Cornell University Law Library THE GIFT OF ..^-^^^a.^^..^ ~:yu^....^&^ Date (^r(LAaJ^...%.^^...J.f'^.l. Cornell University Library KD 1949.P77 1908 The law of torts :a treatise on the prln 3 1924 022 356 640 -^^ Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022356640 The Law of Touts: A TEEATISE ON THE PEINOIPLES OF OBLIGATIONS ARISING FROM CH'IL WRONGS IN THE COMMON LAW : TO wniCH IS ADDED THE DRAFT OF A CODE OF CIVIL WRONGS PEEPAUBD FOP, THE GOVEENMENT OF INDIA. Sir FREDERICK £QLLOCK, Bart., D.C.L. OP Lincoln's inn, darrister-at-law ; CORRESPONDING MEUBER OF THE INSTITUTE OP FRANCE; PAST FELLOW OP TRINITY COLLEGE, CAMBRIDGE ; HONORARV FELLOW OF CORPUS CDRISTI COLLF.GE, OXFORD ; AND HONORARY DOCTOR OF LAWS IN THE UNIVERSITIES OF EDINBURGH, DUBLIN, AND HARVARD. AutJior of ' Principles of-Contrad" " A Digest of the Law of Partnership," it'c EIGHTH EDITION. LONDON: STEVENS AND SONS, LIMITED, 119 & 120, OHANCEET LANE, 1908. TO THE MEMORY OF THE RIGHT HONOURABLE SIR JAMES SHAW WILLES, Knt. SOMETIME A JUSTICE OE THE OOMMON BENCH, A MAN COTrBTEOTJS AND ACCOMPLISHED, A rUDOE WISE AND VALIANT : AND TO KT FEIEND OLIVER WENDELL HOLMES, AN ASSOCIATE JUSTICE OE THE SUPEEME COUET OE THE UNITED STATES. ( V ) ADYERTISEMENT TO THE EIGHTH EDITION. Since the last edition was published there have not been many decisions of great general im- portance in this department of the law, but the Legislature has thought fit, by the Trade Disputes Act, 1906, to confer extraordinary immunities on combinations both of employers and of workmen, and to some extent on persons acting in their interests. Legal science has evidently nothing to do with this violent empirical operation on the body politic, and we can only look to jurisdictions beyond seas for the further judicial consideration of the problems which our Courts were en- deavouring (it is submitted, not without a reason- able measure of success) to work out on principles of legal justice. The Court of Appeal has decided that, wlien the defence of fair comment is set up in an VI ADVERTISEMENT TO THE EIGHTH EDITION. action for libel, evidence of hostile motive on the defendant's part is admissible. As the Court did not interfere vpith the long-standing rule in Campbell v. Spottisivoode, that good intentions will not excuse comment which the jury finds not to be fair, the defendant seems now to have the burden of privilege without the benefit. Decisions are noted down to those reported in November, 1907. The Index has again been revised by Mr. Edward Potton. F. P. Lincoln's Inn^ C'ras Aniniarum, 1907. ( vii ) TABLE OF CONTENTS. Book I. GENERAL PART. CHAPTER I. The Natuee op Toet in G-enbeai. PAGE Of tort in general 1 Tort distinguished from, breach, of contract 3 History of English classification 3 Personal ■wrongs , 7 Wrongs to property 7 Wrongs affecting person and property 8 Wilful wrongs 9 Wrongs unconnected with moral blame 9 Wrongs of imprudence and omission 11 Relation of the law of Torts to moral duties 12 Early forms of action 13 Rationalized version of law of trespass 15 Analogies of Roman law 16 Dolus and Culpa 17 Liability quasi ex delicto 18 Summary of results 19 CHAPTER II. Pbinciples of Liability. Want of generality in early law 21 General duty not to do harm in modem law 22 Authorities 23 When malice material 24 Breach of specifio legal duty 26 Duty of respecting property 28 Duties of dUigence 28 Assumption of sHIl 28 Exception of action under necessity 29 Vlll TABLE OF CONTENTS. PAGE Liability in relation to consequences of act or default 30 Pleasure of damages 31 " Immediate cause " 32 Liability for consequences of wilful act 32 ' ' Natural consequences " 34 '■ Natural and probable " consequence 36 Liability for consequences of trespass 3!) Consequences too remote 39 Liability for negligence 40 Contrasted cases of non-liability and liability : Cox t . Burbidge ; Lee r. Riley 46 Motropolitan Kail. Co. v. Jackson 47 Xon-liabiKty for consequences of unusual state of things : Blyth v. Birmingham Waterworks Co 47 Sliarp r. Powell 48- Whether same rule holds for consequences of wilful wrong : Clark (■. Chambers 49 Consequences natural in kind though not in circumstance 50 Damages for ' ' nervous or mental shock " 51 CHAPTEE III. Persons affected by Toets. 1. Zimitafions of ^crscnul Capacity. Personal status immaterial in law of tort : but capacity material .... 54 Exceptions : Convicts and aliens 55 Infants 56 MaiTied women : the common law 58 Married Women's Property Act, 1882 58 Common law liabiUty of infants and married women 69 Corporations 60 Responsibility of public bodies for management of works under their control 61 2. Effect of a Fartif s Death . Actio personalis- moritm- cum persona 62 Qn. of the extension of the rule in Osbom v. Gillett 64 Exceptions : Statutes of Edw. III. giving executors right of suit for trespasses , 66 Of WiU. IV. as to injuries to property 66- No right of action for damage to personal estate consequential on personal injury • 67 Lord Campbell's Act : rights created by it 67 Construction 60 TABLE OF CONTENTS. IX PAOB Interest of siu-vivors distinct 70 Statutory cause of action is in substitution, not cumulative 71 Scottish and American laws 71 Bight to follow property 'wrongfully taken or converted 72 Rule limited to recovery of specific property or its value : PliUlips V. Homfray 72 3. Liability for the Torts of Agents and Servants. Command of principal does not excuse agent's "wrong 7-t Cases of special duty, absolute or in nature of warranty, distin- guished 7i Modes of liability for ivrongf ul acts of others , 7 "i Command and ratification 7G ilaster and servant 77 Reason of master's liability 77 AVho is a servant 7i> Specific assumption of control SI Temporary transfer of service 82 "Power of controlling the work " explained 83 Public offices under the Cro^wn 81 What is in course of employment 8i (a) Execution of specific orders y-5 (b) Negligence in conduct of master's business S'> Departure or deviation from master's business Si> (o) Excess or mistake in execution of authority 8'.> Interference with passengers by guards, &c 90 Arrest of supposed offenders 91 Act wholly outside authority : master not liable 91 (d) Wilful trei-passes, &c., for master's purposes 93 Fraud of agent or servant 9i Liability of qua si- corporate association for wrongs of servants 96 Liability of firm for fraud of a partner 97 Injuries to servants by fault of fellow-servants 98 Common law rule of master's immunity 98 Reason given in the later cases 90 Servants need not be about same kind of work 100 There must be a general common object 101 Relative rank of servants immaterial 102 Servants of sub-contractor 103 Work done under compulsion of law 101 Volunteer assistant on same footing as servant 104 Exception where master interferes in person 10-t Employers' Liability Act, 1880 101 Resulting complication of the law 10i> Workmen's. Compensation Acts, 1897 and 1906 107 X TABLE OF CONTENTS. CHAPTER IV. Genebal Exceptions. page Conditions excluding liability for act prima facie wrongful 109 General and particular exceptions 110 1 . Acts of State. Acts of state Ill General ground of exemption 112 Local actions against viceroy or governor 114 Power to exclude aliens 114 Acts of foreign powers 115 Summary 116 2. Judicial acts. Judicial acts llli Liability by statute in special cases 118 Judicial acts of persons not j udges , 118 3. Executive acts. Executive acts 119 Acts of naval and military officers 121 Of other public authorities 122 Indian Act XVIII. of 1850 122 Executive acts in time of war 122 4. Quasi-Judicial acts. Acts of quasi-judicial discretion 121 Kules to be observed 125 Absolute discretionary powers 126 Whether duty j udicial or ministerial : Ashby v. White 126 5. Parental and Quasi-parental jiuthority. Authority of parents 127 Of custodians of lunatics 127 6. Authorities of Necessity. Of the master of a ship 128 7. Damage incident to authorized acts. Damage incidentally resulting from lawful act 129 Damage from execution of authorized works 130 No action for unavoidable damage 131 Care and caution required in exercise of discretionary powers 132 TABLE OF CONTENTS. XI S. Incritablc Accident. taqe Inevitable accident resulting from lawful act 135 On principle such act excludes liability 136 Apparent conflict of authorities 138 American decisions : The Nitro-Glyccrine Case (Sup. Ct. U. S.) 139 Brown r. Kendall (Muss.) 141 Other American cases , 141 English authorities : Cases of trespass and shooting 142 Oases where exception allowed 145 9. Exercise of Common Mights. Immunity in exercise of common rights 149 Digging wells, &c., in a man's own land 153 Chasemore v. Richards 1 j4 Other applications of same principle 165 T\Tiether malice material in these cases 158 Roman doctrine of " animus vieino nocendi " 158 No exclusive right to names 159 10. Leave and Lieeiice : J'olenti non Jit iniuria. Consent or acceptance of risk 159 Express licence ICO Limits of consent 160 Licence obtained by fraud 164 Extended meaning of volenti non Jit iniuria 164 Relation of these cases to inevitable accident 164 Knowledge of risk opposed to duty of warning 166 Cases between employers and workmen : Smith r. Baker 167 Distinction where no negligence at all 169 Distinction from oases where negligence is ground of action 170 11. Works of Kecessitij 171 12. Private Defence. Self-defence ^"'^ Killing of animals in defence of property 174 Assertion of rights distinguished from self-defence 175 Injury to third persons in self-defence 1/6 13. Flaintiff a Wrong-doer. Harm suffered by a wrong-doer 1 ' " Sunday travellicg : former conflict of opinion in U. S 179 Cause of action connected with unlawful agreement 180 Xll TABLE OF CONTENTS. CHAPTER V. Of Remedies foe Toets. page Diversity of remedies 181 Self-help 182 Judicial remedies : damages I8'i Nominal damages 184 Nominal damayes possible only when an absolute right is infringed.. 186 Cases where the damage is the gist of the action 186 Peculiarity of law of defamation 188 Ordinary damages 188 Exemplary damages 190 Analogy of breach of promise of marriage to torts in this respect. ... 192 Mitigation of damages 193 ConcmTent but severablo causes of action 193 III j unctions 1 94 On what principle granted 195 Former concurrent jurisdiction of common law and equity to give (. ompensation for fraud 196 Special statutory remedies, when exclusive 197 Joint ^^Tong-doer8 199 Rules as to contribution and indemnity 199 Supposed rule of trespass being " merged in felony " 202 No known means of enforcing the rule if it exists 203 Locality of wrongful act as affecting remedy in English Court 204 ^Vcts not WTongful by English law 205 Acts justified by local law 205 Act ^\Tongful by both laws 206 Phillips r. Eyre 207 Limitation of actions 210 Suspension of the statute by disabilities 210 From what time action runs 211 Statutory penalties 211 Special protection ( if justices, constables, &c 211 Exception of concealed fraud 213 Conchision of General Part 213 TABLE OF CONTENTS. Xlll Book II. SPECIFIC WRONGS. — ♦ — CHAPTER VI. Peesonal Wkonqs. T. Asaanli and Battery. park What is a battery 215 What an assault 215 Excusable acts 217 SeH- defence 219 ^Menace distinguished from assault 'J'JI> Summary proceedings when a bur to civil action 220 II. False Imprisoiment, What is false imprisonment 2'2 1 Justification of arrest and impiisonment 222 Who is answerable 223 Reasonable and probable cause 225 III. I>ijtiries ill Famihi Ilelations. Protection in personal relations 227 Historical accidents of the common law herein 228 Trespass for taking away wife, &c., and^ei' quod servitiuiii amisit . . . . 22S ' ' Criminal conversation " 229 Enticing away servants 230 Actions for seduction in modem practice 231 Damages 213 Services of young child 234 Capricious operation of the law 23-t Constructive service in early cases 235 Intimidation of servants and tenants 236 CHAPTER VII. Defamation. Civil and ciiminal jurisdiction 239 Slander and libel 239 1. Slander. When slander is actionable 241 Meaning of "prima facie libellous " 242 Special damage 242 XIV TABLE OF CONTENTS. PAGE Repetition of spoken "words 243 Special damage involves detinite temporal loss 243 Imputation of criminal offence 244 Charges of mere immorality not actionable 245 Slander of Women Act 246 Imputation of contag-ious disease 246 Evil-spealiing' of a man in the ^va,J of Ms business 247 Wurds indirectly causing damage to a man in his business 249 2. Defamation in General. Defamation 250 " Lnplied Malice " 250 What is publication 251 Viciinous publication 253 Coustraotion of ivords : Inniundo 253 Libellous tendency must be probable in la"w and proved in fact 255 Eepetitiou and reports may be libellous 255 3. J^xcepHons. Exceptions : fair comment 257 What is open to comment, matter of law 260 Whether comment is fair, matter of fact 260 Justification on ground of truth 261 Must be substantially complete 262 Defendant's belief immaterial 263 Parliamentary and judicial immunity 264 Other persons in judicial proceedings 264 Reports of officers, &c 265 Qualified immunity of " privileged communications" 266 Conditions of the privilege 267 " Express malice " 2fi8 What are privileged occasions 268 Moral or social duty 269 Self-protection 270 Information for public good 270 Fair reports 271 Parliamentary papers , 271 Pai'Uamentary debates and judicial proceedings 272 Volunteered reports , 274 Excess of privilege , 275 Honest belief is not necessarily reasonable belief 275 PoAver of jury in assessing damages 277 Statutory defences 277 Limits of interrogatories in action for Ubel 278 Bad reputation of plaintiff 278 Injunctions 278 TABLE OF CONTENTS. XV CHAPTER VIII. Wkonqs of Pbaub, Bad Faith, and OppEESsioif. I. Deceit, page Nature of the -n-rong 279 Concurrent jurisdiction of common law and equity 279 Difficulties of the subject : complication with contract 280 Questions of fraudulent intent 281 Fraud of agents 282 General conditions of right of action 282 (a) Falsehood in fact 284 Misrepresentations of law 285 Falsehood by garbled statements 286 (b) Knowledge or belief of defendant 286 Representations subsequently discovered to be untrue. . . . 290 Reckless assertions 291 Breach of special duty to give correct information 292 Estoppel. Burrowes v. Locke : former supposed rule of equity 293 (o) Intention of the statement 295 Representations to class : Polhill v. Walter 296 Denton v. Gr. N. R. Co 296 Peek r. Gurney 297 (d) Reliance on the representation 298 Means of knowledge immaterial without independent inquiry 299 Perfunctory inquiry will not do 299 Ambiguous statements 301 (e) Lord Tenterden's Act 301 Equity and law under Judicature Acts 303 Misrepresentation by agents 303 Liability of corporations herein 305 Reason of an apparently hard law 306 II. Slander of Title. Slander of title 307 Recent extensions of the principle 308 Trade marks and trade names 311 Unfair competition 313 III. Malicious Prosecution and Abuse of Process. Malicious prosecution 314 Malicious civil proceedings 316 XVI TABLE OP CONTENTS. IV. Conspiracy; Froeuyement of Wrongs. pagh Conspiracy 319 Relation of conspiracy to lawful acts or forbearances of third person 323 Conspiracy not aa adequate test of liability 32o Actions for procuring breach of contract 328 Remoteness of damage 330 Inducement of acts not in themselves unlawful 331 Suggested solution 333 Interference with franchise 331 Muiutenance 33i Interference with occupation ; not a special cause of action .... 335 Trade Disputes Act, 190G 337 CHAPTER IX. Weongs to Possession and PEOrEETY. I. Bfitit's recjard'uig Property generallij. Absolute duty to respect others' property 338 Title, justification, excuse 33S Title dependent on contract 339 Exofptional pirotection of certain dealings in good faith 340 Common law rights and remedies 341 Possession and detention , 342 Trespass and conversion 344 Alternative remedies 345 II. Trefipnss. "What shall be said a trespass 346 Qtiaerc concerning balloons 347 Trespass to goods 349 III. Injuries to lieeersion. "Wrongs to an owner not in possession 350 IV. Waste. What is waste 352 Modern law of waste : tenants for life 353 Landlord and tenant 355 V. Conversion. Relation of trover to trespass 355 What amounts to conversion 357 Acts not amounting to conversion 359 Dealiugs under authority of apparent owner 360 Acts of servants , 362 Redelivery by bailees 363 Abuse of limited interest 364 Conversion by estoppel 367 TABLE OF CONTENTS. XVU VI. Iiijiirics between Tenants in Common. PAGE Trespasses between tenants in common 367 \ II. F.fteiided Protection of Possession. Rig-hts of de facto possessor against strangers 3G9 Rights of owner entitled to resume possession 372 Eights of derivative possessors 373 Posst'ssiou derived through trespasser 374 VIII. Wrongs to Easements, S;c. Violation of incorporeal rights 375 IX. Grounds of Justification and Excuse. Licence ;;77 Revocation uf licence 378 Executed licences 380 Expression of licensor's will 3S'2 Distinction from grant as regards strangers 382 Justification by law 383 Re-entry : herein of forcible entry 383 Fresh re-entry on trespasser 386 Recaption of goods 387 Process of law : breaking doors 389 Distress 390 Damage feasant 390 Entry of distrainor 392 Trespasses justified by necessity 392 Eox-hunting not privileged 394 Trespass ab initio 394 X. Remedies. Taking or retaking goods 397 Costs where damages nominal 397 Injunctions 399 Effect of changes in procedure 400 CHAPTER X. Nuisance. Nuisance, public or private 401 Private right of action for public nuisance 402 Special damage must be shown 403 Private nuisance, what 405 Kinds of nuisance affecting — 1. Ownership 406 2. lura in re aliena 407 3. Convenience and enjoyment 407 P. T. b XVlll TABLE OF CONTENTS. PAGE Measure of nuisance 408 Injury to health need not be shown 408 Plaintiff not disentitled by having come to the nuisance 409 Innocent or necessary character of offensive occupation, or con- venience of place, no answer 410 Modes of annoyance 412 Injury common to the plaintiff with others 414 Injury caused by independent acts of different persons 414 Obstruction of lights 415 Nature of the right to light 416 Any diminution causing substantial damage is a wrong 417 Supposed rule as to angle of forty-five degrees 418 Enlargement or alteration of lights 418 ' * Nuisance ' ' to market or ferry , 419 Remedies for nuisance 420 Abatement 420 Notice to wrong-doer 421 Nuisances of omission 422 Old writs 42i Damages 42i Injunctions 425 Difficulty or expense of abatement no answer 430 Parties entitled to sue for nuisance 430 Parties liable 431 CHAPTER XI. NEailGENCE. I. The General Conception. Omission contrasted with action as ground of liability 434 General duty of caution in acts 435 Overlapping of contract and tort 436 Definition of negligence , . . . . 437 Standard of duty is external 439 Diligence includes competence 441 Degrees of negligence 441 II. Evidence of Negligence. Negligence a question of mixed fact and law 442 Burden of proof 443 Where there is a contract or undertaking 445 Things within defendant's control 447 Common course of affairs judicially noticed 447 On evidence sufficient in law, question is for jury 448 TABLE OF CONTENTS. XIX PAGE i\[etropolitan R. Co. v. Jackson 449 Cases of level crossing-s 451 " Invitation to alight " 453 Complications ■svith contributory negligence 454 ' ' Evidence of negligence : " Smith c. L. & S. W. R. Co 454 No precise general rule , 45(; Due c;xre varies as npjiaroit risk : application of this to accidents through personal infirmity 456 Distinction Tvhere person acting has notice of special danger to infirm or helpless person 457 III. Contributory Negligence. Actionable negligence must be proximate cause of harm : where plaintiff's own negligence proximate cause, no remedy 458 Tuff r. Warman 460 Radley r. L. & N. W. R. Co 461 " Proximate " or " decisive " cause 463 Self -created disability to avoid consequences of another's negligence 464 Earlier illustrations : Davies v. Mann 465 Butterfield v. Forrester 466 The exploded doctrine of "identification " 469 Accidents to children in custody of adult 472 Children, &c. unattended 473 Child V. Heam -1 74 Admiralty rule of dividing loss 475 IV. Auxiliary JRules and Presumptions. Action under difiiculty caused by another's negligence 476 No duty to anticipate negligence of others 477 Choice of risks under stress of another's negligence 478 Clayards v. Dethiok 479 Doctrine of New Tork Courts 480 Separation of law and fact in United States 482 CHAPTER XII. Duties of IsstrEiNa Safety. Exceptions to general limits of duties of caution 484 Rylands v. Fletcher 4Sr) Exception of act of God 492 Act of stranger, &c 493 Authorized works 493 G. W. R. Co. of Canada v. Braid 495 Other cases of insurance liability 496 b2 XX TABLE OP CONTENTS. PAGE Duty of keeping in cattle 495 Dangerous or vicious animals 498 Fire, firearms, &c 499 Duty of keeping in fire 499 Carrying fire in locomotives 50O Firearms : Dixon v. Bell 502 Explosives and other dangerous goods 503 Gas escapes 503 Poisonous Drugs : Thomas v. Winchester 504 Difficulties felt in England : George c. Skivington 505 Clarke v. A. & N. Co-op. Society 507 Duties of occupiers of buildings in respect of safe repair 507 E-ctent of duty 50S Modem date of the settled rule : Indermaur v. Dames 508 Persons entitled to safety 510 Daty in respect of carriages, ships, &c 512 Limits of the duty 514 Vjlcnii nonjit mmria 515 Daty towards passers-by 515 Presumption of negligence {res ipsa loquitur) 517 Distinctions 620 Position of licensees 521 Host and guest 523 Liability of licensor for " ordinary negligence " 524 Owner not in occupation 524 CHAPTER Xlir. Speciai Relations of Contkaot and Toet. Original theory of forms of action 526 Actions on the case 527 Causes of Action : modem classification as founded on contract of tort 528 Classes of questions arising 529 I. Alternative Forms of Remeclij on the same Cause of Action. One cause of action and alternative remedies 529 Common law doctrine of misfeasance 530 Special duty of carriers and innkeepers by " custom of the realm " . . 533 Alternative of form does not affect substance of duty or liability. . . . 534 In modern law obligation wholly in contract 535 Limits of the rule 63& II. Coiicurrent Causes of Action. Cases of tort, whether of contract or no contract between same parties 537 Contract "implied in law " and waiver of tort 539 TABLE OF CONTENTS. XXI TAOE Implied warranty of agent's authority : Collcn r. Wright 540 Concurrent causes of action against different parties 54 1 Dalj'ell r. Tyrer 541 Foulkes V. Metropolitan Dist. E. Co 542 KeUy r. Metrop. Ry. Co 54;i Causes of action in contract and tort at suit of different plaintiffs . . 543 Alton r. Midland E. Co. : no longer authority 514 Winterbottom ;■. "Wright, &c 546 Concurrence of breach of contract with delict in Roman law 548 III. Causes of Action in Tort dependent on a Contract n^t hetween the same Parties. Causes of action dependent on a collateral contract 54 H Procuring breach of contract 548 Damage to stranger by breach of contract 550 Position of receiver of erroneous telegram : different views in England and United States 551 The conflict considered on principle 5-')^ ■Character of morally innocent acts affected by extraneous contract . . 555 IV. Measure of Damricjes and other Incidents of the lieiiiedi/. Measure of damages 557 Rul« as to consequential damage 558 Penal character of action for breach of promise of marriage 559 Contracts on which executors cannot sue 560 APPENDIX. A. — Historical note on the classification of the forms of personal action. (By Mr. E. W. Maitland.) 563 B.— I. Trade Disputes Act, 1906 571 II. Employers' Liability Act, 1880 573 C — Statutes of Limitation : 21 James I. c. 16, ss. 3, 7 580 4 & 5 Anne, c. 3, s. 19 581 19 & 20 Viet. c. 97 (Mercantile Law Amendment Act), s. 12. . 582 D. — Contributory negligence in Roman law 583 XXU TABLE OF CONTENTS. INDIAN CIVIL WRONGS BILL. page Pbefatobt Noib 580 G-ENEBAI PaET — Chap. I. General principles of liability 591 II. General exceptions 600 Special Part — III. Assault and false imprisonment 611 IV. Defamation 611} V. Wrongs against good faith 624 VI. Wrongs to property 629 VII. Nuisance 634 VIII. Negligence 640 IX. Of damages for civil wrongs 651 ( xxiii ) INDEX OF CASES. ABDUii Haeim v. Tej Ghander Mukarji, 621. Abraham r. Reynolds , 523. Abrahams v. Deakin, 93. Abrath v. N. E. RaU. Co., 315, 627, 628. Ackers v. Howard, 126. Acton t'. Blundell, 153, 154, 158. Adam v. British and Foreign SS. Co., 68. Adams r. L. & T. Eail. Co., 478. Adamson *'. Jarvis, 200, 599. Addie p. "Western Bank of Scot- land, 95. Agincourt, The, 128. Aikens v. Wisconsin, 24. AjeUo V. Worsley, 152, 313. Alabaster ». Harness, 334. Aldersonr. Waistell, 137. Aldred's Case, 410, 411, 636. Aldrieh ». Wright, 174. .Alexander v. N. E. RaO. Co., 260. • V. Jenkins, 248. V. Southey, 359. Allbutt V. General Council of Medical Education, 124, 272. Allen r. Flood, 24, 25, 26, 156, 158, 250, 316, 320, 323, 326, 328, 332, 336. V. L. & S. W. Eail. Co., 92, 598. v. Martin, 399. Allinson v. General Council, &c., 125. Allsop v. Allsop, 244. Alton V. M. Eail. Co., 544, 545, 546, 560. Amann v. Damm, 623. Ambergate v. M. Eail. Co., 390. Ambler (Jeremiah) & Sons v. Brad- ford Corporation, 212. v. Gordon, 418. Ames V. Union Eail. Co., 545. Anderson J). Gorrie, 117, 118. r. Eadcliffe, 275. Andrews r. Mitchell, 125. !'. Mockford, 297. • r. Waite, 418. Angle f. Chicago, St. Paul, &c. EaU., 328. Angus ('. Clifford, 289, 293. Ankerson v. Connelly, 419. Anthony r. Haney, 388. Applebee r. Percy, 499. Arlett f. Ellis, 422. Ai-mory c. Delamirie, 370, 382. Armstrong p. L. & Y. Eail. Co., 643. Arnold p. Holbrook, 392. Ash V. Dawnay, 396. Ashby V. White, 126, 186, 331. Asher c. Whitlock, 370. Ashworth v. Stanwix, 104. Atkinson v. Newcastle Waterworks Co., 28, 197, 198. Attack ». Bramwell, 395. A.-G. V. Brighton & Hove Co- operative Supply Association, 411. V. Cambridge Consumers' Gas Co., 126. V. Cole, 411. V. Colney Hatch Eunatic Asylum, 430. ». Gas Light and Coke Co., 133. V. Horner, 376. v. Manchester Corporation, 427. r. Margate Pier Co., 212. ■ V. Metropolitan Eail. Co., 131. r. ShefBeld Gas Co., 426. ('. Tomline, 150. Austin V. Dowling, 224, 225. V. G. W. Eail. Co., 534, 538, 539. Australia, The, 200, 201. Australian Newspaper Co. i-. Ben- nett, 255. Avis V. Newman, 363. Aynsley v. Glover, 416, 418. XXIV INDEX OF CASES. B. Back V. Staoey, 417. Backhouse v. Bonomi, 187, 211. Baddeley v. Earl Granville, 515, 57.5. Bainbridge r. Postmaster-Q-eneral, 84, 114. Baird v. Wells, 125. Baker v. Carriok, 270. Baldwin v. Casella, 499. V. ElpliinatoD, 251. Ball, Ex parte, 203, 204. r. Ray, 413. Ballacorkish Mining Co. v. Harri- son, 153. BaUantine v. Golding, 209. BaUard «>. Tomlinson, 154, 491. Balme ». Hutton, 121, 358. Baltimore and Ohio R. E. Co. v. Baugh, 106. and Potomac R. R. v. Cumberland, 468. and Potomac R. R. r. Fifth Baptist Church, 134. Bamford v. Turnley, 411, 412, 636. Bank of New South Wales v. Owston, 92. Barber v. Penley, 404. Barker r. Braham, 76, 223. V. Furlong, 358, 363, 372. Barnes r. Ward, 177, 516, 649. Bamett r. Guildford, 375. Barry r. Croskey, 283. Barton v. Taylor, 122. Barton's Hill Coal Co. r. Beid, 78. Barwick r. English Joint Stock Bank, 77, 95, 305, 307. Bastard r. Hancock, 569. Batchelor v. Fortescue, 523. Baton's Case, 407, 424. Bavins, J., and Sims r. L. k S. W. Bank, 366, 367. Bayley v. M. S. & L. R. Co., 90, 597. Beam, The, 61. Beard v. L. General Omnibus Co., 82. Beasley v. Roney, 58. Beaumont v. Greathead, 186. Beoher v. G. E. Rail. Co., 544. Beckett v. M. Rail. Co., 404. Beckham v. Drake, 560. Beddall v. Maitland, 384, 385. Beddow ». Beddow, 194. Behrens t. Richards, 195. BeUr. G.N. Rail. Co., 53. V. M. Rail. Co., 192, 634. Benjamin v. Storr, 405, 634. Benton v. Pratt, 309. Bernina, The, 460, 467, 482, 642. Berringer v. G. E. R. Co., 542. Berry ». Da Costa, 193, 559. V. Donovan, 332. Bessey r. OUiott, 143, 144. Betts r. Gibbins, 200, 599. Bhugivan Meetha v. Kasheeram Govurdhun, 603. Bhyran Pershad v. Isharee, 612. Biddle v. Bond, 363, 354. V. Hart, 574. Bird r. Holbrook, 165, 177. V. Jones, 222. Biscoe V. G. E. Rail. Co., 132, 133, 604. Bishop V. Balkis Consolidated Co., 303. Black V. Christohurch Finance Co., 500. Blades v. Higgs, 374, 388. Blad's Case (Blad «. Bamfield), 205, 208. Blair r. Bromley, 97. Blake v. Barnard, 216. V. Midland RaU. Co., 68, 70. Blakemore v. Bristol and Exeter Rail. Co., 523. Blamires v. L. & T. Rail. Co., 199. Blisset V. Daniel, 126. Bloodworth v. Gray, 247. Blundell, Weld r. Wolseley, 354. Blyth V. Birmingham Waterworks Co., 40, 47, 48, 4:i7, 456. Boden i\ Roscoe, 390. Boleh V. Smith, 522, 651. Bolingbroke v. Swindon Local Board, 93. Bonnard v. Ferryman, 195, 278. Booth V. Arnold, 248. Borrows r. Ellison, 211. Boson V, Sandford, 559. Bostook r. Ramsay U. D. C, 212. Boston and Albany R. R. Co. r. Shanly, 503. Bound V. Lawrence, 579. Bourne v. Fosbrooke, 370. V. Swan & Edgar, 313. Bowen v. Anderson, 432. V. Hall, 328, 650. Bower r. Peate, 521. Bowker v. Evans, 62. Bowyer v. Cook, 387, 397. Box ». Jubb, 493. Boxsius r. Goblet Freres, 251. INDEX OF CASES. XXV Bradford, ^Coiporatiou of r. Eor- rand, 164. ■ r. Pickles, 2o, loo, 1,18, 1.39. Bradlaugh r. Go.^ssett, 122. V. Neudefriite, 335. Bradshaw r. L. & Y. Riil. Co., 67. Brannignn r. Robinson, 573. Bray i-. Ford, 277. Brennan c. Bonaghy, 55. Brewer c. Dew, 191. Bridge r. Urand Junction Eail. Co., 466, 467, 476. Bridges r. N. L. Eail. Co., 448, 449, 4o3. Briggs r. Union Street Rail., 4 77. Brinsmead r. Harrison, 199, 359. Bristol and W. of England Bank c. ::rM. Rail. Co., 367. British Mutual Banking Co. r. CharnwoodForestEail.Co.,94,96. British S. Africa Co. v. Companhia de lIo(,'ambique, 206, 207. Broadbent r. Ledward, 566. Broder r. Saillard, 411, 413. Bromage r. Prosser, 250. Broughton r. Jackson, 226. Bro'O'n v. Boorman, 531. r. Eastern and Midlands Eail. Co., 63. r. Edgington, 290, 532. 1: Kendall, 138, 141, 143, 147, 605. r. Notlcy, 400. Browne r. Dawson, 387. Brownlie r. Campbell, 280. Brunsden r. Humphrey, 194. Brunswick, Duke of v. King of Hanover, 115. r. Harrner, 252. Bryant r. Herbert, 16, 566, 668. c. Lefever, 416. Buhb V. Telverton, 354. Bueher r. Cheshire, 179. Buckley v. Gross, 371. Buddies. "Willson, 632. Bullers V. Dickinson, 419. Bullock r. L. G. 0. Co., 194. Bulmer v. Bidmer, 69. Burdett V. Abbot, 389. Burge.s3 v. Burgess, 169. f. Gray, 81. Burling v. Read, 421. Burnard v. Haggis, 57. Bums V. Poulson, 86. Buron V. Denman, 113. Burr i>. Drury Laue Theatre, 102, 675. Burroughes r. Bayne, 351, 368. Burrowes!). Lock, 196, 293, 29 1. Burrows r. Erie Rail. Co., 481. r. March, &v. Gas Co., 504. V. Rhodes, 200, 201. Bush r. Steinman, 80. Bvitler r. M. S. * L. Rail. Co., .^78. Butterfield •<■. Forrester, ICC, 4(17, 643. Byrne r. Bo:idle, 516, 640, 650. Bywell Castle, The, 477, 644. Cabell r. Vaughan, 669. Calder r. Halket, 118. Caledonian Rail. Co. 1 . AValkcr's Trustees, 130. Calliope, The, 513. Cameron r. Nystrom, 82, 104. Campbell Davys r. Lloyd, 422. r. Spottiswoode, 267, 258, 2,') 9. Canadian Pacific R. Co. i. Parke, 132. . • r. Roy, 132, 494. Cape r. Scott, 391. Capital and Counties Bank r. Henty, 2,50, 254, 014, 618. Carhy r. Hill, 649. Carey r. Ledbitter, 412. Carpue r. L. l^- B. Rail. Co., 44 6. Carr r. Fracis Times & Co., 200. Carrington r. Taylor, 335. Carsliike r. Mapledoram, 247. Carstairs r. Taylor, 493. Carter p. Drysdale, 678. r. Thomas, 172. Cartwright, Re, 353. Cavalier v. Pope, 512, 525, 547. Centi'al Eail. Co. of Venezuela r. Ki.sch, 300. Chaffers v. Goldsmid, 334. Challisr. L. & S.W. Eail. Co., 471. Chamberlain r. Boyd, 244. r. Hazelwood, 231. V. Williamson, 64, 560, 569. Chambers r. Goldthorpe, 119. Chapman v. Auckland Union, 425. r. Eothwell, 610, 649. Charles r. Taylor, 102. Chasemore r. Richards, 154, 15S, 488, 606. XXVI INDEX OF CASES. Chastey r. Aokland, 415. Chatterton v. Secretary of State for Iiidia in Council, 266, 622. Chei?hire r. Bailey, 87. Chicago M. & S. Eail. Co. v. Ross, 106. Chiifcriel v. Watson, 188. Child V. Hearn, 474. r. Sands, 569, Chinery v. Viall, 365, 535. Christie -c. Davey, 408. Christopherson v. Bare, 218. Chunder IVarain Singh v. Brijo BiiUub Gooyee, 601. Cifizen's Life Assurance Co. v. Brown, 61, 95, 315. City of London Bre'wery Co. r. Teimant, 415, 416, 417. Clark '('. Chambers, 45, 49, 50, 51, 331, 472, 474, 594. V. London Omnibus Co., 65. ». Molyneux, 267, 271, 276. r. Woods, 120. Claike ». A. & N. Co-operative Soc, 507. Clarkson v. Musgrave, 577. Clayards v. Dethiok, 479, 480, 644, 045. Cleary v. Booth, 127. CleaTher v. Twisden, 97. Clements r. Flight. 566. • V. L. & N. W. Eail. Co., 575. Cliff V. M. Kail. Co., 641. Cliiford V. Holt, 416. Cloughf. L. &N.W.E.ail. Co., 284. Clowes r. Statfordshire Potteries Water"R^orks Co., 430. Clydesdale Bank v. Baton, 303. Cobb V. G. W. Bail. Co., 47, 451. Cofkle V. S. E. Rail. Co., 453. Colchester, Mayor of t\ Brooke, 466. Cole i\ Turner, 215, 217, 611. Collard i). Marshall, 195, 278. Collector of Sea Customs v. Pun- niar Chithanibaram, 601. Collen V. Wright, 540. Collins ». Evans, 200, 286. Collis r. Selden, 615, 547. Colls V. Home and Colonial Stores, 411, 416, 417, 418. Commissioners of Sewers v. Glasse, 421. Commonwealth v. Collberg, 161. V. Pierce, 219,441. V. Eubin, 395. Conroy t\ Peacock, 577. Consolidated Co. ». Curtis, 362. Cook v. N. Met. Tramways Co., 578. V. Sprigg, 112. Cooke V. Forbes, 426. Cooper V. Crabtree, 399. 4,. Willomatt, 360, 364. Corbett V. Pearce, 579. Corby t: HiU, 383, 516, 522. Cornfoot i: Fowke, 304, 305. Comford v. Carlton Bank, 61, 315. Cornish v. Accident Insurance Co., 169. r. Stubbs, 380, 633. Coryton «'. Lithebye, 568. Cotterelli'. Jones, 319, 320. Cotton i\ Wood, 443, 444, 641. Couch r. Steel, 197. Coulter V. Express Co., 481. Coupe Co. ,-. Maddick, 356. Oourtenay •!'. Earle, 531. Coward v. Baddeley, 217, 611. Cowley, Earl, v. Countess Cowley, 169. «'. Newmarket Local Board, 198. Cox V. Burbidge, 46, 496, 497, 594. V. Engli.Mh, Scottish, and Australian Bank, 184, 314. V. G. W. Bail. Co., 574. Coxhcad r. Richards, 270, 623. Crabtree v. Robinson, 392. Cracknell v. Corporation of Thet- ford, 132. Crafter v. Metrop. Rail. Co., 447, 456. Cribb V. Kynoch, 100, 103. Cripps ». Judge, 673. Croft V. Allison, 86. Crossley v. Lightowlcr, 409, 638. Crowhurst v. Amersham Burial Board, 491. Crumble v. Wallsend Local Board, 211. Crump V. Lambert, 408, 412. Cnllen v. Thomson's Trustees and Kerr, 74. Cundy ». Lindsay, 340, 656. Cutts «.'. Spring, 370. D. Dalston v. Janson, 532. Dalton V. Angus, 376, 416. — V. Fitzgerald, 370. V. S. E. Rail. Co., 70. Dalyell r. Tyrer, 81, 641, 542. INDEX OF CASES. XXVll Dauby v. Lamb, 566. Dand ;■. Sexton, 349. Daniel v. Ferjjuson, 4'25. r. Met. Rail. Co., 478. Darlej' Main Colliery Co. v. Mit- chell, 1S7, 211, 693. Darling-ton v. Eoseoe & Sons, 107. Dashwood c. Matrniac, oo4. Davey r. Askwith, 3S2. r. L. i: S ^Y. Rail. Co., 452. Davidson e. Hill, 68. Davies, Ex parte, 363. v. Mann, 465, 466, 467, 46S, 643. i\ Marshall, 164. i\ Snead, 269, 624. ('. Solomon, 244. V. Williams, 4 21. Davis r. Dimcau, 260. i: Gardiner, 246. i: Saunders, 146. 1'. bhepstone, 261, 271. Davys Campbell v. Lloyd, 4 22. Dawkins r. Antrobus, 125, 603. V. Paulet, Lord, 265. i'.Eokeby, Lord, 119,265. V. Saxe-Weimar, Prince Edward of, 119, 265. Day V. Brownrigg, 159, 311. Dean v. Bennett, 125, 126. f. Peel, 233. V. St. Paul Union Depot Co , 614. Dean of St. Asaph's Case, 142. Deane ;;. Clayton, 174. Degg V. M. Rail. Co., 104. De Medina v. Grove, 318. Denaby and Cadeby Main Collieries V. Torkshire Miners' Association, 90. Denison v. Ralphson, 567. Denton r. G. N. Rail. Co., 296, 297, 306, 537, 551. Derry v. Peek, 282, 283, 287, 288, 292, 293, 294, 297, 298, 305, 562, 624. De Wahl v. Braune, 56. Dewey r. White, 171. Dhurmchund v. Nanabhaee Goo- balc'hund, 603. Diekeson v. Watson, 143. Dickinson v. >'. E. Rail. Co., 68. Dickon V. Clifton. 532. Dicks v. Brooks, 308, 309. Dickson v. Renter's Telegram Co., 551. Digby V. Financial News, 262. Ditoham v. Bond, 231. Dixon V. Bell, 472, 474, 502, 505, 506, 507, 647. Dobell i'. Stevens, 299. Dobree r. Napier, 208. Donald r. Suckling, ."64, 630. Donovan r. Laiug, 8.i. Doss ('. Secretary of State in Council of India, 112. Doughty ('. Firbauk, 574. Doulson r. Matthews, 207. Doyley v. Roberts, 248. Drake, Ex parte, 359. Dre^'fus r. Peruvian Guano Co., ISS, 425. Drury o. N. E. Rail. Co., 451. Dublin, &c. Rail. Co. r. Slattny, 45l', 468. Du Boulay r. Du Boulay, 159. Duckm'orth v. Johnson, 111. Dulieu V. White & Co., 63. Duan«. Birmingham Canal Co , 1 94. V. Devon, &c., Nc\\'spaper Co., 278. Dunston v. Pater.son, 121. Dyer v. Plargrave, 300. ,'. Munday, 94. E. Eagar r. Grimwood, 234. Earl r. Lubbock, 615, 647. Earle c. Kingscote, .'is, 59. Eastern and S. A. Telegraph Co. V. Cape Town Trauiways Co., 489. East Fremantle Corporation r. Annois, 131. Ecclesiastical Commissioners c. Kino, 418. Eckert i\ Long Island R. R. Co., 481. Edelsten v. Edelsten. 311. Edgcomb /'. Dee. 549. Edgingt n i . Fitzmaurice, 283, 285, 292. Edmondson v. Birch & Co., 251. Edwards v. L. & N. W. Rail. Co., 92. . r. M. Rail. Co., 315. Edwick r. Hawkes, 384, 385. E. I. R. Co. V. Kalidas Mukerjee, 446. Elias 1). Snowden Sliite Quarries Co., 353. Ellenwood v. Marietta Chair Co., 207. xxvin INDEX OF CASES. Elliott, Ex parte, 204. V. GaiTett, 278. V. Hall, 513, 648. Ellis r. G. W. Kail. Co., 453. r. Loftus Iron Co., 46, 497. V. Sheffield Gas Consumers' Cj., 76. Emblen r. Myers, 191, 652. Emmens r. Pottle, 252. Eog-elhart r. Earraut & Co., 45, 46, 87, 471. England r. Cowley, 360. Eng-lishmau and Australia, The, 200, 201. Entick r. Carrington, 10, 113, 346. European and Australian Royal Mail Co. 1). Eoyal Mail Steam Packet Co., 363. Evans i. Bicknell, 302. V. Edmonds, 292. V. Walton, 232. Eyre, Ex parte, 97. F. Eiiirhurst v. Liverpool Adelphi Loan Ass., 56, 58. Ealvey r. Stanford, 184. Earquliarson Bros. & Co. r. King & Co., 367. Farrant «'. Barnes, 503, 6-17. Farwell r. Boston and Worcester Railroad Corporation, 78, 99, 100, IPl, 100, 5P8. Fay r. Prentice, 406, 636. Fear v. Morgan, 416. Feltham r. England, 102. Fenn v. Bittleston, 366, 369. Fenna r. Clare, 414. Fergussou '•. Eaii of Kinnoul, 591. Fielden v. Morley Corporation, 212. Filburn r. Royal Aquarium Co., 498. Filer v. N. Y. Central R. E. Co., 481. Filliter r. Phippard, 500. Fine Art Society r. Union Bank of London, 3-58. Finlay r. Chirney, 62, 560, 569. Firbank's Executors i\ Hum- phreys, 285. Firth v. Bowling Iron Co., 491. Fi.sher v. Jackson, 126. V. Keane, 125, 603. Fitzgerald v. Firbank, 377. Fitzjohn r. Mackinder, 224, 315. Fitzpatrick v. Evans & Co., 578. Fivazr. NichoUs, 180. Fleming r. Dollar, 262. V. Hislop, 410, 425. • v. M. S. & L. Rail. Co., 535. Fletcher, Ex parte, 387. V. Bealey, 427. r. Rylands, 485, 489. V. Smith, 4S8. Flewster v. Royle, 225. Fogg V. Boston & Lowell Rail. Co., 60. Forsdike r. Stone, 191. Foster i\ WarbHngton U. C, 492. Fouldes r. Willoughby, 350, 359. Foulger v. Newcomb, 249. Foulkes r. Met. Dist Rail. Co., 613, 514, 538, 542, 544, 545, 648. Francis r. Cockrell, 508, 512, 660. Franconia, The, 08. Franklin v. S. E. Rail. Co., 70. Frank AVarr & Co. r. L. C. C, 378. Fray r. Blackburn, IIS. Freke v. Calmady, 353. Fremantle r. L. & N. W. Rail. Co., 494, 647. Frith's Case, 491. Fritz c. Hobson, 404, 405, 414, 424, 634. Frogley r. Earl of Lovelace, 379. G. Gallagher v. Piper, 103. Gandy r. Jubber, 432, 638. Ganesh Singh r. Ram Raja, 599. Gardner r. Michigan Central R.R., 448. Garland v. Carlisle, 3S9. Garnett r. Bradley, 186. Garret r. Taylor, 237, 326. Gas Light and Coke Co. v. Vestry of St. Mary Abbott's, 134. Gathercole r. Miall, 260. Gaunt r. Fynney, 426. Gautret r. Egerton, 521. Gayford r. Chouler, 398. Gaylard v. Morris, 349. Geddis r. Proprietors of Bann Reservoir, 130, 132. Gee r. Met. Rail. Co., 171, 478, 644. Gehan&ji bin Kes Patil r. Ganpati bin Lakbhuman, 63-5. INDEX OF CASES. XXIX George and Richard, The, 44, 68. V. Skiving-ton, 305, 506, 547. Gibbons v. Pepper, 146. Gibbs V. Guild, -JIS. ^— i: G. W. Rail. Co., 574. Giblan v. National Labouiors' Union; 96, 324, 330, 332. Gibson i\ Evans, '253. Giles i-. Walker, 491. Girish Chunder Das i'. Gillanders & Co., 596. Gladwell r. Steggall, 5?0, 534. Glamorgan Coal Co. v. S. Wales Miners' Federation, 328, 330. Glasier v. Rolls, 288. Glasspoole r. Young, 121, 389. Gledstane c. Hewitt, 566. Glenwood Lumber Co. r. Phillips, 370. Globe Refining Co. t . Lauda Cotton Oil Co., 558. Gloucester Grammar School Case, 151. Glover r. L. & S. W. Rail. Co., 39. GoflE P.G.N. Rail. Co., 91. Gofiiu V. Donnell}', 265. Goldsmid n. Tonbridge Wells Im- provement Commissioners, 427. Goodson V. Richardson, 3t)9. licod-win V. Cheveley, 391, 497. Gorham r. Gross, 521. Gorris v. Scott, 28, 199. Gosden v. Elphick, 22.3. Graham r. Peat, 370. Grainger r. Hill, 221. Grand Trunk Rail, of Canada r. Jennings, 71. Gray r. Pullen, 75. G. VV. Rail. Co. of Canada v. Braid, 495, 647. Green c. Greenbank, 535. Greene v. Cole, 351. Greenhalgh v. Brindley, 375. Greenland v. Chaplin, 41. Greenslade ». Halliday, 423. Greenwell f . Howell, 212. Greenwood v. Hornsey, 418. Gregory v. Duke of Brunswick, 320, 321. i: Piper, 85, 597. Griffin v. Coleman, 223. Griffiths V. Dudley, 574. V. London & St. Katharine Docks Co., 103. Grinham f. Willey, 224, 225. Grinnell v. Wells, 233, 234. Guille V. Swan, 38. Gully V. Smith, 27. Gwilliam v. Twist, 82. Gwiuoell r. Earner, 432, 639. H. Hadleyv. Baxcndale, 31, 558, 559. Hadwell r. Righton, 496, 498. Haili'S r. Marks, 225. Htilestrap r. Gregory, 46. Halford e. E. I. Rail. Co., 641. Hall V. Eearnley, 146. ■ ■ r. Hollander, 231. V. Norfolk, Duke of, 187. Halley, The, 84, 205, 206, 207. Halliday r. Holgate, 364. Halsey r. Brotherhood, 308. Hambly r. Trott, 72, 567, 568. Hamilton v. Pandorf, 493. Hammack i\ White, 29, 443, 445, 610, 641. Hammersmith Rail. Co. /'. Brand, 131, 501. Hanson c. AValler, 93. Hardaker v. Idle District Council, 75, 519. Hardman v. Booth, 556. Harman v. Johnson, 97. Harper i . Chnrlesworth, 370. r. Lufikin, 232. Harris i\ Brisco, 335. r. De Pinna, 416, 418. r. Mobbs, 42, 405. ;•. Pen-y & Co., 524. Harrison v. Bush, 270. V. Duke of Rutland, 185, 346. V. Southwark & Vauxhall Water Co., 132, 408. Harrold r. Watney, 44. Harrop v. Hirst, 376, 405, 407, 414, 636. Hart v. Gumpach, 266. V. Wall, 254. Hartley v. Cummings, 230. V. Herring, 249. Harvey v. Brydges, 386. V. Dunlap, 141. V. Harvey, 389. Hatchard v. Mege, 66. Hayeraft r. Creasy, 284. Hayes v. Michigan Central Rail- road Co., 4 3. Hayman r. Governors of Rugby School, 126. Hayn v. CuUiford, 513, 514. Hayward v. Hayward, 273. XXX INDEX OF CASES. Heaia V. Cirey, 360. Heaven v. Pender, 435, 436, 503, 511. 591, 650. Hebditch v. Macllwaine, 253, 270, ■275. HedffPS V. Tagg, 233. Herilev v. Pinkney & Sons' S. S. Cii.,' 102. Helsham r. Blackwood, 263. Henderson v. Williams, 3'j3. Plendriks r. Montag'u, 313. Henwood t\ Harrison, 257, 259. Hepbnrn-''. Lordan, 426, ITerinaun L:>ag r. Bean, 195. Heske v. Samuelson, 573. I-Iethorington v. N. E. Eail. Co., 70. Hewitt i:. Isham, 379, 381. Hickman r. Maisp-y, 347. Hill?'. Bigge. lit". r. New Elver Ci.., 42, 50, 594. Hillard v. Richardson, 80. Hinde v. Bandit, 621. Hiort r. Bott, 338, 355, 357, 359, 629. Hir.Ht r. West Riding Union Bank- ing Co., 302. Hou- r. Ward, 223. HoLlcn ;-'. Thompson, 335. Holfi r B.arlow, 412. Holford r. Bailey, 373, 377. 609. Holliday c. National Telephone C, 7"5, 519. Hollins V. Eowler, 10, 338, 339, 357, 358, 361, 657, 631. Holmes 1'. Mather, 29, 137, 146, 166, 170. ,.. N. E. Rail. Co., 511. V. Wilson, 387. Holsworthy Urban Council ( . H. Rural Council, 212. Honywood v, Honywood, 354. Hope /'. Evered, 224. Hopkins v. G. N. Rail. Co., 376. Home V. M. Rail. Co., 558, 559. Hor.sfall r. Thomas, 298. Hotohkys, Re, 353. Houlden i'. Smith, 117. Houldsworth v. City of Glasgow Bank, 95, 306. Hounsell v. Smyth, 521, 650. Howard i'. Shepherd, 548. Howe V. Finch, 573. Hubbuck St. Sons r. Wilkinson, Haywood & Click, 311. Huber v. Steiner, 209. Huckle i'. Money, 189. Hughes V. Macfie, 472. V. Percival, 521. Humphries v. Cousins, 489. Hurdman v. N. E. Rail. Co., 154, 489. Hurst r. Taylor, 516. Hutohins v. Hiitchins, 322. Huttley V. Simmons, 319. Hvams c. Webster, 74. Hyde /-. Graham, 378, 382. Hydraulic Eng-ineeiiag Co. ?'. McHaffie, 558. Hyman r. Nye, 514, 515. -i). Van den Bergh, 416. <••. Waite, 418. Ihbotson r. Peat, 335. lUidge ('. Go)dwin, 594. Ilott%;. Wilkes, 165. Inchbald r. Barrington, 413. ludermam- c. Dames, 508, 509, 51^. 648. Inderwick r, Snell, 125, 602. Junes V. Wylie, 218. Irwin (. Dearman, 234. Ivay ('. Hedges, 523. Jackson e. Adams, 245. c. Normandy Brick Co., 425. /'. Smithson, 4 98. Jacobs r. Seward, 367. James v. Campbell, 145. V. Jolly, 623. Jeflfries .-. G. W. Rail. Co., 370, 371. Jenks r. Viscount Clifden, 67, 424. Jenner ». A' Beckett, 261. Jennings r. RundaU, 5il. 535. Jenoure v. Delmege, 267, 276. Jina Ranchhod r. Johha GhelKi, 635. Job V. Potton, 353, 368. Joel V. Morison, 86. John V. Bacon, 608. Johnson v. Diprose, 344. f. Emerson, 318. f. Lancashire & Yorkshire Rail. Co., 365. -e. Lindsay, 83, 103. V. Pie, 56, 60. INDEX OF CASES, XXXI Johnson v. Stear, 364. Johnston i. Consumers' Gag Co. of Toronto, 28, 198. r. G. W. Rail. Co., 18-1. Johnstone r. Sutton, 121. Jolly i: Kine, 417. Jones )'. Bird, 441. r. Boyce, 479, 481. r. Chappell, 3;J2, 40.3, 431. !'. Festinion- Rail. Co., 501, 647. ^ V. Foley, 384. V. Goodav, 196. i'. Houirli, 360, 629. V. Joues, 421. V. Liverpool, Corporation of, 81. V. Powell, 411. V. Scullard, 81. Jordeson !'. Sutton, 134. Jordin v. Crump, 174. Joynt r. Cycle Trade Publishing Co., 258, 261. K. Kane <■. N. Central Rail. Co., 482. Karim Buksh v. Budha, 635. KS.shiram Krishna i\ Bhadu Bapuji, 617. Kearney e. Lloyd, 319. 322, 325. r. L. B. & S. C. Rail. Co., 518, 650. Keehle v. Hiokeringill, 335. Keen v. Henry, 84. V. Millwall Dock Co., 576. Keighly v. Bell, 122. Kelk V. Pearson, 416, 417, 425. Kellard r. Rooke, 578. Kelly V. Met. Rail. Co., 543, 561. r. Sherlock, 185, 191, 260. V. Tinliiio-, 260. Kemp V. Neville, 118. Kenyon r. Hart, 348. Kerrison r. Smith, 379. Kerry v. England, 505. Kettle V. Bromsall, 566. Kiddle v. Lovett, 575. Kamber v. Press Association, 272, 274. King V. London Improved Cab Co., 84. ti. Pollock, 502. Kirk V. Gregory, 173, 338, 350. V. Todd, 73. Kleinwort v. compte, 357 Knott r. Morgan, 312 Comptoir d'Es- Labouohere v. Wharncliffe, 125, 603. Lambert r. Bessey, 143. Lambtou v. Mellish, 415. L:uicashire "Waggon Co. t'. Fitz- hugh, 360. Lane v. Capsey, 421. V. Co.i;, 432, 512, 525. Lanfranchi r. Mackenzie, 417. Langridg-e i\ Levy, 2U5, 506, 547, 0/7. Langhton r. Bi.sliop of Sodor and Man, 270, 276. Law r. Llewelljn, 117, 264. Lax r. Corporation of Darling-ton, 171, 480, 513, 514, 644. Lazarus /■. Artistic Photoorraphio Co., 417. Lea i\ Charrington, 224. Leake r. Loveday, 370. Leame r. Bray, 145. Lee r. RUey, 46, 497, 594. Leeson v. General Medical Council 124. Leggatt r. G. N. RaU. Co., 67. Lehigh Zinc and Iron Co. i\ Bam- ford, 288. Le Lievre r. Gould, 288, 293. Le Mason r. Dixon, 569. Lemmou e. Webb, 349, 421. Lempriere r. Linge, 57. Lewis r. Levy, 272. Ley man u. Latim<-r, 216, 263. Liggins ti. Inge, 331. Lightly V. Clouston, 540. Limpus V. London General Omni- bus Co., 93. Lingwood v. Stowmarket Co., 425. Lister v. Ferryman, 225, 226. Little i: Hackett, 81, 460, 467, 469. Llandudno Urban D. C. v. Woods, 426. Lock !'. Ashton, 225. L. & B. Rail. Co. i. Truman, 134, 135, 605. London, Mayor of v. Cox, 120. L. & N. W. Rail. Co. v. Bradley, 130. Longmeid v. Holiday, 506, 547. XXXll INDEX OF CASES. Lonsdale, Earl of i: Nelson, 406, 421, 4'23, 636. Lord c. Price, 356. Losee c. Buchanan, 501. r. Clute, 515. Lovell V. Howell, 100. Low r. Bouverie, 288, 294, 297. Lowe r. Fox, 58. Lows ('. Telford, 384, 385. Lowther ». Earl of Radnor, 118. Luby V. Wodehouse, 114. Lumley v. Gye, 230, 236, 328, 329, 549. Luscombe v. G. W. Rail. Co., 391. Lyde». Barnard, 302, 303. Lyell V. Ganga Dai, 140, 503, 647. Lyles V. Soutbend-on-Sea Corpora- tion, 212. Lynch i>. Knight, 243, 2i4, 331. r. Nurdin, 44, 45, 472, 594. Lyon e). Fishmongers' Co., 405,41), 634. Lyons v. Wilkins, 236. M. McCord V. Cammell, 574. M'CuUy r. Clark, 448, 640. Macdougall r. Knight, 273. McDowall V. G. W. Rail. Co., 45, 46, 472. Macfadzen v. Olivant, 230. McGifEen ». Palmer's Shipbuilding Co., 573. Machado p. Fontes, 206, 208. Mackay ;. Commercial Bank of New Brunswick, 95, 306. M'Kenzie v. McLeod, 598. McLaughlin r. Pryor, 81. MoMahon v. Field, 559. MoManus v. Cooke, 381. M'Manus v. Crickett, 93. McPherson v. Daniels, 250, 256. McQnirer. "Western Morning News Co., 257. Maddison v. Alderson, 98. Madras Rail. Co. p. Zemindar of Car- vatonageram, 493, 494, 645, 647. Malachy i'. Soper, 307. Malone v. T,askey, 430, 512. Manchester Bonded Warehonse Co. V. Carr, 353. Mayor of v. Williams, 60, 245. Manchester South Junction Rail. Co. v. FuUarton, 53. Mangan v. Atterton, 474, 594. Manley v. Field, 232. Manzoni v. Douglas, 445. Marais, D. P., Ex parte, 123. Marks v. Frogley, 122. ». Samuel, 241. Marney r. Scott, 509, 513. Marsh /•. Billings, 310. V. Joseph, 97. r. Keating, 202, 204. Marshall «'. York, Newcastle, and Berwick Rail. Co., 539, 543, 645. Marshalsea, The, 120. Martin v. G. I. P. Rail. Co., 544. V. Payne, 233. ■ V. Price, 426. Martinez v. Gerber, 235. Mary's (Robert) Case, 229. Marzetti v. Williams, 535. Masper «). Brown, 221. Mather r. Rillston, 148. Maund v. Monmouthshire Canal Co., 60. May V. Burdett, 498. Meade's and Belt's Case, 218. Hears v. L. & S. W. RaU. Co., 356. Meghraj v. Zakir Hussain, 600. Mellor V. Spateman, 414. v. Watkins, 380, 633. Membery r. G. W. RaU. Co., 166, 167. Mennie v. Blake, 351, 374. Merest r. Harvey, 190. Merivale r. Carson, 257, 258, 261, 620. Merryweather r. Nixan, 200. Mersey Docks Trustees v. Gibbs, 61, 97, 130, 591. Metropolitan Association v. Peteh, 431. Metropolitan Asylum District v. Hill, 133, 134. Metropolitan Bank v. Pooley, 318, 335. Metrop. Rail. Co. v. Jackson, 47, 448, 449. r. Wright, 184. Meux V. Cobley, 352. V. G. E. Rail. Co., 544. Midland Ins. Co. c. Smith, 203. Mighell i\ Sultan of Johore, 116. Miles V. Hutchings, 175. Millen v. Fawdry, 498. Miller v. David, 247. V. Dell, 211, 359. V. Hancock, 512, 524. Millington v. Fox, 313. INDEX OF CASES. xxxm Mills V. Armstrong, 460, 4C9, 472, 4S2, 642, 643. i'. Graham, 566. lIill^Tal•d r. M. Rail. Co., 574. Milwaukee, &c. R. R. Co. v. Arms, 190, 442. and St. Paul R. R. Co. r. Kellogg', 454. Mitchell 1'. CrassweUer, 86, 88. V. Rochester Rail. Co., 53. Moffatt i>. Bateman, 513, 524, 538, 651. Mosrul Steamship Co. v. McGregor, Low & Co., 23, 24, 152, 195, 319, 323, 326, 336, 337. MoQaghan v. Horn, 65. Montgomery r. Thompson, 159, 312. iloorcock, The, 513. Moore i\ Hall, 417. r. Metrop. Rail. Co., 91. V. Rawaon, 416, 419. r. Robinson, 343. Morg'an i. London Gen. Omnihus Co., 578. V. Vale of Neath Rail. Co., 101. Morris r. Piatt, 141. Moses f. Maoferlan, 540. Mostyn i\ Fabrigas, 114. Mott r. Shoolbred, 431, 638. Mouse's Case, 171. Mowbray v. Merry weather, 573. M. Moxham, The, 205. Moyle «'. Jenkins, .576. Muhammad Ismail Khan v. Mu- hammad Tahir, 617. Muhammad Yusuf v. P. & O. Co., 598. Mullen V. St. John, 618. Mulligan r. Cole, 254. Mulliner v. Florence, 365. Mumford v. Oxford, &o. Rail. Co., 431. Munday v. Thames Ironworks Co., 577. Munster v. Lamb, 264, 621. Murray v. Currie, 80, 82. V. Fitzgerald, 228, 231, 233. V. Hall, 368. Muagrave v. Chung Teeong Toy, 115. P. T. N. Nash V. Lucas, 392. National Plate Glass Insurance Co. V. Prudential Assurance Co., 418. National Telephone Co. v. Baker, 489. Neate r. Denman, 124. Nelson v. Livei-pool Brewery Co., 432, 638. Nevill V. Fine Art, &c. Insurance Co., 254, 267, 623. Newcomb v. Boston Protective Department, 179. New England R. R. v. Courcy, 106. Newman v. PhiUipsburg Horse Cai- Co., 465. Newson r. Pender, 418. Newton v. Harlaud, 386. Nichols ji. Marsland, 137, 492, 493, 645. Nilmadhab Mookerjee v. Dookee- ram Khottah, 617. Nitro-Glyoerine Case, 139, 147, 647. N. O. & N. E. R. R. Co. v. Jopes, 174. Noel V. Redruth Foundry Co., 570. Norris v. Baker, 421. North Eastern Rail. Co. v. Wanless, 448, 477. Northampton's, Earl of. Case, 256. Netting Hill, The, 558. Nugent V. Smith, 492, 532. Nuttall r. Braoewell, 382. Nyberg v. Handelaar, 369. 0. Oakey v. Dalton, 66. Ogston i'. Aberdeen District Tram- ways Co., 415. Oliver V. Local Board of Horsham, 198. Ormerod v. Todmorden Mill Co., 382. Osborn v. Gillett, 64, 65. Osborne v. Chocqueel, 498. V. Jackson, 574, 578. Oxley V. Watts, 396. XXXIV INDEX OF CASES. P. Paley v. Garnett, 573. Palmer ». Thorpe, 246. II. Wick aud Pulteneytown Steam Shipping Co., 200. Pappa r. Rase, 119. Parankusam Narasaya Pantula v, Stuart, 612. Pardo V. Bingham, 210. Parker v. First Avenue Hotel Co., 418. ■ V. London County Council, 212. Parkes v. Prescott, 253. Parkins v. Scott, 243, 255. Parlement Beige, The, 116. Parnell v. Walter, 278. Parry v. Smith, 604. Partridge v. General Council, &c., 124, 125. Parvals v. Mannar, 614. Pasley v. Freeman, 284, 302. Pasmore v. Oswaldtwistle Urban Council, 28. Pater v. Baker, 308. Patrick r. Colerick, 389, 633. Paul V. Sammerhayes, 394. Pearce v. Lansdowne, 579. Pearson and Son v. Dublin Cor- poration, 300, 305. Pearson v. Lemaitre, 277. Pease r. Gloahec, 555. Peek V. Derry, 196, 287, 292. ». Gurney, 73, 196, 283, 297, 626. Pendarves v. Monro, 419. Pendlebury v. Greenhalgh, 81. Pennington i'. BrinsoD Hall Coal Co., 430. Penny v. Wimbledon Urban Coun- ca, 75, 519. Peuruddock's Case, 406, 424, 433, 636. Perry v. Clissold, 370. r. Fitzhowe, 420, 421. Perryman v. Lister, 226. Petrel, The, 99. Phillips V. Barnet, 59. ^, Eyre, 114, 205, 207. . . ». Homfray, 73, 568. -v. L. & S. W. RaU. Co., 184, 189. Pickard v. Smith, 508. Pickering v. James, 126. V. Radd, 348. Piggot V. E. C. Rail. Co., 494. Pilcher v. Rawlins, 340. Pilgrim v. Southampton, &o. Co., 400. Pinohon's Case, 66, 568. Pinet & Cie. v.Maisoa Louis Pinet, 159, 312. Pippin V. Sheppard, 530. Pittard*. Oliver, 274, 275. Pitumba Doss r. Dwarka Pershad, 617. Playford v. U. K. Electric Tele- graph Co., 551. Plimraer f. Mayor of Wellington, 381. Plymouth Mutual, &c. Society v. Traders' Pnblishing Association, 258, 278. Polhill V. Walter, 283, 296, 625, 626. PoUey V. Fordham, 212. Ponnusamy Tevar v. Collector of Madura, 592. Pontifex v. Bignold, 187. Pouting V. Noakes, 490. Potter V. Brown, 209. -v. Faulkner, 104. Potts ». Smith, 416. Poulton I.. L. & S W. Rail. Co., 92. Pounder v. N. E. Rail. Co., 451. Powell !'. Birmingham Vinegar Brewery Co., 312. V. Deveney, 45. V. Fall, 501. V. Layton, 532. Powys V. Blagrave, 353. Pozzi V. Shipton, 533, 534, 536. Praed ;'. Graham, 184, 277.; Pralhad Mahimdra v. A. C. Watt, 600. Presland r. Bingham, 419. Pretty v. Bickmore, 432, 639. Priestley v. Fowler, 98. Primrose v. Western Union Tele- graph Co , 655. Proctor r. Webster, 270. Pugh V. L. B. & S. C. Rail. Co., 63. Pulling V. G. E Rail. Co., 67. Pallman v. Hill & Co., 250. Purcell V. Sowler, 256, 260, 620. Pursell V. Home, 215. Pym V. G. N. Rail. Co., 69, 71. Q. Quarman v. Burnett, 81, 608. Quartz Hill, &c. Co. v. Beall, 194, 196. INDEX OF CASES. 5XXV Quartz Hill, &c. Co. r. Eyre, 317, 318. Qiiinni-. Leathern, '24, 25, loO, 156, 319, 320, 324, 325, 326, 329, 335. E. R., Se, 425. Radley r. L. & N. W. Rail. Co., 460, 461, 467, 468. P^affey )■. Henderson, 381. R. Ragunida Rau r. Natliamuni ThathamayyaTig'ar, 601. Railroad Co. r. Scout, 46. Raj Chunder Roy v. Shama Soon- dari Debi, 318, 62S. Raj Koomar Sing-h t\ Sahebzada Roy, 639. Rajuiohun Bose r. E. I. Rail. Co., 134, 6u4. Raleigh v. Goschen, 114. Ramsden ('. Dyson, 382. Randall J). Newson, 515. Rani ShamshoondiiDeba r. Dubhu Mundul, 596. Rapier r. London Tramways Co., 133. Rashdall v. Ford, 286. Ratc'liffie v. Evans, 243, 249, 308, 309. Raymond v. Fitch, 660. Rayner v. Mitchell, 88. Rea V. Sheward, 392. Read v. Coker, 217. V. Edwards, 497, 498. V. Friendly Soo. of Operative Stonemasons, 25, 329. •». G. E. Rail. Co., 71. Redhead v. Midland Rail. Co., 514. Reddaway «!. Banham, 153, 312. Redgrave v. Hurd, 291, 300, 627. Reece v. Taylor, 219. Reed v. Nutt, 220. Reedie v. L. & N. W. R. Co., 80. Reese River Silver Mining Co. v. Smith, 292. R. r. Burdett, 617. — V. City of London Court, Judge of, 577. — V. Coney, 161, 162. — V. Cotesworth, 215. — V. Duckworth, 216. — V. Essex, Commissioners of Sewers for, 489, 493. — r. Harvey, 34. — V. Jackson, 127. I R. V. James, 216. — V. Latimer, 33, 115. — V. Lesley, 208. — V. Lewis, 161. — V. Lincoln's Inn, Benchers of, 124. c. Muiislow, 2,')0. — r. Orton, 163. — V. Pease, 131, 134. — V. Riley, 388. — V. St. George, 216, 611. — «'. Sankara, 624. — r. Smith, 33. — i: Train, 402. — V. Williams, 61. Reinhardt r. Mentasti, 411. Reynell »■. Sprye, 291. Reynolds v. Edwards, 398. r. Urban District Coun- cil of Presteigu, 422. Rice r. Albee, 323. /■. Corlidge, 2i3.'». i: Mavlej, 309. V. Shute, 569. Rich )'. Basterfield, 432, 639. V. Pilkington, 569. Ricket f. Met. Rail. Cq., 404, 405, 634. Riding v. Smith, 243, 249. Rist V. Faux, 233. Robbins v. Springfield Street Rail. Co., 458. Robert Marys' Case, 229. Roberts !■. Roberts, 244. r. Rose, 423. ■ ». "Wyatt, 373. Robinson r. Cone, 466. V. Kilvert, 411, 412. Robson V. N. E. Rail. Co., 171, 463, 644. Rochester RaU Co. v. Stout, 46, 458. Rogers v. Lambert, 364. r. Rajendro Dutt, 156, 157, 606. r. Spence, 191, 371. Romney Marsh, Bailiffs of i. Trinity House, 44. Roope r. D'Avigdor, 203. Roscoe )'. Boden, 390. Rose V. Miles, 404, 634. V. N. E. Rail. Co., 463, 480. Rosenberg v. Cook, 370. Rosewell v. Prior, 433, 638. Ross V. Rugge-Prioe, 197. Rourke v. "White Moss Colliery Co., 83. c2 SXXVl INDEX OF CASES. Rowley ». L. & N. W. Kail. Co., 70. Koyal Aquarium Society v. Par- kinson, 261, 276. Ruben V. Great Fingall Consoli- dated, 95. Eushmer r. Polsue, 409. Rust I'. Victoriii Graving' Dock Co., 189. T! vder v. Wombwell, 450. I!, -lands v. Fletcher, 12, 18, 145, 'l47, 166, 485, 488, 489, 490, 492, 493, 495, 496, 601, 608, 645. R. V. S. (16 Cox, 566), 203. Sadgrove v. Hole, 275. Sadler v. G. W. Rail. Co., 194, 416. ( . Henlock, 79. Sadler r. Staffordshire Tramways Co., 501. St. Asaph's, Dean of, Case, 142. St. Helen's. Smelting Co. v. Tip- ping, 409, 410, 412, 427, 636. St. Pancras, Vestry of r. Batter- bury, 198. Salaman r. Sec. of State, &o., 112. Salomons c. Knight, 195, 278. Salvin v. North Brancepeth Coal Co., 409, 411, 430, 635. Sanders I'. Stuart, 565. T. Teape, 498. Sanderson v. Collins, 87, 366. Saner v. Bilton, 353. Satku Valad Kadir Sausare v. Ibr&him Aga Valad MirzS, Agi, 635. Savile or SavUl c. Roberts, 318. Saxby r. Manchester and Sheffield Rail. Co., 433. Sayers ». Collier, 425. Scott «'. Donald, 189. V. London Dock Co., 447, 456, 518, 611. V. Pape, 417. ■ V. Seymour, 206. V. Shepherd, 34, 50, 144, 176, 594, 610. -!'. Stansfield, 117, 118, 260, 600. Scott's Trustees v. Moss, 38. Scottish Co-op. Society p. Glasgow Fishers' Association, 325. Seaman v. Netherclift, 264, 621. Searles v. Scarlett, 273. Secretary of State in Council of India r. Kamachee Boye Sahaba, 112. Selby p. Nettlefold, 394. Semayne's Case, 389. Seroka r. Kattenburg, 59. Seshaiyangar v. R. Ragunatha. Row, 601. Seton V. Lafone, 37, 367. Seward v. The Vera Cruz, 68. Sewell V. National Telephone Co., 224. Seymour v. Greenwood, 91, 93. Shaflers v. Gen. Steam iSTaviga- tion Co., 678. Shama Churn Bose v. Bhola Nath Dutt, 595. Sharp 4>. Powell, 48, 50, 51, 694. Shawr. Hertfordshire C. C, 212. V. Port Philip Gold Mining- Co., 95. Sheffield & Lincolnshire Rail. Co., 636. Shelter r. City of London Electric Lighting Co.. 425, 430. Shepheard v. Whitaker, 249. Sheridan ,•. New Quay Co., 363, 631. Sherrington's Case, 668. Shiells r. Blaekburne, 436, 530. Shotts Iron Co. v. Ing'lis, 412. Simkin <■. L. & N. W. Rail. Co., 53. Simpson v. Savage, 431. Siner i: N. E. Rail. Co., 463. Singer Manufacturing Co. v. Loog, 312. J'. Wilson, 312. Singleton r. E. C. Rail. Co., 474. Six Carpenters' Case, The, 395. 396. Skelton r. L. & N. W. Rail. Co., 457. Skinner r. L. B. & S. C. Rail. Co., 446. & Co. ,: Shew & Co., 23, 308. Skipp r. E. C. RaO. Co., 103. Slade's Case, 630. Slattery's Case, 452, 477. Slim i\ Croucher, 196, 294. Smart v. Jones, 382. Smith t: Baker, 147, 167, 168, 169, 171, 515, 674, 575. V. Baxter, 418. r. Birmingham Gas Co., 94. 1 . Boston Gas Co., 503. INDEX OP CASES. xxxvu Sraith V. Brown, 68. V. BrowDlow, Earl, -120. V. Chadwick, 283, 292, 298, 301. V. Cook, 497. r. Giddy, 349, 406. V. Green, 36, 559. f. London and St. Katharine Docks Co., 511, 650. V. L. & S. W. Rail. Co., 41, 437, 454, 494, 641. I'. Milles, 345. r. Northleach Rural District Council, 212. V. S. E. Rail. Co., 451. V. Sydney, 225. Snark, The, 513, 519. Sneesby v. L. & T. Rail. Co., 37. Snowden v. Baynes, 574. Soltau r. De Held, 412, 636. Somerville v. Hawkins, 270, 623. Southcote r. Stanley, 523. South Hetton Coal Co. v. N. E. News Association, 249. South "VA'ales Miners' Federation r. Glamorgan Coal Co., 250, 329. Spade i\ Lynn and Boston R. R., 53. Speight V. Oliviera, 232, 235. SpiU V. Maule, 270, 276. Staight V. Burn, 419. Stanley v. Powell, 147. Stanton c. Scrutton, 573. Starkey v. Bank of England, 540. Steele v. Bran nan, 273. Stephens t>. Elwall, 358, 363. 11. Myers, 217. Stetson V. Faxon, 405, 634. Stevens v. Jeaeocke, 198. (. Sampson, 274, 621. Stevenson v. Newnham, 158. V. "Watson, 119. Steward v. Young, 309. Stewart v. Wyoming Ranche Co., 286. Stikeman v. Dawson, 66. Stone !'. Hyde, 577, 578. Storey v. Ashton, 88, 697. Street v. Union Bank, 169. Stuart V. Bell, 269. Sturges V. Bridgman, 409, 410, 637. Sullivan v. Spencer, 114. V. Waters, 508, 522. Sutton ('. Town of Wauwatosa, 179. Swann v. Phillips, 303. Sweeney v. Coote, 323, 325. Sweeney D.Old Colony and Newport R. R. Co., 517. Swift v. Jewsbury, 302. Swinfen v. Bacon, 398. Swire ;'. Francis, 95, 306. Sykes r. Sykes, 312. T. TafB Vale Rail. v. Amalgamated Soo. of Railway Servants, 96. Tandy r. Westmoreland, 114. Tapling V. Jones, 418, 419. Tarini Charan Bose v. Debnrayan Mistri, 631. Tarleton r. MoGawley, 237. Tarry v. Ashton, 519, 650. Tasmania, The, 477. Tattan r. G. W. Rail. Co., 533. Taylor v. Ashton, 287, 292. V. Greenhalgh ,81. V. M. S. & L. Rail. Co., 536, 538, 643, 545. r. Newman, 174. Terry v. Hutchinson, 233, 234. Tharsis Sulphur Co. i'. Loftus, 119. Thomas v. Bradbury, Agnew & Co., 257, 258. r. Quartermaine, 103, IGH, 167, 169, 516, 573, 675, 576. . V. Sorrell, 378. V. Williams, 196. V. Winchester, 504, 505, 506, 547, 648. Thompson r. Brighton, Mayor of, 198. r. Gibson, 431. V. London County Coun- cil, 194. V. Ross, 233. Thomson v. Clanmorris, Lord, 211. Thorley's Cattle Food Co. v. Mas- sam, 196, 309. Thorogood v. Bryan, 469, 470. Thorpe v. Brumfitt, 416. Thrussell?;. Handyside, 168, 171. Tillett v. Ward, 497, 695. Timothy v. Simpson, 223. Tipping V. St. Helen's Smelting Co., 410. Tod-Heatly v. Benham, 408. Todd V. Flight, 432, 638. ToUit r. Sherstone, 648. xxxvm INDEX OF CASES. Tompson v. Dashwood, 253. Tozeland r. West Ham Union, 104. Tozer v. Child, 126, 334. TraiUj;. Baring, 291. Tuberville v. Savage, 217. V. Stampe, 79, 500, 647. Tucker v. Linger, 355. Tuff V. Warman, 460, 465, 476, 642. TuUidge r. Wade, 191, 231. Tunney v. M. Rail. Co., 100, 698. Tunnicliffe v. West Leigh Colliery, 187. Turner v. Amhler, 314. V. Green, 292. V. Eingwood Highway Board, 403, 407. ■ V. S. P. & D. Rail. Co., 598. V. StaUibrass, 534, 536. Twomley v. Central Park E. E. Co., 481. Twycross v. Grant, 64, 66. Tyrringham's Case, 391. UdeU V. Atherton, 282. Underwood v. Hewson, 144 Union Credit Bank v. Mersey Docks and Harbour Co., 357, 360, 367. Union Pacific Eail. r. McDonald, 45. Union S. S. Co. v. Claridge, 82. Usill r. Hales, 272. V. Vallance r. Falle, 198. Vandenburgh v. Truax, 37, 594. Vaspor ». Edwards, 391, 397. Vaughan». Menlove, 439. . V. Taff Vale Eail. Co., 132, 494, 601, 647. Vegelahu v. Guntner, 149, 324. Vernon v. Keys, 285. Vicars v. WUcocks, 50, 242, 243, 331. Victorian Rail. Commissioners v. Coultas, 51. Vinayab DisS.kar v. BS.i Itoh&, 601. Viranna v. Nagayyah, 595. Vithoba Malhari v. Corfield, 601. Vizetelly v. Mudie's Select Library, Ltd., 262. W. Waite ». N. E. EaU. Co., 473, 643- Wakelin v. L. & S. W. EaU. Co., 443,445, 452, 467,641. Wakeman v. Eobinson, 146. Waldock V. Winfield, 82. Walker r. Brewster, 413. ■('. Cronin, 329. 1). Needham, 666. Wallisw. Harrison, 378. Walsh V. Whiteley, 169, 573. Walter v. Selfe, 408, 409, 635, 636. Walters r. Green, 194. Wandsworth Board of Works v. United Telephone Co., 348. Wanless v. N. E. Eail. Co., 449, 461, 640, 641, 644. Ward r. Hobbs, 28. V. Lloyd, 204. Wariow V. Harrison, 289. Warner v. Riddiford, 221. Warr & Co. v. L. C. C, 378. Warren v. Brown, 411, 417. Washington E. R. Co. v. McDade, 482. Wason V. Walter, 272, 621. Watkin?,'. Hall, 256, 619. Watt V. Watt, 184. Weare, Re, 248. Weaver r. Ward, 143, 144. Webb V. Beavan, 245. V. Bird, 416. Weblin v. Ballard, 573, 576. Wednesbury Corporation v. Lodge Holes Colliery Co., 189. Weems v. Mathieson, 103. Weir- V. Bell, 282. Weld-Blundell ?;. Wolseley, 364. Weldon v. De Bathe, 69. V. Neal, 213. V. Winslow, 58. Welfare v. L. & B. EaU. Co., 520. Wellock r. Constantine, 203. Wells V. Abrahams, 203, 204. Wenman v. Ash, 253. Wennhak r. Morgan, 192, 253. West Ham Central Charity Board ». E. London Waterworks Co., 352. INDEX OF CASES. XXXIX West V. Nibbs, 390, 396. V. Smallwood, '224. AVestera Bank of Scotland v. Addie, •2S7, 306. West London Commercial Bank v. Kitson, 285. Whalley v. L. & Y. Rail. Co., 177. Whatman !■. Pearson, 87, 597. Wheeler r. Mason Manufacturing Co., 107. Whitboume i: Williams, 233. White V. France, 611. V. Jameson, 432, 638. f. Lang-, 179. t: Mellin, 310. i'. Spettigue, 202. & Co. -v. Credit Reform As- sociation, 27S. Whiteohurch, Ltd. v. Cavauagh, 98. Whiteley r. Pepper, 520. Whitham i: Kershaw, 189, 192, 196, 651. Whittaker, Ex parte, 284. V. Scarborough Post Newspaper Co., 278. Whitwham » Westminster Brymbo Coal and Coke Co., 189. Wicks i>. Eentham, 314. Wiggett V. Fox, 103. Wiesell V. School for Indigent BUnd, 196. Wilbraham v. Snow, 355. Wild «'. Waygood, 82, 574. Wilkes r. Hnngerford Market Co., 404, 634. Wilkins t\ Day, 405. Wilkinson v. Dounton, 53. V. Haygarth, 368. Willetts V. Watt, 573. Williams v. Birmingham Battery and Metal Co., 103, 168. V. East India Co., 647. • i: G. W. RaU. Co., 43, 448. Williams v. Jones, 88, 89. v. Smith, 273. Williamson i'. Allison, 284, 290, 532. V. Ereer, 251, 275, 624. Willis V. Maclachlan, 117. Wilson r. Barker, 374. ('. McLaughlin, 359. «. MeiTy, 100, 102. r. Newberry, 491, 493. I'. Tumman, 77. V. Waddell, 489. Winkfield, The, 370. Winsmore r. Greenbank, 231. Winter i'. Brockwell, 380. Winterbottom v. Derby, 404, 635. V. Wright, 515, 646, 547. Wood V. Durham, 'i7S. u. Leadbitter, 378, 379, 380, 381, 3h2. i\ Waud, 409, 638. V. Woad, 126. Woodhouse r. Walker, 67, 351. Woodley v. Metr. Dist. Rail. Co., 166. Woodward p. Walton, 231. Worth V. Gilling, 499. Wren v. WeM, 308. Wright V. Leonard, 60. V. Ramscot, 349. Y. Yarborough v. Banlc of England, 60. Yarmouth v. Erauce, 167, 168, 515, 573, 575, 579. Yates V. Jack, 417. Young V. Hoffmann Manufacturing Co., 100, 102, 103. ( xl ) YEAR BOOKS CITED. PAGE •22 Asa. pi. 48 391 100,-67 60 . 102,-76 237 27 134,-11 218 30 177,-19 240 Edw. 11. 381 220 7 Edw. III. 6.5,-67 151 48 20,— 8 372 2 Hen. IV. 18,— 5 499 11 1-2,— 2 235 47,-21 151,605 75,-16 396 19 Hen. VI. 33,-68 497 45^ — 94 229,372 66,-10 63 21 26,— 9 237 22 14,-23 152 31 235 324 236 33 27,-12 351,396 36 20*,- 8 218 37 37,-26 394 39 7,-12 380 6 Edw. IV. 7,-18 143 8,-18 394 7 24,-31 237 S 23,-41 171 9 35,-10 388,393 12 13,— 9 374 14 7,-13 238 15 1,— 2 60 17 1 S6 17 3,— 2 218 20 11,-10 497 21 764,- 9 395 7 Hen. VII. 22,— 3 363 9 7, — 4 236 15 10,-18 422 16 2,— 7 374 21 27,— 5 143,171,394 28,— 5 142,172 . 39,-50 173 . 85S 394 86i,— 19 394 27 39,-49 374 12 Hen.VIII. 2 172 27 27,-10 403,405,634 THE LAW OF TORTS. Book I.— GENEEAIi PART. CHAPTER I. THE NATUEE OP TORT IN GENERAL. The law of Torts (a), or civil wrongs, is a collective Of tort in name for the rules governing many species of liability futy'^uot whicli, althougli their subject-matter is wide and varied, i^^f^uJ'"^' have certain broad features in common, are enforced by harm, the same kind of legal process, and are subject to similar exceptions. All members of a civilized commonwealth are under a general duty towards their neighbours to do them no hurt without lawful cause or excuse. The precise extent of the duty, as well as the nature and extent of the recognised exceptions, varies according to the nature of the case. But this does not affect the generality of the principle, any more than the infinite variety of matters about which contracts may be made, and the considerable though finite number of different known kinds of contracts, with special rules as to the effect and fulfilment of each of them, affect the truth of the general proposition that we must perform our contracts. In fact the principle was enunciated long ago (a) It isa mereaooidenttliiit^orit, language. In Spenser's Faerie as a synonym for wrong, has not Qiieene it is freely used, become part of our current literary P. — T. B -^ THE NATURE OF TORT IN GENERAL. by Ulpian in his familiar statement of the command- ments of the law, preserved in the introductory chapter of Justinian's Institutes: "Juris praecepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere." Without endeaYOuring to force on Ulpian or his Stoic masters a more exact meaning than they had, we may find in his words a broad summary of a lawful man's duties which is founded on the permanent elements in human affau's, and is therefore still true and useful. Soiicde Ttcere is to lead a life free from crime and scandal. Suum cuique tribuere is, literally, to give every man his due ; that is, in fact, not to encroach or make unfounded claims on what belongs to others, and to perform whatever one has legally bound oneself to perform. Alterwn non laedere is to forbear fz'om inflicting unlawful harm in general. As the English Church catechism has adapted TJlpian's words, it belongs to my duty towards my neighbour " To hurt nobody by word nor deed : To be true and just in all my dealing" {h). But neither the Latin nor the English phrase is clear enough to bring out the real fundamental distinctions implied in the fact that we recognise Torts as forming an individual branch of the law. We must briefly specify these. The duty The duty, whatever else it may be, is a duty towards and'fixed °^^^ neighbour. Breach of it will entitle some one to bylaw: bring an action for redress. An offence punishable by tionfrom the State may not create any such private right. If it contract , i •; • • -i t ,i . . . „ and does not, it IS no civil wrong ; and this is in fact the case lelations. '^^^ ^""^^ °^ ^'^^ gravest public offences. Also in cases of tort the duty that has been violated is general. It is owed either to all our fellow-subjects, or to some consider- (5) Goodricli, Bishop of Ely, by was a learned civilian, and no other whom this was probably framed, origin has been suggested. DISTINCTION FROM BREACH OF CONTRACT. o able class of them, and it is fixed by the law and the law alone. Here lies the difference between civil wrongs, properly so called, and breaches of contract. It is not right to break one's contract, though in cases of honest error due to the parties' intentions not being clearly expressed or otherwise, or of innocent disability pre- venting performance, there may be legal liability without any moral blame. But breach of contract, wilful or not, is the breach of duties which the parties have fixed for themselves. Duties under a contract may have to be interpreted or supplemented by artificial rules of law, but they cannot be superseded while there is any con- tract in being. The duties broken by the commission of civil wrongs are fixed by law, and independent of the will of the parties ; and this is so even where they arise out of circumstances in which the responsible party's own act has placed him (c). Again, these general duties are different in other important respects from those which arise out of the domestic relations, although they agree with them in not depending on the will of the parties. For the mutual duties of husband and wife, parents and children, and the like, are strictly personal, and moreover only part of them can be or is dealt with at all by positive rules of law. Down to modern times they were regarded in this country as not belonging to the ordinary jurisdiction of temporal courts ; marital and parental authority were incidentally recognised, but matrimony and matrimonial causes were " spiritual matters." We shall not find laid down in our authorities any History such broad principles as are above indicated ; nor is there ^f English classifica- (c) The class of cases in which the here. It is coneidered in the last twn. substance of the duty arises out of chapter of this book, contract is too peculiar to detain us b2 THE NATURE OF TORT IN GENERAL. anything surprising in this. The ancient common law knew nothing of large classifications founded on the sub- stantive nature of what was in issue. There were forms of action with their appropriate writs and process, and authorities and traditions whence it was known, or in theory was capable of being known, whether any given set of facts would fit into any and which of these forms. In early times it was the existence of a remedy in the King's Court, not the failure to provide a remedy for an apparent wrong, that was exceptional. No doubt the forms of action fell, in a manner, into natural classes or groups. But no attempt was made to discover or apply any general principle of arrangement. In modern times, that is to say, since the Restoration, we find a certain rough classification tending to prevail {d). It is assumed, rather than distinctly asserted or established, that actions maintainable in a court of common law must be either actions of contract or actions of tort. This division is exclusive of the real actions for the recovery of land, already becoming obsolete in the seventeenth century, and finally abolished by the Common Law Procedure Act, with which we need not concern ourselves : in the old technical terms, it is, or was, a division of personal actions only. Thus torts are distinguished from one important class of causes of action ; and the distinction is practical and reasonable, for the increased importance of contract in modern times has made it possible to set questions arising out of contracts against those not arising out of contracts with a fair appearance •of equality. Torts, on the other hand, are distinguished in the modern law from criminal offences. In the laediseval period the procedure whereby redress was {d) Appendix A. LIMITS OF TERMINOLOGY. obtained for many of the injuries now classified as torts bore plain traces of a criminal or quasi- criminal cbaracter, the defendant against whom judgment passed being liable not only to compensate the plaintiff, but to pay a fine to the king. Public and private law were, in truth, but imperfectly distinguished. In the modern law, however, it is settled that a tort, as such, is not a criminal oifence. There are various acts which may give rise to a civil action of tort and to a criminal prosecution, or to the one or the other at the injured party's option ; but the civil suit and the criminal prosecution belong to different jurisdictions, and are guided by different mles of procedure. Torts belong to the subject-matter of Common Pleas as distinguished from Pleas of the Crown. Again, the term and its usage are derived wholly from the Superior Courts of West- minster as they existed before the Judicature Acts. Therefore the law of Torts is necessarily confined by the limits within which those courts exercised their juris- diction. Divers and weighty affairs of mankind have' been dealt with by other courts in their own fashion of procedure and with their own terminology. These lie wholly outside the common law forms of action and all classifications founded upon them. According to the common understanding of words, breach of trust is a wrong, adultery is a wrong, refusal to pay a just com- pensation for saving a vessel in distress is a wrong. An order may be made compelling restitution from the defaulting trustee ; a decree of judicial separation may be pronounced against the unfaithful wife or husband ; and payment of reasonable salvage may be enforced against the ship-owner. But that which is remedied in each case is not a tort. The administration of trusts belongs to, the law formerly peculiar to the Chancellor's b THE NATURE OF TORT IN GENERAL. Court ; the settlement of matrimonial causes between husband and wife to the law formerly peculiar to the King's Ecclesiastical Courts; and the adjustment of salvage claims to the law formerly peculiar to the Admiral's Court. These things being unknown to the old common law, there could be no question of tort in the technical sense. It is to be observed, however, that in every such case there is a real distinction from the torts known to the Common Law. The law of trusts is concerned with duties created by the will of the parties, and the law of husband and wife, as we have said, with a strictly personal relation. The law of salvage belongs by its character to the depart- ment of what is now called quasi-contract, where duties analogous to those of a promisor are imposed, for reasons of convenience and equity, on a person who has not made any promise. The The general principle that one must not do unlawful torts in harm to one's neighbour will of course not tell us in layf detail what harm is unlawful. It may now be useful, accordingly, to examine what are the leading heads of the English law of torts as commonly received. The civil wrongs for which remedies are provided by the common law of England, or by statutes creating new rights of action under the same jurisdiction, are capable of a threefold division according to their scope and effects. There are -wrongs affecting a man in the safety and freedom of his own person, in honour and reputa- tion (which, as men esteem of things near and dear to them, come next after the person, if after it at all), or in his estate, condition, and convenience of life generally : the word estate being here understood in its widest sense, as when we speak of those who are " afflicted or CLASSIFICATION OF TOETS. " distressed in mind, body, or estate." There are other wrongs which affect specific rights of possession and property, or rights in the natm-e of property. There are yet others which may affect, as the case happens, person or property, either or both. We may exhibit this division by arranging the familiar and typical species of torts in groups, saying nothing for the present as to the various possible grounds of justifica- tion or excuse. GrRODP A. Personal Wrongs. Personal TTT IV ■ wrongs. 1 . Wrongs affecting safety and freedom of the person : Assault, battery, false imprisonment. 2. Wrongs affecting personal relations in the family : Seduction, enticing away of servants. 3. Wrongs affecting reputation : Slander and libel. 4. Wrongs affecting estate generally : Deceit, slander of title, fraudulent competition by colourable imitation, &c. Malicious prosecution. Extortion or injury by intimidation of third persons, procurement of wrongful acts, con- spiracy, &c. Group B. Wrongs to Possession and Propertij. Wrongs to property. 1. Trespass: (a) to land. (b) to goods. Conversion and unnamed wrongs ejusdem generis. Disturbance of easements, &c. 2. Interference with rights analogous to property, such as private franchises, patents, copyrights, trade- marks. THE NATURE OP TORT IN GENERAL, "Wrongs affecting person and property. Group 0. Wrongs to Person, Estate, and Property generalhj. 1. Nuisance. 2. Negligence. 3. Breach of absolute duties specially attached to the occupation of fixed property, to the ownership and custody of dangerous things, and to the exercise of certain public callings. This kind of liability results, as will be seen hereafter, partly from ancient rules of the common law of which the origin is still doubtful, partly from the modern development of the law of negligence^ The general rule of law that a master is answerable for the acts and defaults of his servants in the course of their employment operates to extend liability under all these heads in various degrees. Grroup C. would be insignificant without it. All the acts and omissions here specified are un- doubtedly torts, or wrongs in the technical sense of English law. They are the subject of legal redress, and under our old judicial system the primary means of redress would be an action brought in a common law court, and governed by the rules of common law pleading (e). The groups above shown have been formed simply with reference to the effects of the wrongful act or omission. th^e'several ^^^ '^^1 appear, on further examination, to have certain classes. Character of -wrong- ful acts, &c. , under («) Ineomecases the really effec- tual remedies were administered by the Court of Chancery, but only as ausUiary to the legal right, which it was often necessary to establish in an action at law before the Court of Chancery would interfere MORAL ELEMENTS. distinctive characters mth reference to tlie nature of the act or omission itself. In Group A., generally speaking, wuful the "nrong is -wilful or wanton. Either the act is intended ^ °" to do harm, or, heing an act evidently likely to cause harm, it is done with reckless indifference to what may befall by reason of it. Either there is deliberate injury, or there is something like the self-seeking indulgence of passion, in contempt of other men's rights and dignity, which the Greeks called vtzfis. Thus the legal wrongs are such as to be also the object of strong moral con- demnation. It is needless to show by instances that violence, evil- speaking, and deceit, have been denounced, apart from any secular legal prohibition, by righteous men in all ages. If any one desires to be satisfied of this, he may open Homer or the Psalter at random. What is more, we have here to do with acts of the sort that are next door to crimes. Many of them, in fact, are criminal offences as well as civil wrongs. It is a common border-land of criminal and civil, public and private law. 9 In Group B. this element is at first sight absent, or at Wrongs appa- any rate indifferent. Whatever may or might be the lentij un- ease in other legal systems, the intention to violate ™^hmorai another's rights, or even the knowledge that one is ^lime- violating them, is not in English law necessary to constitute the -wrong of trespass as regards either land or goods, or of conversion as regards goods. On the contrary, an action of trespass — or of ejectment, which is a special form of trespass — has for centuries been a common and convenient method of trying an honestly disputed claim of right. Again, it matters not whether actual harm is done. " By the laws of England, every invasion of private property, be it ever so minute, is a 10 THE NATURE OF TORT IN GENERAL. trespass. No man can set his foot upon my ground mthout my licence, but he is liable to an action, though the damage be nothing ; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil"(/). Nor is this all; for dealing with another man's goods without lawful authority, but under the honest and even reasonable belief that the dealing is lawful, may be an actionable wrong notwithstanding the innocence of the mistake {g). Still less will good intentions afford an excuse. I find a watch lying in the road ; intending to do the owner a good turn, I take it to a watchmaker, who to the best of my knowledge is competent, and leave it with him to be cleaned. The task is beyond him, or an incompetent hand is employed on it, and the watch is spoilt in the attempt to restore it. Without question the owner may hold me liable. In one word, the duty which the law of England enforces is an absolute duty not to meddle without lawful authority with land or goods that belong to others. And the same principle applies to rights which, though not exactly property, are analogous to it. There are exceptions, but the burden of proof lies on those who claim their benefit. The law, therefore, is stricter, on the face of things, than morality. There may, in particular cir- cumstances, be doubt what is mine and what is my neighbour's ; but the law expects me at my peril to know what is not mine in every case. To some extent this must obviously be so, lest wrong-doers should go scot-free under cover of pretended ignorance. It may seem unreasonable, at first sight, to expect a man to know at his peril what things are his neighbour's ; but (/) VovGwv. Unticlcw. Garrington, [g] See Hollins v. Foivler, L. E. 19 St. Tr. 106G. 7 H. L. 757, 41 L. J. Q. B. 169. omission. LIABILITY FOE OMISSIONS. U it is not evidently unreasonable to expect him to know what is his own, and this is only the statement of the same rule from the other side. The prominence of the rale in the Common Law, and in this department of it more than another, depends on historical causes to be mentioned presently. In Group 0. the acts or omissions complained of Wrongs of have a kind of intermediate character. They are not d"ncrand as a rule wilfully or wantonly harmful ; but neither are they morally indifferent, save in a few extreme cases under the third head. The party has for his own purposes done acts, or brought about a state of things, or brought other people into a situation, or taken on himself the conduct of an operation, which a prudent man in his place would know to be attended with certain risks. A man who fails to take order, in things within his control, against risk to others which he actually foresees, or which a man of common sense and competence would in his place foresee, will scarcely be held blameless by the moral judgment of his fellows. Legal liability for negligence and similar wrongs corresponds approximately to the moral censure on this kind of default. The commission of something in itself forbidden by the law, or the omission of a positive and specific legal duty though without any intention to cause harm, can be and is, at best, not more favourably con- sidered than imprudence if harm happens to come of it ; and here too morality will not dissent. In some con- ditions, indeed, and for special reasons which must be considered later, the legal duty goes beyond the moral one. There are cases of this class in which liability cannot be avoided, even by proof that the utmost diligence in the way of precaution has in fact been used, 12 THE NATURE OF TORT IN GENERAL. and yet the party liable has done nothing which the law condemns (/;). Except in these cases, the liability springs from some shortcoming in the care and caution to which, taking human afPairs according to the common knowledge and experience of mankind, we deem ourselves entitled at the hands of our fellow-men. There is a point, though not an easily defined one, where such shortcoming gives rise even to criminal liability, as in the case of manslaughter by negligence. Relation We have, then, three main divisions of the law of of torts^'to ^°^"'^- ^^ °^^ of them, which may be said to have a moral quasi- Criminal character, there is a very strong ethical element. In another no such element is apparent. In the third such an element is present, though less mani- festly so. The apparent absence of intelligible relation to moral conceptions in the second group may well seem at first sight to stand in the way of ascribing rational unity to our law of torts as a whole. A right of property is interfered with " at the peril of the person interfering with it, and whether his interference be for his own use or that of anybody else"(/). And whether the interference be wilful, or reckless, or innocent but imprudent, or innocent without imprudence, the legal consequences and the form of the remedy are for English justice the same. This may appear inelegant if not unjust. {/i) HoTV far such a doctrine can House of Lords : Uijlaiids v. be theoretically or historically justi- Fletcher (1868), L. E,. 3 H. L. 330, fied is not an open question for 37 L. J. Ex. 161. English courts of justice, for it has (i) Lord O'Hagan, L. R. 7 H. L. been explicitly affirmed by the at page 799. FOEMS OF ACTION. 13 The truth is that we have here one of the historical Early curiosities of English law. Formerly there was a clear offoimsof distinction in the forms of procedure (the only evidence '"'*'°°- we have for much of the older theory of the law) between the simple assertion or vindication of title and claims for redress against specific injuries. It is true that the same facts would often, at the choice of the party wronged, afEord ground for one or the other kind of claim, and the choice would be made for reasons of practical convenience, apart from any scientific or moral ideas. But the distinction was in itself none the less marked. For assertion of title to land there was the writ of right ; -u'rits of and the writ of debt, with its somewhat later variety, the ^g^* l^^ writ of detinue, asserted a plaintiff's title to money or trespass: J . ... restitution goods m a closely corresponding form (7^). Injuries to orpunish- person or property, on the other hand, were matter for ™^^ ' the writ of trespass and certain other analogous writs, and (from the thirteenth century onwards) the later and more comprehensive writ of trespass on the case (l) . In the former kind of process, restitution is the object sought ; in the latter, some redress or compensation which, there is (k) The writ of right (Glanvill, iuste ot sine dilatione. Bk. 1. e. 6) runs thus : " Eex vice- [1) Blackstone iii. 122 ; F. N. B. comiti salutem : Praecipe A. quod 92. The mark of this class of actions sine dilatione reddatB.unamhidam is the conclusion of the writ contra terrae in Tilla ilia, unde idem B. pacem. "Writs of assize, including queritux quod praedictus A. ei de- the assize of nuisance, did not so forceat: et nisi fecerit, summone conclude, but show analogies of form eum," &c. The writ of debt (Bk. x. to the writ of trespass in other re- c. 2) thus: " Kex vicecomiti salutem; spects. Actions on the case might Praecipe N. quod iuste et sine dila- be founded on other writs besides tione reddat R. centum marcas quas that of trespass, e.g., deceit, which ei debet, ut dicit, et unde querltur contributed largely to the formation quod ipse ei iniuste deforceat. Et of the action of assumpsit. The nisi fecerit, summone eum," &c. writ of trespass itself is by no means The writs of covenant and account, one of the most ancient. SeeF. W. which were developed later, also Maitland in Harv. Law Eev. iii. contain the characteristic words 217-219. 1-i THE NATURE OF TORT IN GENERAL. great reason to believe, was originally understood to be a substitute for private vengeance (ot). Now the writs of restitution, as we may collectively call them, were associated with many cumbrous and archaic points of procedure, exposing a plaintiff to incalculable and irrational risk ; while the operation of the writs of penal redress was by comparison simple and expeditious. Thus the interest of suitors led to a steady encroachment of the writ of trespass and its kind upon the writ of right and its kind,. Not only was the writ of right first thrust into the back- ground by the various writs of assize and entry — forms of possessory real action which are a sort of link between the writ of right and the writ of trespass — and then superseded by the action of ejectment, in form a pure action of trespass; but in like manner the action of detinue was largely supplanted by trover, and debt by assumpsit, both of these new-fashioned remedies being varieties of action on the case («). In this way the dis- tinction between proceedings taken on a disputed claim of right, and those taken for the redress of injuries where the right was assumed not to be in dispute, became quite obliterated. The forms of action were the sole embodiment of such legal theory as existed; and therefore, as the distinction of remedies was lost, the distinction between the rights which they protected was lost also. By a series of shifts and devices introduced into legal practice for the ease of litigants a great bulk of what really belonged to the law of property was trans- (jh) Not retaliation. Early Ger- case over the older forms of actions, manic law shows no trace of retalia- see Blaokstone, iii. 153, 155. The tion in the strict sense. A passage reason given at p. 152 for the wager in the introduction to Alfred's laws, of law (as to which see Co. Litt. 295 a) copied from the Book of Exodus, is being allowed in deht and detinue no real exception. is some one's idle guess, due to mere («) Eor the advantages of suing in ignorance of the earlier history. ANOMALIES OF TRESPASS. 15 ferred, in forensic usage and thence in the traditional habit of mind of English lawyers, to the law of torts. In a rude state of society the desire of vengeance is measured by the harm actually suffered and not by any consideration of the actor's intention ; hence the archaic law of injuries is a law of absolute liability for the direct consequences of a man's acts, tempered only by partial exceptions in the hardest cases. These archaic ideas of absolute liability made it easy to use the law of wrongful inj uries for trying what were really questions of absolute right ; and that practice again tended to the preser-\-ation of these same archaic ideas in other departments of the law. It will be observed that in om* early forms of action contract, as such, has no place at all (o) ; an additional proof of the relatively modern character both of the im- portance of contract in practical life, and of the growth of the corresponding general notion. "We are now independent of forms of action. Trespass Eationa- and trover have become historical landmarks, and the version of question whether detinue is, or was, an action founded trrapass. on contract or on tort (if the foregoing statement of the history be correct, it was really neither) survives only to raise difficulties in applying certain provisions of the County Courts Act as to the scale of costs in the Superior Courts (p) . It would seem, therefore, that a rational exposition of the law of torts is free to get rid of the extraneous matter brought in, as we have shown, by the practical exigency of conditions that no longer exist. At the same time a certain amount of excuse may be made on rational grounds for the place and function of the law (o) Except what may be implied parties to the contract : F. N. B. from the technical rule that the word 119 ; Blackstone, iii. 156. iZeiciwasproperonlyinanactionfor {p) Bryant v. Herbert (1878), 3 a sum of money between theoriginal C. P. Div. 389, 47 L. J. C. P. 670. 16 THE NATURE OF TORT IN GENERAL. of trespass to property in tlie English system. A man can but seldom go by pure unwitting misadventure beyond the limits of his own dominion. Either he knows he is not within his legal right, or he takes no heed, or he knows there is a doubt as to his right, but, for causes deemed by him sufEcient, he is content to abide (or perhaps intends to provoke) a legal contest by which the doubt may be resolved. In none of these cases can he complain with moral justice of being held to answer for his act. If not wilfully or wantonly injurious, it is done with some want of due circumspection, or else it involves the conscious acceptance of a risk. A form of procedure which attempted to distinguish between these possible cases in detail would for practical purposes hardly be tolerable. Exceptional cases do occur, and may be of real hardship. One can only say that they are thought too exceptional to count in determining the general rule of law. From this point of view we can accept, though we may not actively approve, the inclusion of the morally innocent with the morally guUty trespasses in legal classification. Analogy We may now find it interesting to compare the Roman Romanob- System with our own. There we find strongly marked ^'S^tions j.-j^Q distinction between restitution and penalty, M'hich was apparent in old forms of action, but became obsolete in the manner above shown. Dr. Moyle (q) thus describes the specific character of obligations ex delicto : — " Such wrongs as the withholding of possession by a defendant who bona fide believes in his own title are not delicts, at any rate in the specific sense in which the term is used in the Institutes ; they give rise, it is true, to a right of action, but a right of action is a different thing (}) In his edition of the Institutes, note to Bk. iv. tit. 1, p. 510, 4th ed. DOLUS AND CULPA. 17 from an ohligatio ex delicto; they are redressed by mere reparation, by the wrong-doer being compelled to put the other in the position in which he would have been had the AATong never been committed. But delicts, as contrasted with them and with contracts, possess three peculiarities. The obligations which arise from them are independent, and do not merely modify obligations already subsisting ; they ahvai/s invoice dolus or culpa; and the remedies by w/iick they are redressed arc penal." The Latin dolus, as a technical term, is not properly Dolus tmd rendered by "fraud" in English; its meaning is much '^"^^^"' wider and answers to what we generally signify by "unlawful intention." Culpa is exactly what we mean by " negligence," the falling short of that care and cii-cumspection which is due from one man to another. The rules specially dealing with this branch have to define the measm-e of care which the law prescribes as due in the case in hand. The Eoman conception of such rules, as worked out by the lawyers of the classical period, is excellently illustrated by the title of the Digest " ad legem Aquiliam," a storehouse of good sense and good law (for the principles are substantially the same as ours) deserving much more attention at the hands of English lawyers than it has received. It is to be observed that the Roman theory was built up on a foundation of archaic materials by no means unlike our own; the compensation of the civilized law stands instead of a primitive retaliation which was still recognized by the law of the Twelve Tables. If then we leave aside the English treatment of rights of property as being accounted for by peculiar historical causes, we find that the Eoman conception of delict agrees very well with the conception that appears really to underlie the English law of tort. Liability for p. T. quasi ex ihltcto. 18 THE NATURE OF TORT IN GENERAL. delict, or civil wrong in the strict sense, is the result either of wilful injury to others, or wanton disregard of what is due to them {dolus), or of a failure to observe due care and caution which has similar though not intended or expected consequences {culpa). In the Common Law we have, apart from the law of trespass. Liability an exceptionally stringent rule in certain cases where liability is attached to the befalling of harm without proof of either intention or negligence, as was mentioned under Group 0. of our outline. Such is the ease of the landowner who keeps on his land an artificial reservoir of water, if the reservoir bursts and floods the lands of his neighbours. Not that it was wrong of him to have a reservoir there, but the law says he must do so at his own risk(r). This kind of liability, too, has its parallel in Roman law, and the obligation is said to be not ex delicto, since true delict involves either dolus or culpa, but quasi ex delicto {s). Whether to avoid the difficulty of proving negligence, or in order to sharpen men's precaution in hazardous matters by not even allowing them, when harm is once done, to prove that they have been diligent, the mere fact of the mischief happening gives birth to the obligation. In the cases of carriers and innkeepers a similar liability is a very ancient part of our law. "What- ever the original reason of it may have been as matter of history, we may be sure that it was something quite unlike the reasons of pohcy governing the modern class of cases of which Rylands v. Fletcher {t) is the type and ()■) Splands v. Fletcher, L. R. 3 that the application of the term iu H. L. 330, 37 L. J. Ex. 161. the Institutes is not quite consistent (s) Austin's perverse and unin- or complete. See Dr. Moyle's telligent criticism of this perfectly notes on I. iv. 5. rational terminology has been treated with far more respect than (t) L. R. 3 H. L. 330. See Ch. it deserves. It is true, however, XII. below. RELATION OF V/EONG TO DAMAGE. 19 leading authority ; by suoh reasons, nevertheless, the rules must be defended as part of the modern law, if they can be defended at all. The waj's in which a right of action for a tort can Summarj-. arise in our law may be summed up in the following manner (») : — Every tort is an act or omission (not being merely the breach of a duty arising out of a personal relation, or undertaken by contract) which is related in one of the following ways to harm (including interference with an absolute right, whether there be measurable actual damage or not), suffered by a determinate person : — (a) It may be an act which, without lawful justifica- tion or excuse, is intended by the agent to cause harm, and does cause the harm complained of. (b) It may be an act in itself contrary to law, or an omission of specific legal duty, which causes harm not intended by the person so acting or omitting. (c) It may be an act violating an absolute right (especially rights of possession or property), and treated as wi-ongful without regard to the actor's intention or knowledge. This, as we have seen, is an artificial extension of the general conceptions which are common to English and Eoman law. (d) It may be an act or omission causing harm which the person so acting or omitting did not intend to cause, but might and should with due dili- gence have foreseen and prevented. (««) It may be worth while to analytical classification of the point out that this is not intended grounds of liabUity in tort, as a definition of tort, but as an c2 20 ■ THE NATUEE OF TORT IN GENERAL. (e) It may, in special cases, consist merely in not avoiding or preventing harm whicli the party was bound, absolutely or within limits, to avoid or prevent. A special duty of this last kind may be (i) absolute, (ii) limited to answering for harm which is assignable to some one's negligence. In some positions a man becomes, so to speak, an insurer to the public against a certain risk, in others he warrants only that all has been done for safety that reasonable care can do. Connected in principle with these sj)ecial liabilities, but running through the whole subject, and of constant occur- rence in almost every division of it, is the rule that a master is answerable for the acts and defaults of his servants in the course of their employment. It will now be proper, before enumerating the several classes of torts, to investigate first the common principles of liabnity, and then the common principles of immunity which are known as matter of justification and excuse. We shall then proceed to the particular branches of the subject, together with the conditions and exceptions which specially belong to them. 21 CHAPTEE II. PRINCIPLES OF LIABILITY. XoT many years ago it was difEcult to find any definite Want of aiitbority for stating as a general proposition of English in early law that it is a wrong to do wilful harm to one's neigh- ^^" hour without lawful justification or excuse. Neither is there any express authority for the general proposition that men must perform their contracts. Both principles are in tliis generality of form or conception modern, and there was a time when neither was true. Law begins not with authentic general principles, but with enumeration of particular remedies. There is no law of contracts in the modern lawyer's sense, only a list of certain kinds of agreements which may be enforced. Neither is there any law of delicts, but only a list of certain kinds of injury which have certain penalties assigned to them. Thus in the Anglo-Saxon and other early Grermanic laws we find minute assessments of the compensation due for hurts to €very member of the human body, but there is no general prohibition of personal violence ; and a like state of things appears in the fragments of the Twelve Tables (a). Whatever agreements are outside the specified forms of (a) In Gains iii. 223, 224, the modem than the English law of •contrast between the ancient law of the Tear - Books. Perhaps the fixed penalties and the modem law historical contrast holds only in of damages assessed by judicial Europe : see a note in L. Q. K. ix. authority is clearly shown. The 97, showing that among the student will remember that, as Kachins on the Burmese frontier regards the stage of development claims for unliquidated damages attained, the law of Justinian, and are not only known but freely often that of Gains, is far more assignable. 22 PRINCIPLES OF LIABILITY. obligation and modes of proof are incapable of enforce- ment; whatever injuries are not in the table of com- pensation must go without legal redress. The phrase damnum sine iniuria, which for the modern law is at best insignificant, has meaning and substance enough in such a system. Only that harm which falls within one of the specified categories of wrong-doing entitles the person aggrieved to a legal remedy. General Suoh is not the modern way of regarding legal duties to do harm Or remedies. It is not only certain favoured kinds of law"° ^™ agreement that are protected, but all agreements that satisfy certain general conditions are valid and binding, subject to exceptions which are themselves assignable to general principles of justice and poKoy. So we can be no longer satisfied in the region of tort with a mere enumeration of actionable injuries. The whole modern law of negligence, with its many developments, enforces the duty of fellow-citizens to observe in varying circum- stances an appropriate measure of prudence to avoid causing harm to one another. The situations in which we are under no such duty appear at this day not as normal but as exceptional. A man cannot keep shop or walk into the street without being entitled to expect and bound to practise observance in this kind, as we shall more fully see hereafter. If there exists, then, a positive duty to avoid harm, much more must there exist the negative duty of not doing wilful harm, subject, as all general duties must be subject, to the necessary exceptions. The three main heads of duty with which the law of torts is concerned — namely, to abstain from wilful injury, to respect the property of others, and to use due diligence to avoid causing harm to others— are all alike of a comprehensive nature. As our law of ALTEEUM NON LAEDEEE. ~" contract has been generalized by the doctrine of con- sideration and the action of assumpsit, so has our law of civil wrongs by the wide and various applications of actions on the case (b). It is submitted, moreover, that any attempt, at this day, to maintain a narrower conception of civil duty can lead only to interminable difiBculties. In fact there are dicta of the late Lord Bowen's which Authori- ties : Lord appear fully to recognise the doctrine here contended for. Bowen. He said, as Lord Justice, in 1892 : " At Common Law there was a cause of action whenever one person did damage to another, wilfully and intentionally, and without just cause or excuse (c)." The actual decision was in very special matter and on the construction . of a statute, but there is nothing in the contest to qualify the generality of this opinion, and the fact that a very learned and accomplished judge rather went out of his way to express it makes it seem, if anything, the more deliberate. Nor does the mere fact that a wilful injury does not fall within the four corners of some known form of action seem to be included in any natural meaning of "just cause or excuse." A similar dictum in the same judge's well-known judgment in Mogul Steamship Co. v. McGregor (d) is in terms limited to damage to a man in his property or trade. But first, these are the only material cases, for the duties of not wilfully harming our neighbours in person or reputation are admitted to be quite general; and secondly, the Supreme Court of the United States has thought the last cited dictum sufiicient warrant for an unqualified declaration. The opinion was {!/) The developed Eoman Law manifestum est ; " I. ir. 4, 1. had either attained or was on the (c) Skinner ^- Co. v. Shew §■ Co. point of attaining a like generaUty [1893] 1 Ch. 413, 422, 62 L. J. Ch. of application. "Denique aliis 196. pluribus modis admitti iniuriam {d) (1889) 23Q. B. Div. atp. 613. 24 PRINCIPLES OF LIABILITY. thus expressed by Holmes J. in 1904 : " It has been considered that, jjrima facie, the intentional infliction of temporal damage is a cause of action, which, as a matter of substantive law, whatever may be the form of pleading, requires a justification if the defendant is to escape. [Mogul Steamslnp Company v. McGregor, 23 Q. B. D. 598, 613.) If this is the correct mode of approach it is obvious that justifications may vary in extent according to the principles of policy upon which they are founded, and while some, for instance, at common law, those affecting the use of land, are absolute . . . others may depend upon the end for which the act is done. ... It is no sufficient answer to this line of thought that motives are not actionable, and that the standards of the law are external. That is true in determining what a man is bound to foresee, but not necessarily in determining the extent to which he can justify harm which he has foreseen [Qiiiiin V. Leathern [1901] A. C. 495, 524) "(e). Some learned persons here, however, still think otherwise (/). Malice material only in excep- tional cases. if there is a general duty not to do wilful harm, it would seem on principle that the law need not regard the motive, in the sense of personal disposition, from which such an act proceeds, though the discretion of a judge as to costs, or a jury as to damages, may do so. Harm done without excuse cannot be made more wrongful than it is by the addition of bad faith or personal ill-will, nor made lawful by its absence. Again, it is a settled general rule in our law that when an act is {e) Cur. per Holmes J. Aikens V. mscoiisin, 195 XT. S. 194, 204. (/) Mr. A. Cohen K. C, in Ms memorandum on Alien v. Flood annexed to the Eeport of the Royal Commission on Trade Disputes (1905, Cd. 2825, pp. 24—30), de- nies the existence of any ' ' general rule of law that a. person who by some act intentionally does harm to another is prima facie liable to him." MOTIVE AS ELEMENT OF LIABILITY. 25 done in the exercise of a common right, the motive is immaterial (g). Such an act may be discreet, courteous, or neighbourly, or not, but calling it malicious wiU not make it unlawful. The use of such terms as " malice " and "maliciously" appears therefore more likely to perplex the law and hinder the study of its true principles than to advance justice in any substantial manner. Unluckily the terms have been freely employed, and without any clear or constant meaning, and this has been the cause of great confusion which is not jet wholly removed (h) . Eecent authority has made it clear, however, that the consideration of personal motive as a determining element of liability is at any rate exceptional. " Malice " in that sense is material chiefly so far as it may defeat a claim to immunity based on " privilege," which assumes that the person claiming it has acted in good faith («■). For certain purposes and on certain occasions, not many, a somewhat extensive liberty of interference with individual rights and convenience is deliberately allowed in the public interest. Being so allowed, it is in the nature of a special privilege — which indeed it is regularly called in one class of cases — rather than of a common right, and it is subject to the con- dition of being exercised in good faith and not abused for ends of personal enmity. Such abuse is called [g) Bradford Corporation V. Fickles Collins M. R., in Ecad v. Friendly [1895] A. C. 587, 64 L. J. Ch. 759 ; Society of Operative Stcncmtsons Allen T. Flood [1898] A. 0. 1, 67 [1902] 2 K. B. at p. 739, 71 L. J. L. J. Q. B. 119. For American K. B. 994, seem rather to deprecate authority, see Fiero, 37 — 40. a definition. [h) See Mr. W. F. Craies' learned articles on "Malice" and "Mali- (t) See, e.g., per Lord Brampton cious Prosecution" in Enoycl. Laws in Quinn v. Leathern [1901] A. C. of England. The ohservations of at p. 524, 70 L. J. P. C. 76. ~0 PRINCIPLES OF LIABILITY. " malice " or " express malice," and deprives the act o£ justification (Ii). The words " malice," " malicious," and " maliciously " were formerly used in pleading, and thence in forensic and judicial language, in many places where they were superfluous. This usage has been sometimes explained away by saying that malice means only the want of excuse for an unlawful act wilfully done ; sometimes it has been frankly discredited. We are not here concerned with the fortunes of the same words in criminal law, where the disregard of their ordinary meaning has been extreme ; but the common law doctrine of " malice aforethought " in murder and the statutory offence of " malicious damage " have no doubt contributed to the general obscurity of the subject. Very little light is to be obtained from the history of the Latin word ma/itia. Classical usage, oftener than not, makes it import fraud or underhand contrivance as well as ill-will ; but sometimes it means vice or wickedness in general, and in the Yulgate we read Siifficit cliei malitia ■111(1. The original intention of its use as a legal term was probably to exclude reference to acts which were not wilful at all, or which were honestly done under a claim of right or in ignorance of the facts by reason of which the act was unlawful (/). In the result, the incautious adoption of popular language led to the worst kind of technicality. Acts in The commission of an act specifically forbidden by law, specific 0^ the omission or failure to perform any duty specifically legal duty, imposed by law, is generally equivalent to an act done [Ic) Cp. the dicta of Lord Her- A. 0. 1, 93, 125, 172. sohell, Lord Watson, and Lord (V) Cp. Pollock and Maitland, Davey, in Allen v. Flood [1900] H. E. L. ii. 467 (469, 2nd ed.). SPECIFIC DUTIES. 27 ■with intent to cause wrongful injury. Where the harm that ensues from the unlawful act or omission is the very kind of harm which it was the aim of the law to prevent (and this is the commonest case), the justice and necessity of this rule are manifest without f ui'ther comment. Where a statute, for example, expressly lays upon a railway company the duty of fencing and watching a level crossing, this is a legislative declaration of the diligence to he required of the company in providing against harm to passengers using the road. Even if the mischief to be prevented is not such as an ordinary man would foresee as the probable consequence of disobedience, there is some default in the mere fact that the law is disobeyed ; at any rate a court of law cannot admit discussion on that point ; and the defaulter must take the consequences. The old- fashioned distinction between mala prohihita and mala in sc is long since exploded. The simple omission, after notice, to perform a legal duty, may be a wilful offence within the meaning of a penal statute (»?) . As a matter of general policy, there are so many temptations to neglect public duties of all kinds for the sake of private interest that the addition of this quasi-penal sanction as a motive to their observance appears to be no bad thing. Many public duties, however, are wholly created by special statutes. In such cases it is not an universal proposition that a breach of the duty confers a private right of action on any and every person who suffers particular damage from it. The extent of the liabilities incident to a statutory duty must be ascertained from the scope and terms of the statute itself. Acts of Parliament often contain special provisions for enforcing the duties declared by them, and those provisions may be so framed as to exclude expressly, or by implication, any right of private (m) Gulli/ T. Smith (18831 12 Q. B. D. 121, 53 L. J. M. C. 35. 28 PRINCIPLES OF LIABILITY. Duty of respecting property. Duties of diligence. Assump- tion of skill. suit («). The provision of a specific remedy for the breach of duties created by the Act is generally held to exclude other remedies (o) . Also there is no cause of action where the damage complained of "is something totally apart from the object of the Act of Parliament," as being evidently outside the mischiefs which it was intended to prevent. What the Legislature has declared to he wrongful for a definite purpose cannot be therefore treated as wrongful for another and different purpose (p). As to the duty of respecting proprietary rights, we have already mentioned that it is absolute. Further illustration is reserved for the special treatment of that division of the subject. Then we have the general duty of using due care and caution. What is due care and caution in given circum- stances has to be worked out under the head of negligence. Here we may say that, generally speaking, the standard of duty is fixed by reference to what we should expect in the like case from a man of ordinary sense, knowledge, and prudence. Moreover, if the party has taken in hand the conduct of anything requiring special skill and knowledge, we require of him a competent measure of the skill and knowledge iisually found in persons who undertake such matters. And this is hardly an addition to the general rule ; for a man of common sense knows wherein he is competent and wherein not, and does not take on himself {/i) Atkinson v. Kewcastle TTater- vorks Co. (1877) 2 Ex. Div. 441, 46 L. J. Ex. 775. (o) JPasmore v. OiU-iihUwistle Urban Co!(n«? [1898] A. C. 387, 394, C7 L. J. Q. B. 635 ; op. Johnston v. Consumers' Gas Co. of Toronto [1S98] A. C. 447, 67 L. J. P. C. 33. (p) Gorris v. Scott (1874) L. R. 9 Ex. 12.5, 43 L. J. Ex. 92 ; Ward V. Hoibs (1878) 4 App. Ca. 13, 23, 48 L.J. Q. B. 281. DILIGENCE AND COMPETENCE. 29 things in which he is incompetent. If a man will drive a carriage, he is bound to have the ordinary competence of a coachman ; if he will handle a ship, of a seaman ; if he will treat a wound, of a surgeon ; if he will lay bricks, of a bricklayer; and so in every case that can be put. "Whoever takes on himself to exercise a craft holds him- self out as possessing at least the common skill of that craft, and is answerable accordingly. If he fails, it is no excuse that he did the best he, being unskilled, actually could. He must be reasonably skilled at his peril. As the Eomans put it, imjieritia ciilpne adiuimcratur {q). A good rider who goes out with a horse he had no cause to think ungovernable, and, notwithstanding all he can do to keep his horse in hand, is run away with by the horse, is not liable for what mischief the horse may do before it is brought under control again (r) ; but if a bad rider is run away with by a horse which a fairly good rider could have kept in order, he will be liable. An ex- Exception ception to this principle appears to be admissible in one sity"^''" uncommon but possible kind of circumstances, namely, where in emergency, and to avoid imminent risk, the conduct of something generally entrusted to skilled persons is taken by an unskilled person ; as if the crew of a steamer were so disabled by tempest or sickness that the whole conduct of the vessel fell upon an engineer without knowledge of navigation, or a sailor without knowledge of steam-engines. So if the driver and fireman of a train were both disabled, say by sunstroke or lightning, the guard, who is presumably unskilled as concerns driving a locomotive, is evidently not bound to perform the driver's {q) D. 50. 17, de div. reg. iuris (r) Hammack v. TThitc (1862) 11 antiqui, 132 ; cf. D. 9. 2, ad legem C. B. N. S. 588, 31 L. J. C. P. Aquiliara, 8. Both passages are 11^; HolmesY. Ilather [Xilr^) 'L.'R. from Gaius. 10 Ex. 261, 44 L. J. Ex. 176. 30 PEINCIPLES OF LIABILITY. duties. So, again, a person who is present at an accident requiring immediate "first aid," no skilled aid being on the spot, must act reasonably according to common know- ledge if he acts at all ; but he cannot be answerable to the same extent that a surgeon would be. There does not seem to be any distinct authority for su.ch cases ; but we may assume it to be law that no more is required of a person in this kind of situation than to make a prudent and reasonable use of such skill, be it much or little, as he actually has. quences (if act or default. Liability We shall now consider for what consequences of his to consc- acts and defaults a man is liable. When complaint is made that one person has caused harm to another, the first question is whether his act (a) was really the cause of that harm in a sense upon which the law can take action. The harm or loss may be traceable to his act, but the connexion may be, in the accustomed phrase, too remote. The maxim " In iure non remota causa sed proxima spectatur " is Englished in Bacon's con- stantly cited gloss : " It were infinite for the law to judge the causes of causes, and their impulsions one of another : therefore it contenteth itself with the immediate cause ; and judgeth of acts by that, with- out looking to any further degree " (/). Liability must be founded on an act which is the " immediate cause " of harm or of injury to a right. Again, there may have been an undoubted wrong, but it may be doubted how niach of the harm that ensues is related to the TSTongful (s) For shortness' sake I shall often use the word ' ' act ' ' alone as equivalent to " act or default." (i!) Maxims of the Law, Reg. 1 . It is remarkable that not one of the examples adduced by Bacon be- long-s to the law of torts, or raises a question of the measure of damages. There could be no stronger illustra- tion of the extremely modern character of the whole subject as now understood. MEASURE OF DAMAGES. 31 act as its " immediate cause," and therefore is to be counted in estimating the wi'ong-doer's liability. The distinction of proximate from remote consequences is needful first to ascertain whether there is any liability at all, and then, if it is established that wrong has been committed, to settle the footing on which compensation for the wrong is to be awarded. The normal form of Measure of compensation for wrongs, as for breaches of contract, in the procedure of our Superior Courts of common law has been the fixing of damages in money by a jury under the direction of a judge. It is the duty of the judge {i/) to explain to the jurors, as a matter of law, the footing upon which they should calculate the damages if their verdict is for the plaintiff. This footing or scheme is called the " measure of damages." Thus, in the common case of a breach of contract for the sale of goods, the measure of damages is the difference between the price named in the contract and the market value of the like goods at the time when the contract was broken. In cases of contract there is no trouble in separating the question whether a contract has been made and broken from the question what is the proper measure of damages (.«). But in cases of tort the primary question of liability may itself depend, and it often does, on the nearness or remoteness of the harm complained of. Except where we have an absolute duty and an act which manifestly violates it, no clear line can be drawn between the rule of liability and the rule of compensation. The measure of damages, a matter appearing at first sight to belong to the law of remedies more than of "antecedent rights," constantly involves, («) SaMey v. BaxendaU (1854) wortli while to sue on a contract Fx 341 23 L J Ex. 179 must, indeed, often turn on the measure of damages. But this need (x) Whether it is practically not concern us here. 32 PRINCIPLES OF LIABILITY. Meaning of "imme- diate Liability for conse- quences of wilful act : ia tlie field of torts, points that are in truth of the very substance of the law. It is under the head of " measure of damages" that these for the most part occur in practice and are familiar to lawyers; but their real connexion with the leading principles of the subject must not be overlooked here. The meaning of the term " immediate cause " is not capable of perfect or general definition. Even if it had an ascertainable logical meaning, which is more than doubtful, it would not follow that the legal meaning is the same. In fact, our maxim only points out that some consequences are held too remote to be counted. What is the test of remoteness we still have to inquire. The view which I shall endeavour to justify is that, for the purpose of civil liability, those consequences, and those only, are deemed " immediate," " proximate," or, to anticipate a little, " natural and probable," which a person of average competence and knowledge, being in the like case with the person whose conduct is complained of, and having the like opportunities of observation, might be expected to foresee as likely to follow upon such conduct. This is only where the particular consequence is not known to have been intended or foreseen by the actor. If proof of that be forthcoming, whether the consequence was " immediate " or not does not matter. That which a man actually foresees is to him, at all events, natural and probable. In the ease of wilful wrong- doing we have an act intended to do harm, and harm done by it. The inference of liability from such an act (given the general rule, and assuming no just cause of exception to be present) may seem a plain matter. But even in this fii-st case it is not so plain as it seems. We have to consider the CONSEQUENCES. 33 Telation of that which the wrong-doer intends to the events which in fact are brought to pass by his deed ; a relation which is not constant, nor always evident. A man strikes at another with his fist or a stick, and the blow takes effect as he meant it to do. Here the connexion of act and consequence is plain enough, and the wrongful actor is liable for the resulting hurt. But it extends the consequence may be more than was intended, or oonse- ■different. And it may be different either in respect of noUn-* the event, or of the person affected. Nym quarrels with tended. Pistol and knocks him down. The blow is not serious in itself, but Pistol falls on a heap of stones which cut and bruise him. Or they are on the bank of a deep ditch ; Nym does not mean to put Pistol into the ditch, but his blow throws Pistol off his balance, whereby Pistol does fall into the ditch, and his clothes are spoilt. These are simple cases where a different consequence from that which was intended happens as an incident of the same action. Again, one of Jack Cade's men throws a stone at an alderman. The stone misses the alderman, 'but strikes and breaks a jug of beer which another citizen is carrying. Or Nym and Bardolph agree to waylay and beat Pistol after dark. Poins comes along the road at the time and place where they expect Pistol ; and, taking him for Pistol, Bardolph and Nym seize and beat Poins. Clearly, just as much wrong is done to Poins, and he has the same claim to redi-ess, as if Bardolph and Nym meant to beat Poins, and not Pistol (y). Or, to take an actual fy) In criminal law there is some and cannot lie heard to say that he •difficulty in the case of attempted had no unlawful intention as to X. . personal offences. There is no Ji. f. Smith (1855) Dears. 