dr. Saunders adjoining thereto, and the plaintiff, having lawful, occasion to be on the land, was on it by the leave and license of the owners thereof, the defendant negligently obstructed the way by placing thereon certain slates and other materials without giving notice or warning of the obstruction by light or other signal, and that, by *reason thereof, the plaintiff's

horse was driven against the obstruction, and injured. To this [*563 declaration the defendant, by his fourth plea,-not denying the leave and license stated in the declaration, says that the slates and materials were placed on the road by the license of the owners and occupiers of the land before the consent given to the plaintiff to use the said road, that the consent so given to the defendant was in full force at the time of the accident, and that the injury complained of was not the result of any breach of duty on his part: and it has been contended by Mr. Huddleston that the owners of the soil, and consequently also any person. having leave and license from them, may, as against any other person using the way by the like leave and license, erect an obstruction thereon without incurring any responsibility for injury resulting therefrom, unless in the case of a holding out any allurement or inducement to such other person to make use of the way. It seems to me that the very case from which the learned counsel seeks to distinguish this, is the case now before us. The proprietors of the soil held out an allurement whereby the plaintiff was induced to come upon the place in question: they held out this road to all persons having occasion to proceed to the asylum as the means of access thereto. Could they have justified the placing an obstruction across the way, whereby an injury was occasioned to one using the way by their invitation? Clearly they could not. Having, so to speak, dedicated the way to such of the general public as might have occasion to use it for that purpose, and having held it out as a safe and convenient mode of access to the establishment, without any reservation, it was not competent to them to place thereon any obstruction calculated to render the road unsafe, and likely to cause injury to those persons to