^\xxwt\\ Slam ^rljuol Sibratg 
 
Cornell University Library 
 KD 1949.P77 1887 
 
 The law of torts :a treatise on the prin 
 
 3 1924 022 355 733 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924022355733 
 
THE LAW OF TORTS. 
 
 c. 
 
 A TREATISE 
 
 ON THE 
 
 PRINCIPLES OF OBLIGATIONS ARISING 
 
 FROM CIVIL WRONGS IN THE 
 
 COMMON LAW. 
 
 BY 
 
 FREDERICK POLLOCK, 
 
 OF Lincoln's inn, esq., baeeistee at-law ; 
 
 CORPUS PEOFESSOR Or JUEISPEDDENCE IN THE UNIVERSITY OP OXFOliD ; PEO- 
 
 FESSOB OF COMMON LAW IN THE INNS OF COURT ; LATE FELLOW OP 
 
 TRINITY COLLEGE, CAMBRIDGE ; AND HONORARY DOCTOR 
 
 OF LAWS IN THE UNIVERSITY OF EDINBURGH. 
 
 jLuthor of " Principles of Contract," "A Digest of the Law of 
 
 Partnership," &c. 
 
 PHILADELPHIA : 
 THE BLACKSTONE PUBLISHING COMPANY, 
 
 1887. 
 
[,fl.iC>7<? (-fee,.?..,. -.^e.ij 
 
 Entered according to the Acts of Congress in the year 1887, by the Black- 
 
 STOKE Publishing Company, in the office of the Librarian 
 
 of Congress, at Washington, D. C. 
 
 (2302) 
 
TO THE MEMORY 
 
 OF 
 
 THE RIGHT HONOURABLE 
 
 SIE JAMES SHAW WILLIS, Knt, 
 
 SOMETIME A JUSTICE OF THE COMMON BENCH, 
 
 A MAN COURTEOUS AND ACCOMPLISHED, 
 
 A JUDGE WISE AND VALIANT. 
 
 (2303) 
 
(■V) 
 
 TO THE HONOURABLE 
 
 OLIYBR WENDELL HOLMES, Juni?., 
 
 A JUSTICE OF THE SUPREME JUDICIAL COURT OF THE COMMON- 
 WEALTH OF MASSACHUSETTS. 
 
 Mt Dear Holmes, 
 
 A preface is a formal and a tedious thing at best; it is at 
 its worst when the author, as has been common in law- 
 books, writes of himself in the third person. Yet there are 
 one or two things I wish to say on this occasion, and can- 
 not well say in the book itself; by your leave, therefore, 1 
 will so far trespass on your friendship as to send the book 
 to you with an open letter of introduction. It may seem a 
 mere artifice, but the assurance of your sympathy will en- 
 able me to speak more freely and natarally, even in print, 
 ttian if my words were directly addressed to the profession 
 at large. Nay more, I would fain sum up in this slight 
 token the brotherhood that subsists, and we trust ever 
 shall, between all true followers of the Common Law here 
 and on your side of the water; and give it to be understood, 
 for my own part, how much my work owes to you and to 
 others in America, mostly citizens of your own Common- 
 wealth, of whom some are known to me only by their pub- 
 lished writing, some by commerce of letters; there are some 
 also, fewer than I could wish, whom I have had the happi- 
 ness of meeting face to face. 
 
 When I came into your jurisdiction, it was from the 
 Province of Quebec, a part of Her Ma jesty' s domions which 
 is governed, as you know, by its old French law, lately 
 repaired and beautified in a sort of Eevised Version of the 
 Code Napoleon. This, I doubt not, is an excellent thing in 
 
 (2305) 
 
Tl TO JUDGE 0. W. HOLMES. 
 
 its place. And it is indubitable that, in a political sense, 
 tlie English lawyer who travels from Montreal to Boston 
 exchanges the rights of a natural-born subject for the com- 
 ity accorded by the United States to friendly aliens. But 
 when his eye is caught, in the every-day advertisements of 
 the first Boston newspaper he takes up, by these words — 
 "Commonwealth of Massachusetts: Suffolk to wit" — no 
 amount of political geography will convince him that he 
 has gone into foreign parts and has not rather come home. 
 Of Harvard and its Law School I will say only this, that I 
 have endeavoured to turn to practical account the lessons 
 of what I saw and heard there, and that this present book 
 is in some measure the outcome of that endeavour. It con- 
 tains the substance of between two and three years' lectures 
 in the Inns of Court, and nearly everything advanced in it 
 has been put into shape after, or concurrently with, free 
 oral exposition and discussion of the leading cases. 
 
 • 
 
 My claim to your goodwill, however, does not rest on 
 these grounds alone. I claim it because the purpose of this 
 book is to show that there really is a Law of Torts, not 
 merely a number of rules of law about various kinds of 
 torts — that this is a true living branch of the Common Law, 
 not a collection of heterogeneous instances. In such a 
 cause I make bold to count on your sympathy, though I 
 will not presume on your final opinion. The contention is 
 certainly not superflous, for it seems opposed to the weight 
 of recent opinion among those who have fairly faced the 
 problem. You will recognize in my armoury some weapons 
 of your own forging, and if they are ineffective, I must 
 have handled them worse than I am willing, in any reason- 
 able terms of humility, to suppose. 
 
 It is not surprising, in any case, that a complete theory of 
 Torts is yet to seek, for the subject is altogether modern. 
 The earliest text-books I have been able to find is a meagre 
 and unthinking digest of "The Law of Actions on the Case 
 for Torts and Wrongs" published in 1720, remarkable 
 chiefly for the depths of historical ignorance which it 
 occasionally reveals. The really scientific treatment of 
 
 (2306) 
 
TO JUDGE 0. W. HOLMES. VU 
 
 principles begins only with the decisions of the last fifty 
 years; their development belongs to that classical period 
 of our jurisprudence which in England came between the 
 Common ' Law Procedure Act and the Judicature Act. 
 Lord Blackburn and Lord Bramwell, who then rejoiced in 
 their strength, are still Avith us. It were impertinent to 
 weigli too nicely the fame of living masters; but I think 
 we m;iy securely anticipate posterity in ranking the names 
 of these (and I am sure we cannot more greatly honour 
 them) with the name of their colleague Willes, a consum- 
 mate lawyer too early cut off, who did not live to see the 
 inll fruit of his labour. 
 
 Those who knew Mr. Justice Willes will need no ex- 
 planation of this book being dedicated to his memory. 
 But for others I will say that he was not only a man of pro- 
 found learning in the law, joined with extraordinary and 
 varied knowledge of other kinds, but one of those whose 
 knowledge is radiant, and kindles answering fire. To set 
 down all I owe to him is beyond my means, and might be 
 beyond your patience; but to you at least I shall say much 
 in saying that from Willes I learnt to taste the Year Books, 
 a,nd to pursue the history of the law in authorities which 
 not so long ago were collectively and compendiously des- 
 pised as "black letter." It is strange to think that Man- 
 ning was as one crying in the wilderness, and that even Kent 
 dismissed the Year Books as of doubtful value for any pur- 
 pose, and certainly not worth reprinting. You have had a 
 noble revenge in editing Kent, and perhaps the laugh is on 
 our side by this time. But if any man still finds offence, 
 you and I are incorrigible offenders, and like to maintain 
 one another therein as long as we have breath; and when 
 you have cast your eye on the historical note added to this 
 book by my friend Mr. F. W. Maitland, I think you will 
 say that we shall not want for good suit. 
 
 One more thing I must mention concerning Willes, that 
 once and again he spoke or wrote to me to the effect of de- 
 siring to see the Law of Obligations methodically treated 
 
 (2307) 
 
Vm TO JUDGE 0. W. HOLMES. 
 
 in English. This is an additional reason for calling him to 
 mind on the completion of a work which aims at being a 
 contribution of materials towards that end : of materials 
 only, for a book on Torts added to a book on Contracts does 
 not make a treaties on Obligations. Nevertheless this is a 
 book of principles if it is anything. Details are used, not 
 in the manner of a digest, but so far as they seem called for 
 to develop and illustrate the principles; and I shall be more 
 than content if in that regard you find nothing worse than 
 omission to complain of. But the toils and temptations of 
 the craft are known to you at first hand; I will not add the 
 burden of apology to faults which you will be ready to for- 
 give without it. As to other readers, I will hope that some 
 students may be thankful for brevity where the conclu- 
 sions are brief, and that, where a favourite topic has in- 
 vited expatiation or digression, some practitioner may some 
 day be helped to his case by it. The work is out of my 
 hands, and will fare as it may deserve : in your hands, at 
 any rate, it is sure of both justice and mercy. 
 
 I remain, 
 
 Tours very truly, 
 
 FREDERICK POLLOCK. 
 
 Lincoln's Inn, 
 Christmas Vacation, 1886. 
 
 (2308) 
 
(ix) 
 
 TABLE OF CO:N^TE]SrTS. 
 
 Book I. 
 GENERAL PART. 
 
 CHAPTER I. 
 The Natuee of Toet in geneeal. 
 
 [The paging refers to the [ • ] pages, j 
 
 , ^ , . ' Page 
 
 Absence of authoritative definition 1 
 
 Historical distinctions . . . 5 
 
 Personal wrongs . . 7 
 
 Wrongs to property . . . 7 
 
 Wrongs affecting person and property . ... ... 7 
 
 Wilful wrongs . . ... 8 
 
 Wrongs unconnected with moral blame . 9 
 
 Wrongs of imprudence and omission .10 
 
 Historical anomaly of law of trespa.ss and conversion . 12 
 
 Early forms of action .... . . . . 13 
 
 Rationalized version of law of trespass . . . . 15 
 
 Analogies of Eoman law 16 
 
 Dolus and Oulpa 17 
 
 Liability quasi ex delicto 18 
 
 Summary of results . . . 18 
 
 CHAPTER II. 
 Peinciples of Liability. 
 
 Want of generality in early law 
 
 General duty not to do harm in modern law 
 
 Breach of specific legal duty ... 
 
 Duty of respecting property 
 
 Duties of diligence .... . . 
 
 Assumption of skill . .... 
 
 Exception of action under necessity 
 
 Liability in relation to consequences of act or default 
 
 Measure of damages 
 
 " Immediate cause " 
 
 Liability for consequences of wilful act 
 
 " Natural consequences " 
 
 " Natural and probable " consequence 
 Liability for consequences of trespass 
 
 (2309) 
 
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 34 
 
X TABLE OF CONTENTS. 
 
 CThe paging refers to the [•] pages.] 
 
 PAGE 
 
 Consequences too remote . ... 35 
 
 Liability for negligence . . 36 
 
 Contrasted cases of non-liability and liability : Cox v. Burbridge; Lee v. 
 
 Riley 40 
 
 Metropolitan Kail. Co. u. Jackson ■ . ■ ^■'■ 
 
 Non-liability for consequences of unusual state of things ; Blyth i. Bir- 
 mingham "Waterworks Co 42 
 
 Sharp V. Powell 42 
 
 Whether same rule holds for consequences of wilful wrong : Clark v. 
 
 Chambers . .43 
 
 Consequences natural in kind though not in circumstance . 45 
 
 CHAPTER III. 
 Pebsons affected by Toets. 
 
 1. Limitalions of Personal Capacity. 
 
 Personal status immaterial in law of tort : but capacity material ... 46 
 
 Exceptions : Convicts and aliens , 47 
 
 Infants .... 47 
 
 Married women : the common law . 49 
 
 Married Women's Property Act, 1882 . 49 
 
 Common law liability of infants and married women . 50 
 
 Corporations . 51 
 
 Resiionsibility of public bodies for management of works under their 
 
 control 51 
 
 2. Effect of a Party's Death. 
 
 Actio personalis moritnr cum persona . . ... .... 52 
 
 Qu. of the extension of the rule in Osborn v. Gillett 54 
 
 Exceptions: Statutes of Edw. III. giving executors right of suit for 
 
 trespasses . ... 56 
 
 Of Will. IV. as to injuries to property 57 
 
 No right of action for datoage to personal estate consequential on per- 
 sonal injury ... ... ... 57 
 
 Lord Campbell's Act : rights created by it 58 
 
 Construction 59 
 
 Interests of survivors distinct . 60 
 
 Statutory cause of action is in substitution not cumulative 61 
 
 Scottish and American laws ... . 61 
 
 Right to follow property vprongfully taken or converted 61 
 
 Rule limited to recovery of specific property or its value: Phillips r. Hom- 
 
 Iray . .^ . 62 
 
 3. Liability for the Torts of Agents and /Servants. 
 
 Command of principal does not excuse agent's wrong 63 
 
 Cases of special duty, absolute or in nature of warranty, distinguished 64 
 
 Modes of liability for wrongful acts of others: command and ratification , 65 
 
 Jlaster and servant .... 66 
 
 Reason of master's liability 67 
 
 Who is a servant .... 69 
 
 Specific assumption of control . . 70 
 Temporary transfer of service ... .71 
 
 " Power of controlling the work " explained . 71 
 
 What is in course of employment 72 
 
 (2310) 
 
TABLE OF CONTENTS. XI 
 
 CThe paging refera to the [*] pages.] 
 
 PAgb 
 
 (a) Execution of specific orders .... , . 7-2 
 
 (b) Negligence in conduct of master's business . ». 73 
 Departure or deviation from master's business . . 74 
 
 (c) Excess ar' mistake in execution of authority . 76 
 Interference with passengers by guards, &c. 77 
 Arrest of supposed ofl'eudei-s ... 78 
 Act wholly outside authority: master not liable . . 79 
 
 (d) Wilful trespasses, &c., for master's purposes . 80 
 
 Fraud of agent or servant 81 
 
 Liability of fiim for fraud of a partner 83 
 
 Injuries to servants by fault of fellow-servants . 84 
 
 Common law rule of master's immunity 
 
 Reason given in the later cases . . 
 
 Servants need not be about same kind of work 
 
 Provided there is a general common object 
 
 Relative rank of servants immaterial .... 
 
 Volunteer assistant on same footing as servant 
 
 Exception where master interferes in person 
 
 Employers' Liability Act, 1880 
 
 Resulting complication of the law 90 
 
 CHAPTER IV. 
 G-EN-BEAL Exceptions. 
 
 84 
 85 
 86 
 87 
 88 
 89 
 89 
 
 Conditions excluding liability for act prima faoie vrrongful , . . 92 
 
 G-eneral and particular exceptions ... 93 
 
 1. Acts of State. 
 
 Acts of state . . ,94 
 
 General ground of exemption 95 
 
 Local actions against viceroy or governor . . 96 
 
 Acts of foreign powers . . 97 
 
 Summary . 98 
 
 2. Judicial Acts. 
 
 Judicial Acts . . 99 
 
 Liability by statute in special cases . , . 100 
 
 Judicial acts of persons not judges 100 
 
 3, Executive Acts. 
 
 Executive Acts 101 
 
 Acts of Naval and Military Officers 103 
 
 Of other public authorities 104 
 
 Indian Act XVIII. of 1850 104 
 
 4. Quaj<i-.Tudicial Acts. 
 
 Acts of quasi-judicial discretion . 104 
 
 Rules to be observed 105 
 
 Absolute discretionary powers 106 
 
 Whether duty judicial or ministerial: Ashby d. White 106 
 
 5. Parental. and Quasi-Parental Authority. 
 
 Authority of parents . ... 107 
 
 Of custodians of lunatics . . 108 
 
 (2311) 
 
XU TABLE OP CONTENTS. 
 
 [The paging refers to the [*] pages.] 
 6. AutJiorities of Neeessdty. 
 
 PAGE 
 
 Of the master of a ship . . . . 108 
 
 7. Damage incident to authorized Acts. 
 
 Damage incidentally resulting from lawful act 109 
 
 Damage from execution of authorized works , . . 110 
 
 No action for unavoidable damage Ill 
 
 Care and caution required in exercise of discretionary powers . . 112 
 
 8. Inevitable Accident. 
 
 Inevitahle accident resulting from lawful act 115 
 
 On principle such act excludes liability 117 
 
 Apparent conflct of authorities ... 118 
 
 American decisions: The Nitro-Glycerine Case (Sup. Ct. U. S.) 119 
 
 Brown «. Kendall (Mass.) . . 120 
 
 Other American cases . 121 
 
 English authorities: cases of trespass and shooting . , 123 
 
 Cases where exception allowed . . 127 
 
 9. Exercise of Common Bights. 
 
 Immunity in exercise of common rights . . . 129 
 
 Digging wells, &c., in a man's own land ' ' 132 
 
 Chasemore v. Richards . . 132 
 
 Other applications of same principle . . . 133 
 
 Whether malice material in these cases 136 
 
 Eoman doctrine of " animus vicino nocendi " . . . 136 
 
 No exclusive right to names . 138 
 
 10. Leave and Licence. 
 
 Consent or acceptance of risk . . . 138 
 
 Express licence . . , 139 
 
 Limits of consent ... . 139 
 
 Licence obtained by fraud ..... 142 
 
 Extended meaning of volenti non fit injuria . 142 
 
 Relation of these cases to inevitable accident . . . 143 
 
 Distinction from cases where negligence is ground of action . 145 
 
 11. Works of Necessity . ' 146 
 12. Private Defence. 
 
 SelfKJefence . ... . 147 
 
 Killing of animals in defence of property ... 148 
 
 Injury to third persons in self-defence . 149 
 
 13. Plaintiff a urrong-doer. 
 
 Harm suffered by a wrong-doer . . ... 150 
 
 Sunday travelling: conflict of opinion in U. S. . . ... 152 
 
 Cause of action connected with unlawful agreement . ... 153 
 
 CHAPTER V 
 Of Remedies foe Toets. 
 
 Diversity of remedies . . I54 
 
 Self-help . . .....' 155 
 
 Judicial remedies : damages . . i5g 
 
 (3312) 
 
TABLE OF CONTENTS. XUl 
 
 [The pacing refers to the [*] pages. ] 
 
 FAGB 
 
 Nominal damages 157 
 
 Nominal damages possible only when an absolute right is infringed . . 158 
 Cases where the damage is the gist of the action . .... 159 
 
 Peculiai-ity of law of defamation . ... 160 
 
 Ordinary damages 161 
 
 Exemplary damages 162 
 
 Analogy of breach of promise of marriage to torts in this respect . 164 
 
 Mitigation of damages 164 
 
 Concurrent but severable causes of action . . ' 165 
 
 Injunctions . . . 165 
 
 On what principle granted 166 
 
 Former concurrent jurisdiction of common law and equity to give com- 
 pensation for fraud . . . 167 
 
 Special statutory remedies when exclusive . . 168 
 
 Joint wrong-doers 170 
 
 Rules as to contribution and indemnity . 170 
 
 Supposed rule of trespass being " merged in felony " . 172 
 
 M"o known means of enforcing rule if it exists 
 
 Locality of wrongful act as affecting remedy in English Court . 
 Acts not wrongful by English law 
 Acts justified by local law . 
 Act wrongful by both laws 
 Phillips!'. Eyre .... 
 
 Limitation of actions . 
 
 Suspension of the statute by disabilities 
 
 Special protection of justices, constables, &c. . . . 
 
 Exception of concealed fraud 
 Conclusion of General Part 
 
 Book II. 
 
 SPECIFIC WRONGS. 
 
 CHAPTER VI. 
 Peksonal Weongs. 
 
 173 
 175 
 175 
 176 
 176 
 177 
 179 
 180 
 181 
 181 
 181 
 
 1. Assault and Batten/ 
 
 What is a battery ^^ 
 
 What an assahlt . . . ^°^ 
 
 Excusable acts ... ... 1°2 
 
 Self-defence ]°L 
 
 Menace distinguished from assault 187 
 
 Summary proceedings when a bar to civil action 188 
 
 II. False Imprisonment. 
 
 What is false imprisonment • • • ■ |88 
 
 Justification of arrest and imprisonment . . . . 190 
 
 Who is answerable • ■ 1^0 
 
 Reasonable and probable cause ^^'' 
 
 (2313) 
 
XIV 
 
 TABLE OF CONTENTS. 
 
 [The paging refers to the [*] pa^es.] 
 III. Injuries in Family Relations. 
 
 PAGE 
 
 Protection in personal relations 194 
 
 Historical accidents of the common law herein 195 
 
 Trespass for taking away wife, &c., and per quod servitium amisit . . 195 
 
 ' ' Criminal conversation "... , . .... 196 
 
 Enticing away servants .... . 197 
 
 Actions for seduction in modern practice . . . 198 
 
 Damages . . . . . 200 
 
 Services of young child .... . . 200 
 
 Capricious operations of the law . .... ... 201 
 
 Constructive 'Service in early cases 201 
 
 Intimidation of servants and tenants . . 202 
 
 CHAPTER VII. 
 
 Defamation. 
 
 Civil and criminal jurisdiction 
 Slander and libel . . 
 
 1. Slander. 
 
 "When slander is actionable .... 
 
 Meaning of "^nma /ocie libellous " . . 
 
 Special damage . . 
 
 . Repetition of spoken words 
 
 Special damages involves definite temporal loss 
 Imputation of criminal offence ... 
 Charges of mere immorality not actionable 
 
 Imputation of contagious diseases 
 
 Evil-speaking of a man in the way of his business . . . 
 Words indirectly causing damage to a man in his business 
 
 2. Defamation in General. 
 
 Defamation ... 
 ." Implied malice " 
 What is publication . . 
 Vicarious publication .... 
 
 Construction of words: Innuendo . . . 
 
 Libellous tendency must be probable in law and proved in fact 
 Repetition and reports may be libellous ■ . 
 
 3. Exceptions. 
 
 Exceptions : fair comment 
 
 What is open to comment, matter of law 
 
 Whether comment is fair, matter of fact 
 
 Justification on ground of truth . . 
 
 Must be substantially complete 
 
 Defendant's belief immaterial ... 
 
 Parliamentary and judicial immunity 
 
 Other persons in judicial proceedings . 
 
 Reports of officers, &c. , . . . 
 
 Qualified immunity of "privileged communications' 
 
 Conditions of the privilege 
 
 ' ' Express malice " 
 
 What are privileged occasions . . 
 
 (2314) 
 
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TABLE OF CONTENTS. XV 
 
 [The paging rel'ers to the [•] paging.] 
 
 PJiQE 
 
 229 
 230 
 230 
 231 
 231 
 
 Slontl or social duty .... 
 
 Selt-protection 
 
 Information for public good .... 
 
 Fail' reports .... 
 
 Parliamentary papers . . .... 
 
 Parliamentary debates and judicial proeeedin};s ... . 232 
 
 Volunteered reports ... 232 
 
 Xewspaper Libel and Registration Act, l.'^Hl 233 
 
 Excess of pri\ ilege . 233 
 
 Honest belief is not necessarily reasonable belief 234 
 
 Statutory defences ... .... . 2.3r> 
 
 CHAPTER VIII. 
 Weongs of Feaud and Malice. 
 
 I. Deceit. 
 
 Nature of the wrong . . 236 
 
 Concurrent jurisdiction of common law and equity . 236 
 
 Difficulties of the subject : complication with contract 237 
 
 Questions of fraudulent intent . . 238 
 
 Fraud of agents 239 
 
 General conditions of right of action 239 
 
 (a) Falsehood in fact 241 
 
 Misrepresentations of law 242 
 
 Falsehood by garbled statements . 243 
 
 (b) Knowledge or belief of defendant . 243 
 
 Representations subsequently discovered to be untrue . . 244 
 
 Reckless assertions . 245 
 
 Breach of special duty to give correct information 246 
 
 False assertions as to matters within party's former knowledge 247 
 
 (c) Intention of the statement . 248 
 
 Representations to class: Polhill v. "Walter 249 
 
 Denton w. G. N. R. Co. 250 
 
 Peek V. Gurney . . . . . 250 
 
 (d) Reliance on the representation 251 
 
 Means of knowledge immaterial without independent inquiry 252 
 
 Perfunctory inquiry will not do ... . ... 253 
 
 Ambiguous statements . . . . . 254 
 
 (e) Lord Tenterden's Act 254 
 
 Quaere as to law under .Judicature Acts 256 
 
 Misrepresentation by agents . 256 
 
 Liability of corporations herein 258 
 
 Reason of an apparently hard law 259 
 
 II. Slander of Title. 
 
 Slander of title 260 
 
 Recent extensions of the principle 261 
 
 Trade marks and trade names 263 
 
 III. Malicious Prosecution and Abuse of Process. 
 
 Malicious prosecution 264 
 
 Malicious civil proceedings ... 265 
 
 (2315) 
 
XVI 
 
 TABLE OF CONTENTS. 
 
 [The paging refers to the [•] pages.] 
 IV. Oilier Malicious Wrongs. 
 
 Conspiracy 
 
 Malicious interference with one's occupation 
 
 Contract . . . , , 
 
 Or franchise 
 Maintenance . ... 
 
 PAGE 
 
 267 
 269 
 270 
 270 
 271 
 
 CHAPTER IX. 
 Weongs to Possession and Peopebtt. 
 
 I. Duties regarding Property generally 
 
 Absolute duty to respect other's property 
 
 Title, justification, excuse . 
 
 Title dependent on contract . . . . .... 
 
 Exceptional protection of certain dealings in good faith 
 Common law rights and remedies 
 Possession and detention 
 Trespass and conversion . 
 Alternate remedies 
 
 II. IVespass. 
 
 What shall be said a trespass 
 Quaere concerning balloons 
 Trespass to goods 
 
 III. Injuries to Reversions. 
 
 Vfrongs to an owner not in possession 
 
 IV. Waste. 
 
 What is waste . . 
 
 Modern law of waste , .... 
 
 Tenants for life .... 
 
 Landlord and tenant 
 
 V. Conversion. 
 
 Relation of trover to trespass 
 
 What amounts to conversion . . 
 
 Acts not amounting to conversion 
 
 Dealings under authority of apparent owner 
 
 Acts of servants . . . . 
 
 Redelivery by bailees . . 
 
 Abuse of limited interest 
 
 VI. Injuries between lenanis in Common. 
 
 Trespasses between tenants in common 
 
 VII. Extended Protection of Possession. 
 
 Rights of de facto possessor against strangers 
 
 Rights of owner entitled to resume possession ... 
 
 Rights of derivative possessors . . . 
 
 Possession derived through tresspasser 
 
 (2316) 
 
 272 
 
 272 
 273 
 274 
 275 
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 278 
 279 
 
 280 
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 283 
 
 285 
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 298 
 
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TABLE OP CONTENTS. 
 
 XVll 
 
 [The paglug ref era to the [•] pages. ] 
 
 VIII. Wrongs to Easements, &c. 
 
 Violation of incorporeal rights . 
 
 IX. Grounds of Justification anil Excuse. 
 
 License . . .... ... 
 
 Eevocation of licence 
 
 Distinction trom grant as regards strangers 
 Justification by law 
 Ee-entry: herein of forcible entry 
 Fresh re-entry on tre.spivsser 
 
 Eeeaption of goods 
 
 Process of law : breaking doors 
 
 Distress 
 
 Damage feasant . 
 Entry of distrainor 
 Trespasses justified by necessity 
 Fox-hunting not pri-saleged . 
 Trespass ab initio ... 
 
 X. Bemedies. 
 
 Taking or retaking goods 
 Costs where damages nominal 
 Injunctions . ... 
 
 Effect of changes in procedure 
 
 PAGE 
 
 304 
 
 30.-) 
 30G 
 308 
 309 
 309 
 312 
 313 
 314 
 31.'") 
 
 31 r, 
 
 310 
 317 
 .319 
 319 
 
 321 
 322 
 323 
 323 
 
 CHAPTER X. 
 Nuisance. 
 
 Nuisance, public or private 
 
 Private right of action for public nuisance 
 
 Special damage must be shown ... 
 
 Private nuisance, what . . 
 
 Kinds of nuisance affecting — 
 
 1. Ownerehip .... . .... 
 
 2. lura in re aliena . 
 
 3. Convenience and enjoyment . 
 
 Mea.sure of nuisance 
 
 Inj ury to health need not be shown .... 
 
 Plaintiff not disentitled by having come to the nuisance 
 
 Innocent or necessary character of offensive occupation, or convenience 
 place, no answer . . . . . . 
 
 Modes of annoyance . . 
 
 Injury common to the nlaintiff with others . .... 
 
 Obstructions of lights . . . ... 
 
 Nature of the right to light 
 
 Any substantial diminution is a wrong 
 
 Supposed rule as to angle of forty-five degrees 
 
 Enlargement or alteration of lights . 
 
 "Nuisance" to market or ferry 
 
 Remedies for nuisance .... 
 
 Abatement 
 
 B LAW OF TOETS. (2317) 
 
 of 
 
 324 
 325 
 326 
 
 328 
 
 329 
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 333 
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 336 
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 340 
 
XVIU TABLE OF CONTENTS. 
 
 [The paging refers to the [*] pages. ] 
 
 PAGE 
 
 Notice to wrong-doer ... . . . 341 
 
 Nuisances of omission ... ... 342 
 
 Old writs . 343 
 
 Damages . . ... 343 
 
 Injunctions . . ... •". 344 
 
 Difficulty or expense of abatement no answer ... . 348 
 
 Parties entitled to sue for nuisance 349 
 
 Parties liable ... 350 
 
 CHAPTER XI. 
 Negligence. 
 
 I. The General Gonception. 
 
 Omission contrasted with action as ground of liability . 352 
 
 General duty of caution in acts . . . 353 
 
 Overlapping of contract and tort . . . 353 
 
 Definition of negligence , . . ... 355 
 
 Standard of duty is external . . . . . 357 
 
 Diligence includes competence . . . . . . 358 
 
 II. Evidence of Negligence. 
 
 Negligence a question of mixed fact and law . . . . 359 
 
 Burden ol proof . ... ... . 360 
 
 Where there is a contract or undertaking ... . 362 
 
 Things within defendant's control . . 363 
 
 On evidence sufficient in law, question is for jury . . . 364 
 
 Metropolitan E. Co. v. Jackson ... . 365 
 
 Cases of level crossings . .... 367 
 
 " Invitation to alight " . . . 368 
 
 Complications with contributory negligence ' 36!) 
 
 " Evidence of negligence ;" Smith v. L. & S. W. E. Co 369 
 
 No precise general rule . . . 371 
 
 Due care varies as apparent risk : application of this to accidents through 
 
 personal infirmity . . . 372 
 
 Distinction where person acting has notice of special danger to infirm or 
 
 helpless person . . . 373 
 
 III. Contributory Negligence. 
 
 Actionable negligence must be proximate cause of harm : where plaintift's 
 
 own negligence proximate cause, no remedy . . 374 
 
 Tuff ?). Warman ... . . . 375 
 
 Eadley v. L. & N. W. E. Co 376 
 
 Earlier illustrations : Davies v. Mann . 378 
 
 Butterfield v. Forrester 379 
 
 Where defendant's negligence not proximate cause for other reasons . 380 
 
 Collisions where both drivers are negligent . . 381 
 
 Accidents to children in custody of adult ... . ... 381 
 
 Children, &c. unattended . . . 382 
 
 "Identification" .... 383 
 
 Admirality rule of dividing loss 385 
 
 (2318) 
 
TABLE OF CONTENTS. XIX 
 
 [The paging refers to the [*] pages.] 
 IV. AuxUiari/ Rules and Presumptions. 
 
 PAGE 
 
 Action iinder difficulty caused by another's negligence 386 
 
 No duty to anticipate negligence of others I!h7 
 
 Choice of risks under stress of another's negligence 388 
 
 CUiyurds c. Dethick 388 
 
 Doctrine of New York Courts 390 
 
 Difficulty where negligence of more than' one person concurs 301 
 
 CHAPTER XII. 
 Duties of Insxieing Safety. 
 
 Exceptions to general limits of duties of caution 393 
 
 Eylands v. Fletcher . . . 394 
 
 Exception of act of God . 400 
 
 Act of stranger, &c. 401 
 
 Authorized works 402 
 
 G. W. E. Co. of Canada r. Braid . . ... . 403 
 
 Other cases of insurance liability 404 
 
 Duty of keeping in cattle . . 404 
 
 Dangerous or vicious animals ....'. . . . 40G 
 
 Fire, firearms, &c . 407 
 
 Duty of keeping in fire. 407 
 
 Carrying fire in locomotives . . 408 
 
 Fire-arms: Dixon ;.. Bell 409 
 
 Explosives and other dangerous goods . 410 
 
 Gas escapes . 411 
 
 Poisonous drugs: Thomas v. Winchester 411 
 
 Difficulties felt in England: George r. Skivington 413 
 
 Duties of occupiers of buildings in respect of safe repair .... . 414 
 
 Jlodem date of the settled rule: Indermaur c. Dames 415 
 
 Persons entitled to safety . . 417 
 
 Duty in respect of carriages, ships, <S:c. 418 
 
 Limits of the duty . . '19 
 
 Duty towards passers-by ... - 4:20 
 
 Presumption of negligence (res !>.«( /0()r»/('«/-) 421 
 
 Distinctions . . . 424 
 
 Position of licenses . 4-4 
 
 Host and guest -426 
 
 Liability of licensor for "ordinary negligence" 427 
 
 Owner not in occupation .... . 427 
 
 Actions on the case 
 
 CHAPTER XIII. 
 
 Special Relations of Coxtract and Tort. 
 
 Original theory of forms of action . . 429 
 
 130 
 
 Causes of action: modern classification as founded on contract or tort . . 431 
 
 Classes of questions arising . 432 
 
 (2319) 
 
XX TABLE OF CONTENTS. 
 
 [The paging refers to the [*] pages.] 
 1. Alternative Forms of Bemedy on the same Cause of Action. 
 
 PAGE 
 
 One cause of action and alternative remedies • 432 
 
 Common law doctrine of misfeasance 4;i:> 
 
 Special duty of carriers and innkeepers by custom of the realnr 43.') 
 
