fect the validity of the contract. If it avoids the contract, no enforcement can be had. But this is so, not because the excess is offensive to the lex fori, nor indeed because it is against the policy of States to enforce illegal foreign contracts, for that which is illegal in one State may be unobjectionable in another, but because the contract never had a legal existence and there is nothing to enforce.

It is of the highest importance in this age of rapid and easy communications, and of extensive commercial transactions, that a liberal policy should be observed in respect to the enforcement of foreign contracts. In the midst of the intimate commercial relations of different countries, and the various and complicated systems of law which prevail, the enforcement of obligations would be hopeless, if each State attempted to apply the tests and penalties of its domestic regulations to foreign contracts. This is especially the case in the matter of interest, the rate of which depends on local circumstances. Social order may be insecure, capital may be scarce and speculation may be active. All these things tend to increase the rate of interest; and the refusal to recognize such conditions and enforce contracts based on them, would put a stop to all foreign trade.

JOHN B. MOORE.

STATUTE OF LIMITATIONS—MINES-SUBSID-
ENCE OF SURFACE-SECOND SUB-
SIDENCE.

HOUSE OF LORDS, FEB. 8, 1886.

DARLEY MAIN COLLIERY Co. v. MITCHELL.* When damage is caused to land by the removal of the minerals under it and the consequent subsidence of the surface, the owner has a cause of action whenever and as often as such damage takes place. The respondent was the owner of land, and in 1867 and 1868 the appellants worked out the coal under the land without leaving proper support, in consequence of which the surface subsided, and some cottages belonging to the respondent were injured. The appellants made compensation for the injury, and did not work the minerals after 1868. In 1882 a further subsidence occurred from the combined effect of the previous workings of the appellants and workings under the adjoining land. The respondent brought an action to recover compensation for the injury he had sustained. Held, that a new cause of action arose in respect of the second subsidence, and that the respondent's right to maintain an action for the injury he had sustained in consequence of it was not barred by the statute of limitations.

THIS

LORD HALSBURY. My Lords: In this case the plaintiff, the owner of land upon the surface, has sued the lessees of certain seams of coal below and adjacent to the plaintiff's land for having disturbed the plaintiff in the enjoyment of his property hy causing it to subside. The defendants before and up to the year 1868 have worked, that is to say, excavated, the seams of coal of which they were the lessees. Their excavation caused a subsidence of the ground, for which they acknowledged their liability and made satisfaction. There were other subsidences after this, and as the case originally came before your lordships, it was matter of inference only whether these subsidences were or were not in some way connected with, if not forming part of the original subsidence. The parties have now, by an admission at your lordships' bar, placed the matter beyond doubt. It has been agreed that the owner of the adjoining land worked out his coal subsequently to 1868. That if he had not done so there would have been no further subsidence, and if the defendants' coal had not been taken out, or if suffi cient support had been left, the working of the adjoining owner would have done no harm. Under these circumstances, the question is whether the satisfaction for the past subsidence must be taken to have been equivalent to a satisfaction for all succeeding subsidence. No one will think of disputing the proposition that for one cause of action you must recover all damages incident to it by law once and for ever. A house that has received a shock may not at once show all the damage done to it, but it is damaged not the less then to the extent that it is damaged, and the fact that the damage only manifests itself later on by stages does not alter the fact that the damage is there; and so of the more complex mechanism of the human frame, the damage is done in a railway accident, the whole machinery is injured, though it may escape the eye or even the consciousness of the sufferer at the time; the later stages of suffering are but the manifestation of the original damage done, and consequent upon the injury originally sustained. But the words "cause of action" are somewhat ambiguously used in reasoning upon this subject; what the plaintiff has a right to complain of in a court of law in this case is the damage to his land, and by the damage I mean the damage which had in fact occurred, and if this is all that a plaintiff can complain of, I do not see why he may not recover toties quoties fresh damage is inflicted. Since the decision of this house in Bonomi v. Backhouse, 9 H. of L. Cas. 503; 4 L. T. Rep. (N. S.) 754, it is clear that no action would lie for the excavation. It is not therefore a cause of action; that case established that it is the damage and not the excavation which is the cause of action. I cannot understand why every new subsidence, although proceeding from the same original act or omission of the defendants, is not a new cause of action for which damages may be recovered. I cannot concur in the view that there is a breach of duty in the original excavation.