659. But doubt that if A. shoots and kills or if he misses, it seems doubtful wounds X., under the belief that whether he can be said to have •the man he shoots at is Z., he is in attempted to kill either X. or Z. no way excused by the mistake, Ci. E.y. Zatimer(lSS6) I7Q.B.D. • P. T. D 34 PEINCIPLES OF LIABILITY. and well-known case in our books (s), Shepherd throws a lighted squib into a building full of people, doubtless intending it to do mischief of some kind. It falls near a person who, by an instant and natural act of self-pro- tection, casts it from him. A third person again does the same. In this third flight the squib meets with Scott, strikes him in the face, and explodes, destroying the sight of one eye. Shepherd neither threw the squib at Scott, nor intended such grave harm to any one ; but he is none the less liable to Scott. And so in the other cases put, it is clear law that the wrong-doer is liable to make good tlie consequences, and it is likewise ob'^-ious to common sense that he ought to be. He went about to do harm, and having begun an act of wrongful mischief, he cannot stop the risk at his pleasure, nor confine it to the precise objects he laid out, but must abide it fully and to the end. "Natural This principle is commonly expressed in the maxim that queues-" " a man is presumed to intend the natural consequences relation of ^f j^^g ^cts : " or, in the terms of a -judicial statement, " a the rule to . . . „ , the actor's party must be considered, in point of law, to intend that " '°°' which is the necessary and natural consequence of that which he does " (fl) ; a proposition which, with due explanation and within due limits, is acceptable, but which in itself is ambiguous. To start from the simplest case, 359 65 L. J. M. C. 135. There is about as obvious as it can be : it a whole literature of modern Conti- -was, however, not necessary, squib- nental controversy on the subject. throwing, as Nares J. pointed out, (z) Scott V. Shepherd, 2 W. Bl. having been declared a nuisance by 892; and in 1 Sm. L. C. No statute. doubt was entertained of Shep- [a) Bayley J. in R. v. Harvcij herd's liabiUty ; the only question (1823) 2 B. & C. 257, 264, 26 R. R. beino- in what form of action he at p. 343. This was in a criminal was liable. The inference of case, and therefore applies a fortiori wrongful intention is in this case to civil liabUity. NATUEAL CONSEQUENCES. 35 we may know that the man intended to produce a certain consequence, and did produce it. And we may have in- dependent proof of the intention ; as if he announced it beforehand by threats or boasting of what he would do. But oftentimes the act itself is the chief or sole proof of the intention with which it is done. If we see Nym walk up to Pistol and knock him down, we infer that Pistol's fall was intended by Nym as the consequence of the blow. We may be mistaken in this judgment. Possibly Nym is walking in his sleep, and has no real intention at all, at any rate, none which can be imputed to Nym awake. But we do naturally infer intention, and the chances are greatly in favour of our being right. So nobody could doubt that when Shepherd threw a lighted squib into a crowded place he expected and meant mischief of some kind to be done by it. Thus far it is a real inference, not a pre- sumption properly so called. Now take the case of Nym knocking Pistol over a bank into the ditch. We will suppose there is nothing (as there well may be nothing but Nym's own worthless assertion) to show whether Nym knew the ditch was there ; or, if he did know, whether he meant Pistol to fall into it. These questions are like enough to be insoluble. How shall we deal with them ? We shall disregard them. From Nym's point of view his purpose may have been simply to knock Pistol down, or to knock him into the ditch also ; from Pistol's point of view the grievance is the same. The wrong-doer cannot call on us to perform a nice discrimination of that which is willed by him from that which is only consequential on the strictly wilful wrong. We say that intention is pre- sumed, meaning that it does not matter whether intention can be proved or not ; nay, more, it would in the majority of cases make no difference if the wrong-doer could dis- d2 36 PRINCIPLES OF LIABILITY. prove it. Such an explanation as this — " I did mean to knock you down, but I meant you not to fall into the ditch" — would, even if believed, be the lamest of apologies, and it would no less be a vain excuse in law. Meaning The habit by which we speak of presumption comes of "ua- . . tural and probably from the time when, inasmuch as parties could «onse- ^ ^ot gi'^e evidence, intention could hardly ever be matter quence. Q-f ji^ect proof. Under the old system of pleading and procedure, Brian C. J. might well say " the thought of man is not triable " {b). Still there is more in our maxim than this. For although we do not care whether the man intended the particular consequence or not, we have in mind such consequences as he might have intended, or, without exactly intending them, contemplated as possible ; so that it would not be absurd to infer as a fact that he either did mean them to ensue, or recklessly put aside the risk of some such consequences ensuing. This is the limit introduced by such terms as " natural " — or more fully "natural and probable" — consequences (c) . What is natural and probable in this sense is commonly, but not always, obvious. There are consequences which no man could, with common sense and observation, help fore- seeing. There are others which no human prudence could have foreseen. Between these extremes is a middle region of various probabilities divided by an ideal bound- ary which will be differently fixed by different opinions ; and as we approach this boundary the difficulties increase. (5) Tear-Book 17 Edw. IV. 1, be the more correct expression: " translated in Blackburn on Sale, Grove J. in Smith v. Green (1875) at p. 193 in 1st ed., 261 in 2nd ed. i q. P. D. at p.96. Bnt what is by Graham. (o) ' ' Normal, or likely or prob- '^"^'^^ "'^ ^"^^^7 *° "" speoiaUst may able of occurrence in the ordinary not be normal or likely to a plain course of things, would perhaps man's knowledge and experience. " NATURAL AND PROBABLE." < There is a point where subsequent events are, according to common understanding, the consequence not of the first wrongful act at all, but of something else that has happened in the meanwhile, though, but for the first act, the event might or could not have been what it was {d). But that point cannot be defined by science or philo- sophy {e) ; and even if it could, the definition would not be of much use for the guidance of juries. If English law seems vague on these questions, it is because, in the analysis made necessary by the separation of findings of fact from conclusions of law, it has grappled more closely with the inherent vagueness of facts than any other system. We may now take some illustrations of the rule of " natural and probable consequences " as it is generally accepted. In whatever form we state it, we must remem- ber that it is not a logical definition, but only a guide to the exercise of common sense. The lawyer cannot aiford to adventure himself with philosophers in the logical and metaphysical controversies that beset the idea of cause. In Vandenburgh v. Truax. (/), decided by the Supreme Vanden- Court of New York in 1847, the plaintiff's servant and xrmx^' the defendant quarrelled in the street. The defendant took hold of the servant, who broke loose from him and ran away ; " the defendant took up a pick-ase and followed the boy, who fled into the plaintiff's store, and the de- fendant pursued him there, with the pick-axe in his hand." [d] Thua Quain J. said [S)ieesbtj [e) " The doctrine of causation, " T. L. ^ Y. Mail. Co. (1874) L. R. said Fry L. J., "involves much 9 Q. B. at p. 268): "In tort the difficulty in philosophy as in law " : defendant is liable for all the con- Scton v. Lafoiw (1887) 19 Q. B. Div. sequences of his illegal act, where at p. 74, 56 L. J. Q. B. 415. they are not so remote as to have no (/) 4 Denio, 464. The decision direct connection with the act, as seems to be accepted as good law : by the lapse of time for instance." Fiero, 31, 32, 43. ■'>^ PRINCIPLES OF LIABILITY. In running behind the counter for shelter the servant knocked out the faucet from a cask of wine, whereby the wine ran out and was lost. Here the defendant (what- ever the merits of the original quarrel) was clearly a wrong- doer in pursuing the boy ; the plaintiff's house was a natural place for his servant to take refuge in, and it was also natural that the servant, " fleeing for his life from a man in hot pursuit anned with a deadly weapon," should, in his hasty movements, do some damage to the plaintiff's property in the shop. Giaiirv. There was a curious earlier case in the same State (^), where one Guille, after going up in a baUoon, came down in Swan's garden. A crowd of people, attracted by the balloon, broke into the garden and trod down the vegetables and flowers. Guille's descent was in itself plainly a trespass : and he was held liable not only for the damage done by the balloon itself but for that which was done by the crowd. " If his descent under such circumstances would ordinarily and naturally draw a crowd of people about him, either from curiosity, or for the purpose of rescuing him from a perilous situation ; all this he ought to have foreseen, and must be responsible for "(/*). In both these cases the squib case was com- mented and relied on. Similarly it has many times been said, and it is undoubted law, that if a man lets loose a dangerous animal in an inhabited place he is liable for all the mischief it may do. {(/) Guille V. Swan (1822) 19 The later Soottisli case of ScoWs Johns. 381. Trustees v. Moss (1889) 17 R. 32, (h) Per Spencer C. J. It ap- is hardly so strong, for there a peared that the defendant (plaintiff parachute descent was not only in error) had called for help ; but contemplated but advertised as a this was treated as immaterial. public entertainment. DUTY OF PKEVLSIOX. ^9 The balloon case illustrates what was observed in the Li^iiji'ify tirst chapter on the place of trespass in the law of torts, quonces of The trespass was not in the common sense wilful ; Gruille ''^''P'^''*'- certainly did not mean to come down into Swan's garden, which he did, in fact, with some danger to himself. But a man who goes up in a balloon must know that he has to come down somewhere, and that he cannot be sure of coming down in a place which he is entitled to use for that purpose, or where his descent will cause no damage and excite no objection. Guille's liability was accordingly the same as if the balloon had been under his control, and he had guided it into Swan's garden. If balloons were as manageable as a vessel on the sea, and by some accident -«'hich could not be ascribed to any fault of the traveller the steering apparatus got out of order, and so the balloon •drifted into a neighbour's garden, the result might be different. So, if a landslip carries away my land and house from a hillside on which the house is built, and myself in the house, and leaves all overlying a neighbour's field in the valley, it cannot be said that I am liable for the damage to my neighbour's land ; indeed, there is not even a technical trespass, for there is no voluntary act at all. But where trespass to property is committed by a voluntary act, known or not known to be an iufringe- ment of another's right, there the trespasser, as regards liability for consequences, is on the same footing as a wilful wrong-doer. A simple example of a consequence too remote to be Conse- gi-ound for liability, though it was part of the incidents ^'emote:*''"* following on a wrongful act, is afforded by Glorer v. ^^'>'-''^^'^- ^ L, ^ s. Jr. London and South Western Railivai/ Company («). The R. Co. plaintiff, being a passenger on the railway, was charged (i) (1S87) L. E. 3 Q. B. 25, 37 L. J. Q. B. 57. 40 PRINCIPLES OF LIABILITY. by the company's ticket collector, -wrongly as it turned out, with not having a ticket, and was removed from' the train by the company's servants with no more force- than was necessary for the purpose. He left a pair of race-glasses in the carnage, which were lost; and he sought to hold the company liable not only for the personal assault committed by taking him out of the train, but for the value of these glasses. The Court held without difficulty that the loss was not the "necessary consequence " or " immediate result " of the wrongful act : for there was nothing to show that the plaintiff was prevented from taking his glasses with him, or that he- would not have got them if after leaving the carriage he- had asked for them. Question In criminal law the question not unfrequently occui-s, Mllin<'^in^ on a charge of murder or manslaughter, whether a certain criminal j^qj; qj. neglect was the " immediate cause " of the deathi law. of the deceased person. "We shall not enter here upon the cases on this head ; but the comparison of them will be found interesting. They have been collected by Sir James Stephen (A-) . Liability The doctrine of " natural and probable consequence " cTnce^ ' ^^ most clearly illustrated, however, in the law of negli- dependa p-ence. For there the substance of the wrong itself is- on proba- ° _ _ ° bility of failure to act with due foresight : it has been defioed as quence, " the omissiou to do something which a reasonable man, capabUitv g^i^^'^ upon those considerations which ordinarily regulate oi being ^]jg conduct of human affairs, would do, or doing some- foreseen _ ° by a thing which a prudent and reasonable man would not man. do " (/). Now a reasonable man can be guided only by a (k) Digest of the Criminal La-w, mingham WalcrworJcs Co. (1SJ6) 11 Arts. 219, 220. Ex. 781, 25 L. J. E.x. 212. This- {J) Alderson B. in Blyth v. Bir- is not a complete definition, since DUTY OF PREVISION. reasonable estimate of probabilities. If men went about to guard themselves against every risk to themselves or others ^\hich might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behaviour wo are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order his pre- caution by the measure of what appears likely in the known course of things. This being the standard, it follows that if in a particular case (not being within certain special and more stringent rules) the harm com- plained of is not such as a reasonable man in the defendant's place should have foreseen as likely to happen, there is no wrong and no liability. And the statement proposed, though not positively laid down, in Greenland v. Chaplin {ni), namely, " that a person is expected to anticipate and guard against all reasonable consequences, but that he is not, by the law of England, expected to anticipate and guard against that which no reasonable man would expect to occur," appears to con- tain the only rule tenable on principle where the liability is founded solely on negligence. " Mischief which could by no possibility have been foreseen, and which no reasonable person would have anticipated," may be the ground of legal compensation under some rule of excep- tional severity, and such rules, for various reasons, exist ; but under an ordinary rule of due care and caution it cannot be taken into account (h). It is suggested by an a man is not liable for even wilful Law, i. 106, for a different omission without some antecedent opinion, which seems, at first groundofduty.Butofthathereafter, sight, to be supported by the dicta (m) Per Pollock C. B. (1850) 5 of Channell B. and Blackburn J. Ex. at p. 248, 82 R. R. at p. 660. in Smith v. L. # S. 11'. R. Co. in (») See Beven, Negligence in Ex. Ch. L. R. 6 C. P. 14, 21 (see 41 4',' PKINCIPLES OF LIABILITY. author whose opinions are always deserving of attention that this rule applies only "in determining what is negligence," and " not in limiting the consequences flowing from it when once established : " and the learned author works out this position in an ingenious and elaborate argument (ii). The limited scale of this book forbids me to say more than that, with all respect, I am unable to follow him. Examples: We shall now give examples on either side of the line. //<7/t. Iq j[j-/i y_ j\r^;p Hiirr Company (o), the defendant Co. company had in the course of their works caused a stream of water to spout up in the middle of a public road, without making any provision, such as fencing or watching it, for the safety of persons using the highway. As the plaintiff's horses and carriage were being driven along the road, the horses shied at the water, dashed across the road, and fell into an open excavation by the roadside which had been made by persons and for pm-poses unconnected with the water company. It was argued that the immediate cause of the injuries to man, horses and carriage ensuing upon this fall was not the unlawful act of the water company, but the neglect of the contractors who had made the cutting in leaving it open and unfenced. But the Court held that the "proximate cause" was "the first negligent act which drove the carriage and horses into the excavation." In fact it was a natiu'al consequence that frightened horses should bolt off the road ; it could more as to this case, p. 454, below). in the text). Otherwise they seem I submit that these dicta, taken against the weight of authority, with the context, mean only that («) Ibid. it is not sufficient for a defendant (o) 9 B. & S. 303 (1868) : ep. to say that he could not have Harris v. Mobis (Denman J. 1878) anticipated the consequences in 3 Ex. D. 268, which, perhaps, goes every detail (cp. the cases discussed a step farther. PROXIMATE OK REMOTE CAUSE. 4;i not be foreseen exactly wliere they would go off, or what they might run against or fall into. But some such harm as did happen was probable enough, and it "was immaterial for the purpose in hand whether the actual state of the ground was temporary or permanent, the work of nature or of man. If the carriage had gone into a river or over an embankment, or down a precipice, it would scarcely have been possible to raise the doubt. WUliams V. Great Western Railway Companij (p) is a WiUiaim stronger case, if not an extreme one. There were on a ]> ^;, ^^' portion of the company's line in Denbighshire two level crossings near one another, the railway meeting a carriage- road in one place and a footpath (which branched off fi'om the road) in the other. It was the duty of the company under certain Acts to have gates and a watchman at the road crossing, and a gate or stile at the footpath crossing ; but none of these things had been done. " On the 22nd December, 1871, the plaintiff, a child of four and a-half years old, was found lying on the rails by the footpath, with one foot severed from his body. There was no evidence to show how the child had come there {q), beyond this, that he had been sent on an errand a few minutes before from the cottage where he lived, which lay by the roadside, at about 300 yards distance from the railway, and farther from it than the point where the footpath diverged from the road. It was suggested on the part of the defendants that he had gone along the road, and then, reaching the railway, had strayed down {p) L. R. 9 Ex. 157, 43 L. J. Ex. besides the statutory precautions 105 (1874). Cp. Hayes v. Michigan proved to have been omitted, which Central Rail. Co. (1883) 111 U. S. may have been prescribed or ob- 228. served at the level crossing. It (q) Nor as to any particular may be inferred that the accident train, nor as to precautions, if any, happened in the daytime. 44 PRINCIPLES OF LIABILITY. the line ; and on the part of the plaintiff, that he had gone along the open footpath, and was crossing the line when he was knocked down and injured by the passing train." On these facts it was held that there was evidence proper to go to a jury, and on which they might reasonably find that the accident to the child was caused by the railway company's omission to provide a gate or stile. " One at least of the objects for which a gate or stile is required is to warn people of what is before them, and to make them pause before reaching a dangerous place like a railroad " (;■). Bailiffs of Mumneij Marsh v. Trinity House. In Bailiffs of Romneij JIarsh v. Trinity House (s), a Trinity House cutter had by negligent navigation struck on a shoal about three-quarters of a mile outside the plaintiffs' sea-wall. Becoming unmanageable, the vessel was inevitably driven by strong wind and tide against the sea-wall, and did much damage to the wall. It was held without difficulty that the Corporation of the Trinity House was liable (under the ordinary rule of a master's responsibility for his servants, of which hereafter) for this damage, as being the direct consequence of the first default which rendered the vessel unmanageable. Lynch v. Murdiii. Something like this, but not so simple, was Lynch v. Niirdin if), where the owner of a horse and cart left them ()•) Amphlett B., L. R. 9 Ex. at p. 162. [s] L. R. 5 Ex. 204, 39 L. J. Ex. 163 (1870) ; in Ex. Ch. L. R. 7 Ex. 247 (1872). This comes near the case of letting loose a dangerous animal ; a drifting vessel is in itself a dangerous thing. In The George and Richard (1871) L. R. 3 A. &E. 4GC, a brig hy negligent navigation ran into a bark, and disabled her ; the bark was driven on shore ; held that the OAvners of the brig were liable for injury ensuing from the wreck of the bark to persons on board her. (() 1 O.B. 29, lOL.J. Q. B. 73, 55 R. R. 191 (1S41) ; approved by 0. A., Harrold v. Vatney [1898] 2 Q. B. 320, 67 L. J. Q. B. 771 ; PROXIMATE OR REMOTE CAUSE, 45 unmatched in the street ; some children came up and began playing about the cart, and as one of them, the plaintiff in the cause, was climbing into the cart another pulled the horse's bridle, the horse moved on, and the plaintiff fell down under the wheel of the cart and was hurt. The owner who had left the cart and horse unattended was held liable for this injury. The Court thought it strictly within the province of a jury " to pronounce on all the circumstances, whether the defendant's conduct was want- ing in ordinary care, and the harm to the plaintiff such a result of it as might have been expected " (ii). In a later case the driver of a tradesman's cart, who E}igeihart had instructions not to leave the cart, had with him a lad I'c/'™"' ignorant of driving, whose only duty was to deliver parcels. McDowaii The driver went into a house to get oil for his lamp, and co.' the boy drove the cart round, meaning to have it ready for turning back. In so doing he ran into the plaintiff's carriage. It was held that the driver's original negligence in leaving the cart was the " effective cause " of the this -was not such a strong case (the truck, endeavouring with due oau- defendant had a fence bounding a tion, as it was found, to drive past highway, which was so insecure as through the narrowed fairway thus to be a nuisance ; the plaintiff, a left, struck the shafts of the defen- small child, was hurt by the fence dant's truck, which whirled round falling when he put his foot on it) : and struck and injured the plaintiff, •and cp. Clark v. Chamhers, 3 Q. B. who was on the side walk. Held, D. at p. 331. that the defendant was liable. If the case had been that the shafts of [u] This case was relied on in the truck remained on the sidewalk, Massachusetts in Fowell v. JDeveney and the plaintiff afterwards stum- (1849) 3 Gush. 300, where the de- bled on them in the dark, it would fendaut's truck had, contrary to be an almost exact parallel to local regulations, been left out in Clark v. Chamhers (3 Q. B. D. 327, ■the street for the night, the shafts 47 L. J. Q. B. 427 ; see p. 49 being shored up and projecting into below). Zytichy. Nurdin ha.B alao the road ; a second truck was simi- been approved and followed in the larly placed onithe opposite side of Sup. Ct. U. S. ; see Union Fac. Ry. the road ; the driver of a third v. McDonald (1893) 152 U. S. 262. 4G PRINCIPLES OF LIABILITY. damage, and his employer was therefore liable (*) . Negli- gence, however, must be proved. A railway company does not insure the public against every kind of damage, known or unknown, that may result from trespassers meddling with its rolling stock i Con- trasted cases of non- liability and lia- bility ; Cox v. Bnrh'ulge, Zee V. JtUei/. It will be seen that on the whole the disposition of the Courts has been to extend rather than to narrow the range of " natural and probable consequences." A pair of cases ut first sight pretty much alike in their facts, but in one of which the claim succeeded, while in the other it failed, will show where the line is drawn. If a horse escapes into a public road and kicks a person who is lawfully on the road, its owner is not liable unless he knew the horse to be vicious (2) . He was bound indeed to keep his horse from straying, but it is not an ordinary consequence of a horse being loose on a road that it should kick human beings without provocation. The rule is different however if a horse by reason of a defective gate strays not into the road but into an adjoining field where there are other horses, and kicks one of those horses. In that case the person whose duty it was to maintain the gate is liable to the owner of the injured horse {a). (.r) Engelhart v. Tarrant (f* Co. [1897] 1 Q. B. 240, 66 L. J. Q. B. 122, C. A. ()/) JIcBowall V. G. TT. S. Co. [1903] 2 K. B. 331, 72 L. J. K. B. 652, C. A. Here the C. A. pointed out that the precautious suggested by the plaintiii's counsel would not necessarily or probably have been more efEectual than those in fact adopted. Contrast this with iJ. S. Co. V. Stout (1873) 17 WaU. 657, a case on the other side of the line. (z) Cox v. BurUdge (1863) IS C. B. N. S. 430, 32 L. J. C. P. 89. (ff) Lee v. SiJey (1865) 18 C. B. N. S. 722, 34 L. J. C. P. 212. Both decisions were unanimous, and two judges (Erie C. J. and Keating J.) took part in both. Cp. Ellis T. Loftiis Iron Co., L. E,. 10 C. P. 10, 44 L. J. C. P. 24 ; Hale- strap V. Gregory [1895] 1 Q. B. 501, 64 L. J. Q. B. 415, a case on the border-line, per Wills J. PROXIMATE OR REMOTE CAUSE. ■*' The leading case of JletropoUtan Hi/. Co. v. Jachon (b) jV,/,;,- is in truth of this class, though the problem arose and A\'iis Si/. Co. v. considered, in form, upon the question whether there was any evidence of negligence. The plaintiff was a passenger in a carriage ah-eady over-full. As the train was stopping at a station, he stood up to resist yet other persons who had opened the door and tried to press in. While he was thus standing, and the door was open, the train moved on. He laid his hand on the door-lintel for support, and at the same moment a porter came up, turned off the intruders, and quickly shut the door in the usual manner. The plaintiff's thumb was caught by the door and crushed. After much difference of opinion in the Courts below, mainly due to a too hteral fol- lowing of certain previous authorities, the Hou.se of Lords unanimously held that, assuming the failure to prevent overcrowding to he negligence on the company's part, the hurt suffered by the plaintiff was not nearly or certainly enough connected with it to give him a cause of action. It was an accident which might no less have happened if the carriage had not been overcrowded at all. Unusual conditions brought about by severe frost have Non- more than once been the occasion of accidents on which i^i- mJ- untenable claims for compensation have been founded, the pf'^^'^^'^^^^i Courts holding that the mishap was not such as the party state of ° things : charged with causing it by his negligence could reasonably jj/^i/^ ^_ be expected to provide against. In the memorable f,'™""^' "Crimean winter" of 18-54-5 a fire-plug attached to 'r«to- toorks Co. one of the mains of the Birmmgham Waterworks Company was deranged by the frost, the expansion of superficial ice forcing out the plug, as it afterwards (i) 3 App. Ca. 193, 47 L. J. G. W. M. Co. [1893] 1 Q. B. 439, C. P. 303 (1877). Cp. Cobb v. 62 L. J. Q. B. 335. 48 PRINCIPLES OF LIABILITY. seemed, and tlie water from the main being dammed by incrusted ice and snow above. The escaping water found its way through the ground into the cellar of a private house, and the occupier sought to recover from the company for the damage. The Court held that the accident was manifestly an extraordinary one, and beyond any such foresight as could be reasonably required (c). Here nothing was alleged as constituting a -nTong on the company's part beyond the mere fact that they did not take extraordinary precautions. Sharp Y. The later case of Sharp v. Powell Id) goes farther, as the story begins with an act on the defendant's part which was a clear breach of the law. He caused his van to be washed in a public street, contrary to the Metropolitan Police Act. The water ran down a gutter, and would in fact (e) (but for a hard frost which had then set in for some time) have run harmlessly down a grating into the sewer, at a corner some twenty-five yards from where the van was washed. As it happened, the grating was frozen over, the water spread out and froze into a sheet of ice, and a led horse of the plaintiff's slipped thereon and broke its knee. It did not appear that the defendant or his servants knew of the stoppage of the grating. The Court thought the damage was not " within the ordinary consequences " (/) of such an act as the defen- dant's, not " one which the defendant could fairly be (e) Bltitli V. Birminciham Water- Cp. Mayne on Damages, Preface to loorks Co. (1856) 11 Ex. 781, 25 the first edition. L. J. Ex. 212. The question was , ,, ^ -p „ „ t> . , . , c A (rf) L. K. 7 C. P. 2o3, 41 L. J. not really 01 remoteness 01 damage q p gg /loyoN but whether there was any evidence of negligence at all ; nevertheless {'') So the Court found, having the case is instructive for com- power to draw inferences of fact. parison with the others here cited. (/) Grove J. PROXIMATE OR REMOTE CAUSE. 49 expected to anticipate as likely to ensue from his act "(<;): he " could not reasonably be expected to foresee that the water would accumulate and freeze at the spot where the accident happened " (/(). Some doubt appears to be cast on the rule thus laid Quostioc, down — which, it is admitted, is the right one — by what same mie was said a few years later in Clark v. Chambers («), though ^.^ase. not by the decision itself. This case raises the question '^'■J^^'^'^^ "^ whether the liability of a wrong-doer may not extend wrong: even to remote and unlikely consequences where the q^I^i^icis. original wrong is a wilful trespass, or consists in the unlawful or careless use of a dangerous instrument. The main facts were as follows : — 1 . The defendant without authority set a barrier, partly armed with spikes (chevaux-de-frise), across a road subject to other persons' rights of way. An opening was at most times left in the middle of the barrier, and was there at the time when the mischief happened. 2. The plaintiff went after dark along this road and through the opening, by the invitation of the occupier of one of the houses to which the right of using the road belonged, and in order to get to that house. 3. Some one, not the defendant or any one authorized by him, had removed one of the chevaux-de-frise barriers, and set it on end on the footpath. It was suggested, but not proved, that this was done by a person entitled to use the road, in exercise of his right to remove the unlawful obstruction. 4. Eetiirning later in the evening from his friend's house, the plaintiff, after safely passing through the central opening above mentioned, turned on to the (g) KeatiBg J. W 3 Q. B. D. 327, 47 L. J. Q. B. (A) BoviU C. J. 427 (1878). 50 PRINCIPLES OF LIABILITY. footpath. He there came against the chevaux-de-frise thus displaced (which he could not see, the night being very dark) , and one of the spikes put out his eye. After a verdict for the plaintiff the ease was reserved for further consideration, and the Court (A:) held that the damage was nearly enough connected with the defendant's first wrongful act — namely, obstructing the road with instruments dangerous to people lawfully using it — for the plaintiff to be entitled to judgment. It is not obvious why and how, if the consequence in Clark V. Chambers was natural and probable enough to justify a verdict for the plaintiff, that in Sharp v. Poirel! was too remote to be submitted to a jury at all. The Court did not dispute the correctness of the judgments in Sharp v. PoweU " as applicable to the circumstances of the particular case ; " but their final observations {!) certainly tend to the opinion that in a case of active wrong-doing the rule is different. Such an opinion, it is submitted, is against the general weight of authority, and against the principles underlying the authorities («?) . However, their conclusion may be supported, and may have been to some extent determined, by the special rule imposing the duty of what has been called "consummate caution " on persons dealing with dangerous instruments. Conse- Perhaps the real solution is that here, as in Hill v. New natural in Rivvr Co. (ji), the kind of harm which in fact happened thou"-h might have been expected, though the precise manner in (/,;) Cockburn C. J. and Manisty {>«) Compare the cases on slander J. The point chiefly argued for the collected in the notes to Viears v. defendant seems to have been that Wilcoclcs, 2 Sm. L. C. Compare the intervention of a third person's also, as to consequential Liability act prevented him from being for disregard of statutory provi- liable : a position which is clearly sions, Gorris v. Scott (1874) L. E. untenable (see Scott v. Shepherd) ; 9 Ex. 125, 43 L. J. Ex. 29. but the judgment is of Tvider scope. (I) 3 Q. B. D. at p. 338. («) P. 42, above. NERVOUS SHOCK. 'JJ which it happened was determined by an extraneous not in accident. If in this case the spikes had not been stance, disturbed, and the plaintiff had in the dark missed the free space left in the barrier, and run against the spiked part of it, the defendant's liability could not have been disputed. As it was, the obstruction was not exactly where the defendant had put it, but stiU it was an obstruction to that road which had been wrongfully brought there by him. He had put it in the plaintiff's way no less than Shepherd put his squib in the way of striking Scott ; whereas in Sharp v. Powell the mischief was not of a kind which the defendant had any reason to foresee. The turn taken by the discussion in Clarl- v. Chambers was, in this view, unnecessary, and it is to be regretted that a considered judgment was delivered in a form tending to unsettle an accepted rule without putting anything definite in its place. On the whole, I submit that, whether Clarl; v. Chambers can stand with it or not, both principle and the current of authority concur to maintain the law as declared in Sharp v. Poicell. Where a wrongful or negligent act of A. threatening Damages Z. with immediate bodily hurt, but not causing such hurt, y°ug ^^^' produces in Z. a sudden terror or " nervous shock," from '^^'^t^L •which bodily illness afterwards ensues, is this damage too -whether remote to enter into the measure of damages if A.'s act mote, was an absolute wrong, or to give Z. a cause of action if actual damage is the gist of the action? The Judicial Committee decided in 1888 (o) that such consequences are too remote ; but it is submitted that the decision is not satisfactory. A husband and wife were driving in a buggy across a level railway crossing, and, through the (o) Victorian Railways Commissioners \. Coultas, ISApp, Ca. 222, 57 L.J. P. C. 69. e2 52 PRINCIPLES OF LIABILITY. obvious and admitted negligence of the gatekeeper, the buggy was nearly, but not quite, run down by a train ; the husband " got the buggy across the line, so that the train, which was going at a rapid speed, passed close to the back of it, and did not touch it." The wife then and there fainted, and it was proved to the satisfaction of the Court below "that she received a severe nervous shock from the fright, and that the illness from which she after- wards suffered was the consequence of the fright." It may be conceded that the passion of fear, or any other emotion of the mind, however painful and distressing it be, and however reasonable the apprehension which causes it, cannot in itself be regarded as measurable temporal damage; and that the judgment appealed from, if and so far as it purported to allow any distinct damages for " mental injuries " (7;), was erroneous. But their lordships seem to have treated this as obviously involving the fur- ther proposition that physical illness caused by reasonable fear is on the same footing. This does not follow. The true question would seem to be whether the fear in which the plaintiff was put by the defendant's wrongful or negligent conduct was such as, in the circumstances, would naturally be suffered by a person of ordinary courage and temper, and such as might thereupon naturally and probably lead, in the plaintiff's case (17), to the physical effects complained of. Fear taken alone falls short of being actual damage, not because it is a remote or unlikely consequence, but because it can be proved and {p) It is by no means clear that So, as regards the measure of such was the intention or effect. damages when liability is not See the report, 12 V. L. E. 895. denied, the defendant has to take his chance of the person disabled (•) Dig. Cr. Law, note to art. ■221 ; Hist. Cr. Law, iii. 5. (.s) Cp. Mr. Seven's criticism of this case, Negligence in Law, i. 76, 84. As he justly points oat, it has never been questioned that an action may lie for damage done by an animal which has teen frightened by the defendant's negligent act : Manchester South Jn. E. Co. v. FuUarton (1863) 14 C. B. N. S. 54 ; Simkin V. i. # N. W. E. Co. (1888) 21 Q. B. Div. 453, 59 L. T. 797 ; Erown v. Eastern and 2[idlands E. Co. (1889) 22 Q. B. Div. 391, 68 Ij. J. Q. B. 212. The Exchequer Division in Ireland has refused to follow this doctrine of the Judicial Committee : Bell v. G. N. E. Co. (1890) 26 L. R. Ir. 428. And see Ames, Sel. Ca. on Torts, 16, 16. In Eagh V. i. B. ^ S. C. E. Co. [1896] 2 Q. B. 248, 65 L. J. Q. B. 621, the C. A. avoided expressing any opinion on the point. In New York, however, a similar case has been decided in accordance with the Judicial Committee's view : Mitchell V. E. E. Co. (1896) 151 N. T. 107 ; and the same line has been taken in Massachusetts : Spade V. Zi/nn ^ Boston E. E. (1897) 168 Mass. 285. The American decisions are considered in iJulieu V. White f Sons, note (m) below. {t) Wil/iinson v. Bownton [1897] 2 Q. B. 57, 66 L. J. Q. B. 493. (m) HulieiiY. White 1^- Sons llSOl} 2 K. B. 669, 70 L. J. K. B. 837. Phillimore J. thought it material that the plaintiff was not on the highway but in her house. We venture to think this a needless refinement. (x) See Mayne on Damages, 7th ed. 61—55. 54 Personal status, as a rule, imma- terial in law of tort : but capacity in fact may be material. CHAPTEE III. PERSONS AFFECTED BY TORTS. 1. — Limitations of Personal Capacity. In the law of contract various grounds of personal dis- ability have to be considered with some care. Infants, married women, lunatics, are in different degrees and for different reasons incapable of the duties and rights arising out of contracts. In the law of tort it is other- wise. Generally speaking, there is no limit to personal capacity either in becoming liable for civil injuries, or in the power of obtaining redress for them. It seems on principle that where a particular intention, knowledge, or state of mind in the person charged as a wrong-doer is an element, as it sometimes is, in constituting the- alleged wrong, the age and mental capacity of the person- may and should be taken into account (along with other relevant circumstances) in order to ascertain as a fact whether that intention, knowledge, or state of mind was- present. But in every ease it would be a question of fact, and no exception to the general rule would be established or propounded {a). An idiot would scarcely be held answerable for incoherent words of vituperation, though, (a) Ulpian, in D. 9, 2, ad. leg. Aquil. 5, § 2. Quaerimus, sifuriosus damnum dederit, an legis Aquiliae actio sit ? Et Pegasus negavit : quae enim in eo culpa sit, cum suae mentis nou sit ? Et hoc est ■pcrissimum. . . . Quod si impube.s id feoerit, Labeo ait, quia furti tenetur, teneri et Aquilia eum : et hoc puto verum, si sit iam iniuriae capax. LUNATICS. if uttered by a sane man, they might be slander. But this would not help a monomaniac who should write libellous post-cards to aU the people who had refused or neglected, say to supply him with funds to recover the Grown of England. The amount of damages recovered might be reduced by reason of the evident insignificance of such libels ; but that would be all. Again, a mere child could not be held accountable for not using the discretion of a man ; but an infant is certainly liable for all wrongs of omission as well as of commission in matters where he was, in the common phrase, old enough to know better. It is a matter of common sense, just as we do not expect of a blind man the same actions or readiness to act as of a seeing man. It has been held in New Zealand (b) that a lunatic is civilly liable for assault (presumably, therefore, for any kind of trespass) even if he is uncon- scious of the nature and consequences of his acts and in- capable of understanding them. This, it is submitted, is erroneous in principle and not required by any English authority. The defence is not that the actor was insane, but that there was no real voluntary act at all. Liability can be imposed in such a case only on the obsolete theory (to be considered in Chap. IV. below) that inevitable acci- dent is no excuse. Difficulties of any degree may, no doubt, have to be faced in determining whether a given act was voluntary. But they may seem less formidable if we bear in mind that it is essentially a question of fact, and that the burden of proof is on the party who alleges abnoi-mal conditions. It is by no means suggested that (b) JBre/inanv. Donaffht/jWN.Z. 60,61. And see detailed comment L. R. 289. The Court seems to on the N. Z. case by H. Dean have been influenced by American Bamford, Commonwealth Law Rev. decisions, which, however, are not iv. 3. Would the New Zealand approved by at least one learned Court hold a delirious fever patient American critic, Burdick on Torts, liable? If not, why not ? 'JO PERSONS AFFECTED BY TORTS. tlieories of psychology, normal or abnormal, should be made propositions of law. The errors of common sense are more tolerable, on the whole, than those of specula- tions ; at all events they are more easily corrected. Partial or There Gxist partial exceptions, however, in the case of exoep- convicts and alien enemies, and apparent exceptions as tions : ^Q infants and married women. Convicts and alien enemies. Infants : contract not to be indirectly i'nforced by suing in tort. A convicted felon whose sentence is in force and un- expired, and who is not "lawfully at large under any licence," cannot sue " for the recovery of any property, debt, or damage whatsoever " (c). An alien enemy cannot sue in his own right in any English court. Nor is the operation of the Statute of Limitations suspended, it seems, by the personal disability {d). With regard to infants, there were certain cases under the old system of pleading in which there was an option to sue for breach of contract or for a tort. In such a case an infant could not be made liable for what was in truth a breach of contract by framing the action ex delicto. " Tou cannot convert a contract into a tort to enable you to sue an infant: Jennings v. Hunda/l" (e). And the principle goes to this extent, that no action lies against an infant for a fraud whereby he has induced a person to contract with him, such as a false statement that he is of full age(/). {c) 33 & 34 Vict. c. 23, ss. 8, SO. Can he sue for an injunction? Or' for a dissolution of marriage or judicial separation ? {d] SeeDeWahlv.Srauiie{lS56) 1 H. & N. 178, 25 L. J. Ex. 343 (alien enemy ; the law must be the same of a oouyict). («) 8 T. R. 335, 4 R. R. 680, thus cited by Parke B., Fairhurst V. Lirerpool AdeJphi Loan Associa- tion (1854) 9 Ex. 422, 23 L. J. Ex. 163. (/) Johnson V. Fie, 1 Sid. 258, &o. See the report fully cited by Knight Bruce V.-C. (1847) in Stikeman v. INFANTS. 57 But where an infant commits a wrong of which a con- Limits of tract, or the obtaining of something under a contract, is indepen- the occasion, but only the occasion, he is liable. In ^^m. wronars. Burnard v. Haggis (g), the defendant in the County Court, an infant undergraduate, hired a horse for riding on the express condition that it was not to be used for jumping ; he went out with a friend who rode this horse by his desire, and, making a cut across country, they jumped divers hedges and ditches, and the horse staked itself on a fence and was fatally injured. Having thus caused the horse to be used in a manner wholly unauthorized by its owner, the defendant was held to have committed a mere trespass or " independent tort" (h), for which he was liable to the owner apart from any question of contract, just as if he had mounted and ridden the horse without hiring or leave. Also it has been established by various decisions in infant the Court of Chancery that " an infant cannot take l^^^ ^^^ advantage of his own fraud:" that is, he may be ^''-'mtage of compelled to specific restitution, where that is possible, fraud. of anything he has obtained by deceit, nor can he hold other persons liable for acts done on the faith of his false statement, which would have been duly done if the statement had been true (i). Thus, where an infant had obtained a lease of a furnished house by representing himself as a responsible person and of full age, the lease Dawson, 1 De G. & Sm. at p. 113, the old forms of pleading he would and cp. the remarks at p. 110; 75 have been liable at the owner's R. R. at pp. 61, 64. election in case or in trespass vi ef ig) 14 C. B. N. S. 45, 32 L. J. minis. See Litt. s. 71. C. P. 189 (1863). {h) See per Willes J. If the (i) Lemprih-e t. Laiiffe (1879) 12 bailment had been at wiU, the de- Ch. D. 675 ; and see other cases in fendant's act would have whoUy the writer's "Principles of Con- determined the bailment, and under tract," pp. 76 — 78, 7th ed. 58 PERSONS AFFECTED BY TOETS. Married women : the com- mon law. was declared void, and the lessor to be entitled to delivery of possession, and to an injunction to restrain the lessee from dealing with the furniture and effects, but not to damages for use and occupation («) . As to married women, a married woman was by the common law incapable of binding herself by contract, and therefore, like an infant, she could not be made liable as for a wrong in an action for deceit or the like, when this would have in substance amounted to making her liable on a contract {j). In other cases of wrong (including, as with infants, wrongs of which a contract was only the occasion) (li) she was not under any disability, nor had she any immunity; but she had to sue and be sued jointly with her husband, inasmuch as her property Avas the husband's ; and the husband got the benefit of a favourable judgment and was liable to the consequences of an adverse one. Married Women's I'roperty Since the Married Women's Property Act, 1882, a married woman can acquire and hold separate property Act, 1882. j^j^ jjgj, Q^j^ name, and sue and be sued without joining her husband. If she is sued alone, damages and costs recovered against her are payable out of her separate property (/). If a husband and wife sue jointly for personal injuries to the wife, the damages recovered are the wife's separate property [in). She may sue her own (j) See note (i), p. 57, supra. [j) Fairhitnt^. Liverpool Adelphi Loan Association (1854) 9 Ex. 422, 23 L. J. Ex. 163. (k) Earlp v. Kingscote [1900] 2 Ch. 685, 69 L. J. Ch. 725, G. A. (?) 45 & 46 Vict. u. 75, s. 1. As to the right of action, and the operation of the Statute of Limi- tation, on a cause of action which arose before the Act came into operation, see TJ'ddon v. irinsluw (1884) 13 Q. B. Div. 784, 63 L. J. Q. B. 528; Lowe v. Fox (1885) 15 Q. B. Div. 667, 54 L. J. Q. B. 561. (m) BeasUy v. Itonexj [1891] 1 Q. B. 509, 60 L. J. Q. B. 408. MARRIED WOJI£X. ''■• husband, if necessary, '' for the protection and security of her own separate property;" b\\t otherwise actions for a tort between husband and wife cannot be entertained [n). That is, a wife may sue her husband in an action which under the old forms of pleading would have been trover for the recovery of her goods, or for a trespass or nuisance to land held by her as her separate property ; but she may not sue him in a civil action for a personal wrong- such as assault, libel, or injury by negligence. Divorce does not enable the divorced wife to sue her husband for a personal tort committed during the coverture (o) . There is not anything in the Act to prevent a husband and wife from suing or being sued jointly according to the old practice ; the husband is not relieved from liability for wrongs committed by the wife during coverture, and may still be joined as a defendant at need. If it were not so, a married woman having no separate property might commit wrongs with impunity {p). If husband and wife are now jointly sued for the wife's wrong, and execution issues against the husband's property, a question may possibly be raised whether the husband is entitled to indemnity from the wife's separate property, if in fact she has any {q) . There is some authority for the doctrine that by the Common law li;i- («) Sect. 12. A trespasser on (o) PhUhps v. Sanwt (187G) 1 the wife's separate property can- Q.B.Div. 435, 45 L. J. Q. B. 277. not justify under the husband's {p) Seroka v. Xattriiburg (1886) authority. Whether the husband 17 Q. B. Div. 177, 55 L. J. Q. B. himself could justify entering a 375, approved in C. A. luirle v. house, his wife's separate property, Kingncote [1 900] 2 Ch. 585, 69 L. J. jioquired as such before or since the Ch. 72.3. Act, in which she is living apart, (q) Sect. 13, which expressly qiimre : Weldon y. J)e Bathe (1884) provides for ante-nuptial liabilities, 14 Q. B. Div. 339, 54 L. J. Q. B. is rather against the existence of 113. such a right. 60 PERSONS AFFECTED BY TORTS. bility of infants and married womea limited, according- to some, to wrongs <'ontra pacem. Corpora- tions. common law both, infants (r) and married women (s) are liable only for " actual torts " such as trespass, which were formerly laid in pleading as contra pacem, and are not in any case liable for torts in the nature of deceit, or, in the old phrase, in actions which " sound in deceit." But this does not seem acceptable on principle. As to corporations, it is evident that personal injuries, in the sense of bodily harm or offence, cannot be inflicted upon them. Neither can a corporation be injured in respect of merely personal reputation. It can sue for a libel affecting property, but not for a libel purporting to charge the corporation as a whole with corruption, for example. The individual officers or members of the corporation whose action is reflected on are the only proper plaintiffs in such a case (t). It would seem at first sight, and it was long supposed, that a corporation also cannot be liable for personal wrongs (?f). But this is ()•) Johnson v. Fie, p. 56, supra {a dictum wider than the decision). (s) JVriffJU V. Leonard (1861) 11 C. B. N. S. 258, 30 L. J. C. P. 365, by Erie C. J. and Byles J., against Willes J. and Williams J. The judgment of Willes J. seems to me conclusive. (t) Mafior of Manehcster v. Wil- Unms [1891] 1 Q. B. 94, 60 L. J. Q. B. 23. (n) The difficulty felt in earlier times was one purely of process ; not that a corporation was meta- physically incapable of doing wrong, but that it was not physi- cally amenable to capias or exigent: •22 Ass. 100, pi. 67, and other authorities collected by Serjeant IVfanning in the notes to Mannd v. Monmouthshire C'unal Co., 4 Man. & G. 452. The metaphysical fallacy seems however to have prevailed in the fifteenth century : T. B. 15 Ed. IV. 1, pi. 2, per Brian C. J. and the Court. But it was decided in the case just cited (1842) that trespass, as earlier in Yarboroiigh v. Bank of England (1812) 16 East 6, 14 R. R. 272, that trover would lie against a corporation aggregate, in Massachusetts a corporation has been held liable for the publication of a libel : logg v. Boston and Lowell R. Co. (1889) 148 Mass. 513. And see per Lord Bram well, 11 App. Ca. at p. 254. On the whole, the Common Law, whether it has any definite theory about the nature of corporations or not (as I think it has not), has not accepted the "fiction" theory of the medieval civilians in its consequences. CORPORATIONS. fil really part of the larger question of the liability of prin- cipals and employers for the conduct of persons employed by them ; for a corporation can act and become liable only through its agents or servants. In that connexion we recur to the matter further on. The greatest difi&culty has been felt in those kinds of eases where " malice in fact " — actual ill-will or evil motive — has to be proved ; but in the strongest case, that of malicious prosecution, the objection may now be con- sidered untenable (.r). Where bodies of persons, incorporated or not, are in- Rosponsi- trusted with the management and maintenance of works, pubUc" or the performance of other duties of a public nature, they ^o'^'<^s ^°^ ■•^ r ' .J manage- are in their corporate or quasi- corporate capacity respon- ment of "works ScG sible for the proper conduct of their undertakings no less under' than if they were private owners : and this whether they ooXol. derive any profit from the undertaking or not (ij) . The same principle has been applied to the management of a public harbour by the executive government of a British colony (z). The rule is subject, of course, to the special statutory provisions as to liability and remedies that may exist in any particular case («) . (x) It was abandoned by counsel (1864-6) L. R. 1 H. L. 93, 35 L. J. in Cornford v. Carlton Bank [1900] Ex. 225 ; see the very full and 1 Q. B. 22, 68 L. J. Q. B. 1020, careful opinion of the judges de- C. A. ; and the action was held to livered by Blackburn J., L. R. 1 lie by the Judicial Committee H. L. pp. 102 sqq., in which the (Lord Macnaghten, Lord Davey, previous authorities are reviewed ; Lord Lindley, and Sir A. Wilson) The Beam [1906] P. 48, 75 L. J. P. in Citizens' Life Assurance Co. v. 9, C. A. Broun [1904] A. C. 423, 73 L. J. (z) Reg. v. TH/Kams (appeal from p Q 102. NewZealaud)(1884)9App.Ca.418. (y) Mersey Doclcs Trustees v. Gibbs {a) L. R. 1 H. L. 107, 110. rtiiii per- sona. PERSONS AFFECTED BY TOKTS. 'I.— Effect of a Parti/'s Death. Effect of AVe have next to consider the effect produced on liability death of - either lor a Wrong by the death oi either the person wronged or ^f^.'"' the wrong-doer. This is one of the least rational parts of Acho per- ° "■ -vjnaiix our law. The common law maxim is actio pcrsoiiatin moiitur cum persona, or the right of action for tort is put an end to by the death of either party, even if an action has been commenced in his lifetime. The maxim " is one of some antiquity, but its origin is obscure and post-classical "(&) . Causes of action on a contract are quite as much " personal " in the technical sense, but, -n-ith the exception of promises of marriage, and (it seems) injuries to the person by negligent performance of a con- tract, the maxim does not apply to these. In cases of tort not falling within statutory exceptions, to be presently mentioned, the estate of the person wronged has no claim, and that of the wrong-doer is not liable. Where an action on a tort is referred to arbitration, and one of the parties dies after the hearing but before the making of the award, the cause of action is extinguished notwithstanding a clause in the order of reference providing for delivery of the award to the personal representatives of a party dying before the award is made. Such a clause is insensible with regard to a cause of action in tort ; the agreement for reference being directed merely to the mode of trial, and not extending to alter the rights of the parties (r). A very similar rule existed in Eoman law, with the modi- fication that the inheritance of a man who had increased his estate by dolus was bound to restore the profit so (J) Bowen and Fry L. JJ., the maxim generally. Fmlay \. Chirney (1888) 20 Q. B. [c] Bowkcr v. Erans (1885) 15 Div. 494, 502, 67 L. J. Q. B. 247 ; Q. B. Dir. 565, 54 L. J. Q. B. see this judgment on the history of 421. ACTIO PERSONALIS, ETC. t)'^ gained, and tliat in some oases heirs might sue but could not he sued {d). Whether derived from a hasty following of the Roman rule or otherwise, the common law know no such variations ; the maxim was absolute. At one time it may have been justified by the vindictive and quasi-criminal character of suits for civil injuries. A process which is still felt to be a substitute for private war may seem incapable of being continued on behalf of or against a dead man's estate, an impersonal abstrac- tion represented no doubt by one or more living persons, but by persons who need not be of kin to the deceased. Some such feeling seems to be imphed in the dictum, " If one doth a trespass to me, and dieth, the action is dead fllso, because it should be inconvenient to recover against one who was not party to the wrong" (e). Indeed, the survival of a cause of action was the exception in the earliest English law (/) . But when once the notion of vengeance has been put A barbar- O US pulfi aside, and that of compensation substituted, the rule actio personalis moritur cum persona seems to be without plausible ground. First, as to the liability, it is impossible to see why a wrong-doer's estate should ever be exempted from making satisfaction for his wrongs. It is better that the residuary legatee should be to some extent cut short than that the person wronged shoiild be deprived of redress. The legatee can in any case take only what prior claims leave for him, and there will be no hardship in his taking {d) I. iv. 12, deperpetuis et tern- English maxim is nothing but a, poralibus actionibus, 1. Another misreading of i)OOT«Hs. difierence in favour of the Roman ^^^^^^ ^ ^ .^ Tear-Book law is that death of a party after ^^^^^^ ^^ ^^ ^^^^_ Utis coniestatio did not abate the action in any case. It has been conjectured that personalis in the (/) 20 Q. B. Div. 503. 6i PERSONS AFFECTED BY TORTS. sulDJect to all obligations, ex delicto as well as ex contractu, to which his testator was liable. Still less could the re- versal of the rule be a just cause of complaint in the case of intestate succession. Then as to the right : it is sup- posed that personal injuries cause no damage to a man's estate, and therefore after his death the wrong-doer has nothing to account for. But this is oftentimes not so in fact. And, in any case, why should the law, contrary to its own principles and maxims in other departments, pre- sume it, in favour of the wrong-doer, so to be ? Here one- might almost say that omnia prae&umuntur pro spoliatore. Personal wrongs, it is allowed, may " operate to the tem- poral injury " of the personal estate, but without express allegation the Court will not intend it {g) , though in the case of a wrong not strictly personal it is enough if such damage appears by necessary implication (A). The bur- den should rather lie on the wrong-doer to show that the estate has not suffered appreciable damage. But it is needless to pursue the argument of principle against a rule which has been made at all tolerable for a civilized country only by a series of exceptions («') ; of which presently. Extension The rule is even carried to this extent, that the death of in odorii ^ human being cannot be a cause of action in a civil Court V. Gilktt. jiqj. ^ pgpson not claiming through or representing the per- son killed, who in the case of an injury short of death would have been entitled to sue. A master can sue for injuries done to his servant by a wrongful act or neglect,, whereby the service of the servant is lost to the master. Biit if the injury causes the servant's death, it is held, and ((?) Chamberlain v. Williamson, C. P. Div. 40, 48 L. J. C. P. 1. 2 M. & S. at p. 414, 15 R. R. at p. 297. {') C!p- Bentham, Traites de (A) Twycross v. Orani (1878) 4 Legislation, vol. ii. pt. 2, o. 10. ACTIO PERSONALIS, ETC. (j'J the Court of Appeal considers it settled by authority, that the master's right to compensation is gone (/r). There is much to be said on principle for the dissent expressed by BramweU B. in the Coui-t of Exchequer. At all events " actio personalis moritur cum persona " will not serve in this case. Here the person who dies is the servant ; his own cause of action dies with him, according to the maxim, and his executors cannot sue for the benefit of his estate (/) . But the master's cause of action is altogether a different one. He does not represent or claim through the servant; he sues in his own right, for another injury, on another estimation of damage ; the two actions are independent, and recovery in the one action is no bar to recovery in the other. It is alleged on the other hand that " the policy of the law refuses to recognize the interest of one person in the death of another " {in) — a reason which would make life insurance and leases for lives illegal. Another and equally absurd reason sometimes given for the rule is that the value of human life is too great to be estimated in money : in other words, because the compensation cannot be adequate there shall be no compensation at all (ii). But the Court of Appeal has declared the question not open. One can only indulge a faint hope that it may be more freely considered some day by the House of Lords. {k) Osiorn t. Gillett (1873) L. E. persons, not the estate as such. 8 Er. 88, 42 L. J. Ex. 53, diss. , \ r -o o -c j- nn ' ' (m) L. R. 8 Ex. at p. 90, arg. Bramwell B. ; Clark v. London General Omnibus Co. [1906] 2 K. B. («) The Roman lawyers, how- 648 7.5 L. J. K. B. 907 C. A. ever, seem to have held a like view. Oslon, V. Gilhtt had already been "Libermn corpus nullam recipit followed in Canada in J/o»o^,^a» V. aestimationem : " D. 9. 3, de his Morn (1882) 7 Can. S. C. R. 409, V^ effud., 1, Ij 5 ; of. h. t. 7, a,nd 458. - - . D. 9. 1, si quadrupcs, 3. See Grueber on the L As to the law of suit' for the'benefit of certain '^- Q- ^- ^- l^^. {1} Under Lord CampbeU's Act Grueber on the Lex Aquiha, p. 17. (,«/ra, p. 67) they may have a right ^s to the law of Scotland, see fi*) PERSONS AFFECTED BY TORTS. Excep- "\Y'e now proceed to the exceptions. The first amend- Sfcatutesof ment was made as long ago as 13-30, by the statute Ed. III. ^ -j^^ jjj p_ Y^ of which the English version runs thus : executors Item, whereas in times past executors have not had smt for actions for the trespass done to their testators, as of the respa&scb. ^^^^^ ^^^ chattels of the same testators carried away in their life, and so such trespasses have hitherto remained unpunished; it is enacted that the executors in such cases shall have an action against the trespassers to recover damages in like manner as they, whose executors they be, should have had if they were in life. The right was expressly extended to executors of executors by 25 Ed. III. st. 5, c. 5, and was construed to extend to administrators (o). It was held not to include injuries to the person or to the testator's freehold, and it does not include personal defamation, but it seems to extend to all other wrongs where special damage to the personal estate is shown (^;) . onvm. Then by 3 & 4 Will. IV. c. 42 (a.d. 1833) actionable iriiuries to injuries to the real estate of any person committed within property, gj^. calendar months before his death may be sued upon by his personal representatives, for the benefit of his personal estate, within one year after his death : and a man's estate can be made liable, through his personal representatives, for wrongs done by him within six calendar months before his death " to another in respect of his property, real or personal." In this latter case the action must be brought against the wrong-doer's representatives within six months after they have entered (o) See note to Pinchoti's case, 9 Satchard v. Mcge (1887) 18 Q. B. Co. Rep. 89 a, vol. v. p. 161 in ed. D. 771, 56 L. J. Q. B. 397 ; Oakey 1826. V. Daltmi (1887) 35 Ch. D. 700, 56 [p] Twycross v. Grant (1878) 4 L. J. Ch. 823. C. P. Div. 40, 45, 48 L. J. C. P. 1 ; LORD Campbell's act. *^7 on tlieir office. Under this statute the executor of a tenant for life has been held liable to the remainderman for waste or nuisance committed during the tenancy {q). If the injury is of a continuing nature and creates a continuing cause of action it is immaterial that nothing active was done sis months before the death (r) . Nothing in these statutes affects the case of a personal No ri^ht injury causing death, for which according to the maxim jo^ jam- there is no remedy at all. It has been attempted to ^^f^goual maintain that damage to the personal estate by reason estate cou- . sequential of a personal injury, such as expenses of medical atten- onrer- dance, and loss of income through inability to work or injury, attend to business, will bring the case within the statute of Edward III. But it is held that " where the cause of action is in substance an injury to the person," an action by personal representatives cannot be admitted on this ground : the original wrong itself, not only its conse- quences, must be an injury to property (s). Railway accidents, towards the middle of the nineteenth Lord century, brought the hardship of the common law rule beirsAct: into prominence. A man who was maimed or reduced [!^°j:^t''"^ to imbecility by the negligence of a railway company's created servants might recover heavy damages. If he died of his injuries, or was killed on the spot, his family might be ruined, but there was no remedy. This state of things brought about the passing of Lord Campbell's (q) Woodhouse v. TTalker (1880) 5 (1876) 1 Q. B. D. 599, 45 L. J. Q. B. Div. 404, 49 L. J. Q. B. 609. Q. B. 557; the earlier case of Ir) Jinl;s v. Viscount CUfden Bradshaw v. Lancashire and Yorlc- [1897] 1 Ch. 694, 66 L. J. Oh. 338. shire E. Co. (1875) L. "R. 10 C. P. (.s) Fulling v. G. JE. R. Co. (1882) 189, 44 L. J. 0. P. 148, is doubted, 9 Q. B. JD. 110, 51 L. J. Q. B. but distinguished as being on an 453 ; cp. Leggott v. G. JV. M. Co. action of contract. f2 68 PERSONS AFFECTED BY TORTS. Act (9 & 10 Vict. c. 93, a.d. 1846), a statute extremely characteristic of Englisli legislation {t). Instead of abolishing the barbarous rule which was the root of the mischief complained of, it created a new and anomalous kind of right and remedy by way of exception. It is entitled "An Act for compensating the Families of Persons killed by Accidents " : it confers a right of action on the personal representatives of a person whose death has been caused by a wrongful act, neglect, or default such that if death had not ensued that person might have maintained an action (ii) ; but the right conferred is not for the benefit of the personal estate, but " for the benefit of the wife, husband, parent, and child " (.r) of the person "whose death shall have been so caused." The action must be commenced within twelve calendar months after the death of the deceased person (s. 3) . Damages have to (t) The official short title of the Act is now The Fatal Accidents Act, 1846. It appears to have been suggested hy the law of Scotland, which already gave a remedy : see Campbell on Negli- gence, 20 {2nd ed.) ; and BlaJce v. jricllaiid S. Co. (1852) 18 Q. B. 93, 21 L. J. Q. B. 233 (in argument for plaintiff). (h) Accordingly, where an alien could himself have maintained an action here on a cause of action arising out of the jurisdiction, his representatives can sue under the Act: Davidson v. Sill [1901] 2 K. B. 606, 70 L. J. K. B. 788 (Kennedy and Phillimore JJ.), dis- scuting from Adam v. Bnlish and Foreign ,SS. Co. [1898] 2 Q. B. 430, C7 L. J. Q. B. 844 (DarUng J.). (a;) ' ' Parent ' ' includes father and mother, grandfather and grand- mother, stepfather and ."stepmother. ' ' Child "includes son and daughter, grandson and granddaughter, step- son and stepdaughter : sect. 5. It does not include illegitimate chUd- reu : Dickinson v. A". E. Ii. Co. (1863) 2 H. & C. 735, 33 L. J. Ex. 91. There is no reason to doubt that it includes an unborn child. See The George and Richard (1S71) L. R. 3 A. & E. 466, which, how- ever, is not of judicial authority on this point, for a few months later {Smiih V. Drown (1871) L. E. 6 Q. B. 729) the Court of Queen's Bench held in prohibition that the Court of Admiralty had no juris- diction to entertain claims under Lord Campbell's Act; and after some doubt this opinion has been confirmed by the House cf Lords : Seward v. The Vera Cni: (1884) 10 App. Ca. 59, os'crruling The Franconia (1877) 2 P. D. 163. LORD Campbell's act. 69 he assessed according to the injury resulting to the parties for A^liose benefit the action is brought, and apportioned between them by the jury (y). The nominal plaintiff must deliver to the defendant particulars of those parties and of the nature of the claim made on their behalf. By an amending Act of 1864, 27 & 28 Vict. c. 03, if there is no personal representative of the person whose death has been caused, or if no action is brought by personal representatives within six months, all or any of the persons for whoso benefit the right of action is given by Lord Campbell's Act may sue in their own names (s). The principal Act is inaccurately entitled to begin with Construo- (for to a lay reader " accidents " might seem to include -^J^^ inevitable accidents, and again, " accident " does not Camp- , bells Act. include wilful wrongs, to which the Act does apply) ; nor is this promise much bettered by the performance of its enacting part. It is certain that the right of action, or at any rate the right to compensation, given by the statute is not the same which the person killed would have had if he had lived to sue for his injuries. It is no answer to a claim under Lord Campbell's Act to show that the deceased would not himself have sustained pecuniary loss. " The statute . . . gives to the personal representative a cause of action beyond that which the deceased would have had if he had survived, and based on a different principle " (a). But " the statute does not in terms say on (i/) Where a claim of this kind Ch. D. 409, 53 L. J. Ch. 402. is satisfied by payment to executors (z) Also by sect. 2, "money paid without an action being brought, into Court may be paid in one sum, the Court will apportion the fund, without regard to its division into in proceedings taken for that pur- shares " (marginal note), pose in the Chancery Division, in {a) Erie C. J., Fym v. G. A''. II. like manner as a jury could have Co. (1863) Ex. Ch. 4 B. & S. at done: Btilmer v. Sulmer (1883) 25 p. 406. 70 PEKSONS AFFECTED BY TORTS. what principle the action it gives is to be maintainable, nor on what principle the damages are to be assessed ; and the only way to ascertain Avhat it does, is to show what it does not mean" (i). It has been decided that some appreciable pecuniary loss to the beneficiaries (so we may conveniently call the parties for whose benefit the right is created) must be shown ; they cannot maintain an action for nominal damages (c) ; nor recover what is called sohttium in respect of the bodily hurt and suffering of the deceased, or their own afHiction {d) ; they must show " a reasonable expectation of pecuniary benefit, as of right or otherwise," had. the deceased remained alive. But a legal right to receive benefit from him need not be shown (c) . Thus the fact that a grown-up son has been in the cou- stant habit of making presents of money and other things to his parents, or even has occasionally helped them in bad times (/), is a ground of expectation to be taken into account in assessing the loss sustained. Funeral and mourning expenses, however, not being the loss of any benefit that could have been had by the deceased person's continuing in life, are not admissible {g) . Interests oi" sur- vivors distinct. The interests conferred by the Act on the several bene- ficiaries are distinct. It is no answer to a claim on behalf of some of a man's children who are left poorer that all (J) Pollock C. B. in Fraiiklm v. ,V. S. £. Co. (1858) 3 H. & N. at p. 213. (f) Diiclcicorth T. Jo/iiiioii (1859) 4 H. & N. 653, 29 L. J. Ex. 25. [d) Blake V. JIid/,111,1 H. Co. (1S52) 18 Q. B. 93, 21 L. J. Q. B. 233. In Scotland it is othermKe: 1 Macq. 752 n. (e) Fi-ffiillhiv. S. E. n. Co. (1858) 3H. &N. 211. (/) Ilcthd-iiigion v. X. E. S. Co. (1882) 9 Q. B. D. 160, 51 L. J. Q. B. 495. {g) Dalton v. -S'. E. li. Co. (185S> 4 C. B. N. S. 296, 27 L. J. C. P. 227, closely followina^ Franklin \. S. E. M. Co. See further as to tho proper directions to a .jury, Roicletj V. L. ^- N. jr. iJ. Co., Ex. Ch. (1873) L. R. 8 Ex. 221. LORD Campbell's act. "1 Ins children, taken as an undivided class, liave got the whole of his property (/<). It is said that the Act does not transfer to representa- The statu- tives the right of action which the person killed would of'Jction is have had, "but gives to the representative a totally new msutsti- right of action on different principles" {i). Nevertheless cumula- the cause of action is so far the same that if a person who ultimately dies of injuries caused by a wrongful act or neglect has accepted satisfaction for them in his lifetime, an action under Lord Campbell's Act is not afterwards maintainable {k). For the injury sued on must, in the words of the Act, be " such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof : " and this must mean that he might immediately before his death have maintained an action, which, if lie had already recovered or accepted compensation, be could not do. In Scotland, as we have incidentally seen, the sur- Soottish viving kindred are entitled by the common law to American compensation in these cases, not only to the extent l^'^-^- of actual damage, but by way of solatium. In the United States there exist almost everywhere statutes generally similar to Lord Campbell's Act ; but they differ considerably in details from that Act and from one another. The tendency seems to be to confer on (/i) I'ljin V. G. N. E. Co. (18G3) plaintifE, see Grand Trunk R. af 4 B. & S. 396, S2 L. J. Q. B. 377. Canada v. Jennings (1888) 13 App. The deceased had settled real estate Ca. SCO, 58 L. J. P. C. 1. on his eldest son, to whom other ,■^^or\T, ,. nr, 1 , . . , 18 Q. B. at p. 110. estates also passed as heir-at-law. As to the measure of damages (k) Mead v. G. E. E. Co. (1S68) where the deceased has insured his L. E. 3 Q. B. 555, 37 L. J. Q. B. own life for the direct benefit of the 278. wrong- doer's estate 72 PERSONS AFFECTED BY TORTS. the survivors, both in legislation and in judicial con- struction, larger rights than in England. Eight to In one class of cases there is a right to recover against jDroperty a wrong-doer's estate, notwithstanding the maxim of MIy^' ^^'^^^^ personalis, yet not so as to constitute a formal taken or exception. When it comes to the point of direct con- converted _ '- _ "• as against flict, the maxim has to prevail. doer's As Lord Mansfield stated the rule, "where property- is acquired which benefits the testator, there an action for the value of the property shall survive against the executor " (/). Or, as Bo wen L. J. more fully expressed it, the cases under this head are those "in which property, or the proceeds or value of property, belonging to another, have been appropriated by the deceased person and added to his own estate or moneys." In such cases, inasmuch as the action brought by the true owner, in whatever form, is in substance to recover pro- perty, the action does not die with the person, but " the property or the proceeds or value which, in the lifetime of the wrong-doer, could have been recovered from him, can be traced after his death to his assets" (by suing the personal representatives) " and recaptured by the rightful owner there." But this rule is limited to the recovery of specific acquisitions or their value. It does not include the recovery of damages, as such, for a wrong, though the wrong may have increased the wrong-doer's estate in the sense of being useful to him or saving him expense [m) . The rule If A. Wrongfully gets and carries away coal from a mine under B.'s land, and B. sues for the value of the coal and limited to recovery {!) SamMy v. TroU, I Cowp. 375. his lifetime in any form of action (m) The technical rule was that in which the plea was not guilty : executors could not be sued in re- Sambly v. Trott, \ Cowp. 375. spect of an act of their testator in FOLLOWING PEOPERTY. damages, and inquiries are directed, pending wHoh A. ofspeoifio dies, B. is entitled as against A.'s estate to the value of the or its coal •nTongfiilly taken, but not to damages for the use of ^''^'"'• , . ° . Phillips T. the passages through which the coal was carried out, nor liomfrmj. for the injury to the mines or the surface of the ground consequent on A.'s workings (h). Again, A., a manufacturer, fouls a stream with refuse to the damage of B., a lower riparian owner ; B. sues A., and pending the action, and more than six months after its commencement, (o) A. dies. B. has no cause of action against A.'s representatives, for there has heen no specific tenefit to A.'s estate, only a wrong for which B. might in A.'s lifetime have recovered unliquidated damages {p). The like law holds of a director of a company who has committed himself to false representations in the pro- spectus, whereby persons have been induced to take shares, and have acquired a right of suit against the issuers. If be dies before or pending such a suit, his estate is not liable {q). In short, this right against the executors or administrators of a wrong-doer can be maintained only if there is " some beneficial property or value capable of being measured, followed, and recovered" (/■). For the rest, the dicta of Sir George Jessel and of the Lords Justices are such as to make it evident that the maxim which they felt bound to enforce was far from command- ing their approval. (») Phillips V. Soinfray (1883) 24 (o) 3 & 4 Will. IV. e. 42, p. 65, Ct. Div. 439, 454, 52 L. J. Oh. 833. above. The authorities are fully examined l^p'j j^irk v. Todd (1882) 21 Ch. in the. judgment of Bowen and piy. 484.^ 52 L. J. Ch. 224. Ootton L. JJ. As to allowing in- terest in such cases, see Phillips t. Bomfray [1892] 1 Ch. 465, 61 L. J. Ch. 210, C. A. (r) 24 Ch. D. at p. 463. (s) PctIc t. Gurnetj (1873) L. R. 6 H. L. at p. 392. PERSONS AFFECTED BY TORTS. 3. — LiahiUtij for the Torts of Agents and Servants. Command AVhoever commits a wrong is liable for it himself. It pal does^' is no exouse that he was acting, as an agent or servant, not excuse q^ behalf and for the benefit of another («). But that agent s _ _ ^ ' Avrongs. other may also well be liable : and in many cases a man is held answerable for wrongs not committed by himself. The rules of general application in this kind are those con- cerning the liability of a principal for his agent, and of a master for his servant. Under certain conditions respon- sibility goes farther, and a man may have to answer for wrongs which, as regards the immediate cause of the damage, are not those of either his agents or his servants. Cases of Thus we have cases where a man is subject to a positive positive duty, and is held liable for failure to perform it. Here, d'lstl ^'■'^ absolute character of the duty being once established, gui.shed : the question is not by whose hand an unsuccessful attempt was made, whether that of the party himself, of his ser- vant, or of an "independent contractor" [t), but whether the duty has been adequately performed or not. If it has, there is nothing more to be considered, and liability, if any, must be souglit in some other quarter (?<). If not, the non-performance in itself, not the causes or conditions of non-performance, is the ground of liability. Special duties created by statute, as conditions attached to the grant of exceptional rights or otherwise, afford the chief examples of this kind. Here the liability attaches, irre- spective of any question of agency or personal negligence, (s) Cidlen v. Thomson s Trustees ov any other "wrong. and Kerr, 4 Macq. -12i, 432. "For {t) The distinction "vvill he ex- the contract of agency or service plained below, cannot impose any obligation on («) See Sijains v. Webster (1868) the agent or servant to commit or Ex. Ch. L. R. 4 Q. B. 138, 38 assist in the committing of fraud," L. J. Q. B. 21. LIABILITY FOR OTIUCKS' ACTS. if and when the conditions imposed by the Legislature are not satisfied U). There occui- likewise, in special circumstances, duties of also duties this kind imposed by the common law. Such are the duties of war- of common carriers, of owners of dangerous animals or other ^'^" ^' things involving, by their nature or position, special risk of harm to their neighbours ; and such, to a limited extent, is the duty of occupiers of fixed property to ha^•c it in reasonably safe condition and repair, so far as that end can be assured by the due care on the part not only of themselves and their servants, but of all concerned. The degrees of responsibility may be thus arranged, beginning with the mildest : (i) For oneself and specifically authorized agents (this holds always), (ii) For servants or agents generally (limited to course of employment), (iii) For both servants and independent contractors (duties as to safe repair, &c.). (iv) For everything but vis major (exceptional : some cases of special risk, and, anomalously, certain public occupations). Apart from the cases of exceptional duty where the Modes of liability- responsibility is in the nature of insurance or warranty, a for wrong- man may be liable for another's wrong — &c ^f (1) As having authorized or ratified that particular ° wrong: : (x) Gtri;/ V. Fullen {l8Gi)E-!^.Ch. don Urhnn CoM^jcJ^ [1899] 2 Q. B. 5 B. & S. 970, 34 L. J. Q. B. 256 ; "2, IloUiilmj v. y land"(r). More generally, an authority cannot be im- plied for acts not necessary to protect the employer's property, such as arresting a customer for a supposed attempt to pass bad money {x). (d) Lastly, a master may be liable even for wilful and Wilful deliberate wrongs committed by the servant, provided they &,;., for be done on the master's account and for his purposes : and "^rpoggg this, no less than in other cases, although the servant's conduct is of a kind actually forbidden by the master. Sometimes it has been said that a master is not liable for the " wilful and malicious " wrong of his servant. If " malicious " means " committed exclusively for the servant's private ends," or " malice " means " private spite " (y) , this is a correct statement ; otherwise it is contrary to modern authority. The question is not what was the nature of the act in itself, but whether the servant intended to act in the master's interest. This was decided by the Exchequer Chamber in Limpiis V. London General Omnibus Coinjxin// (z), where the defendant company's driver had obstructed the plain- tiff's omnibus by pulling across the road in front of it, and caused it to upset. He had printed instructions not to race with or obstruct other omnibuses. Martin B. directed the jury, in effect, that if the driver acted in the way of his employment and in the supposed interest of his employers as against a rival in their business, the (f) Bolingbroke v. Swindon Local [y) See per Blackbm-n J., 1 H. Board (1874) L. B. 9 C. P. 575, 43 & 0. 543. L. J. C. P. 575. (2) 1 PI- & C. 526, 32 L. J. Ex.- 34 (1862). This and Seymour v. [x] Abrahams v. DeaJc'm [1891] Greenwood (p. 91, above) overrule 1 Q. B. 516, 60 L. J. Q. B. 238, anything to the contrary in C. A. ; Hanson v. Waller [1901] M'Jfanus v. Crickett, 1 East, 106, Q. B. 390, 70 L. J. Q. B. 231. 5 K. R. 518. 94 PERSONS AFFECTED BY TORTS. employers were answerable for his conduct, but they were not answerable if he acted only for some purpose of his own : and this was approved by the Court («■) above. The driver " was employed not only to drive the omnibus, but also to get as much money as he could for his master, and to do it in rivalry with other omnibuses on the road. The act of driving as he did is not inconsistent with his employment, when explained by his desire to get before the other omnibus." As to the company's instructions, ' ' the law is not so futile as to allow a master, by giving secret instructions to his servant, to discharge himself from liability " {b). The fact that the wrongful act is criminally punishable, if it be so, makes no difference to the master's liability (c). Fraud of That an employer is liable for frauds of his servant seivant. Committed without authority, but in the course of the service and in apparent furtherance of the employer's pur- poses, was established with more difficulty ; for it seemed harsh to impute deceit to a man personally innocent of it, or (as in the decisive cases) to a corporation, which, not being a natural person, is incapable of personal wrong- doing (d) . But when it was fully realized that in all these (a) "Williams, Crompton, Willes, senting- mind. In no case can a Byles, Blackburn JJ., diss. Wight- corporation be invested -with either man J. rights or duties except through (i) Willes J., 1 H. & G. at p. natural persons who are its agents. 539. Cp. British Mutual BanUng Co. v. (f) Dyer v. Miiniay [1896] 1 Charnwood Forest R. Co. (1887) 18 Q. B. 742, 64 L. J. Q. B. 448, Q. B. Div. 714, 56 L. J. Q. B. 449. C. A. As to the necessity once supposed {d) This particular difficulty is to exist for a servant of a corpora- fallacious. It is in truth neither tion having an authority under more nor less easy to think of a seal, see Smith v. Binningham Gas corporation as deceiving (or being Co. (1834) 1 A. & E. 526, 3 L. J. deceived) than as having a con- K. B. 165, 40 R. R. 358. PKAUD OF SEUVANT. ''o cases the master's liability is imposed by the policy of the law without regard to personal default on his part, so that his express command or privity need not be shown, it was a necessary consequence that fraud should be on the same footing as any other wrong (c) . So the matter is handled in our leading authority, the judgment of the Exchequer Chamber delivered by Willes J. in Barwick \. EngUsli Joint Stock Bank. " With respect to the question, whether a principal is answerable for the act of his agent in the course of his master's business, and for his master's benefit, no sensible distinction can be drawn between the case of fraud and the case of any other wrong " (/). This has been more than once fully approved in the Privy Council (i-j- -it not be tins class 01 cases, ijut it is misleading m that it Rame*kind Suggests a Limitation of the rule to circumstances where of work: the injured servant had in fact some opportunity of observing and guarding against the conduct of the negligent one ; a limitation rejected by the Massachusetts Court in FanveU's case, where an engine-driver was injured by the negligence of a switchman (pointsman as we say on English railways) in the same company's service, and afterwards constantly rejected by the English Courts. " When the object to be accomplished is one and the same, when the employers are the same, and the several persons employed derive their authority and their com- jjensation from the same source, it would be extremely difficult to distinguish what constitutes one department (e() See TVikon v. Mei-ry (1868) infant, for if he has discretion L. R. 1 So. & D. 326. enough to agree to the express {v) Erie C. J. in Tunney t. Mid- terms of a, contract of service he land S. Co. (1866) L. R. 1 C. P. cannot repudiate the implied ones at p. 296 ; Archibald J. used very any more than an adult : Tonng v. similar language in Zorcllv. Eowell Hoffmann Manufactitring Co. [1907] (1876) 1 0. P. D. at p. 167, 45 2 K. B. 646, 76 L. J. K. B. 993, L. J. C. P. 387. It makes no C. A.; Crihb v. Eynoch [1907] 2 difference that the plaintiff is an E. B. 548, 76 L. J. K. B. 948. " COMMON EMPLOYMENT." 101 and what a distinct department of duty. It would vary with the circumstances of every case. If it were made to depend upon the nearness or distance of the persons from each other, the question would immediately arise, how near or how distant must they be to be in the same or different departments. In a blacksmith's shop, persons working in the same building, at different fires, may be quite independent of each other, though only a few feet distant. In a ropewalk several may be at work on the same piece of cordage, at the same time, at many hundred feet distant from each other, and beyond the reach of sight or voice, and yet acting together. " Besides, it appears to us that the argument rests upon an assumed principle of responsibility which does not exist. The master, in the case supposed, is not «xempt from liability because the servant has better means of providing for his safety when he is employed in immediate connexion with those from whose negli- gence he might suffer, but because the ijiiplied contract of the master does not extend to indemnify the servant against the negligence of any one but himself ; and he is not liable in tort, as for the negligence of his servant, "because the person suffering does not stand towards him in the relation of a stranger, but is one whose rights are regulated by contract, express or implied" («). So it has been said that " we must not over-refine, provided but look at the common object, and not at the common genial '^ immediate object" (y). All persons engaged under the common same employer for the purposes of the same business, (:;;) Sha,wC. J., Farwellv. Boston, {y) Pollock C. B., Jforf^are v. Vale ^c. Corporation, i Met. 49. Some of Neath M. Co. (1865) Ex. Ch. leamedErenchwritershave adopted L. R. 1 Q. B. 149, 155, 36 L. J. the contractual view, but with Q. B. 23. directly opposite results. imma- terial. 102 PERSONS AFFECTED BY TORTS. however different in detail those purposes may be, are fellow-servants in a common employment within the meaning of this rule : for example, a carpenter doing- work on the roof of an engine-shed and porters moving an engine on a turntable (av. iJose (1872) Ex. Ch. [h) Cooley on Torts, Ch. 14; L. E. 7 0. P. 525, 41 L. J. C. P. Fiero, 171 sqq. 120 GENERAL EXCEPTIONS. persons are in many cases entitled, and in some bound, to give aid and assistance, or to act by themselves, in executing the law ; and in so doing they are similarly protected (i) . Were not this the rule, it is evident that the law could not be enforced at all. But a public officer may err by going beyond bis authority in various ways. When this happens (and such cases are not uncommon),, there are distinctions to be observed. The principle which runs through both common law and legislation in the matter is that an officer is not protected from the- ordinary consequence of unwarranted acts which it rested with himself to avoid, such as using needless "violence to secure a prisoner ; but he is protected if he has only acted in a manner in itself reasonable, and in execution of an apparently regular warrant or order which on the- face of it he was bound to obey {/•:). This applies only to- irregularity in the process of a court having jurisdiction over the alleged cause. Where an order is issued by a court which has no jurisdiction at all in the subject- matter, so that the proceedings are, as it is said, " coram non judice," the exemption ceases (/). A constable or officer acting under a justice's warrant is, however, specially protected by statute, notwithstanding any defect of jurisdiction, if he produces the warrant on demand (/«). The provisions of many particular statutes which gave a qualified protection to persons acting under the statute have been superseded by the Public Authorities Protection (i) The details of this subject 10 Co. Eep. 76 a; Clark v. TFoods belong to criminalla-sr. (1848)2 Ex. 395, 17 L. J. M. C. (7i) Mayor of London r. Cox (1867) 189. L. R. 2 H. L. at p. 269 (in opinion (m) 2i Geo. II. u. 44, s. 6. of judges, per Willes J.). The (Action lies onlj if a demand in la-ff seems to be understood in the -writing for perusal and copy of the same -way in the United States. -warrant is refused or neglected for- {1} The case of The Marshalsea, six days.) PUBLIC AUTHORITIES. 1^^ Act, 1893, wliioh substitutes for their various requirements the one rule that proceedings against any person for any act done in execution of a statutory or other public duty shall be commenced within six months (/;). As to a mere mistake of fact, such as arresting the body or taking the goods of the wrong person, an officer of the law is not excused in such a case. He must lay hands on the right person or property at his peril, the only exception being on the principle of estoppel, where he is misled by the party's own act (o). Acts done by naval and military officers in the execution Acts of or intended execution of their duty, for the enforcement military of the rules of the service and preservation of discipline, ° °^'^^' fall to some extent under his head. The justification of a superior officer as regards a subordinate partly depends on the consent implied (or indeed expressed) in the act of a man's joining the service that he will abide by its regulations and usages ; partly on the sanction expressly given to military law by statutes. There is very great weight of opinion, but no absolute decision, that an action does not lie in a civil coui't for bringing an alleged offender against military law (being a person subject to that law) before a court-martial without probable cause (/j). How far the orders of a superior officer (k) 56 & 57 Vict. 0. 61. There Case Law, ed. Mews, s«Ji!t<. Sheriff, are subsidiary but not unimportant {p) Johnstone y. Sutton (1786-7) provisions as to costs : see p. 212, Ex. Ch. 1 T. R. 510, 548 ; afBrmed below. in H. L. ibid. 781, 1 Bro. P. C. 76, ((/) See Glasspooh v. Young (1829) 1 R. R. 257. The Ex. Ch. thought 9 B & C. 696, 33 E. E.. 294 ; the action did not lie, but the Balme v. Sutton, Ex. Ch. (1833) defendant was entitled to judgment 9 Bin". 471 ; Sunston v. Faterson even if it did. No reasons appear (1857) 2 C. B. N. S. 495, 26 L. J. to have been given in the House of C. P. 267 ; and other authorities Lords, collected in the Digest of English 122 GENERAL EXCEPTIONS. justify a subordinate who obeys them as against third persons has never been fully settled. But the better opinion appears to be that the subordinate is in the like position with an officer executing an apparently regular civil process, namely, that he is protected if he acts under orders given by a person whom he is generally bound by the rules of the service to obey, and of a kind which that person is generally authorised to give, and if the particular order is not necessarily or manifestly unlawful (q) . The same principles apply to the exemption of a person acting under the orders of any public body competent in the matter in hand. An action does not lie against the Serjeant-at-Arms of the House of Commons for excluding a member from the House in obedience to a resolution of the House itself; this being a matter of internal discipline in which the House is supreme (r). Indiaa The principles of English law relating to the protection Act xvill. of of judicial officers and persons acting under their orders 1850. have in British India been declared by express enactment (ActXVIII. of 1850). Executive There is still much obscurity, and certainly no general time of agreement, about the precise nature and extent of the war. Of other public authori- ties. iq) See per Willes J. in Keighly T. Bell (1866) 4 F. & E. at p. 790 ; this judgment appears to be treated as authoritative by A. L. Smith L. J. in Marks v. Frogletj [1898] 1 Q. B. 888, 900, 67 L. J. Q. B. 605, C. A. In time of war the protec- tion may perhaps be more extensive. As to criminal responsibility in such cases, of. Stephen, Dig. Or. Law, art. 202, Hist. Cr. Law, i. 200— 206 ; and Mr. H. L. Stephen (now a judge of the High Court of Calcutta) in L. Q. R. xvii. 87, on a recent case in Cape Colony. (r) Bradlaugh v. Gossett (1884) 12 Q. B. Div. 271, 63 L. J. Q. B. 209. As to the limits of the privi- lege, see per Stephen J., 12 Q. B. Div. at p. 283. As to the power of a colonial legislative assembly over its own members, see Barton v. Tmjlor (J. C. 1886) 11 App. Ca. 197, 55 L. J. P. C. 1. "martial law." 123 justification for acts done in the name of "martial law" in time of war or rebellion ; and the modern practice of passing an act of indemnity on the restoration of civil order, a politic and laudable practice in itself, makes it extremely improbable that an authoritative decision on the common law will ever be given. Some writers deny that outside the actual seat of hostilities there is any common law justification at all. Some think that there is, and that it wholly excludes the authority of the Courts ; one or two have propounded extravagant theories of a supposed Royal prerogative of the Crown in the matter. I venture to think it the better opinion that whatever, in time of war within the jurisdiction, is or reasonably appears necessary for the common defence against the King's enemies is justified by the common law, but that, in the absence of an Act of indemnity, the existence of the necessity and the reasonableness of the action are to be determined by the ordinary Com'ts when peace is restored. It would not be useful to go into details here (.s) . But it would obviously not be reasonable, except on very special emergency, for a private citizen to take any such action on his own responsibility. («) See a series of articles by mittee decided that there may be 3Ir. W. S. Holdsworth, Mr. H. a state of war justifying extra- Erie Richards (now Legal Mem- ordinary action at a place where ber of the Viceroy's Council in there is not actual fighting and India) , Mr. Cyril (now His Honour the ordinary Courts are still sitting ; Judge) Dodd K. C, and the and this, I humbly conceive, is present writer, in L. Q. R. xviii. right ; but the judgment, which 117 — 158 ; Dicey, Law of the Con- was on a petition for special leave stitntion, 6th ed., Note xii. in Ap- to appeal, is very brief, and cannot pendix ; and observations thereon be said to throw much light on the in L. Q. R. xix. 230. In Ex parte constitutional question. Therefer- D. F. Marais [1902] A. C. 109, 71 ence to the Petition of Right in the L. J. P. C. 42, the Judicial Com- last sentence is not literally correct. 124 GENERAL EXCEPTIONS. 4. — Quasi-jitrUcial Acts. Acts of Divers persons and bodies are called upon, in the quasi- ..... judicial management of public institutions or government or voluntary associations, to exercise a sort of conventional jurisdiction analogous to that of inferior courts of justice. These quasi-judicial fanctions are in many cases created or confirmed by Parliament. Such are the powers of the universities over their officers and graduates, and of col- leges in the universities over thoir fellows and scholars, and of the Greneral Council of Medical Education over registered medical practitioners (/). Often the authority of the quasi- judicial body depends on an instrument of foundation, the provisions of which are binding on all persons who accept benefits under it. Such are the cases of endowed schools and religious congregations. And the same principle appears in the constitution of modern incorporated companies, and even of private partnerships. Further, a quasi- judicial authority may exist by the mere convention of a number of persons who have associated themselves for any lawful purpose, and have entrusted powers of management and discipline to select members. The committees of most clubs have by the rules of the club some such authority, or at any rate an initiative in presenting matters of discipline before the whole body. The Inns of Coiu't exhibit a cmious and unique example of great power and authority exercised by voluntary unincor- porated societies in a legally anomalous manner. Their powers are for some purposes quasi- judicial, and yet they are not subject to any ordinary jurisdiction (u). [t) See Allbntt v. General C'omicil, Div. 90, 59 L. J. Q. B. 475. i-c. (1889) 23 Q. B. Div. 400, 53 („) See S. y. Benchers of Lincoln's L. J. Q. B. 606 ; Zeeson v. General j„„ (1825) 4 B. & c. 855, 28 R. R. Council, 4-c. (1889) 43 Ch. DW. 366, 482 ; J^T^ate v. Denman (1874) L. E. 59 L. J. Ch. 233; Partridge v. 18 Eq. 127, 43 L. J. Ch. 409. General Council, ^-c. (1890) 25 Q. B. QUASI-JUDICIAL POWERS. 12.: The general rule as to quasi- judicial powers of this class Rules of is that persons exercising them are protected from civil juatioeand liability if they observe the rules of natm-al justice, and ^^j^g also the paiiicular statutory or conventional rules (r), if if any, . . . . must be- any, which may prescribe their coiu-se of action. The observed. rules of natural justice appear to mean, for this purpose, that a man is not to be removed from office or member- ship, or otherwise dealt with to his disadvantage, without having fair and sufficient notice of what is alleged against him, and an opportunity of making his defence ; and that the decision, whatever it is, must be arrived at in good faith with a view to the common interest of the society or institution concerned. If these conditions be satisfied, a coui't of justice will not interfere, not even if it thinks the decision was in fact wrong {ic). If not, the act complained of will be declared void, and the person aifected by it maintained in his rights until the matter has been properly and regularly dealt with («). These principles apply to the expulsion of a partner from a private firm where a (v) See Andrews v. Mitchell L. J. Ch. 673. As to objections £1905] A. C. 78, 1i L. J. K. B. against a member of a "domestic 333. tribunal" on the ground of interest, [w) Inderwich v. Snell (1850) 2 AUinson v. General Medical Council Mac. & G. 216, 86 E. R. 73 [1894] 1 Q. B. 750, 63 L. J. Q. B. (removal of a director of a com- 534, G. A. pany) ; Dau-kins y. Anirobus {18SI) (x) Fisher v. Keane (1878) 11 17 Ch. Div. 615 (expulsion of Ch. D. 353, 49 L. J. Ch. 11 (aclub a member from a club) ; cf. case, no notice to the member) ; 13Ch. D. 352; Partridge -v. General Lahouchcrey. Wharncllffe {X^'i'ti) 13 Council, ^c, note {t) last page, Ch. D. 346 (the liie, no sufBcient although no notice was given, inquiry or notice to the member, the council honestly thinMng they calling and proceedings of general had no option. In the case of a meeting irregular) ; Bean v. Bennett club an injunction will be granted (1870) L. R. 6 Oh. 489, 40 L. J. Ch. only in respect of the member's 452 (minister of Baptist chapel right of property, therefore where under deed of settlement, no suffi- the club is proprietary the only cient notice of specific charges remedy is in damages ; Saird v. either to the minister or in calling Wells (1890) 44 Ch. D. 661, 59 special meeting) . 126 GENERAL EXCEPTIONS. power of expulsion is conferred by the partnership con- tract (ti) . Absolute discre- tionary powers. It may be, however, that by the authority of Parlia- ment (or, it would seem, by the previous agreement of the party to be affected) a governing or administrative body, or the majority of an association, has power to remove a man from office or the like without anything in the nature of judicial proceedings, and without showing any cause at all. Whether a particular authority is judicial or absolute must be determined by the terms of the particular instru- ment creating it (z). Questions whether duty judicial or minis- terial : Ashhy v. White, i-c. On the other hand there may be question whether the duties of a particular office be quasi- judicial, or merely ministerial, or judicial for some purposes and miaisterial for others. It seems that at common law the returning or presiding officer at a parliamentary or other election has a judicial discretion, and does not commit a wrong if by an honest error of judgment he refuses to receive a vote la) : but now in most cases it will be found that such officers are under absolute statutory duties (b), which they must perform at their peril. {y) Blisset v. Daniel (1853) 10 Ha. 493, 90 E. R. 454 ; Wood v. Woad (1874) L.R. 9Ex.l90, 43 L. J. Ex.190. Without an express power in the articles a partner cannot lie expelled at all. (z) E.g. Bean v. Sennett, note [x) ahove ; Fisher v. Jackson [1891] 2 Ch. 84, 60 L. J. Ch. 482 (power judicial) ; Sayman v. Governors of Eughy School [HI i)'L.'R. 18Eq. 28, 43 L. J. Ch. 834 (power absolute). (a) Tozer v. Child (1857) Ex. Ch. 7E. &B. 377, 26 L. J. Q. B. 151, explaining .Ashhy v. White., Ld. Raym. 938, and in 1 Sm. L. C. : and see the special report of Holt's judgment published in 1837 and referred to in Tozer v. Child. {b) 6 and 7 Vict. u. 18, s. 82. As to presiding ofScers under the Ballot Act, 1872, dickering v. James (1873) L. R. 8 C. P. 489, 42 L. J. C. P. 217; Ackers y. Eou-ard (1886) 16 Q. B. D. 739, 55 L. J. Q. B. 273. PARENTAL AND QUASI-PARENTAL AUTHORITY. 127 5. — Parental and Quad-parental Authority. Thus much of private quasi- judicial authority. There Authority are also several kinds of authority in the way of summary and pT" * force or restraint which the necessities of society require to ^™^ ™ be exercised by private persons. And such persons are parc»tis. protected in exercise thereof, if they act with good faith and in a reasonable and moderate manner. Parental authority (whether in the hands of a father or guardian, or of a person to whom it is delegated, such as a school- master) is the most obvious and universal instance (c) . It is needless to say more of this here, except that modern civilization has considerably diminished the latitude of what judges or juries are likely to think reasonable and moderate correction [d). Persons having the lawful custody of a lunatic, and Ofcusto- those acting by their direction, are justified in using such lunatics, reasonable and moderate restraint as is necessary to prevent the lunatic from doing mischief to himself or others, or required, according to competent opinion, as part of his treatment. This may be regarded as a quasi-paternal power; but I conceive the person entrusted with it is bound to use more diligence in informing himself what treatment is proper than a parent is bound (I mean, can be held bound in a court of law) to use in studying the best method of education. The standard must be (c) Blaokstone, i. 452. A sctool- credited by Blackstone (i. 445) and master's delegated authority is not is not recognized at this day ; but bounded by the walls of the school ; as a husband and -wife cannot in Chary v. Booth [1893] 1 Q. B. 465, any case sue one another for assault 62 L. J. M. C. 87. in a civil court, this does not con- cern us. As to imprisonment of a [pj The ancient right of a hus- wife by a husband, Reg. v. Jackson band to beat his wile moderately [1891] 1 Q. B. 671, 00 L. J. Q. B. fF. N. B. 80 F. 239 A.) was dis- 346, 0. A. 1-8 GENERAL EXCEPTIONS. more strict as medical science improves. A century ago lunatics were beaten, confined in dark rooms, and the like. Such treatment could not be justified now, though then it would have been unjust to hold the keeper criminally or civilly liable for not having more than the current wisdom of experts. In the case of a drunken man, or one deprived of self-control by a fit or other accident, the use of moderate restraint, as well for his own benefit as to prevent him from doing mischief to others, may in the same way be justified. 6. — Atitliorifies of Necessity. Of the The master of a merchant ship has by reason of neces- a ship. sity the right of using force to preserve order and dis- cipline for the safety of the vessel and the persons and property on board. Thus, if he has reasonable cause to believe that any sailor or passenger is about to raise a mutiny, he may arrest and confine him. The master may even be justified in a case of extreme danger in inflicting punishment without any form of inquiry. But "in all cases which will admit of the delay proper for inquiry, due inquiry should precede the act of punishment ; and . . . the party charged should have the benefit of that rule of universal justice, of being heard in his own def ence " ((•) . In fact, when the immediate emergency of providing for the safety and discipline of the ship is past, the master's authority becomes a quasi- judicial one. There are conceivable circumstances in which the leader (e) Lord Stowell, The Agincourt 717. This judg-ment is the classical (1824) 1 Hagg. 271, 274 ; 33 E. R. authority on the subject. ACTS AUTHORIZED BY STATUTE, !-•' of a party on land, such as an Alpine expedition, might be justified on the same principle in exercising compulsion to assure the common safety of the party. But such a case, though not impossible, is not likely to occur for decision. 7. — Damage incident to autliorized Acta. Thus far we have dealt with cases where some special pamag-c relation of the parties justifies or excuses the intentional deutaiiy doing of things which otherwise would be actionable ^ j.^^ ^^.f wrongs. We now come to another and in some respects ?°*1"J' a more interesting and difficult category. Damage suffered in consequence of an act done by another person, not for that intent, but for some other purpose of his own, and not in itself unlawful, may for various reasons be no ground of action. The general precept of law is com- monly stated to be " Sic utere tuo ut alienum non laedas." If this were literally and universally applicable, a man would act at his peril whenever and wherever he acted otherwise than as the servant of the law. Such a state of things would be intolerable. It would be impossible, for example, to build or repair a wall, unless in the middle of an uninhabited plain. But the precept is understood to be subject to large exceptions. Its real use is to warn us against the abuse of the more popular adage that '" a man has a right to do as he likes with his own" (/), which errs much more dangerously on the other side. There are limits to what a man may do with his own ; and if he does that which may be harmful to his neigh- bour, it is his business to 'keep within those limits. Neither the Latin nor the vernacular maxim will help us (/) Cf. Gaius (D. 50, 17, de div. reg. 5.5) : " Nallus videtur dolo facere, qui sao iure utitur." P. — T. K 130 GENERAL EXCEPTIONS. much, however, to know where the line is drawn. The problems raised by the apparent opposition of the two principles must be dealt with each on its own footing. We say apparent ; for the law has not two objects, but one, that is, to secure men in the enjoyment of their rights and of their due freedom of action. In its most general form, therefore, the question is, where does the spliere of a man's proper action end, and aggression on the sphere of his neighbour's action begin ? Damage The solution is least difficult for the lawyer when the from cxe- .^^ .. .... cution of question has been decided m principle by a sovereign ivorks ^ legislature. Parliament has constantly thought fit to direct or authorize the doing of things which but for that direction and authority might be actionable wrongs. Now a man cannot be held a wrong-doer in a court of law for acting in conformity with the direction or allowance of the supreme legal power in the State. In other words, " no action will lie for doing that which the Legislature has authorized, if it be done without negligence, although it does occasion damage to any one." The meaning of the qualification will appear immediately. Subject thereto " the remedy of the party who suffers the loss is confined to recovering such compensation " (if any) "as the Legis- lature has thought fit to give him" (g). Instead of the ordinary question whether a wrong has been done, there can only be a question whether the special power which has been exercised is coupled, by the same authority that created it, with a special duty to make compensation for incidental damage. The authorities on this subject are voluminous and discursive, and exhibit notable dilferences (g) Lord Blackburn, Geddis v. 7 App. Ca. at p. 293 ; ifcrwyiJorf-s Troprietors of Sann Reservoir (\?,1?,) Trustees v. Gtbbs (1864-6) L. R. 3 App. Ca. at p. 455 ; Caledonian 1 H. L. at p. 112. JR. Co. V. Walker's Trustees (1882) AUTHORIZED WORKS. 131 of opinion. Tliose differences, however, turn chiefly on the application of admitted principles to particular facts, and on the construction of particular enactments. Thus it has been disputed whether the compensation given by statute to persons who are " injuriously affected " by authorized railway works, and by the same statutes d.eprived of their common-law rights of action, was or was not oo-extensive with the rights of action expressly or by implication taken away ; and it has been decided, though contrary to the general principles on which the right of eminent domain is exercised in all civilized nations, and not without doubts and weighty dissent, that in some oases a party who has suffered material loss is left without either ordinary or special remedy (//). Apart from the question of statutory compensation, it No action is settled that no action can be maintained for loss or .i°'(,id°bir inconvenience which is the necessary consequence of an damage, authorized thing being done in an authorized manner. A person dwelling near a railway constructed ixnder the authority of Parliament for the purpose of being worked by locomotive engines cannot complain of the noise and vibration caused by trains passing and repassing in the ordinary course of traffic, however unpleasant he may find it (/) : nor of damage caused by the escape of sparks from {h) Hammersmith S. Co. v. Brand 38 E. E. 207, where certain mem- (1869) L. E. 4 H. L. 171, 38 L. J. bers and servants of the Stockton Q. B. 265; A.-G. v. Metropolitan and Darlington Railway Company S. Co. [1894] 1 Q. B. 384, 69 L. T. -srere indicted for a nuisance to 811, C. A.; East Fremaidle Cor- persons using a high road near and porationY. Aitnois [1^02'] A.. G.2li, parallel to the railway. Lord 71 L. J. P. C. 39. Bramwell must have forgotten this authority when he said in the (i) Sammersmith 2t. Co. v. Brand, Court of Appeal that Bex v. Bea.se last note, confirming and extending was wrongly decided (5 Q. B. Div. Hex v. Pease (1832) 4 B. & Ad. 30, at p. 601). k2 I'J- GENERAL EXCEPTIONS. the engines, if the company has used due caution to prevent such escape so far as practicahle (k). So, where a corporation is empowered to make a river navigable, it does not thereby become bound to keep the bed of the river clear beyond what is required for navigation, though an incidental result of the navigation works may be the growth of weeds and accumulation of silt to the prejudice of riparian owners (/) . Care and But in order to secure this immunity the powers required conferred by the Legislature must be exercised withoTit '^j^.^"^*"^^ negligence, or, as it is perhaps better expressed, with cretioDary judgment and caution (;»). For damage which could not have been avoided by any reasonably practicable care on the part of those who are authorized to exercise the power, there is no right of action. But they must not do needless harm ; and if they do, it is a wrong against which the ordinary remedies are available. If an authorized railway comes near my house, and dis- turbs me by the noise and vibration of the trains, it may be a hardship to me, but it is no wrong. For the raib\'ay was authorized and made in order that (7.:) Vaughan v. Tuff Vah' H. Co. land whict did not belong- to them (1S60) Ex. Ch. 5 H. & N. 679, 29 to remove weeds, &o., for any L. J. Ex. 247 ; C. P. R. Co. v. Sotj purposes beyond those of the navi- [1902] A C. 220, 71 L. J. P. C. gation. A rather similar case, but; 51. See below in Ch. XII. So of decided the other way in the last noise made by pumps in the autho- resort on the construction of the rized sinking of a shaft near a, particular statute there in question, man's land or house: Harrison t. is Geddis v. Proprietors of Bann S.>iithu-ark and Vaiixhall Water Co. Pcservoir (1878) 3 App. Ca. 430. [1891] 2 Ch. 409, 60 L. J. Ch. 6.30. CracknelVs case seems just on the (?) Crailnell v. Corporation of line; cp. Siscoe v. G. E. P. Co., Thetford (1869) L. R. 4 C. P. 629, note («) next page. 38 L. J. C. P. 353, decided partly {m) Per Lord Truro, I. # ^V. JF. on the ground that the corporation P. Co. v. Bradley (1851) 3 Mac. & were not even entitled to enter on G-. at p. 341. AUTHORIZED WORKS. l^-*) trains might be run upon it, and without noise and ■vibration trains cannot be run at all. But if the company makes a cutting, for example, so as to put my house in danger of falling, I shall haA'e my action : for they need not bring down my house to make their cutting. They can provide support for the house, or otherwise conduct their works more carefully. " When the company can construct its works without injmy to private rights, it is in general bound to do so "(/;). Hence there is a material distinction between cases where the Legislature " directs that a thing shall at all events be done " (o), and those where it only gives a ■discretionary power with choice of times and places. "Where a discretion is given, it must be exercised with regard to the common rights of others. A public body which is by statute empowered to set up hospitals within a certain area, but not empowered to set up a hospital on iiny specified site, or required to set up any hospital at all, is not protected from liability if a hospital established under this power is a nuisance to the neighbours {p). And even whei'e a particular thing is required to be •done, the burden of proof is on the person who has to do it to show that it cannot be done without creating a nuisance {q) . A railway companj- is authorized to acquii-e land within specified limits, and on any part of that land to erect workshops. This does not justify the company, as against a particular house- holder, in building workshops so situated (though within the authorized limits) that the smoke from them is a («) Shcoe V. G. E. E. Co. (1873) [1893] 2 Ch. 588, 63 L. J. Ch. 36; 3^ R. 16 Eq. 636. C. P. II. Co. v. Farke [1899] A. C. (o) 6 App. Od. 203. 53r,, 68 L. J. P. C. 89. (jo) Metropolitan A-tyliim District (q) ^lltorneij-General \. Gas Light V. Hill (1881) 6 App. Ca. 193; and Coke Go. (1877) 7 Ch. D. 217, ■cp- Rapier v. London Tramways Co. 221, 47 L. J. Ch. 534. 134 GEXEEAL EXCEPTIONS. nuisance to him in the occupation of his house (r) . But a statutory power to carry cattle hy railway, and provide station yards and other buildings for the recep- tion of cattle and other things to be carried (without specification of particular places or times), is incidental to the general pm-poses for which the railway was authorized, and the use of a piece of land as a cattle yard under this power, though such as would be a nuisance at common law, does not give any right of action to adjoining occupiers («) . Such a case falls within the principle not of McfropoHtan Asyhim District v. Hill, but of Rex V. Pease. A gas company was authorized by statute to have its pipes laid under certain streets, and was required to supply gas to the inhabitants. The vestry, being charged by statute with the repair of the streets, but not required or authorized to use any special means, used steam rollers of such weight that the company's pipes were often broken or injured by the resulting pressure through the soil. It was held that, even if the use of such rollers was in itself the best way of repairing the streets in the interests of the ratepayers and the public, the act of the vestry was wrong- ful as against the gas company, and was properly restrained by injunction (f). ()•) Rajmohiin Base t. Emt India Baptist Church (1883) 108 U. S. 317. -K. Co. (High Court, Calcutta), 10 (») London and Brighton E. Co. Ben. L. E. 341. Qu. whether this v. Truman (1883) 11 App. Ca. 45, be consistent with Londtn and 55 L. J. Ch. 35-t, reversing the Brighton Ji. Co. v. Traman, cited decision of the Court of Appeal, in the next note. In Jordc.son v. 29 Ch. Div. 89. Niitton, ^c. Gas Co. [1899] 2 Ch. (C) Gas Light and Coke Co. v. 217, 68 L. J. Ch, 457, C. A., Vestry of St. Mary Abbott's (\&d,o) liability for any nuisance had been 15 Q. B. Div. 1, 54 L. J. Q,. B. expressly preserved by the govern- 414. The Court also relied, but ing statute. See, however, Balti- only by way of confirmatiou, on more and Potomac R. B. w Fifth certain special Acts dealing with INEVITABLE ACCIDENT. 1-ij " An Act of Parliament may authorize a nuisance, and if it does so, then the nuisance which it authorizes may be la^^■fully committed. But the authority given by the Act may be an authority which falls short of authorizing a nuisance. It may be an authority to do certain works provided that they can be done without causing a nuisance, and whether the authority falls within that category is again a question of construction. Again the authority given by Parliament may be to carry out the works without a nuisance, if they can be so carried out, but in the last resort to authorize a nuisance if it is necessary for the construction of the works " (;(). An authority accompanied by compulsory powers, or to be exercised concurrently with authorities ejmdem genoria which are so accompanied, will, it seems, be generally treated as absolute ; but no single test can be assigned as decisive (x). 8. — Invvitahle Accident. In the case we ha^e just been considering the act by inevitable which the damage is caused has been specially authorized, resultin-- Let us now turn to the class of cases which differ from f"^omla\v- tui act. tbese in that the act is not specially authorized, but is simply an act which, in itself, a man may lawfully do then and there ; or (it is perhaps better to say) which he may do without breaking any positive law. We shall assume from the first that there is no want of reasonable care on the actor's part. For it is undoubted that if, by failure in due care I cause harm to another, however the relations between the vestry p. 108. and the company. See 15 Q. B. [x) See especially Lord Black- Div. at p. 6. bum's opinion in London and [u) Bovren L. J., 29 Ch. Div. at Urighton R. Co. v. Truman. 136 GENERAL EXCEPTIONS. innocent my intention, I am liable. This has already been noted in a general way [y). No less is it certain, on the other hand, that I am not answerable for mere omission to do anything which it was not my specific duty to do. It is true that the very fact of an accident happening- is commonly some evidence, and may be cogent evidence, of want of due care. But that is a question of fact, and there remain many cases in which accidents do happen notwithstanding that all reasonable and practicable care is used. Even the " consummate care " of an expert using his best precaution in a matter of special risk or im- portance is not always successful. Slight negligence may be divided by a very fine line fi'om unsuccessful diligence. But the distinction is real, and we have here to do only with the class of cases where the facts are so given or determined as to exclude any negligence whatever. tioiis of the in- ili- The question, then, is reduced to this, whether an action lies against me for harm resulting by inevitable accident quiiy. from an act lawful in itself, and clone by me in a reason- able and careful manner. Inevitable accident is not a verbally accurate term, but can hardly mislead ; it does not mean absolutely inevitable (for, by the supposition, I was not bound to act at all), but it means not avoidable by any such precaution as a reasonable man, doing such an act then and there, could be expected to take. In the words of Chief Justice Shaw, of Massachusetts, it is an accident such as the defendant could not have avoided by use of the kind and degree of care necessary to the exigency, and in the circumstances, in which he was placed. On prin- It may seem to modern readers that only one solution of acciden't ^ ^^ problem thus stated is possible, or rather that there is (y) P. 36, above. INEVITABLE ACCIDENT. i''>~ no problem at all(s). No reason is apparent for not f.'^<^'"'3es ... liability. accepting inevitable accident as an excuse. It is true that we may suppose the point not to have been considered at all in an archaic stage of law, when legal redress was but a mitigation of the first impulse of private revenge. But private revenge has disappeared from our modern law ; moreover we do not nowadays expect a reason- able man to be angry without inquiry. llo will not assume, in a case admitting of doubt, that his neighbour harmed him by design or negligence. And one can- not see why a man is to be made an insurer of his neighbour against harm which (by our hypothesis) ia no fault of his own. For the doing of a tiling lawful in itself with due care and caution cannot be deemed any fault. If the stick which I hold in my hand, and am using in a reasonable manner and with reasonable care, hurts my neighbour by pure accident, it is not apparent why I should be liable more than if the stick had been in another man's hand (a) . If we go far back enough, indeed, we shall find a time and an order of ideas in which the thing itself that does damage is primarily liable, so to speak, and through the thing its owner is made answerable. That order of ideas was preserved in the noxal actions of Roman law, and in our own criminal law by the forfeiture of the offending object (z) This, at any rate, is the view they might conclude it was for a of modem juries ; see Nichols v. proper purpose, and the striking Marsland (1875) L. R. 10 Ex. at the plaintiff was a mere accident p. 2.56, 43 L. J. Ex. 174 ; Sohncs for which the defendant was not V. ^[nthir, L. R. 10 Ex. at p. 262. answerable: Alderson v. IFaisteU [a) Trespassforassaultbystriking (1814) 1 C. & K. 358 (before Rolfe the plaintiff with u. stick thrown B.). Tliis, if it could be accepted, by the defendant. Plea, not guilty. would prove more than enough. The jury were directed that, in the But it is evidently a rough and absence of evidence for what pur- ready summing-up given without pose the defendant threw the stick, reference to the books. 