 Alternati\ e of form does not affect substance of duty or liability . 436 
 
 In modern law obligation wholly in contract 437 
 Limits of the rule . . . 438 
 
 2. Concurrent Causes of Action. 
 
 Cases of tort, Avbether contract or no contract between same parties 439 
 Contract "implied in law" and waiver of tort . 441 
 
 Implied warranty of agent's authority . . 442 
 
 Concurrent causes of action against diiferent parties 443 
 
 Foulkes V. Metropolittia Dis. E. Co 443 
 
 Causes of action in contract and tort at suit of different plaintiffs 444 
 
 Alton V. Midland R. Co. : qu. whether good law 445 
 
 Winterbottom (:. Wright, &c 448 
 
 Concurrence of breach of contract with delict in lloman Itiw 450 
 
 3. Causes of Action in Tort dependent mi a Contract ictn-'ccn the same Parties. 
 
 Causes of action dependent on a collateral contract 450 
 
 What did Lumley v. Gye decide? 450 
 
 Special damage 451 
 
 IMalice 452 
 
 Question of remoteness of damage 453 
 
 Motive as an ingredient in the Avrong 454 
 
 American doctrine . 455 
 
 Damage to stranger by breach of contract . , 455 
 
 Position of receiver of erroneous telegram: different %-iews in England and 
 
 United States . . , " 456 
 
 The conflict considered on principle 458 
 
 Uncertainty still remaining in English doctrine ' . 460 
 
 Character of morally innocent acts aiffected by extraneous contract 461 
 
 4. Measure of Damages and other iiicidcyits of the Reincilj/. 
 
 Measure of damages . ... 463 
 
 Rule as to consequential damage . . . ». . . 464 
 
 Penal character of action for breach of promise of marriage 465 
 
 Contracts on which executors cannot sue . . 465 
 
 APPENDIX. 
 
 A. — Historical note on the classification of the forms of personal action 
 
 (By Mr. F. W. Maitland.) 467 
 
 B. — Emplo Jeers' Liability Act, 1880 . 47,-, 
 
 C. — Statutes of Limitation : 
 
 21 .Tames I., o. 16, ss. 3, 7 * 4S1 
 
 4 & 5 Anne c. 3, s. 19 . 4s2 
 
 19 & 20 Vict. c. 97 (Meracntile Law amendment Act), s. 12 iA?, 
 
 D. — Contributory negligence in Roman law 484 
 
 (2320) 
 
(xxi) 
 
 TABLE OF CASES. 
 
 [The paging relers to the [•] pages.] 
 
 A. 
 
 Abraham r. Revnolds . 
 Abrathr. N. E. Rail. Co. 
 Aokers v. Howard . . 
 
 Acton i: Blundell . ,, . 1;!2, 
 
 Adams c. L. & Y. Rail. Co. 
 Adamson r. Jarvis 
 Addie r. Western Bank of Scotland 
 Agincourt., The . . 
 Alderson r. Waistell 
 Aldred's Case . . 
 Aldrich c. Wright 
 Alexander r. N. E. Rail. Co. 
 
 I'. Southey 
 
 Allen r. L. & S. W. Rail. Co. 
 
 r. JIartin 
 
 AUsop V. Allsop . . . 
 
 Alton r. M. Rail. Co. . 44.5, 
 
 Ambergate v. 'SI. Rail. Co. 
 
 Ames f. Union Rail. Co. 
 
 Anderson v. Radcliffe 
 
 Anthony v. Haney 31.J, 
 
 Applebee r. Percy 
 
 Arlett r. Ellis . '. 
 
 Armory c. Delamirie . . 300, 
 
 Armstrong r. L. & Y. Rail. Co. 380, 
 
 Arnold r. Holbrook 
 
 Ash r. Dawnay .... 
 
 Anhhy i: White . 107, 159, 
 
 Asherr. "Whitlock 
 
 Ash worth i. Stanwix ... 
 
 Atkin-son r. Newcastle "Waterworks 
 
 Co. 
 A. G 
 
 24, 168, 
 Consumers' 
 
 Cambridge 
 Gas Co 
 
 r. Colney Hatch Lunatic 
 
 Asylum . . . 
 
 r. Gas Light and Coke Co. 
 
 r. Homer 
 
 i: Sheffield Gas Co. 
 
 Austin V. Dowling 
 
 r. G. W. Rail Co. 436, 440, 
 
 Aynsley v. Glover 337, 
 
 PAGE 
 
 427 
 264 
 107 
 
 13:; 
 
 388 
 171 
 
 82 
 109 
 117 
 3i)."> 
 149 
 223 
 291 
 
 79 
 323 
 209 
 465 
 
 :515 
 
 44G 
 304 
 314 
 406 
 341 
 308 
 381, 
 384 
 317 
 320 
 270 
 300 
 89 
 
 169 
 
 345 
 
 349 
 113 
 305 
 345 
 192 
 441 
 338 
 
 Backhouse v. Bonomi 
 
 159, 180 
 
 Baker i: Sebright 
 Baldwin r. Casella . 
 
 I . Elphinston 
 
 Ball, Ex pari (■ 
 
 i: liny . 
 
 Ballacorkish Mining Co. v. 
 
 son 
 
 Ballard r. Tomlinson 
 Bamlbrd f. Turnley . . 
 Bank ol' New South AVales , . 
 
 ton 
 Barker i\ Braham 
 Barnes r. Ward . 
 Barnett r. Guildford 
 Barry r. Croskey 
 Barton r. Taylor . ... 
 Bartonshill Coal'Co. r. Kcid 
 Bar-nick r. English Joint 
 
 Bank ... ( 
 
 Bastard v. Hancock . 
 Katclielor r. Fortc-scuc 
 Baten's C'aso 
 
 Bayley r. M. S. & L. R. Co. 
 Beaumont v. Greathead 
 Becher v. G. E. Rail. (J ». 
 Beckett r. M. Rail. Co. 
 Beckham r. Drake . 
 Beddall r. Maitland 
 Beddow v. Beddow . 
 Bell ?•. JI. Rail. Co. 
 Benjamin i'. Storr 
 Benton r. Pratt 
 Bernina, The, . ... 
 Berringer v. G. E. Rail. Co. 
 Berry v. Da Costa 
 Bessey v. Olliot 
 Betts r. Gibbins 
 Biddle r. Bond 
 Bird r. Holbrook . 
 
 !'. Jones . 
 
 Biscoe 1'. G. E. Rail. C'o. 
 
 Blades r, Higgs 
 
 Blad's Ca.se (Blad ,: Bamtield) 17.'> 
 
 Blair r. Bromley 
 
 Blake r. Barnard . . 
 
 )'. M. Rail. Co. 
 
 Blakemore v. Bristol and Ivxc^ter 
 
 Rail. Co 426 
 
 Blamiresi). L. & Y. Rail. Co. 170 
 
 Bli.sset r. Daniel 106 
 
 
 PACK 
 
 
 '-i!^t 
 
 
 106 
 
 ,)1 .*; 
 
 173 
 
 174 
 
 
 335 
 
 ilarri- 
 
 
 
 132 
 
 133 
 
 400 
 
 33'» 
 
 334 
 
 t)ws- 
 
 
 . 66 
 
 191 
 
 1.">1 
 
 420 
 
 
 304 
 
 
 240 
 
 
 104 
 
 
 68 
 
 Stock 
 
 
 >6, -^2, 
 
 258 
 
 
 473 
 
 
 4:g 
 
 ::30, 
 
 343 
 
 ■" 
 
 1 ~'^ 
 
 
 1.58 
 
 
 445 
 
 
 327 
 
 
 4(!6 
 
 .■no, 
 
 311 
 
 
 ](:6 
 
 
 164 
 
 
 328 
 
 2(il, 
 
 455 
 
 Addenda 
 
 
 443 
 
 ](;!, 
 
 465 
 
 
 125 
 
 
 171 
 
 
 295 
 
 144, 
 
 151 
 
 
 189 
 
 112, 
 
 113 
 
 303, 
 
 313 
 
 I) 17.-. 
 
 177 
 
 
 83 
 
 
 184 
 
 58, 60 
 
 .■;2321) 
 
XXll 
 
 TABLE OF CASES. 
 
 [The paging refers to the [*] pages.] 
 
 PAGE 
 
 Blood worth v. Gray 211 
 
 Blyth V. Birmingham Waterworks 
 Co. . . 36, 42, 335, 371 
 
 Bolch )•. Smith . 
 Bolingbroke r. Swindon 
 
 Board .... 
 Borrow.s v. Ellison 
 Boson ('. Sandford 
 Boston 11. Albany R. R. 
 
 Shanly . 
 Bourne v. Fosbrooke . 
 Bowen v. Hall 
 Bower r. Peate . 
 Bowker r. Evans . 
 Bowyer v. Cook 
 Box V. Jubb .... 
 Bradlangh v. Gossett . 
 
 r. Newdegate 
 
 Bradshaw r. L. & Y. Rail 
 Bridges v. N. L. Rail. Co. 
 
 426 
 Local 
 
 80 
 180 
 ... 473 
 Co. V 
 
 411 
 
 300 
 
 270, 451, 455, 461 
 
 . . . 424 
 
 .... 53 
 
 322 
 
 401 
 
 104 
 
 271 
 
 57 
 
 369 
 
 379 
 
 313, 
 
 Co. 
 
 Grand Junction Canal Co. 
 
 Brinsmead v. Harrison 
 Broadbeut r. Ledward 
 Broder ■!'. Saillard 
 Bromage v. Prosser 
 Brooker r. Coffin . . 
 Broughton v. Jackson 
 
 170, 292 
 
 . . 470 
 
 . 333, 335 
 214 
 210 
 193 
 
 Brown v. Boorman 434 
 
 - r. Kendall 118, 120, 128, 399 
 
 r. Notley 
 
 Browne i: Dawson . 
 Brownlie r. Campbell 
 Brunsden r. Humphrey 
 Brunswick, Duke of, v. 
 
 Bryant f. Herbert . 
 
 V. Lefever . . 
 
 Eubb r. Yelverton . 
 Bullers r. Dickinson 
 Bulmer r. Bulmer 
 Burdett r. Abbot . . 
 Burger v. Carpenter 
 Bm-gess r. Burgess . 
 
 r. Gray 
 
 Burling r. Read . 
 Buruand r. Haggis . 
 Burns /'. Poulsom 
 Buron v. Denman . 
 Burroughes v. Bayne 
 Burrowes v. Loch 
 Burrows v. Erie Rail. Co. 
 Bush r. Steinman 
 Buckley v. Gross 
 Butterfield v. Forrester . 
 Byrne i\ Boadle . 
 BVwell Castle, The . . . 
 
 322 
 
 312 
 
 237 
 
 . . 165 
 
 King of 
 
 Hanover 97 
 
 Harmer 215 
 
 15, 472, 474 
 
 336 
 
 287 
 
 339 
 
 59 
 
 315 
 
 455 
 
 138 
 
 71 
 
 340 
 
 48 
 
 74 
 
 . . 95 
 
 . . 285, 291 
 
 167, 247, 458 
 
 390 
 
 70 
 300 
 379 
 422 
 
 387 
 
 C. 
 
 Cabell v. Vaughan . . 473 
 
 Calder v. Halket 100 
 
 Caledonian Rail. Co. v. Walker's 
 
 Trustees ... . .111 
 
 Campbell v. Spottiswoode . 220 
 
 Cape r. Scott 316 
 
 Capital and Counties Bank v. 
 
 Henty .... 214, 217 
 
 Carey v. Ledbitter . 334 
 
 Carrington v. Taylor . 269 
 
 Carslake v. Mapledoram 211 
 
 Carstairs v. Taylor . . 402 
 
 Carter v. Drysdale . . . . 479 
 
 Castle V. Duryee 121, 122 
 
 Central Rail. Co. of Venezuela v. 
 
 Kisch . 253 
 
 Chamberlain v. Boyd . . . 209 
 
 V. Hazelwood . 198 
 
 V. Williamson 54, 465, 473 
 
 Chapman v. Rothwell . . . _ 417 
 Charles v. Taylor . .88 
 
 Chasemore v. Richards . . 132, 397 
 Chicago M. & S. Rail. Co. v. Ross 91 
 Child r. Hearn 384, 407 
 
 V. Sands . v ... 473 
 
 Chinery?!. Viall . , 297,437 
 
 Christopherson v. Bare . 186 
 
 City of London Brewery Co. v. 
 
 feimant ' . , 336, 337 
 
 Clark V. Chambers 39, 40, 43, 44, 45, 
 
 383, 392 
 
 V. Molyneux . . . . 231, 234 
 
 V. Woods . 102 
 
 Clarksonr. Musgrave 478 
 
 Clayards r. Dethick , . 388, 390 
 Clements v. Flight . . 470 
 
 Closson V. Staples . . . 265 
 
 Clough V. L. & N. W. Rail. Co. . 241 
 Clowes V. Staffordshire Potteries 
 
 Waterworks Co. . 348 
 
 Cockle V. S. E. Rail. Co. 368 
 
 Cole V. Turner . . . 182 
 
 Collen V. W^right , . 55, 442 
 
 Collins V. Evans 171, 243 
 
 Collis V. Selden . . . 420, 449 
 
 Cornfoot v. Fowke . . 257, 258 
 
 Commissioners of Sewers v. Glasse 341 
 Commonwealth v. Pierce . 358 
 
 Cooke ii. Forbes . 345 
 
 Cooper V. Crabtree . . . 323 
 
 V. Willomatt . . 292, 296 
 
 Corby v. Hill . . 309, 421, 425 
 
 Cornish v. Stubbs . . . 308 
 
 Coryton v. Lithebye . 472 
 
 Cotterell v. Jones . . . 267 
 
 (2322) 
 
TABLE OF CASES. 
 
 xxm 
 
 [The paging refers to the [*] pages.] 
 
 PAGE 
 
 360 
 168 
 390 
 434 
 185 
 405 
 476 
 230 
 
 Cotton V. 'Wood 
 
 Coiu'h r. Steel ... 
 
 Cunlter r. Express Co. . 
 
 Courtenay i'. Eai-le . . 
 
 Co^v:l^d j". Baddeley 
 
 Cox c'. Biirbidge .... .40, 
 
 c. (t. W. Rail. Co. 
 
 Co.xhead i: Eichards 
 
 Crabtree v. Robinson 317 
 
 Cr;uknell v. Corporation of Thet^ 
 
 ford . . 113 
 
 Crafter r. Metrop. Rail. Co. 364, 371 
 Cripp r. Judge 475 
 
 Croft ('. Alison ... .74 
 
 Crosslev r. Lightowler . . 332 
 
 Crowhurst v. Amersham Burial 
 
 tioard . . 
 
 Crump V. Lambert 
 
 Cundv 
 
 399 
 
 334 
 
 Lindsay 274^ 461 
 
 331, 
 
 D. 
 
 Daltox i'. Angus . . 
 
 r. S. E. Rail. Co. 
 
 Dalyell i. Tyrer ' . 
 Danby r. Lamb 
 Dand v. Sexton . 
 Daniel i: Met. Rail. Co. , 
 
 304, 
 
 70, 
 
 337 
 
 60 
 
 443 
 
 470 
 2m2 
 388, 392 
 . 367 
 
 Da\'ey v. L. & S. W. Rail Co, 
 
 Da%ies v. ilann . 378 
 
 V. Marshall . . . . 142 
 
 i: Snead . 229 
 
 i: Solomon . . 209 
 
 /■. Williams 340 
 
 Davis r. Duncan . 221 
 
 i: Gardiner 210 
 
 r. Saunders . . . 127 
 
 ?;. Shepstone . . 222, 331 
 
 Dawkins i'. Antrobus . 106 
 
 r. Lord Paulet ... 226 
 
 ('. Lord Rokeby . .> 101, 226 
 
 r. Prince Edward of Saxe- 
 
 Weimar . . 
 Day V. Brownrigg 
 Dean r. Bennett 
 
 ■(■. Peel . . . 
 
 Dean of St Asaph's Case 
 Degg V. M. Rail. Co. 
 Denison v. Ralphson . 
 Denton v. G. N. Rail 
 
 101, 226 
 
 138, 263 
 
 106 
 
 . 199 
 
 123 
 
 89 
 
 471 
 
 Co. 248, 250,259, 
 457 
 
 De Wahl v. Braune 
 Dickenson v. N. E. Rail. Co. 
 Dickesou v. "Watson 
 Dicks 7'. Brooks . 
 Dickson r. Dickson ... 
 c. Reuters' Telegram Co. 
 
 47 
 59 
 124 
 201 
 455 
 456, 
 461 
 
 PAGE 
 197 
 
 381, 392, 409, 413 
 
 252 
 
 178 
 
 296 
 
 Ditcham v. Bond 
 Dixon i: Bell, 12 
 Dobell V. Stevens, 
 
 Dobree v. Napier 
 
 Danald i<. Suckling .... 
 Doss V. Secretary of State in Coun 
 
 cil of India . 
 Doughty II. Firhank 
 Doulson i'. Matthews . , 
 Doyley ?>. Roberts . , 
 
 Drake, Ex parte 
 
 Dublin, &c., R. Co. v. Slattery 
 Du Boulay v. Du Boulay . 
 Duckworth v. Johnson . . . 
 Dunn V. Birmingham Canal Co. 
 Dunstou r. Young . . . . 
 
 D.ver !'. Hargrave . . . . 
 
 Eagee v. Grimwood 
 
 Ecclesiastical Commissioners r. 
 
 Kino 
 
 Eckert r. Long Island Rail Co. 
 Edgington v. Fitzmaurice 240, 242, 
 Edwards ... L. & N. W. Rail. Co. 
 
 r. M. Rail. Co. 
 
 Edwich r. Hawkes . . 310, 
 
 Elias V. Snowdon Slate Quarries 
 
 95 
 476 
 177' 
 212 
 292 
 3S7 
 138 
 
 60 
 402 
 103 
 253 
 
 Co 
 
 Elliott, Ex parte . 
 
 V. Hall .... 
 
 Ellis V. G. W. Rail. Co. 
 r. Loftus Iron Co. 
 
 41, 
 
 !'. Sheffield Gas Consumers' 
 
 Co. 
 Emblem v. Myers . 
 Emmens v. Pottle 
 England v. Cowley . ... 
 
 Entick J'. Carrington ... 9, 96, 
 European and Australian Royal 
 
 Mail Co. V. Royal Mail Steam 
 
 Packet Co. 
 Evans v. Bicknell 
 
 «. Edmonds . . 
 
 v. "Walton 
 
 Eyre, Ex parte . 
 
 200 
 
 338 
 391 
 246 
 79 
 264 
 311 
 
 286 
 ,174 
 418 
 368 
 405 
 
 66 
 163 
 215 
 292 
 280 
 
 295 
 255 
 246 
 198 
 83 
 
 Faiehubst v. Liverpool Adelphi 
 
 Loan Ass . 48, 49 
 
 Falvey v. Stanford . . 157 
 
 Farrant v. Barnes ... . 410 
 Farwell v. Boston & "Worcester 
 Railroad Corporation . 67, 85, 87 
 
 (2323) 
 
xxiy 
 
 TABLE OF CASES. 
 
 [The paging refers to the [*] pages.] 
 
 PAGE 
 
 Fay V. Prentice . . 329 
 
 Feltham v. England . 88 
 
 Fenn r. Bittleston 297 
 
 Filer r. N. Y. Central E. E. Co. . 390 
 
 Filliter r. Phippard 408 
 
 Fine Art Society v. Union Bank 
 
 (if London .... . 290 
 
 Firth V. Bowling Iron Co. . . 400 
 Fisher v. Keane . . . . ' 106 
 
 FiA'az r. NichoUs . . . 153 
 
 Fleming r. Hislop, . . Addenda 
 
 Fleming v. M. S. &. L. Eail. Co. 438, 
 448, 461, 474 
 Fletcher r. Bealey 
 
 r. Kylands 
 
 ii. Smith 
 
 Flewster v. Eoyle 
 
 . . 345 
 398, 403 
 398 
 192 
 . . 103 
 283, 291 
 . . 212 
 
 Forsdike ■!'. Stone . . 
 Fonldes v. Willoughby 
 Foulger i: Newcomb . 
 Foulkes V. Met. D. Eail. Co. 41 n, 419, 
 
 440, 443, 44.'., 461 
 
 Francis v. Cockrell . 414, 418 
 
 Franconia, The ... 58 
 
 Franklin v. S. E. Eail. Co. 60 
 
 Fray v. Blackburn . 100 
 
 Freke v. Calmady 2.-^(i 
 
 Fremantle v. L. & N. W. Eail. 
 
 Co. . . .... 403 
 
 Fritz r. Hobson .... 328, 336, 344 
 
 Frogley v. Earl of Lovelace 
 
 306 
 
 Gallaghee r. Piper 
 Garnettc. Bradley 
 Garret v. Taylor 
 Gas Light & Coke Co. 
 
 St. Mary Abbott's 
 Giiunt 1'. Fynney 
 Gantret v. Egerton . 
 Geddis v. Proprietors 
 
 servoir ... 
 Gee V. Met. Eail. Co. 
 George and Eichard, 
 
 '■ ('. Skivington . 
 
 Gibbons v. Pepper 
 Gibbs V. Guild . 
 
 r. G. W. Eail Co. 
 
 Gladwell v. Steggall 
 Glasspoole r. Young 
 Gledstane v. Hewett 
 Gloucester Grammar 
 Glover v. L. &. S. W, 
 Goff V. G. N. Eail. Co. 
 Goffin V. Donnelly . 
 
 Vestry of 
 
 (if Bann Ee- 
 111, 
 145, 
 
 The . . 39, 
 413, 
 
 433, 
 103, 
 
 School Case 
 Eail. Co. 
 
 158 
 203 
 
 114 
 34.5 
 
 424 
 
 112 
 
 :-!88 
 ,.58 
 449 
 127 
 181 
 476 
 436 
 314 
 470 
 130 
 35 
 79 
 226 
 
 Goldsmid r. Tunbridge Wells Im- 
 provement Commissioners 346 
 Goodson ('. Eichardson . . ;!23 
 Goodwin v. Chevely . :il6, 405 
 Gorham t>. Gross . . 393, 424 
 Gorris v. Scott 
 Gosden v. Elphick . 
 Grainger v. Hill 
 Grayti. Pullen .... 
 G. W. Eail. Co. of Canada 
 Greenland v. Chaplin 
 Greenslade v. Halliday . . . 
 Gregory v. Duke of Brunswick 
 
 !■. Piper 
 
 Griffin v. Coleman . . . 
 Griffiths V. Dudley . . 
 r. London & St. 
 
 rine Docks Co. 
 Grinham v. Willey 
 Grinnell v. Wells 
 Guille ('. Swan 
 Gully !'. Smith 
 GJwinnel i'. Eamer 
 
 H. 
 
 Harley v. Baxendale . 
 Hailes r. Marks 
 Hall r. Fearnley 
 
 r. Hollander . . 
 
 Hallcy, The . . 72, 
 
 Halliday i: Holgate 
 Halsey v. Brotherhood 
 Hambly r. Trott . 
 Hammack r. White . . 
 Hammersmith Eail. Co. 
 
 Harman v, Booth 
 t'. Johnson 
 
 24, 44, 169 
 
 192 
 
 188 
 
 . . 64 
 
 . Braid 403 
 
 37 
 
 . . 342 
 
 267, 
 
 270 
 
 73, 
 
 190 
 
 . . 470 
 
 Katha- 
 
 m 
 
 . . 192 
 
 . 200, 201 
 
 34 
 
 ... 23 
 
 350, 351 
 
 27, 463, 464 
 
 192 
 
 127 
 
 . . . . 200 
 
 17.5, 176, 177 
 
 . . 2.;6 
 
 . 260, 261 
 
 Harper v. Charleswdrth 
 
 r. Luffkin 
 
 HaiTis r. Brisco 
 
 V. De Pinna 
 
 i'. Mobbs, 
 
 Harrison v. Bush 
 Harrop v. Hirst 
 Hart V. Gumpach 
 
 r. Wall . . . 
 
 Hartley c. Cummings 
 Harvey v. Brydges 
 r. Dunlap 
 
 i'. Harvey 
 
 Haycroft v. Creasy . . . 
 Hayes v, Michigan Central 
 
 road Co. 
 Hayn i. Cullifbrd 
 
 62, 471, 472 
 
 . 25, 360,361 
 
 '. Brand 111, 
 
 112, 40:1 
 
 461 
 
 s;-> 
 
 . 300 
 
 199 
 
 271 
 
 . 336 
 
 37, 3-28 
 
 . . . . 230 
 
 328, 330, 
 
 Eail- 
 
 41f 
 
 226 
 217 
 197 
 311 
 121 
 315 
 241 
 
 38 
 ,419 
 
 (2324) 
 
(TABLE OF CASES. 
 
 XXV 
 
 [The paging refers to the [•] pages.] 
 
 PAGE 
 
 .... 293 
 ;i".4, 413, 418 
 . . 199 
 . 224 
 . . 2ti3 
 221, 231 
 344 
 . 166 
 47.'5 
 60 
 97 
 37, 45 
 . . 70 
 2WS, 290 
 291 
 191 
 . . 334 
 , 274, 290, 293, 
 463 
 Holmes v. Mather 25, 117, 127, 12s, 144, 
 
 14.5, 399 
 417 
 313 
 287 
 304 
 464 
 251 
 455 
 99 
 
 Heald i\ Carey 
 Heaven i: Pender 35: 
 Hedges i: Tagg 
 Helsham t: Blackwood 
 Hendriks v. Montagu 
 Henwood i\ Haxrison 
 Hepburn i: Lordan . 
 Hermann Loog r. Bean 
 Heske r. Samuelson 
 Hetherington c. X. E. Rail. C 
 Hill c. Bigge 
 
 (■. Xew River Co. 
 
 Hillard c. Richardson 
 
 Hiort c. Bott . . . 272, 
 
 c. L. & X. W. Rail. Co. 
 
 Hogg c. Ward . 
 
 Hole r. Barlow .... 
 HoUins c. Fowler 10, 272 
 
 J. 
 
 X. E. Rail. Co. 
 Wilson 
 
 Honywood r. Honywood 
 
 Hopkins, The . . . 
 
 Home V. M. Rail. Co. 
 
 Horsfall v. Thomas 
 
 Hoskin v. Royster 
 
 Houlden v. Smith . 
 
 Houldsworth v. City of Glasgow 
 
 Bank . ... 
 
 82 
 
 25S 
 
 Hounsell v. Smyth . 
 
 
 425 
 
 Howard r. Shepherd 
 
 
 450 
 
 Howe r. Finch 
 
 
 475 
 
 Huber r. Steiner . . 
 
 
 178 
 
 Huckle r. Money . . . 
 
 
 l(i2 
 
 Hughes V. Macfie 
 
 
 392 
 
 r. Percival . 
 
 
 424 
 
 Humphries r. Cousins 
 
 
 39S 
 
 Hurdman v. X. E. Rail. Co. 
 
 133, 
 
 398 
 
 Hunst r. Taylor . 421 
 
 Hutchins r. Hutchins 269 
 
 Hyams v. Webster . . 64 
 
 Hyde v. Graham ... . 306, 308 
 
 Hydraulic Engineering Co. v. 
 
 McHaffie . . 464 
 
 Hyman v. Nye 420 
 
 Ibbot.son v. Peat . . . 
 
 269 
 
 Ilott V. Wilkes .... 
 
 . . 144 
 
 Inchbold v. Barrington . 
 
 . . 334 
 
 Indermaur v. Dawes 
 
 . 416, 418 
 
 Inderwick v>. Snell 
 
 106 
 
 Irwin V. Dearman 
 
 200 
 
 Ivay V. Hedges . . . 
 
 426 
 
 Jackson r. Adams . 
 .I;ici)li.s I'. Seward 
 .lames V, Campbell 
 Jofteries v. (1. W. Rail. 
 Jenner v. A 'Beckett 
 Jennings r. Rundall 
 Job r. Piitton . 
 Joel c. Morrison 
 John r. Bacon .... 
 Johnson r. Emerson 
 
 i: Pie 
 
 r. Stear . 
 
 .lohnstone i: Sutton 
 Jones V. Bird 
 r. Blocker 
 
 r. Boyce . 
 
 r. Chappell . 
 
 V. Corporation of 
 
 i: Festiniog Rail. 
 
 I'. Gooday 
 
 r. Hough . 
 
 I'. Jones 
 
 i: Powell . 
 
 r. Starly 
 
 : ('. Wylie . . . 
 
 Jordin r. Crump . 
 
 Co. 
 
 PAGE 
 . . 210 
 
 298 
 . . 126 
 300, 301 
 
 222 
 48, 437 
 
 286, 299 
 
 74 
 
 414 
 
 266 
 
 - 48, 50 
 296 
 103 
 358 
 4,55 
 
 :^88, 391 
 
 528, 349 
 Liverpool 70, 71 
 Co. 408 
 
 167 
 29:! 
 340 
 332 
 455 
 185 
 149 
 
 2hi6, 
 
 K. 
 
 Kearney r. L. B. &S. C. Rail. Co. 
 Keeble v. Hickeringill 135, 203, 
 
 Keen v. Millwall Dock Co. 
 Keighly v. Bell , . . 
 Kelk V. Pearson 
 Kelly V. Sherlock 
 
 V. Tinling 
 
 Kemp V. Neville 
 
 Kenyon v. Hart ... 
 
 Kettle V. Bromsall . . 
 
 Kiddle v. Lovett 
 
 Kirk V. Gregory . . 
 
 V. Todd' 
 
 337, 
 
 158, 
 
 422 
 269, 
 270 
 477 
 104 
 344 
 221 
 221 
 100 
 281 
 470 
 476 
 272 
 63 
 
 IjABOUCHEEE v. Whamcliflfe 106 
 
 Lambert v. Bessey . . 125 
 
 Lancashire Waggon Co. v. Fitz- 
 
 hugh ... . . 292 
 
 Lanfranchi v. Mackenzie .... 338 
 Langridge v. Levy . 249, 413, 449 
 
 Laughton v. Bishop of Sodor and 
 
 Man 230, 235 
 
 (2325) 
 
XXVI 
 
 TABLE OF CASES. 
 
 [The paging refers to the [*] paging.] 
 
 Lax V. Corporation of Darling- 
 ton 145, 390, 418, 
 
 Leame v. Bray . . 
 
 Le Mason v. Dixon , 
 
 Lee V. Riley . . . . 40, 41, 
 
 Leggott V. G N. Eail. Co. 
 
 Lempriere v. Lange 
 
 Lewis V. Levy . . . 
 
 Ijeyman v. Latimer . . 211, 
 
 Limpus V. London General Omni- 
 bus Co 
 
 Lingwood v. Stowmarket Co. 
 
 Lister i'. Ferryman 192, 
 
 Little V. Hackett 70, 
 
 Lock V. Ashton . . . 
 
 L. & B. Kail. Co. v. Truman 
 London, Mayor of v. Cox. 
 L. & N. W. Eail. Co. v. Brad- 
 ley .... 
 LoDgmeid v. Holliday . 413, 
 
 Lonsdale, Earl of v. Nelson 329, 
 
 Lord V. Price . ... 
 
 Losee v. Buchanan . 398, 
 
 V. Clute . . . 
 
 Lovell V. Howell . . . . 
 Lowe V. Fox . . . 
 
 Lows V. Telford 
 
 Lowther v. Earl of Radnor 
 Luby V. Wodehouse . 
 Lumley v. Gye 55, 196, 197, 202, 
 270, 451, 452, 
 Lyde v. Barnard . 255, 
 
 Lyell 1}. Ganga Dai 
 
 Lynch v. Knight . 208, 209, 
 V. Nurdin . . . . 
 
 Lyon 1>. Fishmongers' Co. 
 
 M. 
 
 328, 
 
 419 
 126 
 473 
 405 
 57 
 49 
 232 
 224 
 
 80 
 344 
 193 
 383 
 192 
 114 
 102 
 
 112 
 449 
 341, 
 342 
 '289 
 409 
 420 
 
 86 
 
 49 
 310 
 100 
 
 97 
 203,. 
 454 
 256 
 410 
 453 
 
 39 
 336 
 
 Macfadzen v. Olivant . . . 196 
 Mackay v. Commercial Bank of 
 
 New Brunswick . 82, 258 
 
 Maddison r. Alderson 84 
 
 Madras Eail. Co. v. Zemindar of 
 
 Carvatenagaram 402 
 
 Malachy v. Soper 260 
 
 Machester Bonded Warehouse Co. 
 
 V. Carr . . 286 
 
 Mangen v. Atterton . 383 
 
 Manley v. Field . . 199 
 
 Manzoni r. Douglas . 361 
 
 Marsh v. Billings . . 262 
 
 V. Keating .... 172, 174 
 
 Marshall v. York, Newcastle & 
 
 Berwick Rail. Co. . 441, 445 
 
 Marshalsea, The . . 102 
 
 (23; 
 
 Martin w. G. I. P. E. Co. 
 Payne 
 
 Marzetti v. "Williams . . . 
 
 Masper v. Brown 
 
 Maund t. Monmouthshire Canal 
 Co 
 
 Mayor of Colchester v. Brooke 
 
 May V. Burdett . . 
 
 M'Cully V. Clark . 
 
 M'Manus v. Crickett 
 
 McGififen v. Palmer's Shipbuild- 
 ing Co. . 
 
 McLaughlin r. Prior 
 
 McMahon v. Field . . 
 
 McPherson r. Daniels 214, 
 
 Meade's and Belt's Case 
 
 Mears v. L. & S. W. Eail. Co. 
 
 V. Dole 
 
 Mellor V. Spateman 
 — • V. Watkins 
 
 284, 
 
 Mennie v. Blake . 
 Merest v. Harvey . . 
 Merryweather v. Nixon .... 
 Mersey Docks Trustees v. Gibbs . 
 
