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books of authority is that it is a way leading from one market town or inhabited place to another inhabited place, which is common to all the Queen's subjects." passage which is open to all the King's subjects," says Smith's Leading Cases.* And in "Pratt on Highways," it is laid down that a highway comprises all portions of land over which every subject of the Crown may lawfully pass. This summary by the leading text-books on the subject of highways is no doubt wide, but in this, as in all the definitions, there exists one common factor, namely, that the way or place, whatever it may be, is open to all the King's subjects, and not merely to a limited or privileged few.

It is an essential element of a highway that it should be open to all members of the public. It, therefore, excludes a way over which a right of passage is given by license or in exercise of a right of ownership or occupation of adjoining land whereby an easement over such way is granted or possessed. Roads commonly called "occupation" roads laid out for the accommodation of the occupiers of adjoining properties do not come within the definitions. Nor, again, do village greens, parks, or fields, over which the inhabitants of a particular district have by custom or other wise obtained a right of recreation.

Though a way to be a highway must be open to all and sundry it need not be a thoroughfare. "If it were otherwise, in such a great town as this (London) it would be a trap to make people trespassers." So said Lord Kenyon, C. J., in Rugby Charity Trustees v. Merryweather." v. Merryweather." The subject, however, has not rested there,

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Bateman v. Bluck, however, the question has been at rest. In that case the plaintiff brought an action for trespass for entering the plaintiff's close and pulling down a wall therein. The plea was stated that the close was a public pavement within the Metropolitan Paving Act; that the plaintiff unlawfully and contrary to the Act erected therein the said wall, and because the wall encumbered the pavement and plaintiff refused on defendant's request to remove the same, defendant entered and pulled it down. It was held, on motion for judgment, non obstante veredicto, that the plea was bad for showing that it was absolutely necessary for defendant, in order to exercise the alleged right of passage, to remove the wall. And it was further held that a public highway may in law exist over a place which is not a thoroughfare. Lord Campbell, C. J., thus delivered judg

ment:

"On the issue raised by the fourth plea, I think the defendant is entitled to a verdict. That plea alleges that there was a public highway through the locus in quo, and that it was impossible for the defendant to pass along the highway without removing the wall. The jury found that this was such public highway; and we are bound to assume that finding to be good, unless, as is contended, there cannot in law be a highway through a place which is no thoroughfare. It seems to me that such a doctrine is incorrect. There may or may not be a highway under these circumstances. Take the case of a large square with only one entrance, the owner of which has for many years permitted all persons to go into and round it; it would be strange if he could afterwards treat all persons entering it, except the inhabitants, as trespassers. In the Trustees of the Rugby Charity v. Merryweather, Lord Kenyon laid down that there might be a highway through a place which was not a thoroughfare, and seems to have left it to the jury whether there was such highway or not. In Woodyer v. Haddon (1813), 5 Taun 126, the Court did not decide that there could not be a highway under such circumstances,

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but only that in that particular case there was none; and I do not find anything decided there which is necessarily inconsistent with what was laid down by Lord Kenyon."

There are three kinds of ways which can be highways and which have been classified by Lord Coke. "There be three kynds of wayes whereof you shall reade in our ancient bookes-first a footway which is called iter quod est jus eundi vel ambulandi hominis; and this is the first way. The second is a footway and horseway, which is called actus ab agendo; and this vulgarly is called pack and prime way, because it is both a footway, which was the first or prime way and a pack or drift way also. The third is via aditus, which contains the other two and also a cartway, etc., for this is jus cundi, vehendi, et vehiculum et jementum ducendi; and this is twofold, viz., Regia via, the King's highway for all men, et communis strate, belonging to a city or town or between neighbour and neighbours."

To designate a footpath as a highway certainly would appear rather grandiloquent, but on principle guided by the considerations and definitions quoted above, there is no reason why it should not be so called. The question, however, has been debated more than once. In 1836, in the case of Davies v. Stephens, 10 it was decided that if in an action for trespass the defendant pleads a footway his plea is supported by proof of a carriageway, as a carriageway always includes a footway. A gate being kept across a way is not conclusive that it is not a public way, as the way may have been granted to the public. with a reservation of the right of keeping a gate across it to prevent cattle straying. The case before Mr. Justice Darling, referred to at the commencement of this article," was an appeal from a decision of the Justices, who had convicted Dennis and

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Sons under section 72 of the Highway Act, 1835, of unlawfully destroying the surface of certain highways, the highway being public footpaths in two fields belonging to Dennis and Sons, and they had been destroyed by being ploughed up. Dennis and Sons sought to justify their action on two grounds, (1) that the footpath was not a highway; and (2) that they had acted under a notice from the war agricultural executive committee of Holland County Council, which required them to plough and convert into arable the grass land in question so as to provide a good crop for the harvest of 1918. The conviction was upheld. But Mr. J. Darling had some doubt whether a footpath could be a highway. In his judgment he says: "An ordinary person would not call a footpath a highway, and I was at first inclined to think that the appellants had committed no offense, but the decision in Mercer v. Woodgate,12 went upon the assumption that a footpath was a highway, and therefore the Justices were right in holding that the appellant had infringed the statute.”

