among those present as to what price certain of the property should be put up for sale, and Mr. Hughes's views were solicited: He said he would abide by what one Mr. Dyke thought right, that gentleman having heard the views of those advocating the different prices, thought the property should be put up at 20007., and to this Mr. Hughes assented. It was accordingly put up at 2000l., with a declaration that if any one advanced upon that sum it would be knocked down to him. After a considerable time, no one bidding,. Hughes advanced 102., and was declared the purchaser. Lord ELDON said: "***I do not impute fraud to Hughes. ***The first question is very considerable: whether Hughes could be permitted to bid. It is not necessary to give an opinion upon that, but I will go the length of saying it is extremely difficult in equity to sustain the title of a person dealing under the circumstances in which he then stood. If Hughes could bid, or the solicitor tendering the estate to sale, or agents for the sale however constituted, and if the danger of that species of transaction is compared with the danger of a purchase by a trustee, the court would overlook a danger far more considerable than that at which it looks with so much anxiety." See also Torrey v. Bank of New Orleans, 9 Paige 649; Greenlaw v. King, 5 Jur. 18, where Lord COTTENHAM approves Ex parte Hughes.

The principle deducible from all the cases is that where a man is employed in anywise on another's behalf or occupies any fiduciary relation towards such other, no matter how such employment or relation may have arisen or been created, he cannot take to himself any benefit growing out of the subject-matter of the employment or relation, whatever may be the manner of the taking. An employee. agent or fiduciary cannot make himself an adverse party to his principal. This is a consequence of the confidential relation subsisting between the parties, and not of the fact that one of them is technically named an agent, or guardian, or attorney or other wellknown designation of trust. The criterion is the relation not the name. Nor is there room for any moral hair-splitting or sophistical reasoning in applying the rule to all fiduciaries whatsoever. The principle is not to be trifled away. It is a just rule, sanctioned by the promptings of every honest man's heart and conscience. It should be firmly upheld and applied, whether a precedent be found for applying it to the case in hand or not. It is enough if such a case be within the principle and the reason thereof. It cannot be

said that a court of equity can go nowhere except it has some specific case, like a plank to walk forth upon. As Judge TULEY remarked in the Hamlin-Davis case: "The law recognises the fact that the business of the world cannot be carried on without confidential relations existing, and also that man is 'unco' weak and little to be trusted, and therefore declares the person occupying the fiduciary relation incapacitated, as against his employer to obtain any interest or advantage by a breach of the trust relation, or in the language of one of the judges, The wise policy of the law has therefore put the sting of disability into the temptation as a defensive weapon against the strength of the danger which lies in the situation.'" (Per TULEY, C. J., decision in Hamlin v. Davis, not reported. ADELBERT Hamilton. Chicago.

RECENT ENGLISH DECISIONS.

Court of Appeal.

MITCHELL v. DARLEY MAIN COLLIERY CO.

The plaintiff was the owner of certain land, and in 1867 and 1868, but not afterwards, the defendants worked a seam of coal lying under and near to the plaintiff's land, which subsided in consequence of the defendant's excavation. Some cottages of the plaintiff standing on his land were damaged by the subsidence and were repaired by the defendants. In 1882 a second subsidence of the plaintiff's land occurred owing to the defendant's workings in 1867 and 1868, and the plaintiff's cottages were again damaged. Held, that the plaintiff was entitled to maintain an action for the damage done to his cottages in 1882, and that his right to sue was not barred by the Statute of Limitations.

Nicklin v. Williams, 10 Ex. 259; Backhouse v. Bonomi, E., B. & E. 622; 9 H. L. Cas. 503; Whitehouse v. Fellowes, 10 C. B. (N. S.) 765, discussed; Lamb v. Walker, 3 Q. B. Div. 289, overruled.

ACTION for damages for injuries done to three cottages and six perches of land belonging to the plaintiff.

The writ of summons was issued on the 27th of December 1882, and the action itself came on for trial before HAWKINS, J., at the Summer Assizes held at Leeds in August 1883, and the following facts were admitted or proved:

On or about the 11th of December 1866, the plaintiff, by virtue of a deed of conveyance bearing date on that day, became the tenant in fee simple of six perches of land situate at Ward Green, in

Worsbrough, in the parish of Darfield, Yorkshire. Prior to the year 1878, six cottages had been erected thereon, and in or about that year, these six cottages were pulled down, and three cottages were erected on the site of them. The defendants were the lessees of a seam of coal about nine feet in thickness under the land upon which the plaintiff's cottages stood, and under certain adjoining land; they had worked the seam during the years 1867 and 1868, but not afterwards. A subsidence owing to the defendants' workings took place in 1868 and continued until 1871, and the plaintiff's six cottages which then stood upon his land were damaged by that subsidence, and were afterwards repaired by the defendants. In 1882 a further subsidence, caused either wholly or in part by the defendant's excavations during 1867 and 1868, occurred, and thereby damage was done to the plaintiff's land, and to the three cottages then standing thereon. The present action was brought to recover compensation for the damage done by the subsidence happening in 1882, and the defendants, amongst other defences, pleaded that the alleged causes of action did not arise within six years before the commencement of the action, and that the plaintiff's right to sue was barred by the Statute of Limitations.