 83, 
 Metropolitan Association v. Fetch 
 Metropolitan Asylum District r\ 
 
 Hill 113, 
 
 Metropolitan Bank v. Fooley 266, 
 Metrop. Rail. Co. v. Jackson 41, 
 
 Midland Ins. Co. v. Smith 
 Millen v. Fawdry . . 
 
 Miller v. Da"\T.d 
 
 Mills V. Graham 
 
 Millward v. M. Eail. Co. 
 Mitchell V. Crassweller ... 74, 
 V. Darley Main Colliery 
 
 Co. . . . . 159, 
 
 Motfatt V. Bateman 427, 
 
 Mogul Steamship Co. v. McGregor, 
 
 Low & Co . 
 
 Moore v. Metrop. Eail. Co. . . 
 
 V. Eawson . 337, 
 
 V. Robinson . . . 
 
 Morgan v. Vale of Neath Rail. Co. 
 V. Lond. Gen. Omnibus 
 
 Co . . 
 
 Morris r. Piatt . 
 Moses ('. Macfarlane 
 Mostyn v. Fabrigas . 
 Mott r. Shoolbred 
 Mouse's Case . . 
 M. Moxham, The 
 Moyle V. Jenkins 
 Mullen r. St. John . 
 Mulligan r. Cole . . 
 Mulliner v. Florence 
 !6) 
 
 97, 
 
 PAGE 
 
 445 
 199 
 437 
 
 188 
 
 51 
 379 
 406 
 364 
 
 80 
 
 475 
 71 
 464 
 218 
 186 
 289 
 398 
 336 
 308 
 303 
 162 
 170 
 51, 
 111 
 350 
 
 114 
 271 
 364, 
 365 
 174 
 406 
 212 
 470 
 476 
 75 
 
 180 
 440 
 
 167 
 
 79 
 
 339 
 
 277 
 87 
 
 480 
 121 
 442 
 176 
 349 
 146 
 175 
 477 
 423 
 217 
 297 
 
TABLE OF CASES. 
 
 XXVll 
 
 [The paging refers to the [*] pages.] 
 
 Mumford i\ Oxford 350 
 
 Munday i: Tliames Ironworks Co 478 
 Munster r. Lamb . ... 225 
 
 Murphy c. Deaue 362 
 
 Murray r. Currie . . 70, 71 
 ('. Hall 299 
 
 N. 
 
 Nash v. Lucas . . . 317 
 
 National Plate Glass Insurance Co. 
 
 V. Prudential Assurance Co. 339 
 
 Neate i: Denman 105 
 
 119, 
 
 117, 
 128, 
 
 Nelson v. Liverpool Brewery Co. 
 Newson i'. Pender 
 
 Newton v. Harland 
 
 Nichols i: Marsland 
 Nitro-Glycerine Case 
 
 Norris r. Baker 
 
 North Eastern Rail. Co. v. Wan- 
 less 367, 
 
 Northampton's, Earl of, Case . . 
 Nugent c. Smith . . 400, 
 
 Nuttall V. Bracewell 
 
 O. 
 
 Ormeeod v. Todmorden Mill Co . 308 
 
 351 
 339 
 311 
 401 
 399 
 341 
 
 387 
 219 
 438 
 308 
 
 Osborn v. Gillett . 
 Osborne v. Jackson 
 Oxley V. "Watt.-i 
 
 54, 55, 196 
 . . 475, 479 
 . ... 320 
 
 Page v. Southampton, &c. Rail. 
 
 Co 
 
 Paley v. Garnett . 
 Palmer v. Thorpe 
 Pandorf v. Hamilton . 
 Pappa V. Rose . . 
 Pardo V. Binghani . . 
 Parker r. First Avenue Hotel 
 Parkes v. Prescott . 
 Parkins v. Scott 
 Parlement Beige, The 
 Parry t: Smith . 
 Pasley v. Freeman 
 Patrick v. Colerick . . . 
 Panl V. Summerhayes 
 
 Pease v. Gloahec 
 
 Peek V. Gurney . . 63, 167, 240, 
 Pendlebury v. Greenialgh . . . 
 
 Co. 
 
 208, 
 
 241, 
 
 322 
 475 
 210 
 402 
 101 
 180 
 338 
 216 
 219 
 
 98 
 411 
 255 
 313 
 319 
 461 
 250 
 
 70 
 
 Pennington r. Brinsop Hall Coal 
 Co 
 
 Penruddock's Case . 329, 343, 
 
 Perry r. Fitzhowe . 340, 
 
 Perryman v. Listor 
 
 Phillips V. Barnet . . '. . 
 
 V. Eyre . . 97, 175, 
 
 V. Homfray, . . 62, 63, 
 
 r. L. & S. W. Rail Co 157, 
 
 Pickard r. Smith 
 
 Pickering r. James 
 
 i: Rudd . . . 
 
 Piggott V. E. C. Rail. Co 
 
 Pilcher v. Rawlins ... 
 
 Pinchon's Case . . 57, 
 
 Pippin V. Sheppard 
 
 Playford c. U. K. Electric Tele- 
 graph Co 
 
 Plimmer i . Mayor of Welling- 
 ton . . . 
 
 Polhill i'. Walker . 
 
 Pontifex i: Bignold . . 
 
 r. M. Ran. Co 
 
 Potter V. Brown 
 
 i: Faulkner 
 
 348 
 351 
 341 
 193 
 50 
 177 
 472 
 162 
 415 
 107 
 281 
 403 
 274 
 472 
 433 
 
 456 
 
 Potts V. Smith 
 Poulton i\ L. & S. W. Rail. 
 Powell ('. Deveney 
 V. Fall ■ . 
 
 Powys V. Blagrave 
 Pozzi V. Shipton . . 
 Pretty r.Bickmore 
 Priestly v. Fowler . 
 Proctor V. Webster . 
 Pulling V. G. E. Rail. Co, 
 Puicell V. Sowler 
 Pursell V. Home . . . 
 Pym V. G. N. Rail. Co. . 
 
 Addenda 
 
 240, 250 
 
 . 160 
 
 474 
 
 . . 179 
 
 89, 122 
 
 337 
 
 Co. 79 
 
 40 
 
 408 
 
 . . . 286 
 
 438 
 
 351 
 
 84 
 
 231 
 
 57 
 
 221 
 
 183 
 
 60 
 
 435, 436, 
 350, 
 
 218, 
 
 59, 
 
 QuABMAN M. Burnett 70 
 
 Quartz Hill, &c. Co. v. Beall . . 166 
 V. Eyre . 265, 266 
 
 R. 
 
 Radlby v. L. & N. W. Rail. Co. 375, 
 
 376 
 Raj Chunder Roy v. Shama Soon- 
 
 dari Debi 266 
 
 Rajmohun Bose v. E. I. Rail. Co. 114 
 Ramsden v. Dyson, . . . Addenda 
 Randall v. Newson . . 419 
 
 Rashdall v. Ford 243 
 
 (2337) 
 
XXVIU 
 
 TABLE OF CASES. 
 
 [The paging refers to the [•] pages. ] 
 
 Raymond v. Fitch 
 Rayner v. Mitchell . 
 Kcad V. Coker . 
 
 1\ Edward . . . 
 
 V. G. E. Rail. Co. 
 
 Readhead v. Midland Rail. 
 
 405, 
 
 Co. 
 
 ■245, 
 
 Redgrave v. Hurd 
 
 Reece v. Taylor 
 
 Reese River Silver Mining Co. r. 
 
 Smith 
 
 Reg. V. Commissioners of Sewers 
 for Essex 398, 
 
 ('. Coney . 140, 
 
 r. Cotesworth . 
 
 c. James 
 
 ». .Judge of City of London 
 
 Court 
 
 i\ Latimer 
 
 /■. Lesley 
 
 r. Lewis 
 
 r. Orton 
 
 ('. Riley 
 
 r. Smith 
 
 r. St. George 
 
 r. Train . 
 
 r. Williams 
 
 Rex. r. Pease . . . 
 
 Reynell v. Sprye 
 Rice V. Manley 
 
 V. Shute . . 
 
 Rich ('. Baster field . 
 
 r. Pilkington 
 
 Ricket ■('. Met. Rail. Co. 
 Riding r. Smith 
 Rigby V. Hewitt 
 Rist V. Faux . . 
 Robert Marys' Case 
 Roberts v. Roberts 
 
 V. Rose 
 
 r. Wyatt . . 
 
 Robinson v. Cone . . 
 
 Robson ('. N. E. Rail Co. 145, 
 
 Rogers r. Rajendro Dutt 135, 
 
 ('. Spence 163, 
 
 Romney Marsh, Bailiffs of ?'. Trin- 
 ity House 
 
 Roope V. D'Avigdor 
 Rose ('. Miles . . . 
 
 V. N. E. Rail. Co 
 
 Rosewell v. Prior 
 
 Ross r. Rugge-Price 
 
 Rourke v. White Moss Colliery 
 
 Co. . . 
 
 Ryder v. Wombwell 
 Rylands v. Fletcher . 11, is, 
 
 128, 144, 394, 398, 399. 400, 401, 
 408, 409, 
 
 PAGE 
 
 466 
 76 
 184 
 406 
 61 
 419 
 253 
 187 
 
 246 
 
 401 
 
 141 
 
 183 
 
 184 
 
 478 
 126 
 178 
 140 
 141 
 313 
 29 
 184 
 325 
 
 112, 
 
 261, 
 
 . 327, 
 . 208. 
 . 381, 
 
 114 
 245 
 455 
 473 
 351 
 473 
 328 
 
 21:; 
 
 381 
 200 
 196 
 209 
 343 
 302 
 3K', 
 369, 
 390 
 137 
 301 
 
 39 
 174 
 327 
 390 
 351 
 168 
 
 71 
 366 
 126, 
 404, 
 415. 
 
 S. 
 
 PAGE 
 
 69 
 
 346 
 
 Sadleb v. Henlock 
 
 St. Helen's Smelting Co. v. Tip- 
 ping .... . 332, 
 
 St. Pancras, Vestry of v. Batter- 
 bury . 169 
 
 Salvin V. North Brancepeth Coal 
 Co ... . 331, 333, 334, 346 
 
 Sanders v. Stuart . 460 
 
 Saner v. Bilton . . 286 
 
 Savile or Savill v. Roberts . . . 266 
 
 Saxby v. Manchester and Sheffield 
 Rail. Co . 
 
 Scott V. London Docks Co 
 
 (I. Pape . 
 
 ■». Seymour 
 
 Scott V. Shepherd 30. 
 
 V. Stansfield . 
 
 Seaman v. Netherclift 
 
 363, 
 
 351 
 
 422 
 
 339 
 
 ... 176 
 
 44, 125, 149 
 
 . 99, 100, 225 
 
 226 
 
 Secretary of State in Council of 
 India r. Kamachee Boye Saha- 
 
 ba . 95 
 
 Selby V. Nettlefold . 319 
 
 Semayue's Case , 314 
 
 Seroka v. Kattenburg . . . 50 
 
 Seton V. Lafone, Addenda 
 
 Seward v. The Vera Cruz 58 
 
 Seymour r. Greenwood 78 
 
 Shaffers r. Gen. Steam Navigation 
 Co. . . ... 479 
 
 Sharp V. Powell . . . 42, 43, 44, 45 
 Shaw V. Port Philip G^ld Mining 
 Co. ... 82 
 
 Shepheard !'. Whitaker . 213 
 Sheridan v. New Quay Co. 295 
 Sherrington's Case . . 472 
 Shipley v. Fifty Associates 398 
 Shotts Iron Co. r. Inglis 334 
 Simpson v. Savage . 349 
 Siner v. N. E. Rail. Co. . . 369 
 Singer Manufacturing Co. v. Loog 263 
 V. Wilson 263 
 
 Singleton v. E. C. Rail. Co. . . 
 Six Carpenters' Case, The . 320, 
 Skelton r. L. & N. W. Rail Co. 
 Skinner v. L. B. & S. C. Rail. Co. 
 Skipp V. E. C. Rail. Co. . . 
 
 Slim V. Croucher . . 167, 
 
 Smith V. Boston Gas Co. 
 
 i\ Brown 
 
 r. Chadwlck . 240, 246, 251, 
 
 V. Cook 
 
 i: Earl Brownlow 
 
 r. Green 32 
 
 i: L. & S. W. Rail. Co. 355, 
 
 383 
 321 
 372 
 362 
 
 88 
 247 
 411 
 
 58 
 254 
 405 
 340 
 464 
 369, 
 403 
 Smith r. London and St. Katharine 
 
 Dbcks Co. . . 417 
 
 28) 
 
TABLE OF CASES. 
 [The pa^ng refers to the [*] pages. ] 
 
 Co. 
 
 Smith >: .Miller 
 
 i: Sydney . . 
 
 Sneesby r.' L. & Y. R:iil. 
 Soltau r. De Held . . . 
 Somerville i: Hawkins 
 8iHitUc-ote V. Stanley 
 Speijiht r. Oliviera . 
 Spill i: ilaiiU- 
 Staiiilit i: Burn 
 ."Steele c. Brannan 
 Stephens «. Elwall 
 Stephens r. Jlyers 
 Stetson c. Faxon . 
 Stevens v. Jeacocke 
 
 — !'. Sampson . 
 
 Stevenson r. AVatson 
 Steward r. Young . 
 Stikeman r. Dawson 
 Stone I'. Hyde 
 Storey v. Ashton . . 
 Street i: Union Bank . . 
 Sturges r. Bridgman 
 Sullivan v. Spencer 
 
 r. Waters 
 
 Sutton ('. Town of Wauwatoso 
 
 Swan I. Phillips 
 
 Sweenv v. Old Colony and N 
 
 portE. E. Co. 
 Swift r. Jewsbury 
 Swire c. Francis ... 82, 
 
 199. 
 
 PAGE 
 
 ■279 
 192 
 
 334 
 230 
 427 
 201 
 230 
 339 
 
 290, 
 
 29.-) 
 
 
 1H4 
 
 
 327 
 
 
 169 
 
 . . 220, 
 
 233 
 
 
 101 
 
 
 201 
 
 
 4M 
 
 . . 4TS, 
 
 479 
 
 3rtO, 
 
 High 
 
 . . 13S 
 
 331, 332 
 
 97 
 
 41.-), 42.-) 
 
 153 
 . . 256 
 ew- 
 
 421 
 . . 2.55 
 258, 259 
 
 243 
 
 T. 
 
 Taxdy v. Westmoreland 
 Tapling i: Jonas . 
 Tarlton v. McGawley 
 Tarry v. Ashton . . . 
 Tattan v. G. W. Rail. Co. 
 Taylor v. Ashton . . 
 
 r. Greenhalgh 
 
 r. Xewman . , 
 
 Terry v. Hutchinson 
 Tharsis Sulphur Co. v. Loftus 
 Thomas v. Quartermaine . . 
 
 V. Sorrell . . . 
 
 (. Winchester 411, 
 
 Thompson v. Gibson 
 
 V. Eoss . . . 
 
 Thorley's Cattle Food Co. v. Mas- 
 
 sam . . . 166, 261 
 
 Thorogood v. Bryan 381, 3H4, Addenda 
 Tillett V. Ward . 405 
 
 Timothy v. Simpson . . . 190 
 
 Tipping V. St. Helen's Smelting 
 
 Co. ... 331, 332 
 
 Todd V. Flight . . 350 
 
 . . 97 
 338, 339 
 203, 269 
 423 
 . . 435 
 240 
 70 
 149 
 200 
 101 
 475 
 306 
 449 
 350 
 199 
 
 412 
 
 ToUit V. Sherstone . . , 
 Tompson v. Dashwood 
 Tozer v. Child . 
 Traill v. Baring 
 Tuberville r. Savage 
 Tucker v. Linger 
 Tutf i\ Warmaii 375, 
 
 Tullidge i: Wade 
 Tunney r. M. Rail. Co. 
 Turberville r. Stampe 
 Turner v. Ringwood 
 
 Board 
 Twomley c. Central Park R, 
 
 Co. 
 
 V. 
 
 Udell v. Atherton 
 Underwood i. Hewson 
 Usill i: Hales 
 
 V, 
 
 V.\LL.\xcE r. Falle . . 
 Vandenburgh v. Truax 
 Yaspor r. Edwards . 
 Vaughan v. Menlove . . 
 r. Taff Vale Rail Co. 
 
 X-XIX 
 
 Page 
 
 . . 450 
 
 216, 234 
 
 107, 271 
 
 245 
 
 1H5 
 
 . . 2H8 
 
 3rt4, 386 
 
 l(i3, 197 
 
 HB 
 
 (W, 408 
 
 way 
 
 !2G, 330 
 
 R. 
 
 . 391 
 
 Vernon v. Kcvs . . 
 
 Vicars v. Wilcoeks 207, 
 
 239 
 125 
 
 232 
 
 169 
 
 . . 33 
 316, 321 
 35(i, 357 
 . 112, 
 403, 408 
 . . 242 
 208, 453 
 
 W. 
 
 Waite v. N. E. Eail. Co. 
 
 381, 384 
 Addenda 
 
 Wakelin r. L. & S. W. Eail Co. 
 
 Wakeman v. Eohinson 
 Walker v. Brewster 
 
 r. Cronin . . 
 
 r. Needham 
 
 Walter v. Selfe 
 
 Wandsworth Board of Works 
 
 United Telephone Co. 
 Ward r. Hohbs 
 
 r. Lloyd 
 
 Warner v. Eiddiford 
 Wason V. Walter 
 Watkin v. Hall 
 Weaver v. Ward . . 
 Webb V. Beavan . 
 V. Bird . . 
 
 360, 
 362 
 127 
 334 
 455 
 470 
 331 
 
 220, 
 
 Weblin v. Ballard . 
 Weems v. Mathieson 
 
 281 
 
 24 
 
 174 
 
 189 
 
 232 
 
 218 
 
 124 
 
 209 
 
 . . 336 
 
 475, 477 
 
 (2329) 
 
XXX 
 
 TABLE OP CASES. 
 
 [The paging refers to the [*] pages.] 
 
 Weir V. Bell . . . 
 Weldon v. De Bathe . 
 
 0. Winslow . 
 
 Welfare v. L. & B. Rail. 
 Wellock r. Constantine 
 Wells i'. Abrahams 
 
 Co. 
 
 173. 
 
 Page 
 239 
 .50 
 49 
 434 
 174 
 174 
 216 
 321 
 192 
 
 259 
 
 Wenman v. Ash 
 
 West c. Nibbs . . 315, 
 
 c. Small wood . 
 
 Western Bank of Scotland c. Ad- 
 die . . . . 244, 
 West London Commercial Bank r. 
 
 Kitson 242 
 
 Whalley v. L. & Y. Rail. Co. 150 
 
 Whatman «. Pearson . 74 
 
 Whitaker i'. Forbes .... 176 
 
 Whitham v. Kershaw 161, 164, 167 
 White V. Jameson . 351 
 
 !i. Spettigue . 172 
 
 Whittaker, Ex parte . ... 241 
 Wigsell V. School for Indigent 
 
 Blind 167 
 
 Wilbraham v. Snow 2SH 
 Wilkins v. Day ... 328 
 Wilkinson v. Haygarth . . . 299 
 Williams ?>. G. W. Rail Co. 38, 39, 364 
 V. Joues .... 76 
 
 Williamson i: Freer 
 Willis V. Maclachlan 
 Wilson v) McLaughlin 
 
 V. Merry 
 
 V. Newberry 
 
 i'. Tumman . 
 
 V. Waddell . 
 
 Winsmore v. Greenbank . 
 Winterbottom l: Derby . . 
 
 i: Wright 420, 
 
 Withes !'. Hungerford Market 
 Wood !!. Leadbitter 
 
 V. Wand 
 
 V. Woad 
 
 Woodhouse v. Walker 
 Woodward r. Walton 
 Worth V. Gilling . 
 Wren v. Weild 
 AVright V. Leonard 
 
 V. Pearson , 
 
 V. Ramscot 
 
 
 Page 
 
 215 
 
 234 
 
 
 99 
 
 
 291 
 
 . 85, 88 
 
 399 
 
 401 
 
 
 66 
 
 
 398 
 
 
 198 
 
 
 327 
 
 448, 
 
 449 
 
 Co. 
 
 327 
 
 306, 
 
 307 
 
 
 332 
 
 
 106 
 
 284, 
 
 286 
 
 
 197 
 
 
 406 
 
 
 261 
 
 
 50 
 
 
 407 
 
 
 282 
 
 Y. 
 
 Yaeboeough v. Bank of England 51 
 Yates V. Jack 338 
 
 (2330) 
 
(xxxi) 
 
 YEAR BOOKS CITED. 
 
 [The paging refers to the [*] pages.] 
 
 •21 
 
 Ass. 
 
 ■i Hen. IV. 
 11 
 
 in Hen. VI. 
 
 37 
 
 39 
 
 6 Edw. IV. 
 
 K 
 
 9 
 12 
 14 
 17 
 21 
 7 
 9 
 16 
 21 
 
 Hen. VII. 
 
 12 Hen. VIII. 
 
 27 
 
 100, pi. 67 . . 
 102, — 76 . 
 
 18, — 5 
 1-2, — 2 . . 
 
 47, — 21 . 
 
 75, — 16 . . 
 
 45, — 94 . . 
 
 66, — 10 . 
 
 26, — 9 
 14, — 23 . 
 31, 
 
 326 
 
 37, — 26 . 
 
 7, — 12 . 
 
 7, - 18 . . 
 
 8, . . 
 
 23, — 41 
 35, — 10 . . 
 13, — 9 . . 
 
 7, — 13 . 
 
 1, 
 766,— 9 
 22, — 3 . . 
 
 7,- i 
 
 2, — 7 . 
 
 27, — 5 . 
 28, . . 
 
 39, — 50 
 39, — 49 . 
 2 
 
 27, — 10 . 
 
 124 
 
 PAGE 
 
 . 51 
 
 . . 203 
 
 . . 407 
 
 201 
 
 130 
 
 320 
 
 196, 302 
 
 53 
 
 203 
 
 . . 131 
 
 202 
 
 . . 202 
 
 . . 318 
 
 308 
 
 124 
 
 ;!18 
 
 146 
 
 313, 318 
 
 303 
 
 203 
 
 32 
 
 319 
 
 295 
 
 203 
 
 303 
 
 146, 318 
 
 123, 146 
 
 . . 148 
 
 303 
 
 146 
 
 326, 328 
 
 (2331) 
 
(xxxii) 
 
 ADDENDA. 
 
 [The paging refers to the ['] pages]. 
 
 Pages 5S, 383-385, 391. On Jan. 24, lS-!7, the Court of Appeal (Lord EsherM. 
 K., Lindley and Lopes L. JJ.) gave judgment in the case of The Bernina 
 (reported in the Court below, 11 P. D. 31), and, after full examination 
 of the principles and authorities on contributory negligence, clearly and 
 even emphatically overruled the doctrine of Thorogood v. Bryan. 8 C. B. 
 115, 18 L. J. C. P. 336, whereby a passenger was deemed to be ''identi- 
 fied" with the carriage or vessel he was travelling in, so as to be disen- 
 titled from recovering damages from the owner of another vessel or car- 
 riage for injuries received in a collision caused by the joint negligence of 
 those having the control of both vehicles. All the members of the Court 
 said that the supposed rule of ' ' identification' ' was unintelligible, con- 
 trary to justice, and not confirmed by any binding authority; and Lindley 
 L. J. pointed out that the doctrine of contributory negligence was still 
 imperfestly understood at the time (1849) when Thorogood v. Bryan was 
 decided. The true rule is that where damage is sustained by the eon- 
 current negligence of two or more persons, there is a right of action 
 against all or any of them at the plaintift's option, and the exception of 
 contributory negligence extends only to acts and defaults of the plaintiff 
 himself or those who are really his servants or agents. Waite v. K. E. 
 E. Co., E. B. & E. 719, 28 L. J. Q. B. 258, was distinguished and ap- 
 proved on the groirnd that persons dealing with an adult and also with 
 an infant or imbecile of whom the adult has the charge are entitled, 
 whether their duty be regarded as arising from contract or as independ- 
 ent of contract, to expect that the adult will use reasonable care not only 
 for himself but for the helpless person in his charge. The judgment be- 
 low was therefore reversed, except as to one plaintiif who had been per- 
 sonally in fault. 
 
 The Court also held (on this point afiirming the decision below) that 
 actions under Lord Campbell's Act (9 & 10 Vict. c. 93) are "pure com- 
 mon law actions' ' in no way affected by the special rules and practice of 
 Admiralty jurisdiction, the Court of Admiralty before the Judicature 
 Acts having had no jurisdiction to entertain claims under the Act : the 
 Admiralty rule as to division of damages was therefore inapplicable. 
 
 Page 298. A man may be liable as for converson by estoppel, though he in 
 fact has not dealt with the goods at any time when the plaintiff was en- 
 titled to possession: see Seton !'. Lafone (1886) 18 Q. B. D. 139. This is 
 not a variety of conversion, but stands on the distinct principles of the 
 law of estoppel : as to the proper measure of damages, see at p. 146. 
 
 Page of)H. In the United States cases of great hardship have arisen through the 
 untimely revocation of parol licences to erect dams, divert watercourses, 
 and the like, which but for the Statute of Frauds would have amounted 
 to grants of easements : and in some States the courts have been astute 
 to find a remedy for the licensee by extending the doctrines of equitable 
 estoppel and part perlbrmance : see Cooley on Torts 307-310. So far as 
 I can collect Irom Judge Cooley's account of the decisions, they must be 
 taken as establishing, in those States where they are received, ajussing- 
 ulare which a court bound by Eansden v. Dyson (L. E. 1 H. L. 129) 
 could hardly admit, unless there were matter subsequent which could 
 be held to make the original licence irrevocable, as in Plimmer v. Mayor 
 of "Wellington (N. Z.) (9 App. Ca. 699), decided by the Judicial Com- 
 mittee in 1884. 
 
 (2332) 
 
ADDENDA. XXXUl 
 
 [The paging refers to the [*] pages.] 
 
 Page 322. The opinion of Sir "Walter Scott as to the threatening notice-boards 
 is fit to he remenihered ; nor is excuse needed for quoting in a law book 
 the opinion of one who never ceased to be a sound and a keen lawyer, 
 and whose authorship of the "Waverly Novels was detected by that 
 amongst other characters. "Nothing on earth," he said, " would in- 
 duce 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 hurtful to 
 the feelings of people whom it is every way important to c<inciliate, but 
 that they are also quite inefficient. " Lockhart's Life, vol. vii. p. 317, ed. 
 1S39, ex relatione Basil Hall. 
 
 Pages 332, 333, 344, note (g). In Fleming v. Hislop (1886) 11 App. Ca. (Sc.) 
 686, an interdict which absolutely restrained the appellants from burn- 
 ing or calcining certain heaps of refuse was varied by adding the words 
 "in the manner practised by them in respect of" [a specified heap al- 
 ready burnt] "or in any other manner so as to occasion material dis- 
 comfort and annoyance to the pursuers or any of them, " on the ground 
 that it ought to be left open to the appellants to discover and use, if they 
 could, any process by which the refuse might be calcined without caus- 
 ing a nuisance. It also was incidentally declared, per Lord Halsbury at 
 p. 697, that the rule once supposed to exist as to coming to the nuis- 
 ance" is wholly exploded. 
 
 c LAW OF TOETS. (2333) 
 
(xxxiv) 
 
 TO THE EEADEK. 
 
 Text-books are generally cited in the same manner as in my book "Principles 
 of Contract." Mr. Melville M. Bigelow's " Leading Cases on the Law of Torts 
 determined by the Courts of America and England," Boston, Mass. J 875, a 
 most useful work to which I desire to express my special obligation, is cited as 
 Bigelow L. C. 
 
 About a year ago, after the plan of this book had been settled and the 
 greater part of it written, to new English books on the subject appeared al- 
 most simultaneously. It seems proper to mention that I have purposely 
 abstained from reading either of them, as it was hardly possible to make a 
 strictly fair use of them under the circumstances. With this deliberate ex- 
 ception, I have endeavoured to pay due attention to the work of my predeces- 
 sors. 
 
 It has not been thought needful, in a work professing to select rather than 
 collect authorities, to give references to all the current Reports. The labour 
 seems out of proportion to the result in anything short of a Digest. But all 
 important modern cases are dated, and thus, it is hoped, can be found with 
 little trouble wherever they are reported. It may be useful to note that in the 
 legal year 1865-6, the date of the commencement of the Law Reports, the other 
 Reports of which the publication is still continued were issued as follows : 
 Law Journal (N. S.). Weekly Reporter. Law Times (N. S.). 
 
 Vol. 35. Vol. 14. Vols. 13 and 14. 
 
 (Two volumes a year, (One volume a year.) (Two volumes a year. ) 
 
 of the same conse- 
 cutive number, dis- 
 tinguished as Chan- 
 cery and Common 
 Law Series.) 
 
 The consecutive number (in N. S. ) of the volumes of the Law Journal for a 
 given legal year may be found by subtracting 30 from the year of the century 
 in which the legal year (Michaelmas term to Michaelmas term) begins. For the 
 Weekly Reporter, similarly, subtract 51. 
 
 L. Q. R. stands for the Law Quarterly Review, commenced in 1885, which 
 is cited by volume and page. 
 
 In citing cases in the Law Reports since 1875, Court of Appeal cases are (ac- 
 cording to a convenient and now common practice) distinguished by abbreviat- 
 ing " Division" in the form " Div.," so that Ch. D. and 'Q. B. D. refer to de- 
 cisions of a single judge or Divisional Court. Ch. Div. and Q. B. Div. to deci- 
 sions of the Court of Appeal. 
 
 I have pleasure in expressing hiy best thanks to my learned friend Mr. 
 Reginald J. Smith, of Lincoln's Inn, for valuable help in the preparation of the 
 Index and otherwise in passing the work through the press. 
 
 F. P. 
 
 (2334) 
 
THE LAW OF TORTS. 
 
 CHAPTER I. 
 
 THE NATURE OF TORT IN GENERAL. 
 
 <JuB first difficulty in dealing with the law of torts is to -yviiat i 
 fix the contents and boundaries of the subject. If we tort? 
 are asked, What are torts ! nothing seems easier than 
 to answer by giving examples. Assault, libel, and de- 
 •ceit are torts. Trespass to land and wrongful dealing 
 with goods by trespass, " conversion," or otherwise, 
 are torts. The creation of a nuisance to the special 
 prejudice of any person is a tort. Causing harm by 
 negligence is a tort. So is, in certain cases, the mere 
 failure to prevent accidental harm arising from a state 
 of things which one has brought about for one's own 
 purposes. Default or miscarriage in certain occupa- 
 tions of a public nature is likewise a tort, although the 
 same facts may constitute a breach of contract, and 
 may, at the option of the aggrieved party, be treated 
 as such. But we shall have no such easy task if we 
 are required to answer the question. What is a tort ? — 
 in other words, what is the principle or element com- 
 Tnon to all the classes of cases we have enumerated, or 
 might enumerate, and also distinguishing them as a 
 -whole from other classes of facts giving rise to legal 
 duties and liabilities ? It is far from a simple matter 
 "to define a contract. But we have this much to start 
 from, that there * are two parties, of whom one [ * 2] 
 agrees to terms offered by the other. There are variant 
 and abnormal forms to be dealt with, but this is the 
 normal one. In the law of torts we have no such start- 
 ing-point, nothing (as it appears at first sight) but a 
 leap of miscellaneous instances. The word itself will 
 plainly not help us. Tort is nothing but the French 
 equivalent of our English word wrong. In common 
 speech everything is a wrong, or wrongful, which is 
 "thought to do violence to any right. Manslaying, false 
 witness, breach of covenant, are wrongs in this sense. 
 
 1 LAW OF TOETS. (2335) 
 
2 THE NATUKE OF TOET IN GENERAL. 
 
 But thus we should include all breaches of all duties, 
 and therefore should not even be on the road to any 
 distinction that could serve as the base of a legal class- 
 ification. 
 
 History and In the history of our law, and in its existing author- 
 limitsofEng- ities, we may find some little help, but, considering the 
 ILshclassifica- magnitude of the subject, singularly little. The ancient 
 '^^^' common law knew nothing of large classifications. 
 
 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. No doubt the forma 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 class- 
 ification tending to prevail (a). 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, 
 [ * 3] already becoming obsolete in the seventeenth * cen- 
 tury, and finally abolished by the Common Law Proce 
 dure 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. Upon 
 the other hand, they are distinguished in the modern 
 law from criminal offences. In the mediaeval period 
 the procedure whereby redress was obtained for many of 
 the injuries now classified as torts bore plain traces of a 
 criminal or quasi-criminal character, 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 
 distinguised. 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 both to a civil ac- 
 tion 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 jur- 
 isdictions, and are guided by different rules of proced- 
 ure. Torts belong to the subject-matter of Common 
 Pleas as distinguished from Pleas of the Crown. Again, 
 
 (a) Appendix A. 
 (2336) 
 
LIMITS OF TERMINOLOGY. 
 
 the term and its usage are derived wholly from the 
 Superior Courts of Westminster as they existed before 
 the Judicatru-e Acts. Therefore the la-^ of torts is 
 necessarily confined by the limits within which those 
 Courts exercised their jurisdiction. 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 un- 
 derstanding of words, breach of trust is a wrong, 
 adultery is a wrong, refusal to pay just compen- 
 sation for saving a vessel in distress is a wrong. Yet 
 none of these things is a tort. * An order may [ * 4] 
 be made compelling restitution from the defaulting 
 trustee; a decree of judicial separation may be pro- 
 nounced against the unfaithful wife or husband; and 
 payment of reasonable salvage may be enforced against 
 the ship-owner. But the administration of trusts be- 
 longs to the law formerly peculiar to the Chancellor's 
 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 Ad- 
 miral's Court. These things being unknown to the old 
 common law, there can be no question of tort in the 
 technical sense. 
 