138 GENEEAL EXCEPTIONS. ■whicli had moved, as it was said, to a man's death, under the name of deodand. But this is matter of history, not of modern legal policy. So much we may concede, that when a man's act is the apparent cause of mischief, the hurdcn of proof is on him to show that the consequence was not one which by due diligence he could have prevented (i) . But so does (and must) the burden of proving matter of justification or excuse fall in every case on the person taking advantage of it. If he were not, on the first impression of the facts, a wrong-doer, the justification or excuse would not be needed. Apparent We believe that our modern law supports the view now authori- indicated as the rational one, that inevitable accident is "^^' not a ground o£ liability. But there is a good deal of appearance of authority in the older books for the contrary proposition that a man must answer for all direct consequences of his voluntary acts at any rate, or as Justice 0. W. Holmes (c) has put it " acts at his peril." Such seems to have been the early Grermanic law {d), and such was the current opinion of English lawyers till about the end of the eighteenth century. On the other hand, it will be seen on careful examination that no actual decision goes the length of the dicta which embody this opinion. In almost every case the real question turns out to be of the form of action or pleading. Moreover, there is no such doctrine in Roman or modern Continental juris- (4) Shaw C. J. would not con- and Mr. Wigmore's articles in cede even this in the leading- Harv. Law ReT. vii. 315, 383, 441, Massachusetts case of Broicn v. where materials are fully collected. Kendall, 6 Cush. at p. 297. (^) Heusler, Inst, des deutschen (c) See on the whole of this mat- P/ivatrechts, ii. 263 ; LI. Hen. ter Mr. Justice Holmes's chapter Primi, c. 88 § 6, 90 } 11 ; see on "Trespass and Negiigence," p. 142, below. AMEEICAN CA.SES ON ACCIDENT. 139 prudence (c). And, what is more important for our purpose, the point has been decided in the sense here contended for hj Courts of the highest authority in the United States. To these decisiocs we shall first call attention. In the Xitro-gljjccrinc Case ( /) the defendants, a firm of American . decisions : carriers, received a wooden case at New xork to he carried j,;^^ js'Uro- to CaKfornia. " There was nothing in its appearance ^^y'"'""' calculated to awaken any suspicion as to its contents," and in fact nothing was said or asked on that score. On arriving at San Francisco it was found that the contents (which " had the appearance of sweet oil ") were leaking. The case was then, according to the regular course of ousiness, taken to the defendants' offices (which they rented from the plaintiff) for examination. A servant of the defendants proceeded to open the case with a mallet and chisel. The contents, being in fact nitro-glycerine, exploded. All the persons present were killed, and much property destroyed and the building damaged. The action was brought by the landlord for this last-mentioned damage, including that suffered by parts of the building let to other tenants as well as by the offices of the defendants. Nitro-glycerine had not then (namelj^, in («) " Inpunitus est qui sine culpa otherwise unexplained dictum of et dole malo casu qiiodam damnum Ulpian in the preceding fragment, committit." Gai. 3. 211. Paulus " in lege Aquiliaet levissima culpa, indeed says (D. 9. 2, ad legem venit." Pa alus himself says there Aquiliam, 4.5, ^ 4), ■' Si defendendi is no iinuria if the master of a mei causa lapidem in adversariura slave, meaning to strike the slave, inisero, sednon eum sed praetereuu- accidentally strikes a free man : D. tern percussero, tenebor lege 47, 10, de iniuriis, 4. According to Aquiliii ; ilium enim solum qui the current English theory of the vim infert ferire conceditur." But 16th — 18th centuries an action on various explanations of this are the case would not lie on such facts, possible. Perhaps it shows what but trespass vi et armis would, kind of cases are referred to by the (/) 15 WaU. 524 (1872). 140 GEN'ERAL EXCEPTIOXS. 18G6) "become a generally known article of commerce, nor were its properties "well known. It was found as a fact that the defendants had not, nor had any of the persons concerned in handling the case, knoM-ledge or means of knowledge of its dangerous character, and that the case had heen dealt witli " in the same way that other cases of similar appearance were usually received and handled, and in the mode that men of prudence engaged in the same business would have handled cases having a similar appearance in the ordinary course of business when ignorant of their contents." The defendants admitted their liability as for waste as to the premises occupied by them (which in fact they repaired as soon as possible after the accident), but disputed it as to the rest of the buildino'. Doctrine of Su- preme Court : no liability for acri- dentiil result of Li'w'ful a(.*t "without nogli- seucc. The Circuit Court held the defendants were not further liable than they had admitted, and the Supreme Court of the United States affirmed the judgment. It was held that in the first place the defendants were not bound to know, in the absence of reasonable grounds of suspicion, the contents of packages offered them for carriage : and next, that without such knowledge in fact and without negligence they were not liable for damage caused by the accident (r/). " No one is responsible for injuries resulting from unavoidable accident, whilst engaged in a lawful business. . . The measure of care against accident which one must take to avoid responsibility is that which a person of ordinary prudence and caution would use if his own interests were to be affected and the whole risk were his own." {[/) The plaintiff's proper remedy would have been against the oon- tignorwho despatched the explosive without informing the carriers of its nature. See LynU v. Ganga I)ai (187.)) Indian Law Kep. 1 All. 6U. AMERICAN CASES ON ACCIDENT. Ill The Com-t proceeded to cite witli approval the case of Jirown v. Brown v. Kendall in the Supreme Court of Massachu- (Massa- setts(/i). There the plaintiff's and the defendant's dogs '' "^"^ **'" were fighting : the defendant was beating them in order to separate them, and the plaintiff looking on. " The defendant retreated backwards from before the dogs, striking them as he retreated ; and as he approached the plaintiff, with his back towards him, in raising his stick over his shoulder in order to strike the dogs, he accidental) y hit the plaintiff in the eye, inflicting upon him a severe injury." The action was trespass for assault and batter}'. It was held that the act of the defendant in itself " was a lawful and proper act which he might do by proper and safe means ; " and that if "in doing this act, using due care and all proper precautions necessary to the oxigencies of the case to avoid hurt to others, in raising his stick for that purpose, he accidentally hit the plaintiff in the eye and wounded him, this was the result of pure accident, or was involuntary and unavoidable (?), and therefore the action would not lie." All that could be required of the defendant was " the exercise of due care adapted to the exigency of the case." The rule in its general form was thus expressed : " If, in the prosecution of a lawful act, a casualty purely accidental arises, no action can be sup- ported for an injury arising therefrom." There have been like decisions in the Supreme Courts American of New York and other States (k), and American authority y-mpg seems now to be uniform. gcuerally. (A) 6 Cush. 292 (1850). ventablc by reasonable dilig-ence. (i) The consequence was involuu- (/f) JIarrey v. Diinlap, Lalor I'JS, tary or rather unintended, though cited 15 Wall. 539; Morrisy. FluU, the act iteeU was voluntary ; and it 32 Conn. 75 ; Fiero, 192 ; Burdick, was aho unavoidable, i.e., not pre- 51, 58. 142 GENERAL EXCEPTIONS. English "^e may now see what the English authorities amount authori- '' . ° ties: oases to. They have certainly been supposed to show that and shoot- inevitable accident is no excuse when the immediate result ™"' of an act is complained of. Erskine said more than a centurj- ago in his argument in the celebrated case of Thr Bean of St. Amph (/) (and he said it by way of a familiar illustration of the difference between criminal and civil liability) that " if a man rising in his sleep walks into a china shop and breaks everything about him, his being asleep is a complete answer to an indictment for tres- pass {ni), but he must answer in an action for everything he has broken." And Bacon had said earlier to the same purpose, that " if a man be killed by misadventure, as by an arrow at butts, this hath a pardon of course : but if a man be hurt or maimed only, an action of trespass lieth, though it be done against the party's mind and will " {n). Stronger examples could not well be propounded. For walking in one's sleep is not a voluntary act at all, though possibly an act that might have been prevented : and the practice of archery was, when Bacon wrote, a positive legal duty under statutes as recent as Henry YIII.'s time, though on the other hand shooting is an extra-hazardous act(o). We find the same statement about accidents in shooting at a mark in the so-called laws of Henry I. [p), (?) 21 St. Tr. 1022 (a.d. 1783). showing, like Erskine, the average (;») Would an indictment ever lie legal mind of his time, for simple trespass ? I know not of (o) O. "W. Holmes 103. As to any authority that it would, though the similar case of a lunatic wholly the action of trespass originally unconscious of what he is doing, had, and retained in form down to see p. 55, above, modern times, ■- public and penal (p) C. 88 § 6. "Si qcds in ludo character. sagittandi vel alicuius exercitii («) Maxims of the Law, Eeg. 7, iaculo vel huiusmodi casu aliquem following the dictum of Rede J. in occidat, reddat eum ; legis enim 21 Hen. Vil. 28. We cite Bacon, est, qui inscienter peccat, scienter not as a writer of authority, but as emendet." C. 90 ^ 11a adds INEVITABLE ACCIDENT. ^'^'^ and in the arguments of counsel in a case in the Year- Book of Edward IV., where the general question was more or less discussed (g) . Brian (then at the bar) gave in illustration a view of the law exactly contrary to that which was taken in Broini v. KcndaJJ. But the decision was only that if A. cuts his hedge so that the cuttings ipf ooo plain tm, but apparently was not, L. J . y. Jj. boo. (A) [1891] 1 Q. B. 86, 60 L. J. °^ ^^ " extra -hazardous " charao- Q. B. 52. This was a shooting ter of firearms. l2 I -i^ GENERAL EXCEPTIONS. America. Negligent acts are of course not free from liability ; and in deciding whether a given act is negligent the act must be considered with regard to its necessity, propriety, or conformity to common usage, in all the circumstances of the case. All these elements count towards finding as a fact whether a man acts with due care or not. It may be negligent to do risky things at all without good cause, as well as to do them carelessly, or to do some common thing so carelessly as to make needless risk. But this is no groimd for laying down, as a rule of law, that there is a graduated scale of immunity or privi- lege according to the nature of the occasion. Such a rule is not to be found in any decision, and would be far too elaborate for practice (/). What is here said seems in accord- ance with a recent opinion of the Supreme Court of the United States : " Occupations, however important, which cannot be conducted without necessary danger to life, body or limb, should not be prosecuted at all without all reasonable precautions against such dangers afforded by science " (k). Acts done without such precaiition, and causing damage, are actionable not as unexcused tres- passes, but on the ground of culpable negligence. All this inquiry may be thought to belong not so much to the head of exceptions from liability as to the fixing of the principles of liability in the first instance. But such an inquiry must in practice always present itself under the form of determining whether the particular circumstances exclude liability for an act or consequence which is at first sight wrongful. The same remark applies, to some extent, to the class of cases which we take next in order. (i) Mr. Beven has made the {k) Mather v. Eillston (1894) 156 attempt, Negligence in Law, i. TJ. S. 391, 399. €63—686. lu exercise com- EXERCISE OF EIGHTS. l-li' 9. — Exercise of common Riglds. "We have just left a topic not so much obscure in itself Immunity as obscured by the indirect and vacillating treatment of of it in our authorities. That which we now take up is ™°^^g well settled in principle, and the difficulties have been only ill fixing the limits of application. It is impossible to carry on the common affairs of life without doing various things which are more or less likely to cause loss or inconvenience to others, or even which obviouslj- tend that way ; and this in such a manner that their tendency cannot be remedied by any means short of not acting at all. Competition in business is the most obvious example. If John and Peter are booksellers in the same street, each of them must to some extent diminish the custom and profits of the other. So if they are shipowners employ- ing ships in the same trade, or brokers in the same market. So if, instead of John and Peter, we take the three or four railway companies whose lines offer a choice of routes from London to the north. But it is needless to pursue examples. The relation of profits to competi- tion is matter of common knowledge. To say that a man shall not seek profit in business at the expense of others is to say that he shall not do business at all, or that the whole constitution of society shall be altered. Short of a fundamental reconstruction of the common- wealth, the law must assume that " free competition is worth more to society than it costs " (/). "According to our law, competition, with all its drawbacks, not only between individuals, but between associations, and between them and individuals, is permissible, provided nobody's {I) 0. W. Holmes J., Vegelahn t. Gunlner, 167 Mass. 92, 106. 150 GENERAL EXCEPTIONS. rights are infringed " (;«). Like reasons apply to a man's use of his own land in the common way of husbandry, or otherwise for ordinary and lawful purposes. In short, life could not go on if we did not, as the price of our own free action, abide some measure of inconvenience from the equal freedom of our neighbours. In these matters veniam peiimusque danutsquc ticissiiii. Hence the rule of law that the exercise of ordinary rights in an ordinary manner is no wrong even if it causes damage («) . It is chiefly in this class of cases that we meet with the phrase or formula damnum sine iniuria : a form of words which, lite many other Latin phrases and maxims, is too often thought to serve for an explanation, when in truth it is only an abridgment or mcmoria technka of the things to be explained. It is also of doubtful elegance as a tech- nical phrase, though in general Latin literatm'e iniuria no doubt had a sufficiently wide meaning (o). In English i^sage, however, it is of long standing [p) . {m) Lord Lindley in Qtiinn v. This is in a very special context, Zeathem [1901] A. C. 495, 539, 70 and is far from warranting the use L. J. P. C. 76. of "daramim sine iniuria" as a («) A.-G. V. Tomline (1880) 14 common formula. Being, however, Ch. Div. 58, 49 L. J. Ch. 377, is a adopted in the Institutes, 4, 9, pr. curious case, but does not make any (with the unidiomatio variant " hi- real exception to this. It shows iiirimn fecisse " ), it prohably he- that (1) the Crown as owner of came, through Azo, the origin of foreshore has duties for the pro- the phrase now current. In G-aius teotion of the land, though not 3. 211 (on the lex Aquilia) we read enforceable duties ; (2) those duties, "Iniuria autem ocoidere intelle- where the Crown rights have be- gitur cuius dole aut culpa id come vested in a, subject, are laid aociderit, nee uUa alia lege damnum upon and may he enforced against quod sine iniuria datur reprehen- that subject. ditur." This shows that "damnum (o) Ulpian wrote (D. 9. 1, si Bine iniuria dare " was a correct if quadrupes, 1, §3): " Pauperies est not a common phrase; though it damnum sine iniuria facientis <=ould never have for Gaius or datum, nee enim potest animal iniuria fecisse, quod sensu caret." (p) See note (p) on next page. TIJADE COMPETITION. 151^ A classical illustration of the rule is given by a case in The case the Year-Book of Heniy IV., whioh has often been c.estcr cited in modern books, and which is still perfectly good foh™™"'' authority (q). The action was trespass by two masters of the Grammar School of Gloucester against one who had set up a school iu the same toAN'n, whereby the plaintiffs, ]iaving been wont to take forty pence a quarter for a child's schooling, now got only twelve pence. It was held that such an action could not be maintained. " JDaiiuiiun ," said Hankford J., " may be absque iiiiuria, as if I have a mill and my neighbour build another mill, whereby the profit of my mill is diminished, I shall have no action against him, though it is damage to me . . . but if a miller disturbs the water from flowing to my mill, or doth any nuisance of the like sort, I shall have such action as the law gives." If the plaintiffs here had shown a franchise in themselves, such as that claimed by the Universities, it might have been otherwise. A case very like that of the mills suggested by Case of Hankford actually came before the Court of Common Ulpian the wide meaning' of " harm (a.d. 1410-11). In the course of [of any kind] which gives no cause argument the opinion is thrown <.if action." "Damnum, sine ini- out that the education of children uria " standing alone as a kind of is a spiritual matter, and therefore ^ success or that failure so long as it is due to mere competi- tion " (.r). There is " no restriction imposed by law on competition by one trader with another with the sole object of benefiting himself " (y). But this must be taken subject to the principle that competition must be fair in the sense of being open. A man may not benefit himself at the expense of another and a rival trader by passing off his goods or business as being that other's (s). Another group of authorities of the same class is that Digging- which establishes " that the disturbance or removal of the soil in a man's own land, though it is the means (by process of natural percolation) of drying up his neigh- bour's spring or well, does not constitute the invasion of a legal right, and will not sustain an action. And, further, that it makes no difPerence whether the damage arise by the water percolating awaj', so that it ceases to flow along channels through which it previously found its way to the spring or well ; or A\hether, having found its way to the spring or well, it ceases to be retained there" («). The leading cases are Acton v. Bhindcll {b) and Chasemore \. Eichards {(■) . In the former it was expressly laid down as the governing principle " that the person who owns the surface may dig therein, and apply all that is there found to his own purposes, at his free will and pleasure, and that if in the exercise of such right he intercepts or drains off the water collected from underground springs in his neighbour's well, this inconvenience to his neighbour falls (.r) Ery L. J., ibid, at pp. C25, Q. B. 381. (32*!. (") Per Car. Bullacorlcish 2Iiiiin) 12 M. & W. 324, 13 L. J. imderthe head of Deceit. Areoent Ex. 289, 67 E. E. 361 (1843). leading authority is Reddawmj v. (c) 7 H. L. C. 349, 29 L. J. Ex. Banham [1896] A. C. 199, 65 L. J. 81 (1859). mor Ulchards. 154 GENERAL EXCEPTIONS. within the description of damnum ahsque iniuria which cannot become the ground of an action." In this case the defendant had sunk a deep pit on his own land for mining purposes, and kept it dry by pumping in the usual Avay, with the result of drying up a well which belonged to the plaintiff and was used by him to supply his cotton Chase- mill. Chasemore v. Hichards carried the rule a step further in two directions. It settled that it makes no difference if the well or watercourse whose supply is cut off or diminished is ancient, and also (notwithstanding consider- able doubt expressed by Lord Wensleydale) that it matters not whether the operations carried on by the owner of the surface are or are not for any purpose con- nected with the use of the land itself. The defendants in the cause were virtually the Local Board of Health of Croydon, who had sunk a deep well on their own land to obtain a water supply for the town. The making of this well, and the pumping of great quantities of water from it for the use of the town, intercepted water that had formerly found its way into the ri-^-er "Wandle by under- ground channels, and the supply of water to the plaintiif 's ancient mill, situated on that river, was diminished. Here the defendants, though using their land in an ordinary way, were not using it for an ordinary purpose. But the House of Lords refused to make any distinction on that score, and held the doctrine of Acton v. Blundell applicable {d). The right claimed by the plaintiff was (d) Cp., as to the distinction flowing in a, defined underground between the "natural user" of channel which is not known, and land and the maintenance of arti- can be known only by excavation, ficial works, Surdman v. K. E. S. is not different for this purpose Co. (1878) 3 C. P. Div. at p. 17-1, from water percolating without -17 L. J. C. P. 368 ; and further as any channel: Bradford Corporation to the limits of "natural iiser," v. Ferrand [1902] 2 Ch. C55, 71 Ballard Y. Tomlinson (1885) 29 Ch. L. J. Ch. 859. Div. 115, 54 L. J. Ch. 454. Water USE OF one's own LAND. 155 declared to be too large and indefinite to have any foundation in law. No reasonable limits could be set to its exercise, and it could not be reconciled witb the natural and ordinary rights of landowners. More lately the House of Lords has decided that it does not matter with what motive or intention a landlord exercises the right in question. An aggrieved neighbour will not better his case by averring that the right was exercised "maliciously" (f). The law is believed to be understood to the same effect in the United States. There are many other ways in which a man may use Other his own property to the prejudice of his neighbour, and tions of 3'et no action lies. I have no remedy against a neigh- pr™ciple. hour who opens a new window so as to overlook my garden ; on the other hand, he has none against, me if, at any time before he has gained a prescriptive right to the light, I build a wall or put up a screen so as to shut out his view from that window. But the principle in question is not confined to the use in property. It extends to every exercise of lawful discretion in a man's own affairs. A tradesman may depend in great measm^e on one large customer. This person, for some cause of dissatisfaction, good or bad, or without any assignable cause at all, suddenly withdraws his custom. His con- duct may be uiu'easonable and ill-conditioned, and the manifest cause of great loss to the tradesman. Yet no legal wrong is done. The law is the same if several cus- tomers do the like simultaneously, or even (it is submitted as the better opinion) by agreement among themselves. And such matters could not be otherwise ordered. It is more tolerable that some tradesmen should suffer from the caprice of customers than that the law should dictate to customers (e) Mayor of Bradford v. Pickles [1895] A. C. 587, 64 L. J. Ch. 759. 156 GENEEAL EXCEPTIONS. ■wliat reasons are or are not sufficient for ceasing to deal with a tradesman. So an employer entitled to dismiss a workman at a week's or a day's notice, or a workman entitled to leave on notice, has only to give the proper amount of notice ; his reasons and motives are im- material. Choosing when, where, or with whom one will Avork is as much a matter of common right (subject to any binding contract) as the choice of an occupation itself (/). And, since " a person's liberty or right to deal with others is nugatory, unless they are at liberty to deal with him if they choose to do so " {g), it follows that coercing a man's workmen or customers not to work for or deal vdth him (as distinct from refusing to deal with him one- self) is not an exercise of one's own right, but a violation of his, and actionable if wilfully done to his damage. Such a thing is more likely to be done, and likely to be more injurious if done, by several persons than by one, but on principle it would seem immaterial whether there is one wrongdoer or several. We shall have to return to this elsewhere. Mogers v. U/ijendro Dim. A curious case of this class arose at Calcutta at the time of the Indian Mutiny, and was taken up to the Privy Council. Eajendi-o Dutt and others, the plain- tiffs below, were the owners of the Undencriter, a tug employed in the navigation of the Hoogly. A troopship with English troops arrived at the time when they were most urgently needed. For towing up this ship the captain of the tug asked an extraordinary price. Failing to agree with him, and thinking his demand extor- tionate, Captain Eogers, the Superintendent of Marine (f) Allen -i. Flood [im^K.C. I, [rj) Lord Lindley in Quinn v. .see per Lord Hersohell, at p. 138, Leathern [1901] A. C. 495, 634, 70 67 L.J. Q. B. 119. L.J. P.O. 76. EXERCISE OF RIGHTS. (wlao was defendant in the suit), issued a general order to officers of the Grovernment pilot service that the I'll dene rife r was not to be allowed to take in tow any vessel in their charge. Thus the owners not only failed to make a profit of the necessities of the Grovernment of India, but lost the ordinary gains of their business so far as they were derived from towing ships in the charge of Government pilots. The Supreme Court of Calcutta held that these facts gave a cause of action against Captain Eogers, but the Judicial Committee reversed the decision on appeal {k). The plaintiffs had not been prejudiced iu any definite legal right. No one was bound to employ their tug, any more than they were bound to take a fixed sum for its services. If the Government of India, rightly or wrongly, thought the terms unreasonable, they might decline to deal with the plaintiffs both on the present and on other occasions, and restrain public servants from dealing with them. " The Government certainly, as any other master, may lawfully restrict its own servants as to those whom the^' shall employ under them, or co-operate with in performing the services for the due performance of which they are taken into its service. Supposing it had been believed that the Underwriter was an ill-found vessel, or in any way unfit for the service, might not the pilots have been lawfully forbidden to employ her until these objections were removed ? Would it not indeed have been the duty of the Government to do so? And is it not equally lawful and right when it is honestly believed that her owners wiU. only render their services on exorbitant terms ?"(0. (A) Sogers v. Bajendro Diitl, 8 Moo. I. A. 103. {{) 8 Moo. I. A. at p. 134. 151 158 GENERAL EXCEPTIONS. Even malice noi material in these cases. In this last case the harm sufiered by the plaintiff in the Court below was not only the natural, but apparently the intended consequence of the act complained of. The defendant however acted from no reason of private hostility, but in the interest (real or supposed) of the public service. Not that even averment and proof of malice, in the sense that the act complained of was done with the sole or chief intention of causing harm to the plaintiff as a private enemy, could make any difference in such a case. " No use of property which would be legal if due to a proper motive can become illegal because it is prompted by a motive which is improper or even malicious" (A-). And it is generally true that "an act which does not amount to a legal injury cannot be actionable because it is done with a bad intent " (/). Roman doctrine of ^' ani- mnavicino a difference. nocendi. As regards the use of property, the Roman lawyers held that " animus vicino nocendi " did or might make In a passage cited and to some extent relied on (in the scantiness, at that time, of native authority) in Acton V. Blundell, vre read : " Denique Marcellus scribit, cum eo qui in suo fodiens vioini fontem avertit, nihil posse agi, nee de dolo actionem : et sane non debet habere, si non animo vicino nocendi, sed suum agrum meliorem faciendi id fecit" (wi). And this view was supposed to be followed by recognized authorities in the law of Scotland, who say that an owner using his own land must act " not in mere spite or malice, in aemulationein licini" {n). But it is now explained that this refers {!c) 'Loii'Wa.tsoTi, 2Iat/o>- of JSrad- ford V. Tickles [1895] A. C. 587, 598. To the same effect Lord Macnaghten at p. 601. (I) Stevenson\.Neu-nham{l%bi) 13 C. B. 285, 297, 22 L. J. C. P. 110, Herschell in Allen v. Flood [16 A. C. 1, 124, 67 L. J. Q. B. 119. (m) D. 39, 3, de aqua, 1, § 12 (Ulpian) . (h) Bell's Principles, 966 (referred to by Lord Wensleydale in Chase - 93 E. K. 533 ; approved per Lord more v. Eishards, supra, p. 154. LEAVE AND LICENCE. 159 only to the limited class of cases where a landowner can as well do the thing he wants to do, such as burning limestone, without nuisance to his neighboui', and yet wantonly or recklessly does it at a place where it causes annoyance (o). It seems then that in Scotland, as in England, abuse of an owner's common rights may be actionable as a nuisance, but inconvenience not amounting to nuisance cannot be made to give a right of action by any allegation of evil motive. Again our law does not in general recognize any exclu- Cases of sive right to the use of a name, personal or local. I may names, use a name similar to that which my neighbour uses — and that whether I inherited or found it, or have assumed it of my own motion — so long as I do not use it to pass off my wares or business as being his, which is quite another matter. The fact that inconvenience arises from the similarity will not of itself constitute a legal injury (jf>), and allegations of pecuniary damage will not add any legal effect. " You must have in our law injury as well as damage " {q) . 10. — Leave and Licence : Volenti non fit iniuria. Harm suffered by consent is, within limits to be Consent or mentioned, not a cause of civil action. The same is auce of (o) Lord Watson in Mayor of Ch. 31. Cp. Montgomery v. Thomp- Bradford t. KcTcUs, note {h) above. son [1891] A. C. 217, 60 L. J. Ch. {p) See JliirgessY.Suri/ess {1853} 767, and dist. Tinet's ca. [1898] 3 D. M. G. 896, 22 L. J. Ch. 675, 1 Ch. 179, 67 L. J. Ch. 41, where a classical case ; Du Boulay v. Du a name was assumed for a fraudu- Boulay (1869) L. E. 2 P. C. 430, lent purpose. As to titles of honour, 38 L. J. P. C. 35 ; Bay v. Brown- Barl Cowley v. Countess Cowley rigg (1878) 10 Ch. Div. 294, 48 [1901] A. C. 450, 70 L. J. P. 83. Jj.Z. 0^.113; Streets. TJnionBanTc, (q) Jessel M. E., 10 Ch. Div. ^c. (1885) 30 Ch. D. 156, 55 L. J. 304. i 60 GENERAL EXCEPTIOKS. risk true where it is met with under conditions manifesting lireurt). acceptance, on the part of the person suffering it", of the risk of that kind of harm. The maxim by wliieh the rule is commonly brought to mind is " Yolenti non fit inim'ia." " Leave and licence " is the cuiTent English phrase for the defence raised in this class of cases. Ou the one hand, however, vokiifl non fit initiria is not universally true. On the other hand, neither the Latin nor the English formula provides in terms for the state of things in which there is not specific will or assent to suffer some- thing which, if inflicted against the party's will, would be a wrong, but only conduct showing that, for one reason or another, he is content to abide the chance of it (r). Express The case of express consent is comparatively rare in our books, except in the form of a licence to enter upon land. It is indeed in this last connexion that we most often hear of " leave and licence," and the authorities mostly tm^n on questions of the kind and extent of permission to be inferred from particular language or acts (s) . Limits of Eorce to the person is rendered lawful by consent in such matters as surgical operations. The fact is common enough ; indeed authorities are silent or nearly so, because it is common and obvious. Taking out a man's tooth 'without his consent would be an aggravated assault and battery. With consent it is lawfully done every daj'. In the case of a person under the age of discretion, the consent of that person's parent or guardian is generally necessary and sufficient (i!) . But consent alone is not (r) Unless we said that leair fanciful, points to specific consent to an act, (s) See Addison on Torts, p. 312, licence to general assent to the con- 8th ed. sequences of acts consented to: (t) Cp. Stephen, Digest of the but such a distinction seems too Criminal Law, art. 204. LIMITS OF LAWFUL CONSENT. enoiigli to justify what is on the face of it bodily harm. There must be some kind of just cause, as the cure or extirpation of disease in the case of surgery. Wilful hurt is not excused by consent or assent if it has no reasonable object. Thus if a man licenses another to beat him, not only does this not prevent the assault from being a punish- able offence, but the better opinion is that it does not deprive the party beaten of his right of action. On this principle prize-fights and the like " are unlawful even when entered into by agreement and without anger or mutual ill-will "(a') . "Whenever two persons go out to strike each other, and do so, each is guilty of an assault " (y) . The reason is said to be that such acts are agaiast the peace, or tend to breaches of the peace. But inasmuch as even the slightest direct application of force, if not justified, was in the language of pleading ri et nrmis and contra pacem, something more than usual must be meant by this expression. The distinction seems to be that agreement will not justify the wilful causing or endeavouring to cause appreciable bodily harm for the mere pleasure of the parties or others. Boxing with properly padded gloves is lawful, because in the usual course of things harmless. Fighting with the bare fist is not. Football is a lawful pastime, though many kicks are given and taken in it ; a kicking match is not. " As to playing at foils, I cannot say, nor was it ever said that I know of, that it is not lawful for a gentleman to learn the use of the small sword ; and yet that cannot (.r) Commonwealth v. Collherg (1844) 1 0. & K. at p. 421, op. (1870) 119 Mass. 350, and 20 Am. BullerN.P. 16. The passage there Rep. 328, where authorities are and elsewhere oited from Comber- collected. See also Rrg. v. Coney bach, apart from the slender autho- (1882) 8 Q. B. D. 534, 538, 546, rity of that reporter, is only a 549, 567, and next page. dictum. Buller's own authority is (y) Coleridge J. in Ecg. v. Lewis really better. Y. T. M 161 162 GENERAL EXCEPTIONS. be learned without practising with foils " (s) . Fencing, singlestick, or playing with blunt sabres in the accustomed manner, is lawful, because the players mean no hurt to one another, and take such order by the use of masks and pads that no hurt worth speaking of is likely. A duel with sharp swords after the manner of German students is not lawful, though there should be no personal enmity between the men, and though the conditions be such as to exclude danger to life or limb. Here it cannot be said that " bodily harm was not the motive on either side " (a) . It seems to be what is called a question of mixed law and fact whether a particular action or contest involves such intention to do real hurt that consent or assent will not justify it (i). Neglect of usual precautions in any pastime known to involve danger would be evidence of wrongful intention, but not conclusive evidence. Jieg- V. This question was incidentally considered by several of the judges in Reg. v. Coney (c), where the majority of the Court held that mere voluntary presence at an unlawful fight is not necessarily punishable as taking part in an assault, but there was no difference of opinion as to a prize-fight being unlawful, or all persons actually aiding and abetting therein being guilty of assault, notwith- standing that the principals fight by mutual consent. (z) Foster's Crown Law, 260. lawfully licensed another to beat {a) Foster, I. v. him by way of spiritual discipHne. (b) Cp. Pulton, De Pace Regis, But anyhow he could not have 17 b. It might be a nice point sued, being civilly dead by his whether the old English back- entering into religion. swording (see "Tom Brown ") was lawful or not. And qimere of the («) (1882) 8 Q. B. D. 534, 51 L. old rules of Eugby football, which J. M. C. 66. For fuller collection allowed deliberate kicking in and consideration of authorities, some circumstances. Quaere, also, cp. Mr. Edward Hanson's note in whether one monk might have L. Q. R. vi. 110. LIMITS OF LAWFUL CONSENT. 163 The Court had not, of course, to decide anything as to civil liability, but some passages in the judgments are material. Cave J. said : " The true view is, I think, that a blow struck in auger, or which is likely or is intended to do corporal hurt, is an assault, but that a blow struck in sport, and not likely nor intended to cause bodily harm, is not an assault, and that, au assault being a breach of the peace and unlawful, the consent of the person struck is immaterial. If this view is correct a blow struck in a prize-fight is clearly an assault ; but playing with single- sticks or wrestling do not involve an assault ; nor does boxing with gloves in the ordinary way " (d). Stephen J. said : " "When one person is indicted for inflicting personal injury upon another, the consent of the person who sus- tains the injury is no defence to the person who inflicts the injury, if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as to the person injured. ... In cases where life and limb are exposed to no serious danger in the common course of things, I think that consent is a defence to a charge of assault, even when considerable force is used, as for instance in cases of wrestling, single- stick, sparring with gloves, football, and the like ; but in a,ll cases the question whether consent does or does not take from the application of force to another its illegal character, is a question of degree depending upon cu-cum- stances" (e). These opinions seem equally applicable to the rule of civil responsibility (/). {d) S Q. B. D. at p. 539. As to follows the authorities, but I am the limits of lawful boxing, see not sure that it exactly hits the Mei/. V. Orion (1878) 39 L. T. 293. distinction. {e) 8 Q. B. D. at p. 549. Com- pare arts. 206, 208 of the learned (/) Notwithstanding the doubt judge's "Digest of the Criminal expressed by Hawkins J., 8 Q. B. Law." The language of art. 208 D. at pp. 553, 554. M 2 164 GENERAL EXCEPTIONS. Licence gotten by fraud. A licence obtained by fraud is of no effect. This is too obvious on the general principles of the law to need dwelling upon (g) . Extended meaning of volenti nonfit iinitriii. Trials of strength and skill in such pastimes as those above mentioned afford, when carried on within lawful bounds, the best illustration of the principle by which, the maxim volenti, non fit iniiiria is enlarged beyond its literal meaning. A man cannot complain of harm (within the limits we have mentioned) to the chances of which he lias exposed himself with knowledge and of his free will. Thus in the case of two men fencing or playing at single- stick, volenti non fit iniuria would be assigned by most lawyers as the governing rule, yet the words must be forced. It is not the will of one player that the other should hit him ; his object is to be hit as seldom as possible. But he is content tbat the other shall hit him as much as by fair play he can ; and in that sense the strik- ing is not against his will. Therefore the " assault " of the school of arms is no assault in law. Still less is tbere an actual consent if the fact is an accident, not a necessary incident, of what is being done ; as where in the course of a cricket match a player or spectator is struck by the ball. I suppose it has never occurred to any one that legal wrong is done by such an accident even to a spectator who is taking no part in the game. So if two men are fencing, and one of the foils breaks, and the broken end, being thrown off with some force, hits a bystander, no wrong is done to him. Sucb too is the case put in the Indian Penal [g) A rather curious illustration may be found in Davics v. Marshall (1861) 10 C. B. N. S. 697, 31 L.J. C. P. 61, where the so-called equitable plea and replication seem to have amounted to a common law plea of leave and licence and joinder of issue, or perhaps nevt^ assignment, thereon. TAKING EISK. 1G5 Code {//) of a man who stands near another cutting wood with a hatchet, and is struck by the head flying off. It may be said that these examples are trivial. They are so, and for that reason appropriate. They show that the principle is constantly at work, and that we find little about it in our books just because it is unquestioned in common sense as well as in law. Many cases of this kind seem to fall not less natui-ally Relation under the exception of inevitable accident. But there is, cases to we conceive, this distinction, that where the plaintiff has ^^^Jidcnt° voluntarily put himself in the way of risk the defendant is not bound to disprove negligence. If I choose to stand near a man using an axe, he may be a good woodman or not ; but I cannot (it is submitted) complain of an accident because a more skilled woodman might have avoided it. A man dealing with explosives is bound, as regards his neighbour's property, to diligence and more than diligence. But if I go and watch a firework- maker for my own amusement, and the shop is blown up, it seems I shall have no cause of action, even if he was handling his materials unskilfully. This, or even more, is implied in the decision in Iloti v. Wilkes (/), where it was held that one who trespassed in a wood, having notice that spring-guns were set there, and was shot by a spring-gun, could not recover. The maxim " volenti non fit iniuria " was expressly held applicable : " he voluntarily exposes himself to the mischief which (h) lUust. to s. 80. On the argument that since the defendant point of actual consent, of. es. 87 could not have justified shooting a and 88. trespasser with his own hand, even (i) (1820) 3 B. & Aid. 304, 22 after warniDg', he could not justify E. E. 400 ; cp. and dist. the later shooting him with a epring-gun, is caie of Bird v. Solhrook (1828) 4 weighed andfound wanting, though Bing. 628, 29 K. E. 657. The perhaps it ought to have prevailed. 166 GENERAL EXCEPTIONS. Know- ledge of risk op- posed to duty of ■warniug'. has happened" (/c). The case gave rise to much public excitement, and led to an alteration of the law (/) , but it has not been doubted in subsequent authorities that on the law as it stood, and the facts as they came before the Court, it was well decided. As the point of negli- gence was expressly raised by the pleadings, the decision is an authority that if a man goes out of his way to a> dangerous action or state of things, he must take the risk as he finds it. And this appears to be material with regard to the attempt made by respectable authorities, and noticed above, to bring under this principle the head of excuse by reason of inevitable accident (/ii) . It was held by a majority of the Court of Appeal that if a man undertakes to work in a railway tunnel Vt^here he knows that trains are constantly passing, he cannot complain of the railway company for not taking measures to warn the workmen of the approach of trains, and this though he is the servant not of the company but of the contractor («). The minority held that the railway company, as carrying on a dangerous business, were bound not to expose persons coming by invitation upon their property to any undue risk, and at all events the burden of proof was on them to show that the risk was in fact understood and accepted by the plaintiff (o). "If I (i) Per Bay ley J. 3 B. & AM. at p. 311, andHolroyd J. at p. 314. (1) Edin. Eev. xxxv. 123, 410 (reprinted in Sydney Smith's works). Setting spring-guns, ex- cept by night in a dwelling-house for the protection thereof, was made a criminal offence by 7 & 8 Geo. IV. c. 18, now repealed and substantially re-enacted (24 & 25 Vict. u. 95, o. 1, and c. 100, s. 31). (m) Solmes t. Mather (1876) L. R. 10 Ex. at p. 267 ; Uylmds v. Fletcher (1866) L. R. 1 Ex. at p. 287. («) Woodlc]) V. Met. Bist. S. Co. (1877) 2 Ex. Div. 384, 46 L. J. Ex. 521; Mellish and Baggallay L. JJ. diss. (o) Cp. Thomas v. Quarlermaine (1887) 18 Q. B. Div. 685, 56 L. ,T. Q. B. 340, and Lord Herschell's judgment in Membery v. G. W. S. Co. (1S89) 14 App. Ca. 179, 190. TAKING RISK. 167 invite a man who has no knowledge of the locality to walk along a dangerous oliff which is my property, I owe him a duty different to that which I owe to a man who has all his Hfe hirdnested on my rocks " (jo). But where a man goes on doing work under a risk which is known to him, and which does not depend on any one else's acts, or on the condition of the place where the work is done, hut is incident to the work itself, he cannot he heard to say that his exposure of himself to such risk was not voluntary (g). The principle expressed by volenti non fit bniiria is Cases different from that of contributory negligence (r), as it is employers in itself independent of the contract of service or any a^"! their ■^ •' workmen : other contract (.s). It does not follow that a man is sm\tk\. negligent or imprudent because he chooses to encounter ^"'"''■ a risk which he knows and appreciates ; but, if he does voluntarily run the risk, he cannot complain afterwards [t) . At the same time, knowledge is not of itself conclusive. The maxim is volenti — not scientl — non fit iniuria ; "the question whether in any particular case a plaintiff was rolens or nolens is a question of fact and not of law " {ii). A workman is not bound, for example, to throw up his employment rather than go on working with appliances which he knows or suspects to be dangerous; and con- (ji) Fry L. J. 18 Q. B. Div. at Qiuirtermainc (1887) 18 Q. B. Div. p. 701. And see Yarmouth y. France 685, 69i, 697, 56 L. J. Q. B. 340. (1887) 19 Q. B. D. 647, 57 L. J. ,. j^ q_ ^ -^.^^ ^^ 698 Q. B. 7. [q) Membery v. G. W. S. Co. (<) Bowen L. J. 18 Q. B. Div. at noie (o). Lord Bramwell's extra- P- 695- judicial remarks cannot be sup- («) Ibid, at p. 696 ; Lindley ported : see per Lord HerscheU, 14 L. J. in Yarmouth v. France (1887) App. Ca. at pp. 192, 193 ; and 19 Q. B. D. 647, 659, before judges {iinith V. Baker, p. 168, below. of the C. A. sitting as a divisional (r) Bo wen L. J. in Thomas v. Court. 168 GENEKAL EXCEPTIONS. tinuing to use such appliances if the employer cannot or wiU not give him better is not conclusive to show that he voluntarily takes the attendant risk {x) . As between an employer and his own workmen, it is hardly possible to separate the question of knowledge and acceptance of a particular risk from the question whether it was a term in the contract of service (though it is seldom, if ever, an express term) that the workman should accept that risk. Since the Employers' Liability Act deprived the master, as we have already seen, of the defence of " common employment " in a considerable number of cases, the defence of volenti non fit iniuria has several times been resorted to, with the effect of raising compli- cated discussion on tolerably simple facts. By treating the maxim as if it were of literal authority (which no maxim is), and then construing it largely, something very like the old doctrine of "common employment" might have been indirectly restored. For some time there was appreciable danger of this result. But the tendency was effectually checked by the decision of the House of Lords in Smith v. Baker (y). Except where there is an obvious and necessary danger in the work itself, it must be a question of fact in every case whether there was an agreement, or at any rate consent, to take the risk (z). " Where a person undertakes to do work which is intrin- sically dangerous, notwithstanding that reasonable care has been taken to render it as little dangerous as possible, he no doubt voluntarily subjects himself to the risks inevitably accompanying it, and cannot, if he suffers, be {x) Yarmouthy. France, last note \ [ij) [1891] A. C. 325. Thriissell v. Sandt/side (1888) 20 Q. (z) inUiams v. Birmmgham But- B. D. 369, 57 L. J. Q. B. 347; iery and Metal Co. [1899] 2 Q. B. Smith T. Baker [1891] A. C. 325, 338, 345, 68 L. J. Q. B. 918, per 60 L. J. Q. B. 683. Eomer, L. J. TAKING RISK. I'^O permitted to complain that a wrong lias been done him, even though the cause from which he suffers might give to others a right of action : " as in the case of works imavoidably producing noxious fumes. But where " a risk to the employed, which may or may not result in injury, has been created or enhanced by the negligence of the employer," there " the mere continuance in service, with knowledge of the risk," does not " preclude the employed, if he suffer from such negligence, from recovering in respect of his employer's breach of duty" (a). And it seems that (apart from contracts to take a class of risks) there must be consent to the particular act or operation which is hazardous, not a mere general assent inferred from knowledge that risk of a certain kind is possible (h) . Cases of volenti non fit iniiiria are of course to be Distinc- T • • 1 1 !■ p 1 -Tj, ''°'^ where distmguished from cases of pure unexpected accident, no negli- where there is no proof of any negligence at all on the ^jj° defendant's part(c). It seems that T//oiiias v. Qaartei- maine, though not so dealt with, was really a case of this latter kind {d). In the construction of a policy of insm-ance against death or injury by accident, an exception of harm " happening by exposure of the insm-ed to obvious risk of injury " includes accidents due to a risk which would have been obvious to a person using common care and attention (e) . (a) Lord Herschell [1891] A. C. an appeal from a County Court, at pp. 360, 362. this point, not having been raised (i) Lord Halsbury [1891] A. C. at the trial below, was not open on at pp. 336—338. the appeal. It was nevertheless (c) IFaUh V. Whiteley (1888) 21 extra - judicially discussed, with — T N GENERAL EXCEPTIONS. ease where it is necessary to assume any special rule of this kind. It would he no answer to an action for killing a dog to show that the owner was liahle to a penalty for not having taken out a dog licence in due time. If, again, A. receives a letter containing defamatory state- ments concerning B., and reads the letter aloud in the presence of several persons, he may he doing wrong to B. But this will not justify or excuse B. if he seizes and tears up the letter. A. is unlawfully possessed of explosives which he is carrying in his pocket. B., walking or running in a hurried and careless manner, jostles A. and so causes an explosion. Certainly A. cannot recover against B. for any hurt he takes by this, or can at most recover nominal damages, as if he had received a, harmless push. But would it make any difference if A.'s, possession were lawful ? Suppose there were no statutory regulation at all : still a man going about with sensitive explosives in his pocket would he exposing himself to an unusual risk obvious to him and not obvious to other people, and on the principles already discussed would have no cause of action. And on the other hand it seems a strong thing to say that if another person does know of the special danger, he does not become bound to take answerable care, even as regards one who has brought himself into a position of danger by a wrongful act. Cases of this kind have sometimes been thought to belong to the head of contributory negligence. But this, it is sub- mitted, is an unwarrantable extension of the term, founded on a misapprehension of the true meaning and reasons of the doctrine ; as if contributory negligence were a sort of positive wrong for which a man is to be punished. This, however, we shall have to consider hereafter. On the whole it may be doubted whether a mere civil wrong- doing, such as trespass to land, ever has in itself the effect UNLAWFUL CONDUCT OF PLAINTIFF. 179 now under consideration. Almost every case that can be put seems to fall just as well, if not better, under tbe principle that a plaintiff who has voluntarily exposed himself to a known risk cannot recover, or the still broader rule that a defendant is liable only for those consequences of his acts which are, in the sense explained in a former L'hapter (g), natural and probable. In America there has been a great question, upon Conflict of which there have been many contradictory decisions. United whether the violation of statutes against Sunday travelling (jaserof^^ is in itself a bar to actions for iniuries received in the Sunday ■^ _ , _ travelling. course of such travelling through defective condition of roads, negligence of railway companies, and the like. In Massachusetts (where the law has since been altered by statute), it was held that a plaintiff in such circumstances could not recover, although the accident might just as well have happened on a journey lawful for all purposes. These decisions must be supported, if at aU, by a strict view of the policy of the local statutes for securing the observance of Sunday. They are not generally considered good law, and have been expressly dissented from in some other States (h). The principle now defined by the Supreme Court of Massachusetts as generally applicable is that illegal con- duct of the plaintiff which contributed directly and proxi- mately to the injury suffered by him is equivalent, as matter of law, to contributory negligence (i). (ff) Pp. 34 — 50, above. v. lang, 128 Mass. 598 ; Hiicher v. {!,) Sutton V. Town of Wauwatosa Cheshire R. R. Co., 125 U. S. 555 ; (Wisconsin, 1871) Bigelow L. C. Kero, 153-4. 711, and notes thereto, pp. 721-2; («) Newcomb v. Boston Protective „. V. in Jer. Smith's Cases on Torts, Depart. (1888) 146 Mass. 596, Jer. ii. 115, see note, ib. And see White Smith, op. eit. ii. 123. n2 180 GENERAL EXCEPTIONS. Cause of action connected with un- lawful agree- ment. It is a rule not confined to actions on contracts that " the plaintiff cannot recover where in order to maintain his supposed claim he must set up an illegal agreement to which he himself has been a party " (k) : hut its application to actions of tort is not frequent or normal. The case from which the foregoing statement is cited is the only clear example known to the writer, and its facts were very peculiar. (k) Maule J., Fivaz v. Meholls (18 514, 521. 2 C. B. 501, 513; 69 E. R. 181 CHAPTER V. OF REMEDIES FOE TOETS. At common law there were only two kinds of redress Diversitj- for an actionable wrong. One was in those cases — dies, exceptional cases according to modern law and practice — where it was and is lawful for the aggrieved party, as the common phrase goes, to take the law into his own hands. The other way was an action for damages (a). Xot that a suitor might not obtain, in a proper case, other and more effectual redress than money compensation ; but he could not have it from a court of common law. Specific orders and prohibitions in the form of in- junctions or otherwise were (with few exceptions, if any) {b) in the hand of the Chancellor alone, and the principles according to which they were granted or with- held were counted among the mysteries of Equity. But no such distinctions exist under the system of the Judica- ture Acts, and every branch of the Court has power to (a) Possession could be recovered mands («.<)'. mandamus) were applie- from an early time, though, not at able to the redress of purely private first in an action of ejectment. But wrongs, though they might be this was an action of trespass in available for a private person form only. In substance it took wronged by a breach of public the place of the old real actions, duty. Under the Common Law and it is sometimes called a real Procedure Acts, from 1854 to 1875, action . Detinue was not only not the superior courts of common law a substantial exception, but hardly had limited powers of granting even a formal one, for the action injunctions and admiuisteriag was not really in tort. equitable relief. These were found (b) I do not think any of the of little importance in practice, and powers of the superior courts of there is now no reason for dwelling common law to issue specific com- on them. 182 EEMEDIES FOR TOETS. administer every remedy. Therefore we have at this day, in considering one and the same jurisdiction, to bear in mind the manifold forms of legal redress which for our predecessors were separate and unconnected incidents in the procedirre of different courts. Self-help. Eemedies available to a party by his own act alone may be included, after the example of the long-established German usage, in the expressive name of self-help. The right of private defence appears at first sight to be an obvious example of this. But it is not so, for there is no question of remedj' in such a case. "We are allowed to repel force by force " not for the redress of injuries, but for their prevention "(c); not in order to undo a wrong done or to get compensation for it, but to cut wrong short before it is done ; and the right goes only to the extent necessary for this purpose. Hence there is no more to be said of self-defence, in the strict sense, in this connexion. It is only when the party's lawful act restores • to him something which he ought to have, or puts an end to a state of things whereby he is wronged, or at least puts pressure on the wrong-doer to do him right, that self-help is a true remedy. And then it is not necessarily a com- plete or exclusive remedy. The acts of this nature which we meet with in the law of torts are expulsion of a tres- passer, retaking of goods by the rightful possessor, distress damage feasant, and abatement of nuisances. Peaceable re-entry upon land where there has been a wrongful change of possession is possible, but hardly occurs in modern experience. Analogous to the right of retaking of goods is the right of appropriating or retaining debts under certain conditions ; and various forms of lien are more or less analogous to distress. These, however, (c) This is well noted in Cooley on Torts (1st ed.) 50. DAMAGES. 18'3 telong to the domain of contract, and we are not now concerned with them. Such are the species of remedial self-help recognized in the law of England. In every case alike the right of the partj- is subject to the rule that no greater force must be used, or damage done to property, than is necessary for the purpose in hand. In some cases the mode of exercising the right has been specially modified or regulated. Details will best be con- sidered hereafter in relation to the special kinds of wrong to which these kinds of redress are applicable {d) . We pass, then, from extra-judicial to judicial redress, Judicial from remedies by the act of the party to remedies by the damages, act of the law. The most frequent and familiar of these is the awarding of damages (e). Whenever an actionable wrong has been done, the party wronged is entitled to recover damages ; though as we shall immediately see, this right is not necessarily a valuable one. His title to recover is a conclusion of law from the facts determined in the cause. How much he shall recover is a matter of judicial discretion, a discretion exercised, if a jury tries the cause, by the jury under the guidance of a judge. As we have had occasion to point out in a former chapter (/), the rule as to "measure of damages " is laid down by the Court and applied by the jury, whose appli- cation of it is, to a certain extent, subject to review. The grounds on which the verdict of a jury may be set aside aie all reducible to this principle : the Court, namely, must be satisfied not only that its own finding would have been different (for there is a wide field within whicli opinions and estimates may fairly differ) {g) , but that the (d) Cp. Blaokstone, Bk. iii. c. 1. work as "Mayne on Damages." (e) It is hardly needful to refer (/) P. 31, above. the reader for fuller illustration of [g) The principle is familiar. See the subject to so weU known a it stated, e.g. 5 Q. B. Div. 85. 184 REMEDIES FOE TORTS. jury did not exercise a due judicial discretion at all (h). Among these grounds are the awarding of manifestly excessive or manifestly inadequate damages, such as to imply that the jury disregarded, either hy excess or hy defect, the law laid down to them as to the elements of damage to be considered («), or, it may be, that the verdict represents a compromise between jurymen who were really not agreed on the main facts in issue (/.:). The jurisdiction is to order a new trial, not to give judgment for an amended amount of damages, which can be done only by consent (/). Nominal Damages may be nominal, ordinary, or exemplary, amages. ]sroniinal damages are a sum of so little value as com- jDared with the cost and trouble of suing that it may be said to have "no existence in point of quantity "(»?) , such as a shilling or a penny, which sum is awarded with the purpose of not giving any real compensation. Such a verdict means one of two things. According to- the nature of the case it may be honourable or contu- melious to the plaintiff. Either the purpose of the action is merely to establish a right, no substantial harm or loss having been suffered, or else the jury, while unable to deny that some legal wrong has been done to the plaintiff, have formed a very low opinion of the general merits of his case. This again may be on the (A) See MetropoHlan li. Co. v. shoTvn, a, verdict for 1,0001. was- Wright (1886) 11 App. Ca. 152, 55 set aside on the ground of the L. J. Q. B. 401 ; Fraed v. Graham- damages heing- insuiBoient ; Jolm- (1889) 24 Q. B. Div. 53, 59 L. J. ston v. G. JV. B. Co. [1904] 2 K. B. Q,. B. 213 ; Cox v. English, Scottish 250, 73 L. J. K. B. 568, C. A. and Australian Banh [1905] A. 0. (k) Falvcy-f. Stanford {187i) L. E. 168, 74 L. J. P. C. 62. 10 Q. B. 64, 44 L. J. Q. B. 7. (i) Phillips V. L. (S- S. rr. R. Co. [I) Watt V. Watt [1906] A. C. (1879) 6 Q. B. Div. 78, 49 L. J. 115, 74 L. J. K. B. 438. ■ Q. B. 233, where, on the facts (ot) Maule J. 2 C. B. 499. NOMINAL DAMAGES. ground that the harm he suffered was not worth suing for, or that his own conduct had been such that what- ever he did suffer at the defendant's hands was morally deserved. The former state of things, where the verdict really operates as a simple declaration of rights between the parties, is most commonly exemplified in actions of trespass brought to settle disputed claims to rights of way, rights of common, and other easements and profits. It is not uncommon to give forty shillings damages in these cases if the plaintiff establishes his right, and if it is not intended to express any disapproval of his con- duct {n). The other kind of award of nominal damages, where the plaintiff's demerits earn him an illusory sum such as one farthing, is illustrated chiefly by cases of defamation, where the words spoken or written by the defendant cannot be fully justified, and yet the plaintiff has done so much to provoke them, or is a person of such generally worthless character, as not to deserve, in the opinion of the jury, any substantial compensation (o) . This has happened in actions against the publishers of newspapers which were famous at the time, but have not found a place in the regular reports. Nominal damages may also be given where there has been some excess in generally justifiable acts of self-defence or self-help (p) . (ii) Under the various statutes (o) Xelli/ v. iShcrlocJc {ISdG) li.'R. as to costs which were in force 1 Q. B. 686, 35 L. J. Q. B. 209, before the Judicature Acts, 40s. is a case of this kind where, not- was, subject to a few exceptions, withstanding that the libels sued the least amount of damages which for were very gross, the jury gave carried costs without a special a farthing damages, and the Court, certificate from the judge. Fre- though not satisfied with the ver- q\iently juries asked before giving diet, refused to disturb it. their verdict what was the least sum that would carry costs ; the (p) Harrison v. DuJco of Sutlaiid general practice of the judges was [1893] 1 Q. B. 142, 62 L. J. Q. B. to refuse this infoimation. 117, C. A. 185 186 REMEDIES FOE TORTS. Nominal The enlarged power of the Court over costs since the possible Judicature Acts has made the question of nominal an abso-^"^ damages, which under the old procedure, were described ivitc light as " a mere peg on which to hang costs" (q), much less fringed. important than it formerly was. But the possibility of recovering nominal damages is still a test, to a certain extent, of the nature of the right claimed. Infringements of absolute rights like those of personal security and property give a cause of action without regard to the amount of harm done, or to there being harm estimable at any substantial sum at all. As Holt C. J. said in a celebrated passage of his judgment in Ashhy v. White (r), " a damage is not merehj pecuniar ij, hut an mjury imports a damage, icJien a man is thereby/ hindered of his right. As in an action for slanderous words, though a man does not lose a penny by reason of the speaking them, yet he shall have an action. So if a man gives another a cuif on the ear, though it cost him nothing, no not so much as a little diachylon, yet he shall have his action, for it is a personal injury. So a man shall have an action against another for riding over his ground, though it do him no damage ; for it is an invasion of liis property, and the other has no right to come there." Cases On the other hand, there are cases even in the law of damao-eis property where, as it is said, damage is the gist of the th^ ^^tion* action, and there is not an absolute duty to forbear from (}) By Maule J. (1846) in Beau- The effect of the Judicature Acts mont V. Greatheacl, 2 C. B. 499. and Rules of Court in abrogating Under the present procedure costs the older statutes was settled in are in the discretion of the Court ; 1878 by Garnett v. Bradley, 3 App. the costs of a cause tried by jury Ca. 944, 48 L. J. Ex. 186. A follow the event (without regard to sketch of the history of the subject amount of damages) unless the is given in Lord Blackburn's judg- judge or the Court otherwise ment, 3 App. Ca. pp. 962 sqq. orders: Order LXV. r. 1, &c. (r) 2 Lord Raym. at p. 955. DAJIAGE AS GIST OF ACTION. 1'^'' doing a certain thing, but only not to do it so as to cause actual damage. The right to the support of land as between adjacent owners, or as between the owner of the surface and the owner of the mine beneath, is an example. Here there is not an easement, that is, a positive right to restrain the neighbour's use of his land, but a right to the undisturbed enjoyment of one's own. My neighbour may excavate in his own land as much as he pleases, unless and until there is actual damage to mine : then, ■and not till then, a cause of action arises for me(s). Negligence, again, is a cause of action only for a person who suffers actual harm by reason of it. A man who rides furiously in the street of a town may thereby render himself liable to penalties under a local statute or by-law ; but he does no wrong to any man in particular, and is not liable to a civil action, so long as his reckless behaviour is not the cause of specific injury to person or property. The same rule holds of nuisances. So in an action of deceit, the cause of action is the plaintiff's having suffered damage by acting on the false statement made to him by the defendant {t). In all these cases there can be no question of nominal damages, the proof of real damage being the foundation of the plaintiff's light. It may happen, of course, that though there is (s) Backhouse v. Bonomi (1861) 9 the owner at the date of the damage, H. L. 0. 503, 34 L. J. Q. B. 181 ; ivhich was caused by the acts not of I)arlcy Main Colliery Co. v. Mitchell himself but of a predecessor in (1886) 11 App. Ca. 127, 55 L. J. title). Q. B. 629. Accordingly deprecia- tion due to risk of future subsidence [t) Pontifex -v. Hiffiiold {I8il) 3 is not properly included in an in- Man. & G. 63, 60 R. K. 45-1, is quiry as to damages : Tunnicliffe sometimes quoted as if it were an and Sampson v. West Leigh Colliery authority that no actual damage Co. [1905] 2 Ch. 390, 74 L. J. Ch. is necessary to sustain an action of 649. 'Di&t. Hall -a . Duke of Korfolk deceit. But careful examination [1900] 2 Ch. 493, 69 L. J. Ch. 571 will show that it is far from (no cause of action at all against deciding this. 1""^8 REMEDIES FOR TORTS. real damage there is not much of it, and that the verdict is accordingly for a small amount. But the smallness of the amount will not make such damages nominal if they are arrived at by a real estimate of the harm suf- fered. In a railway accident due to the negligence of the railway company's servants one man may he crippled for life, while another is disabled for a few days, and a third only has his clothes damaged to the value of five shillings. Every one of them is entitled, neither more nor less than the others, to have amends according to his loss. Peoulia- In the law of slander we have a curiously fine line of defama- between absolute and conditional title to a legal remedy ; ^°°' some kinds of spoken defamation being actionable with- out any allegation or proof of special damage (in which case the plaintiff is entitled to nominal damages at least), and others not ; while as to written words no such dis- tinction is made. The attempts of text-books to give a rational theory of this are not satisfactory. Probably the existing condition of the law is the result of some obscure historical accident (u). Ordinary Ordinary damages are a sum awarded as a fair measure amageb. ^£ compensation to the plaintiff, the amount being, as near as can be estimated, that by which he is the worse for the defendant's wrong-doing, but in no case exceeding the amount claimed by the plaintiff himself (x) . Such («) See more in Oh. VII. belo"w. Court, justifiable only in an extra- (.i) A jury has been known to find ordinary case. " It will not do for a verdict for a greater sum than Mr. Justice Kay, or for this Court, was claimed, and the judge to to exercise that unknown equity amend the statement of claim to which is sometimes exercised by enable himself to give judgment juries:" Cotton L. J., Dreyfus v. for that greater sum. But this is Feruvian Guano Co. (1889) 43 Ch. an extreme use of the power of the Div. 316, 327, 62 L. T. 518. ORDINARY DAMAGES. amount is not necessarily that which it would cost to restore the plaintiff to his former condition. Where a tenant for years carried away a large quantity of valuable soil from his holding, it was decided that the reversioner could recover not what it would cost to replace the soil, but only the amount by which the value of the reversion was diminished (i/). In other words, compensation, not restitution, is generally the proper test (s) . Beyond this it is hardly possible to lay down any universal rule for ascertaining the amount, the causes and circumstances of actionable damage being infinitely various. And in particular classes of cases only approximate generalization is possible. In proceedings for the recovery of specific property or its value there is not so much difficulty in assigning a measure of damages, though here too there are unsettled points («). But in cases of personal injury and consequential damage by loss of gains in a business or profession it is not possible either completely to separate the elements of damage, or to found the estimate of the whole on anything like an exact calculation (b). There is little doubt that in fact the process is often in cases of (y) TFhilhanfv. Kershaw {1885-6) a corporation or trustees charged 16 Q. B. Div. 613, 54 L. T. 124 ; with tlie maintenance of a highway cp. Siist V. Victoria Graving Bock orotherpublicwork; being bound to Co. (1887) 36 Ch. Div. 113, 56 L. T. restore the property in their charge 216 ; Chifferiel v. Watson (1888) 40 if damaged, they are entitled to Ch. D. 45, 58 L. J. Ch. 137 (com- recover from the wrong-doer the pensation under conditions of sale) . full cost of doing so : Wednesbury But where another man's land is Corporation v. lodge Soles Colliery used without right, its value for Co. [1907] 1 E. B. 78, 76 L. J. K. the purpose for which it is so used B. 08, C. A. is taken into account in assessing (a) See Mayne on Damages, 7th damages: Whitwham v. West- ed. t. 13. minster Brymio Coal ^ Coke Co. (b) See the summing up of Field [1896] 2 Ch. 538, 65 L. J. Ch. 741, J. in Fhillips v. L. ^ S. W. M. Co. C. A. (1879) 5 Q. B. Div. 78, 49 L. J. (2) There is an exception (hardly Q. B. 233, which was in the main a real one) where the plaintiffs are approved by the Court of Appeal. 189 190 REMEDIES FOR TOETS. this class even a rougher one than it appears to be, and that legally irrelevant circumstances, such as the wealth and condition in life of the parties, have much influence on the verdicts of juries : a state of things which the law does not recognize, but practically tolerates within large bounds. Exem- One step more, and we come to cases where there is damages, great injury without the possibility of measuring com- pensation by any numerical rule, and juries have been not only allowed but encoui'aged to give damages that express indignation at the defendant's wrong rather than a value set upon the plaintiff's loss. Damages awarded on this principle are called exemplary or vindictive. The kind of wrongs to which they are applicable are those which, besides the violation of a right or the actual damage, import insult or outrage, and so are not merely injuries but iniuriae in the strictest Roman sense of the term. The Greek i'/S^is- perhaps denotes with still greater exact- ness the quality of the acts which are thus treated. " The tort is aggravated by the evil motive "(c). An assault and false imprisonment under colour of a pretended right in breach of the general law, and against the liberty of the subject {d) ; a wanton trespass on land, persisted in with ^'iolent and intemperate behaviour (e) ; the (c) Milwaukee, ^-c. R. JR. Co. v. upon the liberty of the subject." Arms (1875) 91 U. S. 489, 493. Cp. Seott v. Donald (1896) 165 U. S. (d) Euclde v. Money (1763) 2 58 (wrongs done under colour of an Wils. 205, one of the branches of unconstitutional statute) . the great case of general warrants : [e) Merest v. JSarvcy (1814) 5 the plaintiff was detained about six Taunt. 422, 16 R. R. 548: the hours and civiUy treated, " enter- defendant was drunk, and passing tained with beef-steaks and beer," by the plaintiff's land on which the but the jury was upheld in giving plaintiff was shooting, insisted, 300?. damages, because " it was a with oaths and threats, on joining most daring public attack made in the sport ; a verdict passed for EXEMPLARY DAMAGES. seduction of a man's daughter with deliberate fraud, or otherwise under circumstances of aggravation (/) ; such are the acts which, with the open approval of the Courts, juries have been in the habit of visiting with exemplary damages. Gross defamation should perhaps be added ; but there it is rather that no definite principle of compensation can be laid down than that damages can be given which axe distinctly not compensation. It is not found practicable to interfere with jui'ies either way {g), unless their verdict shows manifest mistake or improper motive. There are other miscellaneous examples of an estimate of damages coloured, so to speak, by dis- approval of the defendant's conduct (and in the opinion of the Court legitimately so), though it be not a case for vindictive or exemplary damages in the proper sense. In an action for trespass to land or goods substantial damages may be recovered though no loss or diminution in value of property may have occuiTed {h). In an action for negli- gently pulling down buUdings to an adjacent owner's damage, evidence has been admitted that the defendant wanted to disturb the plaintiff in his occupation, and purposely caused the work to be done in a reckless manner : and it was held that the judge might properly authorize a jury to take into consideration the words and conduct of the defendant " showing a contempt of the plaintiff's rights and of his convenience" («). Substantial damages 500Z., the full amount claimed, and disturbed, though the imputation it was laid down that juries ought was a gross one ; cp. Kelly v. Sher- to be allowed to punish insult by lock, p. 185, note (o), above, exemplary damages. (h) Per Denmau C. J. in Ex. Ch., (/) Tullidge v. Wade (1769) 3 Rogers v. Spence, 13 M. & "W. at p. Wils. 18: "Actions of this sort 581, 15 L. J. Ex. 49; Brewer v. are brought for example's sake." Dew (1843) 11 M. & W. 625, 63 {g) See Forsdike v. Stone (1868) E. E. 690, 693. li. E. 3 C. P. 607, 37 L. J. 0. P. (i) Emblen v. Myers (1860) 6 H. 301, where a verdict for Is. was not & N. 54, 30 L. J. Ex. 71. 191 192 EEMEDIES FOE TORTS. have been allowed for writing disparaging words on a paper belonging to the plaintiff, although there was no publication of the libel (k) . " It is universally felt by all persons who have had occasion to consider the question of compensation, that there is a difference between an injury which is the mere result of such negligence as amounts to little more than accident, and an injury, wilful or negligent, which is accompanied with expressions of insolence. I do not saj- that in actions of negligence there should' be vindictive damages such as are sometimes given in actions of trespass, but the measure of damage should be different, according to the nature of the injury and the circumstances with which it is accompanied " (/). The case now cited was soon afterwards referred to by Willes J. as an authority that a jury might give exemplary damages, though the action was not in trespass, from the character of the wrong and the way in which it was done (/«). All these cases of aggravated damage must be carefully distinguished from the much more exceptional cases where evil motive is, or has been supposed to be, a necessary part of the cause of action itself. Analogy The action for breach of promise of marriage, being of breach . « . . ^ . , of promise an action of contract, is not withm the scope of this ria™e'^to work; but it has curious points of afBnity with actions torts in of tort in its treatment and incidents; one of which is this respect. (/.) TFennhak v. Morgan (1888) li.J.inlFhithamT. Eersliatv (\i&fi) 20 Q. B. D. 635, 57 L. J. Q. B. 16 Q. B. Div. at p. 618. 2*1- (ot) Bell V. Midland R. Co. (1861) (I) Pollock C. B. 6 H. & N. 68, 10 C. B. N. S. 287, 307, 30 L. J. 30 L. J. Ex. 72. Cp. per Bowen 0. P. 273, 281. CONCUKRENT CAUSES OF ACTION. l''-^' that a very large discretion is given to the jiiry as to damages («) . As damages may he aggravated hy the defendant's ill ^['ii.-'i,- behaviour or motives, so they may be reduced by proof of dama.u-c?. provocation, or of his liaving acted in good faith : and many kinds of circumstances which will not amount to justification or excuse are for this purpose admissible and material. " In all cases wliere motive mny be ground of aggravation, evidence on this score ^\'ill also be admissible in reduction of damages " (o). For the rest, that is an affair of common knowledge and pra(ticp rather than of reported authority. " Damages resulting from one and the same cause of Concnr- action must be assessed and recovered once for all"; severiiiilp but where the same facts give rise to two distinct causes <^'i';'.^«^-'* "' of action, though between the same parties, action and judgment for one of these causes will be no bar to a subsequent action on the other. A man who has had a verdict for personal injuries cannot bring a fresh action if he afterwards finds that his hurt was graver than he supposed. On the other hand, trespass to goods is not the same cause of action as trespass to the person, and the same principle holds of injuries caused not by voluntary trespass, but by negligence; therefore where the plaintiff, driving a cab, was run down by a van negligently driven by the defendant's servant, and the cab was damaged and the plaintiff suffered bodily harm, it was held that after suing and recovering for the damage to the cab the plaintiff was free to bring a («) See, e.g.. Berry v. Ba Coita the present work, ad Jin. (1866) L. R. 1 C. P. 331, 35 L. J. (o) Mayne on Damages, 128 C. P. 191 ; and the last chapter of (7th ed.). P. T. O 194 REMEDIES FOR TORTS. separate action for the personal injury {p). Apart from questions of form, the right to personal security certainly seems distinct in kind from the right to safe enjoyment of one's goods, and such was the •view of the Eoman lawyers {q). Where several persons have committed several distinct wrongs, though of the same kind and in the same matter, claims for damages against them cannot be combined in the same action (r). Injunc- Another remedy which is not, like that of damages, universally applicable, but which is applied to many kinds of wrongs where the remedy of damages would be inadequate or practically worthless, is the granting of an injunction to restrain the commission of wrongful acts threatened, or the continuance of a wrongful course of action already begun. There is now no positive limit to the jurisdiction of the Court to issue injunctions, beyond the Court's own view (a judicial view, that is) of what is just and convenient («) . Practically, however, the lines of the old equity jurisdiction have thus far been in the main preserved. The kinds of tort against which this remedy is commonly sought are nuisances, violations of specific [p) Briinsden V. JTumphvi't/ {\QSi) . shop; followed in Thompson v. L. 14 Q. B. Div. 141, 53 L. J. Q. B. C. C. [1899] 1 Q. B. 840, 68 L. J. 476, by Brett M. R. and Bowen Q. B. 625, G. A. ; dist. JFaUers v. L. J., diss. Lord Coleridge C. J. Green [1899] 2 Ch. 696, 68 L. J. Cp. per Lord Bramwell, 11 App. Cb. 730. An objection on this Ca. at p. 144. ground, as it goes to the jurisdic- (j) Liber homo suo nomine utilem tion, is too late after judgment : Aquiliaehabet actionem; direotam BuUock v. L. G. 0. Co. [1907] 1 enim non habet, quoniam dominus K. B. 264, 76 L. J. K. B. 127, membrorum suorum nemo videtur : C. A. Ulpian, D. 9, 2, ad 1. Aquil. 13 pr. (s) Judicature Act, 1873, s. 25, (,■) Sadler v.G.ir.R. Co. {1^96'] sub-s. 8. Per Jessel M. R., ^crf(?OM' A. C. 450, 63 L. J. Q. B. 462, v. Beddovi (1878) 9 Ch. D. 89, 93, ■where two defendants had inde- 47 L. J. Ch. 688 ; Quartz Hill, ^-c. pendently but simultaneously ob- Co. v. Beall (1882) 20 Ch. Div. at ctructed the access to the plaintiff's p. 507. INJUNCTIONS. If*'"* rights of property in tlie nature of nuisance, such as ohstruction of light and disturbance of easements, continu- ing trespasses, and infringements of copyright and trade-marks. In one direction the High Court lias, since the Judicature ^Vcts, distinctly accepted and exercised an increased jurisdiction. It will now restrain, whether by final (t) or interlocutory (») injunction, the publication of a libel or, in a clear case, the oral uttering of slander {x) calculated to injure the plaintiff in his business. In interlocutory proceedings, however, this jurisdiction is exercised with caution (u), and only in a very clear ease (//), and not where the libel, however unjustifiable, does not tlireaten immediate injury to person or property (s). The special rules and principles by which the Couit is On '"'.liat .... principle guided in administering this remedy can be profitably granted, discussed only in connexion with the particidar causes of action upon which it is sought. All of them, howe^■er, are developments of the one general principle that an injunction is granted only where damages would not be an adequate remedy («), and an interim injunction only where delay would make it impossible or highly difficult to do complete justice at a later stage {b). In practice {i) Thorlei/s Cattle Food Co. v. (a) As to simple trespass on land, JIaisfim (1880) 14 Ch. Div. 763. see Jiclirens v. Sichards[l90o'] 2 Ch. Thomas v. Williams, ib. 864. ' 614, 74 L. J. Ch. 615. [u] Quart:: Bill Consolidated Gold (A) In Mogul Steamship Co. v. Mining Co. v. fieall (1882) 20 Ch. M'Grcgor, Gow ^ Co. (1886) 15 Q. Div. 501, 51 L. J. Ch. 874 ; Collard B. D. 476, 54 L. J. Q. B. 540, the T. 2Iarshan [1892] 1 Ch. 571, 61 Court refused to grant an inter- L. J. Ch. 268. locutory iDJunotiou to restrain a (x) Hermann Loog v. Bean (1884) course of conduct alleged to amount •J6 Ch. Div. 306, 53 L. J. Ch. 1128. to a conspiracy of rival shipowners [y) Bonnard v. Pen-!/)na« [1891] to drive the plaintiff's ships out of 2 Ch. 269, 60 L. J. Ch. 617, C. A. the China trade. The decision of (z) Salomons v. Knight [1891] 2 the case on the merits is dealt with Ch. 294, 60 L. J. Ch. 743, C. A. elsewhere. o2 19G REMEDIES FOR TORTS. very many causes were in the Court of Chancery, and still are, really disposed of on an application for an injunction which is in form interlocutory : the proceedings heing treated as final by consent, when it appears that thf> decision of the interlocutory question goes to the merits of the whole case. Former conour- vent juriedic- tion of oommon law and equity to jiive com- pensation for fraud. In certain cases of fraud (that is, wilfully or recklessly false representation of fact) tlie Court of Chancery had hefore the Judicature Acts concurrent jurisdiction with t]ie courts of common law, and would award pecuniary compensation, not in the name of damages, indeed, but by way of restitution or " making tlie representation good"(f). In substance, however, the relief came to giving damages under another name, and with more nicety of calculation tlian a jury would have used. Since the Judicature Acts it does not appear to be material whether the relief administered in such a case be called damages or restitution : unless indeed it were contended in such a case that (according to the rule of damages as regards injuries to property) (r/) the plaintiff was entitled not to be restored to his former position or have his just expectation fulfilled, but only to recover the amount by which he is actual^ the worse for the defendant's wrong- (c) Burrones v. Lock (1805) 10 Ves. 470, 8 E. R. 33, 856 ; Slim v. Croiicher (1860) 1 D. F. J. 518, 29 L. J. Ch. 273 (these oases are now cited only as historical illustration) ; Feelc V. Giiniri/ (1871-3) L. R. 13 Eq. 79, 6 H. L. 377, 43 L. J. Ch. 19. See under the head of Deceit, Ch. VIII. below. [d) Jones v. Gooday (1841) 8 M. & W. 146, 10 L. J. Ex. 275, 58 R. R. 619 ; Wigsell v. School for Indigent Blind (1882) 8 Q. B. D. 3.57, 51 L. J. Q. B. 330; Wlntham v. Kcnhaw (1885-6) 16 Q. B. Div. 013. In an action for inducing the plaintiff by false statements to take shares in a company, it is said that the measure of damages is the dif- ference between the sum paid for the shares and their real value (the- market value may, of course, have been fictitious) at the date of allot- ment: Peek V. Berry (1887) 37 Ch. Div. 541, 591, 57 L. J. Ch. 347. STATUTORY DUTIES. 19' doing. Any contention of that kind would no doubt be ^^flectuall}' excluded by the authorities in equity ; but even without them it would scarcely be a hopeful one. Duties of a public nature are constanth* defined or Special ■ _ . statutorv created by statute, and generally, though not invariably, remedies special modes of enforcing them are provided by the exclusive. t^ame statutes. Questions have arisen as to the rights and remedies of persons Avho suffer special damage by the breach or non-performance of such duties. Here it is material (though not necessarily decisive) to observe to whom and in what form the specific statutory remedy' is given. If the Legislature, at the same time that it creates a new duty, points out a special course of private remedy for the person aggrieved (for example, an action lor penalties to be recovered, wholly or in part, for the use of such person), then it is generally presumed that the remedy so provided was intended to be, and is, thi' only remedy. The provision of a public remedj- without any special means of private compensation is in itself consistent with a person specially aggrieved having an independent right of action for injury caused by a breach of the statutory duty (e). And it has been thought to be a general rule that where the statutory remedy is not applicable to the compensation of a person injured, that person has a right of action (/). But the Court of Appeal has repudiated any such fixed rule, and has laid down that the possibility or otherwise of a private right of action for the breach of a public statutory duty must («) Soss V. Rugge-Piice (1876) 1 castle Waterworks Co. (1871) L. R. Ex. D. 269, 45 L. J. Ex. 777 : but 6 Ex. 404, afterwards reversed in (jit. -whether this case can now be the Court of Appeal (see note (i/) ). relied on ; it was decided partly on (/) Conch v. Steel {lS5i) 3 E. & B.. the authority of Atkinson v. New- 402, 23 L. J. Q. B. 121. 198 REMEDIES FOE TORTS. depend on the scope and language of the statute taken as a whole. A waterworks company was bound by the Waterworks Clauses Act, 1847, incorporated in the com- pany's special Act, to maintain a proper pressxire in its pipes, under certain public penalties. It was held that an inhabitant of the district served by the company under this Act had no cause of action against the company for damage clone to his property by fire by reason of the pipes being insufEciently charged. The Court thought it unreasonable to suppose that Parliament intended to make the company insurers of all property that might be burnt v/ithin their limits bj^ reason of deficient supply or pressure of water {g) . No private Also the harm in respect of which an action is brought iinlesruie -'^°^' ^^® breach of a statutory duty must be of the kind harm which the statute was intended to prevent. If cattle suflerea is _ _ ^ '- ■within the being Carried on a ship are washed overboard for want aimed at of appliances prescribed by an Act of Parliament for tatut^e purely sanitary purposes, the shipowner is not liable to the owner of the cattle by reason of the breach of the statute (]i) : though he will be liable if his conduct [g) ^Uhinsoii T. Keifcastle Vatcr- u-ork.i Co. (1877) 2 Ex. Div. 441, 46 L. J. Ex. 775 ; a somewhat similar Canadian case as to gas- works is Johnnion v. Consumers^ Gas Co. of Toronto [189S] A. C. 447, 67 L. J. P. C. 33. Cp. Sfcirns v. .Tcacocl;e (1847) 11 Q. B. 731, 17 L. J. Q. B. 163, where it was held that the local Act regulating, under penalties, the pilchard fishery of St. Ive.a, Cornwall, did not create private rights enforceable by action: rr^try of St. Panci'as v. Bnitcrhttrt/ (1857) 2 C. B.N. S. 477, 26 L. J. C. P. 243, where a statutory provi- sion for recovery by summary pro- ceedings was held to exclude any right of action (here, however, no private damage was in question) ; and TuUume v. i7!??c . (1881) 13 Q. B. D. 109, 53 L. J. Q. B. 459. See further, as to highways, Conlei/ V. Xiinnarlet Local Hoard [1892]| A. C. 345, 67 L. T. 486 ; Thompmn V. Matjor of Brighton, Otira-\. LocaT Board of Morsham [1894] 1 Q. B. 332, 63 L. J. Q. B. 181, C. A. (/i) Gorris V. Scott (1874) L. E. il Ex. 125, 43 L. J. Ex. 92. CONTRIBUTION BETWEEN WUOXG-DOERS. li'!^ amounts to negligence apart from the statute and with regard to the duty of safe carriage which he has under- taken (i), and in an action not founded on a statutory duty the disregard of such a duty, if likely to cause harm of the kind that has been suffered, may be a material fact (A-). Where more than one person is concerned in the com- Joint mission of a wrong, the person wronged has his remedy aoers^iiiay against all or any one or more of them at his choice, ^esued . . 3 omtly or Every wrong-doer is liable for the whole damage, and severally: it does not matter (as we saw above) (/), whether they acted, as between themselves, as equals, or one of them as agent or servant of another. There are no deorees of responsibility, nothing answering to the distinction in criminal law between principals and accessories. But when the plaintiff in such a case has made his choice, lie is concluded by it. After recovering judgment against but judg- sonie or one of the joint authors of a wrong, he cannot ^°ingt sue the other or others for the same matter, even if the *"-Y *^ '^^'' to further judgment in the fii'st action remains unsatisfied. By that action, judgment the cause of action " transit in rem iudicatam," and is no longer available (in). The reason of the rule is stated to be that otherwise a vexatious multiplicity of actions would be encouraged. As between joint wrong-doers themselves, one who has Rules as been sued alone and compelled to pay the whole damages butkm and (i) See per Pollock B., L. E,. 9 Ex. Ch. L. K. 7 C. P. 547, 41 L. J. Es. at p. 131. C. P. 190, finally settled thepnint. a-) Blamires v. Lane. S; Yorkshire I* was formerly doubtful whether 11. Co. (1873) Ex. Ch. L. E. 8 Ex. judgment without satisfaction was 283 42 L. J. Ex. 182. ^ bar. And in the United States it is all hut universally held that it (?) Page 74. jg ^^^. 3^rdick on the Law of (m) BrinsmeadY. Harrison (1872) Torts, 225. indem- nity. -^0 EEMEDIES FOK TORTS. lias no right to indemnity or contribution from the other («), if the nature of the case is such that he " must be presumed to have known that he was doing an un- lawful act"(o). Otherwise, "where the matter is in- different in itself," and the wrongful act is not clearly illegal {p ) , but may have been done in honest ignorance, or in good faith to deti^rmine a claim of right, there is no objection to contribution or indemnity being claimed. " Every man who employs another to do an act which tlie employer appears to have a right to authorize him to do undertakes to indemnify him for all such acts as would be lawful if the employer had the authority he pretends to have." Therefore an auctioneer who in good faith sells goods in the way of his business on behalf of a person who turns out to have no right to dispose of them is entitled to be indemnified by that person against the resulting liability to the true owner (f/). And persons entrusted with goods as wharfingers or the like who stop delivery in pursuance of their principal's instructions may claim indemnity if the stoppage turns out to be wrongful, but was not obviously so at the time (r). In short, the proposition that there is no contribution between wrong- {n) Jlerri/weatJier^-.Xixan {1'99) P. 212, at pp. 21C— 218 ; and 8 T. E. 186, 16 K. E. 810, where Burroics v. Mochv [1899] 1 Q. B. thedoctiineis too widely laid down. 816, CS L. J. Q. B. 545. (o) Adannon v. Jarvis (1827) 4 {p) Setts v. GMiiis [ISSi) -2 \. & Bing. at p. 73, 29 R. E. 603, 508. E. 57 ; 41 E. E. 381. This qualification of the supposed (q) ^Idamson > . Jarvis (1827) 4 rule in Mcrryweathei- v. Xu-a)! is Bing. 60, 72, 29 E. E. 503, 507 — strongly confirmed by the dicta, .OOS. The ground of the action for especially Lord Herschell's, in indemnity may be either deceit or Tahner v. Wick and PuUeneytown warranty : see i Bing. at p. 73, fiteam Shipping Co. [1894] A. C. 29 E. E. 508—509. 318, 324, where the actual decision ()■) Betts v. Gibhins (1834) 2 A. Sc was that no such rule exists in E. 67, 41 E. E. 381. See too Scotland. See per Bruce J. in The Collins v. Eenu^ (1884) (Ex. Ch.) 5 Englishman and Th-AuslraVia [1S95] Q. B. at p. 830, 13 L. J. Q. B. ISO. CONTRIBUTION BETWEEN WKONG-DOERS. doers must be understood to affect only tliose A\ho arc wrong-doers in the common sense of the word as well as in law. The ■\\Tong must he so manifest that the person doing it could not at the time reasonably suppose that lie was acting under lawful authorit3-. Or, to put it sum- marily, a wrong-doer b}' misadventure — including a person who has been led into unlawful acts by the other wrong-doer's fraudulent misrepresentation of the facts, and, being so misled, thought he v.'as acting lawfully («) — is entitled to indemnity from any person under whose apparent authority he acted in good faith ; a Avilf ul or negligent (t) wrong- doer has no claim to contribution or indemnity. There does not appear any reason why con- tribution should not be due in some cases without any relation of agency and authorit}^ between the parties. If several persons undertake in concert to abate an obstruction to a supposed highway, having a reasonable claim of right and acting in good faith for the purpose of trying the right, and it turns out that their claim cannot be main- tained, it seems contrary to principle that one of them (should be compellable to pay the whole damages and costs without any recourse over to the others. I cannot find, however, that any decision has been given on fads of this kind : nor is the question very likely to arise, as the parties would generally provide for expenses by a sub- scription fund or guaranty. («) Bnrrous v. lihodcs [1899] 1 acts which a reasonable man in his ■Q. B. 816, 68 L. J. Q. B. 545. place would know to be beyond the lawful power of the principal. (t) I am not sure that authority See Indian Contract Act, s. 223. fully covers this, though The The peculiar statutory liability Englishman and The .liistraha created by the Directors' Liability [1895J P. 212, 64 L. J. B. 74, seems Act, 1890, is qualified by a rightto in point. But I do not think an recover contribution in all cases ; agent could claim indemnity for see s. 5. 201 202 REMEDIES FOR TORTS. It has been currently said, sometimes laid down, and Supposed mlc of trespass once or twice acted on as established law, that when the beiuar ' mersfed faots affording a cause of action in tort are such as to- infelouy." amount to a felony, there is no civil remedy against the felon («) for the wrong, at all events before the crime has been prosecuted to conviction. And as, before 1870 (./j, a convicted felon's property was forfeited, there would at common law be no effectual remedy afterwards. So that the compendious form in which the rule was often stated, that " the trespass was merged in the felony," was sub- stantially if not technically correct. But so much doubt has been thrown upon the supposed rule in several recent cases, that it seems, if not altogether exploded, to be only awaiting a decisive abrogation. The result of the cases in question is that, although it is difficult to deny that some such rule exists, the precise extent of the rule, and the reasons of policy on which it is founded, are uncer- tain, and it is not known what is the proper mode of applying it. As to the rule, the best supported version of it appears to be to this effect : Where the same facts amount to a felony and are such as in themselves would constitute a civil wrong, a cause of action for the civil wrong does arise. But the remedy is not available for a person who might have prosecuted the wrong-doer for the felony, and has failed to do so. The plaintiff ought to show that the felon has actually been prosecuted to (») It is settled that there is no rule to prevent the suing- of a person ■who was not party or privy to the felony. Stolen goods, or their value, f.^., can he recovered from an innocent possessor who has not bought in market overt, whether the thief has been prosecuted or not: JIarsh v. Keating (1S34) 1 Bing. N. C. 198, 217, 2 CI. & F. 250, 37 E. R. 75 ; TThite v. Spet- tigue (1845) 13 M. & W. 603, 14 L. J. E,f. 99, 67 E. E. 7.53. In these cases, indeed, the cause of action is not the offence itself, but something else which is wrongful, because an ofPence has been com- mitted. {.(-) 33 & 34 Vict. c. 23. TRESPASS AND FELONY. SO'i conviction (by whom it does not matter, nor -whether it "was for the same specific otfence), or that prosecution is impossible (as by the death of the felon or his immediate escape beyond the jurisdiction), or that he has endeavoured to bring the offender to justice, and has failed without any fault of his own (/y). It is admitted that when any of these conditions is No knowm satisfied there is both a cause of action and a presently enforcino- available remedy. But if not, what then ? It is said to ■^dee'dTt'^ be the duty of the person ^^Tonged to prosecute for the exists, felony before he brings a civil action : " but by what means that duty is to be enforced, we are nowhere informed " (:). Its non-performance is not a defence whifh can be set up by pleading [a), nor is a statement of claim bad for showing on the face of it that the wrongful act was felonious (b). Neither can the judge nonsuit the plaintiff if this does not appear on the pleadings, but comes out in evidence at the trial (c). It has been suggested that the Court might in a proper case, on the application of the Crown or otherwise, exercise its summary jurisdiction to stay proceedings in the civil action (rf) : but there is no example of this. (i/) See the judgment of Baggallay Constantbir (1863) 2 H. & C 14G, Xi. J. in Ex parte Ball (1879) 10 32 L.J. Ex. 2S5, a very iadecisive Ch. Div. at p. 673. For the diffi- case, but the nearest approach to culties see per Bramwell L. J. , ib. an authority for the enforcement at p. 671. of the supposed rule in a court of (z) Lush J., Wells V. Abrahams common law. (1872) L. R. 7 Q. B. at p. 563. (d) Blackburn J., L. E. 7 Q. B. (») Blackburn J. ibid. at p. 5o9. In a later Irish case, {b) Ituupe V. L'Avigdor (1883) 10 ,S'. v. S. (1882) 16 Cox, 566, it was Q,. T^.T). ill, cv. Midland Insurance said that, in a proper case, the Co. V. Smith (1881) 6 Q. B. D. 561, Court might stay the action of its 60 Xj. J. Q. B. 329. own motion ; and one member (c) H'ells V. Abrahams (1872) thought the case before them a L. R. 7 Q. B. 554, 41 L. J. Q. B. proper one, but the majority did 306, dissenting from Welloclc v. not. 204 KEMEDIES FOR TORTS. Whatever may be the true nature and incidents of the duty of the wronged party to prosecute, it is a personal one and does not extend to a trustee in bankruptcy (e), nor, it is conceived, to executors in the cases -where I'xecutors can sue. On the whole there is apparent in quarters of high authority a strong though not unani- mous disposition to discredit the rule as a mere tradition of text- writ ITS founded on ambiguous or misapprehended eases, or on dicta which themselves were open to the same objections ( /'). At the same time it is certain that the judges consulted by the House of Lords in Marnli v. Keating (g) thought such a rule existed, though it was not applicable to the casein hand; and that in Ex ^^arie Elliott {/)) it was effectually applied to exclude a proof in bankruptcy. Xiocality of ■wron^^ful act as nffec'tiDL'' remedy' in Eus'lish court. Lastly we have to see under what conditions there may be a remedy in an English court for an act in the nature of a tort committed in a place outside the terri- torial jurisdiction of the court. It is needless to state formally that no action can be maintained in respect of an act which is justified or excused according to both English and local law. Besides this obvious case, the following states of things are possible. (r F..r jicirte Ball (187'.l; lOCh.D. ()67, 48 L. J. Bk. 57. (/) See the hibtorical discussioa in tbe judgment of Blackburn J. in JVelh v. Abrahams^ L. R. 7 Q- B. .■>r)0 sqq. And see per Maule J. in li'arcl V. Lloyd (1843) 7 Scott N. R. 499, 507, a case of alleged com- pounding of felony : "It would be a strong tbiog to say that every man is bound to pro.seoute all the felonies that come to his know- ledge ; and I do not know why it is the duty of the party who suffers by the felony to prosecute the felon, rather than that of any other person: on the contrary, it is a Christian duty to forgive one's enemies ; and I think he does a very humane and charitable and Christian-like thing in abstaining from prosecuting." (g) 1 Bing. N. C. 198, 217, 2 CI. & F. 250, 286, 37 R. R. 7-5, 103- 104 (1834). (/() 3 Mont. & A. 110 (1837). LOCALITY OF WRONGS. 20.5 1. The act may be such that, although it may he Acts not wrongful by the local law, it would not be a wrong if by Euglish done in England. In this case no action lies in an ^''''' -^a'- English court. The court will not carry respect for a foreign municipal law so far as to " give a remedy in the shape of damages in respect of an act which, according to its own principles, imposes no liability on the person from whom the damages are claimed" (/). It is generally held, however, in America that an action may he maintained in one State, if not contrary to its own policy, for a wrong done in another and actionable there, even if it would not be actionable by the /«' fori (k). '2. The act, though in itself it would be a trespass by A REMEDIES FOR TORTS. Ir.r fori suspending or delaying tlie remedy in the local courts will not be a bar to the remedy in an English court in an otherwise proper case («). And our courts would possibly make an exception to the rule if it appeared that by the local law there was no remedy at all for a manifest wrong, such as assault and battery committed without any special justification or excuse (o). For the pm-pose of this rule the local law is sufficiently ascertained by the declara- tion, at all events if uncontradicted, of the local sovereign authority (7;). A('t •'). The act may be wrongful by both the law of England by both ^i^d. the law of the place where it was done. In such a law!=. gjj^p ^^ action lies in England, without regard to the nationality of the parties {q), provided the cause of action is not of a purely local kind, such as trespass to land. This last qualification was formerly enforced by the technical rules of venue, with the distinction thereby made between local and transitorj/ actions : but the grounds were substantial and not technical, and when the Judicature Acts abolished the technical forms (r) they did not extend the jurisdiction of the Court to cases in which it had never been exercised. The result of the contrary doctrine would be that the most complicated questions of local law might have to be dealt with here as matters of fact, not incidentally (as must now and («) Scott V. Stymour (1862) Ex. {q) Per Cur., The Sallttj, L. R. Ch. 1 H. & C. 219, 32 L. J. Ex. 61. 2 P. C. at p. 202. "Wrongful," as regards the foreign country, (0) a. per Wightman and WiUes j^^j^^^^ ^^^^ ^^^^^ ^^^ punishable though not actionable ; Machado (p) Carr v. Fraeis Times i; Co. v. Pontes [1897] 2 Q. B. 231, 66 [1902] A. C. 176, 71 L. J. K. B. L. J. Q. B. 542, C. A. 361 (seizure of munitions of war (r) Sritish South Africa Co. v. imported by British merchants in Companhia de Mo(;ambique [1893] territorial waters of Muscat). A. C. 602, 63 L. J. Q. B. 70. LOCALITY OF WRONGS. 207 then unavoidably happen in various cases), hut as the very substance of the issues ; besides which, the Court would have no means of ensuring or supervising the execution of its judgments. "We have stated the law for convenience in a series of Judg'ment of Ex. Ch. ilistinct propositions. But, considering the importance of in F/iUiips the subject, it seems desirable also to reproduce the con- ' '^"'' tinuous view of it given in the judgment of the Exchequer <-'hamber, delivered by Willes J. in Phillips v. Ei/re : — " Our courts are said to be more open to admit actions founded upon foreign transactions than those of any other European country ; but there are restrictions in respect of locality which exclude some foreign causes of action altogether, namely, those which would be local if they arose in England, such as trespass to land : Bouhoii V. Mattheics («) ; and even with respect to those not falling within the description our courts do not under- take universal jurisdiction. As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. Eirst, the wrong must be of such a character that it would have been actionable if committed in England ; therefore, in The Halleij (t) the Judicial Committee pro- nounced against a suit in the Admiralty founded upon a liability by the law of Belgium for collision caused by the act of a pilot whom the shipowner was compelled (s) 4 T. E. 503, 2 R. E. 448 Marietta Chair Co. (1895) 158 U. S. (1792: no action here for trespass 105. As to the antiquity of the to land in Canada) : approved in rule in England, see the case of 9 British South Africa Co. v. Com- & 10 Ed. I. cited in Pollock & panhia de Mo(;ambique, last note. Maitland, Hist. Eog. Law, i. 448 The local character of actions for (465, 2nd ed.). trespass to land is maintained in [t) L. K. 2 P. C. 193, 37 L. J. the United States, Ellenivood v. Adm. 33 (1868). 208 REMEDIES FOR TORTS. bj^ that law to employ, and for wliom, therefore, as not heing his agent, he was not responsible by English law. Meoondly, the act must not have been justifiable (») by the law of the place where it was done. Therefore in Blad's Case {x), and Slad y. Baiufield {//), Lord Nottingham lield that a seizure in Iceland, authorized by the Danish Government and valid by the law of the place, could not be questioned by civil action in England, although the plaintiff, an Englishman, insisted that the seizure was in violation of a treaty between this country and Denmark — a matter proper for remonstrance, not litigation. And in Dobrcc v. Napier (a). Admiral Napier having, when in the service of the Queen of Portugal, captured in Portuguese water an English ship breaking blockade, was held by the Court of Common Pleas to be justified by the law of Portugal and of nations, though his serving imder a foreign prince was contrary to English law, and subjected him to penalties under the Foreign Enlistment ^^ct. And in Reg. v. Lesley [a) an imprisonment in Chili on board a British ship, lawful there, was held by Erie C. J., and the Court for Crown Cases Reserved, to be no ground for an indictment here, there being no independent law of this country making the act wrongful or criminal. As to foreign laws affecting the liability of parties in respect of bygone transactions, the law is cleai' that, if the foreign law touches only the remedy or pro- cedure for enforcing the obligation, as in the case of an ordinary statute of limitations, such law is no bar to an action in this country ; but if the foreign law extinguishes [h) See Mdchado v. Fontes [1897] (-) 2 Bing. N. C. 7S1, 42 E. R. 2Q. B. 231, 231. 598 (1836). (x) 3 Swanst. 603. (f/) 3 Swanst. 604, 19 R. E. 285 (a) Bell C. C. 220, 29 L. J. M. C. (1674). 97 (1860). LOCALITV OIP WRONGS. 209 llie right it is a bar in this country equally as if tlie extinguishment had been by a release of the party, or an act of our own Legislature. This distinction is well illustrated on the one hand by Ilubcr v. Sfeiner (h), where the French law of five years' prescription was held by the Court of Common Pleas to be no answer in this countrv to an action upon a French promissory note, because that law dealt only with procedure, and the time and manner of suit {femptix et modum acticmis iiiKtituendae), and did not affect to destroy the obligation of the contract {valorem coitfirictii-s) ; and on the other hand by Potter V. BroHii (c), where the drawer of a bill at Baltimore upon England was held discharged from his liability for the non-acceptance of the bill here by a certificate in bankruptcy, under the law of the United States of America, the Court of Queen's Bench adopting the general rule laid down by Lord Mansfield in Balhmtine V. GokUng (d), and ever since recognized, that, 'what is a discharge of a debt in the country where it is contracted is a discharge of it everywhere.' So that where an obligation by contract to pay a debt or damages is dis- charged and avoided by the law of the place where it was made, the accessory right of action in every court open to the creditor unquestionably falls to the ground. And by strict parity of reasoning, where an obligation (',/■ delicto to pay damages is discharged and avoided by the law of the country where it was made, the acoessorj- right of action is in like manner discharged and avoided. Cases may possibly arise in which distinct and inde- pendent rights or liabilities or defences are created hy positive and specific laws of this country in respect of (b) 2 Bing. N. C. 202, 42 E. E. K. E. 663. 5<)g_ (d) Cooke's Bankrupt Law, 4tS7 ; (c) 5 East 124, 1 Smith 351, 7 noted 5 E. E. at pp. 500, 501. P.— -T. r 210 EEMEDIKS FOR TORTS. foreign transactions; but there is no such law (unless it be the Governors Act already discussed and disposed of) applicable to the present case " (e). Limlta- The times in which actions of tort must be brought are actions. fixed by the Statute of Limitation of James I. (21 Jac. 1, 0. 16) as modified by later enactments (/). No general principle is laid down, but actionable wrongs are in effect divided into three classes, with a different term of limita- tion for each. These terms, and the causes of action to which they apply, are as follows, the result being stated, without regard to the actual words of the statute, accord- ing to the modern construction and practice : — Six years : — Trespass to land and goods, conversion, and all other common law wrongs (including libel) except slander by words actionable per se (g) and injuries to the person. Four years : — Injuries to the person (including im- prisonment) . Tiro years : — Slander by words actionable per se. Suspen- Persons who at the time of their acquiring a cause of statute by action are infants, or lunatics (//), have the period of limitation reckoned against them only from the time of the disability ceasing ; and if a defendant is beyond seas at the time of the right of action arising, the time runs against the plaintiff only from his return. No part of the United Kingdom or of the Channel Islands is deemed {e) L. E. 6 Q. B. at pp. 28—30. c. 97 (the MercantUe Law Amend- (/) See the text of the statutes, ment Act, 1856), s. 10. The exist- Appendix C. ing law as to defendants beyond ((?) See Blake Odgers, Digest of seas is the result of 4 & 5 Anne, Law of Libel, 4th ed. 567. c. 3 [al. 16], a. 19, as explained by (/i) Plaintiffs imprisoned or being 19 & 20 Vict. u. 97, o. 12. As to beyond the seas had the same right the retrospective effect of s. 10, see by the statute of James I., but this Pardo v. Bingham (1869) L. R. 4 was abrogated by 19 & 20 Vict. Oh. 735, 39 L. J. Ch. 170. disabili- ties. LIMITATION OF ACTIONS. 211 to be beyond seas for this purpose (/'). Married women are no longer within this provision since the Married Women's Property Act of 1882 (A-). If one cause of disability supervenes on another unexpired one (as formerly where a woman married under age), the period of limitation probably runs only from the expiration of the latter disability (/). Where damage is the gist of the action, the time runs From only from the actual happening of the damage (w;) . action In ti'over the statute runs from demand on and refasal ^'"'^"' by the defendant, whether the defendant were the first converter of the plaintiff's goods or not (;;). Actions for statutory penalties are subject to a two Statutory years' Limitation by the Civil Procedm'e Act, 1833 (o). ^^"^ The compensation given by the Directors' Liability Act, 1890, is not a penalty within the Act (7;). Justices of the peace were (q) and constables (r) are Protection protected by general enactments that actions against officers!*^ them for any thing done in the execution of their office must be brought within six months of the act com- plained of ; and a similar rule has now been made (i) See preceding note. of limitation of actions against [k) See p. 68, above. publicbodiesor officers: see Cz-HmJie [l) Cp. Borroivs \. Ellison (1871) v. TJ'allsend local Board [1891] 1 L. R. 6 Ex. 128, 40 L. J. Ex. 131 Q. B. 503, 60 L. J. Q. B. 392. (on tbe Eeal Property Limitation („) i1/«?«- v. Dell [1891] 1 Q. B. Act, 3 & 4 Wm. IV. c. 27) ; but 468, 60 L. J. Q. B. 404, C. A. the language of the two statutes j^j 3 ^ ^ ^^ jy_ ^ ^g, s. 3. might be distinguished. , \ -7,, r ,i nj In) Ba^hkor^e y. Bmomi (1861) 9 , J! ,?r°^, JV^T r rT:^ H. L. 0. 503, 34 L. J. Q. B. 181 ; f'^'^ ' ^h. 718, 69 L. J. Ch. 337, Darley Main Colliery Co. v. Mitchell (1886) 11 App. Ca. 127, 55 L. J. (?) " ^ 12 Vict. c. 44, s. 8 : this Q. B. 529, affirming ». c. 14 Q. B. s. was rep., as being no longer Div. 125. The same principle ap- 'leeded, by S. L. R. Act, 1894. plies, of course, to special periods [r] 24 Geo. II. c. 44, s. 8. p2 2] -J KEMKDIES FOR TORTS. extending to all acts done in execution or intended execution of statutoiy and other public duties or autho- rities. The fact that such an act is " quasi- commercial " does not exclude the operation of the statute («) . The Act also makes a specially favourable provision for the costs of successful defendants (;"). This does not apply to appeals or interlocutory proceedings (h). The enforcement of statutory duties is often made subject, by the same Acts which create the duties, to a short period of limitation. For the most part these provisions do not really belong to our subject, but to various particular branches of public law. The existence of such provisions in Lord Campbell's Act and the Employers' Liability Act has already been noticed. («) Public Authorities Protection Act, 1S93, 56 & 57 Vict. c. 61. As to what kinds of act are included, Ormnvcll v. Howell [1900] 1 Q. B. .535, 60 L. J. Q. E. 461, 0. A. As to the date from which time runs, Tolleij V. Forilham [1904] 2 K. B. :H5, 73 L. J. K. B. 687. A com- pauy earning profit is not within the Act, though its operations may be of public utility and authorized by statute : ^l.-G. v. Jfarf/ifO Pur [1900] 1 Ch. 749, 69 L. J. Ch. 331. But a county council owniug tramways is : Parker v. L. C. C. [1904] 2 K. B. 501, 73 L. J. K. B. 561. As to municipal corporations, F'u'lden \. Morh-y C'orjoorfciio?? [1900] A. 0. 133, 69 L. J. Ch. 314 ; Jere- miah Ambler ^ Sons v. Bradford Corporation [1902] 2 Ch. 585, 71 li. J. Ch. 744, C. A. ; Xyles v. Soufhend-on-Sea Corporation [1905] 2 K. B. 1, 74 L. J. K. B. 484, C. A. [l) See as to this Sostock v. Ramsey Urban District Council [1900] 2 Q. B. 616, 69 L. J. Q. B. 945, C. A. ; the provision has led to very speculative attempts to bring cases within the Act, see Holsa^orthy Urban Coinn-il v. JI. Sural Council [1907] 2 Ch. 62, 76 L. J. Ch. 389, where the defen- dant council was not charged with having done anything un- lawful at all. It does not destroy the judge's regular discretionary power. Dismissal of an action by consent is equivalent for this pur- pose to a " judgment obtained ' ' by the defendants, and carries the statu- tory solicitor and client costs : Shaw V. Eertfordshire C. C. [1899] 2 Q. B. 282, 68 L. J. Q. B. 857, C. A. It is otherwise where the plaintiff accepts money paid into Court on one issue, and in effect discontinues the action on other issues : Smith V. Northleach Mural District Council [1902] 1 Ch. 197, 71 L. J. Ch. 8. (m) Ficlden's Case and Jeremiah Ambler ^ Sons' Case, note (s), above. CONCEALED FRAUD. 21-1 Tlie operation of the Statute of Limitation is further Exception subject to the exception of concealed fraud, derived from ceaicd the doctrine and practice of the Court of Chancery, which, *''''^' ' wlietlier it thought itself bound by the terms of the statute, or only acted in analogy to it (.r), considerably modified its literal njiplication. Where a wrong-doer fraudulently conceals his own wrong, the period of limita- tion runs only from the time when the plaintiff discovers the truth, or with reasonable diligence would discover it. Such is now the rule of the Supreme ( 'curt in every branch of it and in all causes (y). A plaintiff mcLj not set up by way of amendment claims in respect of causes of action which are barred by the statute at the date of amendment, though they were not so at the date of the original writ (s). It has often been remarked that, as matter of policy, the periods of limitation fixed by the statute of James arc- unreasonably long for modern usage ; but modern legis- lation has done nothing beyond removing some of the privileged disabilities, and attaching special short periods of limitation to some special statutory rights. The Statutes of Limitation ought to be systematically revised as a whole. We have now reviewed the general principles which Conelu- are common to the whole law of Torts as to liability, as (jengral to exceptions from liability, and as to remedies. In the ^'^"^^■ fcjllowing part of this work we have to do with the several distinct kinds of actionable wrongs, and the law peculiarly applicable to each of them. {x) See 9. Q. B. Div. 68, per to the question whether before the Brett L. J. Judicature Acts the Court of (i/) Gibbs T. Guild (1882) 9 Q. B. Chancery would or would not have Div. 69, ol L. J. Q. B. 313, which had jurisdiction in the case, makes the equitable doctrine of (c) //'cHow v. iNra/ (1887) 19 Q. B. •j-eneral application without regard Div. 394, 56 L. J. Q. B. 621. 214 Book II.-SPECIFIC WRONGS. CHAPTER VI. PEESONAL WRONGS. I. — Assault and Battery. Prelimi- SECURITY for the pei'son is among the first conditions of civilized life. The law therefore protects tis, not only against actual hurt and violence, but against every kind of bodily interference and restraint not justified or excused by allowed cause, and against the present apprehension of any of these things. The application of unlawful force to another constitutes the wrong called battery : an action which puts another in instant fear of unlawful force, though no force be actualh' applied, is the wrong called assault. These wrongs are likewise indictable offences, and under modern statutes can be dealt with by magistrates in the way of summary jurisdiction, which is the kind of redress most in use. Most of the learning of assault and batterj^, considered as civil injuries, turns on the determination of the occasions and purposes by which the use of force is justified. The elementary notions are so well settled as to require little illustration. 1 ASSAULT. 215 " The least toucliing of another in anger is a Lattery" (a) ; ^riiat "for the law cannot draw the line between different eaj,! n" eg-rees of violence, and therefore totally prohibits the ^""'^''y- first and lowest stage of it ; every man's person being sacred, and no other having a right to meddle witli it in any the slightest manner " {h). It is immaterial not only whetlier the force applied be sufficient in degree to cause actual hurt, but wliether it be of such a kind as is likely to cause it. Some interferences with the person which cause no bodily harm are beyond comparison more insulting and annoying than others which do cause it. Spitting in a man's face is more offensive than a blow, and is as much a battery in law (c). Again, it does not matter whether the force used is applied directly or indirectly, to the human body itself or to anything in contact with it ; nor whether with the hand or anything held in it, or with a missile {cl) . Battery includes assault, and although assault strictly Whatun means, an inchoate battery, the word is in modern usage constantly made to include batter}^. No reason appears for maintaining the distinction of terms in our modern practice : and in the draft Criminal Code of 1879 "assault" is deliberately used in the larger popular sense. "An assault " (so runs the proposed definition) " is the act of intentionally applying force to the person of another directly or indirectly, or attempting or threatening by any {a) Holt C. J , Cole V. Turner Bat there is much older authority, (1705) 6 Mod. 149, and Bigelow, see Reg.'Brev. 108 b, a -writ for L. C. 218. throwing '* quendam liquoremeali- (i) Blackst. Comm. iii. 120. dum" on the plaintiflE : " cacus [e) R. V. Cotcsuorth, 6 Mod. 172. erat huiusmodi praeoedentis brevis : [d) Fiirsell v. Home (1838) 3 N. quaedam mulier proiecit super & r. o()4 (throwing water at a per- aliam mulierem ydromellum quod ^on is assault ; if the water falls on anglice dicitur worte quod erat him as intended, it is battery also). nimis calidum." 216 PERSONAL WRONGS. act or gesture to apply such force to the person of another, if the person making the threat causes the other to believe (c) upon reasonable grounds that he has present ability to effect his purpose " (/). Examples of acts which amount to assaulting a man are' the following: "Striking at him with or without a weapon, i)L- presenting a gun at him at a distance to which the gim will carry, or pointing a pitchfork at him, standing within the reach of it, or holding up one's fist at him, or drawiug- a sword and waving it in a menacing manner" {[/). The essence of the wrong is putting a man in present fear of violence, so that any act fitted to have that effect on a reasonable man may be an assault, though there is no leal present ability to do the harm threatened. Thus it may be an assault to present an unloaded fire-arm (/;), or even, it is apprehended, anything that looks like a fire-arm. So if a man is advancing upon another with ajjparent intent to strike him, and is stopped by a third person before he is (e) One might expect "believes (A) i?. v. Jnmrs (1814) 1 C. & K. or causes," &c. ; but this Avould .')30, is appareutly to the contrary, be an extension of the law. Ko Tindal C. .1. held that a man could assault is committed by presentinfj not be convicted of an attempt to a gun at a man who cannot see it, discharge a loaded fire-aim under any more than by forming an in- a criminal statute, nor even of an tention to shoot at him. assault, if the arm was (as by defec- (/) Criminal Code (hidictable tire priming) not in a state capable Offences) Bill, s. 203. Sir James of being discharged ; but this. Stephen's definition in his Digest opinion (also held by Lord Abinger, (art. 241) is more elaborate: and Slake y. Barnard (1840) 9 C. & P. the Indian Penal Code has an ex- at p. 628) is against that of Parke tremely minute definition of "using B. in It. v. St. George (1840) 9 C. force to another" (s. 349). As & P. 4 83, 493, which on this point Sir James Stephen remarks, if would almost certainly be followed legislators begin defining in this at this day. The case is overruled way it is hard to see what thoy on another point, purely on the can assume to be known. words of the statute, and not here ig) Bacon Abr. "Assault and material, in ii. v. Z)«cZ'ii.w//) [1892} Battery," A; Hawkins P. C. i. 2 Q. B. 83, 6C L. T. 302. 110. ASSAULT. -'■* actually within striking distance, he hns committed an assault (•«). Acts capable in themselves of being an assault may on the other hand be explained or qualified by words or circumstances contradicting what might otherwise be inferred from them. A man put his hand on his s^^'0^d and said, " If it were not assize time, I would not take such language from you " ; this was no assault, because the words excluded an intention of actually striking (/r). Hostile or unlawful intention is necess;u"\' to constitute Excusable- an indictable assault ; and such touching, pushing, or the like as belongs to the ordinary conduct of life, and is free from the use of imnecessary force, is neither an (iflence nor wrong. "If two or more meet in a narrow passage, and Avithout any violence or design of harm the one touches the other gentl}^, it will be no battery" (/). The same rule holds of a crowd of people going into a tlieatre or the like (w). Such accidents are treated as inevitable, and create no right of action even for nominal damages. In other cases an intentional touchiug is justified by the common usage of civil intercourse, as when a man gently lays his hand on another to attract attention. But the use of needless force for this purpose, though it does not seem to entail criminal liability where no actual hurt is done, probably makes the act civilly wrongful [n). (1) Stephens %. Jfi/rm (1830) 4 C. ed. Mews. Some of the dicta, an k i'. 