In Rowbotham v. Wilson, 8 E. & B. 123, Cresswell, J., said the owner of the mines might have removed every atom of the minerals, without being liable to an action, if the soil above had not fallen, and what is true of the first subsidence seems to me to be necessarily true of every subsequent subsidence. The de

THIS was an appeal from a judgment of the Court of Appeal (Brett, M. R., Bowen and Fry, L. JJ.), reported in 52 L. T. Rep. (N. S.) 675, and 14 Q. B. Div. 125, reversing a judgment of Hawkins, J., upon further consideration, in an action tried before him and Leeds, in which the respondent was plaintiff and the appellants were defendants. The facts of the case appear from the head-note above, and from the reports in the court below. On the question of the statute of limitations, Hawkins, J., ordered judgment to be entered for the defendants on the authority of the judg-fendant has originally created a state of things which ment of the majority of the Queen's Bench Division, Lamb v. Walker, 3 Q. B. Div. 39; 38 L. T. Rep. (N. S.) 643, but the Court of Appeal overruled that decision, and the defendants appealed to the House of Lords. Attorney-General (Sir R. Webster, Q. C.), Forbes, Q. C., and G. Banks, appeared for appellants. Rigby, Q. C., and C. E. Ellis, for respondent. 54 L. T. Rep. (N. S.) 882.

renders him responsible if damage accrues; if by the hypothesis the cause of action is the damage resulting from the defendant's act, or an omission to alter the state of things he has created, why may not a fresh action be brought? A man keeps a ferocious dog which bites his neighbor; can it be contended that when the bitten man brings his action he must assess damages for all possibility of any future bites? A man stores water artificially, as in Rylands v. Fletcher, 19

ants had been called upon to do and had paid for repairs rendered necessary, it is clear that the original working was such as to give rise to a cause of action as early as 1871, and that the plaintiff had then known it. Lamb v. Walker, 38 L. T. Rep. (N. S.) 643; 3 Q. B. Div. 389, was then cited. With a view to enable the plaintiff's counsel to fully consider that authority, it was arranged that the jury should be discharged, and that the case should be reversed for further consideration, it being expressly admitted by the plaintiff that damage was done by subsidence in 1868. On further consideration the plaintiff's counsel is stated by Hawkins, J., to have admitted that judgment must be entered for the defendant, unless Lamb v. Walker, which he intended to question in a Court of Appeal, was overruled. I think it convenient here to see what was the decision in Lamb v. Walker, so as to see whether, while it stands unreversed, it was decisive of the case before Hawkins, J. Manisty, J., quotes so much of the plaintiff's statement of claim as was material in that ease. There was a first claim, on which the referee gave a farthing, which I do not notice. I think the fifth and sixth paragraphs are in effect the same as the amended statement of claim in the action now at bar. But the only plea in Lamb v. Walker was payment into court of 1501., and the issue joined was whether that was enough. That was referred, and it was on the award that the question was raised. The two material findings on the award are stated: "2. I estimate the damage actually sustained by the plaintiff at the date of the commencement of the action ** * at 100l. 3. I estimate the future damage which will be sustained by the plaintiff * * at 150l." He therefore directed judgment to be entered for 400%.. deducting the 150l. paid into court from those two sums, amounting together to 550l. The question was raised on a rule to reduce the damages, and was, "whether the plaintiff was in point of law entitled to recover the sum of 150l., which the referee finds will be sustained by the plaintiff by reason of the defendants' acts." The decision in Lamb v. Walker was that he was so entitled. And I think it was rightly thought that if damages subsequent to a writ issued in 1871 could be recovered in an action on that writ, they were included in the cause of action then existing, and consequently that decision, which was binding on Hawkins, J., was at that stage of the proceedings conclusive against the plaintiff.