 Taking into account the fact that in this country the Exclusive 
 separation of courts and of forms of action has disap- limits of 
 peared, though marks of the separate origin and history " tort." 
 of every branch of jurisdiction remain, we may now say 
 this much. A tort is an act or omission giving rise, in 
 virtue of the common law jurisdiction of the Court, 
 to a civil remedy which is not an action of contract. 
 To that extent we know what a tort is not. We are se- 
 cured against a certain number of obvious errors. We 
 shall not imagine (for example) that the Married 
 Women's Property Act of 1882, by providing that hus- 
 bands and wives cannot sue another for a tort, has 
 thrown doubt on the possibility of a judicial separa 
 tioo. But whether any definition can be given of a tort 
 beyond the restrictive and negative one that it is a 
 cause of action (that is, of a "personal" action as 
 above noted) which can be sued on in a coixrt of com- 
 mon law without alleging a real or supposed contract, 
 and what, if any, are the common positive characters of 
 the causes of action that can be so sued upon : — these 
 
 (2337) 
 
THE NATUEE OF TORT IN GENERAL. 
 
 Are any 
 
 general 
 principles 
 discover- 
 able? 
 
 The genera 
 of torts in 
 English 
 law. 
 
 are matters on which our books, ransack them as we will, 
 refuse to utter any certain sound whatever. If the col- 
 [ * 5] lection of rules which we call the law of * torts 
 is founded on any general principles of duty -and lia- 
 bility, those principles have nowhere been stated with 
 authority. And, what is yet more remarkable, the want 
 of authoritative principles appears to have been felt as 
 a want by hardly any one (b). 
 
 "We have no right, perhaps, to assume that by fair 
 means we shall discover any general principles at all. 
 The history of English usage holds out, in itself, no 
 great encouragement. In the earlier period we find a 
 current distinction between wrongs accompanied with 
 violence and wrongs which are not violent; a distinction 
 important for a state of society where open violence is 
 common, but of little use for the arrangement of mod- 
 ern law, though it is still prominent in Blackstone's ex- 
 position (c). Later we find a more consciously and 
 carefully made distinction between contracts and causes 
 of action which are not contracts. This is very signifi- 
 cant in so far it marks the ever gaining importance of 
 contract in men's afPairs. That which is of contract 
 has come to till so vast a bulk in the whole frame of 
 modern law that it may, with a fair appearance of 
 equality, be set over against everything which is inde 
 pendent of contract. But this unanalysed remainder 
 is no more accounted for by the dichotomy of the Com- 
 mon Law Procedure Act than it was before. It may 
 have elements of coherence within itself, or it may not. 
 If it has, the law of torts is a body of law capable of 
 being expressed in a systematic form and under appro- 
 priate general principles, whether any particular at- 
 tempt so to express it be successful or not. If not, 
 then there is no such thing as the law of torts in the 
 [ * 6] sense in which * there is a law of contracts, or 
 of real property, or of trusts, and when we make use 
 of the name we mean nothing but a collection of mis- 
 cellaneous topics which, through historical accidents, 
 have never been brought into any real classification. 
 
 The only way to satisfy ourselves on this matter is to 
 examine what are the leading heads of the English law 
 of torts aa commonly received. If these point to any 
 
 (6) The first, or almost the first, writer who has clearly called 
 attention to it is Dr. Markby. See the chapter on Liability in 
 his " Elements of Law.'' 
 
 (c) Comm. iii. 118. 
 
 (•2338) 
 
CLASSIFICATION OF TORTS. i 
 
 sort of common principle, and seem to furnish accept- 
 able lines of construction, we may proceed in the direc- 
 tions indicated; well knowing, indeed, that excrescences, 
 defects, and anomalies will occur, but having some 
 guide for our jiidgment of what is normal and what is 
 exceptional. Now 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 three-fold division accord- 
 ing to their scope and effects. There are wrongs affect- 
 ing a man in the safety and freedom of his own person, 
 in honour and reputation (which, as men esteem of 
 things near and dear to them, come next after the per- 
 son, if after it at all), or in his estate, condition, and con- 
 venience of life generally : the word estate being here 
 understood in its widest sense, as when we speak of 
 those who are " afflicted or distressed in mind, body, or 
 estate." There are other wrongs which affect specific 
 property, or specific rights in the nature of property : 
 property, again, being taken in a large sense so as to 
 cover possessory rights of every kind. 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, omitting for the present such as are obscure 
 or of little practical moment. 
 
 * Group A. [ * 7] 
 
 Personal Wrongs. Personal 
 
 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. 
 Malicious prosecution, conspiracy. 
 
 Geoup B. 
 
 Wrongs to Property. Wrongs to 
 
 1. Trespass: (a) to land. ^''^^^ ^' 
 
 (b) to goods. 
 Conversion and unnamed wrongs ejusdem generis. 
 Disturbance of easements, &c. 
 
 2. Interferance with rights analogous tft property, such 
 
 as private franchises, patents, copyrights. 
 
 (2339) 
 
Wrongs 
 iiiTecting 
 person and 
 property. 
 
 the nature of tort in general. 
 
 Geoup C. 
 
 Wrongs to Person, Estate, and Property generally. 
 
 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 re- 
 sults, as will be seen hereafter, partly from ancient 
 rules of the common law of which the origin is 
 still doubtful, partly from the modern develop- 
 m.ent of the law of negligence. 
 
 [ * 8] * All the acts and omissions here specified are un- 
 doubtedly torts, or wrongs in the technical sense of Eng- 
 lish law. They are the subject of legal redress, and 
 under our old judicial system the primary means of re- 
 dress would be an action brought in a common law 
 court, and governed by the rules of common law plead- 
 ing (d). 
 
 We put aside for the moment the various grounds of 
 justification or excuse which may be present, and if 
 present must be allowed for. It will be seen by the 
 student of Roman law that our list includes approxi- 
 mately the same matters (e) as in the Roman system 
 are dealt with (though much less fully than in our own) 
 under the title of obligations ex delicto and quasi ex 
 delicto. To pursue the comparison at this stage, how 
 ever, would only be to add the difficulties of the Roman 
 classification, which are considerable, to those already 
 on our hands. 
 
 Character 
 of wrong- 
 ful acts, 
 c&c. under 
 the several 
 classes. 
 Wilful 
 ^VTongs. 
 
 The groups above shown have been formed simply 
 with reference to the effects of the wrongful act or 
 omission. But they appear, on further examination, to 
 have certain distinctive characters with reference to the 
 nature of the act or omission itself. In Group A., 
 generally speaking, the v?rong is wilful or wanton. 
 Either the act is intended to do harm, or, being an act 
 
 (d) In some cases the really effectual remedies were adminis- 
 tered by the Court of Chancery, but only as auxiliary to the legal 
 right, which it was often necessary to establish in an action at 
 law before the Court of Chancery would interfere. 
 
 (e) Trespass to land may or may not be an exception, according 
 to the view we false of the nature of the liabilities enforced by 
 the possessory remedies of the Roman law. Some modem au- 
 thorities, though not most, regard these as ex delicto. 
 
 (2340) 
 
MORAL ELEMENTS. 
 
 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 [ * 9] 
 of other men's rights and dignity, which the Greeks 
 called ujSpc:;. Thus the legal wrongs are such as to be also 
 the objectof strongmoral condemnation. It is needless to 
 show by instances that violence, evil-speaking, and de- 
 ceit, have been denounced 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 
 cri*inal and civil, public and private law. 
 
 In Group B. this element is at first sight absent, or Wrongs 
 at any rate indifferent. Whatever may or might be apparently 
 the case in other legal systems, the intention to violate incon- 
 another's rights, or oven the knowledge that one is vio- ^^j^ moral 
 lating them, is not in English law necessary to .consti- blame, 
 tute the wrong of trespass as regards either land or 
 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 try- 
 ing 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 trespass. No man can set his 
 foot upon my ground without my licence, but he is lia- 
 ble 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 [ * 10] 
 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 own* 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 
 liim, or an incompetent hand is employed on it, and 
 the watch is spoilt in the attempt to restore it. With- 
 out question the owner may hold me liable. In one 
 
 (/) Per Cur. Entick v. Carrlngton, 19 St. Tr. 1066. 
 (g) See Hollins v. Fowler, L. E. 7 H. L. 7.57. 
 
 (2341) 
 
'Omission. 
 
 8 THE NATURE OF TORT IN GENERAL. 
 
 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 my neighbour's in every case. Reserving the 
 explanation of this to be attempted afterwards, we pass 
 
 Wrongs of In Group C. the acts or omissions complained of hhve 
 ampni- a kind of intermediate character. They are not as a 
 dence and ^^jg wilfully or wantonly harmful: but neither are they 
 morally indiflerent, 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 cer- 
 tain risks. A man who fails to take order, in things' 
 [ * 11] 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 the moral 
 judgment of his fellows. Legal liability for negli- 
 gence and similar wrongs corresponds approxi- 
 mately 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 considered than 
 imprudence if harm happens to come of it; and here 
 too morality will not dissent. In some conditions, in- 
 deed, 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, and yet the 
 party liable has done nothing which the law condemns 
 (h). 
 
 (A) How, far such a doctrine can be theoretically or historically 
 justified is no longer an open question for English courts of jus- 
 tice, for it has been explicitly afSnned by the House of Lords: 
 Eylands v. Fletcher (1868) L.' R. 3 H. L. 330. 
 (2342) 
 
FORMS OF ACTION. 
 
 Except in these cases, the liability springs from some 
 shortcoming in the care and caution to which, taking 
 human affairs 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 man-, 
 slaughter by negligence. 
 
 We have, then, three main divisions of the law of Relation 
 torts. In one of them, which may be said to have a of the law 
 quasi-criminal character, there is a very strong ethical o'' torts to 
 element. In another no such element is apparent. In etMcaT'" 
 the third such * an element is present, though [ * 12] precept 
 less manifestly so. Can we find any category of human Alterum 
 duties that will approximately cover them all, and bring """ ^'^<'<i«>'<'- 
 them into relation with any single principle ? Let us 
 turn to one of the best-known sentences in the introduc- 
 tory chapter of the Institutes, copied from a lost work 
 of Ulpian. " Juris praecepta sunt haec: honeste vivere, 
 alterum non laedere, suum cuique tribuere." Honeste 
 vivere is a vague phrase enough; it may mean refrain- 
 ing from criminal offences, or possibly general good be- 
 haviour in social and family relations. Suum cuique 
 tribuere seems to fit pretty well with the law of pro- 
 perty and contract. And what of alterum non. laedere f 
 " Thou shalt do no hurt to thy neighbour." Our law 
 of torts, with all its irregularities, has for its main pur- 
 pose nothing else than the development of this precept 
 (i). This exhibits it, no doubt, as the technical work- 
 ing out of a moral idea by positive law, rather than 
 the systematic application of any distinctly legal con- 
 ception. But all positive law must presuppose a moral 
 standard, and at times more or less openly refer to it; 
 and the more so in proportion as it has or approaches 
 to having a penal character. 
 
 The real difficulty of ascribing any rational unity to Historical 
 our law of torts is made by the wide extent of the anomaly of 
 liabilities mentioned under Group B, and their want of }^^ °^ 
 intelligible relation to any moral conception. ami^c?n- 
 
 A right of property is interfered with " at the peril version. 
 of the person interfering with it, and whether his in 
 
 (i) Compare the statement of "duty towards my neighbour," 
 in the Church Catechism, probably from the hand of Goodrich, 
 Bishop of Ely, who was a learned civilian: "To hurt nobody by 
 word nor deed: to be true and just in all my dealing . . " 
 
 (2343) 
 
10 
 
 THE NATURE OF TOET IN GENERAL. 
 
 Early 
 division of 
 forms of 
 action. 
 
 Writs of 
 right and 
 writs of 
 trespass : 
 restitution 
 orpunisii- 
 ment. 
 
 terference be for his own use or that of anybody else" 
 
 (fc). 
 
 [ * 13] * 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. 
 
 The truth is that we have here to deal with one of 
 the historical anomalies that abound in English law. 
 Formerly we had a clear 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 the vindication of title and claims for redress against 
 specific injuries. Of course the same facts would of- 
 ten, at the choice of the party wronged, afford 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 distinc- 
 tion was in itself none the less marked. For assertion 
 of title to land ihere was the writ of right; and the 
 writ of debt, with its somewhat later variety, the writ of 
 detinue, asserted a plaintiff's title to money or goods in 
 a closely corresponding form (Z). Injuries to person or 
 property, on the other hand, were matter for the writ of 
 trespass and certain other analogous writs, and (from 
 the 13th century onwards) the later and more compre- 
 hensive writ of trespass on the case (m). In the former 
 Ij * j^4j * ]jin(j of process, restitution is the object 
 sought; in the latter some redress or compensation 
 which, there is great reason to believe, was originally 
 understood to be a substitute for retaliation or private 
 vengeance. Now the writs of restitution, as we may 
 collectively call them, were associated with many cum- 
 brous and archaic points of procedure, exposing a 
 
 (it) Lord O'Hagan, L. R. 7 H. L. at p. 799. 
 
 (?) The writ of right (Glanvill, Bk. i. c. 6) runs thus: "Rex 
 vicecomitd salutem: Praecipe A. quod sine dilatione reddat B. 
 unam hidam tcrrae in villa ilia, unde idem B. queritur quod 
 praedictus A. ci deforceat: et nisi fecerit, summoneeum," &c. 
 The writ of debt (Bk. x. c. 2) thus: "Rex vicecomiti .salutem: 
 Praecipe N. quod iuste ct sine dilatione reddat R. centum marcas 
 quas ei debet, ut dicit, et unde queritur quod ipse ei iniuste de- 
 forceat. Et nisi fecerit, summone eum," &c. The writ of ac- 
 count also contains the the characteristic words iuste el sine dila- 
 tione. 
 
 (m) Blackstone, iii. 12:2; F. N. B. 92. The mark of this class 
 of actions is the conclusion of the writ enntra pacem. Writs of 
 assize, including tlie a.ssize of nuisance, did not so conclude, but 
 show analogies of form to the writ of trespass in other respects. 
 Actions on the case might be founded on other writs besides that 
 of trespass, e.g. deceit. 
 
 (2344) 
 
ANOMALIES OF TRESPASS. 11 
 
 plaintiff to inoalculable and irrational risk; while the 
 operation of the writs of penal redi-ess was by com- 
 parison simple and expiditious. Thus the interest of 
 suitors led to a steady encroachment of the writ of tres- 
 pass 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 — forms of posses- 
 sory real action which are a sort of link between the 
 wi-it of right and the writ of trespass — and then super- 
 seded 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 assump- 
 sit, both of these new-fashioned remedies being varities 
 of tresspass on the case (n). In this way the distinc- 
 tion 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 there- 
 fore, as the distinction of remedies was lost, the dis- 
 tinction 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- 
 ferred, in forensic usage and thence in the * tra- [ * 15] 
 ditional habit of mind of English lawyers, to the law of 
 torts. It will be observed that in our early forms of 
 action contract, as such, has no place at all (o); an ad- 
 ditional proof of the relatively modern character both 
 of the importance of contract in practical life, and of 
 the growth of the corresponding general notion. 
 
 We are now independent of forms of action. Tres- Rationalized 
 pass and trover have become historical landmarks, and version of 
 the question whether detinue is, or was, an action ^^^ '^^ 
 founded on contract or on tort (if the foregoing state- '^ '^ 
 ment of the history be correct, it was really neither) sur- 
 vives only to raise difficulties in applying certain pro- 
 visions of the County Courts Acts as to the scale of 
 costs in the Superior Courts (p). It would seem, there- 
 
 (n) For the advantages of suing in case over the older forms of 
 a<>tions, see Blackstone, iii. 153, 155. The rea.son given at p. 152 
 for the wager of law being allowed in debt and detinue is some 
 one'.s idle gues.s, due to mere ignorance of the earlier history. 
 
 (o) Except what may be implied from the technical rule that 
 the word debet was proper only in an action for a sum of money 
 between the original parties to the contract: F. N. B. 119; Black- 
 stone, iii. 156. 
 
 {p) Bryant v. Herbert (1878) 3 C. P. Div. 389. 
 
 (2345) 
 
12 
 
 THE NATURE OF TORT IN GENERAL. 
 
 Analogy 
 of the 
 Roman 
 obliga- 
 tions ex 
 delicto. 
 
 fore, 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 of trespass to property in the 
 English system. It appears morally unreasonable, at 
 first sight, to require a man at his peril to know what 
 land and goods are his neighbour's But it is not so 
 evidently unreasonable to expect him to know what is 
 his own, which is only the statement of the same rule 
 fi-om the other side. 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 
 [ * 16] as to his right, but, for causes deemed by him * suf- 
 ficient, he is content to abide (or perhaps intends to 
 provoke) a legal contest by which the doubt may be re- 
 solved. 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 dae circumspection, or else it involves the con- 
 scious acceptance of a risk. A form of procedure which 
 attempted to distinguish between these possible cases 
 in detail would for practical purposes hardly be toler- 
 able. 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. Prom this point of view we can accept, though 
 we may not actively approve, the inclusion of the 
 morally innocent with the morally guilty trespasses in 
 legal classification. 
 
 We may now turn with profit to the comparison of 
 the Roman system wtth our own. There we find 
 strongly marked the distinction between restitution and 
 penalty, which was apparent in ova: old forms of action, 
 but became obsolete in the manner above shown. Mr. 
 Moyle (g) thus describes the specific character of 
 obligations ex delicto. 
 
 " Such wrongs as the withholding of possession by a 
 defendant who bona jide 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 diflPerent 
 thing from an obligatio ex delicto; they are redressed 
 
 (g) In his edition of the Institutes, note to Bk. iv. tit. 1, p. 497. 
 (234G) 
 
DOLUS AND CULPA. 13 
 
 by mere reparation, by the wrong-doer being compelled 
 tcJ put the other iu the position in which he would have 
 been had the wrong 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 [ * 17] 
 modify obligations already subsisting; they ahvays in- 
 volve dolus or culpa ; and the remedies by which they 
 are redressed are penal." 
 
 The Latin dolus, as a technical term, is not properly j(,;„5 g^-^^ 
 .rendered by "fraud" in English; its meaning is much culpa. 
 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 cir- 
 cumspection which is due from one man to another. 
 The rules specially dealing with this branch have to de- 
 fine the measuz-e of care which the law prescribes as 
 due in the case in hand. The Roman 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 ever received. It 
 is to be observed that the Roman theory was built up 
 on a foundation of archaic materials by no means un- 
 like 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 put aside the English treatment of rights of property 
 as being accounted for by historical accidents, we find 
 that the Roman conception of delict altogether sup- 
 ports (and by a perfectly independent analogy) the 
 conception that appears really to underlie the English 
 law of tort. Liability for delict, or civil vnrong 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 con- 
 sequences (culpa). We have, moreover, apart from 
 the law of trespass, an * exceptionally stringent [ * 18] Liability 
 rule in certain cases where liability is attached to the ^^f^^^^^ 
 befalling of harm without proof of either intention or 
 negligence, as was mentioned under Group C of our 
 provisional scheme. Such is the case of the landowner 
 who keeps on his land an artificial reservoir of water, if 
 the reservoir bursts and floods the lands of his neigh- 
 
 (2347) 
 
14 THE NATURE OP TORT IN GENERAL. 
 
 bours. Not that it was wrong of him to have a reser- 
 voir there, but the law says he must do so at his own 
 risk (r). This kind of liability has its parallel in Eoman 
 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 nien'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. 
 Whatever 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 policy governing. the modern 
 class of cases of which Eylands v. Fletcher [t) is the 
 type and leading authority; by such reasons, neverthe- 
 less, the rules must be defended as part of the modern 
 law, if they can be defended at all. 
 
 Summary. On the whole, the result seems to be parjily negative, 
 
 but also not to be barren. It is hardly possible to 
 frame a definition of a tort that will satisfy all the mean- 
 [ * 19] ings in * which the term has been used by per- 
 sons and in documents of more or less authority in our 
 law, and will at the same time not be wider than any 
 of the authorities warrant. But it appears that this 
 difficulty or impossibility is due to particular anomalies, 
 and not to a total want of general principles. Disre- 
 garding those anomalies, we may try to sum up the 
 normal idea of tort somewhat as follows: — 
 
 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 to harm suf- 
 fered by a deteiTuinate person in the following ways: — 
 
 (a) It may be an act which, without lawful justification 
 
 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. 
 
 (r) Ryland v. Fletcher, L. R. 'i H. L. 330. 
 
 (s) Austin's perverse and unintelligent criticism of this per- 
 rectly rational terminology has been treated with far more 
 respect than it deserves. It is true, however, that the application 
 of the term in the Institutes is not quite consistent or complete. 
 See Mr. Moyle's notes on I. iv. 5. 
 
 [t] L. E. 3 H. L. 330. 
 
 (2348) 
 
RELATION OP WKONG TO DAMAGE. 15 
 
 (c) It may be an act or omission causing harm which 
 
 the person so acting or omitting did not in- 
 tend to cause, but might and should with due 
 diligence have foreseen and prevented. 
 
 (d) It may, in special eases, consist merely in not 
 
 avoiding or preventing harm which the party 
 was bound, absolutely or within limits, to 
 avoid or prevent. 
 
 A special duty of this kind may be (i) absolute, (ii) 
 limited to answering for harm which is assignable to 
 negligence. 
 
 In some positions a man becomes, so to speak, an in- 
 surer 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 special liabilities, 
 but running through the whole subject, and of constant 
 occurrence in almost every division of it, is the rule that 
 a * master is answerable for the acts and de- [ * 20] 
 faults of his servants in the course of their employment. 
 
 This is indication rather than defihition : but to have 
 guiding principles indicated is something. We are en- 
 titled, and in a manner bound, not to rush forthwith 
 into a detailed enumeration of the several classes of 
 torts, but to seek first the common principles of liability, 
 and then the common principles of immunity which are 
 known as matter of justification and excuse. There 
 are also special conditions and exceptions belonging 
 only to particular branches, and to be considered, there- 
 fore, in the places appropriate to those branches. 
 
 (2349) 
 
16 
 
 PRINCIPLES OF LIABILITY. 
 
 [*21] 
 
 Want of 
 generality 
 in early 
 law. 
 
 * CHAPTEE II. 
 
 PRINCIPI^ES OF LIABILITY. 
 
 There is no express authority that I know of for stat- 
 ing as a general proposition of English law that it is a 
 wrong to do wilful harm to one's neighbour without 
 lawfal justification or excuse. Neither is there any ex- 
 press authority for the general proposition that men 
 must perform their contracts. Both principles are, in 
 this generality of form or conception, modern, and 
 there was a time when neither was true. Law begins 
 not with authentic general principles, but with enume- 
 ration of particular remedies. There is no law of con- 
 tracts 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 as- 
 signed to them. Thus in the Anglo-Saxon laws we find 
 minute assessments of the compensation due for hurts 
 to every 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 spe- 
 [ * 22] cified forms are incapable * of enforcement; 
 whatever injuries are not in the table of compensation 
 must go without legal redress. The phrase damnum 
 sine iniuria, which for the modern law is at best insig- 
 nificant, 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 
 duty not 
 to do harm 
 in modern 
 law. 
 
 Such is not the modern way of regarding legal duties 
 or remedies. It is not only certain favoured kinds of 
 agreement that are protected, but all agreements that 
 satisfy certain general conditions are valid and bind- 
 ing, subject to exceptions which are themselves assign- 
 able to general principles of justice and policy. So we 
 
 [a) In Gains iii. 223, 224, the contrast between the ancient law 
 of iixed penalties and the modern law of damages assessed by 
 judicial authority is clearly shown. The student will remember 
 that, as regards the stage of development attained, the law of 
 Justinian, and often that of Gaius, is far more modern than the 
 English law of the Year- Books. 
 2350) 
 
SPECIFIC DUTIES. , 17 
 
 can be no longer satisfied in the region of tort with a 
 mere enumeration of actionable injui'ies. The whole 
 modern law of negligence, with its many developments, 
 enforces the duty of fellow-citizens to observe in vary- 
 ing circumstances an appriate 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 ex- 
 pect and bound to practise observance of this kind, as 
 we shall more fully see hereafter. If there exists, 
 then, a positive' duty to avoid harm, much more must 
 there exist, whether it be so expressed in the books or 
 not, the negative duty of not doing wilful harm; sub- 
 ject, as all general duties must be subject, to the neces- 
 sary 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 
 i» use due diligence to avoid causing harm to others — 
 are all alike of a comprehensive nature. As our law of 
 contract has been generalized by the doctrine of consid- 
 eration and the action of assumpsit, * so has [ * 23] 
 our law of civil wrongs by the wide and various appli- 
 cation of actions on the case (b). 
 
 The commission of an act specifically forbidden by Acts in 
 law, or the omission or failure to perform any duty breach of 
 specifically imposed by law, is generally equivalent to specific 
 an act done 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 common- 
 est case), the justice and necessity of this rule are 
 manifest without further 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 be required 
 of the company in providing against harm to passen- 
 gers using the road. Even if the mischief to be pre- 
 vented 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 conse- 
 
 (J) The developed Eoman law had either attained or was on 
 •the point of attaining a like generality of application. " Deni- 
 que aliis pluribus modis admitti iniuriam manifestnm est:" I. 
 iv. 4, 1. 
 
 2 LAW OF TOBTS. (2351) 
 
18 
 
 PRINCIPLES OF LIABILITY. 
 
 Duty of • 
 respecting 
 property. 
 
 quences. The old-fashioned distinction between mala 
 prohibita and mala in se 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 (c). 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 ob- 
 servance appears to be no bad thing. Many public du- 
 ties, however, are wholly created by special statutes. In 
 [ * 24] * such cases it is not an universal proposition 
 that a breach of the duty confers a private right of ac- 
 tion on any and every person who suffers particu- 
 lar damage from it. The extent of the liabilities inci- 
 dent to- a statutory duty must be ascertained from the 
 scope and terms of the statute itself. Acts of Parlia- 
 ment 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 suit (d). Also there is no cause of ac- 
 tion 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 be wrongful for a definite purpose cannot be there- 
 fore treated as wrongful for another and different pur- 
 pose (e). 
 
 As to the duty of respecting proprietary rights, 
 we have already mentioned that it is an absolute one. 
 Further illustration is reserved for the special treat- 
 ment of that division of the subject. 
 
 Duties of Then we have the general duty of using due care 
 
 diligence. and caution. "What is due care and caution under given 
 circumstances has to be worked out in the special treat- 
 ment 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. 
 
 Assumption Moreover, if the party has taken in hand the con- 
 of skm. duct of anything requiring special skill and knowledge, 
 
 re) Gully V. Smith, 12 Q. B. D. 121. 
 
 (d) Atkinson v. Newcastle Waterworks Co. (1877) 2 Ex. Div. 
 441. 
 
 (e) Gorris v. Scott, (1874) L. E. 9 Ex. 125; Ward v. Hobbs 
 (1878) 4 App. Ca. 13, 23: 
 
 (2352) 
 
DILIGENCE AND COMPETENCE. 19 
 
 we require * of him a competent measure of the [ * 25] 
 skill and knowledge usually found in persons who 
 undertake such matters. And this is hardly an addi- 
 tion to the general rule; for a man of common sense 
 knows wherein he is competent and wherein not, and 
 does not take on himself things in which he is incom- 
 petent. 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 brick- 
 layer; and so in every case that can be put. Whoever 
 takes on himself to exercise a craft holds himself 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, imperitia culpae adnwneratur (/). 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 [g) ; 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 exception to this principle appears to be admissible Exception 
 in one uncommon but possible kind of circumstances, °^ necessity. 
 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 
 saUor * without knowledge of steam-engines. [ * 26] 
 So if the driver and stoker of a train were both dis- 
 abled, 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 duties. 
 So again, a person who is present at an accident re- 
 quiring immediate provisional treatment, no skilled aid 
 being on the spot, must act reasonably according to 
 common knowledge 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 
 such cases; but we may assume it to be law that no 
 
 (/) D. 50. 17, de div. reg. iuris antiqui, 132 ; cf. D. 9. 2, ad 
 legem Aquiliam, 8. Both passages are from Gaius. 
 
 (g) HammackjJ. "White (1862) 11 C. B. N. S. 588; 31 L. J. C. 
 P. 129; Holmes v. Mather (1875) L. R. 10 Ex. 261. 
 
 (2353) 
 
20 
 
 PRINCIPLES OF LIABILITY. 
 
 Liability 
 in relation 
 to conse- 
 quences of 
 act or 
 default. 
 
 Measure of 
 damages. 
 
 more is required of a person in this liind of situation, 
 than to make a prudent and reasonable use of such 
 skill, be it much or little, as he actually has. 
 
 We shall now consider for what consequences of his 
 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 (h) 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 constantly 
 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, without looking to any 
 further degree " (i). Liability must be founded on an 
 [ * 27] 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 much of 
 the harm that ensues is related to the wrongful act as 
 its " immediate cause," and therefore is to be counted 
 in estimating the wrong-doer's liability. The 'distinc- 
 tion 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 com- 
 mitted, to settle the footing on which compensation for 
 the wrong is to be awarded. The normal form of com- 
 pensation for wrongs (and also 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 
 (k) to explain to the jurors, as a matter of law, the foot- 
 ing upon which they should calculate the damages if 
 their yerdict 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 
 
 (A) For shortness' sake I shall often use the word " act " alone 
 as equivalent to ' ' a^ct or default. ' ' 
 
 (i) Maxims of the Law, Reg. 1. It is remarkable that not one 
 of the examples adduced by Bacon belongs to the law of torts, or 
 raises a question of the measure of damages. There could be no 
 stronger illustration of the extremely modern character of the 
 ■whole subject as now understood. 
 
 {k) Hadley v. Baxendale (1854) 9 Ex. 341; 23 L. J. Ex. 179. 
 (2354) 
 
MEASURE OP DAMAGES. 21 
 
 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 (Z). But in cases of tort the pri- 
 mary question of liability may itself depend, and it often ' 
 does, on the nearness or remoteness of the harm com- 
 plained 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, [ * 28] 
 a matter appearing at first sight to belong to the law of 
 remedies more than of " antecedent rights," constantly 
 involves, in the field of torts, points that are in truth of 
 the veiy 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 sub- 
 ject must not be overlooked here. 
 
 The meaning of the term "immediate cause" is not Meaning of 
 capable of perfect or general definition. Even if it had "immediate 
 an ascertainable logical meaning, which is more than cause." 
 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 ease with the person whose conduct is com- 
 plained of, and having the like opportunities of observa- 
 tion, 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 vyas " immediate " or not does 
 not matter. That which a man actually foresees is to 
 him, at all events, natural and probable. 
 
 In the case of wilful wrong-doing we have an act in- Liability 
 tended to do harm, and harm done by it. The infer- of con- 
 ence of liability fi-om such an act (given the general ''^'1^?°'^?^ 
 
 . -J. J! i- i. u 01 WlllUl 
 
 rule, and assuming no just cause oi exception to be pre- ^^^. 
 
 (I) Whether it is practically worth while to sue on a contract 
 must, indeed, often turn on the measure of damages. But this 
 need not concern us here. 
 
 (2355) 
 
22 
 
 PRINCIPLES OF LIABILITY. 
 
 it extends 
 to some 
 conse- 
 quences 
 not in- 
 tended. 
 
 [ * 29] sent) may * seem a islain matter. But even in 
 this first case it is not so plain as it seems. We have 
 to consider the relation 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 the consequence may be more than 
 was intended, or different. And it may be different 
 either in respect of the event, or of the person affected. 
 Nym quarrels with 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. Qr 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 bal- 
 ance, whereby Pistol does fall into the ditch, and his 
 clothes are spoilt. These are simple cases where a dif- 
 ferent consequence from that which was intended hap- 
 pens 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 expected Pistol; and, taking him for Pistol, Bar- 
 dolph and Nym seize and beat Poins. Clearly, just as 
 much wrong is done to Poins, and he has the same 
 claim to redress, as is Bardolph and Nym meant to 
 beat Poins, and not Pistol (m). Or, to take an actual 
 [ * 30] and well-known case * in our books (n), Shep- 
 herd 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-protection, casts it from him. A 
 
 (m) In criminal law there is some difficulty in the case of at- 
 tempted personal offences. There is no doubt that if A. shoots 
 and kills or wounds X. , under the belief that the man he shoots 
 at is Z. , he is in no way excused by the mistake, and cannot be 
 heard to say that he had no unlawful intention as to X. : E. i: 
 Smith (1855) Dears. 559. But if he misses, it seems doubtful 
 whether he can be said to have attempted to kill either X. or Z. 
 Cf E. r. Latimer (1886) 17 Q. B. D. 359. 
 
 (n) Scott V. Shepherd, 2 W. Bl. 892 ; and in 1 Sm. L. C. Xo 
 doubt was entertained of Shepherd's liability; the only question 
 being in what form of action he was liable. The inference of 
 wrongful intention is in this case about as obvious as it can be- 
 lt was, however, not necessary, squib-throwing, as Nares J. 
 pointed out, having been declared a nuisance by statute. 
 (2356) 
 
CONSEQUENCES. 23 
 
 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 the consequences, 
 and it is likewise obvious 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. 
 