3t!), 34 R. E. iSll ; Bigelow, might be expected, are in conflict. L. C. 217. A large proportion of (/,•) riilcrfillc \. Savar/e (1669) 1 the authorities on this subject are Hod. 3. Ni-i Prius cases (cp. however Scad ,^, jj^j^ ^^ j^ ^,^j^ ^_ ^^^^.^^ ,. V. Ckrr (1853) 13 C. B. 850, 22 L. -^^^ ^^g J. C. P. 201, 93 R. R. 769): see , \ ^,\ -u- r i , .... „ . ,, , (m) Steph. Dig. Cr. Law, art. the sub-title of Assault under '^ ' f ^. ° ' „..,-. ,.,..„ N J 241, lUustratious. Ciimmal Law (it, 14o0, iq-j.) and Ihe title Trespass (xiv, 224—234) (") Covird v. BaddeJeij (1859) 4 in the Digest of EngUsh Case Law, H. & N. 4 78, 28 L. J. Ex. 260. 218 PEkSONAL WRONGS. Mere passive obstruction is not an assault, as where a man by standing in a doorway prevents another from coming in (o). Words cannot of themselves amount to an assault under any circumstances, though there is evidence of an earlier contrary opinion : " For Meade's case proves, or my Report's in fault, That singing can't be reclconed an assault " (p). There is little direct authority on the point, but no doubt is possible as to the modern law. Consent, or in the common phrase "leave and licence," will justify many acts which would otherwise be assaults (17) , striking in sport for example ; or even, if coupled with reasonable cause, wounding and other acts of a dangerous kind, as in the practice of surgery. But consent will not make acts lawful which are a breach of the peace or otherwise criminal in themselves, or un- warrantably dangerous. To the authorities already cited (r) under the head of General Exceptions we may add Hawkins' paragraph on the matter. " It seems to be the better oj)inion that a man is in no (o) Inncxx. WyVw i}Sn) 1 C. & Hawkins P. C. i. 110. That it was K. 257. But it seems the other, if formerly held otherwise, see 27 he is going where he has a right to Ass. 134, pi. II, 17 Ed. IV. 3, go, is justified in pushing him pi. 2, 3S Hen. VI. 20i, pi. 8. aside, though not in striking or (q) Under the old system of plead- other violence outside the actual ing this was not a matter of special exercise of his right: see p. 175, justification, but evidence under the above. general issue, an assault by consent ( p) The Circuiteers, by John being a contradiction in terms : Leycester Adolphus (the supposed Christophersmi v. Bare (1848) 11 speaker is Sir Gregory Lewio), L. Q. B. 473, 17 L. J. Q. B. 109, 75 Q. R. i. 232; Mcaik's and Belt's R. R. 454. But this has long ea,^ 1 Lewin C C. 184: ^^ no words ceased to be of any importance in or shiffiiiff are equivalent to an England. assault," per Holroyd J. Cp. (r) P. 161, above. SELF-DEFENCE. 21!) dauger of such a forfeiture [of recognizances for keeping fhe peace] from any hurt done to another by playing at cudgels, or such like sport, by consent, because the intent of the parties seems no way unlawful, but rather com- mendable, and tending mutually to promote activity and courage. Yet it is said that he who wounds another in fighting with naked swords does in strictness forfeit such a recognizance, because no consent can make so dangerous a diversion lawful " («). It has been repeatedly held in criminal cases of assault that an unintelligent assent, or a consent obtained by fraud, is of no effect (i!). The same principles would no doubt be applied by courts of civil jurisdiction if neces- sary. When one is wrongfully assaulted it is lawful to repel Sclf- force by force (as also to use force in the defence of those whom one is bound to protect, or for keeping the peace), provided that no unnecessary violence be used. How much force, and of what kind, it is reasonable and proper to use in the circumstances must always be a c[uestion of fact, and as it is incapable of being concluded beforehand by authority, so we do not find any decisions which attempt a definition. We must be content to say that the resistance must "not exceed the bounds of mere defence and prevention" (;/), or that the force used in defence must not be more than '' commensurate " with iliat which provoked it (x). It is obvious, however, that (.1) Hawkins, P. C. i. 484. The relies on the prisoner's skill, it Roman Law went even farther in does not excuse him from the guilt eucouragingconte3t3"gloriaecau8a of manslaughter if death ensues: et virtutis," D. 9. 2, ad. 1. Aquil. f'oiinin.jncmlth y. Pierce, 138 Ma=s. 7, § 4. 165, ISO. [t) Similarly where consent is («) Blackst. Gomm. iii. 4. given to an unreasonablydangerous (a;) Rnce\. 'J'ni/lor {18S5) 4 N. & operation or treatment by one who M. at p. 470. 220 PERSONAL WRONGS. tlio matter is of much greater importance in criminal than ia civil law (y). Jleuace distill - guished from assault. Menace -without assault is in some cases actionahle. But this is on the ground of its causing a certain special kind of damage ; and then the person menaced need not he the person who suffers damage. In fact the old authorities are all, or nearly all, on intimidation of a man's servants or tenants wherehy he loses their service or dues. Therefore, though under the old forms of action tliis wrong was of the same genus with assault and battery, we shall find it more convenient to consider it under another head. Verbal threats of personal violence are not, as such, a ground of civil action at all. If a, man is thereby put in reasonable bodily fear he has his ]-emedy, but not a ci\il one, namely by security of the lieace. Summary Where an assault is complained of before justices in^^wben nnder 24 & 25 Yict. c. 100, and the complaint has been a^barto dismissed (after an actual hearing on the merits) (z), action. either for want of proof, or on the ground that the assault or battery was " justified or so trifling as not to merit any punishment," or the defendant has been convicted, and paid the fine or suffered the sentence, as ((/) See Stephen's Digest of the (.'fiminal Law, art. 200, and cp. Criminal Code Bill, ss. 55 — 57 ; and for full discussion Dicey, Law of the Constitution, 6th ed. appx. note iv. There are many modern American decisions, chiefly in the Southern and Western States. A lase in the Y. B. Ed. II. 381, ' ' Tret-pas " (the placita are not numbered in this volume) suggests that as late as 1319 " Sou assault demesne" was not a good plea: but the special verdict as reported said only that the defendant was pursued by the plaintiff, not that he was beaten, and it may have been thought insufficient on that ground. (;:) Seed v. Xiilt (1890) 24 Q. B. D. 669, 59 L. J. Q. B. 311. FALSE IMPRISONMENT. -'- the case may be, no further proceediugs either civil or criminal can be taken in respect of the same assault (« ) . II. — Fake Iinprisoiiment. Freedom of the person includes immunity not only FuLm' fi-om the actual application of force, but from every kind ™out '' of detention and restraint not authorized by law. The infliction of such restraint is the wrong of false imprison- ment ; which, though generally coupled with assault, is nevertheless a distinct wrong. Laying on of hands or other actual constraint of the body is not a necessary element ; and, if " stone walls do not a prison make " for the hero or the poet, the law none the less takes notice that there may be an effectual imprisonment without walls of any kind. " Every confinement of the person is an imprisonment, whether it be in a common prison or in a private house, or in the stocks, or even by forcibly detaining one in the public streets" {b). And when a man is lawfully in a house, it is imprisonment to prevent him from leaving the room in which he is {c). The detainer, however, must be such as to limit the party's freedom of motion in all directions. It is not an imprisonment to obstruct a man's passage in one direction only. " A prison may have its boundary large or narrow, invisible or tangible, actual or real, or indeed {a) 24 & 25 Viet. o. 100, es. 42— 16 & 17 Vict. c. 30, s. 1, repealed 4.5. Masper v. Brown (1876) 1 C. by 24 & 25 Vict. o. 95. P. D. 97, decides that the Act is not confined to suits strictlyfor the <*) ^^^'"^^^^ ^°'°°'- '"• ^27. same cause of action, but extends {c) Warner v. Riddiford, i C. B. to bar actions by a husband or N. S. 180 ; even if he is disabled master for consequential damage : by sickness from moving at all : the words of the Act are "same the assumption of control is the cause," but they are equivalent to main thing : Grainger v. I{i/l[l8SS) " same assault " in the earlier Act, 4 Bing. N. C. 212. PERSONAL WRONGS. ia conception only ; it may in itself be moveable or fixed ; but a boundary it must have, and from that boundary the party imprisoned must be prevented from escaping : he must be prevented from leaving that place within the limit of which the party imprisoned could be confined." Otherwise every obstruction of the exercise of a right of way may be treated as an imprisonment (d). A man is not imprisoned who has an escape open to him (e) ; that is, we apprehend, a means of escape which a man of ordinary ability can use without peril of life or limb. The verge of a cliff, or the foot of an apparently impracticable wall of rock, would in law be a sufficient boundary, though peradventure not sufficient in fact to restrain an expert diver or mountaineer. So much as to what amounts to an imprisonment. Jiistifica- When an action for false imprisonment is brought and arrest and defended, the real question in dispute is mostly, though imprison- ^^^ always, whether the imprisonment was justified. One could not account for all possible justifications except by a full enumeration of all the causes for which one man may lawfully put constraint on the person of another : an undertaking not within our purpose in this work. We have considered, under the head of Greneral Exceptions (/), the principles on which persons acting in the exercise of special duties and authorities are entitled to absolute or qualified immunity. With regard to the lawfulness of arrest and imprisonment in particular, there are divers and somewhat minute distinctions between the (d) Sird T. Jones (1845) 7 Q. B. is . . a total restraint of the 742, 15 L. J. Q. B. 82, 68 E,. R. liberty of the person." Lord .564. per Coleridge J. Denman C. J. dissented. (e) "WilKams J.,i*. To the same (/) Ch. IV., pp. 116, 119 sqq., effect Patteson J. . " Imprisonment above. 18 answer - FxVLSE IMPKISONMENT. powers of a peace-officer and those of a prhate citizen (g) : of which the chief is that the officer may without a warrant arrest on reasonable suspicion of felony, even though a felony has not in fact been committed, whereas a private person so arresting, or causing to be arrested, an alleged offender, must show not only that he had reasonable grounds of suspicion but that a felony had actually been committed (h). The modern policeman is a statutory constable having all the powers which a constable has by the common law (/), and special statutory powers for dealing with various particular offences (/). Every one is answerable for specifically directing the y^i^o arrest or imprisonment of another, as for any other act J^?f^ that he specifically commands or ratifies ; and a superior officer who finds a person taken into custody by a constable under his orders, and then continues the custody, is liable to an action if the original arrest was unlawful (/) . Nor does it matter whether he acts in his own interest or in another's (m). But one is not answer- able for acts done upon his information or suggestion by an officer of the law, if they are done not as merely ministerial acts, but in the exercise of the officer's proper (f/) Stephen, Dig. Crim. Proc. powers of constables and others to c. 12, 1 Hist. Cr. Law, 193: and arrest for preservation of the peace, see Moffff r. Jfard (1858) 3 H. & N. which seem not free from doubt, 417, 27 L. J. Ex. 443. see Timothy v. Simpson (1835) 1 {h) This applies only to felony : C. M. & R. 757, 40 R. R. 722, " the law [i.e., common law] does Bigelow L. C. 257, per Parke B. not excuse constables for arresting ^^^j Stephen, 1 Hist. Cr. Law, persons on the reasonable belief nnn that they have committed a mis- ,„ ^ .- „ , ^ ,,< , ,, ^ J,. ri 1 m Griffin V. Coleman, note (7i). devaeaino-aT: see Gnjinv. Coleman v/ " \ ' (1859) 4 H. & N. 265, 28 L. J. Ex. {m) Barker v. Braham (1773) 2 134. W. Bl. 865 (attorney suing out (i) Stephen, 1 Hist. Cr. Law, and procuring execution of void 197, 199. As to the common law process). ■•.'3 ~-i PERSONAL WRONGS. authority or discretion. Rather troublesome doubts may arise in particular cases as to the quality of the act complained of, whether in this sense discretionary, or ministerial only. The distinction between a servant and an "independent contractor" (ii) with regard to the employer's responsibility is in some measure analogous. A party who sets the law in motion without makiog its act his own is not necessarily free from liability. He may be liable for malicious prosecution (of which hereafter) (o) ; but he cannot be sued for false imprisonment, or in a court which has not jurisdiction over cases of malicious prosecution. " The distinction between false imprison- ment and malicious prosecution is well illustrated by the case where, parties being before a magistrate, one makes a charge against another, whereupon the magistrate orders the person charged to be taken into custody and detained until the matter can be investigated. The party making the charge is not liable to an action for false imprison- ment, because he does not set a ministerial officer in motion, but a judicial officer. The opinion and judgment of a judicial officer are interposed between the charge and the imprisonment " (p). "Where an officer has taken a su^iposed oifender into custody of his own motion, a person who at bis request signs the charge-sheet does not thereby make the act his own{q), any more than one («) P. 79, above. of the facts that there is reasonable (o) See Fitzjohi \. Mackiiidcr cause: Hope >'. Evered (ISSG) 17 (1861) Ex. Ch. 9 C. B. N. S. 605, Q,. B. D. 338, 55 L. J. M. C. 146 ; 30 L. J. C. P. 257. Lea v. Chan-ingtoii (1889) 23 Q. B. (;;) Willes J., Aiitfiii v. Douihiff Div. 45, 272, 58 L. J. Q. B. 461. 1 1870) L.R. 6 0. P. at p. 540; TTest {q) Grinham v. TFlUey (18-59) 4 >'. ,SMi«Ku.-oo(i(lS38) 3M. &W. 418, H. & N. 496, 28 L. J. Ex. 242, 49 R. R. 666 ; Bigelow L. C. 237 ; followed by C. A., ScwcU\. Xational nor does an action for malicious Telephone Co. [1907] 1 K. B. 637, prosecution lie where the judicial 76 L. J. K. B. 196. officer has held on a true statement REASONABLE CAUSE FOR ARREST. -'-J who certifies worlc clone under a contract thereby makes the contractor his servant. But where an officer consents to take a person into custody only upon a charge being distinctly made by the complainant, and the charge-sheet signed by him, there the person signing the charge- sheet must answer for the imprisonment as well as the officer {>•). Again, where a man is given into custody on a mis- taken charge, and then brought before a magistrate who remands him, damages can be given against the prosecutor in an action for false imprisonment only for the trespass in arresting, not for the remand, which is the act of the magistrate («). What is reasonable cause of suspicion to justify arrest Reason- may be said, paradoxical as the statement looks, to be probabU- neither a question of law nor of fact, at any rate in the '■'"^^'^• common sense of the terms. Not of fact, because it is for the judge and not for the jury (/*) ; not of law, because "no definite rule can be laid down for the exercise of the judge's judgment " (u). It is a matter of judicial discretion such as is familiar enough in the classes of cases ^^-bich are disposed of by a judge sitting alone ; but this sort of discretion does not find a natural place in a system which assigns the decision of facts to the jury {,) Aiistlnv. Dou;U»f/(\8'J0)'L.'R. (1849) 4 Ex. 445, 19 L. J. Ex. 9, ,1 C. P. 534, 39 L. J. C. P. 260. 80 R. R. 667 ; and Grinham v. As to the protection of parties WiUnj, last note, issuing an execution in regular {_,) LocIcy. AdUon {IU8)V1(^.-B. course, though the judgment is g^j jg -^ j_ q ^ jg_ afterwards set aside on other grounds, see Smith v. Sydney [im] (') ^"'^'' ^- '^^"''''' ^^^^^) ^ ^■ L. R. 5 a B. 203, 39 L. J. Q. B. & N. 56, 30 L. J. Ex. 389. 144. One case often cited, i^fc(rsfe-)- («) Lister v. Terryiimn (1870) V. lioyle (1808, Lord EUenborough) L. R. 4 H. L. 521, 535, per Lord 1 Camp. 187, seems not good Chelmsford. So per Lord Colonsay authority: see Gosden v. Elphick at p. 540. P. — T. Q 226 PERSONAL WRONGS. and the determination of the law to the judge. The anomalous character of the rule has been more than once pointed out and regretted by the highest judicial authority (x) . The truth seems to be that the question was formerly held to be one of law, and has for some time been tending to become one of fact, but the change has never been formally recognized. The only thing which can be certainly affirmed in general terms about the meaning of " reasonable cause " in this connexion is that on the one hand a belief honestly entertained is not of itself enough (//) ; on the other hand, a man is not bound to wait until he is in possession of such evidence as would be admissible and sufficient for prosecuting the offence to conviction, or even of the best evidence which he might obtain by further inquiry. " It does not follow that because it would be very reasonable to make further inquiry, it is not reasonable to act without doing so" (p). It is obvious, also, that the existence or non-existence of reasonable cause must be judged, not by the event, but by the party's means of knowledge at the time. Although the judge ought not to leave the whole ques- tion of reasonable cause to the jury, there seems to be no objection to his asking the jury, as separate questions, whether the defendant acted on an honest belief, and (a-) Lord Camptell in Broughton which would create a reasonable V. Jackson (1852) 18 Q. B. 378, 383, suspicion in the mind cf a reason- 21 L. J.Q. B. 266; LordHatherley, able man," per Lord Campbell Lord Westbury, and Lord Colonsay C. J. (all familiar with procedure in (.) Bramwell B., Ferryman ,. which there was no jury at all) in x/sCcy (1868) L. R. 3 Ex. at p. 202, Lister V. Ferryman, L. R.. 4 H. L. approved by Lord Hatherley, s. e. .'531, 538, 539. nom. Lister v. Ferryman, L. E. 4 (y) Sroughton v. Jackson (1852) H. L. at p. 533. Compure the 18 Q. B. 378, 21 L. J. Q. B. 266 : authorities on malicious proseeu- the defendant must show "facts tion, pp. 314 — 319, below. PROTECTION OF PERSONAL RELATIONS. 227 ■whether he used reasonahle care to inform himself of the facts {a) . III. — I»Jtirics ill FnmUi/ Relatione. Next to the sanctity of the person comes that of the Protection . . . . -P^ . . of personal personal relations constituting the family. Depriving a relations, husband of the society of his wife, a parent of the com- panionship and confidence of his children, is not less a personal injury, though a less tangible one, than beating or imprisonment. The same may to some extent be said of the relation of master and servant, "which in modern law is created by contract, but is still regarded for some pm-poses as belonging to the permanent organism of the family, and having the nature of status. It seems natiu'al enough that an action should lie at the suit of the head of a household for enticing away a person who is imder his lawful authority, be it wife, child, or servant : there may be difSculty in fixing the boundary where the sphere of domestic relation ends and that of pure con- tract begins, but that is a difSculty of degree. That the same rule should extend to any wrong done to a wife, child, or servant, and. followed as a proximate conse- quence by loss of their society or service, is equally to be expected. Then if seduction in its ordinary sense of physical and moral corruption is part of the wrong- doer's conduct, it is quite in accordance with principles admitted in other parts of the law that this should be a recognized ground for awarding exemplary damages. It is equally plain that on general principle a daughter or servant can herself have no civil remedy against the seducer, though the parent or master may : no civil remedy, we say, for other remedies have existed and exist. («) H. Stephen on Malicious Prosecution, ch. vii. 228 PERSONAL WRONGS. She cannot complain of that which took place hy her own consent. Any different rule would he an anomaly. Positive legislation might introduce it on grounds of moral expediency ; the courts, which have the power and the duty of applying known principles to new cases, hut cannot abrogate or modify the principles themselves, are unable to take any such step. Historical There seems, in short, no reason why this class of of the wrongs should not he treated by the common law in common g_ fairly simple and rational manner, and with results herein. generally not much imlike those we actually find, only free from the anomalies and injustice which flow from disguising real analogies under transparent but cum- brous fictions. Bvit as matter of history (and pretty modern history) the development of the law has been strangely halting and one-sided. Starting from the particular case of a hired servant, the authorities have dealt with other relations, not by openly treating them as analogous in principle, but by importing into them the fiction of actual service ; with the result that in the class of ca=es most prominent in modern practice, namely, actions brought by a parent (or person in loco parenfis) for the seduction of a daughter, the test of the plaintiff's right has come to be, not whether he has been injured as the head of a family, but whether he can make out a constructive " loss of service " {b). Trfspass The common law provided a remedy by writ of trespass a*\v;nwTfe ^°^ ^^® actual taking away of a wife, servant, or heir, [h) The statement here was ap- amiss, though the amendments of proved by FitzGibbon L. J. in the 19th century in the law of Murray v. Fitzgerald [1906] 2 I. K. evidence have removed some of 254, 265. Christian's note on the grievances mentioned. Blackstone iii. H2 is still not LOSS OF SERVICE. 329 and perhaps younger child also (c). An action of trespass &c. and also lay for wrongs done to the plaintiff's wife or servant serriiinn {not to a child as such), whereby he lost the society of """*' ' the former or the services of tlie latter. The language of pleading was jjer quod consorfiiiin, or servithuii aiimit. Such a cause of action was quite distinct from that which the husband might acquire in right of the wife, or the servant in his own right. The trespass is one, but the remedies are " diversis respectibus " ((/). " If my servant is beat, the master shall not have an action for this battery, unless the battery is so great that by reason thereof he loses the service of his servant, but the servant himself for every small battery shall have an action ; and the reason of the difference is, that the master has not any damage by the personal beating of his servant, but by reason of a per quod, viz. per quod scnitiuin, ^-c. {jmhif ; so that the original act is not the cause of his action, but the consequent upon it, viz. the loss of his service, is the cause of bis action ; for be the battery greater or less, if the master doth not lose the service of his servant, he shall not have an action" (c). The same rule applies to the beating or maltreatment of a man's wife, provided it be " very enormous, so that thereby the husband is deprived for any time of the company and assistance of his wife" (/). Against an adulterer the husband had an action at "Criminal •common law, commonly known as an action of criminal tion." (c) F. N. B. 89 0, 90 H, 91 I ; [d) T. B. 19 Hen. VI. 45, pi. 94. Blackst. Comm. iii. 139. The (e) Robert ilarijs's case (1612) 9 ■writ wa,3 de nxore aiducta mm bonis Co. Eep. 113 <(. But a master riri sui, or an ordinary writ of shall not, as the law now stands, trespass (F. N. B. 52 K) ; a case as have an action for a trespass where- late as the Bestoration is men- by his servant is killed. Seep. 65, tioned in Bae. Abr. T. 328 (ed. above. 1832). (/) Blackst. Comm. iii. 140. 230 PERSONAL WRONGS. Enticing' away servant -f. conversation. In form it was generally trespass ri ct armis, on the theory that " a wife is not, as regards her husband, a free agent or separate person " {g), and there- fore her consent was immaterial, and the husband might sue the adulterer as he might have sued any mere tres- passer who beat, imprisoned, or carried away his wife against her will. Actions for criminal conversation were abolished in England on the establishment of the Divorce Court in 18'37, but damages can be claimed on the same principles in proceedings under the jurisdiction then instituted (/;). In practice these actions were always or almost always instituted with a view to obtaining a divorce by private Act of Parliament ; the rules of the House of Lords (in which alone such Bills were brought in) requiring the applicant to liave obtained both the verdict of a jury in an action, and a sentence of separation a mensa et toro in the Ecclesiastical Court. An action also lay for enticing away a servant (that is, procuring him or her to depart voluntarily from the master's service), and also for knowingly harbouring a servant during breach of service ; whether by the common law, or only after and by virtue of the Statute of Labourers (/), is doubtful. Quite modern examples are not wanting {]•:). [g) Coleridge J. in Lumleij v. Gyc (1853) 22 L. J. Q. B. at p. i78. Case Tvould also lie, and the common form of declaration was for some tiine considered to be rather case than trespass : Macfadzcn v. Olicant (1805) 6 East 3S7. See note (i) below. (/(.) 20 & 21 Vict. ^■.. 85, ss. 33, 59. (i) 23 Edw. III. (a.d. 1349) : this statute, passed in consequence of the Black Death, marks a. great crisis in the history of English agriculture and land tenure. As to its bearing on the matter in hand, see the dissenting judgment ot Coleridge J. in Lumlnj ^^ Gye [k) Hartley v. Ciimmings (18J7) C. B. 247, 17 L.J. C. P. 84. SEDUCTION. ~'>l Miich later the experiment was tried with success of a hushand bringing a like action " against such as persuade and entice the wife to live separate from him withoiit a sufficient cause " (l). Still later the action for enticing away a servant, ^jfr quod serrifiiini amisit, was turned to the purpose for which alone it may now be said to survive, that of pTmishing seducers; for the latitude allowed in esti- mating damages makes the proceeding in substance almost a penal one [U) . In this kind of action it is not necessary to prove the Actions existence of a binding contract of service between the tion'^L'^'^^" plaintiff and the person seduced or enticed away. The ™ot]i,'e- presence or absence of seduction in the common sense P™°f°'' ' presump- ( whether the defendant "debauched the plaintiff 's t^°° °* service. (18.53) 2 E. & B. 216, 22 L. J. Q. B. that trespass or case might be •163, 480. The action was gene- used at the pleader's option : rally on the case, but it might be Chamberhiiii v. Ilazelwood (1839) tre.spass: e.g., Tnllidge v. Wade 5 M. & W. -ilo, 9 L. J. Ex. 87. (1769) 3 WiJs. 18, an action for The only conclusion which can or beducing the plaintiff's daughter, need at this day be drawn from where the declaration was in tres- such fluctuations is that the old pass ri et armis. How this can be system of pleading did not succeed accounted for on principle I know in its professed object of maintain- not, short of regarding the servant ing clear logical distinctions be- as a qua.si chattel : the difficulty tween different causes of action, was felt by Sir James Mansfield, (^Blackst. Comm. iii. 139; Wooduiird v. IJ'alton (1807) 2 B. & Wmsmore v. Greenhank (1745) P. N. K. 476, 482. Eor a time it ^^u^^ ^--^ ^j^^j^^ L. C. 328. It seemed the better opinion, however, ^^^ ^^.^^^^^^ ^j^^^ ^^^^^ ^,.^^ ^^ that trespass was the only proper ^^^^^^^^^ ^f any such action, form: ibid., Ditcham v. Jjond (1814) 2 M. & S. 436, see 14 R. R. 836 n. {«) The text from this point to It was formally decided as late as P- 235 below is adopted by Fitz- 1839 (without giving any other Gibbon L. J. in Mumig ,. Fil:- reason than the constant practice) i7«-«''^ [1906] 2 I. R. 254, 266. PERSONAL WEONGS. daugkter," in the forensic phrase) makes no difference in this respect ; it is not a necessary part of the cause of action, but only a circumstance of aggravation (ni). Whether that element be present or absent, proof of a de facto relation of service is enough ; and any fraud ■whereby the servant is induced to absent himself or herself affords a ground of action, " when once the relation of master and servant at the time of the acts complained of is established" (n). This applies even to an actual contract of hiring made bj' the defendant with a female servant whom he has seduced, if it is found as a fact that the hiring was a merely colourable one, undertaken with a view to the seduction which followed (o). And a de facto service is not the less recognized because a third party may have a paramount claim : a married woman living apart from her husband in her father's house may be her father's servant, even though that relation might be determined at the will of the husband (/j). Some evidence of such a relation there must be, but very little will serve. A grown-up daughter keeping a separate establishment cannot be deemed her father's servant (q) ; nor can a daughter, whether of full age or not, who at the time of the seduction is actually another person's servant, so that {»>) Erans v. Walton (1867) L. R. (o) Speight v. Olii-iera (1S19) 2 2 C. P. 615, 36 L. J. C. P. 307, Stark. 493, 20 R. R. 728, cited with where it was ud successfully con- approval by Montague Smith J., tended that the action for seducing L. E. 2 C. P. 624. a daughter with loss of service as ^^^ ^^,,^^^. ^ j.^^^^^.^^ ^ the consequence, and for enticing ^ ^ ^ ,3^^ 3^ ^ ^ ^se. This away a servant, were distinct _ i ^ n l c i tt ■' ' was Jong before courts of law did species ; and that to sustain an , , . .^ r. '^ . . . or could recognize any capacity of action for " enticms" away alone, i. ».■ . ■ ^ . . . contracting m a married woman, a binding contract of service must be proved. (?) Muitlnj v. Field (1S59) 7 C. B. («) WiUes J., L. E. 2 C. P. 622. N. S. 96, 29 L. J. C. P. 79. SKDUCTION. -S.J no part of her services is at her parent's disposal (r) . On the other hand, the fact of a child living with a parent, or any other person in loco parentis, as a memher of the famil}' of which that person is the head, is deemed enough to support the inference " that the relation of master and servant, determinable at the will of either party, exists between them " («). And a daughter under age, returning home from service with another person ^\ilic•h has been determined, may be deemed to have re-entered the service of her father {t). " The right to the service is suffi- cient" («). Partial attendance in the parents' house is enough to constitute service, as where a daughter employed elsewhere in the daytime is wdthout consulting her employer free to assist, and does assist, in the household when she comes home in the evening (j). Some loss of service, or possibility of service, must be Dumages. shown as consequent on the seduction, since that is, ia theory, the ground of action (y) ; but when that condition (r) Jran V. P«?(1804) 5 East4.), 1812), Bigelow L. C. 286, and 7 E. E. 653 ; even if by the mas- notes. ter's licence she gives occasional (s) Bramwell B. in Thonipsuii v, help in herparent's work; TJujmpxon lioss, last note. Even without d, v. Jioss (ISo'J) 5 H. & N. 16, 29 quasi-parental relation a sister may Ti. J. Ex. 1 : Hedges v. Tagg be the servant of her brother, ami (1872) L. R. 7 Ex. 283, 41 L. J. this though they are co-owners Ex. 169 ; Tf'hitboiiriie v. Williams of the house : Miirrriij v. FilzgeraU [1901] 2 K. B. 722, 70 L. J. K. B. [1906] 2 I. E. 251, C. A. 933, C. A. In the United States [t] Terry v. Iliiicliinsw (1868) it is generally held that actual L. R. 3 Q.B..590, 37 L. J. Q B. 2.>7. ^ervice with a third persbn is no [v) Littledale J. cited with ap- bar to the action, unless there is a proval by Blackburn J., L. R. 3 binding contract which excludes Q. B. 602. theparents' right of reclaiming the [x] Rist v. Taiix (1863) Ex. Ch. child's services— i.e., that service 4 B. & S. 409, 32 L. J. Q. B. 380. either de facto or de jure will do: (y) Griiinell v. IVclh (18 14) 7 M. Martin v. Fatjne (Sup. Court N. T. & Gr. 1033, 14 L. J. C. P. 19, 60 ''■'>i PERSONAL WRONGS. is once satisfied, the damages that may he given are hy no means limited to an amount commensurate with the actual loss of service proved or inferred. The awarding of exemplary damages is indeed rather encouraged than otherwise (;:). It is immaterial whether the plaintiff he a parent or kinsman, or a stranger in blood who has adopted the person seduced (a) . Services On the Same principle or fiction of law a parent can cliU™'^° sue in his own name for any injury done to a child living under his care and control, provided the child is old enough to he enpahle of rendering service ; otherwise not, for " the gist of the action depends upon the capacity of the child to perform acts of service " (6). Capricious The capricious working of the action for seduction in of the law. modern practice has often heen the subject of censure. Thus, Serjeant Manning wrote sixty years ago : " the qiifi-si fiction of servitinm cnniait affords protection to the rich man whose daughter occasionally makes his tea, but leaves without redress the poor man whose child is fent unprotected to earn her bread amongst strangers " {c). All devices for obtaining what is virtually a new remedy by straining old forms and ideas beyond their original inten- tion are liable to this kind of inconvenience. It has been R. R. 8.3.5 ; JEager v. Grimwood East 23, 10 R. R. 423. (1847) 1 Ex. 61, 16 L. J. Ex. 236, 74 R. R. .584, where the declaration (J) Ball Y. Sollaiider (1825) 4 B. , , & 0. 660, 28 R. R. 437. But this was iramed lu trespass, it would , , , ,,,... , ' . , case does not show that, if a lury seem purposely on the chance of the , . ., , ,, , ,,,,.,,,,, , chose to nnd that a very youn<^ court holdmu- that the per quod , .,, ,, . . ,, . , , , , . , cluld was capable or service, thetr serrttium aiiusit could be dispensed ,. ^ ... _. , , _ •^ verdict would he disturbed, with. (z) See Ternj v. .F'Htchii?son, W) Note to GrinneU v. T]'tUs, 7 note (0. ^lan. & Gr. at p. 1044, 66 R. R. at (a) Irwin v. Dearmuii (1809) 11 P- 8*3. CONSTRUCTlVli: SERVICE. -■'' truly said ((/) that the enforcGinent of a substantially just ehiim " ought not to depend ;ipon a mere fiction ovca- which the courts possess no control." We have already pointed out the holder course which might have been taken without doing violence to any legal principle. Now it is too late to go back upon the cases, and legislation would also be difficult and troublesome, not so much from the nature of the subject in itself as from the variety of irrelevant matters that would probably be imported into any discussion of it at large (dd). It would be merely curious, and hardly profitable in Gonstruc- any just proportion to the labour, to inquire how far vice in the fiction of constructive service is borne out bv the old ^^^^ cases. law of the action for beating or carrying away a servant. Early in the loth century we find a dictum that if a man serves me, and stays with me at his own will, I shall have an action for beating him, on the ground of the loss of his service (e) ; but this is reported with a quaere. A generation later (/) we find Newton C. J. saying that a relation of service between father and son cannot be presumed : " for he may serve Avhere it pleaseth him, and I cannot constrain him to serve without his good will : " this must apply only to a son of full age, but as to that case Newton's opinion is express that some positive evidence of service, beyond living with the parent as a member of the household, is required to support an action. Unless the case of a daughter can be distinguished, the modern authorities do not agree with this. But the same Year Book bears them out (as noted by Willes J.) {g) in (rf) Starkie's note to Speight v. per HnLs J. (a.d. 1410). (llU-iera (1S19) 2 Stark. 496, 20 (/) 22 Hen. VI. 31 (a.d. 1443). R. R. 730. W L. R- 2 C. P. 621-2; and (dd) See note [IT], p. 231 above. see ^[art,llcz v. Gerber (1841) 3 (e-) 11 Hen. IV. fo. 1—2, pi. 2, Man. & Gr. 88, 60 R. R. 466. and trnants 236 PERSONAL WKONGS. holding that a binding contract of service need not be shown. Indeed, it was better merely to allege the service as a fact {in serrifio suo cridenfein cej}it), for an action under the Statute of Labourers would not lie where there was a special contract varying from the retainer contemplated by the statute, and amounting to matter of covenant (//). Intimida- A similar cause of action, but not quite the same, was ■ servants roonguiised by the medieval common law where a man's servants or tenants at will (t) were comiaelled by force or menace to depart from their service or tenure. " There is another writ of trespass," writes Fitzherbert, " against those M'ho lie near the plaintiff's house, and will not suffer his servants to go into the house, nor the servants who are in the house to come out thereof " (k). Examples of this kind are not uncommon down to the sixteenth century or even later ; we find in the pleadings considerable variety of circumstance, which may be taken as expansion or specification of the alia etiormia regularly mentioned in the conclusion of the writ (/) . (/() 22 Hen. VI. 32 b, per Cur. trespass against the employer. (Newton C. J. ; Fulthorpe, Ascue The modern cases of injunction, or Ayscoghe, Portington JJ.) ; Lyons v. WilHns [1899] 1 Ch. 2-55, F. N. B. 168 P. 68 L. J. Ch. 14G, C. A., and one (i) If the tenancy were not at or two others, are grounded not on will, the departure would be a the common law but on the com- breafh of contract ; this introduces mission of statutory ofFences under a new element of difficulty, never the Conspiracy and Protection of expressly faced by our courts before Property Act, 1875. Ziiinh'i/ V. Gye, of which more else- (/) H Edw. IV. 7, pi. 13, a writ where. " quare tenentes suos verberavitper (k) F. N. B. 87 N. ; and see the quod a tenura sua recesserunt " ; form of the writ there. It seems 9 Hen. VII. 7, pi. 4, action for therefore that "picketing," so menacing plaintiff's tenants at will soon as it exceeds the bounds of "devitaetmutilationemembrorum, persuasion and becomes physical ita quod recesserunt de tennra ' ' ; iutimidation, is at common law a Kastell, Entries 661, 662, similar COERCION OF CUSTOMERS. 237 It seems reasonable, on the analogy of these cases, that Indirect an action (which in common-law pleading would be a through special action on the case) should lie against those who ^"^^t'""'^''^' attempt to injure or coerce the plaintiff by driving away his customers ; for it is not obvious, on any admitted principle, why the relation of tenant or servant should be material except as to the form of action. In recent times the machinery of workmen's trade unions and of em- ployers' associations has made it possible for oppression of this kind to be practised on a large scale against persons who break or are supposed to have broken the rules of the union or association, or are otherwise obnoxious to it, and actions have been brought in respect of such proceedings, and allowed by the House of Lords and the Court of Appeal. But these cases will be better dealt with later amoDg those personal wrongs ^^'hich forms of declaration ; one (pi. 9) i» for menacing the king's tenants, so that " negotia sua palam incedere Bonaudebant" ; similar case, Select Cases in Chancery, Selden Soc. 1896, pi. 51, treated as a common- law cause of action for which the plaintiff could get no remedy be- cause the defendant was so great a raaintainer, extortioner and cor- rupter of juries ; Garret v. Tuijlor, Cro. Jac. 567, action on the case for threatening the plaintiff's workmen and customers, ' ' to mayhem and vex them with suits if they bought any stones"; 21 Hen VI. 26, pi. 9, '• mani)ssavitvulneravit etverbera- vit" : note that in this action the " vulneravit " is not justinable and therefore must be traversed, other- wise under a plea of son assault demesne; 22 Ass. 102, pi. 76, is for actual beating,aggravated by carry- ing away timber of the plaintiff's [meriiiie'ntum=materiamen, see Du Cange, ^. v. materia; in Anglo- Prench meresme). In a.d. 1200 an action is recorded against one John de Mewic for deforcing the plaintiff of land which she had already re- covered against him by judgment, ' ' so that no one dare till that land because of him, nor could she deal with it in any way because of him' ' • Select Civil Pleas, Selden Soc. 1890, ed. Baildon, vol. 1, pi. 7. Cp. Eeg. Brev. (1595)104«, "quandotenentes non audent morari super tenuris suis," and TarUton v. McGaidei/ (1791) 1 Peake 270, 3 R. R. 689, action for deterring negroes on the coast of Africa from trading with plaintifi's ship. Yov an example of a similar writ for menacing the plaintiff himself, see 7 Edw. IV. 'H, pi. 31. 238 PERSONAL WRONGS. affect a man's condition generally; for their import- ance and difSculty consist in the substantial grievance being independent of any bodily violence either used or threatened, however much practices of this sort may tend to run into acts of violence if not checked at an earlier stage. 2:5!) CHAPTEE YII. DEFAMATION. Reputation and honour are no less precious to good men Ciyil and ,iTTi{i TPi T 1 (-rimiDal Than bodily saiety and freedom. In some cases they juri.sdic;- may be dearer than life itself. Thus it is needful for ^°^i„, the peace and well-being of a civilized commonwealth gm-'hecl. that the law should protect the reputation as well as the person of the citizen. In our law some kinds of defamation are the subject of criminal proceedings, a.s endangering public order, or being offensive to public decency or morality. We are not here concerned ■with libel as a criminal offence, but only with the civil wrong and the right to redress in a civil action : and we may therefore leave aside all questions exclusively proper to the criminal law and procedure, some of which are of great difBoulty (a). The wrong of defamation may be committed either by Slander „ . , „ ... ., • 1 / and libel w.'ay of speech, or by way o± %vritmg or its equivalent, distin- For this purpose it may be taken that significant gestures °""^ ^ " (as the finger-language of the deaf and dumb) are in the same case with audible words ; and there is no doubt that drawing, printing, and engraving, and every other use of permanent visible symbols to convey distinct ideas, are in the same case with writing. The term slander is appropriated to the former kind of utterances, libel to the latter (6). Using the terms "written" and (a) Suet as the definition of bias- {i) Quart, whether defamatory phemous libel, and the grounds on matter recorded on a phonograph which it is punishable. would be a libel or only a potential slander. -40 DEFAMATION. " spoken " in an extended sense, to include the analo- gous cases just mentioned, we may say that slander is a spoken and libel is a written defamation. The law has made a great difference between the two. Libel is an offence as well as a wrong, but slander is a civil wrong only (c). Written utterances are, in the absence of special ground of justiiication or excuse, wrongful as against any person whom they tend to bring into hatred, contempt, or ridicule. Spoken words are actionable only when special damage can be proved to have been their proximate consequence, or when they convey imputations of certain kinds. No branch of the law has been more fertile of litiga- tion than this (whether plaintiffs be more moved by a keen sense of honour, or by the delight of carrying on personal controversies under the protection and with the solemnities of civil justice), nor has any been more per- plexed with minute and barren distinctions. This latter remark applies especially to the law of slander ; for the law of libel, as a civil cause of action, is indeed overgrown with a great mass of detail, but is in the main sufficiently rational. In a work like the present it is not possible to give more than an outline of the subject. Those who desire full information will find it in Mr. Blake Odgers' excellent and exhaustive monograph {d) . We shall, as a rule, confine our authorities and illustrations to recent cases. {c) Seandnlum magnattim was an of scandalum maynatum in 30 Ass. exception to this. It depended on 177, pi. 19, where the defendant early statutes -which, after being only made matters worse by long obsolete in practice, were re- alleging that the plaintiff was ex- pealed by the S. L. E. Act, 1887. communicated by the Pope. See Blake Odgers, Digest of the (d) ADigest of theLawof Libel Law of Libel and Slander, 71. and Slander, &c. By W. Blake There is a curious 14th cent, case Odgers, London, 4th ed. 1905. SLANDER AND LIBEL. 241 1. — Slander. Slander is an actionable wrong when special damage When can be shown to have followed from the utterance of the action- words complained of, and also in the following cases : ''' '^' Where the words obviously impute, or may fairly be understood as imputing, a criminal offence (e). "Where they impute having a contagious disease which would cause the person having it to be excluded from society. Where they convey a charge of unfitness, dishonest}^, or incompetence in an office of profit, profession, or trade, in short, where they manifestly tend to preju- dice a man in his caUmg. Spoken words which afford a cause of action without proof of special damage are said to be actionable per se : the theory being that their tendency to injui'e the plain- tiff's reputation is so manifest that the law does not require evidence of their having actually injured it. There is much cause however to deem this and other like reasons given in om* modern books mere after-thoughts, devised to justify the results of historical accident: a thing so common in current expositions of English law that we need not dwell upon this example of it (/). (c) As where the plaintiff is communication of the same matter charged with having brought a to the persona most likely to act blackmailing action : Marks v. upon it. Mr. Joseph R. Fisher, in ,S,tmuel [1904] 2 K. B. 287, 73 Law Quart. Rev. a. 158, traces the L. J. K. B. 587, C. A. distinction to " the adaptation by the Star Chamber of the later (/) See Blake Odgera, pp. 2—4, Roman law of libellns famosiis." and 6 Amer. Law Rev. 593. It See, too, "The English Law of seems odd that the law should pre- Defamation," by Mr. Frank Carr, sume damage to a man from printed L. Q. R. xviii. 255, 388, and matter in a newspaper which, it "History and Theory of the Law may be, none of his acquaintances of Defamation," by Mr. Van Vech- are likely to read, and refuse to ten Veeder, Columbia Law Rev. presume it from the direct oral iii. 546, iv. 33. P.— T. R Meaning of ^^ prhna facie libellous." Special damas'c. DEFAMATION. No such distinctions exist in the case of libel : it is enough to make a written statement prima facie libellous that it is injurious to the character or credit (domestic, public, or professional) of the person concerning wliom it is uttered, or in any way tends to cause men to shun his society, or to bring him into hatred, contempt, or ridicule. When we call a statement prima facie libellous, we do not mean that the person making it is necessarily a wrong- doer, but that he will be so held unless the statement is found to be within some recognized ground of justification or excuse. Such are the rules as to the actionable quality of words, if that be a correct expression. The authorities by which they are illustrated, and on which they ultimately rest, are to a great extent antiquated or trivial {(j) ; the rules them- selves are well settled in modern practice. Where " special damage " is the ground of action, we have to do with principles already considered in a former chapter (A) : namely, the damage must be in a legal sense the natural and probable result of the words complained of. It has been said that it must also be '' the legal and natural consequence of the words spoken " in this sense, that if A. speaks words in disparagement of B. which are not actionable per se, by reason of which speech C. does something to B.'s disadvantage that is itself wrongful as against B. (such as dismissing B. from his service in breach of a subsisting contract), B. has no remedy against A., but only against C. («'). But this doctrine is contrary to principle : the question is not whether C.'s (g) The old abridgments, e.g. Kolle, sub tit. Action sur Case, Pur ParoUs, abound in examples many of them sufficiently grotesque. A select group of cases is reported by Coke, 4 Eep. 12 i— 20 i. {h) Pp. 36 sqq., above. (i) Vicars v. TTilcocJcs (1806) East 1, 9 E. K. 361. SLAXDEE : SPECIAL DAMAGE. ^-I'-J act was lawful or unlawful, but whether it might have been in fact reasonably expected to result from the original act of A. And, though not directly overruled, it has been disapproved by so much and such weighty authority that we may say it is not law (/i) . There is authority for the proposition that where spoken words, defamatory but not actionable in themselves, are followed by special damage, the cause of action is not the original speaking, but the damage itself (l). This does not seem to affect the general test of liability. Either way the speaker will be liable if the damage is an intended or natural consequence of his words, otherwise not. It is settled however that no cause of action is afforded Repeti- by special damage arising merely from the voluntary spoken repetition of spoken words by some hearer who was not ''''°^ ^' imder a legal or moral duty to repeat them. Such a con- sequence is deemed too remote (m). But if the first speaker authorized the repetition of what he said, or (it seems) spoke to or in the hearing of some one who in the performance of a legal, official, or moral duty ought to repeat it, he will be liable for the consequences (n). Losing the general good opinion of one's neighbours. Special consortium mcinorum as the phrase goes, is not of itself involves a special damage. A loss of some material advantage temporal must be shown. Defamatory words not actionable jyer se ^°^^- (k) Lynch v. Knight (1861) 9 H. the husband was so muchhurtthat L. C. 577. See notes to Vicars y. he left her;. TTilcocks, in 2 Sm. L. C. («) Blake Odgers, 387. Riding [l) Maule J. ex relat. BramweU v. Smith (1876) 1 Ex. D. 91, 45 L. J. 7 Q. B. D. 437. L. J. Ex. 281, must be taken not ()») Parkins v. Scott (1862) 1 H. to interfere with this distinction, & C. 153, 31 L. J. Ex. 331 (wife see per C. A. in EatcUffe v. Evans repeated to her husband gross [1892] 2 Q. B. 524, 534, 61 L. J. language used to herself , wherefore Q. B. 535. k2 244 DEFAMATION. were spoken of a member of a religious society who by reason thereof was excluded from membership : there was not any allegation or proof that such member- ship carried with it as of right any definite temporal advantage. It was held that no loss appeared beyond that of consortium ■viciuorum, and therefore there was no ground of action (o). Yet the loss of consortium, as between husband and wife, is a special damage of which the law will take notice {p), and so is the loss of the voluntary hospitality of friends, this last on the ground tliat a dinner at a friend's house and at his expense is a thing of some temporal value {q). Actual membership of a club is perhaps a thing of temporal value for this purpose, but the mere chance of being elected is not : so that an action will not lie for speaking disparaging words of a candidate for a club, by means whereof the majority of the club decline to alter the rules in a manner which would be favourable to his election. " The risk of temporal loss is not the same as temporal loss" (/•). Trouble of mind caused by defamatory words is not suffi- cient special damage, and illness consequent upon such trouble is too remote. " Bodily pain or suffering cannot be said to be the natural result in all persons " (s). Isiiputa- As to the several classes of spoken words that may criminal ^^ actionable without special damage : words sued on as offence. imputing crime must amount to a charge of some offence which, if proved against the party to whom it is imputed, would expose him to imprisonment or other corporal (o) Boherts v. Soberts (1864) 5 B. (>•) Chamberlain Y.£oi/d (1883) 11 6 S. 3S4, 33 L. J. Q. B. 249. Q. B. Div. 407 ; per Bowen L. J. (p) Lynch v. Enir/ht, 9 H. L. C. at p. 416, 52 L. J. Q. B. 277. The 577. damage was also held too remote. {q) Saviesx. Solomon {IS7 1) 'L.'R. (s) Allsop v. AUsop (1860) 5 H. 7 Q. B. 112, 41 L. J. Q. B. 10. & N. 534, 29 L. J. Ex. 315. SLANDER : IMPUTATION OF CKISIE OR IMMORALITY. "-'45 penalty (not merely to a fine in the first instance, with possible imprisonment in default of payment) [t). The ofPence need not be specified with legal precision, indeed it need not be specified at all if the words impute felony generally. But if particulars are given they must bo legally consistent with the ofi'ence imputed. It is not actionable per se to say of a man that he stole the parish bell-ropes when he was churchwarden, for the legal pro- perty is vested in him e.r officio (u) ; it might be otherwise to say that he fraudulently converted them to his own use. The practical inference seems to be that minute and copious vituperation is safer than terms of general reproach, such as "thief," inasmuch as a layman who enters on details will probably make some impossible combination. It is not a libel as against a corporation (though it may be as against individual members or officers) to charge the body as a whole with an offence which a corporate body cannot commit («). False accusation of immorality or disreputable conduct Ot^ier . charges or not punishable by a temporal court is at common law not mere im- actionable j)er se, however gross. The Slander of Women ™oTaotioii- Act, 1891 (5-4 & 55 Yict. o. 51) has abolished the need '''^^''■ {t) This is the true distinction: dick on Torts, 310. it matters not whether the offence ^^^^ j^^j.^^^^ ^_ _^^;^„,, (jg3,j ., be indictable or punishable by a -^.^^^ j^ q ^^2, 42 R. R. 633. court of summary jm-isdiction : ^j^^ ^^^^^^ ^^^.^ ,,^^^ ^^^j^ ^.j^^ IFebb V. J3eai;an (1883) 11 Q. B. D. ^^^^^-^ bell-rope, you scamping U09, 52 L.J. Q. B. 544. In the ^^.^^ip- jf gp^ken while the United States it is generally held, pij^i„ti£E held the office, they would but with variations in several probably have been actionable, as States, that such words are action- tending to his prejudice thereiu. able when the offence which they charge renders the party liable to (.r) JIai/or of MancJirster v. Jl'il. an indictment for a crime involving Hams [1891] 1 Q. B. 94, 60 L. J. moral turpitude, or subjecting him Q. B. 23. As to defamation in the to an infamous punishment : Bur- way of business, see p. 247, below. 246 DEFAMATION. Slander of AA'omcn Act. Imputa - tions of conta- g'ious disease. of showing special damage in the case of " words . . . which impute unchastity or adultery to any woman or girl." The courts might without violence have presumed that a man's reputation for courage, honour, and truthful- ness, a woman's for chastity and modest conduct, was something of which the loss would naturally lead to damage in any lawful walk of life. But the rule was otherwise (y), and remains so as regards all slander of this kind against men, and against women also as regards all charges of improper conduct short of unchastity, which yet may sometimes be quite as vexatious, and more mis- chievous because more plausible. The law went wrong from the beginning in making the damage and not the insult the cause of action ; and this seems the stranger when we have seen that with regard to assault a sounder principle is well established (::). A person who has committed a felony and been con- victed may not be called a felon after he has undergone the sentence, and been discharged, for he is then no longer a felon in law (a) . Little need be said concerning imputations of contagious disease unfitting a person for society : that is, in the modern law, venereal disease (&). The only notable point {(/) The teolinical reason was that charges of incontinence, heresy, /). There are cases, though not common in our books, in M'or.is which a man suffers loss in his business as the intended or "natural and probable result" of words spoken in relation to that business, but not against the man's own "' ''.'" ^ _ business. character or conduct : as where a wife or servant dwelling at his place of business is charged with misbehaviour, and the credit of the business is thereby impaired : or where a statement is made about the business not in itself defamatory, but tending to a like result, such as that the firm has ceased to exist (o). In such a case an action lies, but is not properly an action of slander, but rather a special action (on the ease in the old system of pleading) " for damage wilfully and intentionally done without just occasion or excuse, analogous to an action for slander of title." Greneral loss of business is sufficient " special damage " to be a cause of action in such a case ip). (/) Foulger v. Keucomb (1867) {o) Per C. A., HatcUffc t. Evany L. R. 2 Ex. 327, 36 L. J. Ex. 169. [1892] 2 Q. B. .524, 527, 61 L. J. (;«) ShepheardY. Whitakcr (1873) Q. B. 535. L. R. 10 C. P. 502. (ju) RatcUffc v. Evans, last note ; (h) South Ectton Coal Co. v. X E. op. Hartley v. Herring (1799) ,S Xriis Association [1894] 1 Q. B. T. R. 130, 4 R. R. 614; Riding v. 133, 63 L. J. Q. B. 293 (this was Smith (1876) 1 Ex. D. 91, 45 L. J. u, printed libel, but the principle Ex. 281, must be ju.stified, if at all, seems equally applicable to spoken as a case of this class: [1892] 2 ■words). Q. B. atp. 534. 250 DEFAMATION. Kules as to defa- mation generally. 2. — Defamation in general. We now pass to the general law of defamation, which applies to both slander and libel, subject, as to slander, to the conditions and distinctions we have just gone through. Considerations of the same kind may affect the measure of damages for written defamation, though not the right of action itself. • ' Implied malice." It is commonly said that defamation to be actionable must be malicious, and the old form of pleading added "maliciously" to " falsely," though this was held to be needless before the end of the sixteenth century (§■). Whatever may have been the origin or the original mean- ing- of this language (r), malice in the modern law signifies neither more nor less, in this connexion, than the absence of just cause or excuse (.9) ; and to say that the law implies malice from the publication of matter calculated to convej' an actionable imputation is only to say in an artificial form that the person who so publishes is responsible for the natural consequences of this act (if). " Express malice " means something different, of which hereafter. Also, notwithstanding the accustomed form of declaration, the (?) See per Cave, J. [1898] A. C. at p. 37. {)■) SeeBigelowL. C. 117. (s) Bayley J. in Bi-omage v. Frossn- (1825) 4 B. & C. at p. 255, 28 R. R. at p. 2-17: "Malice in common acceptation means ill-will asi'ainst a, person, but in its legal sense it means a wrongful act done intentionally "without just cause or excuse:" so too Littledale J. in Mcl-herson y. Daniels (1829) 10 B. & C. 272, 34 R. R. 397, 405. This is so even in criminal jurisdiction : £. V. Munslow [1895] 1 Q. B. 758, 64L. J. M.C. 138, deciding that the averment of malice is unnecessary at common law. (i) Lord Blackburn in Capital and Conntics Bank v. Hentij (1882) 7 App. Ca. 787, :yl L. J. Q. B. 232 ; and see per Lord Herschell in A llcii V. Flood [1898] A. C. at p. 125, and per Lord Lindley in j) Printing is for this reason too. /A«-.it»s v. (?oife( -F/X'res[1894] ;jiiH/a /mi'- a publication; JiaJrhrin 1 Q. B. 842, 63 L. J. Q. B. 401, V. Eljjhinston, 2 "W. Bl. 1037. C. A., followed in Edmondson v. There are obvious exceptions, as if ]iirch ^- Co. aii'1 Boiiiir [1907] 1 the text to be printed is Arabic or K. B. UTl, 7G L.J. K. B. 346, C. i\ . Chinese, or the message in cipher. As Fletcher Moulton L. J. puts it, (:) Pullman ^r. Eill i- Co. [1891] the privilege covers all incidents of 1 Q. B. 524, 63 L. J. Q. B. 299, C. A. dealing with the communication in Kote, however, with Mr. Blake accordance with the reasonable and Odgers (Digest, p. 154) that the usual course of business, dictation of words that exist in io2 DEFAMATION. Every repetition of defamatory words is a new publication, and a distinct cause of action. The sale of a copy of a newspaper, published (in the popular sense) many years ago, to a person sent to the newspaper ofhce by the plaintiff on purpose to buy it, is a fresh publication (a). It appears on the whole that if the defendant has placed defamatory matter within a person's reach, whether it is likely or not that he will attend to the meaning of it, this throws on the defendant the burden of proving that the paper was not read, or the words heard by that person ; but if it is proved that the matter did not come to his knowledge, there is no publication (i). A person who is an uncon- scious instrument in circulating libellous matter, and did not know, and could not with reasonable diligence have known, that the document he circiilates contains any such matter, is free from liability if he proves his ignorance (c). Such is the case of a newsvendor, as distinguished from the publishers, printers, and owners of newspapers. " A news- paper is not like a fire ; a man may carry it about without being bound to suppose that it is likely to do an injury " ((/). If A. is justified in making a disparaging communication about B.'s character to C. (as, under certain conditions, we shall see that he may be), it follows, upon the tendency and analogy of the authorities now before us, that this will be no excuse if, exchanging the envelopes of two letters by inadvertence, or the like, he does in fact communicate the matter to D. It has been held otherwise, but the decision was never generally (a) Duke of Brmisiric!,- V. Sarmer jury: VizcteUi/ v. Mudie's Setctl (1849) 14 Q. B. 18.), 19 L. J. Q. B. Libranj, Lid. [1900] 2 Q. B. 170, 20, 80 R. R. 241. 69 L. J. Q. B. 045, G. A. (4) Blake Odgers, 155 sqq. {it) Emmens v. Totlk (1885) 16 (r) The burden of proof is on U. B. Div. 354, per Bowen L. J. him, and it is a question for the at p. 358, 65 L. J. Q. B. 51. publication: innuendo. '^''>-> accepted, and is now overruled (<■). In fact, as had been suggested in former editions of this book, it could not stand ■v\ith the earlier authorities on " publication." Sending a defamatory letter to a wife about her husband is a publication : " in the eye of the law, no doubt, man and wife axe for many purposes one," " but for manj'- pur- poses " — of which this is one — " essentially distinct and different persons" (/). On the general principles of liability, a man is deemed ^'icarious to publish that which is published by his authority. And 1]"^^ "^"■' the authority need not be to publish a particidar form of words. A general request, or words intended and acted on as such, to take public notice of a matter, may make the speaker answerable for what is published in conformity to the general " sense and substance" of his request (,r/) . A person •\\'ho is generally responsible for publication (such as an editor), and who has admitted publication, is not as a rule bound to disclose the name of the actual author (A). Supposing the authorship of the words complained of to Construc- be proved or admitted, many questions may remain. ^vords^- The construction of words alleged to be Kbellous (we shall now use this term as equivalent to " defamatory," nnless the context requires us to advert to any distinction (e) Tompson v. Bashwood (1883) TTcHn/jaA- v. J/MY/aK (1888) 20 Q. B. 11 Q. B. D. 43, 52 L. J. Q. B. 425, D. 635, 57 L. J. Q. B. 241. ■was overruled by Sebditcli v. Mm- {g) Parkes v. Vrescott (1869) L. R. Ilu-aim [1894] 2 Q. B. 54, 63 L. J. 4 Ex. 169, 38 L. J. Ex. 105, Ex. Ch. Q. B. 587 C. A. See p. 275, Whether the particular publication below. ^ within the authority is a question (/) IVemnan v. Ash (1853) 13 of fact. All the Court decide is C. B. 836 22 L. J. C. P. 190, 93 that verbal dictation or approval by ■R. E. 761, per Maule, J. But the principal need not be shown, communication by the defendant (A) Gibson v. Emns (1889) 23 to his -wife is not a publication: Q. B. D. 394, 68 L. J. Q. B. 612. innuendo. '■J-i DEFAMATION. between libel and slander) is often a matter of doubt. In the first place the Court has to be satisfied that they are capable of the defamatory meaning ascribed to them. Whether they are so is a question of law («'). If they are, and if there is some other meaning which they are also capable of, it is a question of fact which meaning they did convey under all the circumstances of the publication in question. An averment by the plaintiff that words not libellous in their ordinary meaning or without a special application were used with a specified libellous meaning or application is called an innuendo, from the old form of pleading. The old cases contain much minute, not to say frivolous, technicality ; but the substance of the doctrine is now reduced to something like what is ex- pressed above. The requirement of an innuendo, where the words are not on the face of them libellous, is not affected by the abolition of forms of pleading. It is a matter of substance, for a plaintiff who sues on words not in themselves libellous, and does not allege in his claim that they conveyed a libellous meaning, and show what that meaning was, has failed to show any cause of action (k). Again, explanation is required if the words have not, for judicial purposes, any received ordinary meaning at all, as being foreign, provincial, or the like (/). This however is not quite the same thing as an innuendo. A libel in a foreign language might need both a translation to show the ordinary meaning of the words, and a distinct (() Capital and Counties Hank v. 21iiltigan v. Cole (1875) L. R. 10 Henty (1882) 7 App. Ca. 741, 52 Q. B. 549, 44 L. J. Q. B. 153 ; for L. J. Q. B. 232, where the law is one on the other side of the line, elaborately discussed; Nerdl v. i^art v. fr«H (1877) 2 C. P. D. 146, Fine Art, ^-c., Insurance Co. [1897] 46 L. J. C. P. 227. A. C. 68, 06 L. J. Q. B. 195. For ,,n a , » ^ -,o ,t :, , ' , . n , , J {!') See 7 App. Ca. 748 Lord a shorter example oi words held, s Ih 1 upon consideration, not to he capable of such a meaning, see (0 Blake Odgers, 119. INNUENDO. "JJU fiirtlier innuendo to show that they bore a special injurious The actionable or innocent character of words depends Libc4lou» not on the intention with which tliey were published, but must be on their actual meaning and tendency when published [m). fn"iaw uml A man is bound to know the natural effect of the languao-e F'ojed in ° _ ° tact. he uses. But where the plaintiff seeks to put an action- able meaning on words by which it is not obviously conveyed, he must make out that the words are capable of that meaning (which is a matter of law) and that they did convey it (which is matter of fact) ; so that he has to convince both the Court and the jury, and will lose his cause if he fail with either (^;). Words are not deemed capable of a particular meaning merely because it might by possibility be attached to them : there must be some- thing in either the context or the circumstances that would suggest the alleged meaning to a reasonable mind (o). In scholastic language it is not enough that the terms should be " patient " of the injurious construction ; they must not only suffer it, but be fairly capable of it. And it is left to the jury, within large limits, to find whether they do convey a serious imputation, or are mere rhetorical or jocular exaggeration (p). The publication is no less the speaker's or writer's own Repeti- act, and none the less makes him answerable, because he reports only repeats what he has heard. Libel may consist in a ^beUous. (m) 7 App. Ca. 768, 782, 790, of. 744 ; Lord Blackburn, ii. 778 ; p. 787. The old cases about words Lord Bramwell, ib. 792, "I think alleo-ed to be spoken in jest are that the defamer is he who, of covered by this wider principle. many inferences, chooses a defama- tory one." («) Lord Blackburn, 7 App. Ca. ^^^ Australian Newspaper Co. v. 776. Meimelt [1894] A. C. 284, 63 L. J. (o) Lord Selbome, 7 App. Ca. P. C. 105. -■5G DEFAMATIOX. fair report of statements whicli were actually made, and on an occasion which then and there justified the original speaker in making them {q) ; slander in the repetition of a rumour merely as a rumour, and without expressing any belief in its truth (r). "A man may wrongfully aod maliciously repeat that which another person may have uttered upon a justifiable occasion," and " as great an injury may accrue from the wrongful repetition as from the first publication of slander ; the first utterer may have been a person insane or of bad character. The person who repeats it gives greater weight to the slander" (.s). Cir- cumstances of this kind may count for much in assessing damages, but they count for nothing towards determining whether the defendant is liable at all. Erom this principle it follows, as regards spoken Avords, that if A. speak of Z. words actionable only with special damage, and B. repeat them, and special damage ensue from the repetition only, Z. shall have an action r gainst B., but not against A. (/). As to the defendant's belief in the truth of the matter published or republished by him, that may affect the damages but cannot affect the liability. Grood faith occurs as a material legal element only when we come to the exceptions from the general law tliat a man utters defamatory matter at his own peril. {q) Pitreell v. Sowler (1877) 2 C. P. The latter part of the 4th Reso- Div. 215, 4G L. J. 0. P. 303. lutiou reported in the i:ai-l of (r) Watkm v. Sail (1868) L. E. Northampton's case, 12 Co. Rep. 134, 3 Q. B. 396, 37 L. J. Q. B. 125. i^ not laT,v. See per Parke J., 10 ,^T•ii,Jl T ir 7); B. &C. atp. 275, 34E. R. atp. 407. (,s) Littledale J., JlcFherson v. r i r 7)niiieh (1829) 10 B. & C. 263, 273, {t) See Tarhns y. Scott (1852) 34 R. R. 397, 405, adopted by 1 PI. & C. 153, 31 L. J. E.'c. 331, Blackburn J., L. R. 3 Q. B. 400. p. 243, above. FAIR COMMENT. -57 3. — Exceptions. ■VT7- • Excep- VVe now haye to mention tlie conditions which tions: fair exclude, if present, liability for words apparently in- jurious to reputation. Nothing is a libel which is a fair comment on a subject fairly open to public discussion. This is a rale of common right, not of allowance to persons in any particular situation (k), and it seems not correct (with all deference to recent ditta) to speak of utterances pro- tected by it as being privileged. A man is no more privile(jcd to make fair comments in public on the public conduct of others than to compete fairly with them in trade, or to build on his own land so as to darken their newly-made windows. There is not a cause of action with an excuse, but no cause of action at all. " The question is not whether the article is privileged, but whether it is a libel " {x). This is the received doctrine of Campbell v. Spoil iswoode (i/), confirmed by the Court of Appeal in Merlrale v. Carson (z). On the other hand, the honesty of the critic's belief or motive is no defence. The right is to publish such comment as in the opinion of impartial bystanders, as represented by the jury, may fairly arise out of the matter in hand; though jurymen are not free to find that a criticism is not fair merely because they do not agree with it («). Whatever goes [it] SeeperBowenL. 3 .,.Vericale [y) 3B. & S. 769, 32 L. J. Q. B. V. Carson (1887) 20 Q. B. Div. at 183 (1863). P- ^^^- ^ „ (z) (1887) 20 Q. B. Div. 275, 58 (x) Lord Esher M. K., 20 Q. B. j ^ '^ ' ,. . . ' 'I ^ ' T ■■ ^ ,,- 7 ^- ^- ^31> aisag-reemg with the Div.atp.2S0. Lord Collins, how- ^^.^.^^ expressed in Hcnuood v. ever, said quite lately, as Master of j^„,.,,;^„„_ ^^^^^ ^^^^ ^^j^^^ the Rolls, that the word privilege is as good as any other : Thomas y. {i) JfcQiiire v. Western Morning Bradbury, Agnew # Co. [1906] 2 ^"\>"« Co. [1903] 2 K. B. 100, 72 K. B. 627, 641, 75 L. J. K. B. 726. ^- J- K. B. 612, C. A. P. — T. S -58 DEFAMATION. beyond this, even if well meant, is libellous. The courts have, perhaps purposely, not fixed any standard of " fair criticism" (b). One test very commonlj- applicable is the distinction between action and motive. Public acts and performances may be freely censured as to their merits or probable consequences, but wicked or dishonest motives must not be imputed upon mere surmise. Such imputa- tions, even if honestly made, are wrongful, unless there is in fact good cause for them. " Where a person has done or published anything which may fairly be said to have invited comment .... every one has a right to make a fair and proper comment ; and as long as he keeps within that limit, what he writes is not a libel ; but that is not a privilege at all ... . Honest belief may fre- quently be an element which the jury may take into consideration in considering whether or not an alleged libel was in excess of a fair comment ; but it cannot in itself prevent the matter being libellous " (c). The case of a criticism fair in itself being proved to be due to unfair motives in the person making it might be thought on principle to fall within the general rule that the law will not examine the motive of an act done in exercise of a common right. But the Court of Appeal has held that extrinsic evidence of unfair motive is ad- missible {n the whole the present Court of Appeal, though bound by the actual decisions of its predecessors, appears to hold a view barely compatible with them, and we must wait for the House of Lords to tell us finally which view shall prevail (g) . One could wish that Blackburn and Willes had been able to consider the point together in the Exchequer Chamber. Their agreement would have been conclusive, or their difference more instructive than their detached opinions. If) See L. Q. E. xxiii. 5, 97. seems to have no difficulty in hold- It is true that in 1872 the majority ing with Blackburn and Bowen, of the Court of C. P. treated fair against Willes and Lord CoUms, comment as a branch of privilege : that the distinction is clear. A Henu-ood v. JInrrixon, L. R. 7 C. P. defendant setting up privilege as- •606 41 L. J. C. P. 206. But serts that he is protected by stand- Camphell v. Spotlisu-oode -svas not ing in a special relation to the facts brouo-ht to their attention. No of the case: but "Wlien his defence •q aestion of malice was before them, is fair comment, he asserts that he liiit in effect, only whether the has done only what every one has a matter criticized was open to public right to do " • Burdick on Torts, comment. If the defence of fair 331. For judicial following of the comment were wholly assimilated doctrine in Scmvood v. Harrison to that of privilege, the result one must go, it would appear, as would be to make the law more far as South Dakota. To the same favourable to defendants. effect Street, Foundations of ((?) Learned American opinion Legal Liability, i. 303. s2 260 DEFAMATION. What is open to comment, matter of law. What acts and conduct are open to public comment is a question for the Court, but one of judicial common sense rather than of technical definition. Subject-matter of this kind may be broadly classed under two types. The matter may be in itself of interest to the common weal, as the conduct of persons in public offices or affairs [h), of those in authority, whether imperial or local [i), in the administration of the law, of the managers- of public institutions in the affairs of those institutions, and the like. Or it may be laid open to the public by the voluntary act of the person concerned. The writer of a book offered for sale (/r), the composer of music publicly performed, the author of a work of art publicly exhibited, the manager of a public entertainment, and all who appear as performers therein, the propounder of an invention or discovery publicly described with his consent, are all deemed to submit their work to public opinion, and must take the risks of fair criticism ; which criticism, being itself a public act, is in like manner open to reply within commensurate limits. Whether comment is fair, matter of fact (if libellous oonstruc- tion pos- sible). What is actually fair criticism is a question of fact, provided the words are capable of being understood in a sense bej'ond the fair (that is, honest) expression of an unfavourable opinion, however strong, on that which the (/() Including the conduct at a public meeting of persons who attend it as private citizens : Davis V. Dumcm (1S74) L. R. 9 C. P. 396, 13 L. J. C. P. 185. A clergyman is a public officer, or at any rate the conduct of pubbe worship and whatever is incidental thereto is matter of public interest : EeUij v. T.nliiig (1866) L. E. 1 Q. B. 699, 35 L. J. Q. B. 940, cp. Kelly v. Sherlock (1866) L. E. 1 Q. B. at p. 689, 35 L. J. Q. B. 209. (J) Fiircrll V. Sowler. 2 C. P. Div. 215, 46 L. J. C. P. 308. (k) As to the preacher of a sermon not printed, quT-re : Gathercolcx. Miall (1846) 15 M. & W. 319, 71 E. E. 679. JUSTIFICATION BY TRUTH. 261 plaintiff has submitted to tlie public : this is only an application of the wider principle above stated as to the construction of a supposed libel (/). In literary and artistic usage criticism is hardly allowed to be fair which does not show competent intelligence of the subject- matter. Courts of justice have not the means of applying so iine a test. The right of fair criticism will, of course, not cover untrue statements concerning alleged specific acts of mis- conduct {m), or pmporting to describe the actual contents of the work being criticised {») . Thus a wholly gratuitous charge or suggestion of plagiarism would not be fair comment (o). Defamation is not actionable if the defendant shows Justifioa- that the defamatory matter was true ; and if it was so, ground of the purpose or motive with which it was published is "^^ • irrelevant. For although in the current phrase the statement of matter "true in substance and in fact" is said to be justified, this is not because any merit is attached by the law to the disclosure of all truth in season and out of season (indeed it may be a criminal offence), but because of the demerit attaching to the plaintiff if the imputation is true, whereby he is deemed to have no ground of complaint for the fact being com- municated to his neighbours. It is not that uttering truth always carries its own justification, but that the law bars the other party of redress which he does not (Z) Mnii-alc v. Carson (1887) 20 App. Ca.l87, 55L. J. P.C.ol, J. C. Q. B. Div. 275, 58 L. T. 331 ; {«) Mcrivnie v. Carson (1878) 20 Jenner v. A' Beckett (1871) L. R. 7 Q. B. Div. 275, 58 L. T. 331. Q. B. 11, 41 L. J. Q. B. 14. Qu. (o) PerVaiighan Williams L. J., ■whether the dissenting judgment Joynt v. Cycle Trade Publishinn Co. of Lush J. wasnotright. [1904]2K:.B.292,297,73L. J.K. B. (m) Davis v. Shepstone (1886) 11 752. 262 DEFAMATION. deserve. Thus the old rule is explained, that where truth is relied on for justification, it must be specially pleaded ; the cause of action was confessed, but the special matter avoided the plaintiff's right (j?). "The law will not permit a man to recover damages in respect of an injury to a character which he either does not or ought not to possess" (g). This defence, as authority and experience show, is not a favoured one. To adopt it is to forego the usual advantages of the defending party, and commit oneself to a counter-attack in which only complete success will be profitable, and failure will be disastrous. Must be substan- tially complete. What the defendant has to prove is truth in substance, that is, he must show that the imputation made or repeated by him — not merely the facts on which his- inferences veie founded (r) — was true as a whole and in every material part thereof. He cannot justify part of a statement, and admit liability for part, without distinctly severing that which he justifies from that which he does not (s). What parts of a statement are material, in the sense that their accuracy or inaccuracy makes a sensible difference in the effect of the whole, is a question of fact(0. There may be a fui-ther question whether the matter alleged as justification is sufficient, if proved, to cover the (p) Compare the similar doctrine in trespass, whioli has peculiar con- sequences. But of this in its place. {q) Littledale J., 10 B. & C. at p. 272, 34 R. E. at p. 405. (r) A defence to the effect that the facts were true and the com- ment fair is not a justification, and raises only the question of fair comment : it does not entitle the plaintiff to ask for particulars of the allegations of fact relied on by the defendant: Diffl/i/ v. Financial Neu-s [1907] 1 K. B. 502, 76 L. J. K. B. 321, C. A. (s) Fleming v. Dollar (1889) 23; Q. B. D. 388, 58 L. J. Q. B. 64S. (<) Alexander v. North Eistern R. Co. (1865) 6 B. & S. 340, 34 L. J. Q. B. 152. JUSTIFICATION BY TEUTH. '26'^> whole cause of action arising on the words complained of ; and this appears to be a question of law, save so far as it depends on the fixing of that sense, out of two or more possible ones, which those words actually conveyed. It is a rule of law that one may not justify calling the editor of a journal a "felon editor" by showing that he was once convicted of felony. For a felon is one who has actually committed felony, and who has not ceased to be a felon by full endurance of the sentence of the law, or by a pardon ; not a man erroneously convicted, or one who has been convicted and duly discharged. But it may be for a jury to say whether calling a man a "convicted felon" imputed the quality of felony gene- rally, or only conveyed the fact that at some time he was convicted {ii). Where the libel charges a criminal offence with circumstances of moral aggravation, it is not a siifScient justification to aver the committing of the off'ence without those circumstances, though in law they may be irrelevant, or relevant only as evidence of some element or condition of the offence (x) . The limits of the authority which the Court will exercise over juries in handling questions of " mixed fact and law " must be admitted to be hard to define in this and other branches of the law of defamation. Apparently it would make no difference in law that the Defen- defendant had made a defamatory statement without any belief im- belief in its truth, if it turned out afterwards to have ™**erml. been true when made; as, conversely, it is certain that the most honest and even reasonable belief is of itself no justification. Costs, however, are now in the discretion of the Court. («) Leyman v. Latimer (1878) 3 {,x) Helsham v. Blackwood (1851) Ex. Div. 352, 47 L. J. Ex. 470. 11 C. B. 128, 20 L. J. C. P. 187, 87 R. K. 596, a very curious case. 26 i DEFAMATION. Immucily In Older that public duties may be discharged without >.i-rs of fear, unqualified protection is given to language used in menriind ^^'^ exercise of parliamentary and judicial functions. A judges. member of Parliament cannot be lawfully molested out- side Parliament by civil action, or otherwise, on account of anything said by him in his place in either House {i/). An action will not lie against a judge for any words used by him in his judicial capacity in a court of justice (z). It is not open to discussion whether the words were or were not in the nature of fair comment on the matter in hand, or otherwise relevant or proper, or whether or not they were used in good faith. Other ^ Parties, advocates, and witnesses in a court of justice judicial are under the like protection. They are subject to the In™™*^' " authority of the Court itself, but whatever they say in the com'se of the proceedings and with reference to the matter in hand is exempt from question elsewhere. It is not slander for a prisoner's counsel to make insinuations against the prosecutor, which might, if true, explain some of the facts proved, however gross and unfounded those insinuations may be («) ; nor for a witness after his cross- examination to volunteer a statement of opinion by way of vindicating his credit, which involves a criminal accusation against a person wholly unconnected with the (j/) St. 4 Hen. VIII. u. 8 (Pro acts, see the chapter of General Ricardo Strode) ; Bill of Eights, 1 Exceptions above, pp. 116—119, Wm. & M. sess. 2, o. 2, " That the and further illustrations ap. Blake freedome of speech and debates or Odgers, 221 sqq. A magistrate proceedings in Parlyament ought acting judicially is a judge within not to be impeached or questioned this rule : Zmi: v. Llewelh/ii [1906] ia any court or place out of Parlya- 1 K. B. 487, 75 L. J. K. B. 320, ment." C. A. (z) Scott v. Stansfield (1S68) L. (n) Minister v. Lamb (1883) 11 R. 3 Ex. 220, 37 L. J. Ex. Lofi ; Q. B. Div. 58S, where authorities the protection extends to judicial are collected. JUDICIAL PRIVILEGE. ~^>'> case (b). The only limitation is that the words must in some Avay have reference to the inquiry the Court is engaged in. A duly constituted military court of inquiry is for this purpose on the same footing as an ordinary court of justice {<■). So is a select committee of the House of Commons {d). Statements coming within this rule are said to he " ahsolutely privileged." The reason for pre- cluding all discussion of their reasonahleuess or good faith hefore another tribunal is one of public policy, laid down to the same effect in all the authorities. The law does not seek to protect a dishonest witness or a reckless advocate, but deems this a less evil than exposing honest witnesses and advocates to vexatious actions. As to reports made in the course of naval or militarj' Reports of duty, but not with reference to any pending judicial &(.. proceeding, it is doubtful whether they come under this head or that of "qualified privilege." A majoritj^ of the Court of Uueen's Bench has held (against a strong- dissent) , not exactly that they are "absolutely privileged," but that an ordinary court of law will not determine questions of naval or military discipline and duty. Eut the decision is not received as conclusive {c). (i) Seaman v. Nrthmlifl (1876) Q. B. D. 4'J9, 4.') L. J. Q. B. .-.GT. 2 C. P. Div. 53, 46L. J. C. P. 12S. (d) Go{)in v. Jhrnidli, (1881) (i But there is no privilege for those Q. B. D. 307, 50 L. J. Q. B. 30-<. who procure other persons to give A licensing meeting of a. County false and defamatory evidence ; Council is not a Court for this Mice V. Cuhri/lge (1876) 121 Mass. purpose: Soyal Aquarium Societi/ 393, Ames, Sel. Ca. 616. For v. i'«rf-;H,9o« [18S2] 1 Q. B. 431, 61 American views on the main ques- L. J. Q. B. 409, C. A. tion see Ames, op. cit. 438. U') Daukim v. Lord Taulet (1869) (c) Hawkins v. Lnrd Eolcebij L. R. 5 Q. B. 94, 39 L. J. Q. B. (1873-5) Ex. Ch. and H. L., L. R. 53, .see the dissenting judgment of 8 Q. B. 235, 7 H. L. 744, 45 L. J. Cockbum C. J., and the notes of Q. B. 8, fee opinion of judges 7 Sir James Stephen. Dig. Cr. L. H. L. atp. 752; Daw/cim t . Prince art. 276, and Mr. Blake Odgcr.--, Mward of Saxe Weimar (1876) 1 op. cit. 231-2. The reference of 266 DEFAMATION. Communioations relating to affairs of State and made by one officer of State to another in the course of duty are absolutely privileged on the ground of public policy. Moreover, there is the wider rule that documents contain- ing such communications cannot be produced in evidence for any purpose (/') ; unless, of course, they have been published by authority. QualiBed There is an important class of eases in which a middle of "privi- course is taken between the common rule of unqualified leged _ responsibility for one's statements, and the exceptional cations." rules which give, as we have just seen, absolute protection to the kinds of statements covered by them. In many relations of life the law deems it politic and necessary to protect the honest exjDression of opinion concerning the character and merits of persons, to the extent appropriate to the nature of the occasion, but does not deem it necessary to prevent the person affected from showing, if he can, that an unfavourable opinion expressed con- rerning him is not honest. Occasions of this kind are said to be privileged, and communications made in pursuance of the duty or right incident to them are said to be privileged by the occasion. The term " qualified privilege " is often used to mark the requirement of good faith in such cases, in contrast to the cases of " absolute privilege " above mentioned. Fair reports of judicial and parliamentary proceedings are put by the latest authorities in the same category. Such reports must be fair and substantially correct in fact to begin with, and the Judicial Committee to the case customs of China as to official in Hart v. Gnmpaeh (1872) L. R. 4 reports to the Chinese Grovernment. P. C. 439, 464, 4 2 L. J. P. C. 25, (/) Chatterton v. Secretary of is quite neutral. They declined to State for India in Coiwci? [1895] 2 presume that such an "absolute Q. B. 189, 64 L. J. Q. B. 676, privilege " existed by the law and C. A. PEIVILEGED COMMUMCATIONS. '^07 also must not be published from motives of personal ill-will ; and this although the matter reported was " absolutely privileged " as to the original utterance of it. The conditions of immunity may be thus summed Condi- tions of ^P • tlio prlvi- The occasion must be privileged ; and if the defendant °^''' establishes this, he will not be liable unless the plaintiff can prove {(j) that the communication was not honestly made for the purpose of discharging a legal, moral, or social duty, or with a view to the just protection of some private interest or of the public good by giving informa- tion appearing proper to be given, but from some improper motive and without due regard to truth ; in short, that it was malicious. Such proof may consist either in external evidence of personal ill-feeling or disregard of the truth of the matter, or in the manner or terms of the communication, or acts accompanying and giving point to it, being unreasonable and improper, " in excess of the occasion," as we sa.y. It must be remembered that what is called " excess of the occasion" or "excess of privilege" is not a distinct ground for rebutting the defence of privilege, but is only evidence of malice ; if it is not sufficient evidence of that, it is nothing, and a finding that there has been " excess " without a finding that there has been malice is of no effect {h). {g) The burden of proof is not (A) NeviU v. Fine Art, ^c. Iii- ou the defendant to show his good surance Co. [1895] 2 Q. B. 156, 34 faith: Clark T. Molyneux (1877) 3 L. J. Q. B. 681, 0. A. TheH.L. Q. B. Div. 237, 47 L. J. Q. B. dismissed an appeal on the shorter 2bO ; Jenoure v. Belmege [1891] ground that there was no libel at A. C. 73, 60 L. J. P. C. 11, J. C. all, [1897] A. C. 68, 66 L.J. Q.B. This, however, is or ought to be 195. elementary. 268 DEFAMATION. "Expvpss The rule formerly was, and still sometimes is, expressed nicilicG." in an artificial manner derived from the style of pleading at common law. The law, it is said, presumes or implies malice in all cases of defamatory words; this presumption may be re- butted by showing that the words were uttered on a privileged occasion ; but after this the plaintiff may allege and prove express or actual malice, that is, wrong motive. lie need not prove malice in the first instance, because the law presiimes it ; when the presumption is removed, the field is still open to proof. But the " malice in law " which was said to be presumed is not the same as the '■ express malice " which is matter of proof. To have a lawful occasion and abuse it may be as bad as doing harm without any lawful occasion, or worse ; but it is a different thing in substance. It is better to say that where there is a duty, though of imperfeot obligation, or a right, though not answering to any legal duty, to communicate matter of a certain kind, a person acting on that occasion in discharge of the duty or exercise of the right incurs no liability, and the burden of proof is on those who allege that he was not so acting (/) . „. The occasions giving rise to privileged communications privileged may be in matters of legal or social duty, as where a con- fidential report is made to an ofiicial superior, or in the common case of giving a character to a servant ; or the communications may be in the way of self-defence, or thi^ defence of an interest common to those between whom the words or writing pass ; or they may be addressed to persons in public authority with a view to the exercise of their authority for the public good ; they may also be (i) See per Lord Blackburn, 7 App. Ca. 787. occasions. PRIVILEGED COMMUNICATIONS. -^^^ matter published in the ordinary sense of the word for purposes of general information. As to occasions of private duty : the result of the ^t^ral or . . social authorities appears to be that any state of facts making duty, it right in the interests of society for one person to com- municate to another what he believes or has heard regarding any person's conduct or character vi^ill constitute a privileged occasion (k). Answers to confidential inquiries, or to any inquiries made in the course of affairs for a reasonable purpose, are clearly privileged. So are communications made by a person to one to whom it is his especial duty to give information by virtue of a standing relation between them, as by a solicitor to his client about the soundness of a security, by a father to his daughter of full age about the character and standing of a suitor, and the like. Statements made without request and apart from any special relation of confidence may or may not be privileged according to the circumstances ; but it cannot be prudently assumed that they will be (/). The nature of the interest for the sake of which the communication is made (as whether it be public or private, whether it is one touching the preservation of life, honour, or morals, or only matters of ordinary business), the apparent importance and urgencj' of the occasion, and other such points of discretion for which no general rule can be laid down, will all have their weight ; how far any of them will outweigh the general presumption against (/c) See per Blackburn J. in Odgers 247—254. The recent Davies v. Snead (1870) L. R. 5 tendency seems to be rather to Q. B. at p. 611. enlarge than to restrict the scope of social duty : Sluartv. Ilcll[\%) 51 & 52 Vict. 0. 64, s. 3, see Q. B. 517, the C. A. adhered to ^^^^^ ^^^^^^^ 30g^ ^^^ ^^^,j^^, their previous view (17 Q. B. Diy. ^^^^^ ^^^ ^^.^^ ^^^^^^ j^ ^j^„^ ^j^^^ 636, action between same parties) -^ ^ ^^j^ ^^^ ^^^^^^^ ^^^^^^ ^j^^ that a correct report of a judgment ^^^^^ "contemporaneously with ispnTileged. ^^^ proceedings" are, strictly {d)Sayward^Co.^.I[ayward% .peaking, nonsense ; they must Son (1886) 34 Ch. D. 198 ; 56 L. J. ^^^^ ^.^^^ ^ reasonable and ^^- 2^^- usual time after the date of the (.) Williams V. Smith (1888) 22 ge^ings. Q. B. D. 134, 58 L. J. Q. B. 21. (/) Searles v. Scarlett [1892] 2 W Steele Y. Srannan {1872) h K. Q. B. 56, 61 L. J. Q. B. 573, C. A., 7 C. P. 261 (a criminal case) ; 51 & where the publication was expressly ^^ Vict. c. 64, s. 3. P. T. T 374 DEFAMATION. proceedings of which the publication is forbidden by the Court in which they took place. The burden of proof is on the defendant to show that the report is fair and accurate. But if it really is so, the plaintiff's own evidence will often prove that the facts happened as reported («). Volun- An ordinary newspaper report furnished by a regular tGGrod reports, reporter is all but conclusively presumed, if in fact fair and substantially correct, to have been published in good faith ; but an outsider who sends to a public print even a fair report of judicial proceedings containing personal imputations invites the question whether he sent it honestly for purposes of information, or from a motive of personal hostility ; if the latter is found to be the fact, he is liable to an action (7i). Newspaper reports of public meetings and of meetings of vestries, town councils, and other local authorities, and of their committees, of royal or parliamentary commis- sions, and of select committees, are privileged under the Law of Libel Amendment Act, 1888 (l). A public meeting is for this purpose " any meeting bona fide and lawfully held for a lawful purpose, and for the further- ance or discussion of any matter of public concern, whether the admission thereto be general or restricted." The defendant must not have refused on request to insert in the same newspaper a reasonable contradiction or explanation. Moreover "the publication of any matter not of public concern, and the publication of which is not for the public benefit," is not protected (m). (i) Kimier v. Press Association (V) 51 & 62 Vict. c. 64, s. 4. As [1893] 1 Q. B. 65, 62 L. J. Q. B. to boards of guardians, see Pitlard 152, C. A. T. Oliver [1891] 1 Q. B. 474, 60 {k) Stevens \. Sampson (1879) 5 L. J. Q.B. 219, 0. A. Ex. Div. 53, 49 L. J. Q. B. 120. (m) 51 & 52 Vict. i;. 64, s. 4. In PRIVILEGE. '-ill) In the case of privileged comraunications of a con- Excess of fidential kind, the failure to use ordinary means of ° ' ensuring privacy — as if the matter is sent on a post- card {n) instead of in a sealed letter, or telegraphed without evident necessity — will destroy the privilege ; either as evidence of malice, or because it constitutes a publication to persons in respect of whom there was not any privilege at all. The latter view seems on principle the better one (o). But the privilege of a person making a statement as matter of public dut}' at a meeting of a public body is not affected by unprivileged persons being present who are not there at his individual request or desire, or in any way under his individual control, though they may not have any strict right to be there, newspaper reporters for example (7^). It is now decided that if a communication intended to be made on a privileged occasion is by the sender's ignorance (as by making it to persons whom he thinks to have some duty or interest in the matter, but who have none), or mere negligence (as by putting letters in wrong envelopes) deKvered to a person who is a stranger to that occasion, the sender has not any benefit of privilege (q). Where the existence of a privileged occasion is estab- Honest lished, we have seen that the plaintiff must give affirmative not neces- a civil action on whom is the burden as to writing on a post-card in a of proof as to this? Qu. would more or less generally understood "and" be read, if necessary, as foreign tongue. '■or"P See Blake Odgers, 316. (0) jrUUamson v. Freer (1874) («) Provided that the post-card L. E. 9 C. P. 393, 43 L. J. C. P. conveys on the face of it a meaning 161. defamatory to the plaintiff. Other- (p) Fittard v. Oliver [1891] 1 wise if the reference to him is Q. B. 474, 60L. J. Q. B. 219, C. A. intelligible only to the addressee. (?) Sebditch v. Muollwaine [1894] Sadgrove v. BoU [1901] 2 K. B. 1, 2 Q. B. 54, 63 L. J. Q. B. 587, 70 L. J. K. B. 455, C. A. Quare C. A. t2 2^6 DEFAMATION. sarily proof of malice, that is, dishonest or reckless ill-will (r), reasonable . _ . belief. m order to succeed, it is not for the defendant to prove that his belief was founded on reasonable grounds, and there is no difference in this respect between different kinds of privileged communication (.s). To constitute malice there must be something more than the absence of reasonable ground for belief in the matter communicated. That may be evidence of reckless disregard of truth, but is not always even such evidence. A man may be honest and yet unreasonably credulous ; or it may be proper for him to communicate reports or suspicions which he him- self does not believe. In either case he is within the protection of the rule {t) . It has been found difficult to impress this distinction upon jmies, and the involved language of the authorities about "implied "and "ex- press " malice has, no doubt, added to the difficulty. The result is that the power of the Court to withhold a case from the jury on the ground of a total want of evidence has on this point been carried very far (li). In theory, however, the relation of the Court to the jury is the same as in other questions of " mixed fact and law." Similar difficulties have been felt in the law of Negligence, as we shall see under that head. (r) A statement made recklessly («) Clark v. Molyneux (1877) 3 under the influence of e.g. gross Q. B. Div. 237, 47 L. J. Q. B. 230, prejudice against the plaintiff's per Bramwell L. J. 3 Q. B. Div. occupation in general, though with- at p. 244; per Brett L. J. at out any personal hostility towards pp. 247-248 ; per Cotton L. J. at liim, may be malicious : Eoyal p. 249. Aquarium Society v. Parkinson / , t , -„. , ,. „ [1892] 1 Q. B. 431, 61 L. J. Q. B. i"\/^"* T' ^'1°^ "n f/ inq P A "' " (1872) L. E. 4 P. C. 495, ' 42 L. J. P. C. 11, and authorities (s) Jenoure v. Dchmge [1891] tj^ere cited; Spill v. Maule (1869) A. C. 73, 60 L. J. P. C. 11 (J. C), Ex. Oh. L. R. 4 Ex. 232, 38 L. J. Clark V. Molyneux (1877) 3 Q. B. jjx. 138 Div. 237, 47 L. J. Q. B. 230. ASSESSMENT OF DAMAGES. ~ I ' " The spirit and intention of the party are fit to be Power of considered by a jury in estimating the injury done to the issessino- plaintiff ; " and evidence of this is admissible, notwith- ). Denton v. Again, the current time-table of a railway company is l'^' ' ' a representation to persons meaning to travel by the com- pany's trains that the company will use reasonable diligence to despatch trains at or about the stated times for the stated places. If a train which has been taken o£E is announced as still running, this is a false representation,. and (belief in its truth on the part of the company's servants being out of the question) a person who by relying on it has missed an appointment and incurred loss may (A) Polhill V. Walter {183'2) 3 more recent doctrine of implied B. &. Ad. 114, 37 R. R. 344. The warranty was then unknown. DECEIT BY PUBLIC KEPRESENTATIONS. 297 liave an action for deceit against the company («'). Hero there is no fraudulent intention. The default is really a negligent omission ; a page of the tables should have been cancelled, or an erratum-slip added. And the negligence could hardly be called gross, but for the manifest import- ance to the public of accuracy in these announcements. Again, the prospectus of a new company, so far forth Teei; v. as it alleges matters of fact concerning the position and "^^' prospects of the undertaking, is a representation addressed to all persons who may apply for shares in the company ; but it is not deemed to be addressed to persons who after the establishment of the company become purchasers of shares at one or more removes from the original holders (/i-), for the ofBce of the prospectus is exhausted when once the shares are allotted. As regards those to whom it is addressed, it matters not whether the promoters wilfully use misleading language or not, or do or do not expect that the undertaking will ultimately be successful. The material question is, " Was there or was there not {') So Leld unanimously in who puts forth by iuadvertence a Denton v. G. X. R. Co. (1856) 5 statement contrary to facts which E. & B. 850, 25 L. J. Q. B. 129. he knows is hardly fraudulent in Lord Campbell C. J., and AVight- the sense of those decisions. It man J., held [dubit. Crompton J.) would be fraud if he persisted in that there was also a cause of action the statement after having his in contract. The difficulty often attention called to it. felt about maintaining an action (/,;) Fcekv. Giiniey (1873) L. K. for deceit against a corporation does 6 H. L. 377, 400, 411, 43 L. J. Ch. not seem to have occurred to any 19. But this does not exempt pro- member of the Court. It is of meters or directors from liability if course open to argument that as to they make active use of a fraudulent the cause of action in tort this case prospectus, at all events coupled is overruled by Berry v. Feel:, 14 with new false and fraudulent App. Ca. 337, 58 L. J. Ch. 864; statements, to induce persons to and Low v. Bomerie [1891] 3 Cb. buy shares: Andrcios v. Mockfnnl 82, 60 L. J. Ch. 594, seems to [I89fi] 1 Q. B. 372, 65 L. J. Q. B. point in the same direction. A man 302, C. A. .^98 WKONGS OF FEAUD, BAD FAITH, AND OPPRESSION. Eelianee on the represen- tation. misrepresentation in point of fact ?"(/). Innocent or benevolent motives do not justify an unlawful intention in law, though they are too often allowed to do so in jDopular morality. (d) As to the plaintiff's action on the faith of the defendant's representation. A. by words or acts represents to B. that a certain state of things exists, in order to induce B. to act in a certain way. The simplest case is where B., relying wholly on A.'s statement, and having no other source of information, acts in the manner contemplated. This needs no further comment. The case of B. disbelieving and rejecting A.'s assertion is equally simple. Another case is that A.'s representation is never com- municated to B. liere, though A. may have intended to deceive B., it is plain that he has not deceived him ; and an unsuccessful attempt to deceive, however unrighteous it may be, does not cause damage, and is not an actionable wrong. A fraudulent seller of defective goods who patches up a flaw for the pui'pose of deceiving an inspection cannot be said to have thereby deceived a buyer who omits to make any inspection at all. We should say this was an obvious proposition, if it had not been judicially doubted {m). The buyer may be protected by a condition or warranty, express or implied by law from the nature of the particular transaction ; but he cannot complain of a merely potential fraud directed against precautions (?) Lord Cairns, L. E. 6 H. L. at p. 400. Cp. per Lord Blackburn, Smith V. Ckadwick, 9 App. Ca. at p. 201 ; Lord Herschell, Drrry v. reek, 14 App. Ca. at pp. .365, 371. (hi) Borffall v. Thomas (1862) 1 H. & C. 90, 31 L. J. Ex. 322, a case of contract, so that a fortiori an action for deceit would not lie ; dissented from by Cockbum C. J., L. E. 6 Q. B. at p. 605. The case "was a peculiar one, but could not have been otherwise decided. DECEIT : KNOWLEDGE OR INQUIRY. 29U \vhich he did not use. A false witness who is in i-eadiness but is not called is a bad man, but he does not commit perjury. Yet another case is that the plaintiff has at hand the Means of means of testing the defendant's statement, indicated by ledo-o im- the defendant himself, or otherwise withiu the plaintiff's ™itiio,'it; 1 lower, and either does not use them or uses them in a artual m- ilependent partial and imperfect manner. Here it seems plausible inquiry. at first sight to contend that a man who does not ust; obvious means of verifying the representations made to him does not deserve to be compensated for any loss he may incur by relying on them without inquiry. But the ground of this kind of redress is not the merit of the plaintiff, but the demerit of the defendant : and it is now settled law that one who chooses to make positive assertions without warrant shall not excuse himself by saying that the other party need not have relied upon them. He must show that his representation was not in fact relied upon. In the same spirit it is now understood (as we shall see in due place) that the defence of contri- butory negligence does not mean that the plaintiff is to be punished for his want of caution, but that an act or default of his own, and not the negligence of the defen- dant, was the approximate cause of his damage. If the seller of a business fraudulently overstates the amount of the business and returns, and thereby obtains an excessivi! price, he is liable to an action for deceit at the suit of the buyer, although the books were accessible to the buyer before the sale was concluded (n). And the same principle applies as long as the party Perfuno- substantially puts his trust in the representation made quh'y^viii to him, even if he does use some observation of his own. "°* ''"• (») Dobell T. .Stevens (1825) 3 B. & C. 623, 27 R. R. 441. 300 WRONGS OP FRAUD, BAD FAITH, AND OPPRESSION. A cursory view of a house asserted by the vendor to be in good repair does not preclude the purchaser from complaining of substantial defects in repair which he afterwards discovers. " The purchaser is induced to make- a less accurate examination by the representation, which he had a right to believe" (o). The buyer of a business is not deprived of redress for misrepresentation of the amount of profits, because he has seen or held in his hand a bundle of papers alleged to contain the entries showing those profits {p) . An original shareholder in a company who was induced to apply for his shares by exaggerated and untrue statements in the prospectus is not less entitled to relief because facts negativing those statements are disclosed by documents referred to in the prospectus, which he might have seen by applying at the company's office {q) . Even an express undertaking by a contracting party to verify all representations for himself is construed, if possible, as intended only to cover honest mistakes ; and if it went farther it would probably not be binding {qq). In short, nothing will excuse a culpable misrepresen- tation short of proof that it was not relied on, either because the other party knew the truth, or because he relied wholly on his own investigation, or because the alleged fact did not influence his action at all. And the burden of this proof is on the person who has been proved guilty of material misrepresentation (r). He may (o) Tlyer v. Bargrave (1805) 10 36 L. J. Ch. 849, per Lord Chelms- Ves. at p. 510, 8 R. R. 39 (cross ford. A case of this kind alone suits for specific performance and would not prove the rule as a compensation). general one, promoters of a com- (p) Redgrave v. Tlurd (1881) 20 Ch. pany being under a special duty of Div. 1, 61 L. J. Ch. 113 (action for full disclosure. specific performance, counterclaim {f}q) S. Pearson ^' Son v. Dublin for rescission and damages). Corporation [1907] A. C. 351, 365. {/]) Central R. Co. of Venezuela v. {»•) See especially per Jessel Kisch (1867) L. R. 2 H. L. 99, 120, M. R., 20 Ch. Div. 21. FALSE GUARANTIES. yoi prove any of these things if he can. It is not an ahsolute proposition of the law that one who, having a certain allegation before him, acts as belief in that allegation would naturally induce a man to act, is deemed to have acted on the faith of that allegation. It is an inference of fact, and may be excluded by contrary proof. But the inference is often irresistible («). DifBculties may arise on the construction of the state- Ambigu- ment alleged to be deceitful. Of course a man is nJ^ents. responsible for the obvious meaning of his assertions, but where the meaning is obscure it is for the party complaining to show that he relied upon the words in a sense in which they were false and misleading, and of which they were fairly capable {t) . As most persons take the first construction of obscure words which happens to strike them for the obviously right and only reasonable construction, there must always be room for perplexity in questions of this kind. Even judicial minds will differ widely upon such points, after full discussion and con- sideration of the various constructions proposed (u). (e) It has already been observed in general that a false Lord Ten- representation may at the 'same time be a promise or term ^gt"^" ^ of a contract. In particular it may be such as to amount to, or to be in the nature of, a guaranty. Now by the Statute of Frauds a guaranty cannot be sued on as a promise unless it is in writing and signed by the party to be charged or his agent. If an oral guaranty could be {s) See per Lord Blackburn, FryJ. and Lord Bramwell decidedly Smith T. Chadwick, 9 App. Ca. at adopted one construction of a par- p 196. ticular statement ; Lindley L. J. {t) Smith V. Chadwick (1884) 9 the same, though less decidedly, App. Ca. 187, 63 L. J. Ch. 873, and Cotton L. J. another, -while especiallyLordBlackbum'sopinion. Jessel M. R., Lord Selborne, Lord (w) In the case last cited (1881-2) Blackburn, and Lord "Watson (Fry J., and C. A. 20 Ch. Div. 27), thought it ambiguous. 302 sued on in tort- by treating it as a fraudulent afBrmation instead of a promise, the statute miglit be largely evaded. Sucb actions, in fact, were a novelty a century and a quarter after the statute had been passed (,?), much less were they foreseen at the time. It was pointed out, after the modern action for deceit was established, that the jurisdiction thus created was of dangerous latitude (y) ; and, at the time when the parties could not be witnesses in a court of common law, the objection had much force. By Lord Tenterden's Act, as it is commonly called (s), the following provision was made : — " No action shall be brought whereby to charge any person upon or by reason of any representation or assur- ance made or given concerning or relating to the character, conduct, credit, ability, trade, or dealings of any other person, to the intent or purpose that such other person may obtain credit, money, or goods upon {a), unless such representation or assurance be made in writing, signed by the party to be charged therewith." This is something more stringent than the Statute of Frauds, for nothing is said, as in that statute, about the signature of a person " thereunto lawfully authorized," and it has been decided that signature by an agent will not do (b). Some doubt exists whether the word "ability" (j) Seethe dissenting judgment upon credit:" see Lydex. Barnard of Grose J. in Fasley v. Freeman (1836) 1 M. & W. 101, 46 R. E. (1789) 3T. R. 51, IR. K. 63i, 636, 269, 282, per Parke B. Other and 2 Sm. L. C. conjectural emendations are sug- iy) By Lord Eldon in Evans \. gested in his jiidgment and that of JiickneU {l?,Ql) 6 Ves. 174, 182, 186, Lord Abinger. .5 R. R. 245, 251, 255. (i) Saift v. Jewsbury (1874) Ex, (z) 9 Geo. IV. c. 14, o. 6. Ch. L. R. 9 Q. B. 301, 43 L. J. (ff) Sie. It is believed that the Q. B. 56. This extends to the case ■word "credit" was accidentally of a, corporation: Slrst v. TTest transposed, so that the true reading Hiding Union Banlciiuj Co. [1901] 2 would be " obtain money or goods K. B. 560, 70 L. J. K. B. 828, C. A. FKAUD BY OR THROUGH AGENT. •!"•"' does or does not extend the enactment to cases where the representation is not in the nature of a guaranty at all, but an affirmation about some specific circum- stance in a person's affairs. The better opinion seems to be that only statements really going to an assurance of personal credit are within the statute (c). Such a statement is not the less within it, however, because it includes the allegation of a specific collateral circumstance as a reason (- ^ ' 304 WRONGS OF FRAUD, BAD FAITH, AND OPPRESSION. authorizes tlie making of it. Here tlie principal is clearly liable ; the agent is or is not liable according as he does not or does himself believe the representation to be true. The principal knows the contrary of the representation to be true, and it is made by the agent in the general course of his employment but without specific authority. Here, if the agent does not believe his representation to be true, he commits a fraud in the cause of his employ- ment and for the principal's purposes, and, according to the general rule of liability for the acts and defaults of an agent, the principal is liable ((/). If the agent does believe the representation to be true, there is a difficulty ; for the agent has not done any wrong and the principal has not authorized any. Yet the other party's damage is the same. That he may rescind the contract, if he has been misled into a contract, may now be taken as settled law (//). But what if there was not any contract, or rescission has become impossible ? Has he a distinct ground of action, and if so, how ? Shall we say that the agent had apparent authority to pledge the belief of his principal, and therefore the principal is liable ? in other words, that the principal holds out the agent as having not only authority but sufficient informa- tion to enable third persons to deal with the agent as they would with the principal ? Or shall we say, less artificially, that it is gross negligence to withhold from the agent information so material that for want of it he (ff) Parke B., 6 M. & W. 373, 55 reckless: what was actually decided R. R. 661. was that it was misdirection to (/() See Principles of Contract, tell the jury without qualification 7th ed. 671. In Cornfoot v. Foicke "that the representation made by (1840) 6 M. & "W. 358, 55 E. E. the agent must have the same effect 655, it is difficult to suppose that as as if made by the plaintiff him- a matter of fact the agent's asser- self : " the defendant's plea aver- tion can have been otherwise than ring fraud without quaUflcation. FKA.UD BY OR THROUGH AGENT. 305 is likely to mislead third persons dealing witli the prin- cipal througli him, and such negligence is justly deemed equivalent to fraud? Such a thing may certainly be done with fraudulent purpose, in the hope that the agent will, by a statement imperfect or erroneous in that very particular, though not so to his knowledge, deceive the other party. Now this would beyond question be actual fraud in the principal, with the ordinary consequences (/). If the same thing happens by inadvertence, it seems in- convenient to treat such inadvertence as venial, or exempt it from the like consequences. We think, therefore, that an action lies against the principal ; whether properly to be described, under common law forms of pleading, as an action for deceit, or as an analogous but special action on the case, there is no occasion to consider (k) . On the other hand an honest and prudent agent may say, " To the best of my own belief such and such is the case," adding in express terms or by other clear indication — " but I have no information from my principal." Here there is no ground for complaint, the other party being fairly put on inquiry. If the principal does not expressly authorize the repre- Liability sentation, and does not know the contrary to be true, °^ti°ns"" but the agent does, the representation being in a matter herein, within the general scope of his authority, the principal is liable as he would be for any other wrongful act of an agent about his business. And as this liability is not (J) Admitted by all the Barons in {/c) The decision of the House of Cornfoot v. FowTce ; Parke, 6 M. & Lords in Derry v. Peek (1889) U W. at pp. 362, 374 (56 R. R. 662), App. Ca. 337, 58 L. J. Ch. 864, Rolfe at p. 370 (55 R. R. 659), may be thought to make this Aldersou at p. 372 (55 R. R. 660). opinion less probable; but see per The broader view of Lord Abinger's Lord Halsbury in I- L. R. 4 Cal. S83. mahcious proceedings. As to (/■:) Metropolitan Bank \. Eooley issuing execution for the full (1885) 10 App. Ca. 210, 54 L. J. amount of a judgment partly Q. B. 449. CONSPIRACY, ETC. '^19 but certainly such an action does not lie without actual damage (/). The explanation of malice as " improper and indirect motive " appears to have been introduced by the judges of the King's Bench about seventy years ago. But " motive " is perhaps not a much clearer term. " A wish to injure the party rather than to vindicate the law" would be more intelligible {//i) . IV. — Conspiracy/ ; Procurcnipnt of Wrongs. The modern action for malicious prosecution has taken Conspi- the place of the old writ of conspiracy and the action on the case grounded thereon (x), out of which it seems to have developed. It was long doubtful whether con- spiracj' is known to the law as a substantive wrong, or in other words whether two or more persons can ever be joint wrong-doers, and liable to an action as such, by doing in execution of a previous agreement something it wouldj not have been unlawful for them to do without such agreement. There is now a distinct decision in the negative (o), open indeed to discussion in the Court of Appeal. But it was already settled for practical purposes that the conspiracy or " confederation " is only matter of inducement or evidence [p). " As a rule it is the damage wrongfully done, and not the conspiracy, that is the gist {[) Cotterell v. Jones (1851) 11 foUowiDg Kearneij v. Lhyd (1890) C. B. 713, 21 L. J. C. P. 2. Why 26 L. E. Ir. 268. But it has been is it not a form of maintenance ? observed by very high authority (m) Stephen (Sir Herbert) on tl»at " It is difficult to draw any Malicious Prosecution, 36—39, see satisfactory conclusion from this especially at p. 37. ''*^®> ^^ *^^ most material facts are not stated": Lord Lindley in <2mj«" («) F. N. B. 114 D. sqq. ^ ^^^^;^^,^ I-J90J-J ^ ^ ^gg^ ^^^_ (o) Suttley v. Simmons [1898] 1 [p) Mogul Steamship Company y. a. B. 181, 67 L. J. Q. B. 213, M'Gregor [1892] A. 0. 26. ;)20 WEONGS OF FRAUD, BAD FAITH, AND OPPRESSION. of actions on the case for conspiracy" (q). "In all such cases it will be found that there existed either an ultiruate object of malice or wrong, or wrongful means of execution involving elements of injury to the public, or at least negativing the pursuit of a lawful object " (r). Either the wrongful acts by which the plaintiff has suffered were such as one person could not commit alone (s), say a riot, or wrongful intention, if material, was proved, and damages aggravated, by showing that they were done in execution of a concerted design. In the singular case of Gregory v. Du7;e of Brumu-ick (t) the action was in effect for hissing the plaintiff off the stage of a theatre in pur- suance of a malicious conspiracy between the defendants. The Court were of opinion that in point of law the con- spiracy could be material only as evidence of malice (ii) {q) Bowen L. J. in S. C. in C. A. (1889)23Q.B.Div.atp. 616. Cp. Maule J.'s interlocutory question in Cotterell v. Joni.s, note [{) above, 11 C. B. at p. 723, 87 R. R. at p. 762 : "Is there an instance of an action against two or more for a, conspiracy to do, and doing, a thing which would not be actionable if done by one?" (r) Lord Field [1892] A. C. at p. 62. (s) "There are some forms of injury which can only be effected by the combination of many [persons]:" Lord Hanneu [1892] A. C. at p. 60. [t) 6 Man. & Gr. 20.5, 953, 64 R. E. 759, 897 (1844). The defen- dants justified in a plea which has the merit of being amusing. Being a plea in justification, it admitted a cause of action ; it was held bad because it avoided part only, and neither confessed nor avoided the rest. Therefore the question whether conspiracy is of itself a. civil cause of action was not rdisod for decision. (u) Smce Allen v. Flood [1898] A. C. 1, 67 L. J. Q. B. 119, the supposition of malice being the gist of the action cannot be ac- cepted. If hissing an actor off the stage is not actionable of itself the addition of malice will not make it so. This point is not aifected by Quhiiir. leatliem [1901] A. C. 495, 70 L. J. P. C. 76. It will be observed that the conspiracy charged by the declaration included the purpose of making a riot, which would be a criminal offence. This- is pointed out by Mr. A. Cohen, K.O., with the concurrence of Lord Dunedin, the late Sir Godfrey Lushington, and Mr. Sidney Webb, in a very able memorandum an- nexed to the report of the Trade Disputes Commission, 1906. Gp. CONSPIRACY, ETC. '^21 but that in point of fact there was no other such evidence, and therefore the jury were rightly directed that without proof of it the plaintiff's case must fail. " It may he true in point of law, that, on the declaration as framed, one defendant might be convicted though the other were acquitted ; but whether, as a matter of fact, the plaintiff could entitle himself to a verdict against one alone, is a very different question. It is to be borne in mind that the act of hissing in a public theatre is, prima fdcie, a lawful act; and even if it should be conceded that such an act, though done without concert with others, if done from a malicious motive, might furnish a ground of action, yet it would be very difficult to infer such a motive from the insulated acts of one person unconnected with others. Whether, on the facts capable of proof, such a case of malice could be made out against one of the defendants, as, apart from any combination between the two, would warrant the expectation of a verdict against the one alone, was for the consideration of the plaintiff's counsel ; and, when he thought proper to rest his case wholly on proof of conspiracy, we think the judge was well warranted in treating the case as one in which, unless the conspiracy were established, there was no ground for saying that the plaintiff was entitled to a verdict ; and it would have been unfair towards the defendants to submit it to the jury as a case against one of the defendants to the exclusion of the other, when the attention of their counsel had never been called to that view of the case, nor had any opportunity [been ?] given them to advert to or to answer it. L. Q. R. xxii. 117. I am happy weighty opinion as well as by the to find my view both of Gregory y. dictum of FitzGibbon L. J. [1906] Duke of Brunswick and of the 1 I. E. at p. 109. general question confirmed by this P.— T. Y WRONGS OF FRAUD, BAD FAITH, AND OPPRESSION. The case proved was, in fact, a case of conspiracy, or it was no case at all on which the jury could properly find a verdict for the plaintiff" («). Soon after this case was dealt with by the Court of Common Pleas in England, the Supreme Court of New York laid it down (not without examination of the earlier authorities) that conspiracy is not in itself a cause of action; and there must be not only damage in fact, but legal damage which would give a ground of action against a defendant sued alone {y) . In 1889 the question was raised in a curious and important case in this country. The material " facts may, perhaps, be fairly summarized, for the present purpose, as follows : A., B. and C. were the only persons engaged in a certain foreign trade, and desired to keep the trade in their own hands. Q. threatened, and in fact commenced, to compete with them. A., B. and C. thereupon agreed to offer specially favourable terms to all customers who would agree to deal with themselves to the exclusion of Q,. and all other competitors outside the combination. This action had the effect of driving (I. out of the market in question, as it was intended to do. It was held by the majority of the Court of Appeal, and unanimously by the House of Lords, that A., B. and C. had done nothing which would have been unlawful if done by a single trader in his own sole interest, and that their action did not become unlawful by reason of being [x] PerColtmanJ., 6Man.