L. T. Rep. (N. S.) 220; L. R., 3 H. of L. 330; the water | injured the plaintiff's premises, and that the defendescapes and sweeps away the plaintiff's house; he rebuilds it, and the artificial reservoir continues to leak and sweeps it away again. Cannot the plaintiff recover for the second house, or must he have assessed in his first damages the possibility of future invasion of water flowing from the same reservoir? With respect to the authorities, the case of Nicklin and Williams, 10 Ex. 259, was urged by the attorney-general as an authority upon the question now before your lordships, by reason of some words attributed to Lord Westbury in Bonomi v. Backhouse. If Lord Westbury really did use the words attributed to him, it is, I think, open to doubt in what sense they are to be understood. Parke, B., in that case, delivered the judgment against the plaintiffs recovering any subsequently accruing damage, because he said, the cause of action was the original injury to the right by withdrawing support. That principlefis admittedly wrong, and was expressly held to be wrong in Bonomi v. Backhouse, since if that had been law, there could have been no answer to the plea of the statute of limitations in that case. It is difficult to follow Brett, M. R., when he says it was not necessary to overrule Nicklin v. Williams by that decision. It seems to me to have been the whole point decided in Nicklin v. Williams, and how that case so decided can be an authority for any thing I am at a loss to understand. I think the decision of this case must depend as matter of logic upon the decision of your lordships' house in Bonomi v. Backhouse, and I do not know that it is a very legitimate inquiry, when a principle has been laid down by a tribunal from which there is no appeal, and which is bound by its own decisions, whether that principle is upon the whole advantageous or convenient; but if such considerations were permissible, I think Cockburn, C. J., in his judgment in Lamb v. Walker, 38 L. T. Rep. (N. S.) 643; 3 Q. B. Div. 389, establishes the balance of convenience to be on the side of the law as established by Bonomi v. Backhouse. I cannot logically distinguish between a first and second or a third or more subsidences, and after Bonomi v. Backhouse it is impossible to say that it was wrong in any sense for the defendant to remove the coal; Cresswell, J., has said, I think rightly, he might remove every atom of the mineral. The wrong consists, and as it appears to me, wholly consists, in causing another man damage, and I think he may recover for that damage as and when it occurs. For these reasons I think that the judgment appealed from should be affirmed, with costs.

LORD BLACKBURN. My Lords: This is an appeal against an order of the Court of Appeal, by which it was ordered that the judgment of Hawkins, J., delivered on further consideration, on the 18th of December, 1883, should be reversed, and judgment entered for the plaintiff for damages to be assessed by an arbitrator to be agreed upon, with costs. Before this house can say whether this order is right or not, it is necessary to know what was the case on which Hawkins, J., directed judgment, which this order reverses, to be entered for the defendant. The writ was issued on the 27 of December, 1882. There was an alternative defense that the causes of action did not, nor did any of them.first accrue to the plaintiff at any time within six years before the commencement of the action; and therefore it lay on the plaintiff to give evidence of some cause of action subsequent to the 27th of December, 1876. I think it sufficiently appears in Hawkins, J.'s judgment that the defendants had worked out the seams of coal of which they were lessees as long ago as 1868, and that they had done nothing from that time. And as the defendants seem to have proved and relied on the fact that very considerable subsidences had occurred between 1868 and 1871 which

*

In Lamb v. Walker, Cockburn, C. J., differed from the majority of the court. He said: "Taking the view I do of the leading case of Backhouse v. Bonomi, I am unable to concur in holding, that in addition to the amount to which he may be entitled for actual damage sustained through the excavation of the adjacent soil by the defendant, the plaintiff is entitled to recover in respect of prospective damage, that is to say, anticipated damage expected to occur, but which has not actually occurred, and which may never arise." He enters into elaborate reasoning to support this opinion, which I shall examine presently. Ithink if that opinion had prevailed in Lamb v. Walker, and a judgment had been given accordingly, that decision would have been, not only not an authority against the plaintiff in this case, but an authority in his favor as far as the defense of the statute of limitations is concerned. There must have been some understanding between the counsel for the plaintiff and for the defendants in this case as to what was to be done in case the final decision on this very important question was in conformity with the opinion of Cockburn, C. J. And I think, though I wish it had been expressly stated, it must now be taken that the defendants' counsel agreed that he would not, on the evidence then before the court, ask for a verdict on any of the other