 This principle is commonly expressed in the maxim uj^j^^^j.^^^ 
 that " a man is presumed to intend the natural con- conse- 
 sequences of his acts: " a proposition which, with due quences:" 
 explanation and within due limits, is acceptable, but relation of 
 which in itself is ambiguous. To start from the ^l ^^1"^ 
 simplest case, we may know that the man intended to intention. 
 produce a certain consequence, and did produce it. 
 And we may have independent 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 [ * 31] 
 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 mishief of some 
 kind to be done by it. Thus far it is a real inference, 
 not a presumption 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 vvas 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 
 
24 PRINCIPLES OF LIABILITY. 
 
 that which is only consequential on the strictly wilful 
 wrong. We say that intention is presumed, 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 disprove 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. 
 
 Meanine of -^^^ habit by which we speak of presumption comes 
 " natural and probably from the time when, inasmuch as parties 
 probable" could not give evidence, intention could hardly ever be 
 consequence, matter of direct proof. Under the old system of plead- 
 [ * 32] ing and * procedure, Brian 0. J. might well 
 say, "the thought of man is not triable" (o). Still 
 there is more in our maxim than this. For although 
 we do not care whether the man intended the particu- 
 lar consequence or not, we have in mind such conse- 
 quences 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" — consequence (p). 
 What is natural and probable in this sense is com- 
 monly, but not always obvious. There are consequen- 
 ces which 'no man could, with common sense- and ob- 
 servation, help forseeing. There are others which no 
 human prudence could have foreseen. Between these 
 extremes is a middle region of various probabilities di- 
 vided by an ideal boundary which will be differently 
 fixed by different opinions; and as we approach this 
 boundary the difficulties increase. There is a point 
 where subsequent events are, according to common un- 
 derstanding, 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 
 
 (o) Year-Book 17 Edw. IV. 1 , translated in Blackburn on Sale 
 at p. 193 in 1st ed., 261 in 2nd ed. by Graham. 
 
 (p) " Normal, or likely or probable of occurrence in the ordi- 
 nary course of things, would perhaps be the better expression:" 
 Grove J. in Smith r. Green, 1 C. P. D. at p. 96. But what is 
 normal or likely to a specialist may not be normal or likely to a 
 plain man's knowledge and experience. 
 (2358) 
 
CON'T?EQrENCES. 25 
 
 might or could not have been what it was (q). But 
 that point cannot be defined by science or philosophy; 
 and even if it * could, the definition would not [ * 33] 
 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 find- 
 ings of fact from the conclusions of law, it has grappled 
 more closely with the inherent vagueness of facts than 
 any other sj'stem. We may now take some illustra- 
 tions of the rule of "natural and probable consequen- 
 ces " as it is generally accepted. In whatever form we 
 state it, we must remember that it is not a logical de- 
 finition, but only a guide to the exercise of common 
 sense. The lawyer cannot afford to adventure himself 
 with philosophers in the logical and metaphysical contro- 
 versies that beset the idea of cause. 
 
 In Vandenburgh v. Truax (r), decided by the Su- Vanden- \/ 
 preme Court of New York in 1847, the plaintifl"s ser- burgti. X 
 vant and the defendant quarrelled in the street. The Truax. 
 defendant took hold of the servant, who broke loose 
 from him and ran away; "the defendant took up a 
 pick-axe and followed the boy, who fled into the plain- 
 tiff's store, and the defendant pursued him there, with 
 the pick-axe in his hand." 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 (whatever 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 armed with a deadly weapon," should, in his 
 hasty movements, do some damage to the plaintiff's 
 property in the shop. 
 
 * There was a curious earlier case in the [ * 34] Guille v. 
 same State (s), where one Guille, after going up in a Swan. 
 balloon, came down in Swan's garden. A crowd of 
 people, attracted by the balloon, broke into the garden 
 
 (q) Thas Quain J. said (Sneesby ?•. L. & Y. Rail. Co., L. E. 9 
 Q. B. at p. ■2(j>i): " In tort the defendant i.s liable for all the con- 
 sequences of his illegal act, where they are not so remote as to 
 have no direct connexion with the act, as by the lapse of time for 
 instance. ' ' 
 
 (;■) 4 Denio, 4rA. The decision is of course npt binding except 
 in the State of New York; but it seems to be generally accepted 
 as good law. 
 
 (s) Guille V. Swan (1822) 19 Johns. ,381. 
 
 (2359) 
 
PRINCIPLES OF LIABILITY. 
 
 and trod down the vegetables and flowers. Swan's 
 descent was in itself plainly a trespass; and lie was 
 held liable not only for the damage done by the bal- 
 loon itself but for what 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" (t). In both these cases 
 the squib case was commented and relied on. Simi- 
 larly 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. 
 
 Liability 
 for conse- 
 quences of 
 trespass. 
 
 The balloon case illustrates what was observed in the 
 first chapter on the place of trespass in the law of 
 torts. The trespass was not in the common sense wil- 
 ful; Guille 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 at sea, and by some accident which could not be 
 [ * 35] ascribed to any fault of the traveller the * steer- 
 ing 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 neigh- 
 bour's field in the valley, it may, perhaps, be said that 
 I am technically a trespasser (though it seems not, as 
 there is no act of mine at all: it is like the falling on 
 my neighbour's land of fruit from my tree), but any- 
 how I am not liable for the damage to my neighbour's 
 land. But where trespass to property is committed by 
 a voluntary act, known or not known to be an infringe- 
 ment of another's right, there the trespasser, as regards 
 liability for consequences, is on the same footing as a 
 wilful wrong-doer. 
 
 (/) Per Spencer C. J. It appeared that the defendant (phiin- 
 tiif in error) had called for help; but this was treated as imma- 
 terial. 
 
 (■2360) 
 
w. 
 
 REMOTENESS OF DAMAGE. 27 
 
 A simple example of a conseqiTence too remote to be Consequence 
 ground tor liability, though it was part of the incidents too remote : 
 following on a wi-ongful act, is afforded by Glover v. <^lo^'*'' ^• 
 London and South Western Eailway Company (u). ^ ^^ ^ 
 The plaintifp, being a passenger on the railway, was 
 charged 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 carriage, which were lost; and he 
 sought to hold the company liable not only for the per- 
 sonal 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 
 lie would not havegdt'themif'altSneaving the carriage 
 he had asked for them. 
 
 * In criminal law the question not unfre- [ * 36] Question 
 quently occurs, on a charge of murder or manslaughter, of what is 
 whether a certain act or neglect was the " immediate ^\ll'?g i^ 
 cause" of the death of the deceased person. We shall j™"^^ 
 not enter here upon the cases on this head ; but the 
 comparison of them will be found interesting. They 
 -are collected by Mr. Justice Stephen (x). 
 
 The doctrine of "natural and probable consequence" Liability- 
 is most clearly illustrated, however, in the law of negli- for negli- 
 gence. For there the substance of the wrong itself is gence 
 failure to act with due foresight : it has been defined as "the q^ p™ .^ 
 omission to do something which a reasonable man, guided bability of 
 upon those considerations which ordinarily regulate the consequence, 
 <jonduct of human affairs, would do, or doing something '• *'• i^. 
 which a prudent and reasonable man would not do" (y). of^^j^g ^ 
 Now a reasonable man can be guided only by a reason- foreseen 
 able estimate of probabilities. If men went about to by a 
 guard themselves against every risk to themselves or reasonable 
 others which might by ingenious conjuncture be conceived 
 as possible, human affairs could not be carried on at all. 
 ■The reasonable man, then, to whose ideal behaviour we 
 
 . (n) L. E. 3 Q. B. 25. 
 (x) Digest of the Criminal Law, Arts. 219, 220. 
 (y) Alderson B. in Blyth 7'. Birmingham Waterworks Co. (1856) 
 11 Ex. 781; 25 L. J. Ex. 212. This is not a complete definition, 
 since a man is not liable for even wilful omission without some 
 antecedent ground of duty. But of that hereafter. 
 
 (2.3{il) 
 
28 
 
 PRINCIPLES OF LIABILITY. 
 
 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 
 precaution 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 de- 
 [ * 87] fendant'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 (z), 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 lia- 
 bility 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 exceptional severity, and such rules, for various 
 reasons, exist ; but under an intelligible rule of due care 
 and caution it cannot be taken into account. 
 
 Examples: 
 Hill V. 
 New Elver 
 Co. 
 
 We shall now give examples on. either side of the 
 line. 
 
 In Hill V. New River Company (a), the defendant 
 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 watch- 
 ing it for the safety of the 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 pur- 
 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- 
 [ * 38] * the "proximate cause " was " the first negli- 
 gent act which drove the carriage and horses into the 
 excavation." In fact, it was a natural consequence that 
 
 (z) Per Pollock C. B. (1850) 5 Ex. at p. 248. 
 (a) 9B. &, S. 303 (1868); cp. Harris f. Mobbs (Denmau J. 
 1878) 3 Ex. D. 268, which, perhaps, goes a step farther. 
 (2362) 
 
PROXniATE OR REMOTE CxVUSE. 29 
 
 frightened horses should bolt off the road; it could not 
 be foreseen exactly where they would go off, or what 
 they might run against or fall into. But some such 
 hai-m 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 preci- 
 pice, it would scarcely have been possible to raise the 
 doubt. 
 
 "Williams v. Great "Western Railway Company (b) is Williams v. 
 a stronger case, if not an extreme one. There were on G- "W. R. Co. 
 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 from 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, 187 1 , 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, 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 [ * 39] 
 the railway, had strayed down the line; and on the part 
 of the plaintiflf, that he had gone along the open foot- 
 path, 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 rea- 
 sonably 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 dan- 
 gerous place like a railroad " (c). 
 
 (ft) L. E. 9 Ex. 157 (lfi74). Cp. Hays v. Michigan Central 
 Eail Co. (1883) 111 II. S. 228. 
 (c) AmpHett B. at p. 162. 
 
 (2363) 
 
30 
 
 PRINCIPLES OF LIABILITY. 
 
 Bailiffs of 
 Eomney 
 Marsh v. 
 Trinity 
 House. 
 
 Lynch v. 
 Nurdiu. 
 
 Contrasted 
 cases of non- 
 liability and 
 liability: 
 
 In Bailiffs of Eomney Marsh v. Trinity House (d), a 
 Trinity House cutter had by negligent navigation struck 
 on a shoal about three quarters of a mile outside the 
 plaintiff's sea-wall. Becoming unmanageable, the ves- 
 sel 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 conse- 
 quence of the first default which rendered the vessel 
 unmanageable. 
 
 Something like this, but not so. simple, was Lynch v. 
 Nurdin (e), where the owner of a horse and cart left 
 them unwatched in the street; some children came up and 
 began playing about the cart, and as one of them, the 
 [ * 40] plaintiff in * the cause, was climbing in 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 de- 
 fendant's conduct was wanting in ordinary care, and 
 the harm to the plaintiff such a result of it as might 
 have been expected " (/). 
 
 It will be seen that on the whole the disposition of 
 
 {d) L. R. 5 Ex. 204 (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, L, R. 3 A. & E. 466, a brig by negligent navigation ran 
 into a bark, and disabled her; the bark was driven on shore; 
 held that the owners of the brig were liable for injury ensuing 
 from the wreck of the bark to persons on board her. 
 
 (e) Q. B. 29; 10 L. J. Q. E. 73 (1841); cp. Clark v. Chambers, 3 
 Q. B. D. at p. 331. 
 
 (/) This case was relied on in Massachusetts in Powell v. De- 
 veney (1849) 3 Cush. 300, where the defendant's truck had, con- 
 trary to local regulations, been left out in the street for the night, 
 the shafts being shored up and projecting into the road: a second 
 truck was similarly placed on the opposite side of the road: the 
 driver of a third truck, endeavouring with due caution, as it was 
 found, to drive past through the narrowed fairway thus left, 
 struck the shafts of the defendant's truck, which whirled round 
 and struck and injured the plaintiff, who was on the sidewalk. 
 Held, the defendant was liable. If the case had been that the 
 shafts of the truck remained on the sidewalk, and the plaintiff 
 afterwards stumbled on them in the dark, it would be an almost 
 exact parallel to Clark v. Chambers (3 Q. B. D. 327; see below). 
 (2364) 
 
PROXIMATE OF REMOTE CAUSE. 31 
 
 the Com-ts has been to extend rather than to narrow the Cox v. Bur- 
 range of "natural and probable consequences." A Wdge, Lee 
 pair of cases at first sight pretty much alike in their ""■ ^i^^y. 
 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 intq a public road and kicks a per- 
 son who is lawfully on the road, its owner is not liable 
 unless he knew the horse to be vicious (g). 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 [ * 41] 
 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 (h). 
 
 The leading case of Metropolitan R. Co. v. Jackson Metropolitan 
 (i) is in truth of this class, though the problem arose E. Co. v. 
 and was considered, in form, upon the question whether Jackson. 
 there was any evidence of negligence. The plaintiff 
 was a passenger in a carriage already 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 literal following of certain previous author- 
 ities, the House of Lords unanimously held that assum- 
 ing the failure to prevent overcrowding to be 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 Nonliability 
 
 (g) Cox V. Barbidge (1863) 13 C. B. N. S. 430; 32 L. J. C. P. ^*"' °°°" 
 89. 
 
 (h) Lee V. Eiley (1865) 18 C. B. N. S. 722; 34 L. J. C. P. 212. 
 Both decisions were nnanimous, and two judges (Erie C. J. and 
 Keating J.) took part in both. Cp. Ellis v. Loftus Iron Co., L. 
 E. 10 C. P. 10. 
 
 (i) 3 App. Ca. 193 (1877). 
 
 (2365) 
 
32 PKINCIPLBS OF LIABILITY. 
 
 sequences have more than once been the occasion of accidents on 
 of unusual which untenable claims for compensation have been 
 state of [^ * 42] founded, the * Courts holding that the mishap 
 
 BW^v ws-^ "^°^ ^^°^ ^^ ^^^ P^^^"^ charged with causing it by 
 
 Birmingham his negligence could reasonably be expected to provide 
 Waterworks against. In the memorable ■" Crimean winter " of 
 ^o- 1854-5 a fire plug attached to one of the mains of the 
 
 Birmingham Waterworks Company was deranged by 
 the frost, the expansion of superficial ice forcing out 
 the ping, as it afterwards seemed, and the 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 oc- 
 cupier sought to recover from the company for the 
 damage. The Court held that the accident was mani- 
 festly an extraordinary one, and beyond any such fore- 
 sight as could be reasonably required (k). Here 
 nothing was alleged as constituting a wrong on the 
 company's part beyond the mere fact that they did not 
 take extraordinary precautions. 
 
 Sharp?). The later case of Sharp v. Powell (l) goes farther, 
 
 Powell. 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 (m) (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 
 [ * 43] 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 " (n) 
 of such an act as the defendant's, not " one which the 
 defendant could fairly be expected to anticipate as likely 
 to ensue from his act" (o) : he " could not reasonably 
 
 {k} Blyth V. Birmingham Waterworks Co. (1856) 11 Ex. 7S1 ; 
 25 L. J. Ex. 312. The question was not really of remoteness of 
 damage, but whether there was any evidence of negligence at all : 
 nevertheless the case is instructive for comparison with the others 
 here cited. Cp. Mayne on Damages, Preface to the first edition. 
 
 (I) L. E. 7 C. P. 253 (1872). 
 
 (m) So the Court found, having power to draw inferences ot 
 fact. 
 
 (n) Grove J. 
 
 (o) Keating J, 
 
 (2366) 
 
PROXIIMATE OR REMOTE CAUSE. 33 
 
 be expected to forsee that the water would accumulate 
 and freeze at the spot where the accident happened " 
 (P)- 
 
 Some doubt appears to be cast on the rule thus laid Question, if 
 down — which, it is submitted, is the right one — by what tlio same rule 
 was said a few years later in Clark v. Chambers (q), Isolds for 
 though not by the decision itself. This case raises the 0^X1"""' 
 question whether the liability of a wrong-doer may not wrong: 
 extend even to remote and unlikely consequences where Clark v. 
 the original wrong is a wilful trespass, or consists in the Chambers. 
 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 (chevaus-de-frise), across a 
 road subject to other persons' rights of way. An open- 
 ing 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 go to that house. 
 
 3. Some one, not the defendant or any one authorized 
 by him, had removed one of the chevaux-de-frise bar- 
 riers, and set it on end on the footpath. It was sug- 
 gested, but not * proved, that this was done by [ * 44] 
 a person entitled to use the road, in exercise of his right 
 to remove the unlawful obstruction. 
 
 4. Returning later in the evening from his friend's 
 house, the plaintiff, after safely passing through the 
 central opening above mentioned, turned on to the foot- 
 path. 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 case was reserved 
 for further consideration, and the Court (r) held that 
 the damage was nearly enough connected with the de- 
 fendant'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 
 
 (p) Bovill C. J. 
 
 (5) 3 Q. B. D. 327 (187S). 
 
 (r) Cook-burn C. J. and Manisty J. The point chiefly argued 
 for the defendant seems to have been that the interA-cntion of a 
 third person's act prevented him from being liable : a position 
 which is clearly untenable (see Scott v. Shepherd) ; but the judg- 
 ment is of wider scope. 
 
 3 LAW OF TOETS. (2367) 
 
34 
 
 CONSEQUENCES. 
 
 Conse- 
 quences 
 natural in 
 kind though 
 not in cir- 
 cumstance. 
 
 justify a verdict for the plaintiff, that in Sharp v. Powell 
 was too remote to be submitted to a jury at all. The 
 Court did not dispute the correctness of the judgments 
 in Sharp v. Powell " as applicable to the circumstances 
 of the particular case;" but their iinal observations (s) 
 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 
 (t). However/ their conclusion may be supported, and 
 may have been to some extent determined, by the 
 [ * 45] * special rule imposing the duty of what has been 
 called " consummate caution " on persons dealing with 
 dangerous instruments. 
 
 Perhaps the real solution is that here, as in Hill v. 
 New River Co., the kind of harm which in fact hap- 
 pened might have been expected, though the precise 
 manner in which it happened was determined by an 
 extraneous accident. If in this case the spikes had not 
 been 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 would not 
 have been disputed. As it was, the obstruction was not 
 exactly where the defendant had put it, but still 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 Clark v. Cham- 
 bers was, in this view, unnecessary, and it is to be re- 
 gretted that a considered judgment was delivered in a 
 form tending to unsettle an accepted rule without put- 
 ting anything definite in its place. On the whole, we 
 submit that, whether Clark 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. 
 Powell. 
 
 (s) 3 Q. B. D. at p. 338. 
 
 (t) Compare the cases on slander collected in the notes to Vicars 
 V. Wilcocks, 2 Sm. L. C. Compare also, as to consequential 
 liability for disregard of statutory provisions, Gorris v. Scott, L. 
 E. 9 Ex. 12.5. 
 
 (2368) 
 
(35) 
 
 * CHAPTEE III. [ * 46] 
 
 PEESOXS AFFECTED BY TORTS. 
 
 1- — Limitations of Personal Capacity. 
 
 In the law of contract various grounds of personal dis- Personal 
 ability have to be considered with some care. Infants, status, as 
 married women, lunatics, are in different degrees and ? ^"l*^- 
 for different reasons incapable of the duties and rights i™™atcvial 
 arising out of contracts. In the law of tort it is other- tortT'but 
 wise. Generally speaking, there is no limit to per- capacity 
 sonal capacity either in becoming liable for civil injur- "^ ^'^^^ '^^'^v 
 ies, or in the power of obtaining" redress for them. It ^^ ""^^eiiiil- 
 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 consti- 
 tuting 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 case 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 inco- 
 herent words of vituperation, though, if uttered by a 
 sane man * they might be slander. But this [ * 47] 
 would not help a monomaniac who should write libell- 
 ous post-cards to all the people who had refused or 
 neglected, say to supply him with funds to recover the 
 Crown 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 mat- 
 ter where he was, in the common phrase, old enough to 
 
 (a) Ulpian, in D. 9, 2, ad leg. Aquil. 5, § 2. Quaerimus, si 
 furiosus damnum dederit, an legls Aquiliae actio sit ? Et Pega- 
 sus negavit : quae enim in eo culpa sit, cum suae mentis non sit? 
 Et hoc est verissimum. . . . Quod si impubes id fecerit, 
 Labeo ait, quia furti tenetur, teneri et Aquilia eum; et hoc puto 
 verum, si sit iam iniiuriae capax. 
 
 (2369) 
 
36 
 
 PERSONS AEPBCTED BY TORTS. 
 
 Pfirtial or 
 
 apparent 
 
 excej)tions: 
 
 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. 
 
 There exist partial exceptions, however, in the case 
 of convicts and alien enemies, and apparent exceptions 
 as to infants and married women. 
 
 Convicts 
 and alien 
 enemies. 
 
 Infants : 
 oonti'act 
 not to be 
 indirectly 
 enforced by 
 suing in 
 tort. 
 
 Limits of 
 the rule : 
 independent 
 TPTongs. 
 
 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" (&). An alien enemy can- 
 not sue in his own right in any English court. Nor is 
 the operation of the Statute of Limitation suspended, it 
 seems, by the personal disability (c). 
 
 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 
 [ * 48] delicto. "You * cannot convert a contract into 
 a tort to enable you to sue an infant: Jennings v. Kund- 
 all" (d). 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 (e). 
 
 But where an infant commits a wrong of which a con- 
 tract, or the obtaining of something under a contract, is 
 the occasion, but only the occasion, he is liable. In 
 Burnard v. Haggis (/), 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 
 
 (6) 33 & 34 Vic. c. 23, ss. 8, 30. Can he sue for an injunction? 
 Or for a dissolution of marriage or judicial separation? 
 
 (e) See De Wahl v. Braune (1856) 1 H. & N. 178 ; 25 L. J. Ex. 
 34:; (alien enemy: the law must be the same of a convict). 
 
 ((7) 8 T. E. 335, thus cited by Parke B., Fairhurst v. Liverpool 
 Adelphi Loan Association (1854) 9 Ex. 422; 23 L. J. Ex. 163. 
 
 (e) Johnson v. Pie, 1 Sid. 258, &c. See the report fully cited 
 by Knight Bruce V.-C. (1847) in Stikeman v. Dawson, 1 De G-. 
 & Sm. at p. 113; cp. the remarks at p. 110. 
 
 (/ ) 14 C. B. N. S. 45 ; 32 L. J. C. P. 189 (1863). The wrong- 
 ful act was such as to determine the bailment. Compare the 
 authorities on conversion, Ch. IX. below. 
 
 (2370) 
 
MARRIED WOJCEN. 37 
 
 itself on a fence and was fatally injured. Having thus 
 caused the horse to be used in a manner wholly un- 
 authorized by its owner, the defendant was held to have 
 committed a mere trespass or "independent tort," for 
 which he was liable to the owner apart from any ques- 
 tion 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 shall 
 the Court of Chancery that "an infant cannot take ad- not take ad- 
 vantage of his own fraud:" that is, he maybe compelled "^aiitage of 
 to specific restitution, where that is possible, of any- J^^j^" 
 thing 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 [ * 49] 
 if the statement had been true (g). Thus, where an in- 
 fant had obtained a lease of a furnished house by rep- 
 resenting himself as a responsible person and of full 
 age, the lease 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 Jian-ied 
 common law incapable of binding herself by contract, women; 
 and therefore, like an infant, she could not be made ^^^ common 
 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 (h). In other cases of wrong 
 she was not under any disability, nor had she any im- 
 munity; but she had to sue and be sued jointly with 
 her husband, inasmuch as her property was the hus- 
 band's; and the husband got the benefit of a favour- 
 able judgment and was liable to the consequences of an 
 adverse one. 
 
 Since the Married Women's Property Act, 1882, a Jiarriecl 
 married woman can acquire and hold separate property Women's 
 in her own 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 
 
 (g) Lemprifire v. Lange (1879) 12 Ch. D. 675 ; and see other 
 cases in the writer's "Principle.s of Contract," pp. 76, 77, 4tli ed. 
 
 (A) Fairhurst v. Liverpool Adelphi Loan Association (1854 9 
 Ex. 422; 23 L. J. Ex. 163. 
 
 (2371) 
 
38 PERSONS AFFECTED BY TORTS. 
 
 property (i). She may sue her own husband,if necessary, 
 " for the protection and security of her own separate 
 property;" but otherwise actions for a tort between hus- 
 [ * 50J band and wife * cannot be entertained (j). That 
 is, a wife may sue her husband in an action which un- 
 der the old forms of pleading would have been trover 
 for the recovery of her goods, or for a trespass or nui- 
 sance 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 cov- 
 erture (fc). 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 re- 
 lieved from liability for wrongs committed by the wife 
 during coverture, and may still be joined aa a defend- 
 ant at need. If it were not so, a married woman hav- 
 ing no separate property might commit w'ronga with 
 impunity (I). If the 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 (m). 
 
 Common law There is some authority for the doctrine that by the 
 liubilitj^ of common law both infants (n) and married women (o) 
 iiifants^and ^j,q liable only for " actual torts " such as trespass, 
 [ * 51] which were * formerly laid in pleading as con- 
 tra pacem, and are not in any case liable for torts in 
 
 (i) 45 & 46 Vict. c. 75, s. 1. The right of action given by the 
 statu e applies to a cause of action which arose before it came 
 into operation: Weldon v. Winslow (1884) 13 Q. B. Div. 784. In 
 such case the Statute of Limitation runs not from the commit- 
 ting of the wrong, but from the commencement of the Act: 
 Lowe V. Fox (1885) 15 Q. B. Div. 667. 
 
 (j) Sect. 12. A trespasser on the wife's separate property can- 
 not justify under the husband's authority. "Whether the hus- 
 band himself could justify the entering a house, his wife's sepa- 
 rate property, acquired as such before or since the Act, in which 
 she is living apart, quaere: Weldon v. De Bathe ( 1884) 14 Q. B. 
 Div. 339. 
 
 (k) Phillips V. Barnet (1876) 1 Q. B. Div. 436. 
 
 mSeroka v. Kattenburg (1886) 17 Q. B. Div. 177. 
 
 (m) Sect. 13, which expressly provides for anti-nuptial liabili- 
 ties, is rather against the existence of such a right. 
 
 (n) Johnson v. Pie, supra (a dictum -v^dder than the decision. ) 
 
 (o) Wright w. 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 Wil- 
 liams J. The judgment of Willes J. seems to me conclusive. 
 (2372) 
 
 married 
 
CORPORATIONS. . 39 
 
 the nature of deceit, or, in the old phrase, in actions limited, 
 which " sound in deceit." But this does not seem ac- according to 
 ceptable on principle. some, to 
 
 wrongs contra 
 
 As to corporations, it is evident that personal injur- corporations 
 ies cannot be inflicted upon them. It would seem at 
 fii-st sight, and it was long supposed, that a corporation 
 also cannot be liable for personal wrongs {p). But 
 this is really part of the larger question of the liability 
 of principals and employers for the eondiict of per- 
 sons 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 difficulty has been (and by some good 
 authorities still is) felt in those kinds of cases where 
 " malice in fact " — actual ill-will or evil motive — has to 
 be proved. 
 
 Where bodies of persons, incorporated or not, are in- jjesnonsi- 
 trusted with tho management and maintenance of i3iiity of 
 works, or the performance of other duties of a public public bodies 
 nature, they are in their corporate or gwasi- corporate ^'"" manage- 
 capacity responsible for the proper conduct of their un- woSvs° &c 
 dertakings no less than if they were private owners: under'their 
 and this whether they derive any profit from the under- control. 
 taking or not (g). 
 
 * The same principle has been applied to [ * 52] 
 the management of a public harbour by the execu- 
 tive government of a British colony (?-). The rule is sub- 
 ject, of course, to the special statutory provisions as to 
 liability and remedies that may exist in any particular 
 case (s). 
 
 {p) The difficulty felt in earlier times was one pnrly of pro- 
 cess; not that a corportion was metaphysically incapable of doing 
 wrong, but that it was not physically amenable to capias or exi- 
 gent: 22 Ass. 100, pi. 67, and other authorities collected by Ser- 
 geant Manning in the notes to Maund v. Monmouthshire Canal 
 Co., 4 M. & G. 452. But it was decided in the case just cited 
 (1842) that trespass, as earlier in Yarborough v. Bank of England 
 (1812) 16 East 6, that trover, would lie against a corporation 
 aggregate. 
 
 (q) Mersey Docks Trustees v. G-ibbs (1864-6) L. E. 1 H. L. 93: 
 see the very full and careful opinion of the judges delivered by 
 Blackburn J. at pp. 102, sqq., in which the previous authorities 
 are reviewed. 
 
 (r) Keg. V. Williams (appeal from New Zealand) 9 App. Ca. 
 418. 
 
 (s) L. E. 1 H. L. 107, 110. 
 
 (2373) 
 
40 
 
 PERSONS AFFECTED BY TORTS. 
 
 Effect of 
 death of 
 either 
 party. 
 Actio 2)er- 
 sonnli^ 
 moritiir cnm 
 persona. 
 
 2. — Effect of a Party's Death. 
 
 We have next to consider the effect produced on lia- 
 bility for a -wrong by the death of either the person 
 wronged or the wrong-doer. This is one of the least 
 rational parts of our law. The common law maxim is 
 actio personalis moritur cum persona, or the right of ac- 
 tion for tort is put an end to by the death of either 
 party, even if an action has been commenced in his life- 
 time. Causes of action on a contract are quite as much 
 " personal " in the technical sense, but with the excep- 
 tion of promises of marriage, and (it seems) injuries 
 to the person by negligent performance of a contract, 
 the maxim does not apply to these. In cases of tort 
 not falling within certain 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 extin- 
 guished notwithstanding a clause in the order of refer- 
 ence providing for dilivery of the award to the per- 
 sonal 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 be- 
 [ * 53] ing directed merely to the mode of trial, * and 
 not extending to alter the rights of the parties (t). A 
 very similar riile existed in Roman law, with the modifica- 
 tion that the inheritance of a man who had increased 
 his estate by dolus was bound to restore the profit so 
 gained, and that in some cases heirs might sue but 
 could not be sued (m). Whether derived from a hasty 
 following of the Roman rule or otherwise, the common 
 law knew no such variations; the maxim was absolute. 
 At one time it may have Been justified by the vindic- 
 tive and gwasi-criminal character of suits for civil in- 
 juries. 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 imper- 
 sonal abstraction 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 implied in 
 
 (t) Bowker v. Evans (1885) 15 Q. B. Div. 5firi. 
 
 (m) I. iv. 12, do perpetuis et temporalibus aotionibus, 1. 
 Another difference in favour of the Roman law is that death of a 
 party after litis contesiatio did not abate the action in any case.' 
 It has been conjectured that personalis in the English maxim is 
 nothing but a misreading oipoenalis. 
 (2374) 
 
ACTIO PERSONALIS, ETC. 41 
 
 the dictum, " If one doth a trespass to me, and dieth, 
 the action is dead also, because it should be inconve- 
 nient to recover against one who was not a party to the 
 wrong " ((.'). 
 
 But when once the notion of vengeance has been put a barbarous 
 aside, and that of compensation substituted, the rule rule. 
 actio personalis moritur cum persoyia seems to be with- 
 out 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 should 
 be deprived of * redress. The legatee can in [ * 54] 
 any case take only what prior claims leave for him, and 
 there would be no hardship in his taking subject to all 
 obligations, ex delicto as well as ex contractu, to which 
 his testator was liable. Still less could the reversal of 
 the rule be a just cause of complaint in the case of in- 
 testate 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 often- 
 times not so in fact. And, in any case, why should the 
 law, contrary to its own principles and maxims in other 
 departments, presume it, in favour of the wrong-doer, 
 so to be ? Here one may almost say that omnia prae- 
 sumuntur pro spoliatore. Personal wrongs, it is al- 
 lowed, may " operate to the temporal injury " of the per- 
 sonal estate, but without express allegation the Court 
 will not intend it (x). The burden should rather lie 
 on the wrong-doer to show that the estate has not suf- 
 fered 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 (y); of which presently. 
 
 The rule has even been pushed to this extent, that Extension of 
 the death of a human being cannot be a cause of action the rule iu 
 in a civil Court for a person not claiming through or S??,"™ '• . 
 representing the person 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 ser- 
 
 (v) Newton C. J. in Year-Book 19 Hen. VI. 60 pi. 10 (a. d. 
 1440-41). 
 
 (x) Chamberlain v. "Williamson, 2 M. & S. at p. 414. 
 
 (y) Cp. Bentham, Trait6s de Legislation, vol. ii. pt. 2, c. 10. 
 
 (2375) 
 
42 PERSONS AFFECTED BY TORTS. 
 
 vant is lost to the master. But if the injury causes the 
 [ * 55] servant's death, it is * held that the master's 
 right to compensation is gone (z). We must say it is 
 so held, as the decision has not been overruled, or, that 
 I knov? of, judicially questioned. But the dissent of 
 Lord Bramwell is enough to throvr doubt upon it, The 
 previous authorities are inconclusive, and the reason- 
 ing of Lord Bramwell's (then Baron Bramwell's) judg- 
 ment is, we submit, unansvverable on principle. 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, accord- 
 ing to the maxim, and his executors cannut sue for the 
 benefit of his estate (a). But the master's cause of ac- 
 tion is altogether a different one. He does not repre- 
 sent or claim through the servant; he sues in his own 
 right, for another injury, on another estimation of dam- 
 age; the two actions are independent, and recovery in 
 the one action is no bar to recovery in the other. 
 Nothing but the want of positive authority can be 
 shown against the action being maintainable. And if 
 want of authority were fatal, more than one modern 
 addition to the resources of the Common Law must 
 have been rejected (6). It is alleged, indeed, that 
 " the policy of the law refuses to recognize the interest 
 of one person in the death of another" (c) — a reason 
 which would make life insurance aud leases for lives 
 illegal. Such are the idle after- thoughts invented to 
 support arguments founded in mere prejudice. An- 
 [ * 56] other 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, be- 
 cause the compensation cannot be adequate there shall 
 be no compensation at all (d). It is true that the ac- 
 tion by a master for loss of service consequential on a 
 
 (z) Osborn v. Gillett (1873) L. R. 8 Ex. 88, diss. BramTfell B. 
 