&Gr. Ct. N. Y., 1845) 7 Hill, 104, and at p. 9S9, 64 E. R. at p. 901. Bigelow L. C. 207 (action for con- Ultimately the cause went to trial spiring to induce a testator by and there was a verdict for the fraudulent misrepresentations to defendants: 1 Car. & Kir. 24, 70 revoke a devise to the plaintiff). R. R. 767. See Mr. Bigelow's note thereon. To the same effect is Kearney v. (ij) mdchiiis V. Ilulchins (Sup. -£%<; (1890) 26 L. R. Ir. 268. CONSPIRACY, ETC. '^2;! undertaken in concert by several persons for a common interest. The agreement was in restraint of trade, and could not ha^-e been enforced by any of the parties if the othei's had refused to execute it, but that did not make it punishable or wrongful (;:). It is suggested, however, that an agreement of this kind might iu some cases bo held to amount to an indictable conspiracy on the ground of obvious and excessive public inconvenience [a). It seems doubtful whether effect could be given to this suggestion coa- sistentl}' with the modern authorities. It would seem to follow that it cannot be an actionable Relation conspiracy for two or more persons, by lawful means, to spiraoy to induce another or others to do what they are by law aoteorfor. free to do or to abstain from doing what they are not tearannes . . . . of third bound by law to do ; and this opinion has been distinctly persons, expressed in the Court of Appeal in Ireland (S). The House of Lords has decided that persuading or inducing a man, without unlawful means, to do something he has a right to do, though to the prejudice of a third person, gives that person no right of action, whatever the per- suader's motives may have been (c) . {;) Jfor/iil Steamship Compan;/ T. L. C, Lord Watson, Lord Bram- McGregor (1889) 23 Q. B. Div. 598, well, and Lord Hannen. .53 L. J. Q. B. 465 (diss. Lord (a) Boweu L. J., 23 Q. B. Div. Esher, M. R.) ; in H. L. [1892] at p. 618. A. C. 25, 61 L. J. Q. B. 295. Lord (A) FitzGibbon L. J., Sweeney v. Esher was apparently prepared to Cootc [1906] 1 I. R. 61, 109. hold that wheneverA. andB. make (e) Allen v. Flood [1898] A. C. 1, an agreement which, as between 67 L. J. Q. B. 119; cp. Rice \. themselves, is void as in restraint Alice (1895) 164 Mass. 88 (holding of trade, and C. suffers damage as that words spoken by A. to B., in a proximate consequence, A. and order to induce B. to do something B. are wrongdoers as against C. to Z.'s prejudice which B. has a This is clearly negatived by the right to do, can give a right of decision of the House of Lords, see action to Z. against A. only so far the opinions of Lord Halsbury as they may amount to defamation, y2 '^24 WRONGS OF FRAUD, BAD FAITH, AND OPPRESSION. On the other hand, there are many things which cannot, in the ordinary course of affairs, produce any measui-able damage if done by one person alone, and therefore, when so done, will not support any action in which actual damage has to be proved. " But numbers,"' as Lord Lindley says (f/), "may annoy and coerce where one may not. Annoyance and coercion by manj^ may be so intolerable as to become actionable, and produce a result which one alone could not produce ; " and this is consistent with the rule that " intentional damage which arises from the mere exercise of the rights of many is not .... actionable by our law as now settled.'' Not that there is any saving virtue in individual action, but that " a number of actions and things not in themselves actionable or unlawful if done separately without con- spiracy may, with conspiracy, become dangerous and alarming " (i') . If it is meant that any such acts are positively lawful when done by one person alone, and not merely insignificant, it is submitted that no autho- rity can be produced for this ; and the opinion of Eomer L. J. is against it (/). If it is meant that many unlawful and actionable things, nuisance for example, are made up of elements not separately wrongful, it is undoubtedly true. Nay more, the wrongful character of a trespass to land is determined by nothing in the act or intention itself, but by the external circumstance that the land does not belong to the trespasser. If the criterion, however, were the mere presence or absence of or, it is presumed, slander of title) ; (d) Quinn v. Leathern [1901] A. C. Vegelahn v. Guntner (1896) 167 495, 538, 639. Mass. 92, where the dissenting (e) Lord Brampton ib. at p. 530 ,- judgment of Holmes J. (now of the op. per Lord Macnaghteu at p. 510. Supreme Court, U. S.) deserves (/) Giblan -7. Natimal Labourers' much consideration. Union [1903] 2 K. B. 600, 619, 72 L. J. K. B. 907. CONSPIRACY AS TEST OF LIABILITY. "'-'j concerted action, it would be difKcult to say why there is not an actionable wrong if a number of customers, for the avowed purpose of putting pressure on a ti'ader, combine not to buy from him unless he satisfies them in some matter unconnected with the merits of his goods ; but Lord Lindley agrees with the Courts of Scotland that, if that is all, the customers are within their rights ((/). Nor does the withdrawal of voluntary sub- scriptions which furnish a man's means of livelihood become wrongful because it is done in concert, and for the express purpose of making his ofSce untenable [h) . What is the supposed intermediate region in which one man may do with impunity what two or thrpe may not '^ It must be rather small. An actionable wrong may certainly in some cases, as nuisance, be made up of elements not separately wrongful, and those elements may possibly be contributed by different persons. This, conspiracy or no conspiracy, would be a joint wrong- ful act. The present writer confesses to great difficulty in under- Conspi- stauding why, in Quinn v. Leathern, before the House of adequate'^ Liords, where the dicta now under consideration occur, it *^^' °*' liability. was necessary to say so much about conspiracy ; for the cause of action was, in effect, ruining the plaintiff's business by coercing his customers not to deal with him, which is well within a line of old authorities (/) ; and on general principle, as Lord Halsbury said, " if upon these facts so {g) [1901] A. C. at p. 539 ; of Appeal being divided only on Scottish Co-op. Society v. Glasgow the facts of the case before tliem. JFkshers^ Association (1898) 35 Sc. (i) Garret v. Taylor, Cro. Jac. L. R. 64.5. 567 ; see note on p. 237, above. {h) Kearney v. Lloyd, note (y), The absence of direct threats of p. 322, above. That decision was violence is material only on the admitted to be correct in Sweeney v. question of common-law pleadiug Coote [1906] 1 I. E. 51, the Court as between trespass and case. 326 WEONGS OF FRAUD, BAD FAITH, AND OPPRESSION. found the plaintiff could have no remedy against those who had thus injured him, it could hardly be said that our jurisprudence was that of a civilized community " (A-). The fact is that proof of intimidation and unlawful prac- tices is often difficult, and a good many plaintiffs would like to be relieved of the burden. And perhaps the same reason may to some extent account for the perplexing talk about malice which runs through all these cases. It is much easier to persuade a jury to find that there has been a " malicious conspiracy " than to prove what really hap- pened, and persuade the Court that it amounts to a good cause of action. Allen v. Flood shows that a finding of malice will not supply the want of a cause of action; Quiiiit v. Leathern does not, it is submitted, show that a finding of conspiracy will. How some of the dicta in the last-named case are to be reconciled with the reasoning of the Mogul Steamshi}} C'o.'s Case (/) the House of Lords itself may have to tell us some day {m). It is submitted that the discussion would be materially simplified if it were understood that all damage wilfully done to one's neighbour is actionable unless it can be justified or excused. Conspiracy would then appear as matter of aggravation, or as enabling persons acting together to inflict damage which merely individual action could not have inflicted ; and instead of asking whether malice was part of a cause of action, we should ask in what cases good intentions, or reasonable and probable cause, are a justiflcation or a step towards justification. Some learned persons think the suggested principle (/.■) [1901] A. C. at p. 606. Salmond (The Law of Torts, Lond. {I) P. 322, atove. 1907) are in substantial agreement (m) I am happy to observe that my with me so far. The same opitjion learned friends Mr. M. M. Bigelow appears to be generally held in (The Law of Torts, 2nd [Eng.] crL, America. Prof. Burdick, Law of Cambridge, 1903) and Mr. .lohn W. Torts, 287, inclines to the contrary. CONSPIRACY AS TEST OF LIABILITY. •)-:' dangeroush^ -wide ; but the Common Law has already succeeded in defining many grounds of justification and excuse, and is surely competent to define others as new facts bring them into prominence. I am by no means satisfied, however, that the recognized exceptions of trade competition and the right to deal with whom one likes will not go most of the way. There is a class of cases we still have to consider — that of procuring a breach of con- tract or other legal right to the injury of a party entitled to the benefit of it — where the exceptions are not yet adequately defined ; but we shall get no better definition of them by refusing to consider the right of action as a species coming under a more comprehensive class. There is a tendency in judicial dicta on these questions to qualify general statements by the use of such words as '■ wrongfully " or " unlawfully," which no doubt make tlie statements unimpeachable in terms, but prevent them from being very instructive. We do not need the House of Lords to tell us that whoever unlawfully interferes with his neighbour commits an unlawful act ; we desire to have it made clear what kind of conduct is unlawful and what is not. The Trade Disputes Act, 1906, s. 1 (n), has added the Statutorj- following new paragraph after sect. 3 of the Conspiracy tioa of and Protection of Property Act, 1875 :— " An act done ^^^^^' *" in pursuance of an agreement or combination by two or disputes. more persons shall, if done in contemplation or furtherance («) 6 Ed. 7, c. 47. "Trade with the conditions of labour, of dispute" means any dispute be- any person. "Workmen" means tween employers and workmen, or all persona employed in trade or between workmen and workmen, industry, whether or not in the which is connected with the em- employment of the employer with ployment or non- employment, or whom a trade dispute arises : sect. 5 the terms of the employment, or (3). See the whole Act in Appendix. contract. 328 WRONGS OF FRAUD, ISAD FAITH, AND OPPRESSION. of a trade dispute, not be actionable unless the act, if done without any such agreement or combination, would be actionable." This enactment resolves the doubt as to all cases within its terms. If the view maintained above be correct, it is only a partial afBrmance of the common law. Actionsfor Some special cases of interference with others' rights breach of are on a settled footing. An action lies for procuring a person under contract with the plaintiff to break his contract (o). The earlier decisions were not unanimous, and there Avas great doubt as to the reasons on which they were founded and the extent of their application, though they were authoritative here and generally accepted in the United States {i?). Eecent observations of very great weight in the House of Lords discredited the opinion, which had been current, that the gist of the action was malice in the sense of personal ill-will, or intent to injure the plaintiff rather than benefit the defendant or the other contracting party ; and for a time it even seemed doubtful whether the decisions would finally be supported (17). But now it is laid down by the same authority that the cause of action exists, and that only some of the reasons formerly given for it were misconceived. " I think," says Lord Mao- naghten, " the decision " (in Liimley v. Qije) " was right, not on the ground of malicious intention, .... but on the ground that a violation of a legal riglit committed (0) Lumlcij T. Gije {1853) 2 E. & [p) Angles. Chicago, St. Paul, S;c. B. 216, 22 L. J. Q. B. 463 ; Boioen Hij. (1883) 151 U. S. 1, 13. Y. Hall (1881) 6 Q. B. Div. 333, 60 L. J. Q. B. 305; Glamorgan Goal (q) Allen v. Flood [1898] A. G. 1, Co. V. South Wales ^fillers' Feclera- per Lord Watson at p. 107, Lord Hon [1903] 2 K. B 645, 72 L. J. Hersohell at pp. 121 sqq., Lord K. B. 893, C. A., in H. L. [1905] Macnaghten at pp. 163, 164, per A. C. 239, 74 L. J. K. B. 526. Lord Davey at p. 171. PROCURING BREACH OF CONTRACT. 'J-'' knowingl)' is a cause of action, and tliat it is a violation of legal right to interfere with contractual relations recog- nised by law if there be no sufficient justification for the interference." Lord Lindley adds : " The principle in- volved .... cannot be confined to inducements to break contracts of service, nor indeed to inducements to break any contracts. The principle which underlies the decision reaches all wrongful acts done intentionally to damage a particular individual and actually damaging him " (r). Accordingly no finding of " malice," in the sense of personal ill-will or any other evil motive besides the inten- tion of doing an act which violates the plaintiff's known right, is necessary to complete the cause of action, nor is it desirable to use the word at all in such cases («). Still less can the use of illegal means be justified by any amount of good intentions {fj. But it seems that there must be some exceptions in the nature of privilege for disinterested advice honestly given on a proper occasion. It cannot be reasonably maintained, for example, that a parent or guardian may not advise his daughter or ward to break off an improvident engagement to an unworthy suitor («). In America it has long been an accepted view that the rule " does not apply to inter- ference by way of friendly advice, honestly given ; nor is it in denial of the right of free expression of opinion " (.r). Here the same view has lately been taken in a decision (r) Quinmr. Leatheml_l90l^A.G. towards the end of this judgment at pp. 510, 535. can, with great respect, hardly bo («) Ready. Friendly Soc. of Opera- reconciled with those already cited 1'ii:e Stnnemaions [1902] 2 K. B. 732, in the text from Quinn v. Leathern. 71 L. J. K. B. 994, C. A. ; South [it) Per Stirling L. J. [1903] 2 JVales Miners' Federation \ . Glamor- K. B. 577 ; and see various cases gan Coal Co. [1905] A. C. 239, 250, put in Coleridge J.'s dissenting 255. judgment in Lumleii v. Gyc. [t) [1902] 2 K. B. at p. 739, per (x) Jt'ii/ker v. Cronin (1871) 107 Collins, M. R. Some expressions Mass. 555, 566. 330 WRONGS OF FEAUD, BAD FAITH, AND OPPRESSION. with which the Court of Appeal and the House of Lords disagreed, not hecause they thought the law was otherwise, but because on the facts' before them they thought the advice given was not disinterested, and was founded on a misconception of tlie rights involved (//). What is said on the subject in the House of Lords is very guarded, and amounts to little more than that every justification alleged on grounds of this kind must be dealt with on its particular merits (s). On the other hand it is positively decided that a desire, Avhich may be in itself laudable, to compel a man to fulfil his duties in some other matter is not a justification for inducing other people to break their contracts with him ; thus, in the particular case, it is not a legitimate method of coUeoting a member's debts to his trade union ; and if such things were done hy the authority of the union, it might, before the Trade Disputes Act of 1906, be liable in damages in its quasi-corporate capacity {a) . On the whole, we still have to say that the exceptions to this kind of liability are imperfectly defined, and that the disposition of our Courts is to be very cautious in admitting them. Question Another point of difficulty in these cases, once thought of remote- ,,. ,,-,.-, uess of formidable, is that the damage may be deemed too remote amagc. ^^ found the action upon. For if A. persuades B. to break his contract with Z., the proximate cause of Z.'s damage, in one sense, is not the conduct of A. but the voluntary act or default of B. There was a time when Lord EUenborough laid it down as a general rule of law that a man is answerable only for " legal and natural (y) Glamorgan Coal Co. v. South Lord James, at p. 254, per Lord IVuIes Miners Federation [1903] 1 Lindley. K. B. 118, 2 K. B. 545, 72 L. J. K. B. 893, [1905] A. C. 239, 74 ,. J. K. B. 525. (:;) [1905] A. C. at p. 249, per [a) Gihlan v. National Lahoiircrs' T ' T 't- t> - \- ' ?■'"'"" [19031 2 K. B. 600, 72 L. J. L. J. K. B. oio. „ „ „ K. B. 907, C. A. PROCURING BREACH OF CONTRACT. '3'Jl consequence," not for " an illegal consequence,'" that is, a wrongful act of a third person [b). But this opinion is now disapproved (c) . The tendency of our later authorities is to measure responsibility for the consequences of an act by that which appeared or should have appeared to the actor as natural and probable, and not to lay down fixed rules -fthich may run eoimter to the obvious facts. Here the consequence is not only natural and probable — if A.'s action has any consequence at all — but is designed by A. : it would, therefore, be contrary to the facts to hold that the inter- position of B.'s voluntary agency necessarily breaks the chain of proximate cause and probable consequence. A proximate cause need not be an immediate cause. It does not lie in a man's mouth to say that the consequence which he deliberately planned and procured is too remote for the law to treat as a consequence (d). The iniquity of such a defence is obvious in the grosser examples of the criminal law. Commanding, procuring, or inciting to a murder cannot have any " legal consequence," the act of compliance or obedience being a crime ; but no one has suggested on this gronnd any doubt that the procurement is also a crime. A further question, not yet fully disposed of, is how Induce- far it maj- be an actionable wrong to persuade or acts not induce a third person to do something to the damage ggi^gg"'' of the plaintiff, that thing being such that there is unlawful. (4) I'icars v. Wdcocks (1807) 8 [d) " The intention to injure the ICast 1, 9 E. R. 361, and in 2 Sm. plaintiff negatives all excuses and jj C disposes of any question of remote- [c) See Li)nchY. Enight (1861)9 nes^ of damage"- Lord Lindley II. L. C. 577; Clarlc v. Chambers [1901] A. C. at p. 537. This does (1878) 3 Q. B. D. 327, p. 49, above, not touch the defence of exercise and notes to Vicars v. JJ'ilcocl.s of common right, in 2 Sm. L. C. ^332 WRONGS OF FRAUD, BAD FAITH, AND OPPRESSION. no legal remedy against tlie tMrd person for doing it ; for example, where A. persuades M., who has not made any contract with Z., not to employ Z., or persuades Z. not to work for M. Twenty years ago almost every English lawyer would have said without hesitation that no such action lies. Seven or eight years ago many English lawyers thought the House of Lords had so decided in Allen v. Flood {e). But that decision, it must now be understood, was based on the finding of fact that there was no threat, persuasion or inducement at all, but only a warning given by a person who had no control over the event. Obviously there is a real distinction between the threat : " Unless you dismiss A. and B., I shall call out the rest of the men," and the warning: "If you do not dismiss A. and B., the rest of the men will leave work." Putting aside cases of manifest coercion, it does not appear that any test for this somewhat delicate discrimination has been laid down. The nearest approach to authority is the dictum of Eomer L. J. that " a person who, by virtue of his position or influence, has power to carry out his design " may be liable for preventing a man, hy influence with possible employers, from obtaining employment (,/'). In Massachusetts it has been held that, where an employer had contracted with a trade union to discbarge any workman of whom the union disapproved, and the union required him to discharge the plaintiff, a non-union workman, and he did so, the demand of the union was an actionable wrong against the workman, and the contract, being in effect for an unlawful monopoly, was no justification {g). The question may sometimes be put (<■) [1898] A. C. 1. li. J. K. B. 907, C. A. (/) Giblan V. A'ational Zaiourers' (g) Berry t. Donoran (1905) 183 Cnion [1903] 2 K. B. 600, 620, 72 Mass. 353. PROCURING INJURIOUS ACTS. 3-13 in ttis form : -whether, as a matter of fact, the persuasion is of such weight that the resulting act is in suhstance the act of the persuader {/>). But perhaps it is not safe to formulate even so much as this ; though it is notorious that what is on the face of it mere persuasion may really hare extra-legal sanctions behind it which convert it into a command irresistible to a man of ordinary firmness and prudence ; and if so, how does it differ from intimidation Y For those who like it, indeed, there may still be tho resource of saying that persuasion of this kind is actionable only when two or more persons combine in exercising it. But it has already been submitted that this doctrine of conspiracy gives rise to more and worse difficulties than it removes. In any case, these questions involve subtle considerations of a psychological kind which our ancestors thought beyond the competence of courts or at all events of juries, and did not attempt to bring within the sphere of litigation ; and in dealing with such considerations a wide field is left open to divergent views of economic and social policy. Possibly it may turn out to be the law that, generally Suggested speaking, persuasion and advice are free and of common right ; but that, when persuasion is acted upon to the damage of a third person, such damage being intended by the persuader or a natural and probable consequence of the act, the persuader is liable to an action at the suit of the person damaged if he has either used unlawful means, such as intimidation (whether open or disguised as persuasion) or corruption, or procured a criminally punishable or fraudulent act ; and that he is also liable, but subject to exceptions in the nature of privilege, if the (A) Mr. Street, Foundations of Legal Liability, i. 353, 354, attaches mu_h importance to this test. 334 WRONGS OF FEAUD, BAD FAITH, AND OPPRESSION. Interfer- ence with franchise. Main- tenance. act procured was a breacli of contract or a merely civil wrong not involving breach of the peace or fraud. This would give, it is submitted, an intelligible and fairly acceptable rule. No one, however, is more conscious than the writer that in the present state of the authorities all conjectures on this subject must be advanced with the greatest diffidence. Generally speaking, every wilful interference with the exercise of a franchise is actionable without regard to the defendant's act being done in good faith, by reason of a mistaken notion of duty or claim of right, or being con- sciously wrongful. " If a man hath a franchise and is hindered in the enjoyment thereof, an action doth lie, which is an action upon the case" («'). But persons may as public officers be in a quasi- judicial position in which they will not be liable for an honest though mistaken exercise of discretion in rejecting a vote or the like, but will be liable for a wilful and conscious, and. in that sense malicious, denial of right (/•) . In such cases the wrong, if any, belongs to the class analogous to malicious prose- cution. The wrong of maintenance, or aiding a party in litiga- tion without either interest in the suit, or lawful cause of kindred, affection, or charity for aiding him, is likewise akin to malicious prosecution and other abuses of legal process; but the ground of it is not so much an inde- pendent wrong as particular damage resulting from (i) Holt C. .J. in Ashby v. White at p. 13 of the special report first printed in 1837. The action was on the case merely because trespass would not lie for the infringement of an incorporeal right of that kind. The right to petition Parliament is not a franchise in the sense that any elector can compel his representa- tive in the House of Commons to present a particular petition : Chaf- fers v. Goldsmid [1894] 1 Q. E. 186, C3 L. J. a. B. 59. (i) Tozer x. Child (1857) Ex. Ch. 7 E. & E. 377, 26 L. J. Q. B. 151. MAINTENANCE. 33-"i " a wrong founded upon a prohibition by statute " — a series of early statutes said to be in affirmation of the oommon law — " which makes it a criminal act and a misdemeanor" (/). Hence it seems that a corporation cannot be guilty of maintenance (l). Actions for main- tenance are in modern times rare though possible (iii) ; and the decision of the Court of Appeal that mere charity, with or without reasonable ground, is an excuse for main- taining the suit of a stranger (^;), does not tend to •encourage them. It was thought for some time that hindering a man in Interfer- his occupation or livelihood was a special cause of action, occupa- A judgment of Holt C. J., delivered in 1705 (o), and ^'°"-^,°f followed (or rather, perhaps, incautiously extended) by cause of O pf"! 4 JIT the Court of King's Bench in 1809 (p), but on the whole {I) Lord Selborne in Miirop. Bank V. Fooley (1885) 10 App. Ca. 210, 218, 5i L. J. Q. B. 449. (m) Bradlaugh v. Neiedegatc (IS&i) U Q. B. D. 1, 52 L. J. Q. B. 454. As to what ■will amount to a com- mon interest in a suit so as to justify maintenance, Alabaster v. Harness (C. A.) [1895] 1 Q. B. 339 64 L. J. Q. B. 76. (k) Harris v. Brisco (1886) 17 Q. B. Dir. 504, 55 L. J. Q. B. 423. Not the less so because the charity is founded on agreement in religion: Holdemr. T/iompson[l90T] 2 K. B. 489, 76 L. J. K. B. 889. (o) Xeeble v. Hic/cerini/ill, 11 East, 573 «., HE. H- 273. [p) Carrington v. Taylor, 11 East, 571, 11 R. K- 270, see per Lord "ft'atson and Lord Hersehell in Allen. V. Flood [1898] A. C. at pp. 103, 135. There is nothing iibout these decisions in Qinnn v. Leathern. It is not easy to see what the jury in Carrington v. Taylor really found the facts to be. I suspect they meant to find that the defendant, cruising o£B the plain- tiff's decoy, first fired at random to frighten the wild-fowl out of the decoy, and then shot a number of them when they came out ; and if those were the facts I do not see why it was not an actionable nuisance. Cp. Iblotson v. Tent (1865) 3 H. & C. 644, 34 L. J. Ex. 118, the unanimous decision of a strong Court, where scaring away a neighbour's game with fireworks was held actionable, and not justifi- able by way of retaliation fur the plaintiff having enticed away the defendant's game by laying down food on his own land. It seem.s assumed by every one, and was certainly understood by the re- porters, that the cause of action was nuisance. 336 WEONGS OP FRAUD, BAD FAITH, AXD OPPRESSION. neglected by text-writers and Judges till the later years of the nineteenth century, was the supposed authority for this. Holt certainly said that " he that hinders another in his trade or livelihood is liable to an action for so hindering him," whether a franchise is interfered with or ■' a violent or malicious act is done to a man's occupation,, profession, or way of getting a livelihood." But it seems the better opinion, as the result of recent discussion, that a special right not to be disturbed in one's business is not known to the law. So far as any distinct unlawful means- are used, damage caused by them is actionable whether it is damage affecting the plaintiff in the way of his trade or not. So far as there is damage without the use of specific unlawful means, it seems that the action, when it lies, is one of two things ; on the wider view propounded above, an action for doing wilful harm to the plaintiff without justification or excuse, "\^•hich in common law pleading would be a special action on the case analogous to nuisance ; or on the narrower view that there is no such general duty not to harm one's neighbour, but only a number of duties defined by different causes of action, an action for nuisance. A man's freedom to carry on his business is of common right, but not of a higher kind than any other common right. It is true, no doubt, that in cases where the plaintiff has to show actual damage the kind of damage most capable of definite proof, and most likely to impress a jury, will generally be damage to his business ; this, however, is not matter of law. A learned and careful discussion of the modern decisions down to 1902 by Mr. A. V. Dicey K. C. (by whose general concurrence I am much fortified) will be found in L. Q. E. xviii. 1 — 5 ; and it may be pointed out that the judgment of Bowen L. J. in Mogul S.S. Co. v. McGregor, INTEKFEKEXCE AYITII OCCUPATION. 337 Gow Sf Co. [q) has been lately cited witli increasing frequency and respect, and should be carefully studied in this connexion. The application in England of the principles above Trade discussed has now been limited by the enactments that Act, 1906. '' an act done by a person in contemplation or furtherance •of a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment or that it is an interference with the trade, business, or employment of some other person, or with the right of some other person to dispose of his capital or his labour as he wills," and that (in effect) the funds of a trade union whether of masters or workmen cannot be reached by an action against the body or its representative members {)•). It does not appear that the former of these two sections is intended to exclude the right of action against an individual in a case of open violence or in- timidation ; or, indeed, that it alters the law in more than one point («) ; the precise effect of the word " only " is no doubt open to differences of opinion. But it would not be safe to assume that the principles thus cut down may not be important hereafter in some other branch of the law. Meanwhile they remain in full force in other common lav*' jurisdictions, except so far as the very peculiar English legislation may find imitators. {q) (1889)23Q. B. Div. 593, 611. (s) The licensing- of procuring^ (}•) 6 Edw. 7, u. 47, 88. 3, 4, 8ee breach of contract without the use p. 96 above. "Trade dispute" of means otherwise unlawful. is defined in s. 5 (3). P.— T. 338 CHAPTEE IX. WKONGS TO POSSESSION AND PEOPEETY. Absolute duty to respect others' property. Title, jus- tification, excuse. I. — Duties regarding Property generally. Every kind of intermeddling with anything which is the subject of property is a wrong unless it is either authorized by some person entitled to deal with the thing in that par- ticular way, or justified by authority of law, or (in some cases but by no means generally) excusable on the ground that it is done under a reasonable though mistaken supj)o- sition of lawful title or authority. Broadly speaking, we touch the property of others at our peril, and honest mis- take in acting for our own interest [a) , or even an honest intention to act for the benefit of the true owner {b), will avail us nothing if we transgress. A man may be entitled in divers ways to deal with pro- perty movable or immovable, and within a wider or narrower range. He may be an owner in possession, with indefinite rights of use and dominion, free to give or to sell, nay, to waste lands or destroy chattels if such be his pleasure. He may be a possessor with rights either determined as to length of time, or undetermined though determinable, and of an extent which may vary from being hardly distinguishable from full dominion to being strictly limited to a specific purpose. It belongs to the law of (r?) Hollins v. Fowler (1875) L. E. 7 H. L. 757, 44 L. J. Q. B. 169. (b) In trespass, Kirk v. Gregory (1876) 1 Ex. D. 55, 45 L. J. Ex. 186 : in trover, Siort v. Bott (1874) L. E. 9 Ex. 86, 43 L. J. Ex. 81. AUTHORITY AND TITLE. 339 propertj' to tell us what are the rights of owners and pos- sessors, and hy what acts in the law they may he created, transferred or destroyed. Again, a man may have the right of using property to a hmited extent, and either to the exclusion of all other persons besides the owner or possessor, or concurrently with other persons, without himself being either owner or possessor. The definition of such rights belongs to that part of the law of property which deals with easements and profits. Again, he may be authorized by law, for the execution of justice or for purposes of public safety and convenience, or under excep- tional conditions for the true owner's benefit, to interfere with property to which he has no title and does not make any claim. We have seen somewhat of this in the chapter of " General Exceptions." Again, he may be justified by a consent of the owner or possessor which does not give him any interest in the property, but merely excuses an act, or a series of acts, that otherwise would be wrongful. Such consent is known as a licence. Title to property, and authority to deal with property Title in specified ways, are commonly conferred by contract on^con-'^" or in pm'suance of some contract. Thus it oftentimes ^^''^'^^' depends on the existence or on the true construction of a contract whether a right of property exists, or what is the extent of rights admitted to exist. A man obtains goods by fraud and sells them to another pur- chaser who buys in good faith, reasonably supposing that he is dealing with the true owner. The fraudulent re-seller may have made a contract which the original seller could have set aside, as against him, on the ground of fraud. If so, he acquires property in the goods, though a defeasible property, and the ultimate purchaser in good faith has a good title. But the circum- z2 -'^40 WEONGS TO POSSESSION AND PROPERTY. stances of the fraud may have been such that there was no true consent on the part of the first owner, no contract at all, and no right of property whatever, not so much as lawful possession, acquired by the apparent purchaser. If so, the defrauder has not any lawf al interest which he can transfer even to a person acting in good faith and reason- ably : and the ultimate purchaser acquires no manner of title, and notwithstanding his innocence is liable as a wrong-doer (c). Principles essentially similar, but affected in their application, and not unfrequently disguised, by the complexity of our law of real property, hold good of dealings with land (d). Exeep- Acts of persons dealing in good faith with an apparent protection Owner may be, and have been, protected in various ways dealin*-^'"^ and to a varying extent by different systems of law. in good The purchaser from an apparent owner may acquire, as under the common-law rule of sales in market overt, a better title than his vendor had ; or, by an extension in the same line, the dealings of apparently authorized agents in the way of sale or pledge may, for the security of commerce, have a special validity conferred on them, as under our Factors Acts (c) ; or one who has innocently dealt with goods which he is now unable to produce or restore specifically may be held personally excused, saving the true owner's liberty to retake the goods if he can find them, and subject to the remedies over, if any, which may be available under a contract of sale, or a warranty for the person dispossessed by the true owner. Excuse of this kind is however rarely admitted, though much the (c) HolHiis V. Fowkr (1875) L. R. (rf) See Filcher v. Sawlins (1871) 7 H. L. 757, 44 L. J. Q. B. 169 ; L. R. 7 Ch. 259, 41 L. J. Ch. 485. Cundi/ Y. Zindsaij {181S) 3 App. Ca. (c) Consolidated by the Factors 459, 47 L. J. Q. B. 481. Act, 1889, 52 & 53 Vict. c. 45. POSSESSION AND OWNERSPIIP. -i-H same result may sometimes be arrived at on special technical grounds. It would seem that, apart from doubtful questions of The rights title (which no system of law can wholly avoid), there remedies ought not to be great difSculty in determining what ^ the" amounts to a wrong to property, and who is the person J^""i™°" wronged. But in fact the common law does present great possessory. difficulties ; and this because its remedies were bound, until a recent date, to medieval forms, and limited by medieval conceptions. The forms of action brought not Ownership but Possession to the front in accordance with a habit of thought which, strange as it may now seem to us, found the utmost difficulty in conceiving rights of property as having full existence or being capable of trausfer and succession unless in close connexion with the physical control of something which could be passed fi-oni hand to hand, or at least a part of it delivered in the name of the whole (/). An owner in possession was pro- tected against disturbance, but the rights of an owner out of possession were obscure and weak. To this day it continues so with regard to chattels. For many purposes the " true owner " of goods is the person, and only the person, entitled to immediate possession. The term is a short and convenient one, and may be used without scruple, but on condition of being rightly understood. Eegularly the common law protects ownership only through posses- sory rights and remedies. The reversion or reversionary interest of the freeholder or general owner out of pos- session is indeed well known to our authorities, and by conveyancers it is regarded as a present estate or interest. (/) SeeF. "W. Maitland's articles able comparisons of the rules con- on "The Seisin of Chattels" and ceming real and personal property " The Mystery of Seisin," L. Q. R. will be found. i. 324, ii. 481, where divers profit- 342 WRONGS TO POSSESSION AND PROPERTY. But wlieii it has to be defended in a court of common law, the forms of action treat it rather as the shadow east before by a right to possess at a time still to come. It was once said that there is no doctrine of possession in our law. The reason of this appearance, an appear- ance capable of deceiving even learned persons, is that possession has all but swallowed up ownership ; and the rights of a possessor, or one entitled to possess, have all but monopolized the very name of property. There is a common jphrase in our books that possession is prima facie evidence of title. It would be less intelligible at first sight, but not less correct, to say that in the developed system of common law pleading and procedure proof of title was material only as evidence of a right to possess. And it must be remembered that although forms of action are no longer with us, causes of action are what they were, and cases may still occur where it is needful to go back to the vanished form as the witness and measure of subsisting rights. The sweeping protection given to rights of property at this day is made up by a number of theoretically distinct causes of action. The disturbed possessor had his action of trespass (in some special cases replevin) ; if at the time of the wrong done the person entitled to possess was not in actual legal possession, his remedy was detinue, or, in the developed system, trover. An owner who had neither possession nor the immediate right to possession could redress him- self by a special action on the case, which did not acquire any technical name. Pofspssion Notwithstanding first appearances, then, the common tention. ^^"^ ^^® ^ theory of possession, and a highly elaborated one. To discuss it fully would not be appropriate POSSESSION AND OWNEESHIP. here {g) : but we have to bear in mind that it must be known who is in legal-pofsession of any givon subject of property, and who is entitled to possess it, before we can tell what wrongs are capable of being committed, and against whom, hj the person having ph}'sical control over it, or by others. Legal possession does not neces- sarily coincide either with actual physical control or the present power thereof (the " detention " of Continental terminology), or with the right to possess (constantly called " property " in cm- books) ; and it need not have a rightful origin. The separation of detention, possession in the strict sense, and the right to possess, is both possible and frequent. A. lends a book to B., gratuitously and not for any fixed time, and B. gives the book to bis servant to carry home. Here B.'s servant has physical possession, better named custody or detention, but neither legal possession (/?) nor the right to possess; B. has legal and rightful possession, and the right to possess as against every one but A. ; while A. has not possession, but has a right to possess which he can make absolute at any moment by determining the bailment to B., and which the law regards for many purposes as if it were already absolute. As to an actual legal possession (besides and beyond mere detention) being acquired by wrong, the wrongful change of possession was the very substance of disseisin as to land, and is still the very substance of trespass by taking and carrying away goods {de bonis asporfcdi^i), and as such it was and is a (^) See " An Essay on Possession a stranger; see Moore v. liobimon in the Common Law" by Sir E. S. (1831) 2 B. & Ad. 817, 36 R. R. AYright and the present writer 756. The law about the custody (Oxford: Clarendon Press, 1888). of servants and persons in a like position has vacillated from time to (h) Yet it is not certain that he time, and has never been defined as could not maintain trespass against a whole. 344 WRONGS TO POSSESSION AND PEOPERTY. necessary condition of the offence of larceny at common law. The common law, when it must choose between denying legal possession to the person apparently in possession, and attributing it to a wrong-doer, generally prefers the latter course. In Roman law there is n© such general tendency, though the results are often similar («). Trespass Trespass is the Avrongful disturbance of another versiOTT" person's possession of land (A-) or goods. Therefore it cannot be committed by a person who is himself in possession (/) ; though in certain exceptional cases a dispunishable or even a rightful possessor of goods may by his own act, during a continuous physical control,, make himself a mere trespasser. But a possessor may do wrong in other ways. He may commit waste as ta the land he holds, or he may become liable to an action of ejectment by hold'ng over after his title or interest is determined. As to goods he may detain them without right after it has become his duty to return them, or he may convert them to his own use, a phrase of which the scope has been greatly extended in the modern law. Thus we have two kinds of duty, namely to refrain from meddling with what is lawfully possessed by another, and to refrain from abusing possession which (i) Cp. HoUmd, " Elements of later period, or was ever attempted Jurispiiidence," lOtli ed. 189 sqq. as to goods. {/.) Eormeriy it was said that (J) E.g., a mortgagee of chattels, trespass to land was a disturbance who has taken possession cannot not amounting to disseisin, though commit a trespass by removing the- it might be "vicina disseisinae," goods, although the mortgagor which is explained by " si ad com- may meanwhile have tendered the modum uti non possit." Bracton, amount due: Johnson v. Dipros^ fo. 217 a. I do not think this [1S93] 1 Q. B. 512, 62 L. J. Q. B. distinction was regarded in any 291, C. A. POSSESSION AND TRESPASS. '^-l^ we have lawfully gotten under a limited title ; and the breach of these produces distinct kinds of wrong, having, in the old system of the common law, their distinct and appropriate remedies. But a strict observance of these distinctions in practice would have led to intolerable results, and a working margin was given by beneficent fictions which (like most indirect and gradual reforms) extended the usefulness of the law at the cost of making it intricate and difficult to understand. On the one hand the remedies of an actual possessor were freely accorded to persons who had only the right to possess (m) ; on the other hand the person wronged was constantly allowed at his option to proceed against a mere trespasser as if the trespasser had only abused a lawful or at any rate excusable possession. In the later history of common law pleading trespass Altema- and conversion became largely though not wholly inter- dies, changeable. Detinue, the older form of action for the recovery of chattels, was not abolished, but it was generally preferable to treat the detention as a conversion and sue in trover (■«), so that trover practically superseded detinue, as the writ of right and the various assizes, the older and once the only proper remedies whereby a free- holder could recover possession of the land, were super- seded by ejectment, a remedy at first introduced merely for the protection of leasehold interests. With all their artificial extensions these forms of action did not com- (/«) See Smi/h V. JlUks (1786) 1 physical apprehension or transfer ; T. R. 475, 480, and note that (iii.) an immediate right to possess, "constructive possession," as used which is distinct from actual pos- in our books, includes (i.) poosessiou session. The last-named usage exercised through a servant or appears to be the only really correct licensee ; (ii.) possession conferred one. by law, in certain cases, e.ff. on an («) Blackst. iii. 152. executor, independently of any -J it; WEONGS TO POSSESSION AND PROPERTY. pletely sufEce. There might still be circumstances in which a special action on the case was required. And these complications cannot be said to be even now wholly obsolete. For exceptional circumstances may still occur in which it is doubtful whether an action lies without proof of actual damage, or, assuming that the plaintiff is entitled to judgment, whether that judgment shall be for the value of the goods wrongfully dealt with or only for his actual damage, which may be a nominal sum. Under such conditions we have to go back to the old forms and see what the appropriate action would have been. This is not a desirable state of the law (o), but while it exists we must take account of it. II. — Trespass. Wheat Trespass may be committed by various kinds of acts, shall be . . tiaid a of which the most obvious are entry on an(5ther's land respass. (trespass qua re clausum /regit), and taking another's goods (trespass de bonis asportatis) {;;). Notwithstanding that trespasses punishable in the king's court were said to be ri et armit, and were supposed to be punishable as a breach of the king's peace, neither the use of force, nor the breaking of an enclosure or transgression of a visible boundary, nor even an unlawful intention, is necessary to constitute an actionable trespass. It is likewise im- material, in strictness of law, whether there be any actual damage or not. " Every invasion of private property, be it ever so minute, is a trespass" {q). There is no doubt (o) See per Thesiger L. J., 4 Ex. for years or other interest not Diy. 199. freehold. (;;) The exact parallel to trespass (q) Entick v. Ciirrin/jton, 19 St. fh' huiih asportatis is of course not Tr. 1066. ''Property" here, as trespass qn,. el. fr. simply, but tres- constantly in our books, really pa.ss nmounting to a disseisin of the means possession or a right to freeholder or ouster of the tenant possession. WHAT 18 TKESPASS. '"'1'' that if one walks across a stubble field ^^'itllOut lawful authority or the occupier's leave, one is technically a trespasser, and it may be doubted whether persons who roam about common lands, not being in exercise of some particular right, are in a better position. It may be that, where the public enjoyment of such lands for sporting or other recreation is notorious, for example on Dartmoor (r), a licence (as to which more presently) would be implied. Oftentimes warnings or requests are addressed to the public to abstain from going on some specified ]iart of open land or private ways, or from doing injurious acts. In such cases there seems to be a general licence to ufo the land or ways in conformity with the owner's will thus expressed. But even so, persons using the land are no more than "bare licensees," and their right is of the slenderest. Loitering on a highway, not for the purpos(^ of using it as a highwaj-, but for the pm-pose of annoying the owner of the soil in bis lawful use of the adjacent land (.s'), or prying into his occupations there (t), may be a trespass against that owner. It has been doubted whether it is a trespass to pass over Qunnr T . , .T • T n concern- land Without touching the sou, as one may m a balloon, ing- or to cause a material object, as shot fired from a gun, to " °°°''"" pass over it. Lord Ellenborough thought it was not in itself a trespass " to interfere with the column of air super- incumbent on the close," and that the remedy would be by action on the case for any actual damage : though he had no difliculty in holding that a man is a trespasser who fires a gun on his own land so that the shot fall on his ()•) Asamatterof fact, the Dart- [1893] 1 Q. B. 142, 62 L. J. Q. B. moor hunt had an express licence 117, C. A. from the Duchy of Cornwall. (t) Hickman v. Mnisrii [1900] 1 (s) Sarrison v. Buhe of Rutland Q. B. 752, 69 L. J. Q. B. 511, C. A. 348 WRONGS TO POSSESSION AND PROPERTY. neighbour's land (»). Fifty years later Lord Blackburn inclined to think diflerently (x), and his opinion seems the better. Clearly there can be a wrongful entry on land below the surface, as by mining, and in fact this kind of trespass is rather prominent in our modern books. It does not seem possible on the principles of the common law to assign any reason why any entry above the surface should not also be a trespass, unless indeed it can be said that the scope of possible trespass is limited by that of effective possession, which might be the most reasonable rule. Clearly it would be a trespass to sail over another man's land in a balloon (much more in a controllable air-ship) at a level within the height of ordinary buildings, and it might bo a nuisance to keep a balloon hovering over the land even at a greater height. As regards shooting, it would be strange if we could object to shots being fired point-blank across our land only in the event of actual injury being caused, and the passage of the foreign body in the air above our soil being thus a mere incident in a distinct trespass to person or property. But the projectiles of modern artillery, when fired for extreme range, have attained in the course of their trajectory, as is computed, an altitude exceeding that of Mont Blanc or even Elbruz. It may remain in doubt whether the passage of a projectile at such a height could in itself be a trespass. Trespass by a man's cattle is dealt with exactly like trespass by himself ; but in the modern view of the law this is only part of a more general rule or body of rules imposing an exceptionally strict and unqualified duty of («) Pickering v. Sudd (1815) 4 Co. (1884) 13 Q. B. Div. 904, 927, Camp. 219, 221, 16 R. R. 777. 53 L. J. Q. B. 449. It may be (.»;) Kenyon v. Hayt (ISGo) 6 B. & otherwise, as in that case, where S. 249, 262, 34 L. J. M. C. 87 ; and statutory interests in land are con- see per Fry L. J. in irandsworth ferred for special purposes. Board of Works v. Viiitcd Telqihone TRESPASS TO GOODS. ''^" safe custody on grounds of public expediency. In that connexion we shall accordingly return to the subject (y). Encroachment under or above ground by the natural growth of roots or branches of a tree standing in adjacent land is not a trespass, though it may be actionable as a nuisance (s) . Trespass to goods may be committed by taking posses- Trespass sion of them, or by any other act " in itself immediately " ^°° ' injurious " to the goods in respect of the possessor's interest (ff), as by killing (?)), beating (r), or chasing (c/) animals, or defacing a work of art. Where the possession is changed the trespass is an asportation (from the old form of pleading, cc^jiY et asportavit for inanimate chattels, ahdnxit for animals), and may amount to the offence of theft. Other trespasses to goods may be criminal offences nnder the head of malicious injury to property. The current but doubtful doctrine of the civil trespass being '■' merged in the felony " when the trespass is felonious has been considered in an earlier chapter (50 WRONGS TO POSSESSION AND PEOPEETY. are conceivable in which the power of treating a mere unauthorized touching as a trespass might be salutary and necessary, as where valuable objects are exhibited in places either public or open to a large class of persons. In the old precedents trespass to goods hardly occurs except in conjunction with trespass to land (/*). III. — Injuries to Rercr-'iion. Wrongs to A. person in possession of property may do wrong by not in refusing to deliver possession to a person entitled, or possession, -^j otherwise assuming to deal with the property as owner or adversely to the true owner, or by dealing with it under cover of his real possessory title but in excess of his rights, or, where the nature of the object admits of it, by acts amounting to destruction or total change of character, such as breaking up land by opening mines, burning wood, grinding corn, or spinning cotton into yarn, which acts however are only the extreme exercise of assumed dominion. The law started from entirely distinct conceptions of the mere detaining of property from the person entitled, and the spoiling or alteriug it to the prejudice of one in reversion or remainder, or a general owner [i). For the former case the common law provided its most ancient remedies — the writ of right (and later the various assizes and the writ of entry) for dand, and the parallel vrrii of detinue (parallel as being merely carriage -would be a trespass," interest" applied to goods, cp. Alderson B. in Foulctes v. IVilloiir/hhy Dicey on Parties, 345. In one way (1841) 8 M. & W. 549, 58 E. R. " reversioner " would be more cor- 810. In Eirk v. Gregory (1876) 1 reot than "owner" or "general Ex. D. 55, the trespass complained owner,'' for the person entitled to of was almost nominal, but there sue ia trover or prosecute for theft was a complete asportation while is not necessarily dominus, and the the intermeddling lasted. dominus of the chattel may be dis- [h] See F. N. B. 86— 88, ^msssot. qualified from so suing or prose- (i) As to the term " reversionary cuting. INJURIES TO EEVEESION. a variation of the writ of debt, which was precisely similar in form to the writ of right) for goods ; to this must be added, in special, but once frequent and important cases, replevin (k). For the latter the writ of waste (as extended by the Statutes of Marlbridge and Gloucester) was available as to land ; later this was supplanted by an action on the case (l) " in the nature of waste," and in modern times the power and remedies of courts of equity have been found still more effectual (in). The process of devising a practical remedy for owners of chattels was more circuitous ; they were helped by an action on the case which became a distinct species under the name of trover, derived from the usual though not necessary form of pleading, which alleged that the defendant found the plaintiff's goods and converted them to his own use («). The original notion of conversion in personal chattels answers closely to that of irasic in tenements ; but it was soon extended so as to cover the whole ground of detinue (o), and largely overlap trespass; a mere trespasser [/;) It seems useless to say more of The action of waste proper could be replevin here. The curious reader brought only "by him that hath may consult Alennie v. Blake (1856) the immediate estate of inherit- 6 E. t B. 842, 25 L. J. Q. B. 399. ance." Co. Litt. 53 ff. For the earliest form of writ of entry («) Blaokst. iii. 152, cf. the judg- see Close Rolls, vol. i. p. 32. Black- ment of Martin B. in Bnrrouglus v. stone is wrong in stating it to have Bmjne {I860) 5 H. & N. 296, 29 been older than the assizes. See L. J. Ex. 185, 188 ; and as to the Pollock and Maitland, Hist. Eng. forms of pleading, Bro. Ab. Acciou Law, Bk. ii., u. 4, ^ 2 ad fin. sur le Case, 103, 109, 113, and see (Q Under certain conditions waste Littleton's remark in 33 PI. VI., might amount to trespass, Litt. 27, pi. 12, an action of detinue s. 71, see more in sect. vii. of the where a finding by the defendant present chapter. was alleged, that " this declaration (m) For the history and old law, per inrenlionem is a new found see Co. Litt. 53, 54; Blackst. ii. Haliday " ; the case is translated 281, iii. 225; notes to Greene v. by Sir K. S. Wright in Pollock and Cole, 2 Wms. Saund. 644; and Wright on Possession, 174. Woodhome v. Walker (1880) 5 (o) Martin B., ^. c, whoso phrase Q. B. D. 404, 49 L. J. Q. B. 609. " in very ancient times " is a little ■-'■^-^ WRONGS TO POSSESSION AND PROPERTY. whose acts would have amounted to conversion if done by a lawful possessor not being allowed to take exception to the true owner " waiving the trespass," and professing to assume in the defendant's favour that his possession had a lawful origin. ISf.— Wadc. Waste. Waste is any unauthorized act of a tenant for a freehold estate not of inheritance, or for any lesser interest, which tends to the destruction of the tenement, or otherwise to the injury of the inheritance. Such injury need not consist in loss of market value ; an alteration not other- wise mischievous may be waste in that it throws doubt on the identification of the property, and thereby impairs the evidence of title. It is said that every conversion of land from one species to another — as ploughing up woodland, or turning arable into pasture land — is waste, and it has even been said that building a new house is waste (7;). But modern authority does not bear this out; "in order to prove waste you must prove an injury to the inherit- ance " either "in the sense of value" or "in the sense of destroying identity "((/) . The real test seems to be Avhether the acts complained of alter the nature of the thing demised (r) . And in the United States, especially the Western States, many acts are held to be only in a natural and reasonable way of using and improving the misleading, for trover, as a settled Hob. 234. common form, seems to date only [q] Jones v. Chappell (187.5) L. R. from the 16th century; Reeves 20 Eq. 539, 540-2 (Jessel M. R.) ; Hist. Eng. Law, iv. 536. Meux v. CoHeij [1892] 2 Ch. 233, [p) " If the tenant build a new 61 L. J. Ch. 449. house, it is waste ; and if he suffer (r) West Ham Central Charitij it to be wasted, it is a new waste." Board v. E. London Waterworks Co. Co. Litt. 53 a. Cuntra ai to the [1900] 1 Ch. 624, 69 L. J. Ch. building, Darey v. Aflanth (1617) 257. WASTE. •'•53 land — clearing wild woods for example — which in England, or even in the Eastern States, would be mani- fest waste. As to permissive waste, i.e., suffering the tenement to lose its value or go to ruin for want of necessary repair, a tenant for life or years is liable therefor if an express duty to repair is imposed upon him by the instrument creating his estate ; otherwise he is not («). It seems that it can in no rase be waste to use a tenement in an apparently reasonable and proper manner, " having regard to its character and to the purposes for which it was intended to be used" (t), what- ever the actual consequences of such user may be. Where a particular course of user has been carried on for a considerable course of time, with the apparent knowledge and assent of the owner of the inheritance, the Court will make all reasonable presumptions in favour of referring acts so done to a lawful origin (ic) . Destructive waste by a tenant at will may amount to trespass, in the strict sense, against the lessor. The reason will be more conveniently explained hereafter (.?■) . In modern practice, questions of waste arise either Modem between a tenant for life (y), and those in remainder, or ^y^te: (s) Me Cartwright, Aels v. New- 821, 47 L. J. Ch. 267; cp. Job v. man (1889) 41 Ch. D. 532, 58 L. J. Potton (1875) L. R. 20 Eq. 84, 41 Oh. 590. The correctness of this L. J. Ch. 2G2. decision is disputed by Mr. 0. B. («) EliasY. Snowdon Slate Quarries Labatt, 37 Canada Law Journal, Co. (1879) 4 App. Ca. 454, 465, 48 533. An equitable tenant for life L.J. Ch. 811. is not liable for permissive waste : {x) See below in sect. vii. of this Powys v. Blagrave (1854) 4 D. M. chapter. G. 448 ; Re Hotchkys, Freke v. {y) In the United States, where Cnlmady (1886) 32 Ch. D. 408, 55 tenancy in dower is still common, L. J. Ch. 546. there are many modern decisions {t) Manchester Bonded Warehouse on questions of waste arising' out Co. V. Curr (1880) 5 C. P. D. 507, of such tenancies. See Scribner on 512, 49 L. J. C. P. 809 ; following Dower (2nd ed. 1883) i. 212—214 ; Saner v. Bilton (1878) 7 Ch. D. 815,' ii. 795 sqq. P. — T. A A 354 WRONGS TO POSSESSION AND PEOPEETY. tenants between landlord and tenant. In the former case, the for life, unauthorized cutting of timber is the most usual ground of complaint ; in the latter, the forms of misuse or neglect are as various as the uses, agricultural, commercial, or manufacturing, for which the tenement maj be let and occupied. With regard to timber, it is to be observed that there are " timber estates " on which wood is grown for the purpose of periodical cutting and sale, so that " cutting the timber is the mode of cultivation " (z). On such land cutting the timber is equivalent to taking a crop of arable land, and if done in the usual com-se is not waste. A tenant for life whose estate is expressed to be without impeachment of waste may freely take timber and minerals for use, but, unless with further specific authority, he must not remove timber planted for ornament (save so far as the cutting of part is required for the preservation of the rest) (a), open a mine in a garden or pleasure ground, or do like acts destructive to the individual character and amenity of the dwelling-place (b). The commission of such waste may be restrained by injunction, without regard to pecuniary damage to the inheritance : but, when it is once committed, the normal measure of damages can only be the actual loss of value (c). Further details on (3) As to the general law con- The Court has not to decide what ceming timber and its possible is actually ornamental : Weld- variation by local custom, see the Bhmdcll \. TTolselcy [1903] 2 Ch. judgment of Jessel M. R., Homj- 664, 73 L. J. Ch. 45. tfood V. Somjwood (1874) L. R. 18 (i) Waste of this kind was known Eq. 306, 309, 43 L. J. Ch. 652, and as " equitable waste," thecommis- Dashicood v. 3[agniae [1891] 3 Ch. sion of it by a tenant unimpeach- 306, 60 L. J. Ch. 809, C. A. able for waste not being treated as (a) See Baker v. Sibriijlit (1879) wrongful at common law ; seenow 13 Ch. D. 179, 49 L. J. Ch. 65; 36 & 37 Vict. c. 66 (the Supreme but it seems that a remainderman Court of Judicature Act, 1873,'! coming in time would be entitled s. 25, sub-s. 3. to the supervision of the Court in {c) Bithb v. Yeherton (1870) L. R. such case: 13 Ch. D. at p. 188. 10 Eq. 465. Here the tenant for CONVERSION. 3-J5 the subject would not be appropriate here. They belong rather to the law of Real Property. As bet'tteen landlord and tenant the real matter in Landlord dispute, in a case of alleged waste, is commonly the e.^tent tenant. of the tenant's obhgation, under his express or implied covenants, to keep the property demised in safe condition or repair. Yet the wrong of waste is none the less committed (and under the old procedure was no less remediable by the appropriate action on tlio case) because it is also a breach of the tenant's contract (d) . Since the Judicature Acts it is impossible to say whether an action alleging misuse of the tenement by a lessee is brought on the contract or as for a tort (e) : doubtless it would be treated as an action of contract if it became necessary for any purpose to assign it to one or the other class. Y. — Conversion. Conversion, according - to recent authority, may be Conver- described as the wrong done by "an unauthorized act tion of which deprives another of his property permanently or trespass" for a indefinite time" (/). Such an act may or may not include a trespass ; whether it does or not is imma- terial as regards the right of the plaintiff in a civil action, for even under the old forms he might " waive the trespass " ; though as regards the possibility of the life had acted in good faith under (/) Bramwell B., adopting- the the belief that he was improving expression of Bosanquet, ff(y., Jiort the property. Wanton acts of de- v. Sott (1874) L. U. 9 Ex. 86, 89, struction would be very differently 43 L. J. Ex. 81. All, or nearly all, treated. the learning on the subject down to (d) 2 Wms. Saund. 646. ^^^V """""^"^ ^'^ ^ ^°™^^^''* formless manner it must be allowed) .(«) H.ff. Tnclcer v. Linger (1882) in the notes to Wilbrahamy. Snow, 21 Ch. D. 18, 51 L. J. Oh. 713. 2 Wms. Saund. 87. A a2 356 WEONGS TO POSSESSION AND PROPERTY. wi'ong-doer being criminally liable it may still be a vital question, trespass by taking and carrying away the goods being a necessary element in the offence of larceny at common law. But the definition of theft (in the first instance narrow but strictly consistent, afterwards com- plicated by some judicial refinements, and by numerous unsystematic statutory additions) does not concern us here. The " property " of which the plaintiff is deprived — the subject-matter of the right which is violated — must be something which he has the immediate right to possess ; only on this condition could one maintain the action of trover under the old forms. Thus, where goods had been sold and remained in the vendor's possession subject to the vendor's lien for unpaid purchase-money, the pmxhaser could not bring an action of trover against a stranger who removed the goods, at all events without payment or tender of the unpaid balance {g) . But an owner not entitled to immediate possession might have a special action on the case, not being trover, for any permanent injury to his interest, though the wrongful act might also be a trespass, conversion, or breach of contract, as against the immediate possessor (//). As under the Judicature Acts the difference of form between trover and a special action which is not trover does not exist, there seems to be no good reason why the idea and the name of conversion should not be extended to cover these last-mentioned cases. {(?) Lord V. Price {187-t) L. R. 9 413, 60 L. J. Q. B. 676, which Ex. 34, 43 L. J. Ex. 49. assumes that a bailor for a term (A) Miars t. L. ^- S. fF. U. Co. has no remedy against a stranger (1862) 11 G. B. N. S. 850, 31 L. J. who injures the chattel. Theautho- C. P. 220. This appears to have rity of that case is now doubtful, been overlooked in the reasoning if see Sanderson v. Collins [1904] 1 not in the decision of the Court in K. B. 628, 73 L. J. K. B. 358, Coupe Co. V. Maddick [1891] 2 Q. B. C. A. WHAT IS CONVERSION. 'J" On the other hand, the name has been thought alto- What gether objectionable by considerable authorities (/) : and to convcr- certainly the natural meaning of converting property to ^^°°' one's own use has long been left behind. It came to be seen that the actual diversion of the benefit arising from use and possession was only one aspect of the ■wrong, and not a constant one. It did not matter to the plaintiff whether it was the defendant, or a third person taking delivery from the defendant, who used his goods, or whether they were used at all; the essence of the injury was that the use and possession were dealt with in a manner adverse to the plaintiff and inconsistent with his right of dominion. Tlie grievance is the unauthorized assumption of the powers of the true o'wner. Actually dealing with another's goods as owner for however short a time, and however limited a purpose (A-), is therefore conversion ; so is an act which in fact enables a third person to deal with them as owner, and which would make such dealing lawful only if done by the person really entitled to possess the goods {/). It makes no difference that such acts were •done under a mistaken but honest and even reasonable supposition of being lawfully entitled (k) , or even with the intention of benefiting the true owner (/) ; nor is a servant, or other merely ministerial agent, excused for assuming the dominion of goods on his master's or principal's behalf, though he " acted under an unavoid- (i) See 2 Wms. Saund. 108, and d' Escomptc [1894] 2 Q. B. 157, 63 per Bratnwell L. J., 4 Ex. D. 194. L. J. Q. B. 074. The same prin- ik) HiiUins v. Fowkr (1875) L. E. oiple is illustrated by Union Credit 7 H. L. 757, 44 L. J. Q. B. 169. Jiank v. Mei-xei/ Docks and Harbour Cashing- a cheque in good faith on a Board [1899] 2 Q. B. 205, 68 L. J. fraudulently altered indorsement is Q. B. 842. a conyersion as against the true [I) Uiort v. Sotl (1874) L. E. 9 indorsee : Kleinu-ort f. Comptoir Ex. 86, 43 L. J. Ex. 81. 'J'58 WRONGS TO POSSESSION AND PROPERTY. atle ignorance and for his master's benefit" (in). It is common learning that a refusal to deliver possession to the true owner on demand is evidence of a conversion, but evidence only («) ; that is, one natural inference if I hold a thing and will not deliver it to the owner is that I repudiate his ownership, and mean to exercise dominion in despite of his title either on my own behalf or on some other claimant's. " If the refusal is in disregard of the plaintiff's title, and for the pui'pose of claiming the goods either for the defendant or for a third person, it is a conversion" (o). But this is not the only possible inference, and may not be the right one. The refusal may be qnalified and provisional : the possessor may say, " I am willing to do right, but that I may be sure I am doing right, give me reasonable proof that you are the true owner " : and such a possessor, even if over- cautious in the amount of satisfaction be requires, can hardly be said to repudiate the true owner's claim (p). Or a servant having the mere custody of goods under the possession of his master as bailee — say the servant of a warehouseman having the key of the warehouse — may reasonably and justifiably say to the bailor demanding his goods : " I cannot deliver them without my master's order " ; and this is no conversion. " An unqualified refusal is almost always conclusive evidence of a con- version ; but if there be a qualification annexed to it, the^ ()«) Stephens y. £liv«U (1815) i (,/) £alme y. Sutton, Ex. Ch. M. & S. 259, 16 E. R. 458; ad- (1H33) 9 Eing. 471, 475. mitted to be sfood law in Holluis v. , \ r\ ■ ■ j t,i i , t ■ T. , T T. » TT T . .,„„ ") Opinion of Blackburn J. m Fowler, L. E. 7 H. L. at pp. 769, „',,. ^ ; t t^ , tt t ' '^'^ ' Ilollms V. Fouier, L. R. 7 H. L. at p. 766. 795, and followed in Barker v. Furlong [1891] 2 Ch. 172, 60 L. J. Ch. 368. Cp. Fine Art Soeietij v. (p) See Burroiighes v. Baijm Union Bank of London (18S6) 17 (1860) 5 H. & N. 296, 29 L. J. Ex. Q. B. Div. 705, 56 L. J. Q. B. 70. 185, 188, supra, p. 351, note n. WHAT IS COX VERSION. ''>'j9 question then is whether it be a reasonable one" (q). 'Again, there may be a wrongful dealing with goods, not under an adverse claim, but to avoid having anything to do with them or with their owner. Where a dispute arises between the master of a ferryboat and a passenger, and the master refuses to carry the passenger, and puts his goods on shore, this may be a trespass, but it is not of itself a conversion (r) . This seems of little importance in modern practice, but we shall see that it might still affect the measure of damages. In many cases the refusal to deliver on demand not only proves but constitutes the conversion. When this is so, the Statute of Limitation runs from the date of the refusal, without regard to any prior act of conversion by a third person (s) . By a conversion the true owner is, in contemplation of law, totally deprived of his goods ; therefore, except in a few very special cases (/), the measure of damages in an action of trover was the full value of the goods, and by a satisfied judgment (««) for the plaintiff the property in the goods, if they still existed in specie, was transferred to the defendant. The mere assertion of a pretended right to deal with Acts not goods or threatening to prevent the owner from dealing ingtocon- with them is not conversion, though it may perhaps be version. (q) Alexander v. Southeij (1821) R. Co. (1879) 4 Ex. Div. 188, 48 5 B. & Aid. 247, per Best J. at L. J. Ex. .545, where however p. 250 ; 24 E. R. .348, 350. Bramwell L. J. was the only raem- (r) Fouldes v. Willou/jhby (1841) ber of the Court who was clear that 8 M. & W. 540, 58 K. R. 803 ; cp. there was auy conversion at all. Wilson V. McLaughlin (1871) 107 («) Not by judgment without Mass. 587. satisfaction: Ex parte Drake [1871) (*) Miller V. Dell [1891] 1 Q. B. 5 Ch. Div. 866, 46 L. J. Bk. 29 ; 468, 60 L. J. Q. B. 404, C. A. following Brinsmead v. Harrison [t) See per Bramwell L. J., 3 (1871) L. R. 6 C. P. 584, 40 L. J. Q. B. D. 490 ; Eiort v. L. # X. IF. C. P. 281. 360 WRONGS TO POSSESSION AND PROPERTY. a cause of action, if i?pecial damage can be shown (,r) ; indeed it is doubtful whether a person not already in possession can commit the wrong of conversion by any act of interference limited to a special purpose, and falling short of a total assumption of dominion against the true owner (y). An attempted sale of goods which does not affect the property, the seller having no title, and the sale not being in market overt, nor yet the possession, there being no delivery, is not a conversion. If under- taken in good faith, it would seem not to be actionable at all ; otherwise it might come within the analogy of slander of title. But if a wrongful sale is followed up by delivery, both the seller (s) and the buyer (a) are guilty of a conversion. Again, a mere collateral breach of con- tract in dealing with goods entrusted to one is not a conversion ; as where the master of a ship would not sign a bill of lading except with special terms which he had no right to require, but took the cargo to the proper port, and was willing to deliver it, on payment of freight, to the proper consignee {b) . Dealings J^ merely ministerial dealing with goods, at the request iiuthority of an apparent owner having the actual control of them, rent^^^' appears not to be conversion (c) ; but the extent of this (.r) JSiigland v. Cowley (1873) L. E. 8 Ex. 126, BeeperKeUyC. B. at p. 132, 42 L. J. Ex. 80. («/) See per Bramwell B. and Kelly C. B., L. R. 8 Ex. 131, 132, and Vnion Credit Sank v. K. S; S. Wales Bank [1899] 2 Q. B. 205, 215, 68 L. J. Q. B. 842. {z) Lancashire Waggon Co. v. Fitzhugh (1861) 6 H. & N. 502, 30 L. J. Ex. 231 (action by bailor against sheriff for selling the goods absolutely as goods of the bailee under a fi. fa. ; the decision is on the pleadings only). («) Cooper v. Willomatt (1845) 1 0. B. 672, 14 L. J. C. P. 219, 68 R. R. 798. (J) Jones X. Bough (1879) 5 Ex. Div. 115, 49 L. J. Ex. 211; cp. Healdx. Carey (next note). (c) Beald v. Carey (1852) 11 C. B. 977, 21 L. J. C. P. 97; 87 R. E. 363 ; but this is really a case of the class last mentioned, for the defendant received the goods ASSUMPTION OF OWNERSHIP. 361 limitation or exception is not precisely defined. The point is handled in the opinion delivered to the House of Lords in IloUins v. Fouier {d) by Lord Blackburn, then a Justice of the Queen's Bench ; an opinion which gives in a relatively small compass a lucid and instructive view of the whole theory of the action of trover. It is there said that " on principle, one who deals with goods at the request of the person who has the actual custody of them, in the bond fide belief that the custodian is the true owner, or has the authority of the true owner, should be excused for what he does if the act is of such a nature as would be excused if done by the authority of the person in possession {e), if he was a finder of the goods, or intrusted with their custody." This excludes from protection, and was intended to exclude, such acts as those of the defendants in the case then at bar : they had bought cotton, innocently and without negligence, from a holder who had obtained it by fraud, and had no title, and they had immediately resold it to a firm for whom they habitually acted as cotton brokers, not making any profit beyond a broker's commission. Still it appeared to the majority of the judges and to the House of Lords that the transaction was not a purchase on account of a certain customer as principal, but a purchase with a mere expectation of that customer (or some other customer) taking the goods; the defendants therefore exercised a real and effective though transitory dominion : and having thus assumed to dispose of the goods, they were liable to the true owner (/) . So would on behalf of the true owner, and sical possession ; in some of the was held to have done nothing cases proposed it would be accom- with them that he might not paniedby legal possession, in other.'! properly do. not. [d) L. K. 7 H. L. at pp. 766—768. (/ ) See per Lord Cairns, L. R. 7 {«) Observe that this means phy- H. L. at p. 797. This principle servants. •562 WRONGS TO POSSESSION AND PROPERTY. the ultimate purchasers have heen (though they hought and used the cotton in good faith), had the phiintifEs thought fit to sue them [g) . Acts of But what of the servants of those purchasers, who handled the cotton under their authority and apparent title, and by making it into twist wholly changed its form ? Assuredly this was conversion enough in fact and in the common sense of the word ; hut was it a conversion in law ? Could any one of the factory hands ha^•e heen made the nominal defendant and liable for the whole value of the cotton ? Or if a thief brings corn to a miller, and the miller, honestly taking him to be the true owner, grinds the corn into meal and delivers the meal to him without notice of his want of title ; is the miller, or are his servants, liable to the true owner for the value of the corn ? Lord Blackburn thought these questions open and doubtful {h). There appears to be nothing in the authorities to prevent it from being excusable to deal with goods merely as the servant or agent of an apparent owner in actual possession, or under a contract with such owner, according to the apparent owner's direction ; neither the act done, nor the contract (if any), purporting to involve a transfer of the supposed property in the goods, and the ostensible owner's direction being one which he could lawfully give if he were really entitled to his apparent interest, and being obeyed in the honest (i) applies to sale and delivery by an reasonable"? It seems not; aper- auctioneer "without notice of the son doing a ministerial act of this apparent owner's want of title : kind honestly but not reasonably Consolidated Co. v. Curtis [1892] 1 ought to be liable for negligence Q. B. 495, 61 L. J. Q. B. 325. to the extent of the actual damage [g) Blackburn J., L. R. 7 H. L. imputable to his negligence, not in 764, 768. trover for the full value of the (h) See last note. goods ; and even apart from the {/) Should we say "honest and technioaleffeot of conversion, negli- CONVERSION BY BAILEE. 'iG'> belief that lie is so entitled. It might or might not he convenient to hold a person excused who in good faith assumes to dispose of goods as the servant and under the authority and for the benefit of a person apparently entitled to possession but not already in posses- sion. But this could not be done without overruling accepted authorities (/.). A bailee is prima facie estopped as between himself Re- and the bailor from disputing the bailor's title (/). A w^baikes. person holding goods as a warehouseman or the like may bring himself under this rule by attornment, and may be estopped, notwithstanding manifest want of title, as against the person to whom he has attorned {m). Hence, as he cannot be liable to two adverse claimants at once, he is also justified in redelivering to the bailor in pursuance of his employment, so long as he has not notice (or rather is not under the effective pressure) [li) of any paramount claim : it is only when he is in danger of such a claim that he is not bound to redeliver to the bailor (o). When there are really conflicting claims, the contract of baiLment does not prevent a bailee from taking inter- gence would be the substantial and C. A. rational ground of liability. Be- («) Biddle v. Sond (1865) 6 B. & haviour grossly inconsistent witb S. 225, 34 L. J. Q. B. 137, where it the common prudence of an honest is said that there must be some- man might here, as elsewhere, be thing equivalent to eviction by title evidence of bad faith. paramount. {k) See Sl(phens v. Elicall (1815) (o) See Sheridan r. Xew Qimy Co. 4 M. & S. 259, 16 R. R. 458 ; (1858) 4 C. B. N. S. 618, 28 L. J. Barker v. Furlong [1891] 2 Ch. 172, C. P. 58 (where note the difference bO L. J. Ch. 368, p. 358, above. in the case of a common carrier) ; (?) 7 Hen. VII. 22, pi. 3, per European and Australian Royal 2Iail Martin. Common learning in Co. y. Eoyal Mail Steam I'aeket Co. modern books. (18C1) 30 L. J. C. P. 247 ; Jessel (m) Hcnderfon-7. Williams [1895] M. R. in Ex parte Daries (1881) 19 1 Q. B. 521, 64 L. J. Q. B. 308, Ch. Div. 86, 90. 364 WEONGS TO POSSESSION AND PROPERTY. Abuse of limited interest. pleader proceedings {p). This case evidently falls ■witliin the principle suggested by Lord Blackburn ; but the rules depend on the special character of a bailee's contract. Where a bailee has an interest of his own in the goods (as in the common cases of hiring and pledge) and under colour of that interest deals with the goods in excess of his right, questions of another kind arise. Any excess what- over by the possessor of his rights under his contract with the owner will of course be a breach of contract, and it may be a wrong. But it will not be the wrong of conversion unless the possessor's dealing is " wholly inconsistent with the contract under which he had the limited interest," as if the hirer for example destroys or sells the goods {q). That is a conversion, for it is deemed to be a repudiation of the contract, so that the owner who has parted with possession for a limited purpose is by the wrongful act itself restored to the immediate right of possession, and becomes the effectual " true owner " capable of suing for the goods or their value. But a merely irregular exercise of power, as a sub-pledge (r) or a premature sale (s) , is not a conversion ; it is at most a wrong done to the reversionary interest of an owner out of possession, and that owner must show that he is really damnified [t). ip) Rogers v. Lambert [1891] 1 Q. B. 318, 60 L. J. Q. B. 187, following Siddle v. Bond, note (n). {q) Blackburn J., L. R. 1 Q. B. C14; Cooper v. WiUomatt, 1 C. B. b72, 14 L. J. C. P. 219, 68 E. B. 7'J8. It can be a trespass only if the bailment is at will. (r) Donald v. Stceklint/ (1886) L. R. 1 Q. B. 685, 35 h. J. Q. B. 232. (s) Ealliday v. HoJr/aie (1868) Ex. Ch. L. R. 3 Ex. 299 ; see at p. 302, 37 L. J. Ex.' 174. {t) In Johnson v. Slear (1863) 15 C. B. N. S. 330, 33 L. J. C. P. 130, nominal damages were given ; but it is doubtful whether, on the reasoning adopted by the majority of the Court, there should not have been judgment for the defendant : see 2 "VVms. Saund. 1 14 ; Black- burn J., L. R. 1 Q. B. 617 ; Bram- well L. J., 3 Q. B. D. 490. DAMAGES FOE CONVERSION. -^65 The teclinioal distinction between an action of detinue or trover and a special action on the case here corresponds to the substantial and permanent difference between a wrongful act for which the defendant's rightful possession is merely the opportunity, and a more or less plausible abuse of the right itself. The case of a common law lien, which gives no power of disposal at all, is different ; there the holder's only right is to keep possession until his claim is satisfied. If he parts with possession, his right is gone, and his attempted disposal merely wrongful, and therefore he is liable for the full value (»). But a seller remaining in possession who resells before the buyer is in default is liable to the buyer only for the damage really sustained, that is, the amount (if any) by which the market price of the goods, at the time when the seller ought to have delivered them, exceeds the contract price (x). The seller cannot sue the buyer for the price of the goods, and if the buyer could recover the full value from the seller he would get it without any consideration : the real substance of the cause of action is the breach of contract, which is to be compensated according to the actual damage (y). A mortgagor having the possession and use of goods under covenants entitling him thereto for a certain time. (m) JIulliner v. Florence (1878) 3 the ultimate purchaser, there being; Q. B. Div. 484, 47 L. J. Q. B. 700, no privity between them: Johnson where an innkeeper sold a guest's v. Lanes. S; Yorkshire E. Co. (1878) •foods. A statutory power of sale 3 C. P. D. 499. was given to innkeepers very Ijj) "A man cannot merely by shortly after this decision (41 & 42 changing his form of action vary the Vict. c. 38), but the principle may amount of damage so as to recover still be applicable in other oases. more than the amount to which he (.r) Chinenj v. Viall (1860) 5 H. is in law really entitled according & N. 288 29 L. J. Ex. 180. Ttiis to the true facts of the case and the rule cannot be applied in favour of real nature of the transaction:" a sub-vendor sued for conversion by per Cur. 29 L. J. Ex. 184. y6G WXWNGS TO POSSESSION AND PROPEETY. determinable by default after notice, is virtually a bailee for a term, and, like bailees in general, may be guilty of conversion by an absolute disposal of the goods ; and so may assigns claiming through him with no better title than his own ; the point being, as in the other cases, that the act is entirel}' inconsistent with the terms of the bailment (s). One may be allowed to doubt, with Lord Blackburn, whether these fine distinctions have done much good, and to wish " it had been originally determined that even in such oases the owner should bring a special action on the case and recover the damage which he actuallj^ sustained" («). Certainly the law would have been simpler, perhaps it would have been juster. It may not be beyond the power of the House of Lords or the Court of Appeal to simplify it even now ; but our business is to take account of the authorities as they stand. And as they stand, we have to distinguish between — (i) Ordinary cases of conversion where the full value can be recovered : (ii) Cases where there is a conversion but only the plaintiff's actual damage can be recovered : (iii) Cases where there is a conversion but only nominal damages can be recovered ; but such cases are anomalous, and depend on the sub- stantial cause of action being the breach of a contract between the parties ; it seems doubtful whether they ought ever to have been admitted [b) : (z) Feiiii T. Bittleston (1851) 7 Ex. [a] L. E. 1 Q. B. at p. 614. 152, 21 L. J. Ex. 41, 86 E. E. (A) On the question whether full 693 ; -where see the distinctions as or only nominal damages can be to trespass and larceny carefully recovered for conversion of a docu- noted in the judgment delivered by ment which is not negotiable, but Parke B. only evidence of a debt, see Bavins, TENANTS IN COMMON. ''*j' (iv) Cases where tliere Is not a conversion, but an action (formerly a special or innominate action on the case) lies to recover the actual damage. A man may be liable by estoppel as for the conversion Conver- of goods which he has represented to be in his possession estoppel. or control, although in fact they were not so at any time when the plaintiff was entitled to possession (c). And he may be liable for conversion by refusal to deliver, when he has had possession and has wrongfully delivered the goods to a person having no title. He cannot deliver to the person entitled when the demand is made, but, having disabled himself by his own wrong, he is in the same position as if he still had the goods and refused to deliver {d). Conversely, a plaintiff may be estopped by conduct which amounts at any rate to an apparent authority to deal with the goods in the manner com- plained of (e). YI. — Injuries between Tenants in Common. As between tenants in common of either land or chattels Tres- ses ween there cannot be trespass unless the act amounts to an ^otw actual ouster, i.e. dispossession. Short of that " trespass *o^°o^™ will not lie by the one against the other so far as the land is concerned" (/). In the same way acts of legitimate ;■)■. ^ Sims V. i. 4- S. TF. Bank (e) Union Credit Bank v. Mcrseij [1900] 1 Q. B. 270, 69 L. J. Q. B. Socks and Barhoiir Board [1899] 2 164, C A., where the plaintiffs Q. B. 205, 68 L. J. Q. B. 842. As were held entitled to recover in to what will and will not amount full on other grounds. to such authority, see Farqukarson {c) ,Srfo«v. i»/o«c(1887)19Q. B. Bros. # Co. v. King % Co. [1902] Div. 68, 56 L. J. Q. B. 415. A. C. 325, 71 L. J. K. B. 667. {d) Bristol and W. of England Bank v. Midland S. Co. [1891] 2 (/) Lord Hatherley, Jacobs v. Q B 653, 61 L. J. Q. B. 115, 65 Seward (1872) L. E. 5 H. L. 464, L. T. 234, C. A. 472, 41 L. J. 0. P. 221. 368 WRONGS TO POSSESSION AND PEOPEETY. use of the common property cannot become a conversion through subsequent misappropriation, though the form in which the property exists may be wholly converted, in a wider sense, into other forms. There is no wrong to the co-tenant's right of property until there is an act inconsistent with the enjoyment of the property by both. For every tenant or owner in common is equally entitled to the occupation and use of the tenement or property (g) ; he can therefore become a trespasser only by the manifest assumption of an exclusive and hostile possession. It was for some time doubted whether even an actual expulsion of one tenant in common by another were a trespass ; but the law was settled, in the latest period of the old forms of pleading, that it is (h) . At first sight this seems an exception to the rule that a person who is lawfully in possession cannot commit trespass : but it is not so, for a tenant in common has legal possession only of his own share. Acts which involve the destruction of the property held in common, such as digging up and carrying away the soil, are deemed to include ouster (/) ; unless, of course, tlie very nature of the property (a coal-mine for example) be such that the working out of it is the natural and necessary course of use and enjoyment, in which case the working is treated as rightfully undertaken for the benefit of all entitled, and there is no question of trespass to property, but only, if dispute arises, of accounting for the proceeds (A). The normal rights of co-owners as to possession and use may be modified by contract. One of them may thus have the exclusive right to possess the chattel, and the ((/) Litt. s. 323. (i) TTilkinson v. Saygarth (1846) (/() MurraijM.Sall (1849) 7 0. B. 12 Q. B. 837, 16 L. J. Q. B. 103, 441, 18 L. J. C. P. 161, 78 E E. Co. Litt. 200. 708, and Bigelow L. 0. 343. (A) Job v. Fotton (1875) L. E. 2() Eq. 84, 44 L. J. Ch. 262. RULE IN FAVOUR OF POSSESSION. 369 other may liave temporaiy possession or custody, as his bailee or servant, without the power of conferring any jiossessory right on a third person even as to his own share. In JVt/berg v. Handelaar (/) A. had sold a half sliare of a valuable chattel to B., on the terms that A. should retain possession until the chattel (a gold enamel box) could be sold for their common benefit. Afterwards A. let B. have the box to take it to an auction room. Then B., thus having manual possession of the box, delivered it to Z. by way of pledge for a debt of his own. The Court of Appeal held that Z. had no defence in an action by A. The judgments proceed on the assumption that B., -while remaining owner in common as to half the property, had acquired possession only as bailee for a special purpose, and his wrongful dealing with it deter- mined the bailment, and re-vested A.'s right to immediate possession (?«). YII. — Extended Protection of Possession. An important extension of legal protection and remedies Rights of has yet to be noticed. Trespass and other violations of possessor jjossessory rights can be committed not only against the '^o^i^^^t person who is lawfully in possession, but against any person who has legal possession, whether rightful in its origin or not, so long as the intruder cannot justify his act under a better title. A mere stranger cannot be heard to say that one whose possession he has violated was not entitled to possess. Unless and until a superior title or [1) [1892] 2 Q. B. 202, 61 L. J. on the facts, B. was even a bailee, ). As regards real propertj', a possession commencing by trespass can be defended against a stranger not only by the first wrongful occupier, but by those claiming through him ; in fact it is a good root of title as against every one except the person really entitled (o); and ultimately, by the operation of the («) Graham v. Feat (1801) 1 East subject-matter admits of is good 244, 246, 6 R. R. 268 ; Jeffries v. evidence of possession. See Harper G. W. R. Co. (18o6) 5 E. & B. 802, v. Charlesworth (1826) 4 B. & C. .574, 2.3 L. J. Q. B. 107 ; Bourne v. Fos- 28 R. R. 405, and other authorities hroolce (1865) 18 C. B. N. S. 51.5, collected in Pollock and "Wright on 34 L. J. 0. P. 164 ; extending' the Possession, 31 — 35. principle of Armouj v. Lelaiiurie (o) Aiherv. JK/iiHock {186o)lj.'R. (1722) 1 Str. 504 [505], and in 1 1 Q. B. 1, 35 L. J. Q. B. 17, ap- Sm. L. C. ; D. 41, 3, de poss. 53, proved in Ferry v. Cli'^f.old [1907] cf. Paulus Sent. Rec. v. 11 § 2: A. C. 73, J. 0.; cp. .Cutts v. Sprin(/ " sufUcit ad probationem si rem (1818) 15 Mass. 135, and Bigelow corporaliter teneam." The rule is L. C. 341 ; Eosenberg v. Cook (1881) noTvtreafed as settled in the C. A., 8 Q. B. Div. 62, 51 L. J. Q. B. 170 ; see The Tl'mkjield [1902] P. 42, 64, Falton v. Fitzgerald [1897] 2 Ch. 55, 71 L. J. P. 21, and the Judicial 86, 90, 66 L. J. Ch. 604, per Lind- Committee : Glenwood Lumber Go. ley, L. J. ; and see further Pollock V. Fhillips [1904] A. C. 405, 73 and Wright, o^. a^ 95— 99, and as L. J. P. C. 62. And such use and to land notes in Radoliffe and Miles, enjoyment as the nature of the Cases on Torts, at pp. 282, 288. RULE IN FAVOUR OF POSSESSION. ''"l Statutes of Limitation, it may tecome so as against him also. The authorities do not clearly decide, but seem to imply, that it would make no difference if the de facto possession violated by the defendant were not only without title, but obviously wrongful. But the rule is in aid of de facto possession only. It will not help a claimant who has been in possession but has been dispossessed in a lawful manner and has not any right to possess {p), nor one who has never had possession [q). This rule in favour of possessors is fundamental in both civil and criminal jurisdiction. It is indifferent for most practical purposes whether we deem the reason of the law to be that the existing possession is prima facie evidence of ownership or of the right to possess — " the presumption of law is that the person who has possession has the property " (r) : — or that, for the sake of public peace and security, and as "an extension of that protection which the law throws around the person " (s), the existing pos- session is protected, without regard to its origin, against all men who cannot make out a better right : — or say {t) that [p) Buckley t. Gross (1863) 3 {s) Lord Denman C. J. in Sogers B. & S. 566, 32 L. J. Q. B. 129. v. Spence (1844) 13 M. & W. at (?) Leake v. Lmedaij (1842) 4 p. 581, 67 K. R. 74. This is pre- Man. & Gr. 972, 61 R. R. 707. ciselySavigny's theory, which how- (c) Lord CampheU C. J. in ever is not now g-enerally accepted Jeffries V. G. JT. R. Co. (1856) 6 by students of Roman law. In E. &. B. at p. 806, 25 L. J. Q. B. some respects it fits the common 107 ; but this does not seem con- law better. Mr. Justice Holmes in sistent with the protection of even ' ' The Common Law ' ' takes a view a manifestly wrongfvd possessor ejusdem generis, but distinct (the law against a new extraneous wrong- takes the instinct of mankind for doer. In Roman law a thief has resisting intrusion as it is, and tries the interdicts though not the actio to satisfy it in an orderly manner). fnrti, which requires a lawful (t) With Ihering (Grund des interest in the plaintiff; in the Besitzesschutzes, 2nd ed. 1869). common law it seems that he can Cp. the same author's "DerBesitz- maintain trespass. wUle," 1889. bb2 o~2 WRONGS TO POSSESSION AND PROPERTY. the law protects possession for the sate of true owners, and to relieve them from the vexatious burden of continual proof of title, but cannot do this effectually without protecting wrongful possessors also. Such considerations may be guides and aids in the future development of the law, but none of them will adequately explain how or why it came to be what it is. Rights of Again, as de facto possession is thus protected, so de entitled to ./'"''^ possession — if by that term we may designate an resume immediate right to possess when separated from actual possession. o i i. legal possession — was even under the old system of pleading invested with the benefit of strictly possessory remedies ; that is, an owner who had parted with pos- session, but was entitled to resume it at will, could sue in trespass for a disturbance by a stranger. Such is the case of a landlord where the tenancy is at will (l), or of a bailor where the bailment is revocable at will, or on a condition that can be satisfied at will ; which last case includes that of a trustee of chattels remaining in the control and enjoyment of the resftii que truaf, for the relation is that of liailment at will as regards the legal interest [u). Tn this way the same act may be a trespass both against the actual possessor and against the person entitled to resume possession. " He who has the property may have a writ of trespass, and he who has the custody another writ of trespass" (.r). " If I let my land at will, and a stranger enters and digs in the land, the tenant may bring trespass for his loss, and I may bring trespass for the loss and destruction of my land" {t). And a [t) Bro. Ab. Trespas, pi. 131 ; servant is beaten and the master 19 Hen. VI. 45, pi. 91, where it is has an action for loss of service, pointed out that the trespasser's act (it) See Barker v. J'aj-fowjr [1S91] is one, but the causes of action are 2 Ch. 172, 60 L. J. Ch. 368. " diversia respeotibus," as where a [x) 48 Edw. III. 20, pi. 8. DERIVATIVE POSSESSORS. '>"^ lessor or bailor at will might have an action of trespass (■/ ef armin against the lessee or bailee himself where the latter had abused the subject-matter in a manner so inconsistent with his contract as to amount to a determination of the letting or bailment. " If tenant at will commit voluntary waste, as in pulling down of houses, or in felling of trees, it is said that the lessor shall have an action of trespass for this against the lessee. As if I lend to one my sheep to tathe his land or my oxen to plow the land, and he killeth my cattle, I may well have an action of trespass against him notwith- standing the lending " (y). An exclusive right of appropriating things in which property is acquired only by capture is on the same footing in respect of remedies as actual possession (s) . Derivative possession is equally protected, through Rights of derivative whatever number of removes it may have to be traced possessors. from the owner in possession, who (by modern lawyers at any rate) is assumed as the normal root of title. It may happen that a bailee delivers lawful possession to a third person, to hold as under-bailee from himself, or else as immediate bailee from the true owner ; nay mcjre, he may re-deHver possession to the owner for a limited purpose, so that the bailor has possession and is entitled to possess, not in his original right, hut in a subordinate right derived from his own bailee («). Such a right, while it exists, is as fully protected as the primary right of the (y) Litt. H. 71. If any doubt be minatiou of his will." implied in Littleton's "it is said," (z) Holford v. Bailey (1849) 13 Coke's commentary removes it. Q. B. 426, 18 L. J. Q. B. 109, Such an act "concemeth so much 78 R. R. 432, Ex. Ch. the freehold and inheritance, as it («) Roberts v. Wyalt (1810) 2 doth amount in law to a, deter- Taunt. 268, 11 R. E. 566. 0/4 WRONGS TO POSSESSION AND PROPERTY. owner would have been, or the secondary right of the "bailee would be. Possession Troublesome questions were raised under the old law through by the position of a person who had got possession of lespasser. ggods through delivery made by a mere trespasser or by an originally lawful possessor acting in excess of his right. One who receives from a trespasser, even with full know- ledge, does not himself become a trespasser against the true owner, as he has not violated an existing lawful possession {b) . The best proof that such is the law is the existence of the offence of receiving stolen goods as distinct from theft; if receiving from a trespasser made one a trespasser, the receipt of stolen goods with the intention of depriving the true owner of them would have been larceny at common law. Similarly where a bailee wrongfully delivers the goods over to a stranger ; though the bailee's mere assent will not prevent a wrongful taking by the stranger from being a trespass (c) . The old law of real property was even more favourable to persons claiming through a disseisor ; but it would be useless to give details here. At the present day the old forms of action are almost everywhere abolished ; and it is quite certain that the possessor under a wrongful title, even if he is himself acting in good faith, is by the common law liable in some form to the true owner (d ) , and in the case of goods must submit to recapture if the owner can and will retake them (e). In the theoretically {b) ll'il.ton V. Barker (1S33) 4 this was probably an innovaUon at B. & Ad. 614. the time, for Brian dissented. The (c) 27 Hen. VII. 39, pi. 49 ; op. action appears to have been on the 10 Hen. Vn. 2, pi. 7 ; Mennie \. case for spoiling the goods. Blake (1856) 6 E. & B. 842, 25 (e) See Blades y. Eiggs (1865) L. J. Q. B. 399. 11 H. L. C. 621, 34 L. J. C. P. (d) 12 Edw. IV. 13, pi. 9 ; but 286, where this was assumed with- INCOEPOKEAL EIGHTS. -575 possible case of a series of changes of possession hj inde- pendent trespasses, it would seem that every successive wrong-doer is a trespasser only as against his immediate predecessor, whose dc facto possession he disturbed: though as regards land exceptions to this principle, the extent of which is not free from doubt, were introduced by the doctrine of " entry by relation " and the practice as to recovery of mesne profits. But this too is now, as regards civil liability, a matter of mere curiosity (/). VIII. — Wrongs to Easements, etc. Easements and other incorporeal rights in property, violation " rather a fringe to property than property itself " as °q"°°^' they have been ingeniously called {g) , are not capable in rights. an exact sense of being possessed. The enjoyment which may in time ripen into an easement is not possession, and gives no possessory right before the due time is fulfilled : " a man who has used a way ten years without title cannot sue even a stranger for stopping it" {/i). The only possession that can come in question is the out discussion, only the question between trespass and larceny, has of property being' argued. But in several directions prevented the probably that case goes too far in law of trespass from being logical. allowing recapture by force, except For the law of trespass to land as perhaps on fresh pursuit : see p. aflFected by relation, see Harnett v. 388 below. Guildford (1835) II Ex. 19, 24 (/) The common law might con- L. J. Ex. 280; Anderson v. Rad- ceivably have held that there was cliffe (1860) Ex. Ch., E. B. & E. a kind of privity of wrongful estate 819, 29 L. J. Q. B. 128, and between an original trespasser and Bigelow L. 0. 361 — 370. persons claiming through him, and , v ■>, /-,■,, t> j? i ii. \ ,.,,,,,. J. Ul) Mr. Gibbons, Preface to the thus applied the doctrine of con- yy tinuing trespass to such persons ; and this would perhaps have been the more logical course. But the (k) Holmes, The Common Law, natural dislike of the judges to 240, 382 ; Oreenhalgh v. Braidky multiplying capital felonies, operat- [1901] 2 Ch. 324, 328, 70 L. J. Ch. ing on the intimate connexion 740. fifth edition of Gale on Easements, 1876. WRONGS TO POSSESSION AND PKOPEETY. possession of the dominant tenement itself, the texture of legal rights and powers to which the " fringe " is incident. Nevertheless disturbance of easements and the like, as completely existing rights of use and enjoyment, is a wrong in the nature of trespass, and remediable by action without any allegation or proof of specific damage («) ; the action was on the case under the old forms of pleading, since trespass was technically impos- sible, though the act of disturbance might happen to include a distinct trespass of some kind, for which trespass would lie at the plaintiff's option. To consider what amounts to the disturbance of rights in re alieiia is in effect to consider the nature and extent of the rights themselves {k), and this does not enter into our plan, save so far as such matters come under the head of Nuisance, to which a separate chapter is given. Franchises and incorporeal rights of the like nature, as- patent and copyrights, present something more akin to possession, for their essence is exclusiveness ; and indeed trespass was the proper remedy for the disturbance of a strictly exclusive right. " Trespass lies for breaking and entering a several fishery, though no fish are taken." And (i) 1 Wms. Saund. 626 ; Hurrop from alleged •wrong-ful acts. Yet V. Hirst (1868) L. E. i Ex. i'i, 43, it is clear that a work on Torts is- 38 L. J. Ex. 1. not the place to consider the many [li) Thus Hopkins v. G. X. R. Co. and diverse opinions expressed in (1877) 2 Q. B. DLv. 224, 46 L. J. Ballon v. Angus, or to define the Q. B. 266, sets bounds to the exclu- franchise of a ferry or maiket. sive right conferred by the franchise Again, the later case of Allorney- of a ferry, and Dajton v. Angus General v. Horner (I8S.5) 11 App. (1881) 6 App. Ca. 740, 50 L. J. Ca. 66, 55 L. J. Q. B. 193, inter- Q. B. 689, discusses with the utmost prets the grant of a market in swe fulness the nature and extent of the juxta quodam loco, on an information right to lateral support for build- alleging encroachment on public ings. Both decisions were given, ways by the lessee of the market, in form, on a claim for damages and claiming an injunction. LICENCE AND INTEREST. '"^77 SO it has always been held of a free warren {/). Bnt the same remark applies ; in almost every disputed case the question is of defining the right itself, or the conditions of the right (;h) ; and de facto enjoyment does not even pro- visionally create any substantive right, but is material only as an incident in the proof of title. IX. — Grounds of Justification and Excuse. Acts of interference with laud or goods may be justified Licence, by the consent of the occupier or owner; or they may be justified or excused (sometimes excused rather than justified, as we shall see) by the authority of the law. That consent which, without passing any interest in the property to which it relates, merely prevents the acts for which consent is given from being wrongful, is called a licence. There may be licences not affecting the use of property at all, and on the other hand a licence may be so connected with the transfer of property as to be in fact inseparable from it. " A dispensation or licence properly passeth no interest, nor alters or transfers property in anything, but only makes an action lawful, which without it had been unlawful. As a licence to go beyond the seas, to hunt in a man's park, to come into his house, are only actions which without licence had been unlawful. But a licence to hunt in a man's park and carry away the deer killed to his own use, to cut down a tree in a man's ground, and to carry it away the next day after to his own use, are licences as to the acts of hunting and cutting down {!) Solford V. Sailey, Ex. Ch. the authorities collected in argu- (1848-9) 13 Q. B. 426, 18 L. J. ment in Eolford v. Bailey in the Q. B. 109, 78 R. R. 432. Cp. Court below, 8 Q. B. at p. 1010. Fitzgerald v. Firbank [1897] 2 Ch. 96, 66 L. J. Ch. 529, C. A. See [m) See note (/t), last page. ■-"^ WEONGS TO POSSESSION AND PEOPERTY. the tree, but as to the carrying away of the deer killed and tree cut down they are grants. So to licence a man to eat my meat, or to fire the wood in my chimney to warm him by ; as to the actions of heating, firing my wood and warming him, they are licences : but it is consequent necessarily to those actions that my property be destroyed in the meat eaten, and in the wood burnt. So as in some cases by consequent and not directly, and as its effect, a dispensation or licence may destroy and alter property " (m) . Kevoca- Generally speaking, a licence is a mere voluntary tion of .„,.,., licence : Suspension of the licensor s right to treat certain acts tion when ^^ wrongful, comes to an end by any transfer of the coupled property with respect to which the licence is given (»), interest, and is revoked by signifying to the licensee that it is no longer the licensor's will to allow the acts permitted by the licence. The revocation of a licence is in itself no less effectual though it may be a breach of contract. If the owner of land or a building admits people thereto on payment, as spectators of an entertainment or the like, it may be a breach of contract to require a person who has duly paid his money and entered to go out, but a person so required has no title to stay, and if he persists in staying he is a trespasser. His only right is to sue on the contract (o), as he clearly may do where a contract (m) Vaughan C. J., Thomas v. E. R. 831 ; Hyde v. Graham (1862) Son-eH (1672) Vaughan 351. See 1 H. & C. 593, 32 L. J. Ex. 27. A comment on this passage per Romer contract to carry passengers does L. J. in Frank Warr (J- Co. v. not oonstitnte or include a licence L. C. G. [1904] 1 K. B. at p. 721, so as to let in this doctrine, though 73 L. J- K. B. 368. part or the whole of the journey (») JVaUis V. Harrison (1838) 4 may he on land belonging to the raUway company or other carrier : M. & W. 838, 8 L. J. Ex. 44, 51 ^,,,^^,, ^_ ^^ g_ ^ j- ^_ ^,^^ ^^ ^- ^- "^- 21 Q. B, Div. 207, 57 L. J. Q. B. (o) JFood V. Leadbitter (1845) 13 564. The reason is perhaps open M. & W. 838, 14 L. J. Ex. 161, 67 to criticism : see L. Q. R. v. 99. LICENCE AND INTEREST. exists (p) : "when, indeed, he may get an inj unction, and so be indirectly restored to the enjoyment of the licence (q). But if a licence is part of a transaction whereby a lawful interest in some property, besides that which is the imme- diate subject of the licence, is conferred on the licensee, and the licence is necessary to his enjoyment of that interest, the Kcence is said to be " coupled with an interest " and cannot be revoked until its purpose is fulfilled : nay more, where the grant obviously cannot be enjoyed without an incidental licence, the law will annex the necessary licence to the grant. " A mere licence is revocable ; but that which is called a licence is often something more than a licence ; it often comprises or is connected with a grant, and then the party who has given it cannot in general revoke it so as to defeat his grant to which it was incident" (r). Thus the sale of a standing crop or of growing trees imports a licence to the buyer to enter on the land so far and so often as reason- ably necessary for cutting and carrying off the crop or the trees, and the licence cannot be revoked until the agreed time, if any, or otherwise a reasonable time for that purpose has elapsed (s). The diversity to be noted between licence and grant is of respectable antiquity. In 1460 the defendant in an action of trespass set up a right of common ; the plaintiS said an excessive number of beasts were put in ; the defendant said this was by licence of the plaintiff; to which the plaintiff said the (p) Kerrison v. Smith [1897] 2 (r) ll'ood v. LeadhUter (1845) 13 Q. B. 445, 66 L. J. Q. B. 762, M. & W. 838, 844, 14 L. J. Ex. decided -wholly on common law 161, 67 R. R. 831,836; Hewitt v. authorities. Isham (18-51), 7 Ex. 77, 21 L.J. (q) See Frogley\. Earl of Lovelace Ex. 35, 86 E. R. blG. (1859) Joh. 333, where however the aoreement was treated as an agree- (s) See farther 2 Wms. Saund. ment to execute a legal grant. 363 — 365. 379 ^80 WRONGS TO POSSESSION AND PROPERTY. licence "was revoked before the trespass complained of ; Billing, then king's Serjeant, afterwards Chief Justice of the King's Bench under Edward IV., argued that a licence may be revoked at will even if expressed to be for a term, and this seems to have so much impressed the Court that the defendant, rather than take the risk of demurring, alleged a grant : the reporter's note shows that he thought the point new and interesting {t) . But a licensee who had entered or placed goods on land under a revocable licence is entitled to have notice of revocation and a reasonable time to quit or remove his goods [it). Executed Again, if the acts licensed be such as have permanent licences. . . . . results, as in altering the condition of land belonging to the licensee in a manner which, but for the licence, would be a nuisance to adjacent land of the licensor ; there the licensor cannot, by merely revoking the licence, cast upon the licensee the burden of restoring the former state of things. A licence is in its nature revocable (.?), but the revocation will not make it a trespass to leave things as the execution of the licence has made them. In this sense it is said that " a licence executed is not counter- mand able " (//). When a licence to do a particular thing once for all has been executed, there is nothing left to revoke. Whether and how far the licensor can get rid of the consequences if he mislikes them afterwards is another and distinct inquiry, which can be dealt with only by considering what those consequences are. He may (<) 39 Hen. VI. 7, pi. 12. [y] Winter v. Brocknell (1807) 8 {«) Cornish v. Stuhbs (1870) L. R. East, 308, 9 R. R. 454. This class 5 C. P. 334, 39 L. J. C. P. 202; of cases is expressly recognized and Itellor V. V'alkins (1874) L. R. 9 Ai&tmgnishediin jrood r. Zeadbitter, Q. B. 400. 13 M. & W. at p. 855, 67 R. R. (.r) Wood V. Lcndiitter, note {>•) 845. last page. LICENCE AND INTEREST. '381 doubtless get rid of them at his own charges if he hxwfully can : hut he cannot call on the licensee to take any active steps unless under some right expressly created or reserved. Por this purpose, therefore, there is a material difference between " a licence to do acts which consist in repetition, as to walk in a park, to use a carriage-way, to fish in the waters of another, or the like," which may be counter- manded without putting the licensee in any worse position than before the licence was granted, and " a licence to construct a work which is attended with expense to the party using the licence, so that, after the same is counter- manded, the party to whom it was granted may sustain a heavy loss"(s). And this rule is as binding on a licensor's successors in title as on himself {a). But it is not applicable (in this country at any rate) to the extent of creating in or over land of the licensor an easement or other interest capable of being created only by deed (i). In those cases, however, the licensee is not necessarily without remedy, for the facts may be such as to confer on him an interest which can be made good by way of equitable estoppel (c). This form of remedy has been extensively applied in the United States to meet the hardship caused by untimely revocation of parol licences to erect dams, divert watercourses, and the like {d). {z) Liffffiiis V. Inffe (183^) 7 Bing. parol demise may operate as a 682, 694, 33 R. R. 615, 625, per licence). Cur. (c) See Flimmer v. Mayor of («) Ibid. ll'eUinglon, X.Z. (1884) 9 App. Ca. {b) irood V. Leadbitter, note (r) 699, 53 L. J. P. C. 104, where tte p. 379 above ; Baffeij t. Henderson two principles do not appear to be (1851) 17 Q. B. 574, 21 L.J. Q. B. sufficiently distinguished. Op. 49 ; Hewitt v. Isham (1851) 7 Ex. 3Lc3IaiHi.s v. Cooke (1887) 35 Ch. D. 77, 21 L. J. Ex. 35, 88 R. R. 576 681 , 696, per Kay J. ; 56 L. J. Ch. (showing that conversely what 662. purports to be a reservation in a [d) It seems to have Eometimes 382 WRONGS TO POSSESSION AND PROPERTY. The case of a contract to grant an easement or other interest in land must be carefully distinguished when it occurs (e). Expres- sion of licensor's Tvill. The grant or revocation of a licence may be either by express words or by any act sufficiently signifying the licensor's will : if a man has leave and licence to pass through a certain gate the licence is as effectually revoked by locking the gate as by a formal notice (/). In the common intercourse of life between friends and neighbours tacit licences are constantly given and acted on. Distinc- tion from grant as regards strangers. We shall have something to say in another connexion (g) of the rights — or rather want of rights — of a " bare licensee." Here we may add that a licence, being only a personal right — or rather a waiver of the licensor's rights — is not assignable, and confers no right against any third person. If a so-called licence does operate to confer an exclusive right capable of being protected against a stranger, it must be that there is more than a licence, namely the grant of an interest or easement. And the question of grant or licence may further depend on the question whether the specified mode of use or enjoyment is known to the law as a substantive right or interest (h) : a question that may be difficult. But it is submitted that been thought in America that the only difficulty arises from the Statute of Frauds, which is of course a mistake : Jl'ood v. Lead- bitter, p. 379, above. The limits of the doctrine are in this country fixed by Bamsden v. Dyson (1866) L. R. 1 H. L. 129. (e) See Smart v. Jones (1864) 33 L. J. C. P. 154. (/) See Sydey. Graham, iiote{o), p. 378. {g) Chap. XII. below, ad Jin. (A) Compare XuttaU v. Bracewell (1866) L. R. 2 Ex. 1, 36 L. J. Ex. 1, with Ormerod v. Todmorden Jlill Co. (1883) 11 Q. B. Div. 153, 52 L. J. Q. B. 445 ; and see Gale on Easements, 7th ed. 42, 285. Contra the learned editors of Smith's Leading Cases, in the notes to Aniwry v. JJ-Iamirie. LICENCE AND INTEREST. 5S3 on principle the distinction is clear. I call at a friend's house ; a contractor who is doing some work on adjacent land has encumbered my friend's drive with rubbish ; can it be said that this is a wrong to me without special damage ? With such damage, indeed, it is (i), but only because a stranger cannot justify that which the occupier himself could not have justified. The licence is material only as showing that I was not a wrong-doer myself ; the complaint is founded on actual and specific injury, not on a quasi trespass. Our law of trespass is not so eminently reasonable that one need be anxious to extend to licensees the very large rights which it gives to owners and occupiers. As to justification by authority of the law, this is of two Justifica- ^ . ^ tion by kinds: la-^. 1. In favour of a true owner against a wrongful possessor ; under this head come re-entry on land and retaking of goods. 2. In favour of a paramount right conferred by law against the rightful possessor ; which may be in the execution of legal process in the assertion or defence of private right, or in some cases by reason of necessity. A person entitled to the possession of lands or tenements Ee-entry does no wrong to the person wrongfully in possession ^oToihle^ by entering upon him; and it is said that by the old ^"^^T- common law he might have entered by force. But forcible entry is an offence under the statute of 5 Eic. II. (a.d. 1381), which provided that "none from henceforth make any entry into any lands and tenements, but in case where entry is given by the law, and in such case (i) Coriy v. mil (1858) 4 C. B. N. S. 556, 27 L. J. C. P. 318. See more in Chap. XII. below. 384 WRONGS TO POSSESSION AND PEOPERTY. not with strong hand nor multitude of people, but only in peaceable and easy [the true reading of the Parliament EoU appears to be ' lisible, aisee, & peisible'] manner." This statute is still in law here, and has been re-enacted in the several American States, or recognized as a part of the common law (k). The oifence is equally committed whether the person who enters by force is entitled to possession or not : but opinions have differed as to the effect of the statute in a court of civil jurisdiction. It has been held that a rightful owner who enters by force is not a trespasser, as regards the entry itself, but is liable for any independent act done by him in the course of his entrj' which is on the face of it wrongful, and could be justified only by a lawful possession (/) ; and, it should seem, for any other consequential damage, within the general limit of natural and probable consequence, distinguishable from the very act of eviction. This is a rather subtle result, and is further complicated by the rule of law which attaches legal possession to physical control, acquired even for a very short time, so it be "definite and appreciable" (w), by the rightful owner. A., being entitled to immediate possession (say as a mort- gagee having the legal estate), effects an actual entry by taking off a lock, without having given any notice to quit to B. the precarious occupier: thus "in a verj^ rough and uncourteous way," that is, peaceably, but only just peaceably, he gets possession : once gotten, however. (/,) For the remedial powers given {I) BeddallY. Maitland (ISSl) 17 to justices of the peace by later Ch. D. 174, 50 L. J. Ch. 401 ; statutes, see Lambard'sEirenaroha, Edivick v. Hawhes (1881) 18 Ch. D. cap. 4; 15 Ric. II. c. 2, is still 199, 50 L. J. Ch. 577, and authori- nomiually in force. As to what ties there discussed, amounts to forcible entry, Jones T. Foley [1891] 1 Q. B. 730, 60 (m) Lord Cairns in Zows t. Tel- L. J. Q. B. 464. ford (1876) 1 App. Ca. at p. 421. FORCIBLE ENTEY. 385 his possession is both legal and rightful. If therefore B. turns him out again by force, there is reasonable and probable cause to indict B. for a forcible entry. So the House of Lords has decided (n) . Nevertheless, according to later judgments, delivered indeed in a court of first instance, but one of them after consideration, and both learned and careful, A. commits a trespass if, being in possession by a forcible entry, he turns out B. (o). More- over, the old authorities say that a forcible turning out of the person in present possession is itself a forcible entr}', though the actual ingress were without violence. ■' He that entereth in a peaceable show (as the door being either open or but closed with a latch only), and yet when he is come in useth ■violence, and throweth out such as he findeth in the place, he (I say) shall not be excused : because his entry is not consummate by the only putting of his foot over the threshold, but by the action and demeanour that he offereth when he is come into the house " (p). And under the old statutes and practice, "if A. shall disseise B. of his land, and B. do enter again, and put out A. with force, A. shall be restored to his possession by the help of the justices of the peace, although his first entry were utterly wrongful : and (not- withstanding the same restitution so made) yet B. may well have an assize against A., or may enter peaceably upon him again " [q). But old authorities also distinctly say that no action is («) Lows V. Telford (1876) 1 case of doubt, legal possession App. Ca. 414, 45 L. J. Ex. 613. follows title. Mr. Lightwood seems right in (o) See the judgment of Ery .J. pointing out (Possession of Land, in Beddall v. Maitland and Edwivfc Lond. 1894, p. 38) that even if v. Hawkes, note [T) last page, complete physical possession had (^) Lambard'8Eirenaroha,cap. 4, not been gained the decision would p. 142, ed. 1610. be justified by the rule that, in (t v. Mibs (1847) i C. B. 172, 17 L. J. 0. P. 150. (n) As to distress in general, Elackst. Comm. book iii, u. 1. (o) " All chattels whateTer are distrainable damage feasant ;" Gil- bert on Distress and Eeplevin (4th «d. 1823) 49. A looomotiTe has been distrained damage feasant : Ambergate, ^e. S.. Co. v. Midland S. Co. (1853) 2 E. & B. 793 ; it ■was not actually straying, but had been put on the Midland Company's line without the statutable approval of that company. {p) Soscoe V. Soden ; Boden v. Eoscoe [1894] 1 Q. B. 608, 63 L. J. Q. B. 767. DISTRESS. 391 moner for sviroharging (q) . And where a man is lawfully driving cattle along a highway, and some of them stray from it into ground not fenced off from the way, he is entitled to a reasonable time for driving them out before the occupier may distrain, and is excused for following them on the land for that purpose. What is reasonable time is a question of fact, to be determined with reference to all the circumstances of the transaction (r). And where cattle stray by reason of the defect of fences which the occupier is bound to repair, there is no actionable trespass and no right to distrain until the owner of the cattle has notice («). In one respect distress damage feasant is more favoured than distress for rent. " For a rent or service the lord cannot distreine in the night, but in the day time : and so it is of a rent charge. But for damage feasant one may distreine in the night, otherwise it may be the beasts will be gone before he can take them " (t). But in other respects "damage feasant is the strictest distress that is, for the thing distrained must be taken in the very act," and held only as a pledge for its own individual trespass, and other requirements observed- Distress damage feasant suspends the right of action for the trespass (n). The right of distress damage feasant does not exclude the right to chase out trespassing beasts at one's election (x), [q) OapeTT. Scott (1874) L. R. 9 already straying when they oome to Q. B. 269, 43 L. J. Q. B. 65. It the defective fence; see Luscombe is settled that a commoner can dis- v. G. W. R. Co. [1899] 2 Q. B. 313, train the cattle of a stranger, not- 68 L. J. Q. B. 711. -withstanding that an action of {t) Co. Litt. 142«. trespass would not lie (22 Ass. pi. (««) VasporY. Edwards (1701) 12 48) for the disturbance. Mod. 660, where the incidents of (r) Goodwin v. Checehy (1859) 4 damage feasant generally are ex- H. & N. 631, 28 L. J. Ex. 298. pounded, and see p. 397, below. (s) 2 Wms. Saund. 