cide nothing on a question which does not here arise, viz., whether if the same person has two separate tenements, say A. on the north of the seam worked by the defendant and B. on the south of it, and damage bas actually occurred to A., and he sues for the damage done to it, he is bound to join in the action any claim which he has or hereafter may have as to B. Whilst the recent decision of Brunsden v. Humphrey in the Court of Appeal, 51 L. T. Rep. (N. S.) 559; 14 Q. B. Div. 141, stands unreversed, and I do not mean to cast any doubt on it, it would seem that he is not. It is desirable to see what the case of Bonomi v. Backhouse (E. B. & E. 622) really was. The writ was issued on the 20th of May, 1856. The declaration alleged that the plaintiffs, as reversioners of certain buildings in the occupation of Parkin, were entitled to have the said messuages and buildings supported by the mines aud soil “contiguous and near to and under the said messuages and buildings," and then in the usual way alleged working by the defendant, disturbing the sup port, by which the walls of the said messuages were cracked and injured, and the ground on which the said messuages and buildings stood subsided. The pleas were: 1, Not guilty; 2, denial of Parkin's occupancy as tenant as alleged; 3, denial of the reversion being in the plaintiffs as alleged; 4, that the plaintiffs were not entitled to have the said messuages and build

defenses, but would in that case consent to have the damages settled by arbitration. Cockburn, C. J., could not, in Lamb v. Walker, have meant to go so far as to say that if a house had been shaken, and was evidently going to fall, but had not yet completely fallen when the writ issued, the plaintiff could only recover for what had already occurred, and would have to bring a fresh action when a further chimney fell. He has not quite sufficiently guarded himself from saying so. But as the facts here were different, it was somewhat late in the day but with the assent of this house, agreed to add this further admission: "That if the owner of the adjoining land (one Cooper) had not worked his coal, there would have been no further subsidence; but the appellants (defendants) admit that if the coal under the respondent's (plaintiffs) land had not been taken out, or if the appellants (defendants) had left sufficient support under respondents' (plain- | tiffs) land, then the working of the adjoining owner would have done no harm." I do not understand this to be an admission that the subsidence was occasioned by the removal by the defendants of other coal than that the removal of which occasioned the subsidence in 1871. Such an admission would have raised a different question, and one the solution of which might have required a further investigation as to the facts. I will now proceed to consider the case exactly as if it was an appeal from Lamb v. Walker. I must first ob-ings or either of them supported, to- wit, by the mines, serve that Manisty, J., in that case, says: "It is a wellsettled rule of law that damages resulting from one and the same cause of action must be assessed and recovered once for all." And it is not disputed by Cockburn, C. J., that the rule is established that "damages resulting from one and the same cause of action must be assessed and recovered once and for all." He joins issue with Manisty, J., on the application of this rule to cases arising from subsidence occasioned by mining so as to remove support. And I think that this rule is established as the general rule of law. I do not think it is one of those rules of law which depend upon natural justice. I think it is an artificial rule of positive law introduced on the balance of convenience and inconvenience. I think that if it were res integra a great deal might be said against the expediency of the rule. I know no place where the objections to the expediency of the rule are more clearly and forcibly stated than by Cockburn, C. J., in that case. But I think it was not disputed in the argument that at all events, when the act complained of is one which would entitle the plaintiff to maintain an action, and recover, as a matter of law, at least nominal damages, without any proof of damage in fact, the rule is firmly established, and I think all three judges in the court below agree that the question is what was the cause of action in this case. They adopt the reasoning of Cockburn, C. J., in Lamb v. Walker, that it logically follows, from Bonomi v. Backhouse, that there are independent and distinct causes of action, on each fresh distinct cause of damage, though arising from the same act of disturbing the soil. Fry, L. J., puts this very clearly. He does not think that it is concluded by authority, and says: "I think we are bound to determine this question on principle. Now, with reference to principle, it appears to me to be plain that all damages which result from one and the same cause of action must be recovered at one and the same time, and therefore we are driven to the inquiry what is the cause of action in a case of this description." In this I completely agree, but I have not been able to agree with the reasoning by which it is sought to be made out that it logically follows, from the decision in Backhouse v. Bonomi in this house, that there are fresh causes of action at each fresh subsidence, arising from the old disturbance of the strata, occasioning fresh damage to the same property. I de