 (a) Under Lord Campbell's Act (hifiri) they may have a right 
 of suit for the benefit of certain persons, not the estate as such. 
 
 (6) E. g. CoUen v. Wright, Ex. Ch. 8 E. & B. 647; 27 L. J. Q. 
 B. 215 (agent's implied warranty of authority — a doctrine intro- 
 duced, by the way, for the very purpose of escaping the iniquit- 
 ous effect of the maxim now in question, by getting a cause of 
 action in contract which could be maintained againt executors) ; 
 Lumley «. ,Gye (1853) 2 E. & B. 216; 22 L. J. Q. B. 463, which 
 we shall have to consider hereafter. 
 
 (c) L. E. 8 Ex. at p. 90, arg. 
 
 (d) The Roman lawyers, however, seem to have held a like 
 view. "Liberum corpus nuUam recipit aestimationem:" D. 9. 
 3, de his quid effad., 1, § 5; cf. h. t. 7, and D. 9. 1, si quadrupes, 
 3. See Grueber on the Lex Aquilla, p. 17. 
 
 (2376) 
 
EXECUTORS. 43 
 
 wrong done to his servant belongs to a somewhat 
 ai'chaic head of the law which has now become almost 
 anomalous; perhaps it is not too much to say that in 
 our own time the Courts have discouraged it. This we 
 shall see in its due place. But that is no sufficient 
 reason for discouraging the action in a particular case 
 by straining the application of a rule in itself absurd. 
 Osborn c. Giliett stands in the book, and we cannot ac- 
 tually say it is not law; but one would like to see the 
 point reconsidered by the Court of Appeal (e). 
 
 We now proceed to the exceptions. The first amend- Exceptions: 
 ment was made as long ago as 1330, by the statute 4 Statutes of 
 Ed. 3, 0. 7, of which the English version ruQS thus : ^^■. ^^^■ 
 
 Item, whereas in times past executors have not had fxe^oitors 
 actions for a trespass done to their testators, as of the right of 
 goods and chattels of the same testators carried away suit for 
 in their life, and so such trespasses have hitherto re- trespasses. 
 mained 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 exec- 
 utors they be, should have had if they were in life. 
 
 The right was expressly extended to executors of ex- 
 ecutors by 25 Ed. 3, st. 5, c. 5, and was construed to 
 • extend * to administrators (/). It was held [ * 57] 
 not to include injuries to the person or to the testator's 
 freehold. 
 
 Then by 3 & 4 Will. 4, c. 42 (a. d. 1833) actiona- of Will. IV. 
 ble injuries to the real estate of any person committed as to injuries 
 within six calendar months before his death may be *° property. 
 sued upon by his personal representatives, for the ben- 
 efit 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 on their oflSce. Under this statute 
 the executor of a tenant for life has been held liable to 
 the remainderman for waste committed during the 
 tenancy (g). 
 
 (e) Cp. Mr. Horace Smith's remarks on this case (Smith on 
 Negligence, 2ncl ed. 2.56). 
 
 (/) See note to Pinchon's case, 9 Co. Rep. 89 a, vol. v. p. 161 
 in ed. 1826. 
 
 ia) Woodhouse v. Walker (1880) ,'> Q. B. Div. 404. 
 
 (2377) 
 
44 PERSONS AFFECTED BY TOKTS. 
 
 No right of Nothing in these statutes affects the case of a per- 
 aetion for sonal injury causing death, for which according to the 
 damage to inaxim there is no remedy at all. It,has been attempted 
 estatTcon- ^° maintain that damage to the personal estate by 
 sequential reason of a personal injury, such as expenses of medi- 
 on personal cal attendance, and loss of income through inability to 
 iiiJiiT- work or 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 per- 
 son," an action by personal representatives cannot be 
 ' admitted on this ground : the original wrong itself, not 
 
 only its consequences, must be an injury to property (h). 
 
 Lord Camp- [ * 58] * Bail way accidents, towards the middle of 
 bell's Act: the present century, brought the hardship of the com- 
 peculiar mon law rule into prominence. A man who was maimed 
 
 ^^ it or reduced to imbecility by the negligence of a railway 
 
 company's 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 
 Act (9 & 10 Vict, c, 93, a.d. 1846), a statute extremely 
 characteristic of English legislation (i). Instead of 
 abolishing the barbarous rule which was the root of the 
 mischief complained of, it created a new and anoma- 
 lous kind of right and remedy by way of exception, 
 It is entitled " An Act for compensating the Families 
 of Persons killed by Accident " : 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; but the right con- 
 ferred is not for the benefit of the personal estate, but 
 " for the benefit of the wife, husband, parent and child 
 (fc) of the person whose death shall have been caused." 
 
 (A) Pulling i>. G. E. R. Co. (18^!2) 9 Q. B. D. 110; cp. Leggott 
 V. G. N. E. Co., 1 Q. B. D. 599; the earlier case of Bradshaw ?). 
 Lancashire and Yorkshire R. Co. (1875) L. E. 10 C. P. 189, is 
 doubted, but distinguished as being on an action of contract. 
 
 (i) It appears to have been suggested by the lavr of Scotland, 
 which already gave a remedy : see Campbell on Negligence, 20 
 (2nd edit.); and Blake v. Midland E. Co., 18 Q. B. 93; 21 L. J. 
 Q. B. 233 (in argument for plaintiff.) 
 
 (k) " Parent" includes father and mother, grandfather and 
 grandmother, stepfather and stepmother. " Child " includes 
 son and daughter, grandson and granddaughter, stepson and step- 
 daughter : sect. 5. It does not include illegitimate children : Dick- 
 inson V. N. E. E. Co., 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, L. R. 3 P. & D. 446, which, however, is not 
 of judicial authority on this point, for a few months later (Smith 
 (2378) 
 
LORD Campbell's act. 45 
 
 Damages have to be assessed according to the injury- 
 resulting to the * parties for whose benefit the [ * 59j 
 action is brought, and apportioned between them by the 
 jury (l). The nominal plaintiff must deliver to the de- 
 fendant 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. 95, 
 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 whose benefit tja.e right of ac- 
 tion is given by Lord Campbell's Act may sue in their 
 own names (m). 
 
 The principal Act is inaccurately entitled to begin Construction 
 with (for to a lay reader " accidents" might seem to oiLord 
 include inevitable accidents, and again, " accident " Campbell's 
 does not include wilful wrongs, to which the Act does ' 
 apply); nor is this promise much bettered by the per- 
 formance of its enacting part. It is certain that the 
 right of action, or at any rate the right to compensa- 
 tion, given by the statute is not the same which the per- 
 son killed would have had if he had lived to sue for his 
 injuries. It is no answer to a claim under Lord Camp- 
 bell's Act to show that the deceased would not himself 
 have sustained pecuniary loss. " The stutute . . . 
 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 diflerent principle " (w). 
 But " the statute does not in terms say on what prin- 
 ciple the action it gives is to be maintainable, nor on 
 what principle the damages are to be assessed ; and the 
 only way to * ascertain what it does, is to show [ * 60] 
 
 r. Brown, L. R. 6 Q. B. 729) the Court of Queen's Bench held in 
 prohibition that the Court of Admiralty had no jurisdiction to 
 entertain claims under Lord Campbell's Act; and after some 
 doubt this opinion has been confirmed by the House of Lords : 
 Seward r. The Vera Cruz, 10 App. Ca. 59, overruling the Franco- 
 nia, 2 P. D. lG:i. 
 
 See addenda, Page xxxviii. 
 
 (l) Where a claim of this kind is satisfied by payment to ex- 
 ecutors without an action being brought, the Court will appor- 
 tion the fund, in proceedings taken for that purpose in the Chan- 
 cery Division, in like manner as a jury could have done : Bul- 
 mer v, Bulmer (1883) 25 Ch. D. 409. 
 
 (to) Also, by sect. 2, ' ' money paid into Court may be paid in 
 one sum, without regard to its division into shares " (marginal 
 note). 
 
 («) Erie C. J., Fym. v. G. N. E. Co. (1863) Ex. Ch. 4 B. & S. 
 at p. 406. 
 
 (2379) 
 
46 
 
 PERSONS AFFECTED BY TORTS. 
 
 what it does not mean " (o). 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 main- 
 tain an action for nominal damages {p)\ nor recover 
 what is called solatium in respect of the bodily hurt 
 and suffering of the deceased, or their own affliction 
 {q) ; they must show " a reasonable expectation of pe- 
 cuniary benefit, as of right or otherwise," had the de- 
 ceased remained alive. But a legal right to receive 
 benefit from him need not be shown (r). Thus, the fact 
 that a grown up son has been in the constant habit of 
 making presents of money and other things to his par- 
 ents, or even has occasionally helped them in bad times 
 (s), 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 continu- 
 ing in life, are not admissible it). 
 
 Interests of "^^^ interests conferred by the Act on the several 
 survivors beneficiaries are distinct. It is no answer to a claim on 
 distinct. behalf of some of a man's children who are left poorer 
 
 that all his children, taken as an undivided class, have 
 
 got the whole of his property (m). 
 
 Thestatutory [ * ^-'-l * -'■*■ ^^ ®^^*^ ^^^^ ^^^ ^^^ ^^^^ ^o*' transfer to 
 cause of representatives the right of action which the person 
 
 killed would have had, "but gives to the representative 
 a totally new right of action on different principles " 
 {x). Nevertheless the cause of action is so far the 
 same that if a person who ultimately dies of injuries 
 caused by wrongful act or neglect has accepted satis- 
 faction for them in his lifetime, an action under Lord 
 Campbell's Act is not afterwards maintainable {y). For 
 
 (o) Pollock C. B. in Franklin v. S. E. R. Co. (1858) 3 H. & N. 
 at p. 213. 
 
 (_p) Duckwortli -u. Jolinson (1859) 4 H. & N. 653; 29 L. J. 
 Ex. 25. 
 
 (i) Blake v. Midland R. C. (1852) 18 Q. B. 93. In Scotland it 
 is otherwise : 1 Macq. 752, u. 
 
 (r) Franklin v. S. E. R. Co., 3 H. & N. 211. 
 
 (s) Hetherington v. N. E. R. Co., 9 Q. B. D. 160. 
 
 {t, Dalton V. S. E. R. Co. (1858) 4 C. B. N. S. 296, closely fol- 
 lowing Franklin v. S. E. R. Co. 
 
 (m) Pym „. G. N. R. Co. (1863) 4 B. & S. 396; 32 L. J. Q. B. 
 377. The deceased had settled real estate on his eldest son, to 
 whom other estates also passed as heir-at-law. 
 
 (x) 18 Q. B. at p. 110. 
 
 (y) Read v. G. E. R. Co. (1868) L. R. 3 Q. B. 555. 
 (2380) 
 
 action is in 
 substitution, 
 not cumula- 
 tive. 
 
47 
 
 the injury sued on must, in the words of the Act, be 
 " such as would, if death had not eusued, 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 he had already recovered or accepted 
 compensation, he could not do. 
 
 In Scotland, as we have incidentally seen, the sur- Scottish and 
 viving kindred are entitled by the common law to com- American 
 pensation in these cases, not only to the extent of l'^"'^- 
 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 con- 
 siderably in details from the Act and from one another 
 (z). The tendency seems to be to confer on the sur- 
 vivors, both in legislation and in judicial construction, 
 larger rights than in England. 
 
 In one class of cases there is a right to recover against Right to 
 a wrong-doer's estate, notwithstanding the maxim of follow prop- 
 actio personalis, yet not so as to constitute a formal ex- ^^*y wrong- 
 ception. * When it comes to the point of direct [ * 62] ^ converted 
 conflict, the maxim has to prevail. as against 
 
 As Lord Mansfield stated the rule, " where property wrongdoer's 
 is acquired which benefits the testator, there an action estate. 
 for the value of the property shall survive against the 
 executor" (a). Or, as Bowen L. J. has more fully ex- 
 pressed 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 
 property, 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, 
 
 (z) Cooley on Torts (Chicago, 1880) 262 sqq. ; Shearman & Eed- 
 fleld on Neglience, ss. 293 sqq. In Arkansas the doctrine of actio 
 personalis, &c. appears to have been wholly abrogated by statute: 
 lb. s. 295. 
 
 (a) Hambly v. Trott, 1 Cowp. 375. 
 
 (2381) 
 
The rule 
 limited to 
 recovery 
 of specific 
 property of ^ 
 its value: 
 Phillips V. 
 Homfray. 
 
 PERSONS AFFECTED BY TORTS. 
 
 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 (6). 
 
 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 damages, and inquiries are directed, pending 
 which A. dies, B. is entitled as against A.' s estate to the 
 value of the coal wrongfully taken, but not to damages 
 for the use of the passages through which the coal was 
 [ * 63] carried out, nor for * the injury to the mines 
 or the surface of the ground consequent on A.'s work- 
 ings (c). _ 
 
 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 (d), A. dies. B. has no cause i 
 of action against A.'s representatives, for there has been 
 no specific benefit to A.'s estate, only a wrong for which 
 B. might in A.'s lifetime have recovered unliquidated 
 damages (e). 
 
 The like law holds of a director of a company who 
 has committed himself to false representations in the 
 prospectus, whereby persons have been induced to take 
 shares, and have acquired a right of suit against the 
 issuers. If he dies before or pending such a suit, his 
 estate is not liable (/). 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 recov- 
 ered" (g). For the rest, the dicta of the late 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 commanding their approval. 
 
 3. — Liability for the To7-ts of Agents and Servants. 
 
 Command of 
 principal 
 does not ex- 
 cuse agent's 
 wrong. 
 
 Whoever commits a wrong is liable for it himself. 
 It is no excuse that he was acting, as an agent or ser- 
 
 {b) The technical rule t\ as that executors could not he sued in 
 respect of an act of their testator in his lifetime in any form of 
 action in which the plea was not guilty: Hamhly v. Trott. 1 
 Cowp. 375. 
 
 (c) Phillips V. Homfray (1883) 24 Ch. Div. 439, 454. The 
 authorities are fully examined in the judgment of Bowen and Cot- 
 ton L.J J. 
 
 (d) 3 & 4 Will. 4, c. 42, p. 57, above. 
 
 (e) Kirk v. Todd (1882) 21 Ch. Div. 484. 
 
 (/) Peckii. Gurney (1873) L. R. 6 H. L. at p. 392. 
 (g) 24 Ch. D. at p. 463. 
 
 (2382) 
 
FOLLOWING PROPERTY. 49 
 
 vant, on behalf and for the benefit of another (h). But 
 that other * may well be also liable: and in [ * 64] 
 many cases a man is held answerable for wrongs not 
 committed by himself. The rules of general applica- 
 tion in this kind are those concerning the liability of a 
 principal for his agent, and of a master for his servant. 
 Under certain conditions responsibility 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. Thus we Cases of 
 have cases where a man is subject to a positive duty, absolute 
 and is held liable for failure to perform it. Here, the positive 
 absolute character of the duty being once established, gui^ed^^"^' 
 the question is not by whose hand an unsuccessful at- 
 tempt was made, whether that of the party himself, of 
 his servant, or of an " independent contractor " (i), 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 sought in some other quarter 
 (A;). 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 con- 
 ditions attached to the grant of exceptional rights or 
 otherwise, afPord the chief examples of this kind. Here 
 the liability attaches, irrespective of any question of 
 agency or personal negligence, if and when the condi- 
 tions imposed by the legislature are not satisfied (I). 
 
 There occur likewise, though as an exception, duties also duties 
 of this kind imposed by the common law. Such are in nature of 
 the duties of common carriers, of owners of dangerous warranty. 
 animals or other things involving, by their nature or 
 position, special risk of * harm to their neigh- [ * 65] 
 Ibours; and such, to a limited extent, is the duty of oc- 
 cupiers of fixed property to have 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, 
 Ijeginning with the mildest: 
 
 (h) CuUen v. Thomson's Trustees and Kerr, 4 Macq. 424, 432. 
 ' ' For the contract of agency or service cannot impose any obliga- 
 tion on the agent or servant to commit or assist in the commit- 
 ting of fraud, " or any other wrong. 
 
 (i) The distinction will be explained below. 
 7c) See Hyams v. Webster (1868) Ex. Ch. L. R. 4 Q. B. 138. 
 {I) See Gray v. Pullen (1864) Ex. Ch. 5 B. & S. 970; 34 L. J. 
 ■Q. B. 265. 
 
 i LAW OF TOETS. (2383) 
 
50 
 
 PERSONS AFFECTED BY TOUTS. 
 
 Modes of 
 liability 
 for -wrongful 
 acts, &c. of 
 others. 
 
 Command 
 and ratifica- 
 tion. 
 
 (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 
 responsibility is in the nature of insurance or warranty, 
 a man may be liable for another's wrong — 
 
 (1) As having authorized or ratified that particular 
 wrong: 
 
 (2) As standing to the other person in a relation 
 making him answerable for wrongs committed by that 
 person in virtue of their relation, though not specifical- 
 ly authorized. 
 
 The former head presents little or no difficulty. The 
 latter includes considerable difficulties of principle, and 
 is often complicated with troublesome questions of fact. 
 
 It scarce needs authority to show that a man is liable 
 for wrongful acts which have been done according to 
 his express command or request, or which, having been 
 done on his account and for his benefit, he has adopted 
 as his own. " A trespasser may be not only he who 
 does the act, but who commands or procures it to be 
 [ * 66] done . . . who aids or * assists in it . . .or 
 who assents afterwards" (in). This is not the less so 
 because the person employed to do an unlawful act may 
 be employed as an " independent contractor," so that, 
 supposing it lawful, the employer would not be liable 
 for his negligence about doing it. A gas company em- 
 ployed a firm of contractors to break open a public 
 street, having therefor no lawful authority or excuse; 
 the thing contracted to be done being in itself a public 
 nuisance, the gas company was held liable for injury 
 caused to a foot-passenger by falling over some of the 
 earth and stones excavated and heaped up by the con- 
 tractors (w). A point of importance to be noted in this 
 connexion is that only such acts bind a principal by 
 subsequent ratification as were done at the time on the 
 principal's behalf. What is done by the immediate 
 
 (m) De Grey C. J. in Barker v. Braham (1773) 2 W. Bl. 866 ; 
 Bigelow, L. C. 235. 
 
 (m) Ellis V. Sheffield Gas Consumers Co. (1853) 2 E. & B. 767 ; 
 23 L. J. Q. B. 42. 
 
 (2384) 
 
master's eesponsibility. 51 
 
 actor on his own account cannot be effecutally adopted 
 by another; neither can an act done in the name and' 
 on behalf of Peter be ratified either for gain or for loss 
 by John. " Eatum quis habere non potest, quod ipsius 
 nomine non est gestum " (o). 
 
 The more general rule govering the other and more Master and 
 difficult branch of the subject was expressed by Willes servant. 
 J. in a judgment which may now be regarded as a class- 
 ical authority. " The master is answerable for every 
 such wi-ong of the servant or agent as is committed in 
 the course of the service and for the master's benefit, 
 though no express command or privity of the master be 
 proved " {p ). 
 
 * No reason for the rule, at any rate no satis- [ * 67] Reason of 
 fying one, is commonly given in our books. Its im- the master's 
 portance belongs altogether to the modern law, and it liability. 
 does not seem to be illustrated by any early authority 
 (q). Blackstone (i. 417) is short in his statement, and 
 has no other reason to give than the fiction of an " im- 
 plied command." It is currantly said. Respondeat super- 
 ior ; which is a dogmatic statement, not an explanation. 
 It is also said, Qui facit per alium facit per se ; but this 
 is in terms applicable only to authorized acts, not to 
 acts that, although done by the agent or servant ''in the 
 course of the service," are specificallj' unauthorized or 
 even forbidden. Again, it is said that a master ought 
 to be careful in choosing fit servants; but if this were 
 the reason, a master could discharge himself by show- 
 ing that the servant for whose wrong he is sued was 
 chosen by him with due care, and was in fact generally 
 well conducted and competent : which is certainly not 
 the law. 
 
 A better account was given by Chief Justice Shaw of 
 Massachusetts. "This rule," he said, "is obviously 
 founded on the great principle of social duty, that every 
 man in the management of his own affairs, whether by 
 • himself or by his agents or servants, shall so conduct 
 them as not to injure another; and if he does not, and 
 another thereby sustains damage, he shall answer for 
 
 fo) Wilson V. Tumman (1843) 6 M. & G. 236 ; and Serjeant 
 3Ianning's note, ib. 239. 
 
 {p) Barwicki). English Joint Stock Bank (1867), Ex. Ch. L. 
 E. 2 Ex. 259, 265. The point of the decision is that fraud is 
 herein on the same footing as other wrongs : of which in due 
 course. 
 
 (q) Joseph Brown Q. C. in evidence before Select Committee 
 on Employers' Liability, 1876, p. 38; Brett L. J., 1877, p. 114. 
 
 (2385) 
 
52 PERSONS AFFECTED BY TORTS. 
 
 it" (r). This is, indeed, somewhat too widely expressed, 
 for it does not in terms limit the responsibility to cases 
 [ * 68] * where at least negligence is proved. But no 
 reader is likely to suppose that, as a general rule, either 
 the servant or the master can be liable where there is 
 no default at all. And the true principle is otherwise 
 clearly enounced. I am. answerable for the wrongs of 
 my servant or agent, not because he is authorized by me 
 or personally represents me, but because he is about 
 my affairs, and I am bound to see that my affairs are 
 conducted with due regard to the safety of others. 
 
 Some time later the rule was put by Lord Cranworth 
 in a not dissimilar form : the master "is considered 
 as bound to guarantee third persons against all hurt 
 arising from the carelessness of himself or of those 
 acting under his orders in the course of his business" (s). 
 
 The statement of Willes J. that the master " has put 
 , the agent in his place to do that class of acts" is also 
 
 to be noted and remembered as a guide in many of the 
 questions that arise. A just view seems to be taken, 
 though artifically and obscurely expressed, in one of the 
 earliest reported cases on this branch of the law: "It 
 shall be intended that the servant had authority from 
 his master, it being for his master's benefit" (t). 
 
 Questions to The rule, then (on whatever reason founded), being 
 be considered that a master is liable for the acts, neglects, and defaults 
 herein. qJ j^jg servants in the course of the service, we have to 
 
 define further — 
 
 1. Who is a servant. 
 
 2. What acts are deemed to be in the course of ser- 
 vants. 
 
 3. How the rule is affected when the person injured 
 is himself a servant of the same master. 
 
 Who is a [ * 69] * 1. As to the first point, it is quite possible 
 servant: to do work for a man, in the popular sense, and even to 
 
 xesponsi- ^y^ j^jg agent for some purposes, without being his ser- 
 
 (r) Parwell v. Boston and Worcester Railroad Corporation 
 (1842) 4 Met. 49 ; and Bigelow L. C. 688. The judgment is also 
 re-printed in '.i Maccj. 316. So, too, M. Sainctelette, the latest 
 Continental writer on the subject, well says: " La responsabilite. 
 du fait d'autrui n'est pas une fiction invent^e par la loi positive. 
 C'est line exigence de I'ordre social:" De la Responsabilite etde 
 la Garantie, p. 124. 
 
 (s) Bartonshill Coal Co. v. Eeid (1858) 3 Macq. 266, 283. 
 
 (t) Turberville v. Stampe (end of 17th century) 1 Ld. Raym. 
 264. 
 
 (2386) 
 
MASTER AND SERVANT. 53 
 
 Tant. The relation of master and servant exists only bility goes 
 between persons of whom the one has the order and "with order 
 control of the work done by the other. A master is one ^^^ control, 
 who not only prescribes to the workman the end of his 
 work, but directs, or at any moment may direct the 
 means also, or, as it has been put, " retains the power 
 of conti'olling the work " (m) ; and he who does work 
 on those terms is in law a servant for whose acts, neg- 
 lects, and defaults, to the extent, to be specified, the 
 master is liable. An independent contractor is one 
 who undertakes to produce a given result, but so that 
 in the actual execution of the work he is not under the 
 order or control of the person for whom he does it, and 
 may use his own discretion in things not specified be- 
 forehand. For the acts or omission of such a one 
 about the performance of his undertaking his employer 
 is not liable to strangers, no more than the buyer of 
 goods is liable to a person who may be injured by the 
 careless handling of them by the seller or his men in 
 the course of delivery. If the contract, for example, is 
 to build a wall, and the builder " has a right to say to 
 the employer, ' I will agree to do it, but I shall do it 
 after my own fashion; I shall begin the wall at this 
 end and not at the other;' there the relation of master 
 and servant does not exist, and the employer is not lia- 
 ble " (xl " In ascertaining who is liable for the act of 
 a wrong-doer, you must look to the wrong-doer himself 
 or to the first person in the ascending line who is the 
 employer and has control * over the work. [ * 70] 
 You cannot go further back and make the employer of 
 that person liable " (y). He who controls the work is 
 answerable for the workman ; the remoter employer who 
 does not control it is not answerable. This distinction is 
 thoroughly settled in our law; the difficulties that may 
 arise in applying it are difficulties of ascertaining the 
 facts (z). It may be a nice question whether a man 
 
 (m) Crompton J., Sadler v. Henlock (1855) 4 E. &B. 570, 578; 
 24 L. J. Q. B. 138, 141. 
 
 (x) Bramwell L. J., Emp. L. 77, p. 58. jVn extra-judicial 
 statement, but made on an occasion of importance by a great 
 master of the common law. 
 
 (y) Willis J., J\l array v. Currie (1870) L. R. G C. P. 24, 27. 
 
 {z) One comparatively early case. Bush v. Steinman, 1 B. & 
 P. 404, disregards the rule; but that case has been repeatedly 
 commented on with disapproval, and is not now law. See the 
 modem authorities well reviewed in Hillard v. Richardson (Sup. 
 Court, Mass. 1855) 3 Gray 349; and in Bigelow L. C. Exactly 
 the same distinction appears to be taken under the Code Napo- 
 leon in fixing the limits mthin which the very wide language of 
 Art. 1384 is to be applied: Sainctelette, op. eit. 127. 
 
 (2387) 
 
54 
 
 PERSONS AFFECTED BY TOKTS. 
 
 Specific 
 assumption 
 of control. 
 
 Temporary- 
 transfer of 
 service. 
 
 has let out the whole of a given work to an " indepen- 
 dent contractor,' or reserved so much power of control 
 as to leave him answerable for what is done (a). 
 
 It must be remembered that the remoter employer, if 
 at any point he does interfere and assume specific con- 
 trol, renders himself answerable, not as a master, but 
 as principal. He makes himself " dominus pro tem- 
 pore." Thus the hirer of a carriage di'iven by a 
 coachman who is not the hirer's servant but the letter's, 
 is not, generally speaking, liable for harm done by the 
 driver's negligence (b). But if he orders, or by words 
 or conduct at the time sanctions, a specific act of rash 
 [ * 71] or careless driving, he may well be * liable (c). 
 Rather slight evidence of personal interferance has 
 been allowed as sufiicient in this class of cases (d). 
 
 One material result of this principle is that a person 
 who is habitually the servant of A. may become, for a 
 certain time and for the purpose of certain work, the 
 servant of B. ; and this although the hand to pay him 
 is still A.'s. The owner of a vessel employs a stevedore 
 to unload the cargo. The stevedore employs his own 
 labourers; among other men, some of the ship's crew 
 work for him by arrangement with the master, being 
 like the others paid by the stevedore and under his or- 
 ders. In the work of unloading these men are the ser- 
 vants of the stevedore, not of the owner (e). 
 
 Owners of a colliery, after partly sinking a shaft, 
 agree with a contractor to finish the work for them, on 
 the terms, among others, that engine power and engi- 
 neers to work the engine are to be provided by the 
 owners. The engine that has been used in excavating 
 the shaft is handed over accordingly to the contractor: 
 
 (a) Pendlebury v. Greenhalgh, 1 Q. B. Div. 36, differing from 
 the Tie\¥ of the same facts taken by the Court of Queen's Bench 
 in Taylor v. Greenhalgh, L. E. 9 Q. B. 487. 
 
 (i) Even if the driver was selected by himself: Quarman v. 
 Burnett, 6 M. &. W. 499. So where a vessel is hired with its 
 crew: Dallyell v. Tyrer (18.58) 8 E. B. & E. 899; 28 L. J. Q. B. 
 52. So where a contractor iinds horses and drivers to draw wat- 
 ering-carts for a municipal corporation, the driver of such a cart 
 is not the servant of the corporation : Jones v. Corporporation of 
 Liverpool (1885) 14 Q. B. D. 890; cp. Little v. Hackett, Sup. Ct. 
 V. S. (1886) 14 Am. Law Eec. at p. 581 
 
 (c) McLauglin v. Pryor (1842) 4 M. & G. 48. 
 
 (d) lb. ; Burgess v. Gray, 1 C. B. 578. It is difficult in either 
 case to see proof of more than adoption or acquiesence. Cp. 
 Jones r. Corporation of Liverpool, 14 Q. B. D. at pp. 893-4. 
 
 (e) Murray v. Currie (1870) L. E. 6 C. P. 24. 
 
 (2388) 
 
MASTER AND SEKVANT. 55 
 
 the same engineer remains in charge of it, and is still 
 paid by the owners, but is under the orders of the con- 
 tractor. During the continuance of the work on these 
 terms the engineer is the servant not of the colliery 
 owners but of the contractor (/). 
 
 It is proper to add that the "power of controlling "Power of 
 the work " which is the legal criterion of the relation controlling 
 of a master to a servant does not necessarily mean a *^® work" 
 present and physical ability. Shipowners are answer- ^^^ ^"^^ ' 
 able for the acts of the master, though done under cir- 
 cumstances in * which it is impossible to com- [ * 72] 
 municate with the owners (g). It is enough that the 
 servant is bound to obey the master's directions if and 
 when communicated to him. The legal power of con- 
 trol is to actual supervision what in the doctrine of pos- 
 session animus domini is to physical detention. But 
 this much is needful: therefore a compulsory pilot, who 
 is in charge of the vessel independently of the owner's 
 will, and, so far from being bound to obey the owner's 
 or master's orders, supersedes the master for the time 
 being, is not the owner's servant, and the statutory ex- 
 emption of the owner from liability for such a pilot's 
 acts is but in affirmance of the common law (h). 
 
 2. Next we have to see what is meant by the course what is in 
 of service or employment. The injury in respect of course of 
 which a master becomes subject to this kind of vicari- employment. 
 ■ ous liability may be caused in the following ways; — 
 
 (a) It may be the natural consequence of something 
 
 being done by a servant with ordinary care in 
 execution of the master's specific orders. 
 
 (b) It may be due to the servant's want of care in 
 
 carrying on the work or business in which he 
 is employed. This is the commonest case. 
 
 (c) The servant's wrong may consist in excess or 
 
 mistaken execution of a lawful authority. 
 
 (d) Or it may even be a wilful wrong, such as as- 
 
 sault, provided the act is done on the master's 
 behalf and with the intention of serving his 
 purposes. 
 Let us take these heads in order. 
 
 (a) Here the servant is the master's agent in a pro- Execution of 
 specific 
 
 (/) Eourke v. White Moss Colliery Co. 2 C. P. Diy. 205. orders. 
 
 Iff) See Maude and Pollock, Merchant Shipping, i. 1.58, 4th ed. 
 
 (h) Merchant Shipping Act, 1854, s. 388; The Halley. L. R. 2 
 P. C. at p. 201. And see Marsden on Collisions at Sea, ch. 5. 
 
 (2389) 
 
56 PBESOKS AFFECTED BY TOKTS. 
 
 per sense, and the master is liable for that which he has 
 [ * 73] truly, * not by the fiction of a legal maxim, 
 commanded to be done. He is also liable for the na- 
 tural consequences of his orders, even though he wished 
 to avoid them, and desired his servant to avoid them. 
 Thus in Gregory v. Piper (i), a right of way was dis- 
 puted between adjacent occupiers, and the one who re- 
 sisted the claim ordered a labourer to lay down rubbish 
 to obstruct the way, but so as not to touch the other's 
 wall. The labourer executed the orders as nearly as he 
 could, and laid the rubbish some distance from the wall,, 
 but it soon " shingled down " and ran against the wall, 
 and in fact could not by any ordinary care have been 
 prevented from doing so. For this the employer was 
 held to answer as for a trespass which he had author- 
 ized. This is a matter of general principle, not of any 
 special kind of liability. No man can authorize a thing 
 and at the same time affect to disavow its natural con- 
 sequences ; no more than he can disclaim responsibility 
 for the natural consequences of what he does himself. 
 
 Negligence (b) Then comes the case of the servant's negligence- 
 
 in conduct of in the perfance of his duty, or rather while he is about 
 master s j^jg master's business. What constitutes negrliffence 
 
 does not just now concern us; but it must be estab- 
 lished that the servant is a wrong-doer, and liable to 
 the plaintifF, before any question of the master's lia- 
 bility can be entertained. Assuming this to be made 
 out, the question may occur whether the servant was 
 in truth on his master's business at the time, or en- 
 gaged on some pursuit of his own. In the latter case 
 the master is not liable. " If the servant, instead of 
 doing that which he is employed to do, does something 
 which he is not employed to do at all, the master can- 
 not be said to do it by his servant, and therefore is not 
 responsible for the negligence of his servant in doing 
 [ * 74] * it" (fc). For example: "If a servant driv- 
 ing a carriage, in order to effect some purpose of his 
 own, wantonly strike the horses of another person, . . . 
 the master will not be liable. But if, in order to per- 
 form his master's orders, he strikes but injudiciously, 
 and in order to extricate himself from a difficulty, that 
 will be negligent and careless conduct, for which the 
 
 ii) 9 B. & C. 591 (1829). 
 