671. Other- {x) Tyrringham's Ca., 4 Co. Rep. ■wise, it seems, if the cattle are 38 b. -'^92 WRONGS TO POSSESSION AND PROPERTY. or to remove inanimate cliattels and replace them on the owner's land (//). Entry, Entry to take a distress must be peaceable and without dintrainor. ... i p i • i breaking m ; it :s not lawful to open a window, though not fastened, and enter thereby (s). Distrainors for rent liave been largely holpen by statute, but the common law has not forgotten its ancient strictness where express statutory provision is wanting. In connexion with distress the Acts for the prevention of cruelty to animals have introduced special justifioations: any one may enter a pound to supply necessary food and water to animals impounded, and there is an eventual power of sale, on certain conditions, to satisfy the cost thereof («). Trespasses Finally there are cases in which entry on land without byneces- consent is excused by the necessity of self- preservation, " ^' or the defence of the realm (&), or an act of charity preserving the occupier from irremediable loss, or some- times by the public safety or convenience, as in putting out fires, or as where a highway is impassable, and passing over the land on either side is justified ; but in this last-mentioned case it is perhaps rather a matter of positive common right than of excuse (c) . Justifications of this ((/) Sea V. Sheward (1839) 2 M. " Pound and Poundage." & W. 424, 46 R. R. 633. (h) See pp. 123, 171, above. (:) .Y»s/; T. Lucas (18G7') L. R. 2 (c) The justification or right, Q. B. 590. Otherwise where the whichever it he, does not apply window is already partly open : where there is only a limited dedi- CrabtreeY. JSobinson (1685) 15 Q.B. cation of a way, subject to the right D. 312, 54 L. J. Q. B. 544. of the owner of the soil to do acts, (n) 12 & 13 Vict. 0. 92, s. 6 ; 17 & such as ploughing, which make 18 Vict. c. 60, o. 1 ; superseding an it impassable or inconvenient at earlier Act of William IV. to the certain times: ^iniold v. Solbrook same effect. See the Digest of (1873) L. R. 8 Q. B. 96, 42 L. J. Eng. Case Law, Animals, s. t. Q. B. 80. JUSTIFICATION BY NECESSITY. kind are discussed in a case of the early sixteenth century, where a parson sued for trespass in carrying away his corn, and the defendant justified on the ground that the corn had heen set out for tithes and was in danger of being spoilt, wherefore he took it and carried it to the plaintiff's barn to save it: to which the plaintiff demurred. Kingsmill J. said that a taking without consent must be justified either by public necessity, or " by reasons of a condition in law " ; neither of which grounds is present here ; taking for the true owner's benefit is justifiable (inly if the danger be such that he will lose his goods without remedy if they are not taken. As examples of public necessity he gives pulling down some houses to save others (in ease of fire, presumably) (d), and entering in war time to make fortifications. " The defendant's intention," said Eede C. J., " is material in felony but not in trespass ; and here it is not enough that he acted for the plaintiff's good." A stranger's beasts might have spoilt the corn, but the plaintiff would have had his remedy against their owner. " So where my beasts are doing damage in another man's land, I may not enter to drive them out ; and yet it would be a good deed to drive them out so that they do no more damage ; but it is otherwise if another man drive my horses into a stranger's land where they do damage, there I may justify entry to drive them out, because their wrong-doing took its beginning in a stranger's wrong. But here, because the party might have his remedy if the corn were anywise destroyed, the taking was not lawful. And it is not like the case where things are in danger of being lost by water, fire, or such like, for there the destruction is (d) Cp. Littleton J. in Y. B. 9 down the house to avoid the danger Edw. IV. 35 : " If a man b:/ negli- to me, for if I let the house stand, gence suffer his house to bum, I it may burn so that I cannot quench who am his neighbour may break the fire afterwards." 393 394 WROKGS TO POSSESSION AND PROPERTY. witliout remedy against any man. And so this plea is not good" (e). Fisher J. concurred. There is little or nothing to be added to the statement of the law, though it may be doubted whether it is now likely ever to be strictly applied. Excuse of this kind is always more readily allowed if the possessor of the land has created or contributed to the necessity by his own fault, as where the grantor of a private right of way has obstructed it so that the way cannot be used except by deviation on his adjacent land (/). Foxhunt- At one time it was supposed that the law justified privileo-ed. entering on land in fresh pursuit of a fox, because the destruction of noxious animals is to be encouraged ; but this is not the law now. If it ever was, the reason for it has long ceased to exist [g). Practically foxhunters do well enough (in this part of the United Kingdom) with licence express or tacit. Trespass There is a curious and rather subtle distinction between justification by consent and justification or excuse under authority of law. A possessor by consent, or a licensee, may commit a wrong by abusing his power, but (subject to the peculiar exception in the case of letting or bailment at will mentioned above) {h) he is not a trespasser. If I lend you a horse to ride to York, and you ride to Carlisle, I shall not have (under the old forms of pleading) a (f) 21 Hen. VII. 27, pi. 5 (but 37, pi. 26 ; 6 Edw. IV. 8, pi. 18, the case seema really to belong to whichseems to extend the justifica- Hilary term of the next year, see tion to entry to retake goods which 5. c, Keihv. 88 n; Frowike was have come on another's land by still Chief Justice of Common Pleas inevitable accident ; see Story, in Trinity term 21 Hen. VII., ib. Bailments, § 83 a, note. 86 J, pi. 19 ; he died in the follow- [f) Sellij v. NeltUfold (1873) ing- vacation, and Rede was ap- L. R. 9 Ch. Ill, 43 L. J. Ch. 359. pointed in his .stead, ii. 85 A, where [g) Paul v Summerhaijes (1878) for Mich. 22 Hen. VII. we should 4 Q. B. D. 9, 48 L. J. M. C. 33. obviously read 21) ; cp. 37 Hen. VI. [h) P. 372, above. TRESPASS AJ3 IXITIO. 395 general action of trespass, but an action on the case. So if a lessee for years holds over, he is not a trespasser, because his entry was authorized by the lessor («'). But " when entry, authority, or licence is given to any one by the law, and he doth abuse it, he shall be a trespasser ab initio" that is, the authority or justification is not only determined, but treated as if it had never existed. " The law gives authority to enter into a common inn or tavern {k) ; so to the lord to distrain ; to the owner of the ground to distrain damage feasant ; to him in reversion to see if waste be done ; to the commoner to enter upon the land to see his cattle ; and such like. . . . But if he who enters into the inn or tavern doth a trespass, as if he carries away anything ; or if the lord who distrains for rent {!) , or the owner for damage feasant, works or kills the distress ; or if he who enters to see waste breaks the house or stays there all night ; or if the commoner cuts down a tree ; in these and the like cases the law adjudges that he entered for that purpose, and because the act which demonstrates it is a trespass, he shall be a trespasser ab initio " (m). Or to state it less artificially, the effect of an authority given by law without the owner's consent is to protect the person exercising that authority from being dealt with as a trespasser so long — but so long only — as the authority is not abused. He is never doing a fully (i) 21 Edw. IV. 76 h, pi. 9. 3 B. & S. 520, 32 L. J. Q. B. 146. (/c) This is in respect of the Distrainors for damage feasant are public character of the innkeeper's still under the common law. employment. (t) The liability of a distrainor [m) The Six Carpenters^ Case, 8 for rent justly' due, in respect of Co. Rep. 146 ff, b. It would seem any subsequent irregularity, was that the rule, being founded on a reduced to the real amount of presumption of intent from siibse- damage by 11 Geo. II. u. 19, n. 19 : quent conduct, was at first only a but this does not apply to a case rule of evidence, see per Holmes J. where the distress was wholly un- in Commonwealth v. RuUn (1896) lawful: Attack v. Bramwell (1863) 165 Mass. 463, 455. 396 WRONGS TO POSSESSION AND PEOPERTY. lawful act : he is rattier an excusable trespasser, and becomes a trespasser without excuse if he exceeds his authority («) : " It shall be adjudged against the peace" (o). This doctrine has been applied in modern times to the lord of a manor taking an estray {p), and to a sheriff re- maining in a house in possession of goods taken in execution for an unreasonably long time (17). It is ap- plicable only when there has been some kind of active wrong-doing ; not when there has been a mere refusal to do something one ought to do — as to pay for one's drink at an inn (;•) or deliver up a distress upon a proper tender of the rent due («). " If I distrain for rent, and after- wards the termor offers me the rent and the arrears, and I withhold the distress from him, yet he shall not have an action of trespass against me, but detinue, because it was lawful at the beginning, when I took the distress ; but if I kill them or work them in my own plow, he shall have an action of trespass" [t). But it is to be observed that retaining legal possession after the expiration of authority has been held equivalent to a new taking, and therefore a positive act : hence (it seems) the distinction between the liability of a sheriff, who takes possession of the execution debtor's goods, and of a distrainor ; the latter only takes the goods into " the custody of the law," and " the goods being in the custody of the law, the distrainor is under no legal obligation actively to redeliver them " {u). Formerly these refinements were important as [n] Cp. Pollock and Wright on on Possession, 82. Possession, 144, 201. (r) The Six Carpenters^ Case, 8 (o) 11 Hen. IV. 75, pi. 16. Co. Rep. 146 a, b.' [p] Oxky^. Watts (1785) 1 T. R. («) West v. Kihbs (1847) 4 C. B. 12, 1 R. R. 133. 17^;, 17 L. J. C. P. 150, 72 E. R. 575. [q) Ash V. Dawnaij (1862) 8 Ex. {t) Littleton in 33 Hen. VI. 27, 237, 22 L. J. Ex. 59, 91 R. R. pi. 12. 466, sed qu. if according to the old (h) West v. Wiiis, 4 C. B. at authorities, see Pollock and Wright p. 184, per Wilde C. J. REMEDIES FOE TRESPASS. ''ii^*/ determining the proper form of action. Under the Judica- ture Acts they seem to be obsolete for most purposes of civil liability, though it is still possible that a question of the measure of damages may involve the point of trespass ah initio. Thus in the case of the distrainor refusing to give up the goods, there was no doubt that trover or detinue would lie {a) : so that under the present practice there would be nothing to discuss. X. — Remedies. The only peculiar remedy available for this class of Taking or wrongs is distress damage feasant, which, though an I-oo^de.'^^ imperfect remedy, is so far a remedy that it suspends the right of action for the trespass. The distrainor " has an adequate satisfaction for his damage till he lose it without default in himself; "in which case he may still have his action [y). It does not seem that the retaking of goods taken by trespass extinguishes the true owner's right of action, though it would of course affect the amount of damages. Actions for merely trifling trespasses were formerlj- costs discouraged by statutes providing that when less than ^''^'^„ 40s. was recovered no more costs than damages should nominal. be allowed except on the judge's certificate that the action was brought to try a right, or that the trespass was " wilful and malicious : " yet a trespass after notice not to trespass on the plaintiff's lands was held to be " wilful and malicious," and special communication of such notice to the defendant was not required (s). But these and many {x) Wilde C. J. I. o., Littleton 660, per Holt C. J. ubi sup. (2) See Bowyer v. Cooh (1847) 4 {y) Taspor Y.Edwards, 12 Mod. 0. B. 236, 16 L. J. 0. P. 177; 398 WRONGS TO POSSESSION AND PROPERTY. other statutes as to costs were superseded by the general provisions of the Judicature Acts, and the rule that a plaintiff recovering less than 10/. damages in an action " founded on tort " gets costs only on the County Court scale, unless by special certificate or order («) ; and they are now expressly repealed {b) . The Court is therefore not bound by any fixed rule ; but it might possibly refer to the old practice for the purpose of informing its discretion. It seems likely that the common practice of putting up notice boards with these or the like words : " Trespassers wiU be prosecuted according to law " — words which are, " if strictly con- strued, a wooden falsehood " (c) , simple trespass not being punishable in courts of criminal jurisdiction — was originally intended to secure the benefit of these same statutes in the matter of costs. At this day it may be a question whether the Court would not be disposed to regard the threat of an impossible criminal prosecution as a fraud upon the public, and rather a cause for depriving the occupier of costs than for awarding them (d) . Several better and safer forms of notice are available • a common American one, "no trespassing," is as good as any. Retjmlik v. Edwards (1794) 6 T. R. of the repealed Acts of 1867 and 11, even where the defendant had 1882) ; see " The Annual Prao- intended and endeavoured to avoid tice," 1901, ii. 566. trespassing ; but this was doubted ^jj ^g & 43 Viet. c. 59. by Pollock C. B. in Swinfen v. Bacon (1860) 6 H. & N. 184, 188, W ^- "W. Maitland, "Justice 30 L. J. Ex. 33, 36. Cp. Gayford '^"'^ Police," p. 13. ?. Choiiler [1898] 1 Q. B. 316, 67 {d) At aU events the threat of h. J. Q. B. 404, on the Malicious spring-g-uns, still not quite un- Injuries to Property Act. known, can do the occupier no («) County Courts Act, 1888, good, for to set spring guns is s. 11 6 (substituted for Hke provisions itself an offence. REMEDIES FOR TRESPASS. 399 " Notlimg on earth," said Sir Walter Scott, " would induce me to put up boards threatening prosecution, or cautioning one's fellow-creatures to beware of man-traps and spring-guns. I hold that all such things are not only in the highest degree offensive and hui-tful to the feelings of people whom it is every way important to conciliate, but that they are also quite inefficient" (e). It must be remembered that Scott never ceased to be a lawyer as well as a man of letters. It was partly the legal knowledge and tastes displayed in the Waverley Novels that identified him in the eyes of the best critics as the author. An injunction can be granted to restrain a continuing Injunc- trespass, such as the laying and keeping of waterpipes under a man's ground without either his consent or justi- fication by authority of law ; and the plaintiff need not prove substantial damage to entitle himself to this form of relief (/). On the other hand the right to an injunction does not extend beyond the old common-law right to sue for damages : a reversioner cannot have an injunction without showing permanent injury to the reversion [g). Of course it may be a substantial injury, though with- out any direct damage, to do acts on another man's land for one's own profit without his leave ; for he is entitled to make one pay for the right to do them, and his power of withholding leave is worth to him precisely what it is worth to the other party to have it {h). [c) Lockliart's Life of Scott, vii. Cli. Div. 589, 51 L. J. Ch. 585. In 377, ed. 1839, ex relatione Basil ^&« v. Jfarim (1875) L. R. 20 Eq. jjaU. 462, the plaintiffs were in posses- (/) Goodson V. Eiehardsm (1874) sion of part of the land affected. L. R. 9 Ch. 221, 43 L. J. Ch. 790. (A) See L. E. 9 Ch. 224, 20 Ch. (^) Cooper V. Crabtree (1882) 20 Div. 592. 'iOO WRONGS TO rOSSESSION AND PROPERTY. Effect of Before the Common Law Procedure Acts an owner, procedure, tenant, or reversioner who had suffered undoubted injury might be defeated by bringing his action in the wrong form, as where lie brought tresjjass and failed to show that he was in present possession at the time of the wrong done (*') . But such cases can hardly occur now. (i) Sroivn ¥. Notlei/ (1848) 3 Ex. iJ. Co. (1849) 8 C. B. 25, 18 L. J. 221, 18 L. J. Ex. 39, 77 R. R. C. P. 330, 79 R. R. 388. 608 ; Pilgrim v. Southampton, ^-c. 401 CHAPTER X. NUISANCE. Nuisance is tlie wrong done to a man by unlawfully Nuisance ; . . . public or rlisturbing him in the enjoyment of his property or, m private. some eases, in the exercise of a common right. The wrong is in some respects analogous to trespass, and the two may coincide, some kinds of nuisance being also continuing trespasses. The scope of nuisance, however, is wider. A nuisance jnay be puhhc or private. Public or common nuisances affect the King's subjects at large, or some considerable portion of them, such as the inhabitants of a town ; and the person therein offending is liable to criminal prosecution (a) . A public nuisance does not necessarily create a civil cause of action for any person ; but it may do so under certain conditions. A private nuisance affects only one person or a deter- minate number of persons, and is the ground of civil proceedings only. Generally it affects the control, use, or enjoyment of immo^-able property ; but this is not a necessary element according to the modern view of the law. Certainly the owner or master of a ship lying in harbour, for example, might be entitled to complain of a nuisance created by an occupier on the wharf or shore which made the ship uninhabitable. (a) There was formerly a man- Apparently the King's Bench Divi- datory writ for the abatement of sion still has in theory jurisdiction public nuisances in cities and cor- to grant such writs (as distinct from porate towns and boroughs. See the the common judgment on an iudiot- curious precedent in P. N.B. 185 D. ment); see Eussell on Crimes, i. 440. P. T. D D 402 NUISANCE. Private We shall first consider in what cases a common nuisance action for exposes the person answerable for it to civil as well as nuisance Criminal process, in other words, is actionable as well as indictable. " A common nuisance is an unlawful act or omission to discharge a legal duty, which act or omission endangers the lives, safety, health, property, or comfort of the public, or by which the public are obstructed in the exercise or enjoyment of any right common to all her Majesty's subjects" (6). Omission to repair a highway, or the placing of obstructions in a highway or public navigable river, is a familiar example. In order to sustain an indictment for nuisance it is enough to show that the exercise of a common right of the King's subjects has been sensibly interfered with. It is no answer to say that the state of things causing the obstruction is in some other way a pubhc convenience. Thus it is an indictable nuisance at common law to lay down a tramway in a public street to the obstruction of the ordinary traffic, although the people who use the cars and save money and time by them may be greater in number than those who are obstructed in their use of the highway in the manner formerly accustomed (c) . It is also not material whether the obstruction inter- feres with the actual exercise of the right as it is for the time being exercised. The public are entitled, for example, to have the whole width of a pubhc road kept free for passing and repassing, and an obstruction is not the less a nuisance because it is on a part of the (J) Criminal Code (Indictable (c) R. v. Train (1862) 2 B. & S. Offences) Bill, 1879 (as amended in 640, 31 L. J. M. C. 169. Modern Committee), s. 160; cp. Stephen, tramways and light railways have Digest of Criminal Law, art. 1 76, been made under statutory autho- and illustrations thereto, and the rity. Indian Penal Code, s. 268. PUBLIC NUISANCE. "lOS highway not commonly used, or otherwise leaves room enough for the ordinary amount of trafEc (d). Further discussion and illustration of what amounts to an indictable nuisance must be sought in works on the criminal law. A private action can be maintained in respect of a Special puhKc nuisance by a person who suffers thereby some must be particular loss or damage beyond what is suffered by ^"°'''"- him in common with all other persons affected by the nuisance. Interference with a common right is not of itself a cause of action for the individual citizen. Particular damage (e) consequent on the interference is. If a man digs a trench across a highway, I cannot sue him simply because the trench prevents me fi-om passing along the highway as I am entitled to do ; for that is an inconvenience inflicted equally on all men who use the road. But if, while I am lawfully passing along after dark, I fall into this trench so that I break a limb, or goods which I am carrjdng are spoiled, I shall have my action ; for this is a particular damage to myself resulting from the common nuisance, and distinct from the mere obstruction of the common right of passage which constitutes that nuisance (/). If a trader is con- ((f) Turner v. Ringwood Highway whereby it seems the plaintifE was Board (1870) L. E. 9 Eq. 418. deprived of the use of his own Compare the similar doctrine as to private way abutting thereon (the obstruction of lights, infra. statemer.t is rather obscure) : per (a) " Particular damage " and Eitzherbert, a man shall have his ' ' special damage ' ' are used in- action for a public nuisance if he is differently in the authorities ; the more incommoded than others. "If former seems preferable, for one make a ditch across the high "special damage," aswe have seen, road, and I come riding along the has another technical meaning in road at night, and I and my horse the law of defamation. are thrown in the ditch so that I (/) T. B. 27 Hen. VIII. 27, pi. have thereby great damage and 10. Action for stopping a highway, annoyance, I shall have my action dd2 404 NUISANCE, veying his goods in barges along a navigable river, and by reason of the navigation being unlawfully obstructed has to unload his merchandise and carry it overland at an increased expense, this is a particular damage which gives him a right of action {g). Though it is a sort of consequence likely to ensue in many individual cases, yet in every case it is a distinct and specific one. Where this test fails, there can be no particular damage in a legal sense. If the same man is at divers times delayed by the same obstruction, and incurs expense in removing it, this is not of itself sufficient particular damage ; the damage, though real, is " common to all who might wish, by removing the obstruction, to raise the question of the right of the public to use the way " (A). The diversion of traffic or custom from a man's door by an obstruction of a highway, whereby his business is interrupted, and his profits diminished, seems to be too remote a damage to give him a right of private action (i), unless indeed the obstruction is such as materially to impede the immediate access to the plaintiff's place of business more than other men's, and amounts to something like blocking up his doorway (/i). Whether a given case falls against him who made this ditch, is treated as overruled by the re- because I am more damaged than marks of Lord Chelmsford and Lord any other man." Held that suffi- Cranworth. Probably this would cient particular damage was laid. not be accepted in other jurisdio- {"■ rights of way and other rights over the property of others. " The parishioners may pull down a wall which is set up to their nuisance in their wa.y to the church" {u). In modern times the most frequent and important examples of this class are cases of interference with rights to light. Here the right itself is a right not of dominion, but of use ; and therefore no wrong is done {.t) unless and until there is a sensible interference with its enjoyment, as we shall see hereafter. But it need not be j^roved that the interference causes any immediate harm or loss. It is enough that a legal right of use and enjoyment is interfered with by conduct which, if persisted in without protest, would furnish evidence in derogation of the right itself (y). A third kind, and that which is most commonly spoken 3. Con- of by the technical name, is the continuous doing of some- Ind'enjoy- tbing which interferes with another's health or comfort in ™^''*- the occupation of his property, such as carrying on a noisy or offensive trade. Continuity is a material factor : merely temporary inconvenience caused to a neighbour by " the (C) Baten'sca. 9 Co. Rep. 53 b. see Tiiniei- v. Ringivood Sighway Board (1870) L. R. 9 Eq. 418. («) r. N. B. 185 B. ^^^ -^^^^^^ ^_ ^.^^^ ^jgggj ^ ^ {x) Otherwise as to public ways : 4 Ex. 43, 38 L. J. Ex. 1. 408 NUISANCE. execution of lawful works in the ordinary user of land " is not a nuisance (s). Mcn«ureof nuisance. What amount of annoyance or inconvenience will amount to a nuisance in point of law cannot, by the nature of the question, be defined in precise terms (a). Attempts have been made to set more or less arbitrary limits to the jurisdiction of the Court, especially in cases- of miscellaneous nuisance, as we may call them, but they have failed in every direction. Where nuisance is once proved, the defendant's intention is not material ; but a proved intention to annoy the plaintiff may be relevant to show that the defendant is not using his property in an ordinary and legitimate way such as good, neighbours mutually tolerate, and it will naturally set the Court against him in all matters of discretion (b). As to the several classes of facts usually considered in cases of nuisance : — Injury to health need not be shown. (a) It is not necessary to constitute a private nuisance that the acts or state of things complained of should be noxious in the sense of being injurious to health. It is enough that there is a material interference with the ordinary comfort and convenience of life — "the physical comfort of human existence " — by an ordinary and reason- able standard (c) ; there must be something more than (s) Harrison \. Soniliwarh ^^ Vauxliall Water Co. [1891] 2 Ch. 409, 60 L. J. Gh. 630. (a) As to the construction of ' ' nuisance " in a covenant, Trhich it seems need not be confined to tortious nuisance, see Tod-Heaihj Y. Benham (1888) 40 Ch. Kv. 80, 58 L. J. Ch. 83. (4) See Christie v. Damj [1893} 1 Ch. 316, 326, 62 L. J. Ch. 439. (e) Walter v. Selfe, 4 De G. & Sm. 315, 321, 322, 20 L. J. Ch. 433, 87 E. R. 393, aflfd. on appeal, 19 L. T. 308, 87 R. R. 401 (Knight- Bruce V.-C. 18.51) ; Crump v. Lambert (1867) L. R. 3 Eq. 409. WHAT AMOUNTS TO NUISAXCE. "109 mere loss of amenity {d) , but there need not be positive liurt or disease. (b) In ascertaining whether the property of the plaintiil Plaintiffi is in fact injured, or his comfort or convenience in fact titled by materially interfered with, by an alleged nuisance, regard ^'"^°8' ' •' o ' D come to is had to the character of the neighbourhood and the pre- the nui- . sance. existing circumstances {c) . But the fact that the plaintiff was already exposed to some inconvenience of the same kind will not of itself deprive him of his remedy. Even if there was already a nuisance, or what would be a nuisance in a ditferent kind of neighbourhood, that is not a reason why the defendant should set up an additional nuisance (/) . He is not entitled to inflict on the plaintiff a substantial amount of discomfort in excess of what is already tolerated by local usage under the existing' conditions (g). The fact that other persons are wrong- doers in the like sort is no excuse for a wrong-doer. If it is said " This is but one nuisance among many," the answer is that, if the others were away, this one remaining would clearly be wrong ; but a man cannot he made a wrong-doer by the lawful acts of third persons, and if it is not a wrong now, a prescriptive right to continue it in all events might be acquired under cover of the other nuisances : therefore it must be wrongful from the first (/<) . Neither does it make any difference that the very nuisance (rf) Sah'in v. Xorth Sruncepeth page. (■o:il Co. (1874) L. E. 9 Cb. 70.5, 44 [g) Rtishnrr v. Fohue [1906] 1 L. J. Ch. 149 ; see judgment of Ch. 234, 75 L. J. Ch. 79, C. A. .Tames L. J., L. R. 9 Ch. at pp. (A) Crossley v. Lightowler (1867) 709, 710. L. R. 2 Oh. 478, 36 L. J. Ch. 584. («) St. Selcri's Smelting Co. v. The same point was (among others) Tipping (1865) 11 H. L. C. 642, 35 decided many years earlier (184fl) Jj. J. Q.B. 66; Sturges v.Bridgman in Wood v. ]Fii)id, 3 Ex. 748, 18 (1879) 11 Ch. Div. at p. 865. L. J. Ex. 305, 77 R. R. 809. (/) TFalter v. Selfe, note (c) last 410 NUISANCE. complained of existed before tlie plaintiff became owner or occupier. It was at one time held that if a man came to the nuisance, as was said, he had no remedy (•/) ; but this has long ceased to be law as regards both the remedy by damages (/) and the remedy by injunction (k). The defendant may in some cases justify by prescription, or the plaintiff be barred of the most effectual remedies by acquiescence. But these are distinct and special grounds of defence, and if relied on must be fully made out by appropriate proof. Further, the wrong and the right of action begin only when the nuisance begins. Therefore if Peter has for many years carried on a noisy business on his own land, and his neighbour John makes a new building on his own adjoining land, in the occupation whereof he finds the noise, vibration, or the like, caused by Peter's business to be a nuisance, Peter cannot justify continuing his opera- tions as against John by showing that before John's build- ing was occupied, John or his predecessors in title made no complaint (/) . Innocent or neces- sary character per se of offensive occupation is no answer. (c) Again, a nuisance is not justified by showing that the trade or occupation causing the annoyance is, apart from that annoyance, an innocent or laudable one. " The building of a lime-kiln is good and profitable ; but if it be built so near a house that when it burns the smoke thereof enters into the house, so that none can dwell there, an action lies for it " {m). " A tan-house is necessary, for all (i) Blackstone ii. 403. (j) H.g. St. Helen's Smelting Co. V. Tipping (1805) H H. L. C. 642, 35 L. J. Q. B. 66. [k) Tipping T. St. Helen'' s Smelting Co. (186.5) L. R. 1 Ch. 66, a suit for injunction on the same facts ; Fleming v. Slslop (1886) 11 App. Ca. (Sc.) 686, 688, 697. (l) Sturges v. Sridgman (1879) 11 Ch. Div. 862, 48 L. J. Ch. 875. (in) 59 a. ildred'sca. (1610) 9 Co. Rep. WHAT AMOUNTS TO NUISANCE. *111 men wear shoes ; and nevertheless it maj^ be pulled down if it be erected to the nuisance of another. In like manner of a glass-house ; and they ought to be erected in places convenient for them " («). So it is an actionable nuisance to keep a pigstye so near my neighbour's house as to make it unwholesome and unfit for habitation, though the keeping of swine may be needful for the sustenance of man (o). Merchants and tradesmen cannot load and unload their goods in a town without some temporary obstniction of the highway, but it is a nuisance if such use of the highway is so extensive and constant as to amount to an appropriation of the highway to the trader's own pm-poses {p). (d) Where the nuisance complained of consists wholly Couve- or chiefly in damage to property, such damage must be place jbo- proved as is of appreciable magnitude and apparent to ']^2&-^er persons of common intelligence ; not something discover- able only by scientific tests {q). And acts in themselves lawful and innoxious do not become a nuisance merely because they make a neighboming house or room less fit for carrying on some particular industry, without inter- fering with the ordinary enjoyment of life (r). But («) Jones v. Powell, Palm. 539, [1901] 1 Gh. 205, 70 L.J. Gh. 148. approved and explained by Ex. Ch. [p) A.-G. v. Snghlon and Hove in Bamford t. Titrnleij (1862) 3 Co-op. Siippli/ Association [1900] 1 B. & S. 66, 31 L. J. Q. B. 286. Ch. 276, 69 L. J. Ch. 20i, C. A. As to " conTenient," see next (?) Salrin v. Kurth Brancepeth paragraph. Coal Co. (1874) L. E. 9 Ch. 705, 44 (o) AldrecCs ca. note (m). Cp. L. J. Ch. 149. Sroder v. Snillard (1876) 2 Ch. D. ir) RoMnson v. Kihtrt (1889) 41 692, 701 (Jessel M. R.), 45 L. J. Ch, Div. 88, 58 L. J. Ch. 392 ; Ch. 414, followed in Reinhardt v. Warren v. Broun [1900] 2 Q. B. jrentasli (1889) 42 Ch. D. 685, 58 722, 69 L. J. Q. B. 842, judgment L. J. Ch. 787, which was also in- of Wright J. reversed in C. A. tended to follow 5aff!/0)-(; V. Turnlei/ [1902] 1 K. B. 15, 71 L. J. K. B. (last note) and not to lay down any- 12, but in effect restored by the thing new, see A.-G. -f. Cole ^- Son House of Lords in Colls v. Home and 412 NUISAXCE. where material damage in this sense is proYed, or material discomfort according to a sober and reasonable standard of comfort, it is no answer to say that the offending work or manufacture is carried on at a place in itself proper and convenient for the purpose. A right to do something that otherwise would be a nuisance may be established by prescription, but nothing less will serve. Or in other words a place is not in the sense of the law convenient for me to burn bricks in, or smelt copper, or carry on chemical works, if that use of the place is convenient to myself but creates a nuisance to my neigh- bom- («) . Modes of (e) No particular combination of sources of annoyance ance'''' -^^ necessary to constitute a nuisance, nor are the possible sources of annoyance exhaustively defined by any rule of law. *' Smoke, unaccompanied with noise or noxious vapour, noise alone, offensive vapours alone, although not injurious to health, may severally constitute a nuisance to the owner of adjoining or neighbouring property" (f). The persistent ringing and tolling of large bells («(), the loud music, shouting, and other noises attending the per- f'ohiiiiil .Stores [1904] A. C. 170, Hole v. Barlow {ISoS) i C. B. 'S. S. 73 L. J. Ch. 4S4. The ordinary 334, 27 L. J. C. P. 2U7 : see S/ioUs enjoyment of life, however, seems Iron Co. v. Inglis (1S82) 7 App. Ca. to include the maintenance of a due (Sc.) at p. 528. temperature in one's wine cellar: (t) Romilly M. E. , C/m»?j» v. Z«)n- lielnhardt v. Meniasti (1889) 42 Ch. bert (1867) L. R. 3 Eq. at p. 412. D. 68.5, 58 L. ,J. Ch. 787. [n) SoUau v. Be 11,1,1 (1851) 2 (s) St. Helen's Smelting Co. v. Sim. N. S. 133, 89 R. R. 245. The Tippiiir/ (1865) 11 H. L. C. 642, 35 bells belonged to a Roman Catholic. L. J. Q. B. 66, Bigelow L. C. 454 ; church ; the judgment points out ISamford v. Turnky (1862) E.x. Ch. (at p. 160) that sui'h a building is o B. & S. 66, 31 L. J. Q. B. 2S0 ; not a church in the eye of the law, Carnj v. Ledlilttcr (18'i2-3) 13 and cannot claim the same privi- C. B. N. S. 470, 32 L. J. 0. P. leges as a parish church in re.-pect 104. These authorities overrule of bell-ringing. WHAT AMOUNTS TO NUISANCE. formances of a circus (x), the collection of a crowd of disorderly people by a noisy entertainment of music and fireworks (;/), to the grave annoyance of dwellers in the neighbourhood, have all been held to be nuisances and restrained by the authority of the Court. The use of a dwelling-house in a street of dwelling-houses, in an ordinary and accustomed manner, is not a nuisance though it may produce more or less noise and incon- venience to a neighbour. But the conversion of part of a house to an unusual purpose, or the simple maintenance of an arrangement which offends neighbours by noise or otherwise to an unusual and excessive extent, may be an actionable nuisance. Many houses have stables attached to them, but the man who turns the whole ground floor of a London house into a stable, or otherwise keeps a stable so near a neighbour's living rooms that the inhabitants are disturbed all night (even though he has done nothing beyond using the arrangements of the house as he found them), does so at his own risk (z). " In making out a case of nuisance of this character, there are always two things to be considered, the right of the plaintiff, and the right of the defendant. If the houses adjoining each other are so built that from the commencement of their existence it is manifest that each adjoining inhabitant was intended to enjoy his own property for the ordinary purposes for which it and all {x) Inchbald v. Barrington (1869) L. R. 5 Eq. 24, 37 L. J. Ch. 33. It Ij. K. 4 Ch. 388 : the circus was was not decided whether the noiae eighty-five yards from the plain- would alone have been a nuisance, tiff's house, and "throughout the butWickensV.-C. strongly inclined performance there was music, in- to think it would, see L. R. 5 Eq. eluding a trombone and other wind at p. 34. instruments and a violoncello, and great noise, with shouting and (2) Ball v. May (187S) L. E. 8 cracking of whips." Ch. 467; Broder v. Saillard (1876) (y) yralker v. Brewster (1867) 2 Ch. D. 692, 45 L. J. Ch. 414. 413 414 NUISANCE. the different parts of it were constructed, then so long as the house is so used there is nothing that can be regarded in law as a nuisance which the other party has a right to prevent. But, on the other hand, if either party turns his house, or any portion of it, to unusual purposes in such a manner as to produce a substantial in j ury to his neighbour, it appears to me that that is not according to principle or authority a i-easonable use of his own property ; and his neighbour, showing substantial injiiry, is entitled to protection " {a). Injury oomnion to the plaintifE with others. (f ) Where a distinct private right is infringed, though it be only a right enjoyed in common with other persons, it is immaterial that the plaintiff suffered no specific injury beyond those other persons, or no specific injury at all. Thus any one commoner .can sue a stranger who lets his cattle depasture the common {b) ; and any one of a number of inhabitants entitled by local custom to a particular water supply can sue a neighbour who obstructs that supply (n). It should seem from the /-atto dpcidendi of the House of Lords in Lyon v. Fishmongers Compauy [d), that the rights of access to a highway or a navigable river incident to the occupation of tenements thereto adjacent are private rights within the meaning of this rule ie) . Injury (g^) -A- cause of action for nuisance may be created by indren^^ independent acts of different persons, though the acts of dent acts any One of those persons would not amount to a nuisance. or defaults '' ^ of different " Suppose one person leaves a wheelbarrow standing on person?. (a) Lord Selbome, L. C, L. R. 8 Ch. at p. 469. (b) Notes to Mellor v. Spateman, 1 Wms. Saund. 626. (c) Earrop t. Mirst (1868) L. K. 4 Ex. 43, 38 L. J. Ex. 1. [d) 1 App. Ca. 662. (e) Frit: T. Sohson (1880) 14 Ch. D. 542, 49 L. J. Ch. 321, supra, p. 404. OBSTRUCTION OF LIGHTS, •llo a way, that may oause no appreciable inconAenience, but if a hundi-ed do so, that may cause a serious incon- venience, which a person entitled to the use of the way has a right to prevent ; and it is no defence to any one person among the hundred to say that what he does causes of itself no damage to the complainant" (/). But this does not mean that a plaintiff may make two or more independent wrong-doers co-defendants in a single action for damages, whatever the rule may be where only an injunction is claimed (17). Those who create a nuisance by their own acts are none the less liable because the nuisance woidd have been obviated or removed if other parties, such as local authori- ties, had thought fit to exercise their powers in that behalf (k). A species of nuisance which has become prominent in Obstruc- modern law, by reason of the increased closeness and lights, height of buildings in towns, is the obstruction of light : often the phrase " light and air " is used, but the addition is useless if not misleading, inasmuch as a right to the access of air over a neighbour's land (otherwise than in some definite direction to some particular place) («) is not known to the law as a subject of property (/,•). (/) Tlwrpe V. Brumfitt (1873) Tramways Co. [1897] A. C. 110. Ij. E. 8 Ch. 660, 656, per James (i) Chastei/ v. AcJcland [1895] 2 L. J., foUowed by Chitty J. in Ch. 389, 64 L. J. Q. B. 523, C. A., lamUon v. Mellish [1894] 3 Ch. may probably be taken as correctly 163 63 L. J. Ch. 929 (a case of statiog the general law to this nuisance by noise) . extent, though the House of Lords (g) Sadler Y. O. W. M. Co. [1895] was prepared to reverse the decision 2 Q. B. 688, 65 L. J. Q. B. 26, on the somewhat peculiar facts of affirmed in H. L. [1896] A. C. 450, the case. After argument in H. L. 65 L. J. Q. B. 462. Qu. as to the the parties came to terms and the rule in Scottish procedure, per Lord appeal was withdrawn by consent, Shand [1896] A. C. at p. 455. [1897] A. C. 155. (A) Ogston v. Aberdeen DiHrict [Ic] City of London Brewery Co. t. 41G NUISANCI Nature of the rie-ht. It seems proper (though at the risk of digressing from the law of Torts into the law of Easements) to state here the rules on this head as settled by the decisions of the last thirty-five years or thereabouts. The right to light, to begin with, is not a natural right incident to the ownership of windows, but an easement to which title must be shown by grant (/), express or implied or by prescription at common law, or under the Prescription Act. The Prescription Act has not altered the nature or extent of the right, but has only provided a new mode of acquiring and claiming it (ui), without taking away any mode ■which existed at common law (w). The right can be claimed only in respect of a building ; the use of an open piece of ground for a purpose requiring light will not create an easement against an adjacent owner (o). TciiiMiit (1873) L. E. 9 Ch. at p. 221 : rr ; Bryant, v. Leferer (1879) 4 V>. P. Div. 172, especially per Cotton L. J. at p. 180, 48 L. J. Ch. 380 ; Hau-is v. Be Buniri (1886) 33 Ch. Div. 238, per Chitty J. at p. 250, and Cotton L. J. at p. 25'J. A personal right to access of air can of course he created as between parties, if they choose, by way of covenant. (?) Notwithstanding the doubts expressed by Littledale J. in Moore T. Bnirsoii (1824) 3 B. & C. at p. 340, 27 R. R. 382 ; see per Lord Selborne, Ballon v. Aiir/iis (1881) 6 App. Ca. at p. 794, and Lord Blackburn, ib. 823, and the judg- ments and opinions in that case passim as to the peculiar character of negative easements. (m) Xelk v. Fearson (1871) L. E. 6 Ch. at pp. 811, 813, cf. L. R. 9 Ch. 219, approved in H. L., Col,',.- Y. Some and Colonial Slorex [1904] A. C. 179, 73 L. J. Ch. 484. As to the acquirement of right to light as between different lessees under a common lessor. Fear v. j[organ [1906] 2 Ch. 406, 75 L. J. Ch. 787, C. A. As to the necessity of con- tinuous enjoyment " next before " action, Hainan v. Van drn Bergh [1907] 2 Ch. 516, 76 L. J. Ch. 554. (n) Aijnsley v. Glover (1875) L. R. 10 Ch. 283, 44 L. J. Ch. 523. Sincethe Prescription Act,however, the formerly accustomed method of claiming under the fiction of a lost grant appears to be obsolete. (o) See Fotts v. Smith (1 868) L. R. 6 Eq. 311, 318, 38 L. J. Ch. 58. As to what is a building within the Act, Clifford V. Bolt [1899] 1 Ch. 698, 68 L. J. Ch. 332. OBSTRUCTION OF LIGHTS. 417 Assuming the right to be established, there is a Any dimi- •wrongful disturbance if the building in respect of which causiDg it exists is so far deprived of access of liglit as to render ^^^ ^' it materially less fit for comfortable or beneficial use or damage is \ . . . ... . 2, Tvrong'. enjoyment in its existing condition; if a dwelling-house, for ordinary habitation ; if a warehouse or shop, for the conduct of business (p) . The action is for nuisance and not for the infringement of a right to a specific quantity of light. "There must be a substantial privation of light, sufficient to render the occupation of the house uncomfort- able, and to prevent the plaintiff from carrying on his accustomed business .... on the premises, as beneficially as he had formerly done " (q). Decisions and dicta which laid down, or seemed to lay down, that the right acquired is to all the light, or what has been called an average maximum of the light, coming through a particular window, are now not to be relied on (r) . It seems that a right to a special or extraordinary amount of light cannot be acquired under the Prescription (jo) Xelk T. Pearson (1871) L. E. and, it seems, Moore v. Sail (1878) 6 Ch. 809, 811; Cii;/ of London 3 Q. B. D. 178, 47 L. J. Q. B. Mreti-ery Co. T.Tennant (1873)11. 'R. 334. Yates t. Jack (1866) L. E. 9 Ch. at p. 216, 43 L. J. Ch. 457 ; 1 Ch. 295, is good law, but the Colls T. Some and Colonial Stores form of injimction there given has [1904] A. C. 179, 73 L. J. Ch. 484, been too slavishly followed, and H. L. reversing s. c. in C. A. the head-note seems too wide. [1902] 1 Ch. 302, 71 L. J. Ch. 146. Lanfranchi v. Mackenzie (1867) L. (q) Euling of Best C. J. in Back E. 4 Eq. 421, 36 L. J. Ch. 518, is V. Stacey (1826) 2 C. & P. 465, 31 relieved from the criticisms passed E. E. 679, approved in H. L. in on it in judgments now disap- CoKs's Cfls« (last note). proved. See Colls v. Home and (r) Such are Scott \. Fape (1886) Colonial Stores [1904] A. C. 179, 73 31 Ch. Div. 564, 55 L. J. Ch. 246 ; L. J. Ch. 484, which will now be Lazarus v. Artistic Photographic Co. the leading case on the right to [18971 2 Ch. 214, 66 L. J. Ch. light. As to the application of the 622 ■ Warren v. Brown [1902] 1 principles there laid down, Jolbj v. k. B. 15, 71 L- J- K. B. 12, £'4«e[1907] A.C.I, 76 L.J. Ch.l. P. — T. E E 418 NUISANCE. Supposed rule or presump- tion as to angle of 45°. Act by 20 years' user even with knowledge on the part of the servient tenement (s) . At one time it was supposed, by analogy to a regula- tion in one of the Metropolitan Local Management Acts as to the proportion between the height of new buildings and the width of streets (t), that a building did not constitute a material obstruction in the eye of the law, or at least was presumed not to be such, if its elevation sub- tended an angle not exceeding 45° at the base of the light alleged to be obstructed, or as it was sometimes put, left 45° of light to the plaintiff. The supposed rule was repudiated a quarter of a century ago by the Court of Appeal {u). But the statutory regulation, though it does not afford a fixed rule for dealing with private titles, may be used as a rough working test {x). Enlarge- An existiug right to light is not lost by enlarging, alteration rebuilding, or altering (y) the windows for which access of lights. q£ ^{glit is claimed. So long as the ancient lights, or a substantial part thereof (s) , remains substantially capable (.s) Amiler v. Gordon [1905] 1 K. B. 417, 7-1 L. J. K. B. 185. {t) 25 & 26 Vict. u. 102, s. 86. (■») Parker v. First Avenue Hotel Co. (1883) 24 Ch. Div. 282 ; JEcclesi- (istieal Commissioners v. Kino (1880) 14 Ch. Div. 213, 49 L. J. Ch. 529. (x) Judgment of Lord Davey in Colls's Case. [y) Tapling v. Jones (1865) 11 H. L. C. 290, 34 L. J. C. P. 342; Aynsley V. Gloter (1874-5) L. R. 18 Eq. 544, 43 L. J. Ch. 777, L. R. 10 Ch. 283, 44 L. J. Ch. 523; Ecclesiastical Commissioners t. Kino (1880) 14 Ch. Div. 213; Greenwood V. Sornsey (1886) 33 Ch. D. 471, 55 L. J. Ch. 917. It is not neces- sary to prove an intention of pre- serving the ancient lights : Smith V. ISuxter [1900] 2 Ch. 138, 69 L. J. Ch. 437. (z) Newsctn v. Pender (1884) 27 Ch. Div. 43, 61. It is not neces- sary that the "structural identity " of the old windows should be pre- served : National Provincial Plate Glass Insurance Co. v. Prudential Assurance Co. (1877) 6 Ch. D. 757, 46L. J. Ch. 871 ; Andrews Y. Waite [1907] 2 Ch. 500, showing also that the same principles apply to altera- tions during the currency of the statutory period for acquiring the right. But there must at all events be a definite mode of access : Sarris V. De Pinna (1886) 33 Ch. Div. 238, 56 D. J. Ch. 344. MARKET OR FERRY. 410 of continuous enjoyment («), so long the existing right continues and is protected by the same remedies {b). And an existing right to light is not lost by interruption which is not continuous in time and quantity but tem- porary and of fluctuating amount (c) . It makes no diilerenee that the owner of a servient tenement may, by the situation and arrangement of the buildings, be unable to prevent a right being acquired in respect of the new light otherwise than by obstructing the old light also {(I). For there is no such thing as a specific right to obstruct new lights. A man may build on his own land, and he may build so as to darken any light which is not ancient (as on the other hand it is undoubted law that his neighbour may open lights overlooking his land), but he must do it so as not to interfere with lights in respect of which a right has been acquired. Disturbing the private franchise of a market or a ferry "Nui- , , , . „ . . sance"to is commonly reckoned a species oi nuisance m our market or books (e). But this classification seems rather to depend °"^' on accidents of procedure than on any substantial resem- blance between interference with peculiar rights of this («) The alteration or rebuilding 5 Ch. per Giffard L. J. at p. 167. Tnust be continuous enough to show But only the existing right : an that the right is not abandoned ; obstruction that would not have see Moore v. Rawson (1824) 3 been actionable before the altera- B. & C. 332, 27 E. R. 375. All tions does not become so afterwards the local circumstances will be con- because they have made it more sidered : Sullets v. Dlc/dnson {I88b) inconvenient: Atikersony. Connelly •29 Ch. D. 155, 54 L. J. Ch. 776. [1907] 1 Ch. 678, 76 L. J. Ch. 402, There must be some specific identi- C. A. floation of the old light as coinci- [c) Fresland v. Bingham (1889) dent with the new : Fendarves v. 41 Ch. Div. 268, JJ/oh™ [1892] 1 Ch. 611,61 L. J. {d) Tapling v. Jones (1865) 11 Ch. 494. H. L. C. 290, 34 L. J. C. P. 342. (J) SlaiffhtY. Burn (1869) L. R. (e) Blaokst. Comm. iii. 218. E E 2 420 NUISANCE. Remedies lor nuisance. Atate- meut. kind and such injuries to the enjoyment of common rights of property as we have been considering. The quasi- proprietary right to a market or ferry is of such a nature that the kind of disturbance called " nuisance " in the old books is the only way in which it can be violated at all. If disturbing a market is a nuisance, an infringement of copyright must be a nuisance too, unless the term is to be conventionally restricted to the violation of rights not depending on any statute. The remedies for nuisance are threefold : abatement, damages, and injunction : of which the first is by the act of the party aggrieved, the others by process of law. Damages are recoverable in all cases where nuisance is proved, but in many cases are not an adequate remedy. The more stringent remedy by injunction is available in such cases, and often takes the place of abatement where that would be too hazardous a proceeding. The abatement of obstructions to highways, and the like, is still of importance as a means of asserting public rights. Private rights which tend to the benefit of the public, or a considerable class of persons, such as rights of common, have within recent times been successfully maintained in the same manner, though not without the addition of judicial proceedings (/). It is decided that not only walls, fences, and such like encroachments which obstruct rights of common may be removed, but a house wrongfully built on a common may be pulled down by a commoner if it is not removed after notice [g) within a reasonable time {h). (/) Smithv. Earl Brounlow (1869) L. R. 9 Eq. 241 (the case of Berk- hampstead Common) : "Williams on Rights of Common, 135. {rj) Pulling down the house with- out notice while there are people in it is a trespass: Fei-ry \. Fitzliou-c (1845) 8 Q. B. 757, 15 L. J. Q. B. [li] See next page. NOTICE TO WEONG-DOEE. 421 If anotlier man's tree overhangs my land, I may law- fully cut the overhanging branches (/) ; and in these cases where the nuisance is in the nature of a trespass, and can he ahated without entering on another's land, the wrong-doer is not entitled to notice (/.■). But if the nuisance is on the wrong-doer's own tenement, he ought first to be warned and required to abate it himself (/) . After notice and refusal, entry on the land to abate the nuisance may be justified ; but it is a hazardous com'se at best for a man thus to take the law into his own hands, and in modern times it can seldom, if ever, be advisable. In the case of abating nuisances to a right of common. Notice to notice is not strictly necessary unless the encroachment is doer.° a dwelling-house in actual occupation ; but if there is a que,>tion of right to be tried, the more reasonable course is to give notice (m). The same rule seems on principle to be apphcable to the obstruction of a right of way. As to the extent of the right, " where a fence has been erected upon a common inclosing and separating parts of that common from the residue, and thereby interfering with the rights of the commoners, the latter are not by law 239 ; 70 E. R. 626 ; Jones v. Jones {k) Lemmon t. JFebb [1804] 3 Oh. (1862) 1 H. & C. 1, 31 L. J. Ex. 1, 63 L. J. Ch. 570. The over- 506 ; following Fcrri/ v. luizlwwc hanging of branohea is not an with some doubt. The case of a actual trespass, per Lindley, L. J. man pulling down buildings wrong- [1894] 3 Ch. at p. 11. It is a wise fully erected on his own land is precaution to give notice, per Lopes different : ib. ; Burling v. Read and Kay L. JJ. The decision of (1850) 11 Q. B. 904, 19 L. J. Q. B. the C. A. was afBrmed in H. L. 291, 75 E. E. 662. [1895] A. C. 1, 64 L. J. Oh. 205. (h) Billies T. Williams (1851) 16 (?) This has always been under- Q. B. 546, 20 L. J. Q. B. 330 : cp. stood to be the law, and seems to Lane v. Capsey [1891] 3 Ch. 411. follow a forliorl from the doctrine (i) Norris v. Baker, 1 EoUe's Eep. of I'errij v. Fitzhowe, note (•« S. Co. (1S69) L. R. 4 C. P. (i) Sosewell v. Prior (1701) 12 198, 38 L. J. C. P. 153, where the Mod. 635. defendants had given the plaintiff {k) Fenruddock's ca. 5 Co. Rep. licence to abate the nuisance Hm- 101 a. P. — T. F F 434 Omission contrasted Tvith action as ground of liability. CHAPTEE XI. NEGLIGENCE (a). I. — The General Conception. For acts and theii- results (within the limits expressed by the term " natural and probable consequences," and discussed in a foregoing chapter, and subject to the grounds of justification and excuse which have also been discussed) the actor is, generally speaking, held answer- able by law. For mere omission a man is not, generally speaking, held answerable. Not that the consequences or the moral gravity of an omission are necessarily less. One who refrains from stirring to help another may be, according to the circumstances, a man of common though no more than common good will and courage, a fool, a churl, a coward, or little better than a murderer. But, unless he is under some specific duty of action, his omission will not in any case be either an oiience or a civil wrong. The law does not and cannot undertake to make men render active service to their neighbours at all times when a good or a brave man would do so (b). Some already existing relation of duty must be estab- lished, which relation will be found in most cases, though (a) Those who seek the fidlest information and discussion ' on the subject of this chapter may find it in Mr. Thomas Seven's exhaustive and scholarly monograph on " Neg- ligence in Law," London, 1895, 2 vols., an enlarged and re-written edition of his book of 1889. {b) See Note M. to the Indian Penal Code as originally framed by the Commissioners. Yet attempts of this kind have been made in one or two Continental proposals for the improvement of criminal law. DUTY OF CARE AXD CAUTION. 435 not in all, to depend on a foregoing voluntary act of the party held liable. He was not in the first instance bound to do anything at all ; but by some independent motion of his own he has given hostages, so to speak, to the law. Thus I am not compelled to be a parent ; but if I am one, I must maintain my children. I am not compelled to employ servants ; but if I do, I must answer for their conduct in the course of their employment. The widest rule of this kind is that which is developed in the law of Negligence. One who enters on the doing of any- thing attended with risk to the persons or property of others is held answerable for the use of a certain measure of caution to guard against that risk. To name one of the commonest applications, " those who go personally or bring property where they know that they or it may come into collision with the persons or property of others have by law a duty cast upon them to use reasonable care and sldll to avoid such a collision " (c) . The caution that is required is in proportion to the magnitude and the apparent imminence of the risk : and we shall see that for certain cases the policy of the law has been to lay down exceptionally strict and definite rules. While some acts and occupations are more obviously dangerous than others, there is hardly any kind of human action that may not, under some circumstances, be a source of some danger. Thus we arrive at the general rule that every one is bound General . . . . duty of to exercise due care towards his neighbours in his acts and caution in conduct, or rather omits or falls short of it at his peril ; the peril, namely, of being liable to make good whatever harm may be a proved consequence of the default {d). {cj Lord Blackburn, 3 App. Ca. {d) Cp. per Brett M. K., Seavaz at p. 1206. Y. Fender (1883) U Q. B. Div. at p. 507. ff2 436 NEGLIGENCE. Ovei;- In some cases this ground of liability may co-exist contract with a liability on contract towards the same person, ^^' °^ ■ and arising (as regards the breach) out of the same facts. "Where a man interferes gratuitously, he is bound to act in a reasonable and prudent manner according to the circumstances and opportunities of the case. And this duty is not affected by the fact, if so it be, that he is acting for reward, in other words, under a contract, and may be liable on the contract (e) . The two duties are distinct, except so far as the same party cannot be com- pensated twice over for the same facts, once for the breach of contract and again for the wrong. Historically the liability in tort is older; and indeed it was by a special development of this view that the action of assumpsit, afterwards the common mode of enforcing simple contracts, was brought into use (/). " If a smith prick my horse with a nail, &c., I shall have my action upon the case against him, uithout ani/ warranty hij tlie smith to do it well For it is the duty of every artificer to exercise his art rightly and truly as he ought " ((/). This overlapping of the regions of Contract and Tort gives rise to troublesome questions which we (e) This appears to be the sub- it is submitted that the dissent stance of the rnle intended to be of the Lords Justices was well laid down by Brett M. E. in founded. And see Beren on Heaven v. Pender (1883) 11 Q. B. D. Negligence, 62—72. at pp. 507 — 510; his judgment was (/) Cp. the present writer's however understood by the other "Principles of Contract," p. 141, members of the Court (Cotton and 7th ed., and Prof. Ames's articles, Bo wen L. J J.) as formulating some "The History of Assumpsit," in wider rule to which they could not Harv. Law Eev. ii. 1, 63. assent. The case itself comes under (17) F. N. B. 94 D. As to the the special rules defining the duty assumption of special skill being a of occupiers (see Chap. XII. below). material element, cp. Shielb v. So far as the judgment of Brett Blackbimie (1789) 2 H. Bl. 158, M. R. purported to exhibit those 2 R. E. 750; where "gross negli- rules as a simple deduction from geuce" appears to mean merely the general rule as to negligence, actionable negligence. alderson's definition. -137 are not yet ready to discuss. They are dealt with in the concluding chapter of this book. Meanwhile we shall have to use for authority and illustration many cases where there was a co-existing duty ex contractu, or even where the duty actually enforced was of that kind. For the obligation of many contracts is, by usage and the nature of the case, not to perform something absolutely, but to use all reasonable skill and care to perform it. Putting aside the responsibilities of common carriers and innkeepers, which are peculiar, we have this state of things in most agreements for custody or conveyance, a railway company's contract with a passenger for one. In such cases a total refusal or failure to perform the contract is rare. The kind of breach commonly com- plained of is want of due care in the course of performance. Now the same facts may admit of being also regarded as a wrong apart from the contract, or they may not. But in either case the questions, what was the measure of due care as between the defendant and the plaintiff, and whether such care was used, have to be dealt with on the same principles. In other words, negligence in perform- ing a contract and negligence independent of contract create liability in different ways : but the authorities that determine for us what is meant by negligence are in the main applicable to both. The general rule was thus stated by Baron Alderson : Definition "Negligence is the omission to do something which a gence^^" reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do" (A)- It was not necessary for him to state, (A) JSli/th V. Birmingham Jl'aler- Brett J. in Smith v. Z. # _ to say whether any facts have been established by evidence ?"■ 7' •' '' '' Jackson. from which negligence may be reasonablj^ inferred ; the jurors have to say whether, from those facts, when sub- mitted to them, negligence ought to be inferred. It is, in my opinion, of the greatest importance in the administra- tion of justice that these separate functions should be maintained, and should be maintained distinct. It would be a serious inroad on the province of a jury, if in a case where there are facts from which negligence may reason- ably be inferred, the judge were to withdraw the case from the jury on the ground that, in his opinion, negli- gence ought not to be infen-ed ; and it would, on the other hand, place in the hands of the jurors a power which might be exercised in the most arbitrary manner, if they were at liberty to hold that negligence might be inferred from any state of facts whatever " [x). " On a trial by jury it is, I conceive, undoubted that the facts are for the jury, and the law for the judge. It it) L. E. 7 H. L. 213, 43 L. J. {x) Lord Cairns, 3 App. Ca. at Q. B. 151 (1873-4). p. 197. Strictly the jurors have («) 3 App. Ca. 193, 47 L. J. to say not whether negligence C. P. 303 (1877). ought to be inferred, but whether, as reasonable men, they do infer it. p. T. G G 450 NEGLIGENCE. is not, however, in many cases practicable completely to sever the law from the facts. " But I think it has always been considered a question of law to be determined by the judge, subject, of course, to review, whether there is evidence which, if it is believed, and the counter evidence, if any, not believed, would establish the facts in controversy. It is for the jmy to say whether, and how far, the evidence is to be believed. And if the facts as to which evidence is given are such that from them a further inference of fact may legitimately be drawn, it is for the jury to say whether that inference is to be drawn or not. But it is for the judge to determine, subject to review, as a matter of law, whether from those facts that further inference may legitimately be drawn " (y). The case itself was decided on the ground that the hurt suffered by the plaintiff was not the proximate conse- quence of any proved negligence of the defendants ; not that there was no proof of the defendants having been negligent at aU, for there was evidence which, if believed, showed mismanagement, and would have been quite enough to fix on the defendant company liability to make good any damage distinctly attributable to such mismanagement as its " natural and probable " conse- quence (s) . As between the plaintiff and defendant, however, evidence of negligence which cannot be reason- ably deemed the cause of his injury is plainly the same thing as a total want of evidence. Any one can see that a man whose complaint is that his thumb was crushed in the door of a railway carriage would waste his trouble in proving (for example) that the train had not a head-light. (y) Lord Blaektiirn, 3 App. Ca. 38 L. J. Ex. 8, wliicli Lord Blaok- at p. 207. Cp. Sijder v. Wombwcll burn goes on to cite with approval. (1868), in Ex. Ch., L. E. 4 Ex. 32, (z) See pp. 36, 40, above. LEVEL CROSSING CASES. 451 The House of Lords determined, after no small difference of learned opinions below, that it availed him nothing to prove overcrowding and scrambling for seats. The irrelevance is more obvious in the one case than in the other, but it is only a matter of degree (a). In the "level crossing" group of cases we have some The "level one crossing a railway at a place made and provided by ^ypTof the company for that purpose, and where the company is ^^^^''■ under the statutory duty of observing certain precautions. The party assumes that the line is clear ; his assumption is erroneous, and he is run down by a passing train. Here the company has not entered into any contract with him ; and he must prove either that the company did something which would lead a reasonable man to assume that the line was clear for crossing [b) , or that there was something in their arrangements which made it imprac- ticable or unreasonably difficult to ascertain whether the line was clear or not. Proof of negligence in the air, so to speak, will not do. "Mere allegation or proof that the company were guilty of negligence is altogether irre- levant ; they might be guilty of many negligent acts or omissions, which might possibly have occasioned injiu-y to somebody, but had no connexion whatever with the (a) Druri/ v. X. E. R. Co. [1901] H. L. 12, 43 L. J. Q. B. 185, where 2 K. B. 322, 70 L. J. K. B. 830, the gates (intencled primarily for was a similar case, except that no the protection of carriage traffic) negligence was suggested beyond were left open when they ought tlie fact of the carriage door being not to have been, so that the shut without special warning. Cp. plaintiff was thrown off his guard ; Founder v. N. E. M. Co. [1892] 1 and in Smith v. S. E. My. Co. [1896] Q. B. 385, 61 L. J. Q. B. 136 1 Q. B. 178, 64 L. J. Q. B. 219, (plaintiff assaulted by persons who C. A., where it was held that there had crowded in), and Cohb v. was evidence of the plaintiff having G. W. n. Co. [1893] 1 Q. B. 459, been misled by the gatekeeper's 62 L. J. Q. B. 335, C. A. inaction into supposing that no (*) As in TJ'anlcss's ease, L. E. 7 train was approaching. gg2 452 NEGLIGENCE. injury for which redress is sought, and therefore the plaintiff must allege and prove, not merely that they were negligent, but that their negligence caused or materially contributed to the injury" (c). What may reasonably be held to amount to such proof cannot be laid down in general terms. " You must look at each case, and all the facts of the case, before you make up your mind what the railway company ought to do " {d). But unless the plaintiff's own evidence shows that the accident was due to his own want of ordinary care (as where in broad day- light he did not look out at all) (c) , the tendency of modern authority is to leave the matter very much at large for the jury. In Dublin, Wicldow and Wexford Railway Co. v. Slattery (/), the only point of negligence made against the railway company was that the train which ran over and killed the plaintiff's husband did not whistle before running through the station where he was crossing the line. It was night at the time, but not a thick night. Ten witnesses distinctly and positively testified that the engine did whistle. Three swore that they did not hear it. A jury having found for the plaintiff, it was held by the majority of the House of Lords that the Court could not enter a verdict for the defendants, although they did not conceal their opinion that the actual verdict was a perA'erse one {g). (c) Lord Watson, Walcelln v. L. of daylight seems to distinguish this i- S. jr. £. Co. (1886) 12 App. Ca. from Slatterif s case (next note). 41,47, 66 L. J. Q. B. 229. (/)(187S) 3 App. Ca. 1155. {d) Bowen L. J., Davey v. L. % Nearly all the modem cases on 5. TT. iJ. Co. (1883) 12 Q. B. Div. "evidence of negligence" were at p. 76. cited in the argument (p. 1161). (e) Davetj T. L. ^- S. W. R. Co. Observe that the question of the (1883) 12 Q. B. Div. 70, 53 L.J. verdict heing against the weight of Q. B. 58 : a ease which perhaps evidence was not open (p. 1162). belongs properly to the head of con- {(/) The majority consistedof Lord tributory negligence, of which more Cairns (who thought the verdict presently. Only the circumstance could not have stood if the accident INVITATION TO ALIGHT. -I'J'' In the other group, which we have called "invitation Tlie"m- - , vitation to to alight cases, the nature of the facts is, if anything, alight" less favourable to the defendant. A train stopping at a ^°'^l'- station overshoots the platform so that the front carriages stop at a place more or less inconvenient, or it may he dangerous, for persons of ordinary bodily ability to alight. A passenger bound for that station, or otherwise minded to alight, is unaware (as by reason of darkness, or the like, he well may be) of the inconvenience of the place (//), or ■else is aware of it, but takes the attendant risk rather than be carried beyond his destination. In either case he gets out as best he can, and, whether through false security, or in spite of such caution as he can use, has a fall or is otherwise hurt. Here the passenger is entitled by his contract with the company to reasonable accommodation, and they ought to give him facilities for alighting in a reasonably convenient manner. Overshooting the platform is not of itself negligence, for that can be set right by backing the train (/) . It is a question of fact whether under the particular circumstances the company's servants were reasonably diHgent for the accommodation of the passengers (/.■) , and whether the passenger, if he alighted knowing the nature of the place, did so under a reasonable apprehension that he must alight there or not ataU(/). iad happened by dayUght), Lord Ex. Ch. L. R. 7 C. P. 321, 41 Penzance, Lord O'Hagan, Lord L. J. C. P. 140. Selbome, and Lord Gordon ; the (i) Siuei- v. G. W. E. Co. (1869) minority of Lord Hatherley, Lord Ex. Ch. L. R. 4 Ex. 117, 38 L. J. Coleridge, and Lord Blackburn. Ex. 67. jEIUs v. G. W. B. Co. (Ex. Ch. (Ic) Bridffes v. N. London B. Co. 1874) L. R. 9 C. P. 551, 43 L. J. p. 449, above. C. P. 304, does not seem consistent {1} Eobsoii v. iV. JH. B. Co. 2 -with this decision ; there was dif- Q. B. Div. 85, 46 L. J. Q. B. 50 ; ference of opinion in that case also. Base v. iV. JE. B. Co. 2 Ex. Div. 248, (A) Cockle V. S. E. B. Co. (1872) 46 L. J. Ex. 374 (both in 1876). 454 NEGLIGE^fCE. Complioa- All these cases are apt to be complicated with issues contribu- of contribiitory negligence and other similar though not o^ence^'^&o" identical questions. We shall advert to these presently. It will be convenient now to take a case outside these particular types, and free from their complications, in which the difficulty of deciding what is " evidence of Other negligence " is illustrated. Such an one is Smith v. tiona of London and South Western Raiboay Company [m). The of negli- facts are, in this country and climate, of an exceptional gence: kind: but the case is interesting because, though distinctly L. f(S. TV. within the line at which the freedom of the jury ceases,, that line is shown by the tone and language of the judg- ments in both the Common Pleas and the Exchequer Chamber to be nearly approached. The action was in respect of property burnt by fire, communicated from sparks which had escaped from the defendant com- pany's locomotives. The material elements of fact were the following. Hot dry weather had prevailed for some time, and at the time of the accident a strong S.E. wind was blowiug. About a fortnight earlier grass had been cut by the defendants' servants on the banks adjoining the line, and the boundary hedge trimmed, and the cuttings and trimmings had, on the morning of the fire (n), been raked into heaps, and lay along the bank inside the hedge. These cuttings and trimmings were, by reason of the state of the weather, very dry and inflammable. Next the hedge there was a stubble field ; beyond that (m) Ij. E. 5 C. P. 98, 39 L. J. fire carried hj wind is Jlilicaukee C. P. 68, in Ex. Ch. 6 C. P. 14, 40 and St. JPaul S. It. Co. v. Xetloi/ff L. J. C. P. 21 (1870). The accident (1876) 94 XT. S. 469. took place in the extraordinarily («) See statement of the facts in warm and dry summer of 1868. A the report in Ex. Ch. L. K. 6 C. P. somewhat similar American case of at p. 15. EVIDENCE IN SPECIAL CIKCUMSTANCES, a road ; on the other side of the road a cottage be- longing to the plaintiff, 200 yards in all distant from the railway. Two trains passed, and immediately or shortly after- wards the strip of grass between the railroad and the hedge was seen to be on fire. Notwithstanding all efforts made to subdue it, the fire burnt through the hedge, spread over the stubble field, crossed the road, and consumed the plaintiff's cottage. There was no evidence that the railway engines were improperly constructed or worked with reference to the escape of sparks, and no direct evidence that the fire came from one of them. The jury found for the plaintiff ; and it was held (though with some difficulty) (o) that they were warranted in so finding on the ground that the defendants were negligent, having regard to the prevailing weather, in leaving the dry trimmings in such a place and for so long a time. The risk, though unusual, was apparent, and the company was bound to be careful in proportion. " The more likely the hedge was to take fire, the more incumbent it was upon tlie company to take care that no inflammable material remained near to it" (p). Thus there was evidence enough (though it seems only just enough) to be left for the jury to decide upon. Special danger was apparent, and it would have been easy to use appropriate caution. On the other hand the happening of an accident in extraordinary circumstances, from a cause not apparent, and in a manner that could not have been prevented by any ordinary measiu-es of precaution, is not of itself any evidence of (o) Brett J. dissented in the damage in question could not have Common Pleas, and Blackburn J. reasonably been anticipated, expressed some doubt in the Ex. Ch. {p) Lush J. in Ex. Ch. L. E. G on the ground that the particular C. P. at p. 23. 456 NEGLIGENCE. No precise general rule ciia be sriven. negligence (q). And a staircase whicli has been used by many thousand persons without accident cannot be pro- nounced dangerous and def ectiye merely because the plain- tiff has slipped on it, and somebody can be found to suggest improvements (r). Illustrations might be largely multiplied, and may be found in abundance in Mr. Beven's monograph, or by means of the citations and discussions in the leading cases themselves. Enough has been said to show that by the nature of the problem no general formula can be laid down except in some such purposely vague terms as were used in Scott v. London Dock Co. (s). Due care varies as apparent risk : ap- plication of this to accidents through personal infirmity. We have said that the amount of caution required of a citizen in his conduct is proportioned to the amount of apparent danger. In estimating the probability of danger to others, we are entitled to assume, in the absence of anything to show the contrary, that they have the full use of common faculties, and are capable of exercising ordinary caution. If a workman throws down a heavy object from a roof or scaffolding " in a country village, where few passengers are," he is free from criminal liability at all events, provided " he calls out to all people to have a care"(i^). Now some passer-by may be deaf, and may suffer by not hearing the warning. {■) See Ilarv. Law Kev. iii. 272 V. Grand Junction R. Co. (1838) 3 —276. M. & W. at p. 248, 49 R. R. 593. (s) U East 60, 10 R. R. 433 (q) 7 Q. B. 339, 376, 15 L. J. (1809). COXTEIBUTORY NEGLIGENCE. 467 fall. But it was not the whole proximate cause. The other and dcvi.sirc cause which concurred was the plaintiff's failure to see and avoid the pole in his way. On the whole, then, if the plaintiff's " fault, whether of omission or of commission, has been the proximate cause of the injury, he is without remedy against one also in the wrong" (i*). On the other hand, if the defendant's fault has been the proximate cause he is not excused merely by showing that the plaintiff's fault at some earlier stage created the opportunity for the fault which was that cause (ii). If it is not possible to say whether the plaintiff's or the defendant's negligence were the proximate (or decisive) cause of the damage, it may be said that the plaintiff cannot succeed because- he has failed to prove that he has been injured by the defendant's negligence (x) . On the other hand it might be suggested that, since contributory negligence is a matter of defence of which the burden of proof is on the defendant (y), the defendant would in such a case have failed to make out his defence, and the plaintiff, having proved that the defendant's negligence was a proximate cause if not the whole proximate cause of his damage, would still be entitled to succeed. The defendant must allege and prove not merely that the plaintiff was negligent, but that the plaintiff could by the exercise of ordinary care have avoided the consequences of the defendant's negligence (:;). It is a question, either way, whether the plaintiff shall recover his whole damages or nothing, for the common {t) Little V. Backelt (1886) 116 (y) Lord Watson (Lord Black- V. S. 366, 371 ; Butterficld v. For- burn agreeing), Wakelin v. X. ^- S. roster, last page. W It. Co. (1886) 12 App. Ca. at («) Radlcy V. L. # X. TT. S. Co. ; pp. 47—49. Daviesv. Mann, p. 46.5, above. («) Bridge v. Grand Junction S. (x) Per Lindley L. J., The Ber- Co. (1838) 3 M. & W. 248, 49 E. E. nina, 12 P. D. 68, 89. 690. hh2 468 NEGLIGENCE. law, wlietlier reasonably or not (a) , has made no provision for apportioning damages in such cases. A learned writer (whose preference for being anonymous I respect but regret) has suggested that " hardly sufficient attention has been paid herein to the distinction between cases where the negligent acts are fn'mn/tanroiis and those where they are successire. In regard to the former class, such as Dublin, Wiclilow 8f Wexford Mi/. Co. v. Slntfcrij {b), or the case of two persons colliding at a street corner, the rule is, that if the jildintiff could by the exercise of ordinarij eare hace aroided the aeeideiit he eannot reeover In regard to tte latter class of cases, such as Daries v. Mann (c) and Ecdley v. L. 8( N. W Ri/. Co. (d), the rule may be stated thus : that he who last has an opportiiiiit// of avoidrng the aeeident, noticithstanding the negligence of the other, is soldi/- responsible. And the ground of both rules is the same ; that the law looks to the proximate cause, or, in other words, will not measure out responsibility in halves or other fractions, but holds that person liable who was in the main the cause of the injury " [e). Another kind of question arises where a person is injured without any fault of his own, but by the com- bined effects of the negligence of two persons, of whom the one is not responsible for the other. It has been supposed that A. could avail himself, as against Z. who has been injiu-ed without any want of due care on his own part, of the so-called contributory negligence of a third person B. " It is true you were injured by my negligence, but it would not have happened if B. had not been negligent also, therefore you cannot sue me, or (a) See per Lindley L. J., 12 698. P. D. 89. (d) 1 App. Ca. 754, 46 L. J. Ex. (h) 3 App. Ca. U55. 573. (c) 12 M. & W. 546, 62 R. R. (e) L. Q. R. v. 87. DOCTRINE OF "IDENTIFICATION." 469 at all events not apart from B." Eeoent authority is decidedly against allowing such a defence, and in one particular class of cases it has been emphatically dis- allowed. It must, however, be open to A. to answer to Z. : " Tou were not injm-ed by my negligence at all, but only and whoUy hy B.'s." It seems to be a question of fact rather than of law (as, within the usual limits of a jury's discretion, the question of " proximate cause" is in all ordinary cases) (/) ^^•hat respective degrees of connexion, in kind and degree, between the damage suffered by Z. and the independent negligent conduct of A. and B. will make it proper to say that Z. was injured by the negligence of A. alone, or of B. alone, or of both A. and B. But if this last conclusion be arri-\'ed at, it is now quite clear that Z. can sue both A. and B. (g). In a case now overruled, a different doctrine was set The up which, although never willingly received and seldom doctrine of acted on, remained of more or less authority for nearly ^'1^™^''" forty years. The supposed rule was that if A. is travelling in a vehicle, whether carriage or ship, which belongs to B. and is under the control of B.'s servants, and A. is injured in a collision with another vehicle belonging to Z., and under the control of Z.'s servants, which collision is caused partly by the negligence of B.'s servants and partly by that of Z.'s servants, A. cannot recover against Z. The pas- senger, it was said, must be considered as having in some sense " identified himself " with the vehicle in which he has chosen to travel, so that for the purpose of complaining of any outsider's negligence he is not in any better position (/) See 94 U. S. at p. 474. (1888) 13 App. Ca. 1, overruling {ffl Little V. Hackett (1886) 116 Thorogood v. Sryan (1849) 8 C. B. TJ. S. 366; Mills v. Armstrong 115, 18 L. J. C. P. 336. 470 NEGLIGENCE. than the person who has the actual control (A) . It is very difficult to see what this supposed " identification " really meant. With regard to any actual facts or intentions of parties, it is plainly a figment. No passenger carried for hire intends or expects to he answerable for the negligence of the driver, guard, conductor, master, or whoever the person in charge may he. He naturally intends and justly expects, on the contrary, to hold every such person and his superiors answerable to himself. Why that right should exclude a concurrent right against other persons who have also been negligent in the same transaction was never really explained. Tet the eminent judges (?) who invented " identification " must have meant something. They would seem to have assumed, rather than concluded' that the plaintiff was bound to show, even in a case where no negligence of his own was alleged, that the defendant's negligence was not only a cause of the damage sustained, but the whole of the cause. But this is not so. The strict analysis of the proximate or immediate cause of the event, the inquiry who could last have prevented the mischief by the exercise of due care, is relevant only where the defendant says that the plaintiif suffered by his own negligence. Where negligent acts of two or more indepen- dent persons have between them caused damage to a third, the sufferer is not driven to apply any such analysis to find out whom he can sue. He is entitled — of course fsathin the limits set by the general rules as to remoteness of damage — to sue all or any of the negligent persons. It is no concern of his w^hether there is any duty of contribution or indemnity as between those persons, though in any case he plainly cannot recover in the whole more than his whole damage. (A) Judgments in Thorogood t. (i) Coltman, Maule, Cresswell, Hryan, see 12 P. D. at pp. 64 — 07, and Vaughan Williams JJ. 13 App. Ca. at pp. 6, 7, 17. NEGLIGENCE OF THIED PEESON. The phrase " contributory negligence of a third person," which has sometimes been used, must therefore be rejected as misleading. Peter, being sued by Andrew for causing him harm by negligence, may prove if he can that not his negligence, but wholly and only John's, harmed Andrew. It is useless for him to show that John's negligence was " contributory " to the harm, except so far as evidence which proved this, though failing to prove more, might practically tend to reduce the damages. It is impossible to lay down rules for determining whether harm has been caused by A.'s and B.'s negligence together, or by A.'s or B.'s alone. The question is essentially one of fact. There is no reason, however, why joint negligence should not be successive as well as simultaneous, and there is some authority to show that it may be (/i). A wrongful or negligent voluntary act of Peter may create a state of things giving an opportunity for another wrongful or negligent act of John, as well as for pure accidents. If harm is then caused by John's act, which act is of a kind that Peter might have reasonably foreseen, Peter and John may both be liable ; and this whether John's act be wilful or not, for many kinds of negligent and wilfully wrongful acts are unhappily common, and a prudent man cannot shut his eyes to the probability that somebody will commit them if temptation is put in the way (/) . One is not entitled to make obvious occasions for negligence. A. leaves the flap of a cellar in an insecure position on a highway where all manner of (/c) See now Engelhart v. Farrant may, if they are in fact common, S; Co. [1897] 1 Q. B. 240, 66 L. J. be reckoned as accidents arisinfj; out Q. B. 122, C. A., suin-a, p. 4.5. of employment under the Work- men's Compensation Act : C'/iallis {t) Wrongful acts of strangers, v. i. ^ S. 77". JJ. Co. [1906] 2 K. B. such as throwing stones at trains, 154, 7-4 L. J. K. B. 569, C. A. 471 47-' NEGLIGENCE. persons, adult and infant, wise and foolish, are accustomed to pass. B. in carelessly passing, or playing with the flap, brings it down on himself, or on C. In the former case B. has suffered from his own negligence and cannot sue A. («(). In the latter B. is liable to C. ; but it may well be that a prudent man in A.'s place would have foreseen and guarded against the risk of a thing so left exposed in a public place being meddled with by some careless person, and if a jmy is of that opinion A. may also be liable to C. («). Where A. placed a dangerous obstruction in a road, and it was removed by some unex- plained act of an unknown third person to another part of the same road, where Z., a person lawfully using the road, came against it in the dark and was injured, A. was held liable to Z., though there was nothing to show whether the third person's act was or was not lawful or done for a lawful purpose (o) . Accidents Another special class of cases requires consideration. in custody If A. is a child of tender years (or other person incapable of adult. q£ ^j^]j-ijjg ordinary care of himself) , but in the custody of M., an adult, and one or both of them suffer harm under circumstances tending to prove negligence on the part of Z., and also contributory negligence on the part of M. (p), Z. will not be liable to A. if M.'s negligence alone was the (m) Assuming that he is capable 331, 72 L. J. K. B. 652, -where of discretion. See Lynch v. Xiird'M the C. A. held that there wa.i no (1841) 1 Q. B. 29, 10 L. J. Q. B. evidence of negligence in the first 73, 55 R. R. 191. instance. (m) Hughes v. JLicJic (1863) 2 H. i \ m i r,i i i j. i ^ I J V, , (o) Clcirl- V. Clmmhers, last note. & C. 744, 33 L. J. Ex. 177; and ^ ' see Clark v. Chambers (1878) 3 (p) Waite v. X. E. E. Co. (1869) Q. B. D. at pp. 330—336, p. 49, Ex. Ch. E. B. & E. 719, 27 L. J. above ; Dixon v. Bell, 5 M. & S. Q. B. 417, 28 L. J. Q. B. 258. 198, 17 R. R. 308, pp. 492, 493, This case is expressly left untouched below, and distinguish McDowall hj Mills v. Armstrong, 13 A-pp. Ca.. V. G. TF. It. Co. [1903] 2 K. B. 1 (see at pp. 10, 19), 57 L. J. P. 05. NEGLIGENCE OF THIRD PEKSON. 473 proximate cause of the mischief. Therefore if M. could, by such reasonable diligence as is commonly expected of persons having the care of young children, have avoided the consequences of Z.'s negligence, A. is not entitled to sue Z. : and this not because M.'s negligence is imputed by a fiction of law to A., who by the hypothesis is incapable of either diligence or negligence, but because the needful foundation of liability is wanting, namely, that Z.'s negligence, and not something else for which Z. is not answerable, and which Z. had no reason to anticipate, should be the proximate cause. Xow take the case of a child not old enough to use Children, ordinary' care for its own safety, which by the careless- attended. ness of the person in charge of it is allowed to go alone in a place where it is exposed to danger. If the child comes to harm, does the antecedent negligence of the custodian mate any difference to the legal result ? On principle surely not, unless a case can be conceived in which that negligence is the proximate cause. The defendant's duty can be measured by his notice of special risk and his means of avoiding it ; there is no reason for making it vary with the diligence or negligence of a third person in giving occasion for the risk to exist. If tlie defendant is so negligent that an adult in the plaintitt's position could not have saved himself by reasonable care, he is liable. If he is aware of the plaintiff's helplessness, and fails to use such sj)ecial precaution as is reasonablj'- possible, then also, we submit, he is liable. If he did not know, and could not with ordinary diligence have known, the plaintiff to be incapable of taking care of himself (q), and has used such diligence as would be sufRcient towards {q) This might happen in various ways, by reason of darkness or other srise. 474 ChUdY. J [rant. NEGLIGENCE. an adult ; or if, being aware of the danger, he did use such additional caution as he reasonably could; or if the facts were such that no additional caution was practicable, and there is no evidence of negligence according to the ordinary standard (r), then the defendant is not liable. No English decision has been met with that goes the length of depriving a child of redress on the ground that a third person negligently allowed it to go alone («). In America there have been such decisions in Massachu- setts [t), New York, and elsewhere: but the better opinion is to the contrary (ii), and it is submitted that both on principle and according to the latest authority of the highest tribunals in both countries they are right. In one peculiar case [x) the now exploded doctrine of " identification " {ij) was brought in, gratuitously as it would seem. The plaintiff was a platelayer working on a railway ; the railway company was by statute bound to maintain a fence to prevent animals {z) from straying- ofE the adjoining land ; the defendant was an adjacent owner who kept pigs. The fence was insufficient to keep {)■) Singletons. E. C. R. Co. (]So9) ia of doubtful authority. For our 7 C. B. N. S. 2S7, is a case of this own part ■ne think it is not law. kind, as it was decided not on the Cp. Mr. Camphell's note to Dixon fiction of imputing a third person's v. Bell, 17 E. R. 308. negligence to a child, but on the t^t) Holmes, The Common Law, ground (whether rightly taken or j28_ not) that there was no evidence of negligence at all. ()() Burdick on Torts, 443, and see Jer. Smith, 2 Sel. Ca. on Tcrts, .s) Mangun y. AtAerton (1866) 9^2 L. E. 1 Ex. 239, 35 L. J. Ex. 161, comes near it. But that case went (x) Child V. Ilearn (1874) L. R. 9 Ex. 176, 43 L. J. Ex. 100. partly on the ground of the damage being too remote, and since Clark '^^ ^- *^^' '^^°™- V, Chambers (1878), 3 Q. B. D. 327, (z) "Cattle," held by the Court 47 L. J. Q. B. 427, supra, p. 49, it to include pigs. CONTRIBUTORY NEGLIGENCE. ^~'> out pigs (n). Some pigs of the defendant's found their wa\' on to the line, it did not appear how, and upset a trolly worked by hand on which the plaintiff and others were riding back from their work. The plaintiff's case appears to be bad on one or both of two grounds ; there was no proof of actual negligence on the defendant's part, and even if his eommon-law duty to fence was not altogether superseded, as regards that boundarj^, by the Act casting the duty on the railway company, he was entitled to assume that the company would perform their dut}' ; and also the damage was too remote (i). But the ground actually taken was " that the servant can be in no better position than the master when he is using the master's property for the master's purposes," or " the plaintiff is identified with the land which he was using for his own convenience." This ground would now clearly be untenable. The common law rule of contributory negligence is Admiralty unknown to the maritime law administered in courts of dividing- Admiralty jurisdiction. Under a rough working rule commonly called Judiciitiu nisticuiii, and apparently derived from early medieval codes or customs, with none of which, however, it coincides in its modern applica- tion (c), the loss is equally divided in cases of collision where both ships are found to have been in fault. The ancient rule applied only where there was no fault in (ff) That is, pigs of average one of his pigs being on the line, vigour and obstinacy ; see per (i) Note by the late Mr. Justice Bramwell B., whose judgment (pp. Cave in Addison on Torts, 6th ed. 181, 182) is almost a caricature of 27. the general idea of the ' ' reasonable (c) Marsden on Collisions at Sea, man." It was alleged, but not eh. 6 (5th ed. 116 sqq.), and see found as a fact, that the defendant an article by the same writer in hadpreviouslybeen warned by some L. Q. R. ii. 357. 476 NEGLIGENCE. either ship; as adopted in England, it seems more than doubtful -whether the rule made any distinction, until quite late in the eighteenth century, between cases of negligence and of pure accident (c/) . However that may be, it dates from a time when any more refined working- out of principles was impossible {r) . As a rule of thumb, which frankly renounces the pretence of being anything more, it appears to be found tolerable by the majority of those whom it concerns (/), although, as Mr. Marsden's researches ha-\-e shown, for about a century it has been applied for a wholly dilferent purpose from that for which it was introduced in the older maritime law, and in a wholly different class of cases. By the Judicature Act, 187o (fj), \hii judicium rudicum is expressly preserved in the Admiralty Division. AcHon under difficulty IV. — Auxiliary Rule^ and Presumption);. There are certain conditions under which the normal standard of a reasonable man's prudence is peculiarly caused by difficult to apply, by reason of one party's choice of another's . .. . . negli- alternatives, or opportunities of judgment, being affected " ' by the conduct of the other. Such difficulties occur mostly in questions of contributory negligence. In the [d) Op. cit. 139. [e) AVriters on maritime law state the rule of the common law to be that when both ships are in fault neither can recover anything. This may have been practically so in the first half of the century, but it is neither a complete nor a correct version of the law laid down in Tuff Y. TFarmim (1858) 5 C. B. N. S. 573, 27 L. J. C. P. 322. As long a go as 1 8 3 8 it "was distinctly pointed cut that "there may have been negligence in both parties, and yet the plaintiff may be entitled to recover: " Parke B. in Bridge v. Grand Junction It. Cu., 3 M. & W. 214, 248, 49 R. R. 590, 593. (/) Pee, however, Mr. Leslie F. Scott's article on this subject in L. Q. R. xiii. 17. iff) S. 26, sub-s. 9. The first intention of the framers of the Act "was otherwise. See Marsden, p. 121, 5th ed. ALLOWANCE FOE EMERGENCY. -l~7 first place, a man who by another's want of care finds himself in a position of imminent danger cannot be held guilty of negligence merely because in that emer- gency he does not act in the best way to avoid the danger. That which appears the best way to a court examining the matter afterwards at leisure and with full knowledge is not necessarily obvious even to a prudent and skilful man on a sudden alarm. Still less can the party whose fault brought on the risk be heard to complain of the other's error of judgment. This rule has been chiefly applied in maritime cases, where a ship placed in peril by another's improper navigation has at the last moment taken a wrong course {/)) : but there is authority for it elsewhere. A person who finds the gates of a level railway crossing open, and is thereby misled into thinking the line safe for crossing, is not bound to minute circumspection, and if he is run over by a train the company may be liable to him although "he did not use his faculties so clearly as he might have done under other circumstances" (i). "One should not be held too strictly for a hasty attempt to avert a suddenly impending danger, even though his effort is ill-judged "(A-). One might generalize the rule in some such form as No duty to this : not only a man cannot with impunity harm others ne'^Tio^ence by his negligence, but his negligence cannot put them in °* otliera. a worse position with regard to the estimation of default. You shall not drive a man into a situation where there (A) The Bywell Castle (1879) 4 (») N. E. E. Co. v. Wanless P. Div. 219 ; The Tasmania (1890) (1874) L. E. 7 H. L. at p. 16 ; cp. 15 App. Ca. 223, 226, per Lord Slattenfs ca. (1878) 3 App. Ga. at Herschell ; and see other examples p. 1193. collected in Marsdeu on Collisions (k) Briggs v. Xfnion Street Hy. at Sea, pp. 4, 5, 5th ed. (1888) US Mass. 72, 76. 478 NEGLIGENCE. Choice of risks under stress of another's negii- ofence. is loss or risk every "way, and then say that he suffered by his own imprudence. Neither shall you complain that he (lid not foresee and provide against your negligence. We are entitled to count on the ordinary prudence of our fellow-men until we have specific warning to the contrary. The driver of a carriage assumes that other vehicles will observe the rule of the road, the master of a vessel that other ships will obey the statutory and other rules of navigation, and the like. And generally no man is bound (either for the establishment of his own claims, or to avoid claims of third persons against him) to use special pre- caution against merely possible v\-ant of care or skill on the part of other persons who are not his servants or under his authority or control ( / ) . It is not, as a matter of law, negligent in a passenger on a railway to put his hand on the door or the window- rod, though it might occur to a very prudent man to try first whether it was properly fastened ; for it is tlie com- pany's business to have the door properly fastened (y//). On the other hand, if something goes wrong which does not cause any pressing danger or inconvenience, and the passenger comes to harm in endeavouring to set it right himself, he cannot hold the company liable [n). We have a somewhat different case when a person, having an apparent dilemma of evils or risks put before him by another's default, makes an active choice between them. The principle applied is not dissimilar ; it is not (l) See Daniel v. Metrop. S. Co. (1871) L. E. 5 H. L. 45, 40 L. J. C. P. 121. (m) Gee t. JMrop. JR. Co. (1873) Ex. Ch. L. E. 8 Q. B. 161, 42 L. J. Q. B. 10.5. There was some difference of opinion how far the question of contributory negligence in fact was fit to he put to the jury. («) This is the principle applied in Adams v. L. tf- Y. S. Co. (1869) L. R. 4 C. P. 739, 38 L. J. C. P. 277, though (it seems) not rightly in the particular case ; see in Gee V. 3[etrop. S. Co. L. R. 8 Q. B. at pp. 161, 173, 176. CHOICE BETWEEN RISKS. ■i"" necessary and of itself contributory negligence to do something which, apart from the state of things due to the defendant's negligence, would be imprudent. The earliest case where this point is distinctly raised ciayanh and treated by a full Com-t is Claijank v. Bcthick{o). ^-^'tind. The plaintiff ^^■as a cab-owner. The defendants, for the purpose of making a drain, had opened a trench along the passage which afforded the only outlet from the stables occupied by the plaintiff to the street. The opening was not fenced, and the earth and gravel excavated from the trench were thrown up in a bank on that side of it where the free space was wider, thus increasing the obstruction. In this state of things the plaintiff attempted to get two of his horses out of the mews. One he succeeded in leading out over the gravel, by the advice of one of the defendants then present. With the other he failed, the rubbish giving way and letting the horse down into the trench. Neither defen- dant was present at that time Q)). The jury were directed " that it could not be the plaintiff's duty to refrain altogether from coming out of the mews merely because the defendants had made the passage in some degree dangerous : that the defendants were not entitled to keep the occupiers of the mews in a state of siege till (o) 12 Q. B. 439, 76 E. E. 305 not upset. It was left to the jury (1848). The rule was laid down whether by the defendant's fault by Lord EUenborough at nisi he ' ' was placed in such a situation prius as early as 1816 : Jones v. as to render what he did a prudent Boyce, 1 Stark. 493, 18 E. E. 812, precaution for the purpose of self- cited by Montague Smith J., preservation." L. E. 4 C. P. at p. 743. The {p) Evidence was given by the plaintiff was an outside passenger defendants, but apparently not be- on a coach, and jumped off to lieved by the jury, that their men avoid what seemed an imminent expressly warned the plaintiflE upset ; the coach was, however, against the course he took. 4S0 NEGLIGE>fCE. tho passage was declared safe, first creating a nuisance and then excusing themselves by giving notice that there was some danger : though if the plaintiff had persisted in running upon a great and obvious danger, his action could not be maintained." This direction was approved. Whether the plaintiff had suiiered by the defendants' negligence, or by his own rash action, was a matter of fact and of degree properly left to the jury : " the whole question was whether the danger was so obvious that the plaintiff could not with common prudence make the attempt." The decision has been adversely criticised by Lord Bramwell, but principle and authority seem on the whole to support it {q) . One or two of the railway cases grouped for practical purposes under the catch-word "invitation to alight" have been decided, in part at least, on the principle that, where a passenger is under reasonable apprehension that if he does not alight at the place where he is (though an unsafe or unfit one) he will not have time to alight at all, he may be justified in taking the risk of alighting as best he can at that place (r) ; notwithstanding that he might, by declining that risk and letting himself be carried on to the next station, have entitled himself to recover damages for the loss of time and resulting expense (-s) . Doctrine There has been a line of cases of this class in the State of Ngav York of New York, where a view is taken less favourable to the '^™ "' plaintiff than the rule of Clai/ards v. Bethick. If a train [q) See Appendix B. to Smith on Negligence, 2nd ed. I agree with Mr. Smith's observations ad Jin., p. 279. ()■) Sohsonv. N. E.S. Co. (1875-6) L. E. 10 Q. B. 271, 274, 44 L. J. 46 L. J. Q. B. 50) ; Hose v. X. E. M. Co. (1876) 2 Ex. Div. 248, 46 L. J. Ex. 374. (s) Contra Bramwell L. J. in La3> V. Corporation of Darlington (1879} 6 Ex. D. at p. 35 ; but the last- Q. B. 1 12 (in C. A. 2 Q. B. Div. 85, mentioned cases had not been cited. CHOICE OF RISKS. 481 fails to stop, and only slackens speed, at a station where it is timed to stop, and a passenger alights from it while in motion at the invitation of the company's servants (f), the matter is for the jury ; so if a train does not stop a reasonable time for passengers to alight, and starts while one is alighting {n). Otherwise it is held that the passenger alights at his own risk. If he wants to hold the company liable he must go on to the next station and sue for the resulting damage (.r). On the other hand, where the defendant's negligence has put the plaintiff in a situation of imminent peril, the plaintiff may hold the defendant liable for the natural consequences of action taken on the first alarm, though such action may turn out to have been unnecessary {}/). It is also held that the running of even an obvious and great risk in order to save human life may be justified, as against those by whose default that life is put in peril (s). And this seems just, for a contrary doctrine would have the effect of making it safer for the wrong-doer to create a great risk than a small one. Or we may put it thus ; that the law does not think so meanly of mankind as to hold it otherwise than a natural and probable consequence of a helpless person being put in danger that some able- bodied person should expose himself to the same danger to effect a rescue. (t) Filers. X. Y. C'ciitralR. R. Co. Cp. Jones v. Boyee (1816) 1 Stark. (1872) 49 N. T. 47. 493, 18 E. R. 812. [u] 63 K T. at p. 559. («) ^'^^""'t ^- ^^"9 ^''^""^^ ^- ^■ Co. (1871) 43 N. T. 502, 3 Am. {X) Burrows v. Erie E. Co. (1876) ^^^^ ^^1 (action by representative 63 N. y. 556. ^^ ^ ^^^ j^jjjgjj jj^ getting a child (y) Coulter Y. Express Co. (1874) off the railway track in front of a 56 N. Y. 585 ; Twomley v. Central train which was being negligently rark R. R. Co. (1878) 69 N. T. 158. driven). P. — T. I 1 482 NEGLIGENCE. Separation American jurisprudence is exceedingly rich in illustra- faotin tions of the questions discussed in this chapter, and States American cases are constantly, and sometimes very freely, cited and even judicially reviewed (a) in oui- courts. It may therefore be useful to call attention to the peculiar turn given by legislation in many of the States to the treatment of points of " mixed law and fact." I refer to those States where the judge is forbidden by statute (in some cases by the constitution of the State) (b) to charge the jury as to matter of fact. Under such a rule the summing-up becomes a categorical enumeration of all the specific inferences of fact which it is open to the jury to find, and which in the opinion of the Court would have diflierent legal consequences, together with a statement of those legal consequences as leading to a verdict for the plaintiff or the defendant. And it is the habit of counsel to frame elaborate statements of the propositions of law for which they contend as limiting the admissible findings of fact, or as applicable to the facts which may be found, and to tender them to the Court as the proper instruc- tions to be given to the jury. Hence there is an amount of minute discussion beyond what we are accustomed to in this country, and it is a matter of great importance, when an appeal is contemplated, to get as little as possible left at large as matter of fact. Thus attempts are frequently made to persuade a Court to lay down as matter of law that particular acts are or are not con- tributory negligence (c). Probably the doctrine held in (a) £. jr. Lord Esher's judgment have not been consistently acted on. in The JBernina, 12 P. Div. at pp. (4) Stimson, American Statute 77-82. Cp. per Lord Hersohell in Law, p. 132, ^ 605. Mills V. Armstrong, 13 App. Ca. at (c) For a strong example see p. 10. There are dicta against Kane v. JSf. Central S. Co. 128 U. S. citing American cases, but they 91. In Washington, ^-c. S. S. Ca. PECULIAR AMERICAN RULES. 483 several States that the plaintiff has to prove, as a sort of preliminary issue, that he was in the exercise of due care, has its origin in tliis practice. It is not necessary or proper for an English lawyer to criticize the convenience of a rigid statutory definition of the provinces of judge and jury. But English practitioners consulting the American reports must bear its prevalence in mind, or they may find many things hardly intelligible, and perhaps even suppose the substantive differences between English and American opinion upon points of pure law to be greater than they really are. T. McBade (1889) 135 U. S. 554, separate prayers for instruotions to 564, "counsel for the defendant the jury." asked the Court to grant twenty ii2 484 Excep- tions to general limits of duties of caution. CHAPTEE XII. DUTIES OF INSURING SAFETY. In general, those who in person go about an undertaking attended with risk to their neighbours, or set it in motion by the hand of a sen'ant, are answerable for the conduct of that undertaking with diligence proportioned to the apparent risk. To this rule the policy of the law makes exceptions on both sides. As we have seen in the chapter of General Exceptions, men are free to seek their own advantage in the ordinary pursuit of business or uses of property, though a probable or even intended result may be to diminish the profit or convenience of others. We now have to consider the cases where a stricter duty has been imposed. As a matter of history, such cases cannot easily be referred to any definite principle. But the ground on which a rule of strict obligation has been maintained and consolidated by modern authorities is the magnitude of the danger, coupled with the difficulty of proving negligence as the specific cause in the event of the danger having ripened into actual harm. The law might have been content with applying the general standard of reasonable care, in the sense that a reason- able man dealing with a dangerous thing — fire, flood- water, poison, deadly weapons, weights projecting or suspended over a thoroughfare, or whatsoever else it be — will exercise a keener foresight and use more anxious precaution than if it were an object unlikely to cause harm, such as a faggot, or a loaf of bread. A prudent man does not handle a loaded gun or a sharp sword in RYLANDS V. FLETCHER. 485 the same fashion as a stick or a shovel. But the course adopted in England has been to preclude questions of detail by making the duty absoluto ; or, if we prefer to put it in that form, to consolidate the judgment of fact into an unbending rule of law. The law takes notice that certain things are a source of extraordinary risk, and a man who exposes his neighbour to such risk is held, although his act is not of itself wrongful, to insm-e his neighbour against any consequent harm not due to some cause beyond human foresight and control. Yarious particular rules of this kind (now to be regarded Rijtanth v. as applications of a more general one) are recognized in our law from early times. The generalization was effected as late as 1868, by the leading case of II //lands v. Fletcher, where the judgment of the Exchequer Chamber delivered by Blackburn J. was adopted in terms by the House of Lords. The nature of the facts in Fletcher v. Rylauds, and the question of law raised by them, are for our purpose best shown by the judgment itself («) : — " It appears from the statement in the case, that the Judgment plaintiif was damaged by his property being flooded by water, which, without any fault on his part, broke out of a reservoir, constructed on the defendants' land by the defendants' orders, and maintained by the defendants. " It appears from the statement in the case, that the coal under the defendants' land had at some remote period been worked out ; but this was unknown at the time when the defendants gave directions to erect the reservoir, and the water in the reservoir would not have escaped from the (a) L. R. 1 Ex. at p. 278, Lush, JJ. For the statements of per Willes, Blackburn, Keating', fact referred to, see at pp. 267- Mellor, Montague Smith, and 269. 486 DUTIES OF INSURING SAFETY. defendants' land, and no mischief would have been done to the plaintiff, but for this latent defect in the defendants' subsoil. And it further appears that the defendants selected competent engineers and contractors to make their reservoir, and themselves personally continued in total ignorance of what we have called the latent defect in the subsoil ; but that these persons employed by them, in the course of the work became aware of the existence of the ancient shafts filled up with soil, though they did not know or suspect that they were shafts communicating with old workings. "It is found that the defendants personally were free from all blame, but that in fact proper care and skill was not used by the persons employed by them, to provide for the sufficiency of the reservoir with reference to these shafts. The consequence was that the reservoir when filled Tj-ith water burst into the shafts, the water flowed down through them into the old workings, and thence into the plaintiff's mine, and there did the mischief. " The plaintiff, though free from all blame on his part, must bear the loss unless he can establish that it was the consequence of some default for which the defendants are responsible. The question of law therefore arises, what is the obligation which the law casts on a person who, like the defendants, lawfully brings on his land something which, though harmless whilst it remains there, will naturally do mischief if it escape out of his land ? It is agreed on all hands that he must take care to keep in that which he has brought on the land and keeps there, in order that it may not escape and damage his neighbours ; but the question arises whether the duty which the law casts upon him, under such circumstances, is an absolute duty to keep it in at his peril, or is, as the majority of the Oom't of Exchequer have thought, merely a duty to EYLANDS I'. FLETCHER. 487 take all reasonable and prudent precautions in order to keep it in, but no more. If the first be the law, the person who has brought on his land and kept there something dangerous, and failed to keep it in, is respon- sible for all the natm-al consequences of its escape. If the second be the limit of his duty, he would not be answerable except on proof of negligence, and consequently would not be answerable for escape arising from any latent defect which ordinary prudence and skill could not detect. . . . " We think that the true rule of law is, that the person who for his own purposes brings on his lands, and collects' and keeps there, anything likely to do mischief if it escapes, must keep it in at his perd, and, if he does not do so, is prima facie answerable for all the damage which is the natui'al consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default ; or perhaps that the escape was the consequence of vin major, or the act of Grod ; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The genei-al rule, as above stated, seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neio-hbour's reservoir, or whose cellar is invaded by the filth of his neighbour's privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour's alkali works, is damnified without any fault of his own ; and it seems but reasonable and just that the neighbour who has brought something on his own pro- perty which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbour's, should be obliged to make good the damage which ensues 4S8 DUTIES OF INSURING SAFETY. if he does not succeed in confining it to his own property. But for his act in hringing it there, no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the natural and anticipated consequences. And upon authority, this we think is established to be the law, whether the things so brought be beasts, or water, or filth, or stenches." AfBrma- Not Only was this decision aiSrmed in the House of ofbyH. L. Lords (J), but the reasons given for it were fully con- firmed. " If a person brings or accumulates on his land anything which, if it should escape, may cause damage to his neighbours, he does so at his peril. If it does escape and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage " (c). It was not overlooked that a line had to be drawn between this rule and the general immunity given to landowners for acts done in the " natural user " of their land, or " exercise of ordinary rights " — an immunity which extends, as had ah-eady been settled by the House of Lords itself ((/), even to obviouslj^ probable consequences. Here Lord Cairns pointed out that the defendants had for their own purposes made " a non-natm-al use " of their land, by collecting water " in quantities and in a manner not the result of any work or 0]Deration on or under the land." The detailed illustration of the rule in Ri/hinds v. Fletcher, as governing the mutual claims and duties of adjacent landowners, belongs to the law of property rather than to the subject of this work [e). We shall return [h) Rylnnds v. Fletcher (1868) (rf) Chasemore v. Sichards (1859) L. R. 3 H. L. 330, 37 L. J. Ex. 7 H. L. C. 349, 29 L. J. Ex. 81. 161. («) See Fletcher v. Smith (1877) ((•) Lord Cranworth, at p. 310. 2 App. Ca. 781, i~i L. J. Ex. 4 ; RYLAKDS V. FLETCHER. 489 presently to the special classes of cases (more or less discussed in the judgment of the Exchequer Chamber) for which a similar rule of strict responsibility had been established earlier. As laying down a positive rule of law, the decision in JRi/Iandti v. Fletcher is not open to criticism in this country {f). But in the judgment of the Exchequer Chamber itself the possibility of exceptions is suggested, and we shall see that the tendency of later decisions has been rather to encourage the discovery of exceptions than otherwise. A rule casting the responsi- bility of an insurer on innocent persons is a hard rule, though it may be a just one ; and it needs to be main- tained on very strong evidence {g) or on very clear grounds of policy. Now the judgment in Fletcher v. Bi/Jamh (h), carefully prepared as it evidently was, hardly seems to make such grounds clear enough for universal accept- ance. The . liability seems to be rested only in part on the evidently hazardous character of the state of things artificially maintained by the defendants on their land. In part the case is assimilated to that of a nui^iance (*), Ilumpliries v. Cuiisiiis (1877) 2 448. The Judicial Committee has C. P. D. 239, 46 L. J. C P. 438 ; expressed an opinion that it is con- Ili/n/man v. Xorih Eastern li. Co. sisteut with Roman law, and that (187S) 3 C. P. Div. 168, 47 L. J. the rule is part of the Roman- C. P. 368 ; and for the distinction Dutch law of the Cape Colony : as to "natural course of user," Jlaitcni and S. ^i. Telegraph Co. v. Wilson T. Waddell, H. L. (Sc.) Cape Town Tramuai/s Cu. [1902] 2 App. Ca. 95. The principle of A. C. 381, 71 L. J. P. C. 122. Tojlaiids V. Fletcher was held applic- No Roman or modern civilian aWe to an electric current die- authority is given, charged into the earth in Xiitionrtl (fj) See Seg. v. Commi'isioners of Tclephcne Co. V. Baker [li^il 2 Gh. Severs for £^sex (1885) 14 Q. B. 186, 62 L. J. Ch. 699. Div. 561. (/) Inmost American jurisdic- (//) L. R. 1 Ex. 277 sqq. tiona the decision is either not (i) See especially at pp. 285-6. approved or accepted, as in Mas- But can an isolated accident, how- fachusetts, only with regard to ever mischievous in its results, be a unusual and extraordinary uses of nuisance ? though its consequences property : Burdiek on Torts, 447, may, as where a branch lopped or 490 DUTIES OF INSURING SAFETY. and in part, also, traces are apparent of the formerly prevalent theory that a man's voluntary acts, even when lawful and free from negligence, are prima facie done at his peril [k), a theory which modern authorities have explicitly rejected in America, and do not countenance in England, except so far as Rijlands v. Fletcher may itself be capable of being used for that purpose (/). Putting that question aside, one does not see why the policy of the law might not have been satisfied by requiring the defendant to insure diligence in proportion to the manifest risk (not merely the diligence of himself and his servants, but the actual use of due care in the matter, whether by servants, contractors, or others), and throwing the burden of proof on him in cases where the matter is peculiarly within his knowledge (//), This, indeed, is what the law has done as regards duties of safe repair, as we shall presently see. Doubtless it is possible to consider Rylanck v. Fletcher as Laving only fixed a special rule about adjacent land- owners («*), but it was certainly intended to enunciate something much wider. Character Yet no case has been found, not being closely similar in casi'^'^ its facts, or within some previously recognized categorj', in which the unqualified rule of liabiHty without proof of negligence has been enforced. T\^e have cases where damages have been recovered for the loss of animals by the escape, if so it may be called, of poisonous vegetation or other matters from a neighbour's land («) . Thus the blown down from a tree is left on the part of any one. I should be lyin g across a highway. glad to think so if I could. (k) L. R. 1 Ex. 286-7, 3 H. L. fm) Martin B., L. E. 6 Ex. at 341. p. 223. (?) See p. 145 above. {«) There must be something of [IJ) Mr. Salmond("Lawof Torts," this kind. A man is not liable for p. 200) thinks it arguable that the loss of a neighbour's cattle Sylands v. Fletcher does not apply which trespass and eat yew leaves where there has been no negligence on his land ; Foniing v. JSoakes KVLANDS V. FLETCHER. 491 owner of rew trees, whose branches project over his boundary, so that his neighbour's horse eats of them and is thereby poisoned, is held liable (o) ; and the same rule has been applied where a fence of wire rope was in bad repair, so that pieces of rusted iron wire fell from it into a. close adjoining that of the occupier, who was bound to maintain the fence, and were swallowed by cattle which r t ,-, [p) rirllt V. Bowling Iron Cv. thistles on his land or keep in the na-o'i ■; P P D '^'4 4"' T T r P 358. thistle - down : Giles v. Jf'all-er (1890) 24 Q. B. D. 656, 59 L T O B 416 ^^^ "^^^ former ground was \o)Crow/,«rstr.AmershamJlHrial "'^''^^y ^^'^'^'^ "'' ^° Crotdmr.t's Jloard (187.S) 4 Ex. D. 5, 48 L. J. '"''' *^^ ^^"""^ '"^ ^'"'"'''■ Ex. 109. JTllson v. Xiwberry (1871) ()•) 29 Ch. Div. 115, 54 L. J. Ch. L. E. 7 Q. B. 31, 41 L. J. Q. B. 31, 454 (1885). ■^32 DUTIES OP INSURING SAFETY. that lie was not bound to do anything. In a quite recent case the same principle has been applied against a local authority whose extension of sewage works had spoilt the plaintiff's oyster ponds (.v). Exception On the other hand, the rule in Rijlands v. Fletcher has GocL been decided by the Court of Appeal not to apply to damage of which the immediate cause is the act of (iod (/). ^Vnd the act of Grod does not necessarily mean an operation of natural forces so violent and unexpected that no human foresight or skill could possibly have pre- vented its effects. It is enough that the accident should lie such as human foresight could not be reasonably expected to anticipate ; and whether it comes within this description is a question of fact(»). The only material element of fact which distinguished the case referred to from JRijhnids v. Fldcliev was that the overflow which burst the defendants' embankment, and set the stored-up water in destructive motion, was due to an extraordinary storm. Now it is not because due diligence has been used that an accident which nevertheless happens is attributable to the act of Grod. And experience of danger [s) Foster y. JJ'aybllvgton Urban Bramwell, who in Rijlands v. Couiiell [1906] 1 K. B. 648, 75 Fletcher took the view that ulti- Ij. J. K. B. 5M, C. A. Here the de- mately prevailed, was also a party fendant had actually put the to this decision. The defendant noxious thing in motion. was an owner of artificial pools, it) Act of God = vis maior ^ formed by damming a natural itoii g.'oi: see D. 19. 2. locati con- stream, into which the water was ducti, 25, 5 6. The classical signi- finally let off hy a system of weirs, fication of " vis maior" is however The rainfall accompanying an wider for some purposes ; Nugent v. extremely violent thunderstorm Smith, 1 C. P. Div. 423, 429, per hroke the embankments, and the Cijckburn G. J. rush of water down the stream (ii) Nichols V. Mnrslrnul (1875-6) carried away four county bridges, L. E. 10 Ex. 255, 2 Ex. D. 1, 46 in respect of which damage the L. J. Ex. 174. Note that Lord action was brought. RYLANDS V. FLETCHER : EXCEPTIONS. 4!Jo previously unknown may doubtless raise tlie standard of due diligence for after- time (v). But the accidents that happen in spite of actual prudence, and yet might have been prevented by some reasonably conceivable prudence, are not numerous, nor are juries, even if able to appre- ciate so fine a distinction, likely to be much disposed to apply it (x). The authority of Ri/lands v. Fletcher is unquestioned, but Nichols v. Marsland has practically empowered juries to mitigate the rule A\'henever its opera- tion seems too harsh. Again the principal rule does not apply where the ^^-ctof immediate cause of damage is the act of a stranger (//), &a. nor where the artificial work which is the source of danger is maintained for the common benefit of the plaintiff and the defendant (s) ; and there is some ground for also making an exception where the immediate cause of the harm, though in itself trivial, is of a kind outside reason- able expectation {a). There is yet another exception in favour of persons Works re- acting in the performance of a legal duty, or in the authorized by law. (f) See Reg. v. Commissioners of [a] Carstairs v. Taylor, last nofe, ■ScM'fj'.s /or ^ssf« (1885) in judgment but the other ground seems the of Q. B. D., U Q. B. D. at p. 574. principal one. TheplaintitI Avas the (.f) " Whenever the world grows defendant's tenant ; the defendant wiser it convicts those that came occupied the upper part of the before of negligence." Bramwell house. A rat gnawed a, hole in u B., L. R. 6 Ex. at p. 222. But rain-water box maintained by the juries do not, unless the defendant defendant, and water escaped is a railway company. through it and damaged the plain- {y) Box V. Juhb (1879) 4 Ex. D. tiflf'e goods on the ground floor. 76 48 L. J. Ex. 417. Wilson v. Questions as to the relation of par- Newberry (1871) L. R. 7 Q. B. 31, ticular kinds of damage to oonven- 41 L. J. Q. B. 31, is really a deci- tional exceptions in contracts for sion on the same point. safe carriage or custody are of (z) Cffj-stoirav. 2«yfo7- (187l)L.R. course on a different footing. See 6 Ex.217, 40 L. J. Ex. 29; op. as to rats in a ship ITamsKow v. P«k- Madras R. Co. v. Zemindar of Car- dorf (18S7) 12 App. Ca. 518, 57 vatenagaram, L. K. 1 Ind. App. 364. L. J. Q. B. 24. 