The case referred to by Mr. J. Darling decided that there may in law be a dedication to the public of a right-of-way such as a footpath across a field subject to the right of the owner of the soil to plough it up in due course of husbandry and delete all trace of it for the time. This case, apart from assuming a pathway may be a highway, also deals with the point raised and decided in Davis v. Stephens referred to above, that a way can be dedicated to the public with a reservation as to the enjoyment thereof. In the year 1869 there was another case very similar to Mercer v. Woodgate, namely, Brackenborough v. Thorseby (1869), 33 J. P. 565. In this case, during the course of the argument, Mellor, J., says: "Surely a footway may be a highway and why should a footway not be protected as well as a carriageway?" DONALD MACKAY,

Glasgow, Scotland.

(12) 1869, L. R. 5 Q. B. 26.

SUFFICIENCY OF SERVICE OF NOTICE TO VACATE BY LANDLORD.

Introductory.-At common law and by weight of authority in most states, under statutes relating to the subject, a notice by a landlord to a tenant terminating the tenancy need not of necessity be served. personally on the tenant. Of course, if the statute prescribes the manner of service, its provisions must be complied with. As a general rule, any mode of serving a notice to quit is sufficient, where it can be traced to the hands of the party for whom it was intended in due time. Whenever service upon the party in person is practicable, it should be the mode adopted; but in the absence of the tenant, the notice may and should be served in the manner best calculated to reach him.1

It has been stated in a Missouri case: "Service by copy may be liberally viewed for certain purposes. But it is not so viewed in all cases. One may be presumed to remember that he has indorsed a note, and to expect notice about a certain time. But in proceedings to terminate a tenancy by notice, whilst to require personal service might put it in the power of the adverse party to make it impossible to terminate a tenancy in the absence of some statutory provision, the rule as to service. by copy should be applied with some strictness, and it should appear that there has been reasonable diligence, and that the mode adopted is reasonably likely to give actual notice where there is no appearance of attempt on the part of the one to be served to evade notice." "2

If the tenant is personally served, service may be made on or off the premises.

(1) Alworth v. Gordon, 81 Minn. 445, 84 N. W. 454.

(2) DeGiverville v. Stolle, 9 Mo. App. 185. (3) Epstein v. Greer, 78 Ind. 348; Minard v. Burtis, 83 Wis. 267.

Notice properly served on a tenant is binding on a sub-tenant coming in after the service of the notice.⭑

By Mail-In England it has been held that sending the notice to the tenant by registered mail is sufficient service."

Service of notice by mail, so as to cast upon the tenant the risk of receiving it, is not authorized. However, it is held in Minnesota, that if such mode of service is adopted, and the notice is actually received by the tenant within the required time, it is sufficient."

Reading Notice to Tenant.-When the notice is required to be in writing it must be delivered; a mere reading of it to the tenant being insufficient."

If the tenant receives the notice after it has been read to him, the service is sufficient. This is true although the notice is addressed to him and another.8

Delivery to Person Other Than Tenant. -Leaving the notice at the lessee's house, off the demised premises, and calling the attention of a person, not an agent of the lessee nor a member of his family, to it, was held insufficient, unless it were shown that the lessee actually received the notice."

Delivery to Wife of Tenant.-By the weight of authority, it is a sufficient service of notice to quit to leave it at the tenant's home on the premises with his wife, in the absence of the tenant from home; it not being necessary that it should be served personally on him.10

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Schilling v. Holmes, 23 Cal. 227.

Van Grutten v. Trevenen (1902), 2 K. B. 82, 71 L. J. K. B. 544.

(6) Alworth v. Gordon, 81 Minn. 445, 84 N. W. 454; Prendergast v. Searle, 81 Minn. 291, 84 N. W. 107.

(7) Langan v. Schlief, 55 Mo. App. 213; Jenkins v. Jenkins, 63 Ind. 415.

(8) Langan v. Schlief, 55 Mo. App. 213. (9) Hodgkins v. Price, 137 Mass. 13. (10) Doe v. Gray, 2 Houst. (Del.) 135; Bell v. Bruhn, 30 Ill. App. 300; Blish v. Harlow, 15 Gray (Mass.) 316; Clark v. Keliher, 107 Mass. 406; Steese v. Johnson, 168 Mass. 17, 46 N. E. 431; Hazeltine v. Colburn, 31 N. H. 466; Cadwallader v. Lovece, 10 Tex. Civ. App. 1, 29 S. W. 666, 917.