The jury summoned to try the issues of fact having been discharged by consent, the action was reserved for further consideration, and ultimately HAWKINS, J., directed judgment to be entered for the defendants. The learned judge was of opinion that Lamb v. Walker, 3 Q. B. Div. 389, was an authority in point for the present action, and felt himself bound by the decision of the majority of the Queen's Bench Division in that case.

The plaintiff appealed.

Alfred Wills, Q. B. (C. E. Ellis, with him), for plaintiff.

John Forbes, Q. C. (Pain, with him), for defendants.

BRETT, M. R.-In this case the plaintiff has brought an action against the defendants for an injury to his property arising, as he alleges, from something done by the defendants on their own property. The plaintiff was the owner of property on the surface, and the defendants were, and are, the owners of the mines immediately under or close to the plaintiff's property. In 1868 the defendants worked out the whole of one seam of coal, said to have been a seam of about nine feet in thickness. It would seem that soon VOL. XXXIII.-55

after that excavation of theirs, and by reason of it, the surface was interfered with and sank, and in consequence of that sinking some property of the plaintiff's was damaged. The plaintiff made a claim in respect of that damage to his property, and it was repaired by the defendants. That seems to me to be precisely the same as if the plaintiff had brought an action against the defendants and had recovered damages; the money would have been wanted in order to enable him to execute the repairs. It is not alleged by the plaintiff that any further damage was done to any property of his by the actual subsidence which then took place, that is, soon after 1868. If the ground had not moved any more, there would have been no further injury to his houses. The houses had been repaired and there was an end of that. It seems clear to me that, perhaps in consequence of something that was done by somebody else, and certainly not in consequence of the defendants having done anything in the meantime, but having left this excavation as it was, a subsidence took place: not the same subsidence which had done the former injury, but a new subsidence; and the plaintiff alleges and I think it must be taken to be so-that this new subsidence has done him some appreciable injury. Accordingly he brings this action in respect of an appreciable injury caused by that new subsidence. The objection taken to him is, that he has brought this action too late. The argument is that as he has brought this action more than six years after that first subsidence which gave him a cause of action, therefore he cannot maintain it, because in an action brought at the time of the former subsidence he might have recovered damages prospectively for what has since happened to him. That is the answer of the defendants. The reply on the part of the plaintiff is this: the fact of the defendants excavating their minerals gave him no cause of action; it did him no injury by itself; they had a right to do it; the mines were their own property, and they had a perfect right to do what they liked with their own, so long as they did not hurt him. When they excavated the minerals which were their own property, if they had then and there taken means to prevent the sinking of the plaintiff's property, he would have had no cause of action against them; what they did in excavating was perfectly lawful, if they had taken care that in so using their property, they did not hurt him: but in 1868, or immediately afterwards, they did something which did give him a cause of action, that is, they caused his land to subside, and that subsi

dence caused by them was his cause of action; they caused that subsidence by mining, and by not propping so as to prevent the plaintiff's land subsiding afterwards. That cause of action was settled between them when they repaired his houses; but now they have done him a new and wholly independent injury; they have caused his land to subside again. It is true that in this case it is at the same spot as before, but it might have been a hundred yards off: it is a new subsidence. They have caused that subsidence by the excavation of the minerals in 1868, and by not having filled up that excavation before 1882. It is no answer to the plaintiff in respect of this new subsidence, which is the new injury to him, to tell him that the causa causans of that was the same as the causa causans of the old subsidence. That causa causans gave to the plaintiff no right of action at all in either case; but the two different results from it have given the plaintiff two causes of action, and although it is true to say that for the same cause of action, successive actions for damages cannot be maintained, yet there may be any number of successive causes of action. That is the whole dispute between the parties. Therefore we must consider what is the real cause of action.

In Backhouse v. Bonomi, 9 H. L. Cas. 503, it was argued that the cause of action was the excavation, and that the subsidence was merely a damage resulting from the excavation. Upon that argument it was urged on behalf of the defendant that the action was brought too late, because it was brought more than six years after the excavation, although it was commenced within six years after the subsidence. The application of Backhouse v. Bonomi, 9 H. L. Cas. 503, depends upon a view of the facts, which was raised by a question proposed to the learned judges. That question had nothing to do with successive subsidences, the consequence of one excavation. The question put to the judges was, in effect, that if there is only one subsidence, the result of one excavation, is the Statute of Limitations to run from the time of the excavation or from the time of the subsidence, the words of the Statute of Limitations being that an action must be brought within six years after the cause of action accrued? That raises the question, what, in such a case, is the cause of action? If the excavation was the cause of action, it having been rendered wrongful by the subsequent subsidence, even in that view the wrongful act was the excavation. But the House of Lords held that the excavation was not originally a wrongful act, and because it is not originally a wrongful act, it is not made