 (k) Maule J., Mitchell v. Crass-n-eller (1853) 13 C. B. 237; 22 
 L. J. C. P. 100. 
 
 (2390) 
 
COURSE OF EMPLOYJIEXT. 5T 
 
 master will be liable, being an act done in pursuance of 
 the servant's employment" (Z). 
 
 Whether the servant is really bent on his master's Departure or 
 afFairs or not is a question of fact, but a question deviation 
 which may be'troublesome. Distinctions are suergested from master a 
 
 ■ Do DllSlllCSS. 
 
 by some of the reported cases which are almost too fine 
 to be acceptable. The principle, however, is intelligi- 
 ble and rational. Not every deviation of the servant 
 from the strict execution of duty, nor every disregard 
 of particular instructions, will be such an interruption 
 of the coui'se of employment as to determine or suspend 
 the master's responsibilty. But where there is not 
 merely deviation, but a total departure from the course 
 of the master's business, so that the servant may be 
 said to be " on a frolic of his own " (m), the master is 
 no longer answerable for the servant's conduct. Two 
 modern cases of the same class and period, one on 
 either side of the line, will illustrate this distinction. 
 
 In "Whatman v. Pearson (n), a carter who was em- Whatman^. 
 ployed by a contractor, having the allowance of an Pearson. 
 hour's time for dinner in his day's work, but also hav- 
 ing orders not to * leave his horse and cart, or [ * 75] 
 the place where he was employed, happened to live 
 hard by. Contrary to his instructions, he went home 
 to dinner, and left the horse and cart unattended at his 
 door; the horse ran away and did damage to the plain- 
 tiff's railings. A jury was held warranted in finding 
 that the carman was throughout in the course of his 
 employment as the contractor's servant " acting within 
 the general scope of his authority to conduct the horse 
 and cart during the day " (o). 
 
 In Storey v. Ashton (p), a carman was returning to storey t). 
 his employer's oflSce with returned empties. A clerk of Ashton. 
 the same employer's who was with him induced him, 
 when he was near home, to turn off in another direc- 
 tion to call at a house and pick up something for the 
 clerk. While the carman was driving m this direction 
 he ran over the plaintiff. The Court held that if the 
 
 (I) Croft r. Alison (Iftn) 4 B. & A. 590. 
 
 m) Parke B,, Joel v. Morison (1834) 6 C. & P. 503: a msi 
 prius case, but often cited with approval; see Burns v. Poulson, 
 L. R. ft C. P. at p. 567. 
 
 (n) L. E. 3 C. P. 422 (1868). 
 (o) Bvles J. at p. 425. 
 
 ( n) L. E. 4 Q. B. 470 (1869) ; Mitchell v. Crassweller, cited 
 above, was a very similar case. 
 
 (2391) 
 
68 
 
 PERSONS AFFECTED BY TORTS. 
 
 Williams v. 
 Jones. 
 
 Excess or 
 mistake in 
 
 carman "had been merely going a roundabout way 
 home, the master would have been liable; but he had 
 started on an entirely new journey on his own or his 
 fellow-servant's account, and could not in any way be said 
 to be carrying out his master's employment" (q). 
 More lately it has been held that if the servant begins 
 using his master's property for purposes of his own, the 
 fact that by way of afterthought he does something for 
 his master's purposes also is not necessarily such a "re- 
 entering upon his ordinary duties " as to make the master 
 answerable for him. A journey undertaken on the ser- 
 [ * 76] vant's own account " cannot by the * mere fact 
 of the man making a pretence of duty by stopping on 
 his way be converted into a journey made in the course 
 of his employment" (r). 
 
 The following Is a curious example. A carpenter 
 was employed by A. with B.'s permission to work for 
 him in a shed belonging to B. This carpenter set fire 
 to the shed in lighting his pipe with a shaving. His 
 act, though negligent, having nothing to do with the 
 purpose of his employment, A. was not liable to B. (s). 
 It does not seem difficult to pronounce that lighting a 
 pipe is not in the course of a carpenter's employment; 
 but the case was one of difficulty as being complicated 
 by the argument that A., having obtained a gratuitous 
 loan of the shed for his own purposes, was answerable, 
 without regard to the relation of master and servant, 
 for the conduct of persons using it. This failed for 
 want of anything to show that A. had acquired the ex- 
 clusive use and control of the shed. Apart from this, 
 the facts come very near to the case which has been 
 suggested, but not dealt with by the Courts in any re- 
 ported decision, of a miner opening his safety-lamp to 
 get a light for his pipe, and thereby causing an explo- 
 sion: where "it seems clear that the employer would 
 not be held liable" (t). 
 
 (c) Another kind of wrong which may be done by a 
 
 (2) Lush J. at p. 480. It Tvas ' ' an entirely new and indepen- 
 dent journey, ■which had nothing at all to do with his employ- 
 ment:" Cocicburn C. J. "Every step he drove was away from 
 his duty:" Mellor J. , ibid. But it could have made no differ- 
 ence if the accident had happened as he was coming back. See 
 the next ease. 
 
 ()■) Rayner v. Jlitchell, 2 C. P. X>. r!57. 
 
 (s) Williams v. .Tones (1SG5) E.^. Ch. 3 H. & C. 356, 602; 33 L. 
 J. Ex. 297; diss. Mellor and Blackburn J J. 
 
 {f) E. S. Wright, Emp. L. 76, p. 47. 
 (2392) 
 
EXCESS OF AUTHORITY BY SERVANT. 59 
 
 servant in his master's business, and so as to make the execution of 
 master liable, is the excessive or erroneous execution of a authority, 
 lawful authority. To establish a right of action against 
 the master in such a case it must be shovyn that (a) the 
 * servant intended to do on behalf of his mas [ * 77] 
 ter something of a kind which he was in fact aiithori- 
 zed to do; (/5) the act, if done in a proper manner, or 
 under the circumstances erroneously supposed by the 
 servant to exist, would have been lawful. 
 
 The master is chargeable only for acts of an author- 
 ized class which in the particular instance are wrongful 
 by reason of excess or mistake on the servant's part. 
 For acts which he has neither authorized in kind nor 
 sanctioned in particular he is not chargeable. 
 
 Most of the cases on this head have arisen out of acts Interference 
 of railway servants on behalf of the companies. A por- with passen- 
 ter whose duty is, among other thiugs, to see that pas- S*^^'^^y 
 sengers do not get into wrong trains or carriages (but ^^^^ ' 
 not to remove them from a wrong carriage), asks a pas- 
 sengerwho has just taken his seat where he is going. The 
 passenger answers, "To Macclesfield." The porter, 
 thinking the passenger is in the wrong train, pulls him 
 out ; but the train was in fact going to Macclesfield, and 
 the passenger was right. On these facts a jury may 
 well find that the porter was acting within his general 
 authority so as to make the company liable (u). Here 
 are both error and excess in the servant's action : error 
 in supposing facts to exist which make it proper to use 
 his authority (namely, that the passenger has got into 
 the wrong train) ; excess in the manner of executing his 
 authority, even had the facts been as he supposed. But 
 they do not exclude the master's liability. 
 
 " A person who puts another in his place to do a class 
 of acts in his absence necessarily leaves him to deter- 
 mine, * according to the circumstances that [ * 78] 
 arise, when an act of that class is to be done, and trusts 
 Tiim for the manner in wjiich it is done ; and conse- 
 ■quently he is held responsible for the wrong of the per- 
 son so intrusted either in the manner of doing such an 
 act, or in doing such an act under circumstances in 
 -which it ought not to have been done ; provided that 
 -what was done was done, not from any caprice of the 
 servant, but in the course of the employment" (x). 
 
 (u) Bayley v. Manchester, ShefBieM, and Lincolnshire E. Co. 
 (1872-3) L. R. 7 C. P. 415, in Ex. Ch. 8 C. P. 148. 
 
 (x) Per Willes J., Bayley c. Manchester, Sheffield, and Lin- 
 colnshire E. Co., L. E. 7 C. P. 415. 
 
 (2393) 
 
60 
 
 PERSONS AFFECTED BY TORTS. 
 
 Arrest of 
 supposed 
 offenders. 
 
 Act wholly 
 outside 
 authority, 
 master not 
 liahle. 
 
 Seymour v. Greenwood (y) is another illustrative- 
 case of this class. The guard of an omnibus removed a 
 passenger whom he thought it proper to remove as being 
 drunken and offensive to the other passengers, and in 
 so doing used excessive violence. Even if he were al- 
 together mistaken as to the conduct and condition of 
 the passenger thas removed, the owner of the omnibus 
 was answerable. "The master, by giving the guard 
 authority to remove ofPensive passengers, necessarily 
 gave him authority to determine whether any passenger 
 had misconducted himself." 
 
 Another kind of case under this head is where a ser- 
 vant takes on himself to arrest a supposed ofifender on 
 his employer's behalf. Here it must be shown, both 
 that the arrest would have been justified if the offence 
 had really been committed by the party arrested, and 
 that to make such an arrest was within the employment 
 of the servant who made it. As to the latter point, 
 however, " where there is a necessity to have a per- 
 son on the spot to act on an emergency, and to de- 
 termine whether certain things shall or shalll not be 
 done, the fact that there is a person on the spot who is 
 [ * 79] acting as if he had express authority is * primCi 
 facie evidence that he had authority'-' (0). Railway 
 companies have accordingly been held liable for wrong- 
 ful arrests made by their inspectors or other officers as 
 for attempted frauds on the company punishable under 
 statutes or authorized by-laws, and the like (a). 
 
 But the master is not answerable if the servant takes 
 on himself, though in good faith and meaning to further 
 the master's interest, that which the master has no right 
 to do even if the facts were as the servant thinks them 
 to be : as where a station-master arrested a passenger 
 for refusing to pay for the carriage of a horse, a thing 
 outside the company's powers (6). The same rule holds 
 if the particular servant's act is plainly beyond his- 
 authority, as where the officer in charge of a railway sta- 
 tion arrests a man on suspicion of stealing the com- 
 pany's goods, an act which is not part of the company's 
 general business nor for their apparent benefit (c). In 
 
 (^) 
 39. 
 
 (rO 
 SOL, 
 
 {h 
 
 7 H. & N. 355 ; 30 L. J. Ex. 189, 327, Ex. Ch. (1861). 
 Blackburn J., Moore r. Metrop. E. Co., L. R. 8 Q. B. 36, 
 
 V. L. 
 
 lb., following Groff ?•. Gt. N. E. Co. (1861) 3 E. & E. 672; 
 J. Q. B. 148. 
 
 Poulton i: L. & S. V,'. E 
 Edwards v. L. & Jv^. ^Y. L. 
 &S. W. E. Co., L. R. 6 Q. 
 (2394) 
 
 Co., L. E. 2 Q. B. 534. 
 
 Co., L. E. 5 C. P. 445; cp. Allen. 
 
 B. 65. 
 
UNAUTHORIZED ACTS OF SERVANTS. 61 
 
 a case not clear on the face of it, as where a bank man- 
 ager commences a prosecution, which turns out to be 
 groundless, for a supposed theft of the bank's property 
 — a matter not withiri the ordinary routine of banking 
 business, but which might in the particular case be 
 within the manager's authority — the extent of the ser- 
 vant's authority is a question of fact (d). Much must 
 depend on the nature of the matter in which the author- 
 ity is given. Thus an agent intrusted with general and 
 ample powers for the management of a farm has been 
 held to be clearly outside the scope of his authority in 
 entering on * the adjacent owner's land on [ * 80] 
 the other side of a boundary ditch in order to cut un- 
 derwood which was choking the ditch and hindering 
 the drainage from the farm. If he had done something 
 on his employer's own land which was an actionable in- 
 jury to adjacent land, the employer might have been 
 liable. But it was thought unwarrantable to say 
 " that an agent intrusted with authority to be exer- 
 cised over a particular piece of land has authority to 
 commit a trespass on other land " (e). 
 
 (d) Lastly, a master may be liable even for wilful Wilful tres- 
 and deliberate wrongrs committed by the servant, pro- P^^es, &o. 
 
 ^ TOT* TTl fmTPT ^ 
 
 vided they be done on the master's account and for his 
 'purposes : and this, no less than in other cases, 
 although the servant's conduct is of a kind actually for- 
 bidden 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 " com- 
 mitted exclusively for the servant's private ends," or 
 ■" malice" means "private spite" (/), 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 Lim- 
 pus V. London General Omnibus Company (gr), where 
 the defendant company's driver had obstructed the 
 plaintiffs omnibus by pulling across the road in front 
 of it, and caused it to upset. He had printed instruc- 
 
 [d) Bank of New South Wales v. Owstown (J. C.) 4 App. Ca. 
 ^70. 
 
 (e) Bolingbroke v. Swindon Local Board (1874) L. E. 9 C. P. 
 -575 
 
 (/) See per Blackburn J. 1 H. & C. 543. 
 
 \g) 1 H. & C. 526; 32 L. J. Ex. 34 (1862). This and Seymour 
 ,v. Greenwood (above) overrule M'Manus v. Crickett, 1 East 106. 
 
 (2395) 
 
 purposes. 
 
62 
 
 PERSONS AFFECTED BY TOETS. 
 
 Fraud of 
 agent or 
 servant. 
 
 tions not to race with or obstruct other omnibuses. 
 Martin B. directed the jury, in effect, that if the driver 
 [ * 81] acted in the way of * his employment and in 
 the supposed interest of his eiflployers as against a 
 rival in their business, the 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 (h) 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 em- 
 ployment, 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 (i). 
 
 That an employer is liable for frauds of his servant 
 committed without authority,, but in the course of the 
 service and for the employer's purposes, was established 
 with more difficulty; for it seemed harsh to impute de- 
 ceit 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. 
 (k). But when it was fully realized that in all these" 
 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 
 [ * 82] be on the same footing as any other * wrong 
 (I). So the matter is handled in our leading authority, 
 the judgment of the Exchequer Chamber delivered by 
 "Willes J. in Barwick v. English 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 " (m). 
 
 (7t) Williams, Crompton, Willes, Byles Blackburn JJ., diss. 
 Wrightman J. 
 
 (i) Willes J. 1 H. & C. at p. 539. 
 
 (k) This particular difficulty is fallacious. It is in truth 
 neither more nor less easy to think of a corporation as deceiving 
 (or being deceived) than as having a consenting mind. In no 
 case can a corporation he invested with either rights or duties 
 except through natural persons who are its ngeni^. 
 
 (l) It makes no diflference if the fraud includes a forgery: Shaw 
 V. Port Philip Gold Mining Co., 13 Q. B. D. 103. 
 
 (m) L. E. 2 Ex. at p. 265. 
 
 (2396) 
 
PARTNERS. 63 
 
 This has been more than once fully approved in the 
 Privy Council (n), and may now be taken, notwith- 
 standing certain appearances of conflict (o), to have the 
 approval of the House of Lords also.(p). What has 
 been said to the contrary was either extra-judicial, as 
 going beyond the ratio decidendi of the House, or is to 
 be accepted as limited to the particular case where a 
 member of an incorporated company, not having ceased 
 to be a member, seeks to charge the company with the 
 fraud of its directors or other agents in inducing him 
 to join it (q). 
 
 * The leading case of Mersey Dock Trustee v.\_* 83] 
 Gibb (r) may also be referred to in this connexion, as 
 illustrating the general principles according to which 
 liabilities are imposed on corporations and public 
 bodies. 
 
 There is abundant authority in partnership law to Liability of 
 show that a firm is answerable for fraudulent misappro- firm for fraud 
 priation of funds, and the like, committed by one of the °^ ^ partner, 
 partners in the course of the firm's business and within 
 the scope of his usual authority, though no benefit be 
 derived therefrom by the other partners. But, agree- 
 ably to the principles above stated, the firm is not liable 
 if the transaction undertaken by the defaulting partner 
 is outside the course of partnership business. Where, 
 for example, one of a firm of solicitors receives money 
 to be placed in a specified investment, the firm must 
 answer for his application of it, but not, as a rule, if he 
 
 (n) Mackey v. Commercial Bank of New Brunswick (1874) L. 
 R. 5 P. C. 412; Swire v. Fraiicis (1877) 3 App. Ca. 106. 
 
 (o) Addie v. Western Bank of Scotland (1867) L. E. 1 Sc. &D. 
 145, dicta at pp. 158, 166, 167. 
 
 (p) Houldsworth v. City of Glasgow Bank (1880) 5 App. Ca. 
 317. 
 
 (q) lb., Lord Selborne at p. 326, Lord Hatherley at p. 331; 
 Lord Blackburn's language at p. 339 is more cautious, perhaps for 
 the very reason that he was a party to the decision of Barwick v. 
 English Joint Stock Bank. Shortly, the shareholder is in this 
 dilemma : while he iS a member of the company, he is damni- 
 fied by the alleged deceit, if at all, solely in that he is liable as a 
 shareholder to contribute to the company's debts : this liability 
 being of the essence of a shareholder's position, claiming com- 
 pensation from the company for it involves him in a new liabil- 
 ity to contribute to that compensation itself, which is an absurd 
 circuity. But if his liability as a shareholder has ceased, he is 
 no longer damnified. Therefore restitution only (by rescission 
 of his contract), not compensation, is the shareholder's remedy 
 as against the company : though the fraudulent agent remains 
 personally liable. 
 
 (r) L. E. 1 H. L. 93 (1864-6). 
 
 (2397) 
 
•64 PERSONS AFFECTED BY TORTS. 
 
 receives it with general instructions to invest it for the 
 client at his own discretion (s). Again, the firm is not 
 liable if the facts show that exclusive credit was given 
 to the actual wrong- doer (i). In all these cases the 
 wrong is evidently wilful. In all or most of them,, how- 
 ever, it is at the same time a breach of contract or trust. 
 And it seems to be on this ground that the firm is held 
 liable even when the defaulting partner, though profess- 
 ing to act on behalf of the firm, misapplies funds or 
 securities merely for his own separate gain. The rea- 
 sons given are not always free from admixture of the 
 [ * 84] Protean * doctrine of "making representations 
 good," which is now, I venture to think, exploded (u). 
 
 Injuries to 
 
 iu ^11,.^ v^ ^- There remains to be considered the modification 
 
 servants of a master's liability for the wrongful act, neglect, or 
 
 "by fault of default of his servant when the person injured is him- 
 fellow- self in and about the master's service. It is a topic far 
 
 from clear in principle ; the Employers' Liability Act, 
 1880, has obscurely indicated a sort of a counter prin- 
 ciple, and introduced a number of minute and empirical 
 exceptions, or rather limitations of the exceptional rule 
 Common law in question. That rule, as it stood before the Act of 
 rule of mas- 1880, is that a master is not liable to his servant for in- 
 ter's immu- . -jj! J- -ij! •■Tj.j. 
 jjj^;_ jury received irom any ordinary risk ot or incident to 
 
 the service, including acts or defaults of any other per- 
 son employed in the same service. Our law can show 
 no more curious instance of a rapid modern develop- 
 ment. The first evidence of any such rule is in Priestley 
 V. Fowler (x), decided in 1837, which proceeds on the 
 theory (if on any definite theory) that the mastery "can- 
 not be bound to take more care of the servant than he 
 may reasonably be expected to do of himself ;" that a 
 servant has better opportunities than his master of 
 watching and controlling the conduct of his fellow-ser- 
 vants ; and that a contrary doctrine would lead to intol- 
 erable inconvenience, and encourage servants to be 
 negligent. According to this there would be a sort of 
 presumption that the servant suffered to some extent by 
 
 (s) Cp. Blair o. Bromley, 2 Ph. 354, and Cleather v. Twisden, 
 24 Ch. D. 731, with Harman v. Johnson, 2 E. & B. 61. 
 
 (t) Ex parte Eyre, 1 Ph. 227. See more illustrations in my 
 "Digest of the Law of Partnership," art 24. 
 
 (m) I have discussed it in Appendix L. to "Principles of Con- 
 tract," 3rd ed. (N. in 4th ed.) See now Maddison v. Alderson, 
 8 App. Ca. at p. 473. 
 
 (x) 3 M. & W. 1. All the case actually decided was that a 
 master does not warrant to his servant the, sufiaciency and safety 
 of a carriage in which he sends him out. 
 (2398) 
 
MASTER, WHEN LIABLE TO SERVANT. 65 
 
 want of diligence on his own part. But it is needless to 
 pursue this reasoning; for the like result was a few years 
 * afterwards amved at by Chief Jrustice Shaw [ * 85] 
 of Massachusetts by another way, and in a judgment 
 which is the fountain-head of all the later decisions {y). 
 The accepted doctrine is to this effect. Strangers can Reason 
 hold the master liable for the negligence of a servant given in the 
 about his business. But in the case where the person 1^*^"^ '^^^s- 
 injured is himself a servant in the same business he is 
 not in the same position as a stranger. He has of his 
 free will entered into the business and made it his own. 
 He cannot say to the master, You shall so conduct your 
 business as not to injure me by want of due care and 
 caution therein. For he has agreed with the master to 
 serve in that business, and his claims on the master de- 
 pend on the contract of service. Why should it be an 
 implied term of that contract, not being an express one, 
 that the master shall indemnify him against the 
 negligence of a fellow-servant, or any ■ other current 
 risk? It is rather to be implied that he contracted 
 with the risk before his eyes, and that the dangers of 
 the service, taken all round, were considered in fixing 
 the rate of payment. This is, I believe, a fair summary 
 of the reasoning which has prevailed in the authorities. 
 With its soundness we are not here concerned. It was 
 not only adopted by the House of Lords for England, 
 but forced by them upon the reluctant Courts of Scot- 
 land to make the jurisprudence of the two countries 
 uniform (z). No such doctrine appears to exist in the 
 law of any other country in Europe. The following is 
 a clear judicial statement of it in its settled form: "A 
 servant, when he engages to serve a master, undertakes, 
 as between himself and his master, to run all the ordin- 
 ary risks of the service, including the risk of negligence 
 upon the part of a * fellow- servant when he is [ * 86] 
 acting in the 'discharge of his duty as servant of him 
 who is the common master of both " (a). 
 
 The phrase "common employment " is frequent in xhe servants 
 this class of cases. But it is misleading in that it sug- need not be 
 gests a limitation of the rule to circumstances where the about the 
 injured servant had in fact some opportunity of observ- same limd ot 
 
 {y) Farwell v. Boston and Worcester Kailroad Corporation, 4 
 Met. 49. 
 
 (z) See Wilson v. Merry, L. R. 1 Sc. & D. 32G. 
 
 (a) Erie C. J. in Tunney v. Midland R. Co. (1866) L. R. 1 C. 
 P. at p. 296; Archibald J. used very similar language in Lovell 
 V. Howell (1876) 1 C. P. D. at p. 167. 
 
 5 LAW OF TOETS. (2399) 
 
QQ PERSONS AFFECTED BY TOKTS. 
 
 ing and guarding against the conduct of the negligent 
 one; a limitation rejected by the Massachusetts Court 
 in Parwell's case, wMere an engine-driver was injured 
 by the negligence of a switchman (pointsman, as we 
 say on English railways) in the same company's ser- 
 vice, 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- 
 pensation from the same source, it would be extremely 
 difficult to distinguish what constitutes one department 
 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 difFereut departments. In a blacksmith's shop, per- 
 sons working in the same building, at different tires, 
 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. 
 [ * 87] * "Besides, it appears to us that the argu- 
 ment rests upon an assumed principle of responsibility 
 which does not exist. The master, in the case supposed, 
 is not exempt from liability because the servant has 
 better means of providing for his safety when he is em- 
 ployed in immediate connexion with those from whose 
 negligence he might suffer, but because the implied 
 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 im- 
 plied" (6). 
 
 provided So it has been said that " we must not over-refine, but 
 
 there is a 
 
 [h) Shaw C. J., Farwell v. Boston, &c. Corporation, 4 Met. 49. 
 M. Sainctelette of Brussels, and M. Sauzet of Lyons, whom he 
 quotes {op. cit. p. 140), differ from the current view among 
 French-speaking lawyers, and agree with Shaw C. J. and our 
 Courts, in referring the whole matter to the contract between the 
 master and servant; but they arrive at the widely different result 
 of holding the master bound, as an implied term of the contract, 
 to insure the servant against all accidents in the course of the ser- 
 vice, and not due to the servant's own fault or via major. 
 (2400) 
 
" COMMON EMPLOYMENT." 67 
 
 look at the common object, and not at the common im- general com- 
 mediate object ■' (c). All persons engaged under the mon object, 
 same employer for the purpose of the same business, 
 however different in detail those purposes may be, are 
 are fellow-servants in a common employment within 
 the meaning of this rule : for example, a carpenter do- 
 ing work on the roof of an engine-shed and porters 
 moving an engine on a turntable (c). " Where there is 
 one common general object, in attaining which a ser- 
 vant is exposed to risk, he is not entitled to sue the 
 master if he is injured by the negligence * of [ * 88] 
 another servant whilst engaged in furthering the same 
 object ' (d). 
 
 It makes no difference if the servant by whose negli- Eelative 
 gence another is injured is a foreman, manager, or other rank of the 
 superior in the same employment, whose orders the other servants 
 was by the terms of his service bound to obey. The 
 foreman or manager is only a servant having greater 
 authority : foreman and workmen, of whatever rank, and 
 however authority and duty may be distributed among 
 them, are " all links in the same chain " (e). The 
 master is bound, as between himself and his servants, 
 to exercise due care in selecting proper and competent 
 persons for the work (whether as fellow- workmen in 
 the ordinary sense, or as superintendents or foremen), 
 and to furnish suitable means and resources to accom- 
 plish the work (/), and he is not answerable further (gr). 
 
 (e) Pollock C. B., Morgan v. Vale of Neath R. Co. (1865) Ex. 
 Ch. L. R. 1 Q. B. 149, 155. 
 
 (d) Thesiger L. J., Charles v. Taylor, 3 C. P. D. 492, 498. 
 
 (c) Felton v. England (1866) L. K. 2 Q. B. 33 ; Wilson u. 
 Merry (1868) L. E. 1 Sc. & D. 326: see per Lord Cairns at p. 333, 
 and per Lord Colonsay at p. 345. • The French word coUaborateur, 
 which does not mean ' ' fellow- workman ' ' at all, was at one time 
 absnidly introduced into these cases, it is believed by Lord 
 Brougham, and occurs as late as Wilson v. Merry. 
 
 (/) According to some decisions, which seem on principle 
 doubtful, he is bound only not to furnish means or resources 
 which are to his own knowledge defective : Gallagher v. Piper 
 (1864) 16 C. B. N. S. 669; 33 L. J. C. P. 329. And quite lately 
 it has been decided in the Court of Appeal that where a servant 
 seeks to hold his master liable for injury caused by the dangerous 
 condition of a building where he is employed, he must allege dis- 
 tinctly both that the master knew of the danger and that he, the 
 servant, was ignorant of it : Griffiths v. London and St. Kath- 
 arine's Dock Co., 13 Q. B. Diy. 259. 
 
 (g) Lord Cairns, as above: to same effect Lord Wensloydale, 
 Weems«. Mathieson (1861) 4 Macq. at p. 227 : "All that the 
 master is bound to do is to provide machinery fit and proper for 
 the work and to take care to have it superintended by himself 
 
 (2401) 
 
68 
 
 PEESONS AFFECTED BY TORTS. 
 
 Volunteer 
 assistant is 
 on same 
 footing as 
 servant. 
 
 Exception 
 -ivhpie tlie 
 ma-.ter 
 interferes 
 in ijerson. 
 
 [ * 89] * Moreover, a stranger who gives his help 
 without reward to a man's servants engaged in any- 
 work is held to put himself, as regards the master's 
 liability towards him, in the same position as if he were 
 a servant. Having of his free will (though not under 
 a contract of service) exposed himself to the ordinary 
 risks of the work and made himself a partaker in them, 
 he is not entitled to be indemnified against them by the 
 master any more than if he were in his regular employ- 
 meni [h). 
 
 On the other hand, a master who takes an active part 
 in his own work is not only himself liable to a servant 
 injured by his negligence, but, if he has partners in the 
 business, makes them liable also. For he is the agent 
 of the firm, but not a servant (i): the partners are gen- 
 erally answerable for his conduct, yet cannot say he was 
 a fellow- servant of the injured man. • 
 
 Employers' 
 Liahility 
 Act, IK-^U. 
 
 Such were the results arrived at by a number of 
 modern authorities, which it seems useless to cite in 
 more detail (k): the rule, though not abrogated, being 
 greatly limited in application by the statute of 1880. 
 This Act (43 & 44 Vict. c. 42) is on the face of it an ex- 
 perimental and' empiricial compromise between con- 
 flicting interests. It is temporary, being enacted only 
 for seven years and the next session of Parliament; it 
 [ * 90] is confined in its operation * to certain specified 
 causes of injury; and only certain kinds of servants are 
 entitled to the benefit of it, and then upon restrictive 
 conditions as to notice of action, mode of trial, and 
 amount of compensation, which are unknown to the 
 common law. The effect is that a "workman" within 
 the meaning of the Act is put as against his employer 
 in approximately (not altogether, I think) the same 
 position as an outsider as regards the safe and fit con- 
 dition of the material instruments, fixed or moveable, 
 
 or his workmen in a fit and proper manner. ' ' In Skipp r. E. C. 
 E. Co. (1853) 9 Ex. 2::!; 23 L. J. Ex. 23, it was said that this 
 duty does not extend to having a suiBcient number of servants 
 for the work: serf qu. The decision was partly on the ground 
 that the plaintiff was in fact well acquainted with the risk and 
 had never made any complaint. 
 
 (7() Potter r. Faulkner (1861) Ex. Ch. 1 B. & S. 800; 31 L. J. 
 Q. B. 30, approving Degg v. Midland R. Co. (1857) 4 H. & N. 
 773; 26 L. J. Ex. 174. 
 
 (i) Ashworth v. Stanwix (1861) 3 E. & E. 701; 30 L. J. Q. B. 
 183. 
 
 (Jc) They are well collected by Mr. Horace Smith (Law of Neg- 
 ligence, pp. 73 — 76, 2nd ed.). 
 (2402) 
 
employers' liability act. 69 
 
 of the master's business. He is also entitled to com- 
 pensation for harm incurred through the negligence of 
 another servant exercising superintendence, or by the 
 effect of speciiic orders or rules issued by the master or 
 some one representing him; and there is a special wider 
 provision for the benelit of railway servants, which 
 virtually abolishes the master's immunity as to railway 
 accidents in the ordinary sense of that term. So far as 
 the Act has any principle, it is that of holding the em- 
 ployer answerable for the conduct of those who are in 
 delegated authority under him. It is noticeable that 
 almost all the litigation upon the Act has been caused 
 either by its minute provisions as to notice of action, or 
 by desperate attempts to evade those parts of its langu- 
 age which are plain enough to common sense. The 
 text of the Act, and references to the decisions upon it, 
 will be found in the Appendix (Note B). 
 
 On the whole we have, in a matter of general public Resulting 
 importance and affecting large classes of persons who t'omplication 
 are neither learned in the law nor well able to procure °' ^^^"^ ^'"^' 
 learned advice, the following singularly intricate and 
 clumsy state of things. 
 
 First, there is the general rule of a master's liability 
 for his servants (itself in some sense an exceptional rule 
 to begin with). 
 
 * Secondly, the immunity of the master where [ * 91] 
 the person injured is also his servant. 
 
 Thirdly, in the words of the marginal notes of the 
 Employers' Liability Act, "amendment of law" by a 
 series of elaborate exceptions to that immunity. , 
 
 Fourthly, " exceptions to amendment of law" by pro- 
 visoes which are mostly but not wholly re-statements of 
 the- common law. 
 
 Fifthly, minute and vexatious regulations as to pro- 
 cedure in the cases within the first set of exceptions. 
 
 It is incredible that such a state of things should 
 nowadays be permanently accepted either in substance 
 or in form. This however is not the place to discuss 
 the principles of the controversy, which I have at- 
 tempted to do elsewhere (l). It does not appear that 
 any similar controversy has taken place in the United 
 
 (Z) Essays in Jurisprudence and Ethics (1882) cli. 5. See for 
 very full information and discussion on the whole matter the evi- 
 dence taken by the Select Committees of the House of Commons 
 in 1876 and 1877 (Pari. Papers, H. C. 1876, .37:2; 1877, 985). And 
 see the report of a Select Committee of the House of Com- 
 mons on amending Bills, 1886, 192. 
 
 (2403) 
 
70 PERSONS AFFECTED BY TOETS. 
 
 States, where the doctrine .laid down by the Supreme 
 Court of Massachusetts in Farwell's case has been very 
 generally followed. Except in Massachusetts, however, 
 an employer does not so easily avoid responsibility by 
 delegating his authority, as to choice of servants or 
 otherwise, to an intermediate superintendent (m). A 
 collection of more or less detailed reports " on the laws 
 regulating the liability of employers in foreign coun- 
 tries " has now been published by the Foreign Office 
 (n). 
 
 (m) Cooley on Torts, 560 ; Shearman and Eedfield, ss. 86, 88, 
 102. And see the late case of Chicago M. & S. E. Co. v. Ross 
 (1884) 112 XJ. S. 377 ; and the Columbia, Jurist, ii. 554. 
 
 (k) Pari. Papers, Commercial, No. 21, 1886. 
 (2404) 
 
(71) 
 
 * CHAPTEE IV. [ * 92] 
 
 GENERAL EXCEPTIONS. 
 