earth, and soil underground contiguous; 5, that the said alleged causes of action did not accrue within six years before this suit. The verdict was entered for the plaintiffs, subject to a special case. One very important question raised in and decided by that case was as to the rights of buildings to support, as distinguished from the rights of the natural soil to the support; with that we are not now concerned. The arbitrator in detail stated very clearly, and I have no doubt very accurately, the way in which the cleety coal in the Auckland coal-field was worked. I doubt if this account would be found to be applicable in most coal-fields. I think I may say that it would not in some. I do not know what is the nature of the strata in the Yorkshire coal-field where the present coal lies. But it appeared quite clear on his statement of the case, that though it was apparent in 1850, more than six years before the action, that unless steps were taken to stop the progress of the thrust theu in operation the plaintiffs' houses would be injured by the thrust, yet no actual injury was sustained till 1854, less than six years before the action; he also found that the thrust would continue and would produce damage in future. There was also a finding that it was possible to stop the thrust, "but the expense of so doing would have been very great, and would on the whole have amounted to a much larger sum than the value of the property injured." He then proceeded to find in detail the facts on which it was to depend how the issues should be entered, and then proceeded as follows: "If the verdict is to be entered for the plaintiffs upon the issues joined on the first, fourth, and fifth pleas, another question for the court is (4), whether the defendant is responsible for all the damage which has been sustained by the plaintiffs by reason of the injuries to their said messuages and buildings above described, or for any or what part of that damage, and whether he is responsible in any and what respect for the probable future damage which may be occasioned in manner above described, or for the damage occasioned by the diminution in value of the said messuages and buildings by reason of their insecure state and condition, or the injuries which will probably be hereafter occasioned by the further progress of the thrust as above mentioned." Had this question, and more especially the part of it I have marked in italics, been answered, it would have decided the ques

With these

torney-general denied this, and was driven to do so. But suppose A. owned the adjoining property on one side, and B. that which was at right angles to it, there must then be two causes of action. Now apply this reasoning to the present case. There are by the admission of the parties two separate and distinct damages caused to the plaintiff by the acts, including in that word omissions, of the defendants. One a removal of coal and non-providing of supports, which caused a subsidence in 1868. A cause of action accrued then. Another cause of action is the removal of coal, including perhaps the coal which caused the first subsidence, but doubtless also a removal of coal extending to a greater distance, and not immediately under the plaintiff's land, and the non-providing against the consequences, which when the adjoining owner to the defendants removed his coal, as he lawfully might (though I think that immaterial), caused a creep in the defendants' land, which in time caused the further subsidence. I think this gives a second cause of action. I think therefore that the judgment was right. It seems to me not to matter that the subsidence was of the same spot, nor that the immediate cause of the second subsidence was the non-existence of coal underneath that spot. Two damages have been occasioned to the plaintiff, one directly and im