494 DUTIES OF INSURING SAFETY. exercise of powers specially conferred by law. Where a zamindar maintained, and was by custom bound to maintain, an ancient tank for the general benefit of agriculture in the district, the Judicial Committee agreed with the High Court of Madras in holding that he was not liable for the consequences of an overflow caused by extraordinary rainfall, no negligence being shown {b). In the climate of India the storing of water in artificial tanks is not only a natural but a necessary mode of using land (c). In like manner the owners of a canal constructed under the authority of an Act of Parliament are not bound at their peril to keep the water from escaping into a mine worked under the canal (d). On the same principle a railway company authorized by Parliament to use locomotive engines on its line is bound to take aU. reasonable measures of precaution to prevent the escape of fire from its engines, but is not bound to more. If, notwithstanding the best practicable care and caution, sparks do escape, and set fire to the property of adjacent owners, the company is not liable (e). The burden of proof appears to be on the company to show that due care was used (/), but there is some doubt as to this {g). {!)) Madras E. Co. v. Zemindar of (1860) Ex. Ch. 5 H. & N. 679, 29 Cdj catenagaram, L. R. 1 Ind. App. L. J. Ex. 247 ; cp. L. R. 4 H. L. 364 ; S. C, 14 Ben. L. R. 209. 201, 202 ; FremantU T. L. f iV. W. (c) See per HoUoway J. in the iJ. Co. (1861) 10 C. B. N. S. 89, 31 Court below, 6 Mad. H. C. at L. J. C. P. 12. See the same p. 184. principle applied in P. Q., Canada, {d) Dunn v. Birmingham Canal C. P. S. Co. v. Roy [1902] A. C. Co. (1872) Ex. Ch. L. R. 8 Q. B. 220, 71 L. J. P. C. SI. 42, 42 L. J. Q. B. 34. The prin- (/) The escape of sparks has ciple was hardly disputed, the been held to he ^nma/aeis evidence point which caused some difBculty of negligence ; Figgot v. E. C. S. being whether the defendants were Co. (1846) 3 C. B. 229, 15 L. J. C. P. bound to exercise for the plaintiff's 235; 7lR. R. 327; cp. per Black- benefit certain optional powers huin J. in Taugkan v. Taj" VakS. Co. given by the same statute. (g) Smith v. L. ^- jS. W. S. Co. (e) Vaughan v. Taf Vale S. Co. (1870) Ex. Ch. L. R. 6 C. P. 14, MAINTENANCE OF WORKS. "^'-^'^ On and after January 1, 1908, tlie fact that a locomotive is used under statutory powers will not afEect liability for/ damage to agricultural land or crops up to 100/. (/«). The decisions now cited will, however, remain instructive as illustrating the principles of the common law. Some years before the decision of MyJanth v. Fletcher g. tj'. Ji. the duty of a railway company as to the safe maintenance p°'„a"^(j y_ of its works was considered by the Judicial Committee ■^™"^- on appeal from Upper Canada (i). The persons whose rights against the company were in question were pas- sengers in a train which fell into a gap in au embank- ment, the earth having given way by reason of a heavy rain-storm. It was held that " the railway company ought to have constructed their works in such a manner as to be capable of resisting all the violence of weather which in the climate of Canada might be expected, though perhaps rarely, to occur." And the manner in which the evidence was dealt with amounts to holding that the failure of works of this kind under any violence of weather, not beyond reasonable prevision, is of itself evidence of negligence. Thus the duty affirmed is a strict duty of diligenee, but not a duty of insurance. Let us suppose now (what is likely enough as matter of fact) that in an accident of this kind the collapse of the embankment throws water, or earth, or both, upon a neighbour's land so as to do damage there. The result of applying the rule in Rijlands v. Fletcher will be that the seems to imply the contrary view ; 101. There were some minor points but Figgot v. E. C. M. Co. was on the evidence (whether one of the not cited. sufferers was not travelling at his (A) Eailway Fires Act, 1905, own risk, &o.), which were over- / 5 Ed. 7 c. 11. ruled or regarded as not open, and (i) G. W. E. Co. of Canada v. are therefore not noticed in the Braid (1863) 1 Moo. P. C. N. S. text. 496 DUTIES OF INSURING SAFETY. duty of the railway company as landowner to the adjacent landowner is higher than its duty as carrier to persons whom it has contracted to carry safely ; or property is more highly regarded than life and limb, and a general duty than a special one. If the embankment was constructed under statutory authority (as in most cases it would be) that would bring the case within one of the recognized exceptions to Ill/lands V. Fletcher. But a difficulty which may vanish in practice is not therefore inconsiderable in principle. Other "We shall now shortly notice the authorities, antecedent CUSGS of insurance to or independent of Rijlands v. Fletcher, which establisli ability. ^YiQ 1-ule of absolute or all but absolute responsibility for certain special risks. Duty of keeping i cattle. Cattle trespass is an old and well settled head, perhaps the oldest. It is the nature of cattle and other live stock to stray if not kept in, and to do damage if they stray ; and the owner is bound to keep them from straj'ing on the land of others at his peril, though liable only for natural and probable consequences, not for an unexpected event, such as a horse not previously known to be vicious kicking a human being (/i), or a fowl (whether fowls be within the general rule or not) being fiightened by a strange dog and flying into the spokes of a bicycle (/) . So strict is the rule that if any part of an animal which the owner is bound to keep in is over the boundary, this constitutes a trespass. The owner of a stallion has been held liable on this ground for damage done by the horse kicldng and biting the plaintiff's mare through a wire fence which (/!■) Cox Y.B'irbidge (1863) 13 C. B, N. S. 430, 32 L. J. C. P. 89. (/) Sadwell v. Eighton [1907] 2 K. B. 345, 76 L. J. K. B. 891. It rather seems that the strict rule of liability for trespass does not apply to fowls, at any rate on the highway. CATTLE TRESPASS. -197 separated their closes {m). The result of the authorities is stated to be " that in the case of animals trespassing on land, the mere act of the animal belonging to a man, which he could not foresee, or which he took all reasonable means of preventing, may be a trespass, inasmuch as the same act if done by himself would have been a trespass " (»). Blackstone (o) says that " a man is answerable for not only his own trespass, but that of his cattle also : " but in the same breath he speaks of " negligent keeping " as the ground of liability, so that it seems doubtful whether the law was then clearly understood to be as it was laid down a century later in Cox v. Burhidge (p) . Observe that the only reason given in the earlier books (as indeed it still prevails in quite recent cases) is the archaic one that trespass by a man's cattle is equivalent to trespass by himself. The rule does not apply to damage done by cattle straying off a highway on which they are being lawfully driven : in such case the owner is liable only on proof of negligence ($), and the law is the same for a town street as for a coimtry road (r). Also a man may be bound by prescription to maintain a fence against his neighbour's cattle (s). (m) Ellis V. Zoftmlron Co. (1874) (o) Comm. iii. 211. E. R. lOC.P.lO, 44L.J.C.P. 24, (^) 13 C. B. N. S. 430, 32 L. J. a stronger case than Lee v. Siky C P 89 (1865) 18 C. B. N. S. 722, 34 \^' Good.in.. Cheveley (1859) 4 L. J. C. P. 212, there cited and jj ^ j^^ gg^^ 2g ^ j_ ^^_ ^OS. A ° °^® ■ contrary opinion, was expressed by («) Brett J., L. K. 10 C. P. at Littleton, 20 Edw. IV. 11, pi. 10, p. 13 ; ep. the remarks on the ^j,.^^ ^ j^^^^_ Edwards, 17 C. B. law in Smith v. Cook (1875) 1 jj_ g_ 345 34 l. j. q. p. at p. 32. Q. B. D. 79, 45 L. J. Q. B. 122 ^ (itself a ease of contract). Mr. « TUlett v. Ward (1882) 19 Salmond (" Law of Torts," p. 161) Q- ^- ^- 1^' ^^ L. J. Q. B. 61, thinks the action ought to have "^^^^^ ^"^ °^ ^''^S "i^^^n through been in case ; but the doctrine is a ^ ^^"^ ^^'^''7^ "^^ ^ shop, stabbom archaism outside scientific (s) So held as early as 1441-2: pleading. T. B. 19 H. VI. 33, pi. 68. P. — T. K K 498 DUTIES OF INSURING SAFETY. " Whether the owner of a dog is answerable in trespass for every unauthorized entry of the animal into the land of another, as is the case with an ox," is a point still not clearly decided. The better opinion seems to favour a negative answer as to dogs {t) and also fowls {v) . Danger- Olosely connected with this doctrine is the respon- ous or . Tioious sihUity of owners of dangerous animals. " A person keeping a mischievous animal with knowledge of its pro- pensities is bound to keep it secure at his peril." If it escapes and does mischief, he is liable without proof of negligence, neither is proof roquii-ed that he knew the animal to be mischievous, if it is of a notoriously fierce or mischievous species (.2,'). If the animal is of a tame and domestic kind, the owner is liable only on proof that he knew the particular animal to be " accustomed to bite mankind," as the common form of pleading ran in the case of dogs, or otherwise vicious ; but when such proof is supplied, the duty is absolute as in the former case (y). It is enough to show that the animal has on foregoing occasions manifested a savage disposition towards human beings (s), whether with the actual result of doing (t) Brad v. Edtcards (1864) 17 (u) Hudu-ellY. Rightoii, p. 496, C. B. N. S. 245, 34 L. J. C. P. 31 ; above. and see Shllen v. Fawdry, Lateh, yx) As a monkey : May v. Bvrdctt 119. In Sanders v. Teape (1884) 51 (1846) 9 Q. B. 101, 72 R. R. 189, L. T. 263, the defendant was held and 1 Hale, P. C. 430, there cited, not liable for injury received by An elephant is a dangerous animal the plaintiff from the defendant's in England: Filburn v. Aijiiariuiii dog jumping over a wall and Co. (1890) 25 Q. B. Div. 258, 59 falling on him. Here it would L. J. Q. B. 471. seem the damage was not of a kind {y) That averment of negligence that could be reasonably foreseen, is superfluous, see Jacison \ . whether there were a nominal Smithsm (1846) 15 M. & "W. 563, trespass or not. The plaintiff 71 R. R. 763. could not have recovered unless (z) Biting a goat is not enough : the law treated a dog as an abso- Osborne v. Chocqueel [1896] 2 Q. B. lately dangerous animal. 109, 65 L. J. Q. B. 534. FIRE AND DANGEROUS THINGS, 499 miscliief on any of those occasions or not (a). But the necessity of proving the scienter, as it used to be called from the language of pleadings, is often a greater burden on the plaintiff than that of proving negligence would be ; and as regards injury to cattle (including horses, mules, asses, sheep, goats and swine) it has been done away with by statute. And the occupier of the place where a dog is kept is presumed for this purpose to be the owner of the dog (/>). The risk incident to dealing with fire, fire-arms, explo- ^"■•^^ ^^e- 1 ■ 1 1 • n 1 • • arms, &c. sive or highly mnammable matters, corrosive or otherwise dangerous or noxious fluids, and (it is apprehended) poisons, is accounted by the common law among those which subject the actor to strict responsibility. Sometimes the term " consummate care " is used to describe the amount of caution required : but it is doubtful whether even this be strong enough. At least, we do not know of any English case of this kind (not falUng under some recognised head of exception) where unsuccessful diligence on the defendant's part was held to exonerate him. As to fii-e, we find it in the fifteenth century stated to Duty of be the custom of the realm (which is the same thing as ^^^° ™ the common law) that every man must safely keep his own fire so that no damage in any wise happen to his neighbour (c). In declaring on this custom, however, («) Worth T. GilVing (1866) L. E. c. 32, repealing and consolidating !2 C. P. 1. As to what is sufficient former Acts from Jan. 1, 1907. notice to the defendant through his [c) Y. B. 2 Hen. IV. 18, pi. 5. servants, Baldwin v. Casellri (1872) This may he founded on ancient L. E. 7 Ex. 325, 41 L. J. Ex. 167 ; Germanic custom: cp. LI. Langob. Applehee v. Femj (1874) L. E. 9 cc. 147, 148 (a.d. 643), where a O. P. 647, 43 L. J. C. P. 365. man who carries fire more than nine feet from the hearth is said (J) Dogs Act, 1906, 6 Edw. 7, to do so at his peril. kk2 500 DUTIES OF INSURING SAFETY. the averment was " ignem suum tarn negligenter custo- divit : " and it does not appear whether the allegation of negligence was traversable or not {d) . We shall see that later authorities have adopted the stricter view. The common law rule applied to a fire made out of doors (for burning weeds or the like) as well as to fire in a dwelling-house (e). Here too it looks as if negligence- was the gist of the action, which is described (in Lord Raymond's report) as " ease grounded upon the common custom of the realm for negligently keeping his fire." Semble, if the fire were carried by sudden tempest it would be excusable as the act of God. Liability for domestic fires (if we may use the adjective in a rather enlarged sense) has been dealt with by statute, and a man is not now answerable for damage done by a fire which began in his house or on his land by accident and without negligence (/) . He is answerable for damage done by fire lighted by an authorized person, whether servant or contractor, notwithstanding that the conditions of the authority have not all been complied with (g) . The use of fire for purposes unconnected with the ordinary occupation of houses and land seems to remain a ground of the strictest responsibility. Carrying Decisions of our own time have settled that one who loco- brings fire into dangerous proximity to his neighbour's motives. (d) Blackstone (i. 431) seems to Comm. 431 ; and see per Cur. in assume negligence as a condition FilUter v. Fhippard. It would of liability. seem that even at common law {e) Tuiervilov Tuhervillev . Stamp, *^<^ defendant would not be liable 1 Salk. 13, 8. c. 1 Ld. Eaym. 264. ™'^'' ^^ kuowmgly^ Kghted or kept some fire to begin with ; for (/) 14 Geo. III. c. 78, s. 86, as otherwise how could it be described interpreted in JiWiii^r v. Phippard as ii/nis suits ? (1847) 11 Q. B. 347, 17 L. J. Q. B. {;/) Black v. Christcliunli Finance 89. There was an earlier statute Co. (J. C. from N. Z.) [1894] A. C. of Anne to a like effect; 1 Blackst. 48, 63 L. J. P. C. 32. CARRYING FIRE IN LOCOMOTIVES. 501 propert}', in sucli ways as by running locomotive engines on a railway without express statutory authority for their use(//), or bringing a traction engine on a highway («'), ■does so at his peril. And a company authorized by statute to run a steam-engine on a highway still does so at its peril as regards the safe condition of the way {/,■). It seems permissible to entertain some doubt as to the historical foundation of this doctrine, and in the modern practice of the United States it has not found accept- ance (l). In New York it has, after careful discussion, been expressly disallowed (/«). (A) Jones V. FestuiiogR. Co. (1868) L. R. 3 Q. B. 733, 37 L. J. Q. B- 21i. Here diligence was proved, but the company held nevertheless liable. The rule was expressly stated to be an application of the •wider principle of Ei/lands v. Fletcher; see per Blackburn J., X. R. 3 Q. B. at p. 736. The statutory protection has now been «ut down by the Railway Fires Act, 1905, see p. 495, above. (i) Powell y . Fall {\&%D) 5 Q. B. Div. 597, 49 L. J. Q. B. 428. The ■use of traction engines on high- ways is regulated by statute, but mot authorized in the sense of diminishing the owner's liability for nuisance or otherwise ; see the sections of the Locomotive Acts, 1861 and 1865, in the judgment of M:ellorJ.,5Q.B.Div.atp.598. S. 13 of the Act of 1861 remains applic- able to light locomotives, see 59 & 60 Vict. c. 36, schedule. The dictum ^f Bramwell L. J. at p. 601, that Vaughan v. Taff Tale R. Co. (1860) Ex. Cb. 5 H. & K. 679, 29 L. J. Ex. 247, p. 494, above, was wrongly decided, is extra-judicial. That case was not only itself decided by a Court of co-ordinate authority, but has been approved in the House of Lords; Hammersmith R. Co. v. £ram?(1869)L.R. 4 H.L.atp. 202 ; and see the opinion of Blackburn J. at p. 197. (k) Sadler v. South Staffordshire, i-c. Tramuai/s Co. (1889) 23 Q. B. Div. 17, 58 L. J. U, B. 421 (carran off line through a defect in the points : the line did not belong to the defendant company, who had running powers over it). (/) It appears to be held every- where that unless the original act is in itself unlawful, the gist of the action is negligence. («i) Zosee Y. Jjiiehanan (1873) 51 N. T. 476 ; the owner of a steam- boiler was held not liable, inde- pendently of ■negligence, for an explosion which threw it into the plaintiff's buildings. For the pre- vious authorities as to fire, uni- formly holding that in order to succeed the plaintiff must prove negligence, see at pp. 487-8. Rylands v. Fletcher is disapproved as being in conflict with the current 502 DUTIES OF INSURING SAFETY. Fire-arms: Loaded fire-arms are regarded as highly dangerous Bell. things, and persons dealing with them are answerable for damage done by their explosion, even if they have used apparently sufficient precaution. A man sent his maid- servant to fetch a flint-lock gun which was kept loaded, with a message to the master of the house to take out the priming first. This was done, and the gun delivered to the girl; she loitered on her errand, and (thinking, pre- sumably, that the gun would not go off) pointed it in sport at a child, and drew the trigger. The gun went off and the child was seriously wounded. The owner was held liable, although he had used care, perhaps as much care as would commonly be thought enough. " It Avas incumbent on him who, by charging the gun, had made it capable of doing mischief, to render it safe and innoxious. This might have been done by the discharge or drawing of the contents. The gun ought to have been so left as to be out of all reach of doing harm" («). This amounts to saying that in dealing with a dangerous instrument of this kind the only caution that will be held adequate in point of law is to abolish its dangerous character alto- gether. Observe that the intervening negligence of the servant (which could hardly by any ingenuity have been imputed to her master as being in the course of her employment) was no defence. Experience unhappily shows that if loaded fire-arms are left within the reach of of American authority. See other evidence of negligence (see the first American cases collected by Mr. count of the declaration) ; but that C. B. Labatt in L. Q. E. xvi. 177 is not the ground taken by the (in the course of an argument Court (Lord Ellenborough C.J. and ■which I am unable to follow). Bayley J.). Cp. King v. Pollock («) Dixon V. Bell (1816) 6 M. & (1874) 2 E. 42, a somewhat similar S. 198, 17 U.K. 308, andinBigelow case in Scotland where the defen- L. C. 568. It might have been dant was held not liable. But in said that sending an incompetent Scotland culpable negligence has person to fetch a loaded gun was to be distinctly found. EXPLOSIVES. 503 children or fools, no consequence is more natural or pro- bable than that some such person will discharge them to the injury of himself or others. On a like principle it is held that people sending goods Explo- of an explosive or dangerous nature to be carried are ot^er bound to give reasonable notice of their nature, and, if •) ; to carriages travelling on (o) Per Cotton and BowenL. JJ. tenant to repair: Lane v. Cor 11 Q. B. Div. at p. 615. The [1897] 1 Q. B. 415, 66 L. J. Q. B. judgment of Brett M. E. attempts 193, C. A. A special agreement to lay down a wider principle with with a tenant to do certain repairs which the Lords Justices did not does not give a right of action in agree. See p. 436, above. It tort to any other inmate of the must be taken as a fact, though house who suffers damage by it is not clearly stated, that the default of such repair ; Cavalier v.. defective condition of the rope Pope [1906] A. C. 428. might have been discovered by [q) No such duty lies on an owner reasonably careful examination who has not control of the place r when the staging was put up. Malone v. Laskey [1907] 2 K. B. {p) Miller V. Hancock [1893] 2 141, 76 L. J. K. B. 1134, C. A. Q. B. 177, C. A. Otherwise (r) Francis t. Cockrell [ISIO) 'K^. where there is no duty to the Ch. L. E. 5 Q. B. 184, 501, 39 DUTY IN RESPECT OF CARRIAGES, SHIPS, ETC. ■>n ti railway or road (s), or in 'whicli goods are despatched {t) ; "to ships (n) ; to wharves, in respect of the safety of the frontage for ships moored at or approaching the wharf (r) ; and to market-places (y) . In the case of a wharfinger he is bound to use reasonable care to ascertain whether the bed of the harbour or river adjacent is in a safe condition to be used by a vessel coming to discharge at his wharf at reasonable times having regard to the conditions of tide, the ship's draught of water, and the like. But this duty exists only so far as the river bed is in the wharfinger's possession or oontrol (s) . The owner of a sunken wreck is bound at his peril to give reasonable warning to other vessels (a). A railway passenger using one company's train with li. J. Q. B. 113, 291. The plain- tiff had paid money for admission, therefore there -was a duty ex con- tractu, but the judgments in the Ex. Ch., see especially per Martin B., also afBrm a duty independent of contract. This is one of the most explicit authorities showing that the duty extends to the acts of contractors as well as servants. (s) Funlkes v. Jletrop. District E. Co. (1880) 5 C. P. Div. 157, 49 L. J. C. P. 361 ; Moffatt v. Bateman (1869) L.R. 3 P. C. 115. (t) Elliott Y. Hall (1885) 15 Q. B. D. 315, 64 L. J. Q. B. 518. The seller of coals sent them to the buyer in a truck with a dangerously loose trap-door in it, and the buyer's servant in the course of unloading the truck fell through and was hurt . (m) Emjn V. Culliford (1879) 4 C. P. Div. 182, 48 L. J. C. P. 372. Control of a ship may be enough, after a very short time, to fix the charterer with liability for defects P. — T. — at any rate in appliances imme- diately required for use — which could easily have been discovered : Marnetj v. Scott [1899] 1 Q. B. 986, 68 L. J. Q. B. 736, where the statement in the text is approved per Bigham J. at p. 992 ; 68 L. J. Q. B. 739. {x) The Moorcock (1889) 14 P. Div. 64, 68 L. J. P. 73. (j/) Lax V. Corporation of Darling- ton (1879) 5 Ex, Div. 28, 49 L. J. Ex. 105. (z) The Calliope [1891] A. C. 11, 60 L. J. P. 28, reversing the deci- sion of the C. A., 14 P. Div. 138, 58 L. J. P. 76, on a different view of the facts. The reasons given in The Moorcock, note («) above, seem to be to some extent qualified by this, though the decision itself is approved by Lord Watson [1891] A. C. at p. 22. {a) The Snark [1899] P. 74, 68 L. J. P. 22. I. L 514 DUTIES OF INSUKING SAFETY. a ticket issued by another company under an arrangement made between the companies for their common benefit is entitled, whether or not he can be said to have contracted with the first-mentioned company, to reasonably safe provision for his conveyance, not only as regards the construction of the carriage itself, but as regards its fitness and safety in relation to other appliances (as the platform of a station) in connexion with which it is intended to be used (&). Where goods are lawfully shipped with the ship-owner's consent, it is the ship-owner's duty (even if he is not bound to the owner by any contract) not to let other cargo which will damage them be stowed in contact with them (c). Owners of a cattle-market are bound to leave the market-place in a reasonably safe condition for the cattle of persons who come to the market and pay toll for its use (d). Limits of In the various applications we have mentioned, the duty " ^' does not extend to defects incapable of being discovered by the exercise of reasonable care, such as latent flaws in metal (e) ; though it does extend to all such as care and [b) Foulkcs V. Aletrop. District S. as to the result, per BramwellL. J. Co. (1S80) 5 C. P. Div. 157, 49 It has been held in Minnesota (18S9) L. J. C. P. 361. that the owner of a building- fre- (<;) H'lijn V. CulUford (1879) 4 quented by the public is bound not C. P. Div. 182, 48 L. J. C. P. 372. to allow a man of known dauger- {d) Lax V. Corporation of Dar- ous temper to be employed about lington (1879) ft Ex. Div. 28, 49 the building: Bean v. St. Faul L. J. Ex. 105 (the plaintiff's cow Union Depot Co., 29 Am. Law was killed by a spiked fence round Eeg. 22. a, statue in the market-place). A (e) Readhead v. Midland if. Co. good summary of the law, as far (1859) Ex. Ch. L. R. 4 Q. E. 379 ; as it goes, is given in the argu- a case of contract between carrier ment of Cave J. (then Q.C.) for and passenger, but the principle the plaintiff, 6 Ex. Div. at p. 31. is the same, and indeed the duty The question of the danger being may be put on either ground, see obvious was considered not open Sijman v. Xije (18S1) 6 Q. B. D. on the appeal ; if it had been, qii. 685, 689, per Lindley J. This does DUTY TOWARDS PASSERS-BY. 515 skill (not merely care and skill on the part of the defen- dant) can guard against (/). Again, when the builder of a ship or carriage, or the maker of a machine, has delivered it out of his own possession and control to a purchaser, he is under no duty to persons using it as to its safe condition, unless the thing was in itself of a noxious or dangerous kind, or (it seems) uale33 he had actual knowledge of its being in such a state as would amount to a concealed danger to persons using it in an ordinary manner and with ordinary care {g) . Liability under the rule in Indennanr v. Dames (k) Volenti may be avoided not only by showing contributory negli- i„iuri,i. gence in. the plaintiff, but by showing that the risk was as well known to him as to the defendant, and that with such knowledge he voluntarily exposed himself to it (/) ; but this will not excuse the breach of a positive statutory duty(A-)- Occupiers of fixed property are under a like duty Duty towards persons passing or being on adjacent land by passers- their invitation in the sense above mentioned, or in the ^^' exercise of an independent right. not however qualify the law as to ■pa.ireT-.Uarly. ZmMoc/i.-[1905] IK. B. the seller's implied warranty on the 253, 74 L. J. K. B. 121, C. A. sale of a chattel for a specific pur- j^^j p^ g^g^ ^^^^^_ pose ; there the warranty is absolute that the chattel is reasonably fit for W Thomas v. Qiiar/eniame, 18 that purpose, and there is no excep- Q- B. Div. 685, 56 L. J. Q. B. 340. tion of latent defects: Mandall v. [k) Dicta of L. JJ. ibid., and Xeuson (1877) 2 Q. B. Div. 102, 46 Baddchy v. Sari Graneilh- (1887) L. J. Q. B. 257. 19 Q B. D. 123, 56 L. J. Q. B. 501. (/) Sjjman v. l{ye (1881) 6 See further Yarmouth v. France, Q. B. D. at p. 687. 19 Q. B. D. 647, and p. 167, ((/) Winterbottom v. TVright, 10 above. Smii!A v. Affor [1891] A. C. M. &W. 109, 62B. E. 534; Collisy. 325, 60 L. J. Q. B. 683, was a case SeWen (1868) L. R. 3 C. P. 495, 37 not of this class, but (as the facts L. J. C. P. 233 ; Losee v. Clute, 51 were found) of negligence in con- N. T. 494. Similarly as to a re- ducting a specific operation. ll2 '16 DUTIES OF INSURING SAFETY. In Barnes v. Ward (/), the defendant, a builder, had left the area of an unfinished house open and unfenced. A person lawfully walking after dark along the public path on which the house abutted fell into the area and was killed. An action was brought under Lord Campbell's Act, and the ease was twice argued ; the main point for the defence being that the defendant had only dug a hole in his own land, as he lawfully might, and was not under any duty to fence or guard it, as it did not interfere with the use of the right of way. The Court held there was a good cause of action, the excavation being so close to the public way as to make it unsafe to persons using it with ordinary care. The making of such an excavation amounts to a public nuisance " even though the danger consists in the risk of accidentally deviating from the road." Later it has been held that one who by lawful authority diverts a public path is bound to provide reasonable means to warn and protect travellers against going astray at the point of diversion (»?). In Corhy v. Hill (n) the plaintiff was a person using a private way with the consent of the owners and occupiers. The defendant had the like consent, as he alleged, to put slates and other materials on the road. No light or other safeguard or warning was provided. The plaintiff's horse, being driven on the road after dark, ran into the heap of materials and was injured. It was held immaterial whether the defendant was acting under licence from the {I) 9 C. B. 392, 19 L. J. C. P. line, but did not fence off the old 195 (1850); cp. D. 9. 2, ad leg. direction of the path; plaintiff, Aquil. 28. walking after dark, followed the {ill) Snrst V. Tat/lor (1885) 14 old direction, got on the railway, Q. B. D. 918, 54 L. J". Q. B. 310 ; and feU oyer a bridge, defendants, railway contractors, had (within the statutory powers) («) 4 C. B. N. S. 55G, 27 L. J. diverted a footpath to make the C. P. 318 (1858). RES IFS.l LOQVnUR. 017 OAvners or not. If not, he was a mere trespasser ; but the owners themselves could not have justified putting a con- cealed and dangerous obstruction in the way of persons to whom they had held out the road as a means of access (o). Here the plaintiff was (it seems) {p) only a licensee, but while the licence was in force he was entitled not to have the condition of the way so altered as to set a trap for him. The case, therefore, marks exactly the point in which a licensee's condition is better than a trespasser's. Where damage is done by the falling of objects into Presump- a highway from a building, the modern rule is that the negligence accident, in the absence of explanation, is of itself evidence J''^' ?f *" ' ^ loquitur). of negligence. In other words, the burden of proof is on the occupier of the building. If he cannot show that the accident was due to some cause consistent with the clue repair and careful management of the structure, he is liable. The authorities, though not numerous, are sufficient to establish the rule, one of them being the decision of a court of appeal. In Byrne v. Boadle (g) a barrel of flour fell from a window in the defendant's warehouse in Liverpool, and knocked down the plaintiff, who was lawfully passing in the public street. There was no evidence to show how or by whom the barrel was being handled. The Court said this was enough to raise against the defendant a presumption of negligence which it was for him to rebut. " It is the duty of persons who keep barrels in a warehouse to take care that they do (o) Cp. Sweeny v. Old Colony ^ to use the road for access to a public Xra-poii R. R. Co. (I860) 10 Allen building (the Hanwell Lunatic (Mass.) 368, and Bigelow L. C. Asylum) did not amount to an 660. " invitation " in the special sense [p] The language of the judg- of this class of cases, ments leaves it not quite clear [ij) 2 H. & 0. 722, 33 L. J. Ex. ■whether the continued permission 13, andinBigelowL. C. 578 (1863). 518 DUTIES OF INSURING SAFETY. not roll out. ... A barrel could not roll out of a ware- house without some negligence, and to say that a plaintiff ■who is injured hy it must call witnesses from the ware- house to prove negligence seems to me preposterous. So in the building or repairing a house, or putting pots on the chimneys, if a jDerson passing along the road is injured by something falling upon him, I think the accident alone would \)Q priinn facie evidence of negligence" (r). This was followed, perhaps extended, in Kearne;/ v. London, Brighton and South Cca^t Ilniliraij Co. is). There as the plaintiff was passing along a highway spanned by a railway bridge, a brick fell out of one of the piers of the bridge and struck and injured him. A train had passed immediately before. There was not any evidence as to the condition of the bridge and brickwork, except that after the accident other bricks were found to have fallen out. The Court held the maxim " res ipsa loquitur " to be applicable. " The defendants were under the common law liability to keep the bridge in safe condition for the public using the highway to pass under it ; " and when " a brick fell out of the pier of the bridge without any assignable cause except the slight vibration caused by a passing train," it was for the defendants to show, if they could, that the event was consistent with due diligence having been used to keep the bridge in safe repair (^). This decision has been followed, in the stronger case of a "whole building falling into the street, in the State of New Yoi'k. " Buildings properly constructed do not fall without adequate cause " {n). (r) Per Pollock C. B. Cp. Scott 40 L. J. Q. B. 285 (1871). V. London Sock Co. (1865) 3 H, & (t) Per Cur. L. R. 6 Q. B. at C. 596, 34 L. J. Ex. 220, p. 447, pp. 761, 762. above. (u) Mullen v. St. John, 57 N. Y. (.«) Ex. Ch. L. R. 6 Q. B. 759, 567, 569. PUBLIC WORKS AND HIGHWAYS. 519 In a later case (x) the occupier of a house from which a lamp projected over the street was held liable for damage done by its fall, though he had employed a competent person (not his servant) to put the lamp in repair : the fall was in fact due to the decayed condition of the attachment of the lamp to its bracket, which had escaped notice. " It was the defendant's duty to make the lamp reasonably safe, the contractor failed to do that . . . therefore the defendant has not done his duty, and he is liable to the plaintiff for the consequences" (y). In this case negligence on the contractor's part was found as a fact. On the same principle a public body executing authorized works remains bound to have regard to public safety (z), and to take all reasonable and usual precau- tions against the risks involved in the nature of the work. Under the modern authorities "it is very difficult for a person who is engaged in the execution of dangerous Avorks near a highway to avoid liability by saying that he hns employed an independent contractor, because it is the duty of a person who is causing such works to be executed to see that they are properly can-ied out so as not to occasion any damage to persons passing by on the high- way "(a). The principle is equally applicable to persons interfering with the highway for their own purposes and local authorities repairing the highway itself (b) . {x) Tarry v. Ashton (1876) 1 (4) rcnny v. Wimbledon Vrbaii ■Q. B. D. 314, 45 L. J. Q. B. 260. Council [1899] 2 Q. B. 72, 66 L. J. [y) Per Blackburn J., 1 Q. B. D. Q. B. 704, C. A. As to the dia- atp. 319. tinction between damage caused (z) Hardaker v. Idle District by failure to take reasonable pre- Cuiincil [1896] 1 Q. B. 33.5, 65 L. J. cautions incident to the nature of Q. B. 363. Cp. The Snarh [1899] the work itself, and by "casual" P 74 81 68 L. J. P. 22. or "collateral" neglect for which («) Per A. L. Smith L. J., only the actual wrong-doer and IMlidaij V. Kational Telephone Co. his immediate employer are liable, [1899] 2 Q. B. 392, 400, 68 L. J. see [1899] 2 Q. B. at pp. 76, 78. Q. B. 1016. 520 DUTIES OF INSURING SAFETY. Combining the jjrinciples affirmed in these authorities, we see that the occupier of property abutting on a highway is under a positive duty to keep his property from being a cause of danger to the public by reason of any defect either in structure, repair, or use and management, which reasonable care and skill can guard against. This does not exclude the liability of any other person for a negligent omission of himself or his servant in the course of employ- ment, by which damage of this kind is immediately caused (c). It likewise appears that the rule extends to all persons undertaking works involving danger to the public ; and the recent tendency of the Courts is to enforce this as a broad and wholesome rule of public policy and discourage minute objections. Distino- But where an accident happens in the course of doing ^^°°^- on fixed property work which is proper of itself, and not usually done by servants, and there is no proof either that the work was under the occupier's control or that the accident was due to any defective condition of the structure itself with reference to its ordinary purposes, the occupier is not liable (cl). In other words, he does not answer for the care or skill of an independent and apparently competent contractor in the doing of that which, though connected with the repair of a structure for whose condition the occupier does answer, is in itself merely incident to the contractor's business and under his order and control. There are cases involving principles and considerations very similar to these, but concerning the special duties of (c) TThiteUij v. Fepper (1877) 2 38 L. J. Q. B. 241 ; a decision on Q. B. T>. 276. peculiar facts, -where perhaps a very little more evidence might {d) Welfare v. London ^- Brighton have turned the scale in favour of R. Co. (1869) L. E. 1 Q. B. 693, the plaintiff. POSITION OF LICENSEES. 'J~l adjacent landowners or occupiers to one another rather than any general duty to the public or to a class of persons. We must be content here to indicate their existence, though in practice the distinction is not always easy to maintain (c ) . Thus far we have spoken of the duties owed to persons Position of who are brought within these risks of unsafe condition or repair by the occupier's invitation on a matter of common interest, or are there in the exercise of a right. We have still to note the plight of him who comes on or near another's property as a " bare licensee." Such an one appears to be (with the possible exception of a mortgagee in possession) about the least favoui-ed in the law of men who are not actual wrong-doers. He must take the property as he finds it, and is entitled only not to be led into danger by " something like fraud " (/). On principle i it is hard to see why he should be entitled to more because he was a child or an idiot, if his condition was not known ' to the occupier and he was not specially invited. But j some decisions in America have gone to great lengths in favour of infant licensees and even trespassers, and have been much discussed {g). We hardly think they would be followed here. Persons who by the mere gratuitous permission of owners or occupiers take a short cut across a waste piece of land (^), or pass over private bridges [i), or have the («) S(;e Bower v. Peale (1876) 1 [g) Burdick on Torts, 459 sqq., Q. B. D. 321, 45 L. J. Q. B. 446; and see Prof. Jeremiah Smith iu mii/hes V. Fercital (1883) 8 Ayp. 11 Harv. Law Rev. 349, 434. Ca. 443, 52 L. J. Q. B. 719 ; and (A) Sounscll V. Smyth (1860) 7 cp. Gorham v. Gross, 125 Mass. c. B. N. S. 731, 29L. J. C. P 203 232. (/) Willes J., Gauiret v. Egerton (i) Gautret v. Egerlon (1867) L. R. (1867) L. R. 2 C. P. at p. 375. 2 C. P. 371, 36 L. J. 0. P. 191. 522 DUTIES OF INSUEING SAFETY. run of a building (/.•), cannot expect to find tlie land free from holes or ditches, or the bridges to be in safe repair, or the passages and stairs to be commodious and free from dangerous places. If the occupier, while the permission continues, does something that creates a concealed danger to people availing themselves of it, he may well be liable (/). And he would of course be liable, not for failure in a special duty, but for wilful wrong, if he purposely made his projoerty dangerous to persons using ordinary care, and then held out bis permission as an inducement to come on it. Apart from this improbable case, the licensee's rights are measured, at best, by the actual state of the property at the time of the licence. " If I dedicate a way to the public which is full of ruts and holes, the public must take it as it is. If I dig a pit in it, I may be liable for the consequences : but, if I do nothing, I am not " (m) . The occupier of a yard in which machinery was in motion allowed certain workmen (not employed in his own business) to use, for their own convenience, a path crossing it. This did not make it his duty to fence the machinery at all, or if he did so to fence it sufficiently ; though he might have been liable if he had put up an insecure guard which by the false appearance of security acted as a trap (w) . The plaintiff, by having permission to use the path, bad not the right to find it in any particular state of safety or convenience. " Permission involves leave and licence, but it gives no right. If I avail myself of permission to cross a man's (k) Sullivan V. Waters (1864) 14 (m) Willes J., L. R. 2 C. P. at Ir. C. L. E. 460. p. 373. [l] Corby v. Hill (1858) 4 C. B. N. S. 566, 27 L. J. C. P. 318, («) Bolch v. Smith (1862) 7 H. & p. 516, above. N. 736, 31 L. J. Ex. 201. LICENSEES. 523 land I do so by virtue of a licence, not of a right. It is an abuse of language to call it a right : it is an excuse or licence, so that the party cannot be treated as a trespasser " (o) . In the language of Continental jurisprudence, there is no question of culpa between a gratuitous licensee and the licensor, as regards the safe condition of the property to which the licence applies. Nothing short of dolus will make the licensor liable {p) . Invitation is a word a^iplied in common speech to the Host and relation of host and guest. But a guest (that is, a visitor ^^'^^ ' who does not pay for his entertainment) has not the henefit of the legal doctrine of invitation in the sense now before us. He is in point of law nothing but a licensee. The reason given is that he cannot have higher rights than a member of the household of which he has for the time being become, as it were, a part {q) . All he is entitled to is not to be led into a danger known to his host, and not known or reasonably apparent to himself. (o) Martin B., 7 H. & N. at which the tenant was exposed p. 7i'T. SatchelorY. Forteseuc (1883) might not have well been held to 11 Q. B. Div. 474, 478, seems be in the nature of a trap. The rather to stand upon the ground defect was a non-apparent one, that the plaintiff had gone out of and the landlord knew of it. his way to create the risk for him- (j9) Cp. Btalcemore v. 2>i i.ttol nvd M-If. As between himself and the ^.,.,.^^,, ^_ p„^ (jgggj s E. & B. defendant, he had no title at all to ^^gj^ 27 L. J. Q. B. 167, where it be where he was. Cp. D. 9. 2, ^^^^^ ^^^^ ^^^ plaintiffs intestate ad leg. Aquil. 31, ad fin. "culpa ^as not even a Kcensee ; but see 11 ab eo exigenda non est, cumdivin- Q B I) 516 are non potuerit an per eum locum aliqnis transiturus nit." In Ivaij (?) Southcole v. Stnnlei/ (1856) 1 V. Hedges (1882) 9 Q. B. D. 80, H. & N. 247, 25 L. J. Ex. 339. the question was more of the But qiiiuye if this explanation be terms of the contract between not obsniniiii per obsciirii's. Cp. landlord and tenant than of a Abraham v. Reynolds, 5 H. & N. duty imposed by law. Quaere, at p. 148, where the same line of whether in that case the danger to thought appears. 524 DUTIES OF INSURING SAFETY. On the same principle, a man Avho offers another a seat in his carriage is not answerable for an accident due to any defect in the carriage of which he was not aware (r) ; but he is answerable for damage caused by the negligence of his servants (ts). Liability 1 if licensor for " ordi- nary neo'- lig-ence." Liability of owner not in occupa- tion. It may probably be assumed that a licensor is answer- able to the licensee for ordinary negligence, in the sense that his own act or omission will make him liable if it is such that it would create liability as between two persons having an equal right to be there : for example, if J. S. allows me to use his private road, it will hardly be said that, without express warning, I am to take the risk of J. S. driving furiously thereon. But the whole subject of a licensee's rights and risks is still by no means free from difficulty. It does not appear to have been finally decided how far, if at all, an owner of property not in possession can be subject to the kind of duties we have been considering. We have seen that in certain conditions he may be liable for nuisance (/) . But, since the groimd of these special duties regarding safe condition and repair is the relation created by the occupier's express or tacit " invitation," it may be doubted whether the person injured can sue the owner in the first instance, even if the defect or default by which he suffered is, as between owner and occupier, a breach of the owner's obligation. In the case of a build- ing let in flats, already cited (ii), the owner was held not ()■) Jtofatl T. Xateman (1869) L. K. 3 P. C. 115. («) Rarris v. Peirij # Co. [1903] 2 K. B. 219, 72 L. J. K. B. 725, C. A., a case on peculiar facts, ■where the real question was whether there was evidence of in- vitation. (<) Seep. -132, above. Campbell, pp. 26, 27. (m) Miller V. Hancock [1893] 2 Q. B. 177, C. A. OWNER NOT OCCUPYING. to have parted with the possession of the staii'case ; and it has since heen held that a lessor of an entire building, a^ In > has not undertaken to repair, is not answerable for conse- quences of defective repair, either to the tenant or to other persons using the premises (x) . {x) lane v. Cox [1897] 1 Q. B. 41,5, 66 L. J. Q. B. 193, C. A. Cp. Cavalier X. Fope [1906] A. C. 428, 75 L. J. K. B. 609. 526 CPIAPTER XIII. SPECIAL RELATIONS OF CONTRACT AND TORT. Original theory of forms of action. The original theory of the common law seems to have been that there were a certain number of definite and mutually exclusive causes of action, expressed in appro- priate forms. The test for ascertaining the existence or non-existence of a legal remedy in a given case was to see whether the facts could be brought under one of these forms. Not only this, but the party seeking legal redress had to discover and use the right form at his peril. So had the defendant if he relied on any special ground of defence as opposed to the "general issue." If this theory had been strictly carried out, confusion between forms or causes of action would not have been possible. But strict adherence to the requirements of such a theory could be kept up only at the price of intolerable incon- venience. Hence not only new remedies were introduced, but relaxations of the old definitions were allowed. The number of eases in which there was a substantial griev- ance without remedy was greatly diminished, but the old sharply drawn lines of definition were overstepped at various points and became obscured. Thus diiierent forms and causes of action overlapped. In many cases the new form, having been introduced for greater practical con- venience, simply took the place of the older, as an alter- native which in practice was always or almost always preferred : but in other cases one or another remedy might be better according to the circumstances. Hence different remedies for similar or identical causes of action remained ACTIONS ON THE CASE. 527 in use after the freedom of choice had been established with more or less difBculty. On the debatable ground thus created between those states of fact which clearly gave rise to only one kind of action and those which clearly offered an alternative, there arose a new kind of question, more refined and indeter- minate than those of the earlier system, because less reducible to the text of fixed forms. The great instrument of transformation was the sane- Actions on tilG C3iS6 tioning and definition of actions on the case by tlie Statute of Westminster («). Certain types of action on the case became in effect new and well recognized forms of action. But it was never admitted that the virtue of the statute had been exhausted, and it was probably rather the timidity of pleaders than the unwillingness of the judges that prevented the development from being even greater than it was. It may be asked in this connexion why some form of action on the case was not devised to compete with the jurisdiction of the Court of Chancery in enforcing trusts. An action on the case analogous to the action of account, if not the action of account itself, might well have been held to lie against a feoffee to uses at the suit of coKttii que use. Probably the reason is to be sought in the inadequacy of the common law remedies, which no expansion of pleading could have got over. The theory of a system of equitable rights wholly outside the common law and its process, and inhabiting a region of mysteries unlawful for a (ft) 13 Edw. I., u. 24. The Ian- power of framing new writs which guage currently used about this had already been claimed by the statute is not historically correct, officers of the Crown, and objected though it makes no difference to to. See the oath imposed on the the legal result. The statute did Chancellor by the Provisions of not confer new power, but regu- Oxford, Stubbs, Sel. Ch. 389, 393, lated and restrained an indefinite 8th ed. ry2H SPECIAL RELATIONS OF CONTRACT AND TORT. common lawyer to meddle with, was not the cause but the consequence of the Court of Chancery's final triumph. The history of the Roman legis actioues may in a general way be compared with that of common law pleading in its earlier stages : and it may be found that the praetorian actions have not less in common with our actions on the case than with the remedies peculiar to courts of equity, which our text-writers have habitually likened to them. Causes o£ action : modem classifica- tion of them as founded on con- tract or tort. Forms of action are now abolished in England. Bat the forms of action were only the marks and appointed trappings of causes of action ; and to maintain an action there must still be some cause of action known to the law. Where there is an apparent alternative, we are no longer bound to choose at our peril, and at the very outset, on which ground we will proceed, but we must have at least one definite ground. The question, there- fore, whether any cause of action is raised by given facts is as important as ever it was. The question whether there be more than one is not as a rule material in questions between the same parties. But it may be (and has been) material under exceptional conditions : and where the suggested distinct causes of action affect different parties it may still be of capital importance. In modern English practice, personal (/>) causes of action cognizable by the superior courts of common law (and now by the High Court in the jurisdiction derived from them) have been regarded as arising either out of contract or out of wrongs independent of contract. This division was no doubt convenient for the working lawyer's ordinary uses, and it received the high sanction of the [b) I do not think it ^Tas ever attempted to bring the real actions under this classification. ALTERNATIVE REMEDIES. 529 framers of the Common Law Procedure Act, besides other statutes dealing with procedure. But it does not rest on auy liistorical authority, nor can it be successfully de- fended as a scientifio dichotomy. In fact the historical causes above mentioned have led to intersection of the two regions, with considerable perplexity for the con- sequence. "We have causes of action nominally in contract which are not founded on the breach of any agreement, and we have torts which are not in any natural sense independent of contract. This border-land between the law of tort and the law of contract will be the subject of examination in this chapter. The questions to be dealt with may be distributed Classes of under the following heads : — arisin"-. 1. Alternative forms of remedy on the same cause of action. 2. Concurrent or alternative causes of action. 3. Causes of action in tort dependent on a contract not between the same parties. 4. Measure of damages and other incidents of the remedy. I. — Altenintive Forms of Remedy on the same Cause of Action. It may be hard to decide whether particular cases fall One cause under this head or under the second, that is, whether and alter- there is one cause of action which the pleader has or "g^^^edies had the choice of describing in two ways, or two distinct causes of action which may possibly confer rights on and against different parties. In fact the most difficult questions we shaU meet with are of this kind. p. X. M M 530 SPECIAL RELATIONS OF CONTRACT AND TOET. The com- mon law doctrine of mis- feasitnce. Misfeasance in doing an act in itself not unlawful is ground for an action on tlie case (c). It is immaterial that the act was not one which the defendant was bound to do at all (d). If a man will set about actions attended with risks to others, the law oasts on him the duty of care and competence. It is equally immaterial that the defendant may have bound himself to do the act, or to do it competently. The undertaking, if underiaking there was in that sense, is but the occasion and induce- ment of the wrong. From this root we have, as a direct growth, the whole modern doctrine of negligence. We also have, by a more artificial process, the modern method of enforcing simple contracts, through the specialized form of this kind of action called aisumpsii (e) : the obligation being extended, by a bold and strictly illogical step, to cases of pure non-feasance (/), and guarded by (p) And strictly, not for an action of trespass ; but there are classes of facts which may be regarded as constituting either "wrongs of mis- feasance (case), or acts which might be justified under some common or ■fiarticular claim of right, but not being duly doDO fail of such justi- fication and are merely wrongful (trespass). (d) Gladu-dl v. Slecigall (1839) 5 Bing. N. C. 733, 8 L. J. C. P. 3G1, ;)3 R. R. 257 ; action by an infant for incompetence in surgical treat- ment. In such an action the plain- tiff's consent is material only because mthout it the defendant would be a mere trespasser, and the incompetence would not be the gist of the action, but matter for aggravation of damages. To the same effect is Pippin v. Sheppard (1822) 11 Price 400, 25 R. R. 746, holding that a declaration against a surgeon for improper treatmeot was not bad for not showing by whom the surgeon was retained or to be paid. As to the assumption of special skill being material, see ShielLs V. Blnclcburne (1789) 1 H. El. 158, 2 R. R. 7.'n. (c) 0. "W". Holmes, The Common Law, pp. 274 sqq. , J. B. Ames in Harv. Law Rev. ii. 1, 53. (/) An analogy to this in the Roman theory of culpa, under the Lex Aquilia, can hardly be sus- tained. See the passages in D. 9, 2, collected and discussed in Dr. Grueber's treatise, at pp. 87, 209. On the other hand the decision in Slade^s case, 4 Co. Rep. 91 a, that the existence of a cause of action in debt did not exclude assumpsit, was in full accordance with the original conception. NEGLIGENCE AND ASSUMPSIT. 531 the requirement of oonsidoration. Grradually assumpsit came to be tliougM of as foimded on a duty ex contractu ; so much so that it might not be joined ^^'ith another cause of .action on the ease, such as conversion. From a variety of action on the case it had become a perfect species, and in common use its origin was forgotten. But the old root was there still, and had life in it at need. Thus it might happen that facts or pleadings which in the current modern view showed an imperfect cause of action in assumpsit would yet suffice to give the plaintiff judgment on the more ancient ground of misfeasance in a duty imposed by law. In the latest period of common law pleading the House of Lords upheld in this manner a declaration for negligence in the execution of an employ- ment, which averred an undertaking of the employment, but not any promise to the plaintiff, nor, in terms, an}' consideration (g). And it was said that a breach of duty in the com-se of employment under a contract would give rise to an action either in contract or in tort at the plaintiff's election (/i). This, it will be seen, is confined to an active misdoing ; notwithstanding the verbal laxity of one or two passages, the House of Lords did not authorize parties to treat the mere non-performance of a promise as a substantive tort (/). Until the beginning of the last century it was the common practice to sue in tort for the breach of an express warranty, though it was (^) Brown V. Boorman (1844) 11 (h) Per Lord Campbell. CI. & F. 1, 65 E. K. 1. The de- fendant's pleader appears to have (J) Conrtenay v. Earle (1850) 10 been unable to refer the declaration C. B. 73, 20 L. J. C. P. 7. See ttt any certain species ; to make especially the dicta of Maule J. in sure of having it somewhere he the course of the argument. In pleaded — (1) not guilty; (2) a tra- that case it was attempted to join ver.Me of the alleged undertaking ; counts, which were in substance (3) a ti-averse of the alleged em- for the non-payment of a bill of ployment. exchange, with a count in trover. M M O SS'i SPECIAL RELATIONS OF CONTRACT AND TORT. needless to allege or prove the defendant's knowledge of the assertion being false (/r). On the other hand, it was held for a considerable time (/) that an action against a common carrier for loss of goods, even when framed in tort, " sounded in con- tract " so much that it could not be distinguished from assumpsit, and a count so framed could not be properly joined with other forms of case, such as trover. At a later time it was held, for the purpose of a plea in abate- ment, that the declaration against a carrier on the custom of the realm was in substance ex contractu (in). There are certain kinds of employment, namely, those of a carrier and an innkeeper, which are deemed public in a special sense. If a man holds himself out as exercising one of these, the law casts on him the duty of not refusing the benefit thereof, so far forth as his means extend, to any person who properly applies for it. The innkeeper must not without a reasonable cause refuse to entertain a traveller, or the carrier to convey goods. Thus we have a duty attached to the mere profession of the employment, and antecedent to the formation of any contract, and if the duty is broken, there is not a breach of contract but a tort, for which the remedy under the common law forms of pleading is an action on the case («). (i) iniliamson v. Allison (1802) Campbell's note at p. 206 ; Potcell 2 EdsMiO. There is an example v. iffyto; (1806) 2 Bos. &P. N. R., as late as 1841, Broun v. Edgington, 9 R. R. 660. 2 Man. & Gr. 279, 58 R. R. 408. («) It has been suggested that a (I) From 1695, Dalstonv. Janson, shipowner may be under this re- 5 Mod. 89, 1 Ld. Raym. 58, till sponsibility, not beoanse he is a, 1766, when the last-mentionedcase common carrier, but by reason of and otheis to the same eli'ect were a distinct though similar custom overruled in Dickon v. Clifton, 2 extending to shipowners who carry Wils. 319. goods for hire without being com- ((») Saddle v. Willson (1795) 6 mou carriers: 2\iigcnt t. Smith T. R. 369, 3 R. R. 202, see Mr. (1S76) 1 C. P. D. li, 45 L, J. C. P. CUSTOM OF THE KEALM. ■•''•^3 lu effect refusing to enter into the appropriate contract is of itself a tort. Duties of the same class may be created by statute, expressly or by necessary implication ; they are imposed for the benefit of the public, and generally by way of return for privileges conferred by the same statutes, or by others (';* junrt materia, on the persons or corporations who may be concerned. Here the duty is imposed by the general law, though Special \ij a peculiar and somewhat anomalous rule ; and it gives c"inei-.i rise to an obligation upon a simple non-feasance, unless 'f^^ ™°"; " ^ ■■- keepers by we say that the profession of a "public employment" "custom ,1 . ••IP • • • 1 • '^^ ^''^ m this sense is itself a continuing act, m relation to realm." which the refusal to exercise that employment on due demand is a misfeasance. But on this latter view there would be no reason why the public profession of any trade or calling whatever should not have the like consequences ; and such an extension of the law has never been proposed. The term " custom of the realm " has been appropriated to the description of this kind of duties by the current usage of lawyers, derived apparently from the old cui-rent form of declaration. It seems however that in strictness ''• custom of the realm " has no meaning except as a synonym of the common law, so that express averment of it was superfluous (o) . Even where the breach of duty is subsequent to a complete contract in any employment of this kind, it was long the prevailing opinion that the obligation was still 19; but the decision was reversed of the realm" has been held to on appeal, 1 C. P. Div. 423, 45 L. J. apply. C. P. 697, and the propositions of (o) Pozz'i v. Shipion (1839) 8 A. the Court below specifically con- & E. 963, 975, 8 L. J. Q. B. 1, 47 troverted by Cookburn C. J., see E. E. 802. Gp. Tattaiiv. G. Jr.Jl. I C. P. Div. at pp. 426 sqq. I am Co. (1860) 2 E. & E. 844, 29 L. J. not aware of any other kind of Q. B. 181 ; Y. B. 2 Hen. IV. 18, employment to which the " custom pi. 5. 534 SPECIAL KELATIONS OF CONTRACT AND TOET. founded on the custom of the realm, and that the plaintiff might escape objections which (under the old forms of procedure) would have been fatal in an action on a contract {p) . Indeed, this opinion appears to be correct, so far as regards any case where the plaintiff can make out a cause of action without relying on a contract {q) . Alterna- In all other cases under this head there are not two form does distinct causcs of action even in the alternative, nor dis- not affect ^{-^q^ remedies, but one cause of action with, at most, one substance ' ' ' of duty or remedy in alternative forms. And it was an established rule, as long as the forms of action were in use, that the rights and liabilities of the parties were not to be altered by varying the form. Where there is an undertakiug- without a contract, there is a duty incident to the under- taking (r), and if it is broken there is a tort, and nothing else. The rule that if there is a specific contract, the more general duty is superseded by it, does not prevent the general duty from being relied on where there is no contract at all («). Even where there is a contract, our authorities do not say that the more general duty ceases to exist, or that a tort cannot be committed ; but they say that the duty is "founded on contract." The contract with its incidents either expressed or attached by law, becomes the only measirre of the duties between the parties. There might be a choice, therefore, between forms of pleading, but the plaintiff could not by any device of form get more than was contained in the defendant's obligation under the contract. (p) Fozzi V. Shipton, last note. (s) Auitin v. G. W. R. Co. (1S67) (q) Turner v. Slallibrass [1898] L. li. 2 Q. B. 4J2, where the- 1 Q. B. 56, 67 L. J. Q. B. 52, C.A. judgment of Blackburn J. gives (r) Gladwell v. Steggall (1839) 5 the true reason. See further at Bing. N. C. 733, 8 L. J. C. P. 361, p. 538, below. 63 E. E. 257. ALTERNATIVK FORMS. ;>■>- Thus an infant could not be made chargeable for what M'as in substance a breach of contract by suing him in an action on the case ; and the rule appears to have been first laid down for this special purpose. All the infants in England would be ruined, it was said, if such actions were allowed (t). So a purchaser of goods on credit, if the vendor resold the goods before default in payment, could treat this as a conversion and sue in trover; but as against the seller he could recover no more than his actual damage, in other words the substance of the right was governed wholly by the contract (ii). Tet the converse of this rule does not hold without qualification. There are cases in which the remedy on a contract partakes of the restrictions usually incident to the remedy for a tort ; but there are also cases in which not only an actual contract, but the fiction of a contract, can be made to afford a better remedy than the more obvious manner of regarding the facts. Moreover it was held, for the benefit of plaintiffs, that where a man had a substantial cause of action on a con- tract he should not lose its incidents, such as the right to a verdict for nominal damages in default of x^i'oving special damage, by framing his action on the case (v). Now that forms of pleading are generally abolished or in modern greatly simplified, it seems better to say that wherever ™ii^atioa there is a contract to do something, the obligation of the ^^ wholly ° " _ lu eon- contract is the only obligation between the parties with tract. (t) Jennings v. Eitndall (1799) 8 & N. 2S8, 29 L. J. Ex. 180 ; p. 36.5, T. R. 33-5, 4 R. R. 680; p. 56, above, above. The addition of a count charging wilful fraud made no dif- (;;) Marzetiiv. jniliams [IS30) 1 ference : Gieen v. Greenhank (1816) B. & Ad. 415, 35 R. R. 329 ; actiou 2 Marsh. 485, 17 R. R. 529. by customer against banker fur (w) Chi:ie>y V. Viall (1800) 5 H. dishonouring cheque. 536 SPECIAL RELATIONS OF CONTEACT AND TORT. regard to the performance, wlietlier there was a duty antecedent to the contract or not. But injury which would have been a tort, as breach of a duty existing at common law, if there had not been any contract, is btill a tort (.r). The authorities are in conflict as to the application of this principle to the statutory distinction of actions by the County Courts Act, for certain purposes of costs, as being " founded on contract " or " founded on tort " (//). Limits of All rules and restrictions of this kind must be taken with regard to their appropriate subject-matter. They do not exclude the possibility of cases occurring in which there is more than an alternative of form. If John has contracted with Peter, Peter cannot make John liable beyond his contract ; that is, where the facts are such that a cause of action would remain if some necessary element of contract, consideration for example, were subtracted, Peter can, so to speak, waive John's promise if he think fit, and treat him in point of form (including all incidents of procedure, it would seem) as having committed a wrong ; but in point of substance he cannot thereby make John's position worse. In saying this, however, we are still far from saying that there can in no case be a relation between Peter and John which includes the facts of a contract (and to that extent is (r) Taylor v. J/. S. S.- L. It. Co. the repealed Aot of 1867. See [1895] 1 Q. B. 134, 6i L.J. Q.B. the cases in la.st note, which 6, C. A. (porter shut carriage door seem to confirm Fozzi r. Ship'.on, on plaintiflt's thumb) ; Turner \. note (o), p. S33, above. But Stallibrass [1898] 1 Q. B. 66, 67 Tlemivi] v. Manchester, Sheffield & L. J. Q. B. 62, C. A. (common Liiicohi>ihire R. Co. (1878) 4 Q. B. law liability of bailee). Div. 81, also a decision of the {y) The enactment is o. 116 of C. A., and not cited in the later the County Courts Act, 1888, cases, seems directly to the con- superseding a similar section in trary. TORT FOUNDED ON CONTBACT. -J'-" determined by tlie obligation of the contract), but in some way extends beyond those facts, and may produce duties really independent of contract. Much less have we said that the existence of such a relation is not to be taken into account in ascertaining what may be John's duties and liabilities to William or Andrew, who has not any contract with John. In pursuing such questions we come upon real difficulties of principle. This class of cases will furnish our next head. II. — Concurrent Cause.'s of Action. Herein we have to consider — Concur- rent causes (a) Cases where it is doubtful whether a contract has of action. been formed, or there is a contract " implied in law " without any real agreement in fact, and the same act which is a breach of the contract, if any, is at all events a tort ; (b) Cases where A. can sue B. for a tort though the same facts may give him a cause of action against M. for breach of contract ; (c) Cases where A. can sue B. for a tort though B.'s misfeasance may also be a breach of a contract made not with A. but with M. (a) There are two modern railway cases in -n-hich the Cases of majority of the Court held the defendants liable on a ^?hether contract, but it was also said that even if there was no l°'^^l'"'^ contract there was an independent cause of action. In contract ^ , , . between Denton v. Great Northern Eaihcay Comjxini/ (z), an in- same tending passenger was held to have a remedy for damage ^""^ ^'^''' sustained by acting on an erroneous announcement in the (z) 5 E. & B. 860, 25 L. J. Q. B. a doubtful tort and the breach of 129 (1856), see pp. 296, 297, above, a doubtful contract were allowed and the present -writer's Principles to save one another from adequate of Contract, 7th ed. 16. The case criticism, is perhaps open to the remark that '^^^ SPECIAL RELATIONS OF CONTRACT AND TORT. company's current time-table, probably on tbe footing of the time-table being the proposal of a contract, but cer- tainly on the ground of its being a false representation. In Aunt in V. Great Western Raihcay ComjMmj (a) an action for harm suffered in some accident of which the nature and particulars are not reported, the plaintiff was a young child just above the age up to which children were entitled to pass free. The plaintiff's mother, who had charge of him, took a ticket for herself only. It was held that the company was liable either on an entire contract to carry the mother and the child (enuring, it seems, for the benefit of both, so that the action was properly brought by the child) (b), or independently of contract, because the child was accepted as a passenger, and this cast a duty on the company to carry him safely (c). Sucli a passenger is, in the absence of fraud, in the position of using the railway company's property by invitation, and is entitled to the protection given to persons in that position by a class of authorities now well established (f/) . Whether the company is under quite the same duty towards him in respect of the amount of diligence required, as towards a passenger with whom there is an actual contract, is not so clear on principle (c). The point is not discussed in any of the cases now under review. Again, if a servant travelling with his master on a railway loses his luggage by the negligence of the com- pany's servants, it is immaterial that his ticket was paid for by his master, and he can sue in his own name for the loss. Even if the payment is not regarded as made by (ff) L. R. 2 Q. B. 442 (1867). -'ybo. («) Per Lush J. at p. 447. (d) See Chap. XIL, p. 613, (f) Per Blackburn J. at p. 44'), above; and cip. Triylor's ca. note {x), and see per Grtive J. in FouUccs t. p. 536, above. Jfelrop. Lhtrict E. Co. (1880) 4 (e) See Mnffatt y. Baieman {\?,6'i) 0. P. D. at p. 279, 48 L. J. C. P. L. R. 3 P. 0. 115. INDEPENDENT CAUSES OF ACTION. ^'^'' the master as the servant's agent, as between themselves and the company (,/'), the company has accepted the servant and his goods to be carried, and is answerable upon the general duty thus arising, a duty which would still exist if the passenger and his goods were lawfully in the train without any contract at all(f/). Evidently the plaintiif in a case of this kind must make his choice of remedies, and cannot have a double compensation for the same matter, first as a breach of contract and then as a tort ; at the same time the rule that the defendant's liability must not be increased by varying the form of the claim is not here applicable, since the plaintiff may rely on the tort notwithstanding the existence of doubt whether there be any contract, or, if there be, whether the plaintiff can sue on it. On the other hand we have cases in which an obvious Contract tort is turned into a much less obvious breach of contract in law" with the undisguised purpose of giving a better and more ^^iver of convenient remedy. Thus it is an actionable wrong to tort, retain money paid by mistake, or on a consideration which has failed, and the like ; but in the eighteenth century the fiction of a promise " implied in law " to repay the money so held was introduced, and afforded " a very extensive and beneficial remedy, applicable to almost every case where the defendant has received money which ex aequo et bono he ought to ref und " (A) , and even to eases where goods taken or retained by wrong had been converted into money. The plaintiff was said to " waive the tort " for {/) Suppose the master by acci- ((/) Jfarsliall v. York, jS'rw.mile dent had Irft his money at home, S^ Berwick R. Cu. (1851) 11 C. B. and the servant had paid both fares 665, 21 L. J. C. P. 34, 87 R. R. 7-12; out of his own money : could it be approved by Blackburn J., in y/Ksiix argued that the master had no con- v. G. W. li. Co., note (a), last page, tract with the company ? (A) Blackst. iii. 103. '"^■1" SPECIAL RELATIONS OF CONTRACT AND TOET, the purpose of suing in assumpsit on tlie fictitious contract. Hence the late Mr. Adolphus wrote in his idyllic poem " The Circuiteers " ; "Thoughts much too deep for tears subdue the Court When I assumpsit bring, and god-like waive a tort" (i). This kind of action was much fostered by Lord Mans- field, whose exposition confessed the fiction of the form while it justified the utility of the substance (/i). It was carried so far as to allow the master of an apprentice who had been enticed away to sue the person who had wrong- fully employed him in an action' of iiidehitatus assumpsit for the value of the apprentice's work (/). Implied "Within modern times an essentially similar fiction of of agent's law has been introduced in the case of au ostensible agent Woiieii^J obtaining a contract in the name of a principal whose V right), authority he misrepresents. A person so acting is liable for deceit only if the misrepresentation is fraudulent, and that liability (when it exists), being purely in tort, does not extend to his executors. Neither can the professed agent, whether acting in good faith or not, be held per- sonally liable on a contract which he purported to make in the name of an existing principal though for some time it was a current opinion that he was so liable. To meet these difficulties it was held in Collen \. Wright (;«) that when a man purports to contract as agent there is an implied warranty that he is really authorized by the person named as principal, on which warranty he or his estate will (i) L. Q. E. i. 233. Taunt. 112, 9 E. R. 713. (/i) Moxes V. Macferlan, 2 Burr. 1005. As to the limits of the («;) Ex. Ch. (1857) 8 E. & B. option to sue in assumpsit iu such 617, 27 L. J. Q. B. 215, repeatedly cases, see Waiver of Tort, by Prof. followed, and now confirmed by W. A. Keener, Harv. Law Rev. vi. the House of Lords, Starlcey v. 223. Bank of lEngland [1003] A. C. 1 H, [1] Lighthj Y. Clotistoii (1808) 1 72 L. J. Ch. 402. CONCURRENT CAUSES OF ACTION. -J-ll be answerable cv contractu. Just as in the case of tbe old " common counts," the fact that the action lies against executors shows that even where fraud is present, there is not merely one cause of action capable of being expressed, under the old system of pleading, in different ways, but two distinct though concurrent causes of action with a remedy upon either at the plaintiff's election. We pass from these to the more troublesome cases where the causes of action in contract and in tort are not between the same parties. (b) There may be two causes of action with a common Concur- plaintiff, or the same facts may give Z. a remedy in ^f action contract against A. and also a remedy in tort against B. ^liferent parties in m n n T • 1 1 • j Contract The lessee of a steam ferry at Liverpool, havmg to and in meet an unusual press of traffic, hired a vessel with its °'' " . . . Dalyell v. crew from other shipowners to help in the work of the Tyin-. ferry for a day. The plaintiff held a season ticket for the ferry, and therefore had a contract with the lessee to be carried across with due skill and care. He crossed on this day in the hired vessel ; bj^ the negligence of some of the crew there was an accident in mooring the vessel on her arrival at the farther shore, and the plaintiff was hurt. He sued not the lessee of the ferry but the owners of the hired vessel ; and it was held that he was entitled to do so. The persons managing the vessel were still the servants of the defendants, her owners, though working her under a contract of hiring for the purposes of the ferry ; and the defendants would be answerable for their negligence to a mere stranger lawfully on board the vessel or standing on the pier at which she was brought up. The plaintiff was lawfully on their vessel with their consent, and they were not the less responsible to him because he was there in ->4- SPECIAL RELATIONS OF CONTRACT AND TORT. exercise of a right acquired by contract upon a con- sideration paid to some one else («). :\. leading decision on facts of this kind was given by Fhidhcs V. ^[rt. DiU. n. Co. the Court of Appeal in 1880 (o) The plaintiff, a railway passenger with a return ticket alighting at his destination at the end of the return journey, was hurt by reason of the carriages being unsuit- able to the height of the platform at that station. This station and platform belonged to one company (the South Western), by whose clerk the plaintiff's ticket had been issued : the train belonged to another company (the District) who used the station and adjoining line under running powers. There was an agreement between the two companies whereby the profits of the trafho were divided. The plaintiff sued the District Company, and it was held that they were liable to him even if his contract was with the South Western Company alone. The Ilistrict Company received him as a passenger in their train, and were bound to provide carriages not only safe und sound in themselves, but safe witli reference to the permanent way and ap)pliances of the line. In breach of this duty they provided, according to the facts as deter- mined by the jury, a train so ordered that "in truth the combined arrangements were a trap or snare," and would have given the plaintiff a cause of action though he had been carried gratuitously (/)). He had been actually received by the defendants as a passenger, and thereby («) Dahjell^. Tijrer (1858) E. B. C. P. 400. & E. 899, 28 L. J. Q. B. 52. {p) Bramwell L. J., 5 C. P. Div. (o) Foiilkes V. 3Ictrop. Did. It. at p. 169. See the judgment of Co.. 5 C. P. Div. 157, 49 L. J. C. P. Thesiger L. J., for a fuller state- 361. Cp. Derringer v. G. E. R. Cu. ment of the nature of the duty. (1879) 4 C. P. D. 163, 48 L. J. DOUBLE EIGHT OF ACTIOX. i">4;j thev undertook tlie duty of not exposing him to unreason- able peril in any matter incident to the journey. This rule is not confined to active misfeasance. It has -'i''"." ^'■ now been applied by the Court of Appeal to a case where A'y. r.-. the negligence complained of was the omission to shut off steam in due time in running into a station. Wherever the parties have come into such a relation that a duty to take proper care can be established without reference to any contract, there the violation of that duty by negligence is a tort, whether it consist in commission or in omission, and whether there be in fact a contract or not (q) . {c) There may be two causes of action with a common Causes of defendant, or the same act or event which makes A. liable contract for a breach of contract to B. may make him liable for a ^t* suit of tort to Z. different plaintiffs. The case already mentioned of the servant travelling by railway with his master would be an example of this if it were determined on any particular state of facts that the railway company contracted only with the master. They would not be less under a duty to the servant and liable for a breach thereof because they might also be liable to the master for other consequences on the ground of a breach of their contract with him (r). Again, an officer in Her Majesty's service and his haggage were carried under a contract made with the carriers on behalf of the Grovernment of India ; this did not prevent the carriers from being liable to the officer if his goods were destroyed in the course of the journey by the negligence of their servants. " The contract is no {(j) Kclhj V. Jfetrop. Jli/. Co. L. J. Q. B. 6, C. A. [1895] 1 Q. B. 944, 64 L. J. Q. B. (r) Jlais/ial/'s ca. (1851) 11 C. B. 568, explaining Tai/lor v. J/. S. §■ 655, 21 L. J. C. P. 34, 87 R. R. i. B. Co. [1805J 1 Q. B. 134, 64 742, ii/pra, p. 539. 'Ji^ SPECIAL RELATIONS OF CONTRACT AND TORT, concern of tlie plaintiff's ; the act was none the less a wrong to him" (s). He could not charge the defendants with a breach of contract, but they remained answerable for " an affirmative act injurious to the plaintiff's property" {f). Again, a servant was travelling with his livery, being the master's property, in his portmanteau, and the port- manteau with its contents was accepted by the railway company as the servant's luggage, and spoilt by the negli- gence of one of the company's porters who overturned it in front of a moving train. It was held that the master might sue the company for the damage to the livery as a wrong independent of contract (u) . Alton Y. The decision of the Court of Common Pleas in Alton v. Ji. Co., Midland Railway Co. (.r) has given rise to some difficulty. authontr ^ servant travelling by railway on bis master's business (having paid his own fare) received hurt, as was alleged, by the negligence of the railway company's servants, and the master sued the company for loss of service consequent on this injury. It was held that the action would not lie, the supposed cause of action arising, in the opinion of the Court, wholly out of the company's contract of carriage ; (s) Mariin v. G. I. P. S. Co. 241, 39 L. J. Q. B. 122, "n-ould seem (1867) L. R. 3 Ex. 9, per Eramwell to be overmled. The doubt is per- B. at p. H, 37 L. J. Ex. 27. haps hardly substantial, for the (f) Channell B. iljid. ; Kelly C. B. passenger has possession at least, and Pigott B. doubted. and surely that is interest enough (ti) Meii.T V. G. Ji. E. Co. [1895] for the purpose. "Whether the 2 Q. B. 387, 64 L. J. Q. B. 657, passenger could recover more than C. A. It is mooted in Kay L. J.'s nominal damages for the breach of judgment [1895] 2 Q. B. at p. 393, the contract with him does not con- ■whether the case of a stranger's cern us here. goods in which the passenger had [x] 19 C. B. N. S. 213, 34 L. J. no interest might be distinguish- C. P. 292 (1865). This case was not able. Subject to that doubt, Bechcr cited either in Ilartin v. G. I. P. B. V, G. E. R. Co. (1870) L. R. 5 Q. B. Co. or Foullces v. Met. Dist. B. Co. Alton's case. 'jIS ■which contract being made with the servant, no third person could found any right upon it. But it is not explained in any of the judgments how this ^•iew is con- sistent with the authorities relied on for the plaintiff, and in particular with Marshairs case, a former decision of the same Court; and the test question, whether the reception of the plaintiff's servant as a passenger would not have created a duty to carry him safely if there had not been any contract with him, is not directly dealt with. The case, though expressly treated by the Court as of general importance, was never much cited or relied on ; and the correctness of the decision was disputed (extra- judicially, it is true) by Sir E. V. Williams (y). A directly contrary decision has also been given in the State of Massachusetts (s). But it is now certain that Alton's case is virtually over-ruled by Foulkets's case and the other later decisions of the Court of Appeal which proceed on the existence of a duty not only in form but in substance independent of contract. Its authority can be saved only by confining it to the precise form of the pleadings on which it was decided, if it can be saved even so far («) . (t/) "The Court decided this case case, sm/?™, p. 539. on the principle that one who is no j^^ ^^^^^^^ ^ ^.^^^^ j^ p^_ ^^g^.^ party to a contract cannot sue m jj^ ^^^^^ ^^^^ expressly following respect of the breach of a duty j£„,.,^„„.j ea. (1851) 11 C. B. 665, arising out of the contract. But gi L. j. c. P. 34, supra, p. 539. it may be doubted whether this was correct ; for the duty, as appears {a) Taylor v. Jf. "'1 or transmitting a letter or figure, though it may materi- &\\j affect the sense of the despatch, cannot be treated as a deceit (r). "In America, on the other hand, one who receives a Position of telegram which, owing to the negligence of a telegraph erroneous company, is altered, or ia other respects untrue, is ^i^gf^g^J^ ' invariably permitted to maintain an action against the ;^'ews in telegraph company for the loss that he sustains through and U. S. acting upon that telegram " : but the learned American commentator here cited finds the reasoning of the English eoui'ts difficult to answer (s). And the American decisions appear to rest more on a strong sense of public expediency than on any one definite legal theory. The suggestion that there is something like a bailment of the message may be dismissed at once. Having regard to the exten- sion of the action for deceit in certain English cases (t), there is perhaps more to be said for the theory of misrepresentation than our courts have admitted ; but this too is precarious ground. The real question of principle is whether a general duty of using adequate care can be made out. I am not bound to undertake telegraphic business at all ; but if I do, am I not boimd to know that errors in the transmission of messages may naturally and probably damnify the receivers ? and am I not therefore bound, whether I am forwarding the messages under any contract or not, to use reasonable (r) Dickson v. Seuter's Telegram But " the weight of judicial autho- Co. (1877) 3 C. P. Div. 1, 47 L. J. rity . . denies a recovery for C. P. 1, confirming Flay ford v. damages from mental anguish only , U. jr. Electric Telegraph Co. (1869) resulting from negligent failure to L. R. 4 Q. B. 706, 38 L. J. Q. B. deliver a telegraphic message" ■ 249. Burdick on Torts, 104. {s) Gray on Communication by [t) See especially Denton v. G. X. Telegraph (Boston, 1885) ^^ 71-73, M. Co. (1856) 5 E. & B. 860, 25 where authorities are collected. L. J. Q. B. 129, p. 296, above. 552 SPECIAL EELATIONS OF CONTRACT AND TORT. care to ensure correctness ? I cannot warrant the authenticity or the material truth of the despatch, but shall I not be diligent in that which lies within my power, namely, the deli^"ery to the receiver of those words or figures which the sender intended him to receive ? If the affirmative answer be right, the receiver who is misled may have a cause of action, namely, for negligence in the execution of a voluntary undertaking attended with obvious risk. But a negative answer is given by our own courts, on the ground that the ordinary law of negligence has never been held to extend to negligence in the state- ment of facts (if it did, there would be no need of special rules as to deceit) ; and that the delivery of a message, whether by telegraph or otherwise, is nothing but a statement that certain words have been communicated b)' the sender to the messenger for the purpose of being by him communicated to the receiver. It may perhaps be said against this that the nature of telegraph business creates a special duty of diligence in correct statement, so that an action as for deceit will lie without actual fraud. But since the recent cases following Berry v. Peck [v) this could hardly be argued in England. Perhaps it would be better to say that the systematic undertaking to deliver messages in a certain way (much more the existence of a corporation for that special purpose) puts the case in a category of its own apart from represen- tations of fact made in the common intercourse of life, or the repetition of any such representation. Thus we should come back to the old ground of the action on the case for misfeasance. The telegraph company would be in the same plight as the smith who pricks a horse with a nail, or the unskilful surgeon, and liable without any (m) See p. 286 sqq., above. MISTAKE IN DELIVERING TELEGRAMS. 553 question of contract or warranty. Such liability would not necessarily be towards the receiver only, though damages incurred by any other person would in most cases be too remote. The Court of Appeal has for the present disposed of the matter for this country, and inland communication by telegraph is now in the hands of the Postmaster-General, who could not be sued even if the American doctrine were adopted. With regard to foreign telegrams, however, the rule is still of importance, and until the House of Lords has spoken it is still open to discussion. In the present writer's opinion the American decisions, The con- though not all the reasons given for them, are on prin- sidered on ciple correct. The undertaking to transmit a sequenfe P''™"?!"- of letters or figures (which may compose significant words and sentences, but also may be, and often are, mere unin- telligible symbols to the transmitter) is a wholly difierent thing from the statement of an alleged fact or the expression of a professed opinion in one's own language. Generally speaking, there is no such thing as liability for negligence in word as distinguished from act; and this difference is founded in the nature of the thing {x) . If a man asserts as true that which he does not believe to be true, that is deceit ; and this includes, as we have seen, making assertions as of his own knowledge about things of which he is consciously ignorant. If he only speaks, and purports to speak, according to his information and belief, then he speaks for his own part both honestly and truly, though his information and {x) The law of defamation stands of absolute responsibility qualified apart : but it is no exception to the by absolute exceptions ; and where proposition in the text, for it is not malice has to be proved, the grossest a law requiring care and caution in negligence is only evidence of greater or less degree, but a law malice. 554 SPECIAL RELATIONS OF CONTRACT AND TORT. belief may be in themselves erroneous, and though if he had taken ordinary pains his information might have been better. If he expresses an opinion, that is his opinion for what it is worth, and others must estimate its worth for themselves. In either case, in the absence of a special duty to give correct information or a competent opinion, there is no question of wrong-doing. If the speaker has not come under any such duty, he was not bound to have any information or to frame any opinion. But where a particular duty has been assumed, it makes no difference that the speaking or writing of a form of words is an incident in the performance. If a medical practitioner miscopies a formula from a pharmacopoeia or medical treatise, and his patient is poisoned by the druggist making it up as so copied, surely that is actionable negli- gence, and actionable apart from any contract. Yet his intention was only to repeat what he found in the book. It is true that the prescription, even if he states it to be taken out of the book, is his prescription, and he is answerable for its being a fit one ; if it be exactly copied from a current book of good repute which states it to be applicable to such cases as the one in hand, that will be evidence, but only evidence, that the advice was competent. Again the negligent misreading of an ancient record by a professed palaeographist might well be a direct and natural cause of damage ; if such a person, being employed under a contract with a solicitor, made a negligent mistake to the prejudice of the ultimate client, is it clear that the client might not have an action against him ? If not, he may with impunity be negligent to the verge of fraud ; for the solicitor, not being damnified, would have no cause of action, or at most a right to nominal damages on the contract. The telegraph clerk's case is more like one of these (we do not say they are precisely analogous) than EFFECTS OF EXTKANKOLVS CONTRACTS. ''J^ the mere reporting or repetition of supposed facts. There remains, no doubt, the argument that liability must uot be indefinitely extended. But no one has proposed to abolish the general rule as to the remoteuess of damage. of -which the importance, it is submitted, is apt to be obscured by contriving hard and fast rules in order to limit the possible combinations of the elements of liability. Thus it seems that even on the American view damages cannot be recovered for loss arising out of an error in a ciphered telegram, for the telegraph company ^^'ould have no notice of what the natural and probable consequences of error would be (y). (c) There are likewise cases where an innocent and Ctaraoter . . . . . . o^ morally- even a prudent person will find himself within his right, innocent or a wi'ong-doer, according as there has or has not been affected by a contract between other parties under which the property ^^*'^''- or lawful possession of goods has been transferred. If a contract. man fraudulently acquires property in goods, or gets delivery of possession with the consent of the true owner, he has a real though a defeasible title, and at any time before the contract is avoided (be it of sale or any form of bailment) he can give an indefeasible title by delivery over to a buyer or lender for valuable consideration given in good faith (s). On the other hand a man (y) Frimrose v. Western Union value of the message itself, except TeUgraph Co. (1893) 164 U. S. 1, as such value may be disclosed by ■where it was held that the measure the message, or be agreed between of da,mages for mistake in deliver- the sender and the company." ing a cipher message of which the But the decision was chiefly on the meaning was unknown to the validity of the company's special company was only the sum paid for conditions. Op. Suiiderx v. t'tiinrt the message. ' ' Telegraph com- (1876) 1 0. P. D. 326, 45 L. J. 0. P. panics are not bailees in any sense," 682. and "the message ... is of no {:) See the principle e.xplained, intrinsic value . . . and the measure and worked out in relation to com- of damages, for a failure to transmit plicated facts, in Tease v. Gloahec, or deliver it, has no relation to any L. R. 1 P. 0. 219, 35 L. J. P. C. 66. 556 SPECIAL RELATIONS OF CONTRACT AND TORT. may obtain the actual control and apparent dominion of goods not only without having acquired the property, but without any rightful transfer of possession. He may obtain possession by a mere trick, for example by pretending to be another person with whom the other party really intends to deal (a), or the agent of that person (b). In such a case a third person, even if he has no means of knowing the actual possessor's want of title, cannot acquire a good title from him unless the sale is in market overt, or the transaction is within some special statutory protection, as that of the Factors Acts. He deals, however innocently, at his peril. In these eases there may be hardship, but there is nothing anomalous. It is not really a contract between other parties that determines whether a legal wrong has been committed or not, but the existence or non-existence of rights of property and possession — rights available against all the world — which in their turn exist or not according as there has been a contract, though perhaps vitiated by fraud as between the original parties, or a fraudulent obtaining of posses- sion (c) without anj' contract. The question is purely of the distribution of real rights as affording occasion for their infringement, it may be an unconscious infringe- ment. A man cannot be liable to A. for meddling with A.'s goods while there is an unsettled question whether the goods are A.'s or B.'s. But it cannot be a proposition in the law of torts that the goods are A.'s or B.'s, and it (ff) Cundy v. Lindsay, 3 App. Ca. possession in law, though a wrong- 459, 47 L. J. Q. B. 481. ful possession, and the lawful {h) Hardman v. Booth, 1 H. & C. possessor of goods cannot at coni- 803, 32 L. J. Ex. 105. men law steal them, except in the (c) It will be remembered that cases of "breaking bulk" and the the essence of trespass dc bonis like, where it is held that the nsportatis is depriving the true fraudulent dealing determines the owner of possession : a thief has bailment. MEASUEE OF DAMAGES, ETC. 557 can be said to be, in a qualified sense, a proposition in the law of contract only because in the common law property and the right to possession can on the one hand be transferred by contract without delivery or any other overt act, and on the other hand the legal efEect of a manual delivery or consignment may depend on the presence or absence of a true consent to the apparent purpose and effect of the act. The contract, or the absence of a contract, is only part of the incidents determining the legal situation on which the alleged tortious act operates. There are two questions, always conceivably and often practically distinct : Were the goods in question the goods of the plaintiff ? Did the act complained of amount to a trespass or conversion ? Both must be distinctly answered in the affirmative to make out the plaintiff's claim, and they depend on quite different principles (d) . There is therefore no complication of contract and tort in these eases, but only — if we may so call it — a dramatic juxtaposition. IV. — Measure of Bamayes and other Incidents of the Remedy. With regard to the measure of damages, the same Measure of principles are to a great extent applicable to oases of ^^_ '^^ ' contract and of tort, and even rules which are generally peculiar to one branch of the law may be applied to the other in exceptional classes of cases. The liability of a wrong-doer for his act is determined, as we have seen, by the extent to which the harm suffered by the plaintiff was a natural and probable consequence of the act. This appears to be also the true measure of (d) See passim in the opinions delivered in Soll'ms v. Fowler, L. E. 7 H. L. 757, 44 L. J. Q. B. 169. -j5S special relations of contract and tort. liability for breach of contract ; " the rule with regard to remoteness of damage is precisely the same whether the damages are claimed in actions of contract or of tort " {f) ; the judgment of what is natural and probable being taken as it would have been formed by a reasonable man in the defendant's place at the date of the wrongful act, or the conclusion of the contract, as the case may be. No doubt there have been in the law of contract fairly recent opinions of considerable authority casting doubt on the rule of Hadlejj v. Buxendah (/), and tending to show that a con- tracting party can be held answerable for special conse- quences of a breach of his contract only if there has been something amounting to an undertaking on his part to bear such consequences ; on this view even express notice of the probable consequences — if they be not in themselves of a common and obvious kind, such as the plaintiff's loss of a difference between the contract and the market price of marketable goods which the defendant fails to deliver — would not of itself suffice ((/). Rule as But the Court of Appeal has more lately disapproved ^'' The general principle, therefore, is still the same in contract as in tort, whatever difficulty niay be found in working it out in a wholly satisfactory manner in relation to the various combinations of fact occui'ring in practice (/). One point maj^ be suggested as needful to be borne in mind to give a consistent doctrine. Strictly speaking, it is not notice of apprehended consequences that is material, but notice of the existing facts by reason whereof those consequences will naturally and probably ensue upon a breach of the contract {li) . Exemplary or vindictive damages, as a rule, cannot be Vindictive. recovered in an action on a contract, and it makes uo of action difference that the breach of contract is a misfeasance of'''p^o'^,^",e capable of being: treated as a wrong. Actions for breach »* "'^r- . . . . riage. of promise of marriage are an exception, perhaps in law, certainly in fact : it is impossible to analyse the estimate formed by a jury in such a case, or to prevent them from giving, if so minded, damages which in truth are, and are intended to be, exemplary {T). Strictly the damages BramwellL. J. atp. 674; Brett and (i) As to the treatment of con- Cotton L. JJ. are no less explicit. sequential damage where a fal-e The time to be looted to is that statement is made which may be of entering into the contract: ih. treated either as u. deceit or as a In McMahon v. FicM (1881) 7 Q,. B. broken warranty, see Smith v. Greni Div. 591, 50 L. J. Q. B. 552, the (1875) 1 C. P. D. 92, 45 L. .T. C. P. supposed necessity of a special 28. undertaking is not put forward at (/j) According to Alderson B. in all. Mr. J. D. Mayne, though he Sadley v. Saxendale, it is the know- still (7th ed. 1903, at p. 42) holds ledge of " special circumstances by Some v. Midland R. Co., very under which the contract was pertinently asks where is the con- actually made" that has to be ffideration for such an undertaking. looked to, i.e., the probability of See for fuller discussion of the rule the consequence is only matter of and the authorities an article by inference. Mr. F. E. Smith in L. Q. R. xvi. (Z) See Berry v. Ba Costa (1866) -275. L. R. 1 C. P. 331, 36 L. J. C. P. 191. 560 SPECIAL RELATIONS OF CONTRACT AND TORT. are by way of compensation, but they are " almost always considered by the jury somewhat in jMenam " (m) . Like results might conceivably follow in the case of other breaches of contract accompanied with circumstances of wanton injury or contumely. Contracts on which executors cannot sue. In another respect breach of promise of marriage is like a tort : executors cannot sue for it without proof of special damage to their testator's personal estate ; nor does the action lie against executors without special damage {n). " Executors and administrators are the representatives of the temporal property, that is, the debts and goods of the deceased, but not of their wrongs, except where those ■ttTongs operate to the temporal injury of their personal estate. But in that case the special damage ought to be stated on the record : otherwise the Court cannot intend it " (o) . The same rule appears to hold as concerning injuries to the person caused by unskilful medical treat- ment, negligence of carriers of passengers or their servants, and the like, although the duty to be performed was under a contract (p). Positive authority, however, has not been found on the extent of this analogy. The language used by the Court of King's Bench is at any rate not convincing, for although certainly a wrong is not property, the right to recover damages for a wrong is a chose in action ; neither can the (m) Le Blanc J. in Cliamherhin V. Williamson (1814) 2 M. & S. 408, 414, 15 R. R. 295. («) Finlaij V. Chirneij (1888) 20 Q. B. Div. 494, 57 L. J. Q. B. 247. (o) Chamba-lain T. Williamson, 2 M. & S. at p. 115, 15 R. R. at p. 297. (y) Chamberlain v. Williamson, last note ; Willes J. in Alton v. Midland R. Co., 19 C. B. N. S. at p. 242, 34 L. J. C. P. at p. 298 ; cp. Beckham v. Brake (1841) 8 M. & W. at p. 854 ; 1 "Wms. Saund. 242 ; and see more in Williams on Executors, pt. 2, bk. 3, ch. 1, § 1 (10th ed. pp. 606—618) ; and Ray- mond V. Fitch (1835) 2 C. M. & R. 588, 41 R. R. 797. SURVI\'AL OF ACTION. 561 ^listiuetion between liquidated and unliquidated damages flfford a test, for that would exclude causes of action on which executors have always been able to sue. We have ■considered in an earlier chapter the exceptional converse cases in which by statute or otlierwise a cause of action for a tort which a person might have sued on in his lifetime survives to his personal representatives. Where there was one cause of action with an option to j^ue iu tort or in contract, the incidents of the remedy generally were determined once for all, under the old eomm(5n law practice, by the plaintifE's election of his form of action. But this has long ceased to be of practical importance in England (j), and, it is believed, in most jurisdictions. (?) See Xaiij V. Metrop. R. Co. [1895] 1 Q. B. 944, at p. 946. -T. O O 563 APPENDIX A. HISTORICAL NOTE ON THE CLASSIFICATION OF THE FORMS OP PERSONAL ACTION. (By F. "W". Maitland) {a). The history of the attempt to classify the English personal actions under the two heads of Contract and Tort will hardly be understood unless two preliminary considerations are had in mind. (1.) Between the various forms of action there were in old time many procedural differences of serious practical importance, A few of these would have been brought out by such questions as the following : — (a) What is the mesne process proper to this action ? Does one begin with summons or with attachment ? Is there a capias ad respondendum, or, again, is there land to be seized into the king's hand ? (b) What is the general issue? Is it, ejj., Nil debet, or Isfoii assumpsit, or Not guilty ? (c) "WTiat mode of proof is open to the defendant ? Is this one of the actions in which he can still wage his law ? (d) What is the final process ? Can one proceed to outlawry ? (e) How will the defendant be punished if the case goes against him ? Will he be merely amerced or will he be imprisoned until he makes fine with the king ? In course of time, partly by statutes, partly under cover of fictions, the procedure in the various personal actions was made more uniform ; but the memory of these old differences endured, and therefore classification was a difficult task. (2.) The list of original writs was not the reasoned scheme of a provident legislator calmly devising apt remedies for all conceivable wrongs; rather it was the outcome of the long and complicated (a) It is now atout a year since Law was unhappily cut short. I the tale of Maitland's contributions have tried to express my apprecia- te the learning of the Common tiou of them elsewhere. 00 2 564 APPENDIX A. struggle -wliereby tte EngTish. king at various times and under ■various pretexts drew into his own court (and so drew away from other courts communal, seignorial, ecclesiastical), almost all the litigation of the realm. Then, in the thirteenth century, the growth of Parliament prevented for the future any facile invention of new remedies. To restrain the king's writ-making power had been ii main object with those who strove for Parliaments (a). The completeness of the parliamentary victory is marked bj' the well-known , clause in the Statute of Westminster II. (i) which allows the Chancery to vary the old forms so as to suit new cases, but only new cases which fall under old law. A use of this per- mission, which we are apt to think a tardy and over-cautious use, but which may well have been all that Parliament would have suffered, gave us in course of time one new form of action, namely, trespass upon the special case, and this again threw out branches which came to be considered as distinct forms of action, namely, assumpsit and trover. Equity, again, met some of the new wants of new times, but others had to be met by a stretching and twisting of the old forms which were made to serve many purposes for which they wore not originally intended. Xow to Bracton writing in the middle of the thirteenth century, while the king in his chancerj^ and his court still exercised a con- siderable power of making and sanctioning new writs (c), it maj' have seemed very possible that the personal actions might be neatly fitted into the scheme that he found provided in the Roman books ; they must bo (1) ex contractu vel quasi, (2) ex maleficio rel ([iiii.'.i [d). Personal actions in the king's court were by no means very common ; such actions still went to the local courts. Perhaps it is for this reason that ho say s very little about them; perhaps his work is unfinished ; at any rate, he just states this classification but makes hardly any use of it. The same may be said of his opitomators Britton (e) and Fleta (/). Throughout the middle ages (u) See a complaint bythe bishops [c) His doctrine as to the making in r2S7, Mat. Par. Chron. Maj. (ed. of new writs will be fomid on fols. Luard) vol. vi. p. 363. Newwrits 413—4144. Seefol. 438 Aforawrit contrary to law are made in the invented by William of Raleigh. Chancery without the consent of In several other cases Bracton the council of the realm. So under notices that the writ has been lately the provisions of Oxford (1268) the devised by resolution of the Court Chancellor is to swear that he will {de consiho curiae), e.g., the Quare seal no writs save writs of course, Ejeoit, fol. 220. without the order of the king and [d) Pol. 102. of the council established by the (e) Vol. i. p. 156. Britton's provisions. See Stubbs, Select equivalent for malcjicium is tres- Charters, Part 6, No. 4. pass. (b) Stat. 13 Edw. I. (1285) o. 24. (/) Fol. 120. FORMS OF ACTION. '^'j^ the theory that personal actions may be arranged under these headings seems to remain a sterile, alien theory. It does not deter- mine the arrangement of the practical books, of the Register, the Old Xatura Brevium, Fitzherbert's Natura Brevium, the Novae Narrationes. Even Hale, when in his Analysis he mapped out the field of English law, did not make it an important outline. The truth seems to be that the most natural classification of writs was quite different. It would give us as its two main headings — (a) Praecipe ; (b) .S'/ tefecerit strurnm. (a) In one class we have writs beginning with Praecipe quad reddat—faciat—permiltat. The sheriff is to bid the defendant render (do, permit) something, and only if this command be in- effectual will the action proceed. To this class belong the writ of right and other proprietary real actions, also debt (^), detinue account, and covenant. (b) In the other class the writ supposes that there is already a completed wrong and a perfect cause of action in the king's court. If the plaintiff finds pledges to prosecute, then the defendant must appear and answer. To this class belong the possessory assizes, trespass and all the forms developed out of trespass, viz. case, assumpsit, trover. Much is made of this classification in a book which once was of good repute, a book to which Blaokstone owed much. Sir Henry Finch's Discourse on Law (A). The historical basis seems this : the king's own court takes cognizance of a cause either because the king's lawful precept has been disobeyed, or because the king's peace has been broken. But in order to assure ourselves that the line between breaches of contractual obligation and other causes of action cannot have been regarded as an elementary outline of the law by our mediaeval lawyers, we have only to recall the history of assumpsit. We are obliged to say either that at some moment assumpsit ceased to be an action ex maleflcio and became an action ex contractu, or (and this seems historically the better way of putting it) that it was an action founded not on contract, but on the tort done by breach of some contractual or other duty voluntarily assumed. It must have been difficult to hold that the forms of personal action could be aptly distributed between tort and contract, when in the Register ((/) The writ of debt in Glanvill, Debt ; see lib. 10, cap. 5. lib. 10, rap. 2, is just the writ of (h) Editions in 1613, 16.36, 1678, right vith the variation that a and 17S9. In the last i if these see certain sum of money due is substi- pp. 2S7, 261, 284, 296. Black- tuted for a certain quantity of land. stone notices this classification in There may be trial by 'battle in Comment, vol. iii. p. 274. 566 APPENDIX A. actions founded on non-performance of an assumpsit occurred, not even under the title of Case (for there was no such title) but under the title of Trespass mixed up with assaults and asportations, far away from debt and covenant (/). The same point may be illustrated by the difficulty which has been felt in modern times of deciding whether detinue was ex contractu or ex delicto. Braoton, fixing our terminology for all time, had said (A) that there was no actio in rem for the recovery of movables because the judgment gave the defendant the option of paying the value instead of delivering the chattel. The dilemma therefore of contract or tort was offered to claims to which, according to Eoman notions, it was inapplicable. But whether detinue was founded on contract or founded on tort, was often debated and never well settled. During the last and the earlier part of the present century the fact that in detinue one might declare on a loss and finding (detinue sur trover) was taken to prove that there was not necessarily any contract between the parties (Z). Opinion wis swayed to the other side by the close relation between detinue and debt (m), a relation so close as to be almost that of identity, especially when debt was brought, not in the dehet and detinef, but in the deiinet only(u). A middle opinion was offered by the learned Serjeant Manning (o) that detinue sur bailment was ex contractu, and detinue sur trover was ex delicto; this would have allowed the question to turn on the choice made by the plain- tiff's pleader between two untraversable fictions. A decision of the Court of Appeal under the Judicature Acts ( p) shows that the difficult}- cannot occur in its old form. "We are no longer, even if once we were, compelled to say that all claims for delivery of a chattel must be ex couiructu or all must be ex delicto, though even the theory that every such claim is either ex contractu or ex delicto has difficulties of its own, which might have been avoided were we free to say that such a claim may be actio in rem. (i) Registrum, fol. 109 b ; writs M. & W. 42, 16 L. J. Ex. 11, V-i for not cutting down trees and not R. R. 421. erecting a stone cross as promised, (/n) Walker v. Xeedham (1841) 4 are followed immediately by a writ Sc. N. R. 222 ; 3 Man. & Gr. 567 ; for entering a warren and carrying Banby v. Lamb (18R1) 11 C. B. off goods by force and arms. N. S. 423, 31 L. J. C. P. 17. (A) Fol. 102 b. (ii) " And indeed a writ of debt [l) Kettle V. Bromsall (1738) in the detinet only, is neither more Willes 118 ; Mills v. Graham nor less than a, mere writ of de- (1S04) 1 B. & P. N. R. 140, S R. R. tinue." Blaokst. Comm. iii. 156. 767; Gledstane v. Heu-itt (1831) 1 (o) 3 Man. & Gr. 561, note. Tyr. 445; Broadbent v. Ledward (p) Bryant v. Herbert (1878) 3 (1839) 11 A. & E. 209, 52 R. R. C. P. Div. 389, reversing .S.C ibid. 321; Clements v. Flight (1846) 16 189, 47 L. J. C. P. 670. FORMS OF ACTION. 567 Because of the wager of law assumpsit supplanted debt ; so also for a long while the work of detinue was done b}' trover. That trover was in form tw delicto seems not to have been doubted, still it often had to ser\'e the purpose of a viadicatio. As Lord Mansfield said (5), "Trover is in form a tort, but in substance an action to try property. . . . An action of trover is not now ex maleficio, though it is so in form ; but it is founded on property." For these among other reasons the attempt to force the English forms into the Eoman scheme was not likely to prosper. Ne\'cr- theless the theory that the personal actions can be gTOuped under contract and tort made way as the procedural differences between the various forms were, in one way and another, obliterated. Mackstone states the theory (r), but does not work it into detail ; following the plan which he inherited from Hale, he treats debt, covenant, and assumpsit as remedies for injuries affecting property, injuries affecting choses in action (s). In later books of practice the various forms are enumerated under the two headings ; detinue appears sometimes on one side of the line, sometimes on the other (t). Apart from the statutes which will be mentioned presently, little of practical importance has really depended on the drawing of this line. The classification of the personal actions has been discussed by the Courts chiefly in three contexts. 1. As to the joinder of actions. We find it said at a compara- tively early day that ' ' causes upon contract which are in the right and causes upon a tort cannot be joined " («). But the rules regu- lating this matter were complicated, and could not be reduced to this simple principle. In the main they turned upon those proce- dural differences which have been noticed above. Thus it was said that the actions to be joined must be such as have the same mesne process and the same general issue, also that an action in which, apart from statute (x), the defendant was liable to fine, could not be joined in one in which he could only be amerced. Assujapsit could not be joined with debt; on the other hand debt (}) Bambhj v. Trott (1776) 1 Coirnn. iii. U7. Cowp. 371, 373, 374. W Il>id. 153. (!•) "Personal actions are such (<) Thus in Tidd's Practice (chap, whereby a man claims a debt, or i.) detinue is treated as « delicto ; personal duty, or damages in lieu in Chitty's Pleading (chap, ii.) it is thereof ; and likewise whereby a classed as ex contractu, but hesitat- man claims a satisfaction in dam- ingly. ages for some injury done to his («) Denison v. Ealphson (1682) 1 person or property. The fonner Vent. 365, 366. are said to be founded on contracts, [x) 5 & 6 W. & M. c. 12, abolish- the latter upon torts or wrongs." iagt^ie capiatur pro fine. 538 APPENDIX A. could bo joined witt detinue (. (rf) Stat. 5 & 6 W. & M. o. 12. («) Fine/ton's Case (1611) 9 Co. The penal character of the writ of Rep. 86 i. By this time the pro- trespass is well shown by the clause vince within which wager of law of the Statutum Walliae introduc- was permitted had been so much ing that writ into Wales. "Justi- narrowed by judicial decision that tiarius ... si invenerit reum. it had become possible to regard as culpabilem, castiget eum per pri- merely procedural the rule as to sonam vel per redemptionem vel debt against executors statedabove. per misericordiam, et per dampna (4) Sir Henry Sherrington's Case laeso restituenda secundum quali- (temp. Eliz.) Sav. 40. See remarks tatem et quanlitatem delicti, ita FORMS OF ACTION. (b) As regards the other question, what actions survive for an executor or administrator, we find it early .said that at common hxw actions in contract do survive -while actions in tort do not (e) ; but already in 1330 a statute, which was very liberally construed, had given the executor some actions which undoubtedly were tho outcome of tort(/). On the other hand it has boon held oven of late years that (apart from all question as to real estate) an action for breach of contract does not necessarily survive for or against the personal representative; the cause of action given by a breach oi' promise to marry is not as a general rule one for which rei^reseuta- tives can sue or be sued ((/). But the present state of tho law as to the survival of actions is discussed above (h). 3. Several discussions as to tho line between contract and tort were occasioned by the rule that while joint contractors must be ?-ued jointlj-the liability of joint tort-feasors is joint and several (/). The earliest authority draws the distinction between " praecipe quod i-eddat ' ' and di.'bt on the one hand, and ' ' trespass et huiusmodi "on the other (A'). But the antithesis of contract and tort crops up in the seventeenth century (?). A decision (m) of Lord Mansfield in 1770, that the objection to non-joinder of all joiut contractors as defendants can only be taken by plea in abatement, deprived this matter of much of its importance. Still the question whether there has been breach of a joint contract, or a tort for which several arc liable severally as well as jointly, is of course a question which may still arise and be difficult to answer (»/). Lastly we come to the statutory adoption of the theory that every personal action must be founded either upon contract or upon tort. Tho first statute which recognized this doctrine was seemingly the County Courts Act, 1S46 (o). Here, in a section dealing with co.sts, the antithesis is " founded on contract," "founded on tort." The County Courts Act of 1850 (p) fell back on an enumeration of tho forms of action, placing covenant, debt, detinue, and assumpsit in qnorl castig-atio ilia sit aliis in ex- {/.;) Br. Abr. Responder. 54. cmplum, ettimorempraebeat delin- (I) lioson ^. Saxdfurd, 'A Salk. qiieiiai." 203; 1 Shower 101; Rich v. Pil- !f) Le Mn'-on v. Dixon (1627) khiffUii, GiiTth. ]71 ; C/iildv. Sandx, W. .JoDe."!, 17.i Cartli. 294 ; Baitiird v. Himcocl;, (/) Stat. 4 Edw. III. c. 7. De Curth. ;561. boni.s asportati.s in vita te.statoTi3. (,;,) RiccY. Slmte, .5 Burr. 2611. Ig) rkcmhrlam v jnilm,„.m ^^ ^^\^^^ possibility of the 1814) 2 M. & S 408. l.o E. R. ^^^^ ^^^ ^^ g^^^.J^ nnswering boih 29. ; I^inlaj/ v. CMn.e^, 20 Q. B. d^g.ription.s, see the last chapter of I)iv. 49i, 67 h. J. Q. B. 2ii. thpteU (h) P. 49. (i) Seenotesto Cabell v. Vauqhan, (") 9 & 10 Vict. c. 9.5, s. 129. 1 Wms. Saund. 291. [p) 1.3 & 14 Vict. u. 61, s. U. .j69 '-'^70 APPENDIX A. one class, and trespass, trover, and case in another class. The Common Law Procedure Act, 1852 (q), assumes in its schedule of forms that actions are either "on contracts," or "for wrongs indeijendent of contract " ; hut sect. 74 admits that " certain causes of action may be considered to partake of the character both of breaches of contract and of wrongs " ; some very needless litigation might have been saved had a similar admission been made in other statutes. B}^ the County Courts Act of 1856 (r), costs in a certain event were made to depend upon the question whether the action was "an action of contract." By the Common Law Procedure Act of 1860 (s), costs in a certain event were made to depend on the question whether the action was "for an alleged wrong." A section of the County Courts Act, lcS67 (<), drew a distinction as to costs between actions "founded on contract," and actions " founded on tort." Lastly the County Courts Act of 1888 in several of its sections draws a distinction between ' ' an action of contract " and ' ' an action of tort" [u), while elsewhere (a.) it contrasts an action "founded on contract " with one " founded on tort." The practical upshot, if any, of these antiquarian remarks is that the courts of the present day are very free to consider the classifica- tion of causes of action without paying much regard to an attempt to classify the now obsolete forms of action, an attempt which was never very important or very successful ; an attempt which, as we may now think, was foredoomed to failure. .'is. 62, 5. 116 ; (r/) 15 & IG Viet. u. 76. (ii) 51 & 52 Vict. c. 4 (»•) 19 & 20 Vict. u. 108, s. 30. 65, 66. (s) 23 & 24 Vict. u. 126, s. 34. (a:) 51 & 52 Vict. u. 43, (t) 30 & 31 Vict. u. 142, s. 5. see p. 536, above. 571 APPENDIX B. I. TEADE DISPUTES ACT, 1906. (6 Edw. 7, c. 47.) -•/« Act to provide for the regulation of Trades Unions and Trade Disputes. [21st December, 1906.] Be it enacted by the King's most Excellent Majesty, by and witli tbe advice and consent of the Lords Spiritual and Temporal, and Commons, in this pi-esent Parliament assembled, and by the authority of the same, as follows : — 1. The following paragraph shall be added as a new paragraph Amend- after the first paragraph of section three of the Conspiracy and ^^iit m Protection of Property Act, 1875 : — spiraevin "An act done in pursuance of an agreement or combination by *^® "^^^ two or more persons shall, if done in contemplation or furtherance disputes of a trade dispute, not be actionable unless the act, if done without 38 & 39 any such agreement or combination, would be actionable." Vict. c. 86. 2. — (1.) It shall be lawful for one or more persons, acting on Peaceful their own behalf or on behalf of a trade union or of an individual picketing-, employer or firm in contemplation or furtherance of a trade dispute, to attend at or near a house or place where a person resides or works or carries on business or happens to be, if they so attend merely for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or abstain from working. (2.) Section seven of the Conspiracy and Protection of Property Act, 1875, is hereby repealed from " attending at or near " to the end of the section. 3. An act done by a person in contemplation or furtherance of a Removal trade dispute shall not be actionable on the ground only that it ''f liability 572 APPEKDIX B. for inter- fering with another person's busi- ness, &o. Prohibi- tion of actions of tort against trade unions. 34 & 35 Viet.c. 31. Short title and construc- tion. induces some other person to break a contract of emploj'ment or that it is an interference with the trade, business, or employment of some other person, or with the right of some other person tO' dispose of his caj)ital or his labour as he wills. 4. — (1.) An action against a trade union, whether of workmen or masters, or against any members or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act alleged to have been committed by or on behalf of the trade union, shall not be entertained by any court. (2.) Nothing in this section shall affect the liability of the trustees of a. trade union to be sued in the events provided for by the Trades Union Act, 1871, section nine, except in respect of any tortious act committed by or on behalf of the union in contemplation or in furtherance of a trade dispute. 5. — (1.) This Act may be cited as the Trade Disputes Act, 1906, and the Trade Union Acts, 1S71 and 1876, and this Act may be cited together as the Trade Union Acts, 1871 to 1906. (2.) In this Act the expression "trade union" has the same meaning as in the Trade Union Acts, 1871 and 1876, and shall include any combination as therein defined, notwithstanding that such combination may be the branch of a trade union. (3.) In this Act and in the Conspiracy and Protection of Property Act, 187o, the expression "trade dispute" means any dispute between employers and workmen, or between workmen and work- men, which is connected with the employment or non-employment or the terms of the employment, or with the conditions of labour, of any person, and the expression "workmen"' means all persons employed in trade or industrj', whether or not in the employment of the employer with whom --i trade dispute arises ; and, in section three of the last-mentioned Act, the words ' ' between employers and workmen " shall be repealed. II. EMPLOYEES' LIABILITY ACT, 18S0. (43 & 44 Vict. c. 42.) An Act to extend and regulate the Liahilitt/ of Employers to make Compensation for Personal Injuries suffered by Workmen in their service. [7tli September, 1880.] Be it enacted by tbe Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and <'ommons, in this present Parliament assembled, and li}- the authority of the same, as follows : — 1. "Where after the commencement of this Act personal injury is Aiuei)d- caused to a workman, meut of (1.) By reason of any defect (a) in the condition of the ways [h), works (c), machinery, or plant [d) connected with or used in the business of the employer (e) ; or law. (a) This mu.st be a defect show- ing some negligence of the em- plover: W«hh v. Whitelcii (18S8) •21 Q. B. Div. 371, 57 L. J. Q. B. .586. "Defect" means the ab- sence of fitness to secure safety in the operation for which the ma- chinery is used " : per Kennedy J., Stuiilon Y. Scrutlon (1893) 62 L. J. Q. B. at p. 408. (i) An object left sticking out over a way is not a defect in the condition of the way : IfcGifin v. Palmer's Shipbuilding Co. (1882) 10 Q. B. D. 5, 52 L.'J. Q. B. 25. " Defect in condition" includes un- fitness for safe use, whether from original fault of structure or want of repair : Heske v. Samiichon (1883) 12 Q. B. D. 30, 53 L. J. Q. B. 46 ; or insufficiency of any part of the plant for the particular purpose it is being used for : Oripps v. Jiidijc (1884) 13 Q. B. Div. 683, 53 L. J. Q. B. 517 ; but not mere negligent user: jniktts v. Watt [1892] 2 Q. B. 92, 61 L. J. Q. B. 540, C. A. Any space which workmen have to pass over may be a " way " : ib. As to sufficiency of evidence on this point, Faley v. Garnelt (1885) 16 Q. B. D. 52. A dangerous or im- proper collocation of things not de- fective in themselves may be a defect: Weblin v. Ballard (188(1, 17 Q. B. D. 122, 5.3 L. J. Q. B. 395 ; but see Thomas v. Qitarter- maiiie, 18 Q. B. Div. 685 ; and rja. whether If'eblin v. Ball ird be right, per Boweu L. J. at p. 699. (c) Leaving a wall which is undt-r repair insecure for want of proper shoring up may be a defect in the condition of works within this sub- section : Brannigan v. Bu/iiiiioii [1892] 1 Q. B. 344, 61 L. J. Q. B. 202. {d) "Plant " may include horse.'i, and vice in a horse is a " defect " : Yarmouth v. I'l-ance (1887) 19 Q. B. Div. 647, 57 L. J. Q. B. 7. As to an employer's right to recover over from a person who has supplied defective plant see Mowbray v. Merryu-eathcr [1895] 2 Q. B. 640, 65 L. J. Q. B. 50, C. A. (e) The words of this section do not apply to ways, works, &c. which are in course of construction , and not yet sufficiently complete to be used in the business : Hou-e v. Finch (1886) 17 Q. B. D. 187. 