In a Rhode Island case it appeared that notice in due form was delivered to the tenant's wife during the tenant's absence; that, in accordance with directions of the tenant's attorney, the wife took the notice to him; and that she did not mention the notice to her husband, who could not read or write. It was held that the jury were justified in finding, as an inference from the fact of service on the wife, that actual service was made upon the husband.11

In justification of the rule that service. on the tenant's wife constitutes service on him, it has been said:

"A wife is by reason of her relationship to her husband the keeper of his house and his agent to perform such duties relating to the domicile as are necessary in his absence. Among these may be reasonably included the reception of notices relating to the tenure of the premises. If personal notice upon the tenant were necessary it would be a difficult undertaking for a landlord to terminate a monthly tenancy if the tenant should wish to avoid service."12

Where the wife was the tenant, service of notice on the husband was held to be good, although the notice was addressed to him.13

Same-Absence of Tenant.-It seems. very well settled, that where personal service cannot be effected, in the absence of a statute requiring the service of notice to be made in a specified manner, it is sufficient if left with the wife of the tenant.14

So, where the tenant is absent from the state, service of notice on his wife, in this instance at his place of business, is suffi

cient.15

Service of notice on a tenant's wife, while he was absent at work, in the absence of a showing that he was out of the city, or that he could not have been served without difficulty, or that the notice was.

(11) Cranston Print Wks. v. Whalen, 27 R. I. 445, 63 Atl. 176, 114 A. S. R. 56, 8 Ann. Cas. 1143. (12) Cranston Print Wks. v. Whalen, 27 R. I. 445, 63 Atl. 176, 114 A. S. R. 56, 8 Ann. Cas. 1143. (13) Cook v. Creswell, 44 Md. 581.

explained to the wife when served on her, or that she communicated the fact of its service or delivered it to her husband, was insufficient, unless she was his agent, or the person in possession, within the meaning of the statute.16

In Massachusetts it has been held that service on the wife, on the premises, was good, although the tenant lived at home, was not out of town, but merely away from the house at the time.17

Delivery to Servant or Employe.—Where it appeared that the officer whose duty it was to serve the notice, went to the house occupied by the tenant, and, in response to his ringing of the door bell, a woman opened a window and asked him what he wanted, to which he replied that he had a notice for the tenant, and she said she would give it to him, and he then handed her a copy of the notice, it was held that the jury were justified in finding that the women was the wife or servant of the tenant; the Court further holding that if the woman was either servant or wife of the tenant, the service was good.18

A salesman in the tenant's store, during the tenant's temporary absence, is not a proper person on whom to serve notice. The salesman, although exercising certain agency powers, is not deemed to be an agent of the tenant for this purpose.19

Delivery to Servant of Boarding House Where Tenant Resides.-Service of notice by leaving a copy with a servant of the keeper of a boarding house at which the tenant had resided and where his wife yet remained, is held insufficient in Missouri; it appearing that by proper inquiry and reasonable diligence the tenant could have been found.20

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(19)

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Van Studdiford v. Kohn, 46 Mo. App. DeGiverville v. Stolle, 9 Mo. App. 185.

Agent of Tenant.-Notice served on one who, as agent of the tenant, has charge and management of his business with refer ence to the tenancy, is sufficient.21

This is more especially true if it is impracticable to serve the tenant personally, and it appears that the notice was timely delivered to the tenant by his agent.22

"Person in Possession."-Some statutes require that notice be served on the tenant or person in possession of the premises.

Under this provision, possession by a person who merely happens to be on the premises, or, for instance, a lodger, is not such possession contemplated by the statute.23

A notice addressed to the original tenant, and served on the father of the person in possession of the premises, was held to be sufficient compliance with a provision requiring service by leaving a copy with a person residing on or in possession of the premises.24

The mere fact that the wife of the tenant paid the rent at the instance of her hus band, does not make her the person in possession for the purpose of receiving such notice.2

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There are two classes of privileged communications recognized governing the publication of alleged libelous matter, one constituting an absolute privilege, and the other a qualified privilege, and pertinent and relevant statements in pleadings in judicial proceedings are within the first class, and are absolutely privileged; the test being their relevancy and pertinency to the issues involved, regardless of the truth of the statements or of the existence of actual malice.

MCCULLOCH, C. J. This is an action to recover damages for libel alleged to have been published by appellee in an answer and crosscomplaint filed by him in a certain action instituted by appellants in the chancery court of Pike county to cancel a contract for the lease of certain lands to be used in the operation of a diamond mine. The complaint in the present action sets forth all of the pleadings in the proceedings in which the alleged libelous matter was published, and the particular matter charged to be libelous was set forth as one of the allegations of appellee's cross-complaint as follows:

"On the 13th day of January, 1918, as defendants believe by the instigation and procurement of the plaintiffs, the plant that had been erected for the washing of the diamondbearing dirt as well as another plant belong

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