exception is generally omitted. Moreover such propositions are often and justly called obiter. fears before my eyes I shall nevertheless venture on some abstract propositions. It is a rule that when a thing directly wrongful in itself is done to a man, in itself a cause of action, he must, if he sues in respect of it, do so once and for all. As if he is beaten or wounded, if he sues he must sue for all his damage, past, present, and future, certain and contingent. He cannot maintain an action for a broken arm, and subsequently for a broken rib, though he did not know of it when he commenced his first action. But if he sustained two injuries from a blow, one to his person, another to his property, as for instance, damage to a watch, there is no doubt that he could maintain two actions in respect of the one blow. I may apply the test I mentioned in the argument. If he became bankrupt, the right in respect of the watch would vest in his trustee; that for damage to his person would remain in him. I have put the case of a trespass. The same would be true of an action for consequentia damages. A man slandered or libelled by words ac. tionable in themselves must sue, if at all, for all his damage in one action. Probably if he sustained special damage, as that he lost a contract through being charged with theft, he might maintain one action for the actionable slander, another for the personal loss-mediately by the removal of the coal under his surcertainly if the case of Littleboy v. Wright, 1 Sid. 95; 1 Lev. 69, is right. But it is not necessary to decide this. I now come to the case of where the wrong is not actionable in itself, is only an injuria, but causes a damnum. Such a thing may be. A bargain between A. and B. that B. should call C. a swindler would be unlawful, though neither actionable nor indictable, except perhaps as a conspiracy. But it would not be enforceable, though the bargain was made out of the jurisdiction, and so not indictable. In such a case it would seem that as the action was only maintainable in respect of the damage, or not maintainable till the damage, an action should lie every time a damage accrued from the wrongful act. For example, A. says to B. that C. is a swindler, B. refuses to enter into a contract with C., C. has a cause of action against A.; D., who was present and heard it, also refuses to make such a contract: surely another action would lie. And so one would think if B. subsequently refuses another contract. Of course one can see that frauds might be practiced. So they may in any state of law. But I cannot see why the second action would not be maintainable if the second loss was traced to the speaking. And perhaps one might apply the same test. Would not the first right of action pass to the trustees of C. if he became bankrupt? If the second loss was after the bankrupt's discharge, it would not. There is still another class of cases to be considered, viz., those where the act causing damage is not in itself wrongful. No easier case can be taken than the aboveground case of an excavation, whereby an adjoining owner's soil is let down. It cannot be said that the act of excavation is unlawful. A contract to do it could be enforced. No injunction against it could be obtained unless injury was imminent and certain. What would be the rights of the person damaged in such a case? I think the former reasoning would apply. If there was an excavation 100 yards long, and fifty feet of the neighboring soil fell in, the right of action would be in respect of those fifty feet, and not only in respect of what had fallen in, but what would in future fall in along the fifty feet. But if afterward the other fifty feet fell in, there would be a fresh cause of action. Surely this must be so. If ten feet at one end fell in, and afterward ten feet at the other, it would be impossible to say that there would not be two causes of action. If the excavation was on two sides of a square, the same consequences. The at

face; the other by that and removal of other coal, and consequent creeping and further subsidence. The attorney-general, as I have said, denied that there could be two causes of action if two different parts of the plaintiff's land subsided at two different times. But surely there must be. Suppose the two pieces belonged to different owners, as I have suggested. Of course one can see the danger and inconvenience that will follow. This damage accrues many years after the defendants' act which has caused it. If my reasoning is right, many years hence there might be a further action from some further subsidence. But the inconvenience is as great the other way. For if the defendants are right, it follows that on the least subsidence happening a cause of action accrues once and for all, the statute of limitations begins to run, and the person injured must bring his action, and claim and recover for all damage actual, possible, or contingent for all time. As to the authorities, Bonomi v. Backhouse seems clearly in the plaintiff's favor. Indeed I have thought of limiting my judgment to the following remark on it. It decided that the excavation of the coal was not wrongful, and that the cause of action accrued when the damage arose. The damage now complained of arose at the last subsidence. That subsidence was no part of or continuance of the former subsidence, therefore no cause of action in respect of it arose till it happened.

LORD FITZGERALD. My Lords: The real, though not the formal, question for your lordships' determination is whether Lamb v. Walker, ubi supra, was correctly decided. Lord Blackburn rightly deals with this appeal in the same light as if it was an appeal from Lamb v. Walker. I do not propose to follow him in his instructive examination of that case and Backhouse v. Bonomi, ubi supra, and his criticisms on those cases, but I think that we may deduce from the authorities some propositions as now settled in law, and applicable to the circumstances of the appeal now before your lordships' house, and to similar cases. proceed to state those propositions, though in doing so I am conscious of the danger pointed out by Lord Bramwell. (1) That the owner of the surface has a natural and legal right to the undisturbed enjoyment of that surface in the absence of any binding agreement to the contray. (2) That the owner of the subjacent minerals may excavate and remove them to the utmost extent, but should exercise that right so as

I