574 APPENDIX B. (2.) By reason of the negligence of any person in the service of the employer who has any superintendence entrusted to him (/) whilst in the exercise of such superintendence (-aid defect or negligence {p). 3. The amount of compensation recoverable under this Act shall not exceed such sum as may be found to be equivalent to the estimated earnings (5), during the three years preceding the injury, or a person in the same grade employed during those years in the like employment and in the district in which the workman is employed at the time of the injury. 4. An action for the recovery under this Act of compensation for an injurjf shall not be maintainable unless notice (r) that injury has been sustained is given within six weeks, and the action is commenced within six months from the occurrence of the accident causing the injury, or, in case of death, within twelve months from the time of death : Provided always, that in cu.-e of death, the want of such notice .shall be no bar to the maintenance of such action if the judge shall be of opinion that there was reasonable excuse for such want of notice. 5. There shall be deducted from any compensation awarded to any workman, or representatives of a workman, or persons claiming by, under, or through a workman in respect of anj' cause of action arising under this Act, any penalty or part of a penalty which may have been paid in pursuance of any other Act of Parliament to such workman, representatives, or persons in respect of the same caiiso of action ; and where an action has been brought under this ^\_ct by any workman, or the representatives of any woi'kman, or any persons claiming by, under, or through such workman, for compen- sation in respect of anjf cause of action arising under this Act, and pavnicnt has not previouslj' been made of any penalty or part of a penalty undt'r anj' other Act of Parliament in respect of the same cause of action, su.ch workman, representatives, or person shall not be entitled thereafter to receive any penalty or part of a pcnaltj' under any other Act of Parliament in respect of the same cause of action. {p) This sulj-sootion creates a new and specinl statutory defence, .see Jf-ehUiiY. Ballard [ISaij) 17 Q. B. D. 122, 12.5, 55 L. J. Q. B. 395. It does not enlarge by implication the right of action under scot. 1 : T/irimas v. Qtiartermainc, note (»), last pa^e. (q) Norl V. Sedruth Foimdrt/ Co. [1896] 1 Q. B. 453, 65 L. J. Q. B. 330. (r) This nqtioe niust be in writ- ing : Moi/le r. Jenkins [ISSl] S Q. B. D. 116, 51 L.J. Q. B. 112, and must contain in writing allthepfir- ticulars required by sect. 7 : Keen V. Millwall Dock Co. (1882) S Q. B Div. 482, 51 L. J. Q. B. 277. Where the work was done in the execution of any public duty or, authority, qu. whether the require- ment of notice is not abolished by the Public Authorities Protection Act, 1893, s. 2, sub-s. (c). EAIPLOYERS' LIABILITY ACT, 1880. 577 6. —(1.) Every action for recovery of compensation under this Act Trial of t^liaU be brought in a county court (?t), but may, upon the applica- actions, tion of either phxintiff or defendant, be removed into a superior court in like manner and upon the same conditions as an action commenced in a county court may by law be removed (s). (2.) Upon the trial of any such action in a county court before the judge ■without a jury one or more assessors may be appointed for the purpose of ascertaining the amount of compensation. (3.) For the purpose of regulating the conditions and mode of appointment and remuneration of such assessors, and all matters of procedure relating to their duties, and also for the purpose of consolidating any actions under this Act in u. county court, and otherwise preventing multiplicit}' of such actions, rules and regula- tions may be made, varied, and repealed from time to time in the same manner as rules and regulations for regulating the practice and procedure in other actions in county courts. "County court" shall, with respect to Scotland, mean the " Sherifi's Court," and shall, with respect to Ireland, mean the " CivU Bill Court." In Scotland any action under this Act may be removed to the Court of Session at the instance of either party, in the manner provided by, and subject to the conditions prescribed by, section nine of the Sheriiis Courts (Scotland) Act, 1877. 40 & 41 In Scotland the sheriff may conjoin actions arising out of the Vict. c. 50. same occurrence or cause of action, though at the instance of different parties and in respect of different injuries. 7. Notice in respect of an injury under this Act shall give the Mode of name and address of the person injured, and shall state in ordinarj"- servmg- language the cause of the injury (t) and the date at which it was sustained, and shall be served on the employer or, if there is more than one employer, upon one of such employers. The notice may be served by delivering the same to or at the residence or place of business of the person on whom it is to be served. (rr) Want of notice under s. 5 is Q. B. Div. 905, 54 L. J. Q. B. a statutory defence which must be 330. As to grounds for removal, see pleaded according to the County Munday v. Thames Ironworks Co. Court Rules : Conroy v. Feacock (1882) 10 Q. B. D. 59, 52 L. J. Q. [1897]2Q. B. 6, 66L.J.Q.B.425. B. 119. (s) Proceedings in the county court cannot be stayed under sect. {t) It need not state the cause of 39 of the County Courts Act, 1866. action with legal accuracy : Clark- That section applies only to actions son v. Masgrave (1882) 9 Q. B. D. •which might have been brought in 386, 51 L. J. Q. B. 625 ; cp. Stone the Superior Court : Reg. v. Judqe v. Hyde (1882) 9 Q. B. D. 76, 51 of City of London Court (1885) 14 L. J. Q. B. 452. P. — T. P I' injury. 578 APPENDIX B. Tlie notice may also be served by post by a registered letter addressed to the person on wliom it is to be served at his last known place of residence or place of business ; and, if served by post, shall be deemed to have been served at the time when a letter containing the same would be delivered in the ordinary course of post ; and, in proving the service of such notice, it shall be sufficient to prove that the notice was properly addressed and registered. Where the employer is a body of persons corporate or uninoor- porate the notice shall be served by delivering the same at or by sending it by post in a registered letter addressed to the office, or, if there be more than one office, any one of the offices of such body. A notice under this section shall not be deemed invalid by reason of any defect or inaccuracy (m) therein, unless the judge who tries the action arising from the injury mentioned in the notice shall be of opinion that the defendant in the action is prejudiced in his defence by such defect or inaccuracy, and that the defect or inaccuracy was for the purpose of misleading. Defini- ^- ^°^ the purposes of this Act, unless the context otherwise tions. requires, — ■ The expression "person who has superintendence entrusted to^ him " means a person whose sole or principal duty is that of superintendence, and who is not ordinarily engaged in manual labour [x) : The expression " employer "includes a body of persons corporate or unincorporate : 38 & 39 The expression "workman" means a railway servant and any Vict. c. 90. person to whom the Employers and Workmen Act, 1875, applies (y). (u) Stone \. Syde (li,&1) 9 Q. B. engaged in manuallabour, whether D. 76,51 L. J. Q. B. 452 ; Carter v. under the age of twenty-one years Drtjsdale, 12 Q. B. D. 91. or above that age, haa entered into (x) Shaffers v. General Steam or works under a contract with an Xaeigation Co. (1883) 10 Q. B. D. eisr^lojeT \%eBFd:patrick\. Eoans^ 356,52 L. J. Q. B. 260; cp. and C(i.[1902] IK. B. 505, 71 L. J.K.B. dist. Osborne y. Jackson [\%iZ) \\ 302, C. A.], whether the contract be Q. B. D. 619 ; Ketlard v. EooJce made before or after the passing of (1888) 21 Q. B. Div. 367, 57 L. J. this Act, be express or implied, Q. B. 599. The diiJerence between oral or in writing, and be a contract a foreman who sometimes lends a of service or a contract personally hand and u, workman who some- to execute any work or labour " : 38 times gives directions is in itself, & 39 Vict. u. 90, s. 10. This defi- of course, a matter of fact. nition does not include an omnibus (•)/) ' ' Any person [not being a conductor : Morgan v. London domestic or menial servant] who, General Omnibus Co. (1884) 13 Q. being a labourer, servant in hus- B. Div. 832, 53 L. J. Q. B. 352. baudry, journeyman, artificer, han- Nor the driver of a tramcar : Cook dicraftsman, miner, or otherwise v. JV. Metrop. Tramways Co. (1887) employees' liability act, 1880. 679 9. This Act shall not come into operation until the first day of Com- January, one thousand eight hundred and eighty-one, -which date is in this Act referred to as the commenoemont of this Act. 10. This Act may be cited as the Employers' Liability Act, 1880, and shall continue in force till the thirty-first daj' of December one thousand eight hundred and eighty-seven, and to the end of the then next session of Parliament, and no longer, unless Parliament shall otherwise determine, and all actions commenced under this Act before that period shall be continued as if the said Act had not expired. [The Act has been continued from time to time since 1887. Many proposals for amendment of it have been made, but none has become law. The Workmen's Compensation Act, 1897, did not repeal or amend this Act, but in practice almost superseded its operation as regards the employments to ■which the later Act applied. Decisions upon the Act of 1880 have become infrequent and will probably be stiU fewer since the extension of the Work- men's Compensation Act in 1906.] menoe- ment of Act. Short title. 18 Q. B. D. 683, 56 L. J. Q. B. 309. Nor a grocer's assistant in a shop, though he makes up and car- ries parcels in the course of his employment : Bound v. Lawrence [1891] 1 Q. B. 226, 61 L. J. M. C. 21, C. A. (on the Employers and Workmen Act). Nor a potman in a public-house, whose duties are substantially of a menial or domestic nature : Pearce v. Zansdowne (1892) 62 L. J. Q. B. 441. It does include a driver of carts, &o., who also has to load and unload the goods car- ried : Yarmouth v. France (1887) 19 Q. B. Div. 647, 67 L. J. Q. B. 7. The Act of 1875 did not apply tc seamen or apprentices to the sea service, sect. 13. By 43 & 44 "Vict, c. 16, s. 1 1, it was extended to them, but not so as to affect the definition of ' ' workman ' ' in other Acts by reference to the persons to whom the Act of 1875 applies. Seamen, therefore, are not within the Em- ployers' Liability Act. A man employed on a sailing vessel in navigable waters such as the estuary of the Thames may be a seaman without literally going to sea: Corbett v. Pearce [1904] 2 K. B. 422, 73 L. J. K. B. 885. P P 580 APPENDIX C. STATUTES OP LIMITATION. An Acte for lymytacion of Accions, mid for avoyding of Suits in Latve. (21 James I. c. 16.) S. 3. And be it further enacted, that all aooions of trespaa quare clauaum freyil, all accions of trespas, detirine, acoion sur trover and replevyn for taking away of goods and cattell, all accions of accompt and uppon the case, other than such acoompts as concerne the trade of merchandize betweene marchant and marchant, their factors or servants, all accions of debt grounded upon any lending or contract without speoialtie, all accions for arrerages of rents, and all accions of assault menace battery wounding and imprisonment, or any of them which shalbe sued or brought at any tyme after the end of this present session of parliament shalbe commenced and sued within the tyme and lymytacion hereafter expressed, and not after (that is to saie) the said accions upon the case (other then for slander), and the said accions for accompt, and the said accions for trespas debt detinue and replevin for goods or cattell, and the said aocion of trespas, quare dauaum /regit, within three yeares next after the end of this present session of parliament, or within sixe yeares next after the cause of such accion or suite, and not after ; and the said accions of trespas of assault battery wounding imprisonment, or any of them, within one yeare next after the end of this present session of parliament, or within foure yeares next after the cause of such accions or suite, and not after ; and the said accions uppon the case for words, within one yeare after the end of this present session of parliament, or within two yeares next after the words spoken, and not after. . . . S. 7. Provided neverthelesse, and be it further enacted, that if any person or persons that is or shalbe intituled to any such aocion STATUTES OF LIMITATION. -581 of ti'espas detinue aooion sur trover replevin accions of accompts accions of debt, accions of trespas for assault menace battery wounding or imprisonment, accions uppon the case for words, bee or shalbe at the tyme of any such cause of accion given or accrued, fallen or come within the age of tweutie-one yeares, feme covert, non composs mentis, imprisoned or beyond the seas, that then such person or persons shalbe at libertie to bring the same accions, soe as they take the same within such times as are before lymitted, after their coming to or being of full age, discovert, of sane memory, at large and retorned from beyond the seas, as other persons having no such impediment should have done. An Act for the Amendment of the Law and the letter Advancement of Justice. (4 & 5 Anne, c. 3) (a). S. 19. And be it further enacted, by the authority aforesaid, that if any person or persons against whom there is or shall be any such cause of suit or action for seamen's wages, or against whom there shall be any cause of action of trespass, detinue, action sur trover or replevin for taking away goods or cattle, or of action of account, or upon the case, or of debt grounded upon any lending or contract, without speciality of debt for arrearages of rent, or assault, menace, battery, wounding and imprisonment, or any of them, be or shall be at the time of any such cause of suit or action, given or accrued, fallen or come beyond the seas, that then such person or persons, who is or shall be entitled to any such suit or action, shall be at liberty to bring the said actions against such person or persons after their return from beyond the seas (so as they take the same after their return from beyond the seas), within such times as are respectively limited for the bringing of the said actions before by this Act, and by the said other Act made in the one and twentieth year of the reign of JEing James the First. (a) So in the Statutes of the Realm and Revised Statutes; u. 16 in other editions. 582 APPENDIX C. An Act to amend the Laws of England and Ireland affecting Trade and Commerce. (Mercantile Law Amendment Act, 1856, 19 & 20 Vict. 0. 97, s. 12.) No part of the United Kingdom of Great Britain and Ireland, nor the Islands of Man, Guernsey, Jersey, Alderney, and Sark, nor any islands adjacent to any of them, being part of the dominions of Her Majesty, shall he deemed to he beyond seas -within the meaning of the Act for the fourth and fifth years of the reign of Queen Anne, chapter sixteen (i), or of this Act. (i) This is chap. 3 in the Statutes of the Eealm. 583 APPENDIX 1). COXTEIBI'TOEY NEGLIGENCE IN EOMAN LAW. OoxTRiBTTTORY negligence, and the allied topics considered in tie text, did not escape the Eoman lawyers, but they are treated only m an incidental laanner and no complete theory is worked out. The passages bearing on the point in the Digest " Ad legem AquiUam" (ix. 2) are the following: — L. 9 § 4 (Ulpian). Sed si per lusum iaoulantibus servus fuerit occisus, Aquiliae locus est : sed si cum ahi in campo iacularentur servus per eum locum transient, Aquilia cessat, quia non debuit per campum iaculatorium iter intempestive facere. Qui tamen data opera in eum iaoulatus est, utique Aquilia tenebitur. It is not clear whether the words "data opera " are intended to cover the case of reckless persistence in the javelin-throwing after the danger to the slave who has put himself in the way is manifest. There can be no doubt however that Ulpian would have considered such conduct equivalent to dolus. With this explanation, the result coincides with the English rule. L. 11, pr. (Ulpian). Item Mela scribit, ti, cum pila quidam luderent, vehementius quis pila percussa in tonsoris manus earn deiecerit et sic servi quem tonsor habebat [«/. radebat] gula sit praecisa adiecto cultello : in quocumque eorum culpa sit, eum lege Aquilia teneri. Proculus in tonsore esse culpam : et same si ibi toudebat ubi ex consuetudine ludebatur vel ubi transitus frequens erat, est quod ei imputetur ; quamvis neo illud male dioatur, si in loco periculoso sellam habenti tonsori se quis commiserit, ipsum de se queri debere. Mela seems to have thought it a question of fact, to be determined hj closer examination of the circumstances, whether the barber, or the player, or both, were in culpa. Probably the question he mainly considered was the proper form of action. Proculus held the barber only to be liable. Ulpian agrees that there is negligence in his shaving a customer in a place exposed to the accident of a stray 584 APPENDIX D. ball, if the evidence shows that he did so with notice of the danger; but he adds that the customer, if he in turn choose to come and be shaved in a dangerous place, has only his own want of care to thank for his hurt. To obtain this result it is assumed that the danger is equally obvious to the barber and the customer ; it is likewise expressly assumed, as a condition of imputing culpa to either of them, that the game is carried on in an accustomed and convenient place. Given those facts, English law would arrive at the same result in a slightly different form. The players would not be bound to anticipate the rashness of the barber, and the barber, though bound to provide reasonable accommodation for his customers, would not be bound to warn them against an external source of risk as obvious to them as to himself. It would therefore probably be held that there was no evidence of negligence at all as against either the players or the barber. If the game, on the other hand, were not being carried on in a lawful and convenient place, not only the player who struck the ball would be liable, but probably all concerned in the game. L. 28 (Paulus). Pr. (A man who makes pitfalls in a highway is liable under the lex Aquilia for consequent damage : otherwise if in an accustomed place). § 1. Haeo tamen actio ex causa danda est, id est si neque denuntiatum est neque scierit aut providere potuerit : et multa huiusmodi deprehenduntur, quibus summovetur petitor, si evitare periculum poterat. This comes very near the language of our own authorities. L. 31 (Paulus). Si putator ex arbore ramum cum deiceret vel machinarius hominem praetereuntem occidit, ita tenetur si is in publicum deoidat nee ille proolamavit, ut casus eius evitari possit. Sed Mucins etiam dixit, si in private idem accidisset, posse de culpa agi : culpam autem esse, quod cum a diligente provideri poterit(a) non esset provisum, aut turn denuntiatum esset cum periculum evitari non possit. Cp. Blackst. ( 'omm. iv. 192, siqjru. p. 456. Here a. person who is hurt in spite of the warning is not necessarily negligent; as if for example he is deaf and cannot hear the warning ; but this is immaterial ; for the ground of the other not being liable is that he has fulfilled the duty of a prudent man. The words "vel machinarius'' spoil the sentence; they are too much or too little. One would expect "vel machinarius ex aedibus lapidem," or the like. The passage as it stands can hardly be as (o) Sic MS. Mor., "which Momm- Latinity would require potiiis.iet. aen's text reproduces, but it is not "Possit" ad Jin. should obviously Latin. Foiuerit is probably the be " possft," and is so corrected in true reading, though Augustan other edd. CONTRIBUTORY NEGLIGENCE IN ROMAN LAW. Paulus wrote it (thougli it is likely enough to be as Tribonian edited it), and it seems more probable that " vel maohinarius " is an interpolation than that other words have been omitted. Elsewhere Paulus says, Sent. Eec. I. 15 § 3 : Ei qui irritatu suo feram bestiam vel quamcunque aliam quadrupedem in se prori- taverit, itaque damnum ceperit [so Huschke : vuhj. " eaque damnum dederit," which does not seem necessarily wrong], neque in eius dominum. neque in custodem actio datur. This is a case, according to English terminology, not of contribu- tory negligence, but of no evidence of negligence in the defendant, the plaintiffl's damages being due wholly to his own act. :85 586 DEAFT OF A CIVIL WRONGS BILL. Prepaeed for the Government of India. PEEFATOEY NOTE. Towards the end of 1882 I was instructed by the Govern- ment of India to prepare a draft Bill to codifj' the law of Civil Wrongs, or so much of it as might appear to be of general practical importance in British India. The draft was constructed jjarj passu with the writing of the present book, or very nearly so, and it was provisionally completed in 1886 ; it is now published with the consent of the Secretary of State for India. The text is given as it then stood, but the notes which accompanied it are considerably abridged. I have inserted in square brackets a few additional references and remarks, chiefly made necessary by important decisions given since the draft was completed. The Government of India has not finally decided whether it is desirable to codify the law on the subject at present. Sir Henry Maine thought many years ago that the time was ripe for it (a) ; but {a} Minute of 17 July, 1879, on legislate, the courts of justice Trill Indian Codification, in "Minutes have to legislate ; for, indeed, legis- hy Sir H. S. Maine," Calcutta, lation is a process which perpetually 1890, p. 224 . " Civil wrongs are goes on through some organ or suffered every day in India, and another wherever there is a civilized though men's ideas on the quantity government, and which cannot be of injury they have received may stopped. But legislation by Indian be vague, they are quite suflieiently judges has all the drawbacks of conscious of being wronged some- judicial legislation elsewhere, and how to invite the jurisdiction of a great many more. As in other courts of justice. The result is countries, it is legislation by a that, if the legislature does not legislature which, from the nature PKEFATOKY NOTE. 587 I understand that a considerable majority of the opinions which have been collected from judicial and other officers in India are unfavourable to action. It may be proper to explain that the di-aft as it stands is not the mere production of an English lawyer un- acquainted with India, but represents a certain amount of consideration and discussion by specially competent critics. In the preparation of the Bill I had, in par- ticular, the advantage of constant criticism from Sir A. Macpherson and Sir WiUiam Markby, who (I need hardly say) were excellently qualified both by their English learning and by their Indian judicial experience ; and, without assuming to make either of those learned persons at all answerable for my work, I ought to say that their criticism was the direct cause of material improvement in several points. A careful memorandum on the earlier parts of the draft was prepared by Mr. (since Justice) Syed Mahmud, and to this also I am indebted for good suggestions. Further, I endeavoured, so far as I had opportunity in England, to procui-e criticism and suggestions from Indian judicial and executive officers, with reference to the possible working of a code of Civil Wrongs in rural districts and in the non-regulation Provinces. Although such opportunities were limited, I thus had the benefit of acute and valuable remarks of which the substance was embodied in the draft or in the notes to it. The letter of my instructions would have justified me in merely stating in the form of of the case, ia debarred from run, legislation by foreigners, who steadily keeping in view the stan- are under the thraldom of prece- dard of general expediency. As dents and analogie-i belonging to in other countries, it is haphazard, a foreign law, developed thousands inordinately dilatory, and inordi- of miles away, under a different nately expensive, the cost of it climate, and for a different civiliza- f ailing almost exclusively on the tion. I look with dismay, therefore, litigants. But in India judicial on the indefinite postponement of a legislation is, besides, in the long codified law of tort for India." 588 INDIAN CIVIL WEONGS BILL. a declaratory Act what I conceived to be the English law, and leaving all questions of Indian law and usage to be dealt with separately by the Government of India ; but such a course did not appear to be reasonably practicable. The reader will therefore bear in mind that in certain places the draft bill deliberately departs from existing English law. Special attention is called to all such departures, and the reasons for them indicated. [It is hardly needful to state that, as to many of the clauses, it must not be assumed that they correspond with the common law as it stands in 1907.] TABLE OF CONTENTS. SECT. FreHminarij. 1. Short title. Extent. 2. Saving of rights, remedies and enactments independent of Aot. .■?. Repeal of enactments. 4. Interpretation clause. 6. Arrangement of Act. GENERAL PART. Chaptee I. Grucral Frinciphs of Llabiltfi/. 6. Wrongs and wrong-doers. 7. Saving of lawful exceptions independent of Act. 8. Liability for wilful harm and unauthorized dealing with property. 9. Liability for harm not wilfully done by breach or omission or neglect of legal duty, or by negligence. 10. Liability for consequences. 1 1 . Survival of liabilities and rights to representatives. Liability for wrong unaffected by the same fact amounting to an offence. Liability for wrongs of agent. Liability for wrongs of servant. 12 16. Joint wrongs. Chaptee II. SECT. General Exceptions. 16. Protection of judicial officers executing judicial orders. 17. Protection of executive officers and persons executing legal duties. 18. Protection of quasi-judicial acts. 19. Protection of acts of lawful authority. 20. Protection of acts done under authority confeired by law. 21. Accidental harm without negligence. 22. Harm incident to exercise of others' common rights. 23. Harm from voluntary ex- posure to rLxk. 24. Acts done with consent. 25. Act done on emergency for a person's benefit without con- sent. 26. Acts causing slight harm. 27. Private defence. SPECIAL PART. Chaptee III. Assault and False Imprisonment. 28. Assault. 29. False imprisonment. 30. Exemplary damages. TABLE OF CONTENTS, 589 Chaptek IV. SECT. Defamation. 31. Saving and exclusion of Penal Code as to defamation. Saving of criminal jurisdiction on other grounds. 32. Defamation defined. 33. Construction of words com- plained of as defamatory. 34. Responsibility for statements repeated on hearsay. 35. Fair criticism is not defama- tion. 36. Fair public reports are not defamation. 37. Exceptions on grounds of public policy — (1) Truth in substance. (2) Statements in course of judicial proceedings or legislative debate. 38. (1) Statements on privileged occasions. (2) Immunity of statements in good faith on privileged occasions. Chapter V. JVrongs against Good Faith. 39. Deceit. 40. Deceit defined. 41. Slander of title. 42. Malicious prosecution. 43. Abuse of process of Court. Chaptee VI. Wrongs to Froperty. 44. Trespass defined. 45. Protection of apparent right to possession. 46. Trespass by possessor for limited purpose exceeding his right. 47. Mistake does not generally excuse trespass. Immunity of certain minis- terial actions. 48. Mere claim of right cannot be trespass. 49. Licence defined. 50. Effect of licence. 51. Time of grace after revocation of licence. 52. True owner's right of re- capture. Chapter VII. SECT. Of Nuisance. 53. Special damage from public nuisance. 54. Liability for private nuisance. 55. Private nuisance defined. 56. Pre-existence of nuisance im- material. 57. Same facts may be distinct nuisance to several persons. 58. Co-existence of other nuisances no defence. 59. When owner out of possession can sue for nuisances. 60. What persons are liable for a nuisance. 61. Concurrent civil and criminal jurisdiction in case of special damage from public nuisance. Chaptek VIII. Of Negligence. 62. Negligence and diligence. 63. Evidence of negligence. 64. Contributory negligence. 65. Collateral negligence imma- terial. 66. Action under stress of danger caused by another's negli- gence. 67. Right to rely on others' dili- gence, and take lesser risk to avoid greater. 68. Custody of dangerous things. 69. Liability of occupiers of pro- perty. 70. Position of licensees using premises. Chaptee IX. Of Damages for Civil Wrongs. 71. Measure of damages in general. 72. Damages for injury to specific property. 73. Aggravation or mitigation of damages. The Schedule. 590 INDIAN CIVIL WEONGS BILL. A Bill to define and amend certain parts of the Law of Civil Wrongs. Preliminary. Short 1. This Act may be cited as the CiTil "Wrongs Act, 18 ; and Com- It shall come into force on the day of 18 . ment. It extends to the whole of British India. Extent. Saving of 2. This Act does not affect any legal right or remedy, remedies '^^ ^^J enactment creating or limiting rights or remedies, and enact- i^rhich is not abrogated or repealed by this Act or incon- ments m- _ ° -^ _ _ dependent sistent with any express provision of it. of Act. Repeal of 3. The Acts mentioned in the schedule hereto are ments. hereby repealed to the extent specified in that schedule. Interpre- 4. In this Act, unless there be something repugnant in tation .. 1 . J I J clause. the subject or context — "Court" includes every Court, judge, and magistrate and officer, having jurisdiction to hear and determine the suit or matter in question : " Grood faith " implies the use of due care and atten- tion : " Grievous hurt " means any of the kinds of hurt XLV. of which are so designated in the Indian Penal Code, section 320. Arrange- 5. This Act is arranged as follows : — ment of ^''*- [See Table of Contents prefixed. In the original draft this clause was left blank pending further revision.] GENERAL PART. GENEEAL PAET. 591 Chapter I. G-ENERAL Principles of Liability. 6. Every one is a wrong-doer who does or omits to do Wrongs anything whereof the doing or omission respectively is by wrong- this Act declared to he a wrong. Any person thereby becoming entitled to a legal remedy against the wrong-doer is said to be wronged by him. 7. The liabUities declared by this Act are subiect to ^fy^s , •' ■' of lawful all lawful grounds of exception, justification and excuse, exceptions whether expressed in this Act or not, except so far as they aent of are varied by this Act or inconsistent with its terms («). '• 8. Every one commits a wrong who harms another — Liabiiity . for wilful (a) by an act intended to cause harm {h) : harm and (b) by intermeddling without authority with anything ized deal-' which belongs to that other (c) . ^°gp^itj_ Illustration. A. finds a watch which B. has lost, and in good faith, and intending the true owner's benefit, attempts to clean it and put it in order. In doing so A. spoils the watch. A. has wronged B. 9. Every one commits a wrong (d) who harms LiabiUty , for harm another — not wil- (a) by any act forbidden by law ; or f^^y done («) This appears, in an Act not By harm I mean what English law intended for a complete code of the books conamonly call actual damage, subject, a desirable precaution. A {c) Exceptions are dealt with similar clause was inserted in the under "Wrongs to Property. (Clause English draft Criminal Code by the 47, below.) revising Commission. (d) Eor the general principles see (b) This clause is iuclusiTe, not Fergusson v. Earl of Kinnoul, 9 exclusive: the specific definitions CI. & F. 251; Mersey Docks Trus- of, e.^., assault, trespass, and def a- tees v. Gibbs, L. R. 1 H. L. 93 ; mation stand on their own ground. Beaven v. Pender, 11 Q. B. D. 503. 592 INDIAN CIVIL WRONGS BILL. or omis- (b) by Omitting to perform, or insufSoiently or impro- neo-lect of perly performing, any general duty imposed on lelalduty, ^^ ^ j or by neg- *' ' ligenoe. (g) by Want of due care and caution in his acts or conduct. In the absence of any more specific rule applicable to the case, due care and caution means such care and caution as a man of ordinary sense, knowledge and prudence may be expected to use in the like case, including, in the case of acts and undertakings requiring special skill, such care and skill as may be expected of a person reasonably com- petent in the matter in hand. Exception. — "Where the conduct of a matter requiring special skill is undertaken of necessity [or " under circum- stances of evident necessity "], and to avoid a greater risk, the person undertaking it is deemed to use due care and caution if he makes a reasonable use of such skill as he actually possesses. Illmtrations. 1. B., a zamindiir, transfers a portion of his zamindari to C, in accord- ance with the provisions of the regulations in force in the province, by which regulation, registration and sub-assessment are needful to complete the validity of the transfer (e). A., the local collector, refuses to register and sub-assess the portion so transferred. A. has wronged C. 2 . A. , not being a builder, erects a scaffolding for the purpose of repairing his house. It is unskilfully constructed, and by reason thereof part of it falls upon B., who is passing on the highway, and hurts him. A. has wronged B., though A. may have put up a scaffolding as well as he could. 3. A. goes out driving with a horse and carriage. A. is bound to drive with such skill as, according to common experience, is expected of a coachman. 4. A. goes out driving, and takes with him a friend, B., who is not accustomed to driving. A. is disabled by a sunstroke. No skilled help being at hand, B. takes the reins and drives. In deciding whether under these circumstances B. acts with due care and caution, regard is to be had to B.'s want of skill. {e) Ponmisdmy Thar v. Collector of Madura, 3 Mad. H. C. 63. GENERAL PART. -jf*'* 5. A., an engineer not skilled in nayigation, is a passenger on a small river steamer. The only competent sailor on board is disabled by an accident, and A., at the request of other passengers, takes charge of the steamer. In deciding whether, under these circumstances, A. acts with due care and caution, regard is to be had to the actual extent of his knowledge and skill. 6. A. and B. are out shooting. A tiger attacks them and carries off B. No other help being at hand, A., who is an indifferent shot, iires at the tiger and kills it, but also wounds B. A. has not wronged B., though a better shot might probably have killed the tiger without wounding [B. 10. A person is deemed to have harmed any one who Liability TOT POUSG* suffers harm by reason of an act or omission of the first- quences. mentioned person (/) , provided that the harm is — (a) an ordinary consequence of that act or omission, whether intended by the person so acting or omitting or not ; or (b) a consequence thereof which that person foresaw, or with due care and caution might have fore- seen ((/) ; a wrong-doer is liable for all such consequences of his wrongful act or omission as in this section mentioned. Illustrations. 1. A. unlawfully throws a stone at B., which misses B. and hits and breaks C.'s water jar. A. has wronged C. 2. A. lies in wait for B., intending to assault and beat him as he goes home in the evening. Mistaking 0. for B. in the dusk, A. assaults C. A. has wronged 0. 3. A. unlawfully diverts a stream for the purpose of depriving B.'s growing crops of their irrigation. The diversion of the stream harms C.'p crops as well as B.'s by drought, and the water floods a piece of D.'s land and spoils the crops growing thereon. A. has wronged both C. and D. 4. A. and C, who is B.'s servant, quarrel in the street. A. draws a (/) [As to the relation of the there may be consequences, not period of limitation to the cause of r^^l;:JttlT,:rv^^- action, see Act XV. of 187/, s. 24, cage, a commonly prudent man in and Barley Main Colliery Co. v. his position ought to foresee. Illus Mitchell, 11 App. Ca. 127.] tt^T'''' ^ ""'^ ^ ^""^ """^^^ °^ ^'"'^ {g) This is not a repetition : for P. — T. kind. Q Q J94 INDIAN CIVIL WRONGS BILL. knife and threatens C. witli it. C. runs hastily into B.'s house for pro- tection, and in so doing strikes and upsets a jar of ghee belonging to B., so that the jar is broken and the ghee lost. A. has wronged B. [h) . 5. A. "whips a horse which B. is riding. The horse runs away with B., and knocks down C, who falls against D.'s window and breaks it. A. has wronged both C. and D. (i). 6. A. leaves his horse and cart unattended in the street of a town. B. and C. are children playing in the street. B. oKmbs into the cart ; as he is doing so C. causes the horse to move on, and B. is thereby thrown down under the wheel of the cart, which passes over him and injures him. A. has wronged B. {/c). 7. A. leaves a loaded gun in a place where he knows that children are accustomed to play. B. and C. come with other children to play there ; B. takes up the gun and points it in sport at C. The gun goes oflE and wounds C. A. has wronged C. {I). 8. A. unlawfully causes a stream of water to spoutupin a pubUc road. B. is driving his horse and carriage along the road : the horse takes fright at the water and swerves to the other side, whereby the horse and carriage fall into a cutting by the roadside which has been improperly left open by C, and B. is wounded and the horse and carriage damaged. A. has wronged B. (»i). 9. The other facts being as in the last illustration, some of the water runs into the cutting, and wets and damages some clothes belonging to D., who is at work in an adjoining field and has deposited them there. A. has not wronged D. (n). 10. A. leaves his gate, opening on a highway, insufSciently fastened ; A.'s horse gets through the gate and kicks B., who is lawfully on the highway. If the horse was not to A.'s knowledge a vicious one, A. has not wronged B. (o). 11. A. is the owner of a, field in which he keeps horses. A. neglects the repair of the gate of this field, whereby a horse breaks down the gate, strays into B.'s adjoining field, and kicks and injures a horse of B.'s which is there kept. A. has wronged B. (p). [h) Vandenhiirgh v. Truax, i Lynch v. Nurdin. Denio (N. T.), 464, with change of {m) Sill v. Xew River Co., 9 local colouring. B. & S. 303. The distinction (i) Illidge v. Goodwin, Lynch v. between this and the next case is Nurdin, cited in Clark v. ('hainbers, possibly too fine. 3 Q. B. D. 331. The Squib case («) Cf. Sharp v. Powell, L. R. 7 {Scott V. Shepherd) seems hardly C. P. 253. But illustrations 8 worth adding to these. and 9 would perhaps be better (k) Lynch v. Nurdin, 1 Q. B. 29. omitted. Mangan v. Atterton, L. R. 1 Ex. (o) Cox\. Burbidge,\ZG.'B.'S.S. 239, can hardly be supported 430. against this. (p) Lee v. Uiley, 18 C. B. N. S. [1) Case put by Denman 0. J. in 722. GENERAL PART. 3();'5 12. A. is driving an ox through the street of a town with due care and caution. The ox goes oflf the road into B.'s shop and does damage to B.'s goods. The ox may be liable to be impounded, but B. cannot sue A. for compensation, for, although the damage is the natural conse- quence of the ox straying', A. has done no wrong [q). 11. Subject to the provisions of this Act and to the law of limitation every right of action under this Act is avail- able against and for the executors, administrators and representatives of the wrong-doer and the person wronged respectively (r). 12. For the purposes of this Act, it is immaterial whether the facts constituting a wrong do or do not amount to an offence (s). Illust ration K. 1. A. being at work on a building, by carelessness lets fall a block of stone on B., who is lawfully passing by, and B. is thereby so injured that he shortly afterwards dies. A. has wronged B., and B.'s executors can sue A., though A.'s act may be an offence under sect. 304a of the Penal Code. 2. A. wrongfully takes B.'s cow out of B.'s field and detains it under pretence that he bought it at an auction-sale in execution of a decree. B. can sue A., though A.'s act may be an offence under sect. 378 of the Penal Code. Survival of liabili- ties and rights to represen- tatives. Liability for wrong unaffected by the same fact amount- ing to an offence. [q) TUhtt V. Ward, 10 Q. B. D. 17. But yM«(/ whether desirable to adoptthisfor India. An experienced judicial ofBeer (Punjab) regards it as ' ' very queer law and of doubtful equity." As to impounding, Ben. Act iV. of 1866, s. 71 (and other local Acts). ()■) This is intended to supersede Acts XII. and XIII. of 1855, and if adopted, will also involve some slisrht amendment of Act XV. of 1877 (Limitation). The maxim ' ' actio personalis moritur cum per- sona," rests on no intelligible principle, and even in England is more than half falsified by par- ticular exceptions. I submit (after Bentham) that there is no place for it in a rational and simplified code. I do not overlook the consequence that in some cases persons who would have a right to compensation under Act XIII. of 1855 would, under this clause, have none. But I think that the rights created by Lord Campbell's Act, andAct XIII. of 1855, which copies it, are anoma- lous and objectionable, so far as they produce results different from those which would be more simply produced by abolishing the common law maxim. (.s) The old rule, or supposed rule, as to the civil remedy being " merged in the felony," is all but exploded in England, and the H. C. of Calcutta, as long ago as 1866, decided against its adoption in India : see Ilhisi. 2 ; Shama Churn Base V. Bhola Nath Dutt, 6 W. R. (Civil Ref.) 9. Cf. Viranna v. Nagmjyah, 1 L. R. 3 Mad. 6, following the H. q2 0. of Calcutta. S96 INDIAN CIVIL WRONGS BILL. Liability 13. Every one is liable for wrongs done by his authority of ao-ent" 0^ done on his behalf and ratified by him (t) . Liability 14. H ) An employer or master is liable for the wrongs for wroDg;s of servant, of his servant, whether authorised or ratified by him or not, if and so far as they are committed in the course of the servant's employment, and for the employer's or master's purposes. (2) The master of a person engaged on any work is that person who has legal authority to control the per- formance of that work, and is not himself subject to any similar authority in respect of the same work. Exception. 1 [x). — Where the person wronged and the wrong-doer are servants of the same master, and the wrong is done in the course of one and the same employ- ment on which they are at the same time engaged as such servants, the wrong-doer not being in that employment set over the person wronged, the master is not liable unless he knew the wrong-doer to be incompetent for that employment, or employed him without using reasonable care to ascertain his competence. E.rj^Ia nation [y). — For the purposes of the foregoing exception the whole and every part of the ordinary service of a household is deemed to be one and the same employ- ment. (t) See Girish Chundcr Das v. is only existing law. [Perhaps this Giltanders, Arbuthnot J Co., 2 exception would be better dealt B. L. R. 140, O. C. ; Rani Sham- with in a separate Act.] shoondri Delia v. Diibhii JJiindul, 2 (j/) This seems needful : other- B. L. E. 227, A. C. Both these wise, as suggested in some of the cases seem to turn on a question English authorities, if the stable- of fact whether under all the cir- boy leaves a paU about, and the cumstances the defendant had coachman breaks his shin over it in authorized or ratified the act the dark, the coachman shall have complained of. an action against the master, &c., (.r) This is a large alteration of which would be inconvenient. The English law, and intended so to be. real question is, what risks is The Employers' Liability Act of it, on the whole, reasonable to 1880 is an awkward and intricate expect the servant to take as being compromise, and evidently will not naturally incidental to his employ- serve as a model. The final proviso ment.'' GENERAL PART. 597 Exception 2 (s). — A person who is compelled by law to iTse the services of another person, in the choice of whom he has no discretion, is not liahle for wrong committed by that other in the course of such service. lUustrationn. 1. A. directs his servant B. to put a heap of rubbish in his garden, near the boundary, but so as not to interfere with hia neighbour C. B. •executes A.'s order, and some of the rubbish falls over into C.'s garden. A. has wronged 0. [a). 2. A. sends out his servant B. with a carriage and horse. B. over- takes C.'s carriage and horse on the road, and strikes C.'s horse in order to make C.'s driver draw aside and let him pass. A. has wronged C. 3. A. sends out his servant B. with a. carriage and horse. B. meet.i C.'s carriage and horse, and strikes C.'s horse in order to bring C.'s driver, with whom he has a private quarrel, into trouble. A. has not wronged C. 4. A. sends out his servant B. with a cart on business errands. In the course of doing A.'s busine.'-s, B. takes a longer way for a purpose of his own, and by careless driving runs over C. After finishing his business, and as he is driving home, B. picks up a friend D. ; D. persuades B. to drive him in another direction, and by careless driving B. runs over E. A. is liable to C, but he is not liable to E. (fi). 5. N., a passenger by the X. Company's railway, books for Allahabad, and takes his seat in a train which is in fact going thither. A. is a servant of the company whose duty is (among other things) to see that passengers do not get into wrong trains or carriages. A., erroneously supposing N. to have got into a train which is not going to Allahabad, pulls him out of the carriage as the train is starting, whereby N. falls on the platform and is injured. The X. Company has wronged N., «ven if A.'s instructions were that he must not use force to remove passengers from a wrong carriage [c). [6. B. is A.'s servant ; part of his duty is to light the fire in a certain room in A.'s house. B. finds difficulty in lighting the fire from the chimney being foul, and makes a fire of straw under the chimney in order (z) Compulsory pilotage is the deviation was not such that he had eJiief I think the only — case to ceased to be in the course of his which this exception applies. employment as A.'s servant when he ran over C." ; cf. Whatman v. (a) Gregory v. Iiper, 9 B. & C. p^^^f,,,,^ l. r. 3 c. P. 422 ; though 591 [33 K. K. 268J. ^j^jj, -^yguld involve some innova- (4) Slorey V. AsJiton, L. R. 4 tion. I think the distinctions in Q B. 47c, and cases there cited. I the English cases are too fine, should prefer to say : " A. is not (c) Bayley v. Manchester, SheffieU liable to E., and he is liable to C % Lincolnshire B. Co., L. R. 8 U. V. only if it appears as a fact that B.'s 148. 598 INDIAN CIVIL WEONGS BILL. to clear it. The house takes fire, and damage is done thereby to the house and goods of a neighbour C. B. only, and not A., has wronged C, for it was not B.'s business as A.'s servant to cleanse the chimney] [d). 7. C, a customer of A.'s bank, cashes a. draft, and by mistake leaves some of his money on the counter. He returns and takes it up hurriedly ; B., one of the bank clerks, thinks he has stolen some of the bank's money, and pursues and arrests him. A. has not wronged C. , inasmuch as it is no part of a bank clerk's duty to pursue or arrest thieves, although he might be justified in so doing if theft had reaUy been committed (e). 8. N. is a platelayer in the service of X. Railway Company. He makes a journey on the company's service in a train on the company's line. By the negligence of a pointsman employed by the company, the train goes off the line and N. is injured. The X. Company is liable to N. (/). [9. P. is an engine-driver in the service of the X. Railway Company. A train which he is driving in the course of his service goes off the line by the negligence of Q., a generally competent pointsman also in the company's service, and P. is injured. The X. Company is liable toP.](y). 10. A steamship of the A. company, being navigated up the harbour of Bombay by a compulsory pilot, runs down B.'s bagalo. If the A. Company can show that the collision was due to the unskilf ulness of the pilot, and not of their own master or mariners, A. Company has not wronged B. [h). {d) M' Kenzic v . M' Lead, 10 Bin g. 3S5 [38 R. R. 477]. Strictly the question here is one of fact. But the Court evidently not only acquiesced in but approved the finding of the jury. A Punjab ofiicer says the illustration is too refined, ' ' un- suited to India, and objectionable on principle in relation to that country." No harm could be done by omitting it. (f) Cf. Allen V. L. 6; 8. W. S. Co., L. R. 6 Q. B. Ci.3, 69. In the case here supposed a private person would in India be entitled to arrest the thief, if theft were reaUy committed in his view : Cr. P. C. 59. (/) Intended to reverse a case of Turner v. S. P. ^ D. S. Co. in the H. C. Allahabad, not reported (Alexander, p. 38) ; cf. Tunneij v. Midland R. Co., L. R. 1 C. P. 291. Railway Companies will not ap- prove of the change, but it would leave them better off than they ai-e on the Continent of Europe. [g) Contra, FanccH v. Boston ^- IVorcc^ter Railroad Corporation, 4 Met. 49, Bigelow L. C. 688. On principle, I think that, if there is to be any exception at all in the master's favour, it should go as far as this. It seems to me that the engine-driver and the pointsman are as much in one and the same employment as the engine-driver and the guard, and that the reasoning of the Massachusetts case is, on the facts of that case, correct. But the Employers' Lia- bility Act, 1880, s. 1, sub-s. 5, appears to reverse the common law rule in this very point. I do not believe it possible to fix the limiti of the exception satisfactorily, and I would submit whether it is worth keeping at all, except as regards domestic servants. (h) Muhammad Tiisiif v. P. ^- 0. Co.. R Bombay H. C. 98, Alexander, p. 37. GENERAL PART. 099 15. (1) Joint wrong-doers are jointly and severally Joint liable to the person wronged. (2) Persons who agree to commit a wrong which is in fact committed in pursuance of that agreement are joint wrong-doers even if the wrongful act is committed by or under the immediate authority of some or one only of those persons (^). (3) Where judgment has been recovered against some or one of joint wrong-doers without the other or others, no other suit can be brought by the same plaintiff or in his right for the same cause of action against the other or others (k). (4) Any one of joint wrong-doers is not entitled to contribution or indemnity from any other of them in respect of compensation for a wrongful act which he did not at the time of doing it believe in good faith to be lawfully authorised (l). (i) See Ganesh Singh v. Ram Raja, the others ought to be preserved 3 B. L. R. 441, P. C. in British India. It is generally [k) It may be worth considering not followed in the United States, ■whether the rule that judgment (?) Adamson v. Jarvis, i Bing. 66 against some or one of joint wrong- [29 R. R. 503] ; Belts v. Oibbins, 2 doers is a bar to any suit against A. & E. 57 [41 R. R. 381]. 600 INDIAN CIVIL WRONGS BILL. Chapter II. General Exceptions. rrotection 16 (»e). Nothing is a wrong which is done by or by the officers warrant or order of a judge or other judicial officer or i'udidA"^ person acting judicially : Provided, as regards the exemp- "iders. ^JQQ from liability of any such judge, officer, or person acting judicially, that he at the time was acting in the discharge of his judicial duty, and if he had not juris- diction to do or order the act complained of, in good faith believed himself to have such jurisdiction : Provided also as regards the exemption from liability of any person executing a judicial order, that the warrant or order is such as he would be bound to execute if within the jui'isdiction of the person issuing the same. Explanation. — The motives with which a judge or judi- cial officer acts within his jurisdiction are immaterial («). Illustrations. 1. Z.| not being a domestic servant, is charged before A., a magistrate, vmder a local regulation with "misbehaviour as a domestic servant," and sentenced by him to imprisonment vpithout proper investigation of the facts which show that Z. is not a domestic servant. A. has wronged Z., for though he may have believed himself to have jurisdiction, he could not under the circumstances so believe in good faith within the meaning of this section (o) . 2. B. is accused of having stolen certain goods. A. , a deputy magistrate causes B.'s wife (against whom no evidence is ofBered) to be arrested and ()«) Act XVIII. of 1850, with tiou of suits for judicial acts is left some condensation. As to criminal to stand over. Provision in that prosecution, Cr. P. C. 197. This, behalf should perhaps come under of course, does not apply to such the title of Remedies, a case as that of taking the wrong , , ■„ ,, , , ,,,, , , , „ man's goods, which is not an execu- J" ^/""'^'^ -^"^^''^f," "":/■ ". tion of the order. In criminal law ^"i\ .1" ^- ^r ^i \*^ ^ ^^"^tV the exception is wider, P. C. 79. iJ"'"'' ^"''''^"> I- L. R. 1 All. For the English law and authori- ties, see Scott v. Stansfield, L. R, 3 (o"! Vithoii Malhiri v. CorJieU Ex. 220. The question of limita- 3 B.' H. C. Appendix. GENERAL PART. GOl imprisoned for twenty-four hours, for the purpose, as it is suggested, of compelling B. to appear. A. has wronged B.'s wife, for he could not in good faith believe himself to have jurisdiction to arrest her ( y) . 3. A., a customs officer, purporting to act under the provisions of Act VI. of 1S63, imposes a fineon B., who to A.'sknowledgeisaforeigner residing out of British India, on the alleged ground that B. is interested in goods unlawfully imported in a vessel of which B. is in fact owner. In B.'s absence A. seizes and sells goods of B.'s for the alleged pu^po^p of satisfying the fine. A. does not, before these proceedings, take legal advice or give B. an opportunity of being heard. A. has wronged B., for under these circumstances, though he may have believed himself to have juris- diction, he could not so believe in good faith within the meaning of this section (j). 4. A., a magistrate, makes an order for the removal of certain propeity of B.'s, acting on a mistaken construction of a local regulation. If the act is judicial, and the mistake such as a magistrate of ordinary qualifi- cations might, in the opinion of the Court, entertain after fair inquiry and consideration, A. has not wronged B. (r). 5. A local Act gives power to magistrates (among other things) to remove obstructions or encroachments in highways. A., a magistrate, makes an order purporting to be under this Act for the removal of certain steps in front of Z.'s house. If this order is in excess of the power given by the Act, A. has wronged Z., inasmuch as the proceeding is not a judicial one (s). 17. "Where an act is done in a due or reasonable Protection of exeeu- manner — tive offi- cers and (a) by a public officer in obedience to an order given persons by a person -wbom he is generally bound to ]ea-al ^^^ obey, that order being such as he is bound to ^^^ti^s. obey, or such as he ia good faith believes him- self bound to obey ; (p) rindyabSisakarv. Bailtchd, Thathamdyyangdr, 6 M. H. C. 423, 3 B. H. C. Appendix, 36. it is assumed that the making of an (q) Collector of Sea Customs v. order of the same kind under the Punniar Chithambaram, I. L. B. 1 similar general provisions of the Mad. 89. Cr. P. C. 308, is a judicial act [r] Ragundda Mau t. Nathamiini, within the meaning of Act XVIII. 6 M. H. C. 423. of 1850. I cannot reconcile these (s) Chunder Narain Singh \. authorities, and submit for con- Brijo Bullub Gooyee (A. C), 14 sideration which view is to be pre- B L. R. 254. But in Seshaiyangar ferred. The Bengal case is the v.'iJ. liagunalha Bow, 5 M. H. C. later (1874), and the Madras cases 345, and the very similar case of were cited in it. M. Mngunada Eau v. Nathamuni ^^^ INDIAN CIVIL WRONGS BILL, (b) by a person acting in execution of a duty or exer- cise of a discretion which he is by law bound to perform or exercise, or as in execution of a duty or exercise of a discretion which he in good faith believes himself to be bound by law to perform or exercise ; that act does not render the officer or other person so doing it liable as for a wrong. Ilhistrations. 1. A., a judge's peadah, is ordered by the judge to seize B.'s goods in execution of a decree, and does so. Though, the proceedings may have been irregular, or the specific goods which A. is ordered to seize may not be the goods of the person against whom execution was adjudged, A. has not wronged B. 2. A., a policeman, is ordered by his superior officer to arrest B., and in good faith belie'ves the order to be lawful . Whether the order is lawful or not, A. does no wrong to B. by using toward B. such force as is reasonably necessary to effect the arrest. But A. does wrong to B. if he strikes him otherwise than in self-defence, or in any other manner uses excessive force towards him. Protection ^^ Nothing is a wrong which is done regularly and in judicial good faith by any person in the exercise of a discretion of a judicial nature to which the party complaining is lawfully subject by custom or agreement {t). Illustrations. 1 . The articles of association of a joint stock company provide that " an extraordinary general meeting specially called for the purpose may remove from his office any director for neghgence, misconduct in office, or any other reasonable cause." A., being a director of a company, is charged with misconduct in his office, and an extraordinary special meeting is duly called to consider these charges. A. is summoned to this meeting, but (t) The words " regularly and in club, and the like, call observing goodfaith" aremeanttocoverwhat the rules of natural justice : Inder- the English authorities on depri- wick v. Snell, 2 Mac. & G. 216. vation of office, expulsion from a acts. GENERAL PART. ti03 does not attend. The meeting resolves to remove A. from his office. No wrong is done to A., even if, in the opinion of the Court, the charges against him were not well founded. 2. The rules of a club provide that if in the opinion of the committee the conduct of a member is injurious to the character and interest of tlio club, the committee may recommend that member to resign, and that if the committee nnanimously deem the offence of so grave a character as in the interests of the club to warrant the member's expulsion, they may suspend him from the use of the club. The committee must not suspend a member under this rule without giving him fair and sufficient notice of the charges against him, and an opportunity of meeting them {«). But if, after giving such notice and opportunity, and making reasonable inquiry, the committee, acting in good faith, are of opinion that the con- duct of a member is so injurious to the character and interests of the club as to warrant his expulsion, and suspend him accordingly, they do not wrong that member (x). 3. [^Staled for consideration.'] A. and B. are members of the same Hindu caste. A. is president of the annual caste feast, to which B. is entitled, according to the usage of the caste, to be invited. A. wilfully, and without reasonable belief in the existence of any cause for which B. ought to be excluded, and without taking any of the steps which, according to usage, ought to be taken before excluding a member of the caste from the feast, causes B. not to be invited, whereby B. suffers in character and reputation. A. has wronged B. y). 19 (z). Nothing is a -wrong which is done by or by Protection order of a person haying lawful authority, and m exer- lawful cise thereof, to any one for the time being under that ^^ ^°^^ ^' authority, provided that the authority is exercised in good faith, without using excessive force, and in a (m) Fisher v. Keane, \\ Ch. D. similar wrongs. 353. (z) This is intended to cover the (x) Labouchere Y. WharncUffe, 13 cases of masters of vessels, parents, Ch. D. at p. 352; Batvkens v. guardians, and persons in foco ;)«)¥«- ^«., for he might, with ordinary care, have avoided running over the bullock, though B. was negligent in leaving it in such a place unwatohed (i) . 4. A. wrong-fully places a pole across a public street. The pole is of such a size that a rider in the street approaching at a reasonable pace would see it in time to pull up. B., riding along the street at a furious pace, comes ag:iinst the pole and is hurt. A. has not wronged B., for B. might have avoided harm by using ordinary care, and A. could not by any ordinary care have prevented the consequences of B.'s negligence {k). [■5. The X. Railway Company is entitled to run trains over the line of the Z. Company. A train of company ZC. running on the Z. Company's line is thrown oil the rails by an obstruction placed there by the negli- gence of the Z. company's servants. JI., a passenger in the train, is injured. If the dri\er of the train could, with onlinary care, havf seen and stopped short of the obstruction, the X. Company has, but the Z. Company has not, wronged 31. (Z).] G. A. is a child of tender years, in the custody of B., who leads A. across a carriage road without using ordinary care in watching for approaching carriages. C, driving carelossly along the road, runs over both A. and B. ; but B. mi'^ht have avoided the accident with ordinary care. C. has not wronged A. {m). 7. A. is a child of tender years, in the custody of B., who allows A. to go alone across the road. G. driving along the road, runs over A. Whether B. was negligent in letting A. go alone is not material to the question whether C. is liable to A., though it maybe material whether C. perceived, or with ordinary care would have perceived, that A. was not capable of u.'-ing the care and caution which a grown man may reasonably be expected to use (n). 65. A person who suffers harm by the negligence of Collateral another is not guilty of contributory negligence by reason "mf^j"^'""^ terial. (j) Davies v. Jfrnin, 10 M. & W. other party, who is entitled to 546 [62 R. R. Ij9S]. The animal assume that the custodian will use in that case was a donkey. ordinary care for both the child's Ik) Butterjield v. Forrester, 13 safety and his own. East 60. [10 K. R. 433.] (") There are many American [l) ArniUronr/ •,. L. i^ }'. JR. Co., decisions on points of this k;nd, Ii. R. 10 Ex. 47, where the decision some one way and some the other ; seems to be put on the ground of 0. W. Holmes, the Common Law, proximate cause. [But see now 128, Bigelow L. C. 729. Putting JlilN V. Armstrong, 13 App. Ca. 1. aside the [now overruled] doctrine The true conclusion in the case put of " imputed negligence " as irra- seems to be that M. has a right tional, it would seem that the real of action against both companies.] question is whether the defendant (m.) JFaiie v. N. E. R. Co., Ex. should have known that he had to Ch. E. B. & E.'719, 28 L. J. Q. B. do with a helpless or comparatively 258 (1859). Here the proximate helpless person, to whom therefore cause of the harm is the negligence more than ordinary care was due of the child's custodian, not of the (clause 62, sub-clause 3, above). T T 2 644 INDIAN CIVIL WRONGS BILL. only that he is negligent, or is otherwise a wrongdoer, in matter irrelevant to the harm suffered by him. Action under stress of danger caused by another's negli- g-ence. Eight to rely on others' diligence, and take lesser risk to avoid greater(j9), Illustration. A. goes out shooting, and a shot fired by him accidentally wounds B. If B. had not a right to be where he was, this may be material as tending to show that A. could not be reasonably expected to know that he was- likely, by firing then and there, to harm any person, butit is not material otherwise. 66. A person who suffers harm by the negligence of another is not guilty of contributory negligence by reason only that, being by the other's negligence exposed to imminent danger, he does not act in the manner best fitted to avoid that danger (o). 67. It is not negligence — (a) to rely on the diligence of others unless and ujitiE negligence is manifest ; (b) voluntarily to incur risk in order to avoid risk or inconvenience to which one is exposed by the negligence of another, and which at the time may reasonably appear to be greater than the risk voluntarily incurred. 1 Illustrations. A. and B. are the drivers of carriages approaching one another. Each is entitled to assume that the other will drive competently and observe the rule of the road, but if and when it becomes manifest to A. that B. is driving on his wrong side, or otherwise negligently, A. must take such precautions as are reasonably fitted, having regard to B.'s- conduct, to avoid a collision. (o) T/ie By well Castle, 4 P. Div. 219 ; other authorities collected in Marsden on Collisions at Sea, pp. 6, 7 [5th ed. 3. 4]. The rule is of importance in maritime law, and may be of importance in other cases ; of. JTaiilessY. A'. S. JR. Co., L. R. 7 H. L. 12 ; cf. 3 App. Ca. 1193. [p) Some such rule as this is indicated by English decisions and dicta, though I do not think it is anywhere laid down in a complete form ; Clayards v. Dethick, 12 Q. B. 439 ; Gee v. Metrop. R. Co., L. R. 8 Q. B. 161 ; Rohson v. i\^. E. £. Co., L. R. 10 Q. B. at p. 274 : Zai; V. Mayor of Darlington, 5 Ex. D. 28 ; cf. Horace Smith, 156, 157. SPECIAL PART. ^^^ "2. A. is riding in a carriage hired by him from B. The driver provided Tit B. is ineompetent, by reason whereof tlie horse runs away with the <'arriage towards a deep nullah. A. jumps out of the carriage to avoid being thrown down the nullah, and in so doing is injured. B. is liable to A. if, under all the circumstances, A. acted reasonably in contemplation of an apparently greater risk, and in order to avoid the same (q) . 3. A. is the owner of horses kept in a stable. B. unlawfully digs a trench and places rubbish in the road giving access to the stable, which makes it difficult but not impossible to take horses out. A. attempts to lead a horse out over the rubbish, and the horse falls into the trench and is injured. It is a question of fact whetlier, under the circumstances, the risk was one which A. might reasonably incur. If it was, B. has wronged A., notwithstanding that A. voluntarily incurred some risk (r). 68 («) . A person who does any of the following things : — Castody of dangerous (a) collects, keeps, or uses any dangerous thing on land things. occupied or used by him : (b) keeps a dangerous animal : (c) keeps or deals with loaded firearms, explosives, poison, or any other dangerous instrument or goods, or noxious or deadly thing : is bound to take and cause to be taken all reasonably practicable care and caution to prevent harm being thereby (q) In the summer of 1883 several L. R. 3 H. L. 330, that a man keeps passengers, including two English dangerous things at his peril (except judges,werein a precisely analogous as regards ris major, Nichok v. situation in a runaway car on the Mardand, 2 Ex. D. 1, &c.), seems Korthern Pacific Railway. Ulti- needlessly harsh. The extent of mately those who did not jump out the exceptions made in later de- came to less harm than those who cisions shows that it is accepted did. But surely it could not be with reluctance. It has not been maintained that it was contributory generally followed in the United neo-ligence to jump out under the States, and in British India one circumstances. In some cases it important application pf it has may be prudent even to run a very been disallowed as unsuited to the "Teat risk, as to jump from the facts and conditions of Indian land roof or top windows of a house on tenure ; Madriis R. Co. v. Zciinin- -gj.g^ dar of C'a<-riilenagarttm, L. R. 1 (r) Illustration 3 is Glayards v. Ind. App. 364. Nor is there any- Dethick, 12 Q. B. 439. Clmjardu thing answering to it in Roman V. Deth'icl; is disapproved by Lord law. It therefore seems to requii'e BramweU ; see appendix to jlorace modification in some such way as Smith on Negligence, 2nd ed. Mr. here proposed. This will of course Horace Smith thinks Clmjards v. not affect liability for nuisance. In Ilethick is right notwithstanding, a case short of that, the require- and I agree with him. ment of exact diligence is, one [s] The rule in Rylands v. Fletcher, would think, enough. 646 INDIAK CIVIL WRONGS BILL. caused to others, and is liable as for negligence to make compensation for any harm thereby caused, unless he proves that all reasonably practicable care and caution were in fact used. Eocplmiatioim. — 1. Dangerous things for the purposes of this section are fire (not being used in the ordinary way of domestic purposes), earth or water artificially collected in large quantities, explosive and inflammable matters, and any other thing likely for default of safe keeping to cause harm to neighbouring persons or property. 2. A dangerous animal for the purposes of this section is — (a) any animal of a kind accustomed to do mischief : (b) any animal of whatever kind which the person keeping it knows to be fierce, mischievous or vicious. 3. A person who deals with a dangerous thing and is in good faith ignorant of its dangerous character is not subject to the liability declared by this section {£). Illustration!^. Q_ jf_ 1. A. is the owner of an embankment constructed by authority of the -ffy. "/ Government. Part of this embankment is carried away in a storm, Canada \. -whereby B. 'a adjacent land and crops are damaged. If A. has in fact IVToo P C ^^^^ diligent in constructing and maintaining the embankment in such a N. S. 101, manner as to be capable of resisting all such violence of weather as in that and cases part of the country may be expected to occur, or if the storm was so extra- r®'^? ordinary that no practicable precaution could have guarded against its effects, then A. has not wronged B. If the storm was such as might have been reasonably provided against, and if A. has not been so diligent as aforesaid (which may be inferred as a fact from the failure of the embank- ment in the absence of proof that the best known precautious were used), then A. has wronged B. 2. Sparks escape from a railway engine used by the X. Railway Com- pany on their line, and set fire to A.'s corn in an adjoining field. TheX. (*) As to poison, fire, explosives, and dangerous animals, cf. the Penal Code, ss. 284, 286, 286, 289. SPECIAL PART. 647 Company must make compensation to A. unless they prove that the best known practicable precautions were used to prevent the escape of sparks from the engines («). 3. A. bums weeds on his own land. Sparks from the fire are carried into B.'s growing crop and set fire to it. A. must make compensation to B. , unless he proves that the fire was carried by a sudden and extraordinary wind, or in some other unusual manner which he could not, by reasonable and practicable precaution, have prevented. 4. A., a zamindir, maintains an ancient tank on his zamlndari for the benefit of agTiculture. An extraordinary rainfall causes the tank to burst, and the water escaped therefrom carries away a building belonging to B. If A. has been diligent in maintaining the tank, and making provision against any ordinary overflow of water, A. has not wronged B. {x). o. A. sends a parcel containing a detonating mixture to a railway station, to be carried as goods by the railway company, without informing the company's servants of the nature of the contents. AVhile B., a servant of the company, is handling the box for the purpose of despatching it by train, and with care sufficient for the safe and proper handling of ordinary goods, the contents explode and injui-e B. There is nothing to show the specific cause of the explosion. A. has wronged B. The explosion also damages a cart of C.'s, which has brought other goods to be despatched by train. A. has, but the company has not, wronged C. («/). 6. A., having left a loaded gun in his house, sends B., a young person inexperienced in handling firearms, to fetch it. A. tells B. that the gun is loaded, and directs him to handle it carefully. B. fetches the gun, and on his way back points it in sport at C. The gun goes ofif, and wounds C. A. has wronged C.{z). [u) See Vaughan v. Taff VaU R. of Cari-atoiagaram, L. R. 1 Ind. Co., .5 H. & N. 679 ; Frcmantlo v. App. 364. Z. i- X. W. R. Co., 10 C. B. N. S. (ij) Lyell v. Ganga Dai, I. L. E. 89 Such a case as Jones v. Festi- 1 All. BO : cp. Farranl v. Barnes, mog R. Co., L. K. 3 Q. B. 733, U C. B. N. S. 563. It is for the where the use of locomotive engines plaintiff to prove want of notice ; not being specially authorized, it see WilUams v. Ea^t India Co., 3 was held that the company used East at p. 199, where a somewhat them at its peril, could, I suppose, artificial reason is given. It seems hardly occur in British India. If enough to say that the want of it did. and if the clause now sub- notice is au essential part of the mitted had become law, the decision plaintiff's case ; the duty is, not would be the other way, unless to abstain from sending dangerous Act IV. of 1879, 8. 4, implies that goods, butto give suffioientwarning using locomotives without the sane- if you do. As to the non-liability tion of the Governor General in of a person innocently dealing with Council is absolutely unlawful. As dangerous things of whose true to the use of fire for agricultural character he has not notice, see nurposes such as burning weeds, The Nitro-Glyccrine Case, Sup. Ct. see Turhervil v. Stamp, 1 Salk. 13, U. S. 15 Wall. 525. and 1 Ld. Raym. ; and D. 9. 2, [£) Dixon v. Bell, 5 M. & S. 198 ad 1 Aquil. 30, § 3. [17 R. R. 308], and Bigelow L. 0. \x) Madras R. Co. v. Za:nindiir 568, which goes even further. Ci8 INDIAN CIVIL WRONGS BILL. 7. A. is a dealer in drugs. By the negligence of A.'s servant a jar of extract of belladonna is labelled as extract of dandelion, and sold on A.'s behalf to B., a retail druggist. B., in good faith, resells part of it as extract of dandelion to C, a customer, who by taking it is made dangerously ill. A. has wronged C. [a). Liability 69. (1) A person possessed of — of occu- piers of tQ\ a,ny immoveable property : property. v / ^ ^ ^ ± r ^ (b) any building or structure intended for human occupation or use : (c) any carriage or vessel intended for the conveyance of human beings, or of goods which are to be handled in that carriage or vessel (6) : is in this and the next followiag section called an occupier. (2) An occupier must keep the property occupied by him in reasonably safe condition and repair as regards — - (a) persons using that property as of right : (b) persons being or passing near that property as of right : and is liable as for negligence to any such person who is injured by want of such condition and repair (c). (3) A person who has delivered out of his possession to be employed for the purpose of his business any such carriage or vessel as in this section mentioned continues responsible during such employment for any want of reasonably safe condition and repair which existed at the time of his parting with the possession. JSu'pla nation. — The existence of a defect which the usual care and skill of competent persons could not have discovered or prevented (in this section called a latent (a) Thomas v. Winchester, 6 The words now inserted are sug- N. T. 397, Bigelow L. C. 602. gested by Elliott v. Ball, 15 Q. B. See this case discussed pp. 504 — D. 315. 507, above. (c) Most of the previous authori- ip) See Foulkes v. Metrop. Bist. ties are collected and discussed in R. Co., 5 C. P. D. 157, especially Indermniir v. Barnes, L. R. 1 C. P. the judgment of Thesiger L. J. 274 (in Ex. Ch. 2 C. P. 3U). SPECIAL PART. 649 defect) is not a want of reasonably safe condition and repaii', but the burden of proof is on the occupier to show that the defect which caused an injury was latent. (4) Safe condition includes careful management. (5) Persons using property as of right include — (a) servants (d) or other persons being or coming thereon in performance of a contract with the occupier ; (b) persons being or coming thereon by the occupier's invitation or with his consent on any lawful business. lUustraiions. 1. A. is a merchaiit in Bombay. His office is approaohed by a passage, forming part of the premises occupied by him, in which there is a trap- door. At a time when the trapdoor is left open, and not properly guarded or lighted, B., a customer of A., comes to the office on business, and falls through the trapdoor and is injured. A. has wronged B. {c). 2. A. digs a pit on his own land close to a highway, and does not fence it ofE, light the place after dark, or take any precaution for the safety of persons using the highway. B., lawfully walking on the highway after •dark, falls into the pit and is injured. A. has wronged B. (/). 3. A., the owner of a road subject to rights of way, puts aheap of building materials on the road, and leaves them at night unwatched and unlighted. B., a person entitled to use the road, drives along the road after dark, his carriage runs against the heap, and his horse and carriage are damaged. A. has wronged B. (g). i. The X. Company are possessed of a dock, in which for payment from shipowners they provide accommodation for ships, including gangways laetween ships in dock and the shore, and staging for the use of workmen employed about ships in the dock. A. is a person haying lawful business on one of the ships in the dock ; to reach the ship he walks on one of the o-anoTTays provided by the X. Company. The X. Company's servants having placed the gangway in an unsafe position, it gives way under A., Id) English common law authori- to be so. ties incline to the view that a ser- {«) Chapman v. Molhwell, E. B. vant injured by the defective state & E. 168, 27 L. J. Q. B. 315 of the place where he is employed (treated by the Court as a very can hold the master liable only for plain case). personal negligence. I am not sure {f) Barms v. Ward, 9 C. B. that even the Employers' LiabiHty 392, 19 L. J. C. P. 195. Act puts him on the same footing {g) Carhy v. HM, 4 C. B. N. S. as a customer, but I think he ought 556, 27 L. J. C. P. 318. G50 INDIAN CIVIL WEONGS BILL. Position of licensees using" premises. and he falls into the water and is injured. The X. company has wronged A. B. is a workman employed to paint a ship in the dock. He stands for that purpose on a staging provided by the X. Company, which is in fact unfit for such use by the negligence of the X. Company's servants in not fitting it with ropes of proper strength. One of the ropes breaks, and B. falls into the dock and is hurt. The X. Company has wronged B. (/»). 5. A. is possessed of a bridge crossing a, public road. As B. is passing along the road under the bridge, a brick falls upon him from the brickwork of the bridge and injures him. There is no specific proof of the amount of care used in making or maintaining the bridge. Unless A. proves that the fall of the brick was due to some cause consistent with due care having- been used in the maintenance of the bridge, A. has wronged B. (»). 6. A. is possessed of a lamp which is affixed to the wall of his house and projects over a public street. The fastenings of the lamp, being out of repair, give way, and the lamp falls on B., a foot-passenger in the street, and injures him. A. must make compensation to B., even if A. has employed a person whom he reasonably believed to be competent to keep the lamp in repair (A) . 70. Where a person uses or comes on any property •with the occupier's permission, but not as of right, the occupier of that property is liable for harm suffered by the first-mentioned person from a defect in the condition or repair of that property only if the defect is such as to constitute to the knowledge of the occupier a danger not discoverable by a person using ordinary care (/) . lUiist rations. 1. A. is possessed of land on which there is an open stone quarry. There is no right of way over the land, but people habitually pass and repass over it without interference from A. B., crossing the land after dark, falls into the quarry and is hurt. A. has not wronged B. (;n). (A) Smith V. London ij- St. Katha- rine Dochs Co., L. R. 3 C. P. 326. Cf. Francis v. Cochrell, L. E. 5 Q. B. 501 (Ex. Gh.), where, however, the duty was also put on the ground of contract ; Heaven v. Fender, 1\ Q. B. Div. 303. (t) Kearney v. J. B. 6; S. G. B. Co.,E.x. Ch. L. R. 6 Q. B. 759; cp. Bijrne v. Foadle, 2 H. & C. 722, 33 L. J. Ex. 13, and in Bigelow L. C, where it is said that "it is the duty of persons who keep barrels in a warehouse to take care that they do not roll out," and there was no positive evidence that the barrel was being handled by servants of the defendant, or being handled carelessly. (i) Tarry v. Ashton, 1 Q. B. D. 314. [I) See p. 521, above. {m) FloumeU v. Smyth, 7 C. B. N. S. 731, 29 L. J. C. P. 203. SPECIAL PAKT. COPYEIGHT : infringement of, whether a nmsance, 420. relation of, to possession, 376. COKPOEATION : crime, imputation of, not actionable, 245. liability of, for fraud of agent, 95 j, 305, 306. for negligence, 96. for trespass and trover, 60 u. for wrongs, 60. maintenance cannot be committed by, 335. malicious prosecution, liability for, 61 x, 315. municipal, application of Public Authorities Protection Act to actions against, 212 s. public works, management of, responsibility of corporation for, 61. quasi- corporate association, liability of, for wrongs of servants, 96. Costs : of action against public officer, 212 t. present procedure as to, 186 q. presumed to be indemnity to successful defendant, 317. relation of, to damages, 185 n. Counsel : immunity of words spoken by, 264. COUNTT CotTNOIL : licensing sessions of, 265 d. owning tramways, is within Public Authorities Protection Act, 212 i. CouNTT CoiTET : statutory distinction of actions in, 536. CouKTT CoTjET JunoE : powers of, 117. Coukt: contributory negligence, proper direction to jury as to, 459. control of, over jury, 276, 277. negligence, functions of court and jury respectively in cases of, 440, 442, 443. privilege of statements made in, 264. INDEX. 665 Cobet-Maehai, : protection of members of, 118, 119. whether action lies for bringing one before, without probable cause, 121. Covenant : construction of " nuisance " in, 408 a. Ceime : distinguished from tort, 2, 4. oral imputation of, when actionable, 244, 245. Ceiminal Conteesation : former action of, 229, 230. Cktminal Law : asportation, 349. cause of death, what is immediate, 40. conversion necessary for larceny, 356. distinction of receiving from theft, 374. forfeiture of deodand, 137, 138. individuals bound to enforce, 204 /. prosecution for public nuisance, 401. self-defence, 173. Ceiticism: : allowable, limits of, 257, 260. Ceown: forcible entry, at suit of, 389. servants, liability for acts of, 84. Culpa: equivalent to negligence, 17. licensor not liable to gratuitous licensee for, 523. CuxTA Lata : equivalent to dolus, 281, 439. Custody : distinguished from possession, 343. Custom: no action lies for withdrawing, 155. Custom of the Realm : meaning of, 533. CusiOMEE : intimidation of, 237. right of, to safe condition of buildings, &c., 509, 510. Damage : act of God, caused by, non-liability for, 492. actual, unnecessary to constitute trespass, 346. breach, or non-performance of, statutory duty causing, 197. date of, when cause of action arises, 187. execution of authorized works causing, 129 — 135. effect of, as regards limitation, 211. ^666 INDEX. Daiiage— contimted. gist of action on case for conspiracy, 319, 320. legal damage necessary in action for conspiracy in American Courts, 322. " nervous or mental stock " causing, whether too remote, 51. particular, necessary in action for public nuisance, 403. not necessary when private right infringed, 414. relation of, to "wrong, 19. remoteness of, 30 sqq., 330. resulting by inevitable accident from lawful act, 135 sqq. special, in law of slander, 242. involves definite temporal loss, 243. procuring breach of contract actionable only with, 549. Damaobs : assessed to what date, 424. carrying costs, 185 n, 186 q. compensation, not restitution, proper test of, 189. costs, relation of, to, 397. distinction when motive necessary part of cause of action, 192. excessive, 184. exemplary, 190, 424. false imprisonment, for, 190. false representation, for, 196. gist of action, when damage is, 186. inadequate, 184. jury, power in assessment of, 277. marriage, for breach of promise of, 192, 559. measure of, 31. measure of, in action for inducing plaintiff by false statements to take shares in a company, 196 d. measure of, in contract and tort, 657. measure of, for damage to highway, 189 c. measure of, for nuisance, 424. mitigation of, 193. by apology in action for slander or libel, 277. negligence, in cases of contributory, 467, 468. new trial, where damages excessive or inadeqaate, 184. nominal, as test of absolute right, 186. nominal, ordinary, or exemplary, 184 — 192, 424. nominal, scale of costs allowed, 397. nuisance, for, 424. only once given for same cause of action, 193. ordinary, measure of, 188. seduction, in actions for, 233. Damnum sine iniueia, 22, 150. INDEX. Gt>7 Danqek : concealed to b;u-o licensee, 521, 622. diligence proportioned to, 456. duty of person repelling imminent, 173. going to, 164. immediate, "honest and reasonable belief " of, 174. self-defence, right of, 173. voluntary exposure to known, 178. Danoeeous Things : strict responsibility in dealing with, 49, 484, 499 sqq. Death : of human being-, said to be never cause of action at common law, 63. of party, eflEeot of, on rights of action, 62. Deceit : action of, against falsifier of telegram, 551. action of, damages must be shown, 187. action of, distinguished from action for " passing off," 313 o. ambiguous statements, reliance on, 301. American law as to, 288. assertion, reckless, 291. concurrent jurisdiction at Common Law and in Equity, 196, 279. conditions of right to sue for, 282, 283. corporations, liability of, 305. false guarantees, 301. garbHng, by, 286. ground of belief looked to as test of its reality, 286, 287. intention as element of, 295. may give innocent agent claim for indemnity, 200 q. misrepresentation by or through agent, 303. misstatement of law, 285. nature of the wrong, 279. no cause of action without both fraud and actual damage, 283. plaintiff's means of knowledge, effect of, 299. prospectus of new company, 297. public representations, 296. statement, believed by maker at the time is not, 286, 287. statement not relied on is not, 298. Defamation : business, of a man in his, 247. construction of words as to defamatory meaning, 253. contagious disease, imputation of, 246. corporation, charge of impossible crime against, not action- able, 245. 668 INDEX. Defamation— continued. damages for, how assessed, 277. evidence, extrinsic, of unfair motive, 258. exception of fair comment, 257. fair comment, what is, 257 — 260. generally, 239 sqg. gross, damages for, 191. immunity of Members of Parliament and Judges, 264. injunction to restrain publication of defamatory matter, 195, 278. justified by truth of matter, 261. malice, express, exception of, 268. " malicious," in what sense, 250. motive, unfair, extrinsic evidence of, admissible, 258. plagiarism, gratuitous charge of, not fair comment, 261. pleading apology, 277. privilege, absolute, 265. privilege, excess of, 275. privilege of fair reports, 271. privileged communications, qualified immunity of, 266. privileged occasions, what are, 268. publication, 251—253. relation of negligence to, 553 .r. reports by newspapers of public meetings, 274. special damages in actions of slander, 188. spiritual, 246 y. See Libel, Slanbeb. Defect : in structure, responsibility of occupier for, 515, 516. latent, non-responsibility for, 514. Delicts : Koman law of, 16. Deodand : forfeiture of, 137, 138. Dethtoe : supplanted by fa'over, 14. whether founded in contract or tort, 15. writ of, 13. nature of, 351. Diqest : of Justinian, ad legem AquiUam, 17, 583. And see Zex Aguilia. Diligence : amount of, required by law, 28, 29. due, varies as apparent risk, 456. general standard of, 435, 439. includes competent skill when required, 441, 446. See Neqliqenoe. INDEX. 669 DiEEOiOBs' Liability Act, 1890 : contribution and indemnity, as to, 201 t. decision in Deri-i/ v. Feek, how affected by, 294. Disabilities: suspending Statutes of Limitation, 210. DiscEETiON : where given by Legislature must be exercised with regard to other rights, 132. DiSTBESS, in general, 390 sqq. damage feasant, 390, 397. Docks: owner of, answerable for safety of appliances, 511, 512. Dog: liability for vice of, -198. shooting of, not malicious where believed necessary for pm- teetion of property, 174. statutory protection against, 499 l>. whether owner liable for mere trespass of, 493. DOQ-SPEAES: authorities on injuries by, 174 x. DoLtrs : equivalent to culpa lata, 2S1, 439. equivalent to unlawful intention, 17. DoimnTS peo tempobe, 81. Deivee : duty of , 170. DtTEL : always unlawful, 162. Duty: absolute, imposed by policy of law, 10, 18, 28, 74. acts in breach of specific legal, 26, 27. breach of, in course of employment, action for, 531. of competence, 28. of diligence, 28. of respecting property, 10, 28. of warning, knowledge of risk as opposed to, 166. relation of legal to moral, 12. statutory, remedy for breach of, 197. to one's neighbour, nowhere broadly stated, 2 1 . Easement : disturbance of, analogous to trespass, 376. licence cannot confer, 380. of light, 416. Editoe : admitting publication, not bound to difiolose actual author, 253. ^7() INDEX. Election" : to sue in contract or tort for misfeasance, 529 — 532. Emplotee: when answerable as master, 79 — 81. Emplotees' Liability Act, 1880 : 98, 105 sqq. as regards "volenti nonfit injuria" 168. text of, 573. See Woekmen's Compensation Act. Employment : course of, what is, 84. doctrine of "common employment," 98 — 103. public, of carriers and innkeepers, 533. Entey : forcible, at suit of Cro-wn, 389. fresh, on trespasser, 386. necessity justifying, 392. relation, by, 375. to take distress, 389. EauiTY ; former concurrent jurisdiction of, in cases of deceit, 196. remedies formerly peculiar to, 181. Ekeoe : clerical, responsibility for, 249. Estoppel : conversion by, 367. if no contract or breach of specific duty, statements to be made good only on ground of fraud or, 293. of bailee, from disputing bailor's title, 363. Evidence : of contributory negligence, 461, 462. of conversion, 358. of malice, 275, 276. of negligence, 439, 517. question whether any, for court : inference from admitted evidence, for jury, 442. Execution : of process, justification of trespass in, 389. Executive : acts of, in time of war, 122, 123. Executoes : cannot sue for personal injuries to testator, even on a contract, 560. felony, whether not bound to prosecute for, before bringing civil action, 204. liability of, for wrongs of testator, 66, 67. to restore property or its value, 72 . statutory rights of action by, for wrongs to testator's property, 66. INDEX. 671 ExPLosrvES : liability for improper dealing with, 139, 503. liability for sending without notice, 503. Eaotoes Acts : good title acquired under, 556. validity of dealings under, 340. Eacuities : ordinary use of, presumed, 448. Fair Comhent: defence of, in action for defamation, 267 — 260. False Imprisonment : damages for, 190. definition of, 221. distinguished from malicious prosecution, 224. .justified by local statute, 205. on mistaken charge, followed by remand, 225. prosecutor or officer answerable for, 224. what is reasonable cause for, 225. False EBPBESEUTATioisr : damages for, 196. Fatal AoatDENia. See Campbell's Act (Loed). Felo>-^ : arrest for, justification of, 223. imputation of, when libellous, 244, 246. "merger" of trespass in, 202. Fence : falling in neighbour's lahd, 491. when trespass for defective, 391. Fencing: lawful, 161, 162. Feeey: franchise of, 376 h. nuisance to, 419. refusal to carry passengers by, 359. Fiee: escape of, from railway engines, 454, 455, 494, 495. justification for trespass, 392. negligence as to, 440. responsibility for carrying, 500, 501. safe keeping of, 499. EiKE-AEMS : consummate caution required in dealiog with, 499. FiSHEET : trespass to, 376. 672 INDEX. Footpath : diversion of, creates duty to ■n-aru passengers, 516. EoECiBLE Entry : statutes against, 383. with good title, whether civilly wrongful, 385, 386. FoEMS 01' Action, 13, 14, 15. See Action. Fowl: liability for injury caused by, 497. whether owner liable for trespass by, 496 I. Fox-hunting: trespass in, not justified, 39 1. Feance (law of) : Conseil d'Etat inqmres into acts of public authority, 116. rule of, of five years' prescription, 209. Feaxchise: malicious interference with exercise of, 334. Feaud : ag'ent or servant, 'of, 94. agents, of, 282. compensation for, in equity, formerly by way of restitution, 196. concealed, effect of, on period of limitation, 213. "constructive," 281. effect of, on transfer of property or possession, 339. equitable jurisdiction founded on, 280. "legal," 282, 289. licence obtained by, 164. negligence, however great, does not of itself constitute, 288, 239. partners of, 97. relation of, to infringement of trade marks, &c., 310, 311. Feost : damage brought about by extraordinary, 47. Gas: escape of, 503. Goods : trespass to, 349. Goodwill : protection of privileges analogous to, 311. Goveenoe ; colonial, actions against, 114. Geant : distinction of licence from, as regards strangers, 382. distinguished from licence, 379. but may be inseparably connected with licence, 379. Guaeakiy: misrepresentations amounting to, 301. Guest : gratuitous, is mere licensee in law, 523. INDEX. 673 Habeas Coepus : judge must grant, even in vacation, 118. HlQHWAY : cattle straying off, 391, 497. damage to, measui'e of damages recoverable by trustees for, 189 2. justification for deviating from, 391. nuisances by obstruction of, 402, 405, 422. rights of persons using, to safe condition of adjacent property, 515—520. ti'actiou or steam engiae on, 601. HoESE : injuries caused by, 45. trespass by, 496. HUBBAND AND WlTE : action of personal tort between, does not lie, o9. action for assault or crim. con., 229. actions by and against, 58. husband may not now beat wife, 127 d. imprisonment of wife by husband, 127 rf. libel on husband by letter to wife, 253. loss of consortium between, is special damage, 244. " Ideutipication " ; exploded doctrine of, in oases of negligence, 469, 474. Ijipeisonment : does not affect period of limitation, 210 A. IstPEisoNMENT, False : See False Impeisonment. Inconvenience : not amounting to nuisance, not made actionable by allegation of evil motive, 158. IncoepoeeaIi Eights : in property, violation of, 375. Inkemnitt: claim to, of agent who has acted in good faith, 200. colonial Act of, 205. " Independent Conieactob " : 79, 80, 508, 512 i; 519, 520. India, Beitish : dealings of East India Company with native states, 112. protection of executive and judicial officers in, 122. Indian Civil Weonqs Bill : draft of, 586. Inevitable AooiDBNT : 135 — 148. And see Acoxdzst. P.— T. X X 674 INDEX, Inpant : cannot be made liable on contract by changing form of action, 56, 535. cannot take advantage of his own fraud, 57. contract of service of, 100. liability of, for torts, 54, 55. liability of, whether limited to wrongs contra paeem, 60. liable for substantive wrong though occasioned by contract, 57. licensee or trespasser, 52. Injunction : interlocutory, 195. jurisdiction to grant, 194, 425. libel, to restrain, 195, 278. mandatory, 425 b. not refused on ground of diflicnlty of removing nuisance, 430. nuisance, to restrain, 425. on what principles granted, 426 sqq. slander on business, to restrain, 195. trespass, to restrain, continuing, 399. under C. L. P. Acts, 181 b. IXNKEEPEE : cannot dispute entry of guest, 395. duty of, 533. selling goods of guest, 365 «. Inns of Codbt : quasi-judicial powers of, 124. Innuendo : meaning and necessity of, 253, 254. Insteument, Dangebous : responsibility of person using, 50, 484, 507. Insukanoe : construction of policy of, excepting obvious risk, 169. duty in nature of, 485, 490. effect of, on necessity of salvage work, 172 n. Intention : general relation of, to liability, 32 — 34. inference or presumption of, 34. trespass, not material in, 9, 12. Inteepleadee : by bailee, 363, 364. Intimidation : by trade unions, 237. in what way distinguishable from mere persuasion, 333. of customers, 237. of servants and tenants, 236. what amounts to, 333. when "picketing" becomes, 236 Ic. INDEX. 075 Invitation: rights of persons coming on another's property by, 608 sqq. ■' Invitation to Auani " oases, 448. Ireland: Lord-Lieutenant exempt from actions in, for official acts, 114. -Toint Weonq-doees : contribution between, 190, 200. effect of judgment against one of several, 199. joint and several liability of, 199. JtJDQE : allegation of malice -will not support action against, 118. bill of exceptions, could not refuse to seal, 118. habeas corpus^ must grant, even in vacation, 118. jurisdiction, judge not liable for latent want of, 118. jurisdiction, judge of inferior court must shew, 117. protection of, in exercise of office, 116, 117, 264. And see Couet. JuDGJLEN'i : against one of several %vrong-doers, effect of, 199. JuDioiAi; Aors : distinguished from ministerial, 224. of persons not judges, immunity for, 118, 119. protection, &c. of, 116, 264. statutory liability in special cases, 118. JiTDioiAL PEOCEEBiNas : reports of, 272, 273. JuBionjM Rusncuii, 475. JtJEIS DICTION : local limits of, 204. to grant iujunctions, 194. .Ttjey: assessment of damages by, 277. control of court over, 276, 277. functions of, in cases of negligence, 442, 443. proper direction to, as to contributory negligence, 459. Jus Teeth : cannot justify trespass or conversion, 370. -Justice of the Peace : action against, does not lie for words used in judicial capacity, 264 z. limitation of actions against, 211. date from which time runs, 212 s. memorial as to conduct of, 270 r. xx2 676 INDEX. JuSTinOATION AUD ExcusE : by authority of law, 383. "by Kcenoe, 377. defamatory statements excused by truth, 261 . determination of, 395. for re-entry on land, 383, 384. for re-taking goods, 388. for taking distress, 390. general grouuds of, 24, 109 sqq. under legal process, 389. Labctjeees, Statute of : action under, 230, 236. Land : acts done in natural user of, not wrongful, 153. artificial works, on, 154 h. I AUDLOED AND TENANT : questions of waste between, 355. which liable for nuisances, 432. IjAndowkees : adjacent, duties of, 515. duty of, as to escape of dangerous or noxious things, 486, 490. Laeoent : when trespass becomes, 388. Law: misrepresentation of, 285. Leave and Licence : as jixstification for assault, 218. defence of, 160 sqq. And see Licence. Lessee : as to liability of, for nuisance, 432. for years holding over, no trespasser, 395. Lex Aquilia : Digest on, compared with English law, 194 q. Roman law of, liability under, 523 o, 548 h, 583. rules of liability under, compared with English law, 139 e. Lex Eoei : regard to, in English courts, 204, 205. Libel : comment, fair, is no, 257. construction of, 253. crime, imputation of, 244, 263. damages for trespass on plaintiff's paper, where no libel for want of publication, 191, 192. INDEX. 677 LiBKi, — continued. innocent oiroiilator, 252. La^v of Libel Amendment Act, 1838 . . 274. jon'mff /((fie libellous, what is, 242. publication, injunction to restrain, 195, 278. publication, what is, 251 — 253. slander distinguished from, 239. And see Defamation. Licence : assignable, is not, 382. bodily force, to apply, 160, 218. bodily harm, to do, good only with just cause, 160, 161. " coupled ^^-ith interest," 378, 379. fraud, obtained by, void, 164. grant, may be annexed by law to, 379 how given or revoked, 382. interest by way of equitable estoppel arising from, 381. practice of American courts in such cases, 381. meaning of, 377. revocable unless coupled with interest, 378. revocation of, effectual even though breach of contract, 378. revocation of, right of licensee to sue when contract exists, 378, 379. revocation of executed, having permanent results, 380. strangers, regarding, 382. Licensee : gratuitous guest is mere, 523. infant, favoured in American courts, 521. rights of, in use of private way, 516. what risks he must take, 621, 622. LiCENSOE : liability for damage caused by negligence of servant, 524. liable for ordinary negligence, 524. Lien : right at Common Law to, 358. LiOHT : Colls V. Home and Colonial Stores, effect of, 417. disturbance of, what amounts to, 417. effect of altering or enlarging window, 418. nature of right to, 416. obstruction of, 415. right to, as between two or more lessees under same lessor, 416 ««. special or extraordinary, right to, cannot be acquired by prescrip- tion, even with knowledge on part of servient tenement, 417, 418. supposed rule as to angle of 45°. .418. 678 INDEX. Limitation of Actions : effect of foreign law of, 209. exception of concealed fraud, 213. statute of, 56, 210. statutory penalties, two years' limitation, 211. text of statutes concerning, 580. wliere damage is gist of action, 211. Locality : of wrongful acts, when material, 204. Lunatic : authorized restraint of, 127. Uahility of, for torts, 55. Maqisteate : action against, does not lie for words used in Judicial capacity, 264 3. limitation of actions against, 211. date from which time runs, 212 s. memorial as to conduct of, 270 r. Maintettaitob : actions for, 334. aMn to malicious prosecution, 334. corporation cannot be guilty of, 335. Mala Peohibita : no distinction between mala in se and, 27. Malice : conspiracy, malice not necessary to cause of action for, 328, 329. essential in slander of title, 307, 308. evidence of, 275, 276. explained as " improper and indirect motive," 319. express, in communication on privileged occasions, 208. former use of word in pleading, 26. gist of action, implied assumption that malice was, no longer generally tenable, 320 u. "implied," meaning of, 258. malicious prosecutions and abuse of legal process, 314 sjj. material only in exceptional cases, 24. Malice IN Fact: 61, 268, 276. Malioioits Hindeance: remoteness of damage in these oases, 330. Malicious Pbosecution : action for, for prosecuting action in name of third person, 318. action for, whether it lies against corporations, 315. bankruptcy proceedings, malicious, actionable, 317. but adjudication must be first set aside, 318. INDEX. 679 MAIJCI0TJ3 Pkoseoution — continued. civil proceedings, malicious, not actionable, 316. distinguished from false imprisonment, 224. plaintiff must prove malice, 314. privilege, abuse of, analogus to, 315. Majtoakiis : 181 h. Maeket : franchise of, 376 i. nuisance to, 419. Maeket Ovbbt : title acquired in, 340, 556. jMaeket-place : duty of persons controlling struotm'es in, 513, 514. Mabeiaoe : breach of promise of, 192, 659. Haeeied AVoman ; can now sue and be sued alone, 5S. damages and costs recovered agamst, how payable, 58. whether liability at common law limited to wrongs contra pcicem, 60. Maeeted Women's Peopeett Act, 1882 : effect of, 58. husband stiE liable for wife's torts, 59. right of action under, how limited, 59. Maetial Law : in time of war, 123. Mastee and Seevant : action for beating servant, 229. enticing away, 230. menacing servants, 236. seduction, 231. constructive service, what is, 235. defence of servant by master, 173 r. delegation of duty by servant, 81. liability of master, does not arise, when servant wholly departs from course of master's business, 86, 91, 92. for acts or defaults of servants, 74 sqq. for servant's excess or mistake in executing authority, 89. for servant's forgery, 95 e. for servant's fraud, 94. for servant's negligence in conduct of master's business, 85. for servant's wilful wrong, 93. reason of, 78. rule as to, expressed by WiUes, J., 77. 680 INDEX. Mastee and Sbevant — continued. loss of service, whether master can sue when servant killed hy injury, 64. power of controlling work, 83. proper servant, master must choose, 102, 103. protection to master, giving character, 268. warning feUow- servants, 270. puhlio officers, relation of master and servant does not exist between, 84. risks, ordinary, undertaken by servant, 100, 167. servant, breach of contract with, whether master can sue for loss of service arising from, 544. servant injured by fellow-servant, 98, 100. servant, who is a, 79. servant travelling by rail, 538. service, temporary transfer of, 82. suitable materials, master must fmnish, 103. And see Sebvant. Maxims : a man is presumed to intend the natural consequences of his acts, 34. actio personalis moritur cum persona, 62. adversus extraneos vitiosa possessio prodesse solet, 370. culpa lata dolo aequiparatur, 281. imperitia culpae adnumeratur, 29. in jure non remota causa sed proxima spectatur, 30. nullus videtur dolo facere qui suo jure utitur, 129/. qui facit per ahum, facit per se, 77. ratum quis habere non potest, quod ipsius nomine non est gestum, 77. res ipsa loquitur, 517. respondeat superior, 77. sic utere tuo ut alienum non laedas, 110, 129. volenti non fit injuria, 159, 164, 167, 168, 515. Medical Education : General Council of, powers of, over registered medical practitioners, 124. MEETnra: public, newspaper reports of, 274. Menace : to servants and tenants, 235. when actionable, 220. Mental oe Neevotjs Shock : damages for, whether too remote, 51. MiLiTAET CouET : privilege of, 265. MiNlSTBE : of Baptist chapel, removal of, 125 x. INDEX, 681 MiaitEPBESENTATION : breach of special duty of disclosure, query whether deceit, 292, 293. construction of ambignous statement, 301. fact or law, of, 284, 285. intention to harm by, not necessary condition of liability, 295. omission by, 286. promise or giiaranty, when misrepresentation amounts to, 301. reckless assertion, by, 291. reliance of plaintiff on the, 298. See Deceit. Mistake : does not excuse interference with property, 9. of sheriff, in taking goods, 389. Moetqaqoe: may be guilty of conversion, 365, 366. Motive: considered in aggravation of reduction of damages, 190 sqq. improper, malice defined as, 319. material in exercise of rights, whether, 155 sqq. material part of cause of action, when, 24. See Malice. Naste: no exclusive right to use of, 159. of house, no exclusive right to, 311. Nattjeai. CoNSEQtrENCES : of acts, presumed intention of, 34, 331. TJattttjat. Justice : must be observed in exercise of quasi- judicial powers, 125. "Natural Usee"- of property, non-Uabihty for, 488. Natioation : negligence in, 44, 475, 476. requirements of, as limiting statutory powers, 132. Navy : officer, protection of, in execution of duty, 121. Neoessitt : as excuse for unskilled person, 29. as justification generally, 171. "compulsive," 176. destruction of property justified by, 171. trespasses justified by, 171, 172, 392. G82 INDEX. Nbgiigence : action of, damage must be shown, 187. Alderson's definition of, 437. imticipate another's, one is not bound to, 477. as to action under difficulty caused by another, 476. averment of, 498 y. burden of proof on plaintiff, 443. oare, due, varies as apparent risk, 456. choice of risks caused by another's, 478. concurrence of liability ex contractu and ex delicto, 436. contract, how affected by, 445. contributory, 144 t. doctrine of, general, not applicable to statements, 553. duties of judge and jury, 449. And see Conteietjtoey Negligence. equivalent to culpa, 17. evidence of, 442. failure in average prudence is, 439. fraud, not constituted by negligence however great, 288, 289. liability for, 1 1 . liability for, concurrent with another party's liability on con- tract, 550, 551. depends on probability of consequence, 40. notice of special danger through personal infirmity, 457, 458. notion of, general, 434. presumed, when, 446, 447. presumption of, in cases of unexplained accident, 517. principles illustrated by railway cases, 448. And see Kaiiwat. recklessness aggravates, 191. risk, knowledge of, opposed to duty of warning, 166. risk, voluntary, excludes question of, 164. servant, action for conversion against, grounded on, 362 i. wrong, negligence of independent persons may be joint, 468. Neetotjs oe Mentai, Shock: damages for, whether too remote, 51. Newspapee : Law of Libel Amendment Act, 1888. .274. special procedure in action for libel, 277. vendor of, not Uable for libel, 252. volunteered reports to, 274. New Teial : for excessive or inadequate damages, 184. And see Couet. New Zeaiand : lunatic liable for assault in, 55. INDEX. 683 Notice : effect of, on Kability for negligence, 438, 439. judicial, of common facts, 447. of special circumstances, as affecting measure of damages, 558, 559. of special risks, 457, 458. NuiSAKCE : abatement of, 419—424, 430. And see Abatemejstt of NtriSANOB. acts useful in themselves and in convenient places may be, 410, 411. " coming- to nuisance," doctrine abrogated, 409. common, right of, nuisance to, 420. covenant, in, construction of word, 408 a. damage must be shown, 187. damage, particular from public, 403. from private, 405. damages, 424. enjoyment and comfort affected by, 407. forms of, miscellaneous, 412. highway, to, 422. injunction, 425. injury common to many persons, 414. jura in re aliena affected by, 407. lessor and lessee, liability of, 432. light, obstruction of, 415. And sec Light. market or ferry, to, 419. measure of, 408. ownership, affected by, 406. parties entitled to sue for, 430. parties liable for, 431. property, by use of, for unusual purpose, 413. public or private, 401. remedies for, 420. single accident, whether it can be, 489 ». statutory authority, when it justifies, 132, 133. vendor or purchaser, liability of, 433. what amounts to, 408 sqq. Obligation : and ownership, 548. ex delicto in Koman law, 16. quasi ex delicto, 18. mposed by statute, 27, 130. 684 INDEX, Occupation : interference "with, 335. offensive, not justified by innocent or necessary character of, 410. Office : judicial or ministerial, 126. Officees : costs of actions against, 212 t. excess of authority by, 120. liability of, for malicioas misconduct, 334. limitation of actions against, 211, 212. naval and military, acts of, 121. public, acts of, 119. subordinate, to what extent protected, 121. Omission : of legal duty, liabiUty for, 25. Parent: authority of, 127. Pakliament : disciplinary orders of House of Commons not examinable, 122. fair reports of debates in, 272. governing body may be given absolute powers by, 124, 126. petition to, action does not lie against member for refusal to present, 334 i. position of presiding and returning of&cers at election for, 126. proceedings of committee, 265. protection of words spoken in, 264. publication of papers and proceedings, 271, 272. Paktneeship : expulsion of partner, 126. liability of firm for partner's fraud, 97. Passenqee : rights of person accepted as, 537, 542. " Passinq Ofp " : action for, distinguished from action for deceit, 313 0. Patent Eights : principle of slander of title extended to, 311. relation of, to possession, 376. Peecolation : underground, no cause of action for, 153 sjj. Person : wrongs to the, 7. See Assault. Peesonai, Action : classification of forms of, 563. effect of party's death on, 62. INDEX. 685 Peesonal Capacity : with respect to torts, 54 sqq. Pebsonaii Estate : damaged by personal injury, no cause of action, 67. " PiCKETLNO," 236 le. And see Trade Disputes Act in Appendix. Pilot: statutory exemption of owner from liability for acts of, 83, 81. Plaintiff : a wrong-doer, may still recover, 177. Pledgee : abuse of authority by, when conversion, 364. Poison : responsibility of persons dealing with, 504 sqq. Possession : constructive, 345 m. copyright, relation of, to, 376. derivative, 373. derived through trespasser, 374. distinguished from custody, 343. immediate, plaintifB in trover must have right to, 356. more regarded than ownership in early law, 341. obtaining of, by trick, 556. owner not in, how far liable, 524. patents, relation of, to, 376. protected by law, the reason why, 371. restitution of, after forcible entry, 385. right to, commonly called property, 342. taken by trespass, when complete, 386. trespass, relation of, to, 344. without title, protected against strangers, 369. Post-Caed : sending defamatory matter on, 275. PoUNii : feeding animals in, 392. Peesobiption Act : eflFect of, on right to light, 416. Peincipal and Aqent : liability of agent misrepresenting principal's authority, 540. liability of principal for fraud of agent, 303. for wrong of agent, 74 — 76. reason of liability, 306, 307. when princ pal must indemnify agent, 200. where principal is a corporation, 305, 306. PEiNTiNa OF Libel: primd facie a publication, 251 y. Peison: what is, 221. 686 INDEX. Peivileoe : " ataolute," in law of defamation, 265. communications in interest of society or in self -protection, of, 268, 269. conditions of, 267. fair reports, 271. friendly advice, 329. information for public good, 270. judicial and parliamentary, in law of defamation, 264. privileged occasions, and excess, 268, 275. "qualified," 266. Pkize-Fight : presence at, 162. why unlawful, 161. Pkopebtt : defence of, acts done in, 173 — 175. duty to respect, 22, 338. goods, of, commonly means riglit to possess, 341, 356. transferred by satisfied judgment in trover, 369. wrongs to, 7 sqq. Pr.osECUTiOK : whether necessary before offender can be civilly sued, 202 sqq. Pbospectus of Company : false statements in, 28-1, 297, 300. Ptjblioation : by agent, 253. of libel, what, 251. Public AuiHOEiTiES Peoteotion Act, 1893.. 120, 121, 211, 212. Public Oefioee : superior, when action does not he against, 84. Public Woeks : responsibility of body having management of, CI. PuECHASEB : innocent, may be liable for conversion, 360 — 362. QuiNN V. Leathem: doctrine of, 324 — 326. Railway : breaking down of embankment, 495, 496. distraint of engine damage feasant, 390 o. duty of company as to safety of carriages and platforms, 513, 614. evidence of negligence in accidents on, 443. execution of undertaking, immunity or liability of company for damage in, 131 — 134. "invitation to alight " cases, 448 sqq., 480. INDEX. 687 Railway— co»W«!Mrf. level crossing oases, 448 sqq. liability of company for mistaken acts of servants, 91. for assumption of duty, independent of contract, 537, 542. overcrowded carriage, 47. remoteness of damage suffered on, 39, 40, 46, 47. sparks, escape of, 464, 494, 495, 500, 501. liability under Railway Fires Act, 1905 . ,496. time-tables, effect of statement in company's, 296. train fails to stop, 480, 481. unguarded crossing, responsibility of company for, 43. Rats : damage by, 493 a. Reasonable Cause : for imprisonment, 22.5. Recaption : of goods wrongfully taken, 387, 397. Remedies : alternative, on one cause of action, 529. at common law in general, 181. damages, 183—193. damages or compensation for deceit, 196. injunctions, 194. seU-help, 182. statutory duty, for breach of, 197. trespass and conversion largely interchangeable, 345. Remoteness: of consequence or damage, 31 sqq., 330, 331. Replevin, 361. Repokts : confidential, to official superiors, 268. fair, of public proceedings, 271. naval and military officers, of, how far privileged, 265 . newspaper, of public meetings, 274 . Rbpeesentation : compensation or damages for false, 196. to a class of persons, 296. Res Judicata, 199. Revenue Oftioebs : protection of, in cases of forcible entry, 390. Reveesion : injury to, measure of damages, 189, 350. Bevisino Baeeistee : powers of, 117. Revocation : of licence, 378, 382. 688 INDEX. Kmht : absolute, at least nominal damages recoverable for violation of, 184, 185. assertion of, distinguished from self-defence, 175. exercise of, not cause of action, 149. "whether made wrongful by malice in fact, 158. Risk: voluntary taking of, 100, 144 t, 147, 164, 167, 170, 179. EoMAN Law : concurrent breach of contract with delict in, 548. contributory negligence in, 583. death of party, effect of, on rights of action, 62. distinction between right to personal security and right of property, 194. inevitable accident, man not liable for, 138, 139 e. hgis actiones in, compared with common law forms of action, 628. noxal actions of, 137. obligations, ex delicto^ 16. possession, 344, 371 /', ». theory of culpa, 530/. value of human Hfe, 65 n. RUNNINQ-EOWN Cases, 145, 193. Rylands v. Fletchee : American opinion as to, 489 /. consistent with Roman-Dutch law, 489/. the rule in, 485 sqq. SCANDALTUI MAQNATtTM, 240 C. ScHOOLMASTEK : authority of, over pupil, 127. SciENTEE : doctrine of, as to damage by animals, 499. .Scotland (law of) : aemulatio vicini, 158. compensation for damage by death, 68 t, 71. theory of "common employment" forced upon, 100. trespass by parachute, 38^A. Seamen : not within Employers' Liability Act, 579. Seduction : actions for, 231. damages for, 191, 233. what is service for this purpose, 232 sqq. INDEX. 689 Self- Defence : against wrongful assault, 219. assertion of disputed right distinguished from, 175. injuries to third person resulting from, 31. right of, 173. Self-Help, 182. And see Abatement, Disteess, Recaption. Separate Pkopebty : costs and damages payable out of, 58. trespasser on, 59. whether husband can be indemnified from, 59. Seevant : acts of, outside his authority, 91, 92. arrest of supposed offender by, 9 1 . conversion by, in master's interest, 357, 358, 362. custody or possession of, 343 h. departure from master' .s business, 86. fraud of, 94. injuries to, by fellow-servants, 98. injury to, when master interferes, 104. intimidation of, 236. may change master^™ tempore, 82. menace to, 236. mistake or excess of authority by, 89. negligence of, in conduct of master's business, 85. seduction of, 231 sqq. service, what is course of, 84. who is, 79. wilful wrongs of, for master's purposes, 93. And see Mastee and Sebvaut. Seevicb : of young child, 234. proved or presumed in action for seduction, 231 sqq. Sheeiff : immunity or liabiKty of, 121. power and duty of, to break doors, &o., in execution of process, 389. remaining unduly long in possession, 396. Ship: authority of master, 128. cargo, duty of owner as to safety of, 514. contributory negligence of, 460, 461, 475. damage, division of, rule of Admiralty as to, 475. P. T. Y Y /7 690 INDEX. Ship — continued. liability of cwner as carrier, S32 n. for acts of master, 83. tow afEected by neglect of statutory regula- tions, 198. shipowner's rights to refuse services of particular tug, 156, 157. wi'eck, simieii, duty of owner to warn other vessels, 513. Shootino : across another's land, whether a trespass, 348. liability for accident in, 142. Skili. : requirement of, in particular undertakings, 28, 446, 530 d. Slakdeb : actionable, when, 241. though no damage sustained, 186. disparagement in office or business, 247. imputation of crime, 244. of contagious disease, 246. indirect damage in business, 249. injunction to restrain, 194. Slander of Women Act, 1891 . . 246. special damage, 242. temporal loss necessary to special damage, 243. And see Defamation. Slandeb of Title, 152, 307. nature of damage required to support action of, 308, relation of, to ordinary defamation, 307. SovEBEiGN : foreign, cannot be sued in England for political acts, 115. SovEEEiONTY : acts of, how far examinable, 116. Special Damaoe : involves definite temporal loss, 243. Si'Oet: hm-t received in lawful, 161—164, 218, 219. Speinq Guns : authorities on injuries by, 165. threat of, useless, 398, 399. Staiecase : when not dangerous, 447, 456. Stand : safety of, guaranteed by contractor, 512. State : acts of. 111. INDEX. 691 Statute : acts authorized by, 130. caution required in exercise of powers conferred by, 132. dvities created by, breach of, 26, 27, 197. remedy under, when exclusive, 27, 28. SlEANaEE : has no cavise of action on breach of contract, 550. Sunday : statutes for the observance of, in United States, 179. SuKQEON : action against, for misfeasance, 530 d. Teleoeaph : conflict between English and American authorities as to rights of receiver of message, 551 s(jq. sending defamatory mattiT by, 251. Tenants : intimidation of, 236. in common, trespass between, 367. Tenteeden's Act (Loed) : how far now operative, 301 — 303. Theatee : hissing in, lawful in absence of malice, 320, 321. Thied Peeson : intervention of, no excuse for negligence, 50 li. injuries resulting to, from self-defence, 33, 176. title of, justification under, 369. wrongful act of, injury resulting from, 471 /. TiMEEE : waste by cutting, 354. Toet: cases of, whether contract or no conti'act between same parties, 537. cause of action in, co-existing with contract, 541. classification of, 6, 19. common-law term exclusively, 5. costs in actions founded on, 397. distinguished from breach of contract, 2. domestic duties, 3. duty not to do unlawful harm ,21. infant, liability for, 54, 56, 57. law of, in three main heads, 22. nature of, in general, 1, 9. relation of, to contract, 526 sqq. to moral wrong, 12. statutory divisions of actions founded on contract or, 570. waiver of, for purpose of suing in contract, 539. wrongs which are not, 5. Y Y 2 692 INDEX. Traction Enqine : on high-way, 501. Teade : offensive, not justified by innocent or necessary character, 410. Trade Disputes Act, 1906. .96, 330. Teade-Maekb : protection of , 311. Teade Union : damages against, in quasi-corporate^ capacity, cannot be given since Trade Disputes Act, 330. not now liable for "wrongs of servants, 96. Tkap: dangers in nature of, 516, 522, 524. set by railway company, 642. Tree : projecting over neighbour's land, 421, 491. right to cut overhanging branches, 421. Trespass : ab initio, 394. ah initio cannot ai-ise from misfeasance, 395, 396. above or under ground, 348. actual damage not material in, 186. aggravated, 190, 191. bailee, by, 358, 369. balloon, by, 347, 348. case, or, whether action for seduction in, 230 g, i. cattle, by, 348, 496. continuing', 387. continuing, restrainable by injunction, 399. costs in action for, 397. damages in actions for, 183, 191. felony, merged in, 202. foreign land, to, not actionable, 207. fox-hunting, in, 394. goods, to, how committed, 349. inevitable accident excuses, 135 sqq. invasion of property, however slight, is, 9. justification of, 377—394. justification, special, when proper, 145, 146. land or goods, to, 346, 349. liability for consequences of, 39. lunatic, liability of, 55. necessity as excuse for, 171, 172, 392. nuisance, distinguished from, 401 sqq. INDEX. 693 Teespass — coiitin ued. owner entitled to immediate possession may sue for, 372. penal action criginallj-, 568. possession derived through trespasser, 374. rationalized version of law of, 15. relation of, to conversion, 314. to larceny, 343, 344, 349, 356. shooting, across another's land, whether a, 348. tenants in common, between, 367. theory of, 142. wanton, 190. wife, taking away of, &c., 228, 229. writ of, 13. Teespassek ; effect of delivery by, 374. not disqualified to sue, 177. Teovek : action of, 14, 342. property transferred by satisfied judgment in, 359. special action in some eases where trover does not lie, 364, 365. Teuetee in Banketjptct : not bound to prosecute for felony before bringing civil action, 204. Teuth: as justification, 261. Unfaie Competition : American law of, 313. development of law of, 312. "passing off," action for, distinction between and action for deceit, 313 o. underselling is not, 313. no action maintainable for, 152. Univeesity : quasi- judicial powers of , 124. LInlawtul Ageeement : cause of action connected with, 180. " Unlawfully " • judicial use of, 327. Usee : presumption drawn from, 353. Vehictlb: safety of, how far guaranteed by builder, 515. Vendoe: liability of, for nuisance, 433. Venue : old law of, 206. Vioebot: local actions against, 114. Vi ET Aemis: what trespass is, 161. 694 INDEX. VOLUNTAEY TAKING OF RlSK : continuing work under risk which is incident to work itself is, 167. distinction between inevitable accident cases and, 167. distinction where no negligence, 169. question whether plaintiff took the risk is usually question of fact, 167, 168. relation of employer's negligence to, 168, 169. Volunteee: assistant, is as regards master in same position as servant, 104. Wae : executive acts in time of, 122. "Waeeantt : implied, of agent's authority, 540. obligation of, on sale for specific purpose, 514 e. Waste : what is 3.52. American law as to, 352. equitable, 354 5. landlord and tenant, as between, 355. reasonable user of tenement is not, 353. remedies for, 354. timber, by cutting, &c., 364. Watee : escape of, from canal, 494. responsibility of persons artificially collecting, 485. except where storage is a duty, 494. under land, rights of using, 153. Way : limited right of, 392 e. WHAEFiuaBE ; duties of, as regards river bed in his possession, 513. WiHnows : alteration in, does not destroy claim to light, 418. Witness : immunity of words'spokeu by, 264. Women : imputations of uuchastity against, 246. WoEDS : alleged defamatory construction of, 253. cannot be assault, 218. repetition of, 252, 255. WoEKMAif : who is, within Employers' Liabflity Act, 1880 , . 578 «/. Woezmien's CoiiPENSATiON Acts, 1897 and 1906., 98, 107, 471 I, 679. Weeck : sunken, duty of owner to warn other vessels, 513. INDEX. 695 Weit: of account, 13 Ic. of assize, 14. of covenant, 13 k. of debt, 13 /.-. of deceit, 13 /. of detinue, 13, 15. of entry, 14. of right, 13 k, 14. of trespass, 13 I. of trespass on the case, 1 3 . "WEONa-DOEES : contribution between, 199, 200. do not forfeit rights of action, 177. joint and several liability of joint, 199. " Weongftolt " : judicial use of, 327. Weonos : to the person, 7. to property, 7. to person and property, 8. See ToET. THE END. LONDON : PBINTED BY 0. F. EOWOETH, GEEAT NEW STEEET, E.C.