 We have considered the general principles of liability conditions 
 for civil wrongs. It now becomes needful to consider excluding 
 the general exceptions to which these principles are liability for 
 subject, or in other words the rules of immunity which aot^nma 
 limit the rules of liability. There are various conditions {^™ "^^oug- 
 whicb, when present, will prevent an act from being 
 wrongful which in their absence would be a wrong. 
 Under such conditions the act is said to be justified or 
 excused. And when an act is said in general terms to 
 be wrongful, it is assumed that no such qualifying con- 
 ditions exists. It is an actionable wrong, generally 
 speaking, to lay hands on a man in the way of force or 
 restraint. But it is the right of every man to defend 
 himself against unlawful force, and it is the duty of 
 officers of justice to apply force and restraint in various 
 degrees, from simple, arrest to the infliction of death 
 itself, in execution of the process and sentences of the 
 law. Here the harm done, and wilfully done, is justi- 
 fied. There are incidents, again, in every football 
 match which an uninstructed observer might easily take 
 for a confused fight of savages, and grave hurt some- 
 times ensues to one or more of the players. Yet, so 
 long as the play is fairly conducted according to the 
 rules agreed upon, there is no wrong and no cause of 
 action. For the players have joined in the game of their 
 own free will, and accepted its risks. Not that a man 
 is bound to play football or any other rough game, but 
 if he does he must abide its ordinary chances. Here 
 the harm done, if not justified * (though, in a man- [ * 93] 
 ner unavoidable, it was not in a legal sense necessary), 
 is nevertheless excused (a). Again, defamation is a 
 wrong; but there are certain occasions on which a man 
 may with impunity make and publish untrue statements 
 to the prejudice of another. Again, "sic utere tuo ut 
 alienum non laedas" is said to be a precept of law; yet 
 
 (a) Justification seems to be the proper word when the harm 
 suffered is inseparably incident to the performance of a legal duty 
 or the exercise of a common right; excuse, when it is but an ac- 
 cident: but I do not know that the precise distinction is always 
 possible to observe, or that anything turns on it. 
 
 (9405) 
 
72 
 
 GENERAL EXCEPTIONS. 
 
 there are divers things a man may freely do for his own 
 ends, though he well kilows that his neighbour will in 
 some way be the worse for them. 
 
 General and Some of the principles by which liability is excluded 
 particular are applicable indifferently to all or most kinds of in- 
 exceptions. jury, while others are confined to some one species. 
 The rule as to " privileged communications" belongs 
 only to the law of libel and slander, and must be dealt 
 with under that particular branch of the subject. So 
 the rule as to "contributory negligence" qualifies lia- 
 bility for negligence, and can be understood only in 
 connexion with the special rules determining such lia- 
 bility. Exceptions like those of consent and inevitable 
 accident, on the other hand, are of such wide applica- 
 tion that they cannot be conveniently dealt with under 
 any one special head. This class is aptly donated in 
 the Indian Penal Code (for the same or similar princi- 
 ple apply to the law of criminal liability) by the name 
 of General Exceptions. And these are the excep- 
 tions which now concern us. The following seem to 
 be their chief categories. An action is within certain 
 limits not maintainable in respect of the acts of politi- 
 cal power called " acts of state," iior of judicial acts. 
 [ * 94] Executive * acts of lawful authority from an- 
 other similar class. Then a class of acts has to be con- 
 sidered which may be called quasi-judicial, and which, 
 also within limits, are protected. Also, there are vari- 
 ous eases in which unqualified or qualified immunity is 
 conferred upon private persons exercising an authority 
 or power specially conferred by law. We may regard 
 all these as cases of privilege in respect of the person 
 or the occasion. After these come exceptions which are 
 more an affair of common right: inevitable accident (a 
 point, strange to say, not clearly free from doubt), harm 
 inevitably incident to the ordinary exercise of rights, 
 harm suffered by consent or under conditions ainount- 
 ing to acceptance of the risk, and harm inflicted in self- 
 defence or (in some cases) otherwise by necessity. 
 These grounds of exemption from civil liability for 
 wrongs have to be severally examined and defined. And 
 first of "Acts of State." 
 
 1. — Acts of State. 
 
 Acts of State. It is by no means easy to say what an act of state is, 
 though the term is not of unfrequent occurrence. On 
 
 (2406) 
 
ACTS OF STATE. 73 
 
 the whole, it appears to signify — (1) An act done or 
 adopted by the prince or rulers of a foreign independ- 
 ent State in their political and sovereign capacity, and 
 ■within the limits of their de facto political sovereignty; 
 (2) more particularly (in the words of Mr. Justice 
 Stephen {b), "an act injurious to the person or to the 
 property of some person who is not at the time of that 
 act a subject (c) of her * Majesty ^ which act is [ * 95] 
 done by any representative of. her Majesty's authority, 
 civil or military, and is either previously sanctioned, or 
 subsequently ratified by her Majesty" (such sanction or 
 ratification being, of course, expressed in the proper 
 manner through responsible ministers). 
 
 Our courts of justice profess themselves not compe- General 
 tent to discuss acts of these kinds for reasons thus ex- giouiMl of 
 pressed by the Judicial Committe of the Privy Council : exemption. 
 — "The transactions of independent States between 
 each other" (and with subjects of other States), "are 
 governed by other laws than those which municipal 
 courts administer; such courts have neither the means 
 of deciding what is right, nor the power of enforcing 
 any decision which they may make" (d). 
 
 A series of decisions of the Indian Supreme Courts 
 and the Privy Council have applied this rule to the deal- 
 ings of the East India Company with native States 
 and with the property of native princes (e). In these 
 cases the line between public and private property, be- 
 tween acts of regular administration and acts "of war or 
 of annexation, is not always easy to draw. Most of 
 them turn on acts of political annexation. Persons who 
 by such an act become British subjects do not thereby 
 become entitled to complain in municipal courts deriv- 
 ing their authority from the British Government of the 
 act of annexation itself or anything incident to it. In 
 such a case the only remedy is by petition of right to 
 the Crown. And the effect is the same if the act is 
 originally an excess of authority, but is afterwards rati- 
 fied by the Crown. 
 
 " The leading case on this subject is Buron v. Den- 
 
 (6) History of the Criminal Law, ii. 61. 
 
 (c) This includes a friendly alien living in "temporary alle- 
 giance" under the protection of English law: therefore an act of 
 state in this sense cannot take place in England in time of peace. 
 
 {d) Secretary of State in Council of India v. Kamachee Boye 
 Sahaba (1859) 'iri Moo. P. C. 22, 75. 
 
 (e) See Doss v. Secretary of State of India in Council, 19 Eq. 
 509, and the case last cited. 
 
 (2407) 
 
74 GENERAL EXCEPTIONS. 
 
 [ * 96] man (/). * This was an action against Captain 
 Denman, a captain in the navy, for burning certain bar- 
 racoons on the West Coast of Africa, and releasing the 
 slaves contained in them. His conduct in so doing was 
 approved by a letter written by Mr. Stephen, then Under 
 Secretary of State for the Colonies, by the direction of 
 Lord John Russel, then Secretary of State. It was held 
 that the owner of the slaves [a Spanish subject] could ' 
 recover no damages for his loss, as the eflFect of the 
 ratification of Captain Denman's act was to convert 
 what he had done into an act of state, for which no 
 action would lie." 
 
 So far Mr. Justice Stephen, in his History of the 
 Criminal Law (g). It is only necessary to add, as he 
 does on the next page, that " as between the sovereign 
 and his subjects there can be no such thing as an act of 
 state. Courts of law are established for the express 
 purpose of limiting public authority in its conduct to- 
 wards individuals. If one British subject puts another 
 to death or destroys his property by the express com- 
 mand of the King, that command is no protection to 
 the person who executes it unless it is in itself lawful, 
 and it is the duty of the proper courts of justice to de- 
 termine whether it is lawful or not" : as, for example, 
 when the Court of King's Bench decided that a Secre- 
 tary of State had no power to issue general warrants to 
 search for and seize papers and the like (h). 
 
 Local actions Another question which has been raised in the colo- 
 against nies and Ireland, but which by its nature connot come 
 
 viceroy or before an English court for direct decision, is how far 
 go\ernoi. ^^ action is maintainable against an officer in the na- 
 ture of a viceroy during his term of office, and in the 
 local courts of the territory in which he represents the 
 [ * 97] Crown. It has been * held by the Judicial 
 Committee that the Lieutenant-Governor of a colony is 
 not exenpt from suit in the courts of that colony for a 
 debt or other merely private cause of action (i) ; and 
 by the Irish courts, on the other hand, that the Lord- 
 
 (/) 2 Ex. 167. 
 
 (g) Vol. ii, p. 64. 
 
 (k) Entick V. Carrington, 19 St. Tr. 1043. 
 
 (i) Hill?;. Bigge (1841) 3 Moo. P. C. 465; dissenting from Lord 
 Mansfield's dictum in Mostyn v. Fakrigas, Cowp. 172, that "lo- 
 cally during his government mo ciml or criminal action Tvill lie 
 against him;" though it may be that he is privileged from per- 
 sonal arrest where arrest would, by the local law, be part of the 
 ordinary process. 
 
 (2408) 
 
ACTS OF STATE. 75 
 
 Lieutenant is exempt from being sued in Ireland for an 
 act done in his official or "politic" capacity (fc). 
 
 There is another quite distinct point of jurisdiction Acts of 
 in connexion with which the term " act of state " is used, foreign 
 A sovereign prince or other person representing an in- po^^ra. 
 dependent power is not liable to be sued in the covirts 
 of this country for acts done in a sovereign capacity ; 
 and this even if in some other capacity he is a British 
 subject, as was the case with the King of Hanover, who 
 remained an English peer after the personal union be- 
 tween the Crowns of England and Hanover was dissolved 
 (l). This rule is included in a wider one which not 
 only extends beyond the subject of this work, but be- 
 longs to international as much as to municipal law. 
 It has been thus expressed by the Court of Appeal : 
 "As a consequence of the absolute independence of every 
 sovereign authority, and of the international comity which 
 induces every sovereign state to respect the independence 
 of every other sovereign state, each and every one de- 
 clines to exercise, * by means of any of its [ * 98] 
 Courts, any of its territorial jurisdiction over the per- 
 son of any sovereign or ambassador of any other state, 
 or over the public property of any state which is des- 
 tined to its public use, or over the property of any am- 
 bassador (m), though such sovereign, ambassador, or 
 property be within its territory, and therefore, but for 
 the common agreement, subject to its jurisdiction "(w). 
 
 If we may generalize from the doctrine of our own Summary. 
 courts, the result seems to be that an act done by the 
 authority, previous or subsequent, of the government 
 of a sovereign state in the exercise of de facto sover- 
 eignty (o), is not examinable at all in the courts of jus- 
 
 (k) Luby r. Wodehouse, 17 Ir. C. L. E. 618, Sullivan v. Spen- 
 cer, Ir. R. 6 C. L. 173, following Tandy v. Westmoreland, 27 St. Tr. 
 1246. These cases go very far, for the Lord Lieutenant was not even 
 called on to plead his privilege, but the Court stayed proceedings 
 against him on motion. As to the effect of a local act of indem- 
 nity, see Philips v. Eyre, Ex. Ch. L. R. 6 Q. B. 1. 
 
 (I) Duke of Brunswick v. King of Hanover (1843^) 6 Beav. 1, 
 57; affirmed in the House of Lords, 2 H. L. C. 1. 
 
 (m) What if cattle belonging to a foreign ambassador were dis- 
 trained damage feasant ? It would seem he could not get them 
 back without submitting to the jurisdiction. 
 
 (n) The Parliament Beige (1880) 5 P. D. 197, 214. 
 
 (0) I have not met with a distinct statement of this qualifica- 
 tion in existing authorities, but it is evidently assumed by them, 
 and is necessary for the preservation of every state's sovereign 
 rights within its own jurisdiction. Plainly the command ol a 
 
 (2409) 
 
GENERAL EXCEPTIONS. 
 
 tice of any other state. So far forth as it affects per- 
 sons not subject to the government in question, it is not 
 examinable in the ordinary courts of that state itself. 
 If and so far as it affects a subject of the same state, 
 it may be, and in England it is, examinable by the 
 courts in their ordinary jurisdiction. In most Conti- 
 nental countries, however, if not in all, the remedy for 
 such acts must be sought before a special tribunal (in 
 France the Conseil d'Etat: the preliminary question 
 whether the ordinary court or the Conseil d'Etat has 
 jurisdiction is decided by the Tribunal des Coaflits, a 
 peculiar and composite court) (p). 
 
 [ * 99] * 2.— Judicial Acts. 
 
 .Judicial acts. Next as to judicial acts. The rule is that " no action 
 will lie against a judge for any acts done or words spo- 
 ken in his judicial capacity in a court of justice " (q). 
 And the exemption is not confined to judges of supe- 
 rior courts. It is founded on the necessity of judges 
 being independent in the exercise of their office, a rea- 
 son which applies equally to all judicial proceedings. 
 But in order to establish the exemption as regards pro- 
 ceedings in the inferior court, the judge must show 
 that at the time of the alleged wrong-doing some mat- 
 ter was before him in which he had jurisdiction 
 (whereas in the case of a superior court it is for the 
 plaintiff to prove want of jurisdiction); and the act 
 compleined of must be of a kind which he had power 
 to do as judge in that matter. 
 
 Thus a revising barrister has power by statute (r) 
 " to order any person to be removed from his court who 
 shall interrupt the business of the court, or refuse to 
 obey his lawful orders in respect of the same " : but it 
 is an actionable trespass if under colour of this power 
 he causes a person to be removed from the court, not 
 because that person is then and there making a distur- 
 bance, but because in the revising barrister's opinion he 
 improperly suppressed facts within his knowledge at 
 
 foreign government would be no answer to an action for trespass 
 to land, or for the arrest of an alleged offender against a foreign 
 law, within the body of an English county. 
 
 (p) Lawof Mav21 1872. But the principle is ancient, and 
 the old law is still cited on various points. 
 
 (?) Scott ('. Stansfield (186«) L. E. 3 Ex. 220, which confirms 
 and sums up the effect of many previous decisions. 
 
 (r) 28 & 29 Vict. c. 36, s. 16. 
 (2410) 
 
JUDICIAL ACTS. 77 
 
 the holding of a former court (s). The like law holds 
 if a county court judge commits a party without juris- 
 diction, and being informed of the facts which show 
 that he has no jurisdiction (t) ; though an inferior judge 
 is not liable for an act which on * the facts ap- [ * 100] 
 parent to him at the time was within his jurisdiction, 
 but by reason of facts not then shown was in truth out- 
 side it (h). 
 
 -1 judge is not liable in trespass for want of jurisdic- 
 tion, unless he knew or ought to have known of the de- 
 fect; and it lies on the plaintiff, in every such case, to 
 prove that fact (x). And the conclusion formed by a 
 judge acting judicially and in good faith, on a matter 
 of fact which it is within his jurisdiction to determine, 
 cannot be disputed in an action against him for any- 
 thing judicially done by him in the same cause upon 
 the footing of that conclusion (>/)■ ' 
 
 Allegations that the act complained of was done 
 "maliciously and corruptly," that words were spoken 
 "falsely and maliciously," or the like will not serve to 
 make an action of this kind maintainable against a 
 judge either of a superior (z) or of an inferior (a) 
 court. 
 
 There are two cases in which by statute an action Liabilitv bv 
 does or did lie against a judge for misconduct in his statute in 
 office, namely, if he refuses to grant a writ of habeas special cases. 
 corpus in vacation time (6), and if he refused to seal 
 a bill of exceptions (c). 
 
 The rule of immunity for judicial acts is applied not Judicial acts 
 only to judges of the ordinary civil tribunals, but to of persons 
 members of naval and military courts-martial or courts ^°^ Judges, 
 of * inquiry constituted in accordance with [ * 101] 
 military law and usage (d). It is also applied to a limited 
 
 (s) Willis V. Maclachlan (1876) 1 Ex. D. 376. 
 
 h) Houlden r. Smith (1850) 14 Q. B. 841; 19 L. J. Q. B. 170. 
 
 (u) Lowther r. Earl of Radnor (1806) 8 East, 113, 118. 
 
 (x) Calder v. Halket (1839) 3 Moo. P. C. 28, 78. 
 
 (,y) Kemp v. Neville (1861) 10 C. B. N. S. 523; 31 L. J. C. P. 
 158 (an action against the Vice-Chancellor of the University of 
 Cambridge), and authorities there cited. 
 
 (z) Frey v. Blackburn (1862) 3 B. & S. 576. 
 
 (a) Scott V. Stansfield (1868) L. E. 3 Ex. 220. 
 
 (J}) 31 Car 2 c. 2 s. 9. 
 
 (c) 13 Edw. 2 (Stat. Westm. 2) c. 31, cf Blackstone, iii. 372. 
 
 (d) This may be collected from such authorities as Dawkins v. 
 Lord Eokeby (1875) L. E. 7 H. L. 744, Dawkina v. Prince Ed- 
 ward of Saxe Weimar (1876) 1 Q. B. D. 499, which however go 
 to some extent on ehe doctrine of "privileged comftiunications, " 
 
 (2411) 
 
78 GENERAL EXCEPTIONS. 
 
 extent to arbitrators, and to any person who is in a po- 
 sition like an arbitrator's, as having been chosen by the 
 agreement of parties to decide a matter that is or may 
 be in difference between them. Such a person, if he 
 acts honestly, is not liable for errors on judgment (e). 
 He would be liable for a corrupt or partisan exercise of 
 his office; but if he really does use a judicial discretion 
 the rightness or competence of his judgment cannot be 
 brought into question for the purpose of making him 
 personally liable. 
 
 The doctrine of our courts on this subject appears 
 to be fully and uniformly accepted in the United States 
 
 3. — Executive Acts. 
 
 Executive ^^ *° executive acts of public officers, no legal wrong 
 
 atts. can be done by the regular enforcement of any sentence 
 
 or process of law, nor by the necessary use of force for 
 preserving the peace. It will be observed that private 
 persons are in many cases entitled, and in some bound, 
 to give aid and assistance, or to act by themselves, in 
 [ * 102] executing the * law; and in so doing they are 
 similarly protected (g). "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 his 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 pro- 
 tected 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 pro- 
 tected if he has only acted in a manner in itself reason- 
 able, and in execution of an apparently regular war- 
 
 a doctrine wider in one sense, and more special in another sense, 
 than the rule nolv in question. Partly, also, they deal with acts 
 of authority not of a judicial kind, which will he mentioned 
 presently. 
 
 (e) Pappa v. Rose (1872) Ex. Ch. L. E. 7 C. P. 525 (broker au- 
 thorized by sale note to decide on quality of goods) ; Tharsis Sul- 
 phur Co. V. Loftus (1872) L. R, 8 C. P. 1 (average adjuster nomi- 
 nated to ascertain proportion of loss as between ship and cargo); 
 Stevenson v. Watson (1879) 4 C. P. D. 148 (architect nominated 
 to certify what was due to contractor). 
 
 (/) Cooley on Torts, Ch. 14. 
 
 (g) The details of this subject belong to criminal law. 
 (2412) 
 
EXECUTIVE ACTS. 79 
 
 rant or order which on the face of it he was bound to 
 obey (h). This applies only to irregularity in the pro- 
 cess 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 (t). 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 (k). Many par- 
 ticular statutes contain provisions which give a qualified 
 protection to persons acting vinder the statute, by re- 
 quiring notice of action to be given, or the action to be 
 brought within a limited time, or both. It would serve 
 no useful purpose to attempt a collection of such pro- 
 visions, which are * important, and sometimes [ * 103] 
 intelligible, only in connexion with the special branches 
 of public law in which they occur. (I). 
 
 As to a mere mistake of fact, such as arresting the 
 body or taking the goods of the wrong person, an offi- 
 cer 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 (ni). 
 
 Acts done by naval and military officers in the execu- Acts of naval 
 tion or intended execution of their duty, fdr the enforce- "ncl military 
 ment of the rules of the service and preservation of ameers. 
 discipline, fall to some extent under this head. The 
 justification of a superior officer as regards a subordi- 
 nate party 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 
 
 (A) Mayor of London v. Cox (18G7) L. E. 2 H. L. at p. 269 (in 
 opinion of judges, per Willes J). The law seems tr> be under- 
 stood in the same way in the United States. Cooley on Torts, 
 459 432, 
 
 (i) The case of the Marshalsea, 10 Co. Eep. 76 a; Clark t>. 
 Woods (1848) 2 Ex. 395; 17 L. J. M. C. 189. 
 
 (k) 24 Geo. 2, c. 44, s. C. (Action lies only if a demand in 
 writLug for perusal and copy of the warrant is refused or neglected 
 for six days. ) 
 
 {I) Cf. Dicey on Parties, 430. Sect. 170 of the Army Act, 1881, 
 will serve as a recent specimen. Cf. the Indian Code of Civil 
 Procedure (Act XIV. 1882), s. 424. 
 
 (m) See Glasspoole v. Young, 9 B. & C. 696; Dunstont). Pater- 
 son (1857) 2 C. B. N. S. 495; 26 L. J. C. P. 267; and other au- 
 thorities collected in Fisher's Digest, ed. Mews, sub. tit. Sheriff. 
 
 (2413) 
 
80 
 
 GENERAL EXCEPTIONS. 
 
 Of other pub- 
 lic authori- 
 ties. 
 
 Indian Act, 
 XVIII. of 
 1850. 
 
 no absolute decision, that an action does not lie in a 
 civil court for bringing an alleged offender against mili- 
 tary law (being a person subject to that law) before a 
 court-martial without a probable cause (n). How far 
 the orders of a superior officer justify a subordinate 
 who obeys them as against third persons has never been 
 fully settled. But the better opinion appears to be 
 [ * 104] 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 authorized to give, and if the 
 particular order is not necessarily or manifestly unlaw- 
 ful (o). 
 
 The same principles apply to the exemption of a per- 
 son acting under the orders of any public body compe- 
 tent in the matter in hand. An action does not lie 
 against the Sarjeant-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 (p). 
 
 The principles of English law relating to the protec- 
 tion of judicial officers and persons acting under their 
 orders have in British India been declared by express 
 enactment (Act XVIII of 1850). 
 
 4. — Quasi -judicial Acts. 
 
 Acts of quasi- Divers persons and bodies are called upon, in the 
 judicial management of public institutions or government of 
 
 discretion. public institutions or government of voluntary associa- 
 tions, to exercise a sort of conventionsl jurisdiction 
 
 (») Johnstone v. Sutton (1786-7) Ex. Ch. 1 T. E. 510, 548; af- 
 firmed in H. L. ibid. 784; 1 Bro. C. P. 76. The Ex. Ch. thought 
 the action did not lie, but the defendant was entitled to judg- 
 ment even if it did. No reasons appear to have been given in the 
 House of Lords. 
 
 (o) See per Willes J. in Keighly v. Bell (1866) 4 F. & F. at p. 
 790. In time of war the protection may perhaps be more exten- 
 sive. As to criminal responsibility in such cases, of Stephen, 
 Dig. Cr. Law, art. 202, Hist. Cr. Law, i. 200—206. 
 ^ (v) Bradlaugh v. G-ossett (1884) 12 Q. B. D. 271. As to the 
 limits of the privilege, see per Stephen J. at p. 283. As to the 
 power of a colonial legislative assembly over its own members, 
 see Barton v. Taylor (J. C. 1886) 11 App. Ca. 197. 
 (2414) 
 
QUASI-JUDICIAL POWERS. 81 
 
 analogous to that of inferior coiirts of justice. These 
 * qua si -judicial functions are in many cases [ * 105] 
 created or confirmed by Parliament. Such are the 
 powers of the universities over their officers and grad- 
 uates, and of colleges in the universities over their fel- 
 lows and scholars. 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 incor- 
 porated companies, and even of private partnerships. 
 Further, a qaasi-judicial authority may exist by the 
 mere convention of a number of persons who have as- 
 sociated 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 Court exhibit a 
 curious and unique example of great power and au- 
 thority exercised by voluntary unincorporated societies 
 in a legally anomalous manner. Their powers are for 
 some purposes quasi-judicial, and yet they are not sub- 
 ject to any ordinary jurisdiction (q). 
 
 The general rule as to quasi-judicial powers of this g^igg ^f 
 class is that persons exercising them are protected from natural 
 civil liability if they observe the rules of natural jus- justice 
 tice, and also the particular statutory or conventional ^"^^ special 
 rules, if any, which may prescribe their course of action, ^^g^'be ^^^' 
 The rules of natural justice appear to mean, for this observed, 
 purpose, that a man is not to bo removed from office* or 
 membership, or otherwise dealt with to his disadvant- 
 age, 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 [ * 106] 
 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 court of justice will 
 not interfere, not even if it thinks the decision was in 
 fact vn-ong (r).' If not, the act complained of will be 
 declared void, and the person affected by it maintained 
 
 (g) See Neate v. Denman (1874) 18 Eq. 127. 
 
 (r) Inderwick v. Snell (18.50) 2 Mac. & G. 216 (removal of a di- 
 rector of a company) ; Dawkins v. Antrobus (1881 ) 17 Ch. Di v. 
 615 (expulsion of a member from a club) ; of 13 Ch. T>. 352. 
 
 6 LAW OF TOETS. (2415) 
 
82 
 
 GENERAL EXCEPTIONS. 
 
 in his rights until the matter has been properly and 
 regularly dealt with (s). The principles apply to the 
 expulsion of a partner from a private firm where a 
 power of expulsion is conferred by the partnership con- 
 tract (t). 
 
 Absolute It may be, however, that by the authority of Parlia- 
 
 discretionary inent (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 re- 
 move a man from office or the like without anything in 
 the nature of judicial proceedings, and without show- 
 ing any cause at all. Whether a particular authority is 
 judicial or absolute must be determined by the terms of 
 the particular instrument creating it (u). 
 
 powers. 
 
 Questions 
 whether 
 duty judi- 
 cial or 
 ministerial: 
 Ashby V. 
 White, &c. 
 
 On the other hand there may be question whether the 
 duties of a particular office be quasi- judicial, or merely 
 ( * 107] * ministerial, or judicial for some purposes 
 and ministerial for others. It seems that at com^mon 
 law the returning or presiding officer at a parliament- 
 ary 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 (x) : but now in most cases 
 it will be found that such officers are under absolute 
 statutory duties (y), which they must perform at their 
 peril. 
 
 (s) Fisher v. Keane (1878) 11 Ch. D. 353 (a club case, no notice- 
 to the member); Labouchere v. Wharncliffe (1879) 13 Ch. D. 346 
 (the like, no suflScient inquiry or notice to the member, calling^ 
 and proceedings of general meeting irregular) ; Dean v. Bennett 
 (1870) 6 Ch. 489 (minister of Baptist chapel under deed of settle- 
 ment, no sufficient notice of specific charges either to the minis- 
 ter or in calling special meeting). 
 
 (t) Blissetr). Daniel, 10 Ha. 493; "Wood v. Woad (1874) L. R. 9 
 Ex. 190. Without an express power in the articles a partner can- 
 not be expelled at all. 
 
 («) JE. g. Dean r. Bennett, supra (power judicial) ; Hayman u. 
 Governors of Kugby School (1874) 18 Eq. 28 (power absolute). 
 
 (z) Tozer v. Child (1857) Ex. Ch. 7 E. & B. 377; 26 L. J. Q. 
 B. 151; explaining Ashby v. White, Ld. Raym. 938, and in ISm. 
 L. C. ; and see the special report of Holt's judgment published in. 
 1837 and referred to in Tozer v. Child. There is some difference 
 of opinion in America, see Cooley on Torts, 413, 414. 
 
 (.(/) 6 & 7 Vict. c. 18, s. 82. As to presiding oflicers under The 
 Ballot Act, 1872, Pickering v. James (1873) L. R. 8 C. P. 489^ 
 Ackers v. Howard (1886) 16 Q. B. D. 739. 
 
 (2416) 
 
DOMESTIC AUTHORITY. 83 
 
 5. — Parental and quasi-parental Authority. 
 
 Thus much of private quasi-judicial authority. There Authority of 
 
 ai'e also several kinds of authority in the way of sum- parents and 
 
 marv force or restraint which the necessities of society Pt'rsonsin 
 
 ".,, -11 -i AT 1 loco parentis. 
 
 require to be exercised by private persons. And such 
 
 persons are pi;otected 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 (2). It is needless to say more of this here, 
 except that modern civilization has considerably dim- 
 inished the latitude of what judges or juries are likely 
 to think reasonable and moderate correction (a). 
 
 * Persons having the lawful custody of a [ * 108] Of custodians 
 lunatic, and those acting by their direction, are justified of lunatics, 
 in using such 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 re- 
 garded as a quasi -paternal power; but I conceive the 
 person intrusted 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 more strict as medical science 
 improves. A century ago lunatics were beaten, con- 
 fined 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. — Authorities of Necessity. 
 
 The master of a merchant ship has by reason of nee- Of the mas- 
 essity the right of using force to preserve order and dis- ter of a 
 
 (z) Blackstone, i. 452. See modern examples collected in Ad- 
 dison on Torts, 5th ed. p. 129. 
 
 (a) The ancient right of a husband to beat his wife moderately 
 (F. N. B. 80 F. 239 A.) was discredited by Blackstone (i. 445) 
 and is not recognized at this day; but as a husband and wife can- 
 not in any case sue one another for assault in a civil court, this 
 does not concern us. 
 
 (2417) 
 
S4 
 
 GENERAL EXCEPTIONS. 
 
 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 
 [ * 109] 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 de- 
 lay proper for injury, 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 defence " (b). 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 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 authorized Acts. 
 
 Damage inci- 
 dentally 
 resulting 
 from act 
 not unlaw- 
 ful. 
 
 Thus far we have dealt with cases where some special 
 relation of the parties justifies or excuses the intentional 
 doing of things which otherwise would be actionable 
 wrongs. We now come to another and in some respects 
 a more interesting and difficult category. Damage suf- 
 fered 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 
 commonly stated to be " Sic utere tuout alienum non 
 laedas." If this were literally and universally applic- 
 able, a man would act at his peril whenever and where- 
 [ * 110] ver he acted otherwise than as * the servant 
 of the law. Such a state of things would be intoler- 
 able. It would be impossible, for example, to build or 
 repair a wall, unless in the middle of on 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 
 
 (ft) Lord Stowell, The Agincourt (1&24) 1 Hagg. 271, 274. This 
 judgment is the classical authority on the subject. For further 
 references see Maude and Pollock's Merchant Shipping, 4th ed i 
 127. 
 
 (2418) 
 
ACTS AUTUORIZED BY STATUTE. 85 
 
 right to do as he likes with his own " (c), 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 much, 
 however, to know where the line is di-awn. The pro- 
 blems 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 
 sphere of a man's proper action end, and aggression on 
 the sphere of his neighbour's action begin ? 
 
 The solution is least difficult for the lawyer when the Damage 
 question has been decided in principle by a sovereign from exe- 
 legislature. Parliament has constantly thought fit to cution of 
 direct or authorize the doing of things which but for authorized 
 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 al- 
 lowance of the supreme legal power in the State. In 
 other words "no action will lie for doing that which the 
 Legislature has authorized, it it be done without negli- 
 gence, although it * does occasion damage to [ * 111] 
 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 com- 
 pensation" (if any) " as the Legislature has thought 
 fit to give him " (d). Instead of the ordinary question 
 whether a wrong has been done, there can only be a 
 question whether the special power which has been ex- 
 ercised is coupled, by the same authority that created 
 it, with a special duty to make compensation for incid-' 
 ential damage. The authorities on this subject are 
 voluminous and discursive, and exhibit notable differ- 
 ences of opinion. Those 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 
 
 (c) Cf. Gaius (D. 50. 17, de div. reg. 55): " Nullus videtur 
 dolo facere, qui sue iure utitur." 
 
 (d) Lord Blackburn, Geddis r. Proprietors of Bann Reservoir 
 (1878) 3 App. Ca. at p. 455 ; Caledonian R. Co. v. Walker's 
 Trustees (1882) 7 App. Ca. at p. 293; Mersey Docks Trustees v. 
 Gibte, L. R. 1 H. L. at p. 112. 
 
 (2419) 
 
86 
 
 GENERAL EXCEPTIONS. 
 
 No action for 
 unavoidable 
 damage. 
 
 Care and 
 caution re- 
 quired in 
 
 compensation given by statute to persons who are " in- 
 juriously affected" by authorized railway works, and 
 by the same statutes deprived of their common-law 
 rights of action, was or was not co-extensive with the 
 rights of action expressly or by implication taken away; 
 and it has been decided, though not without doubts 
 and weighty dissent, that in some cases a party who 
 has suffered material loss is left without either ordinary 
 or special remedy (e). 
 
 Apart from the question of statutory compensation, 
 it is settled that no action can be maintained for loss or 
 inconvenience which is the necessary consequence of an 
 authorized thing being done in an authorized manner. 
 A person dwelling near a railway constructed under the 
 authority of Parliament for the purpose of being worked 
 [ * 112] by locomotive * engines cannot complain of 
 the noise and vibration caused by trains passing and 
 repassing in the ordinary course of traffic, however un- 
 pleasant he may find it ( / ) ; nor of damage caused by 
 the escape of sparks from the engines, if the company 
 has used due caution to prevent such escape so far as 
 practicable (gr). 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 (h). 
 
 But in order to secure this immunity the powers con- 
 ferred by the Legislature must be exercised without 
 
 (e) Hammersmith R. Co. v. Brand (1869) L. R. 4 H. L. 171. 
 
 (/) Hammersmith R. Co. v. Brand, suprn. confirming and ex- 
 tending Rex V. Pease (1832) 4 B. & Ad. .30, where certain mem- 
 hers and servants of the Stockton and Darlington Railway Com- 
 pany were indicted for a nuisance to persons using a high road 
 near and parallel to the railway. Lord Bramwell must have for- 
 gotten this authority when he said in the Court Of Appeal that 
 Rex V. Pease was wrongly decided (.) Q. B. D. 601). 
 
 (g) Vaughan v. TaffVale R. Co. (1860) Ex. Ch. 5 H. & N. 679; 
 29 L. J. Ex. 247. See below in Ch. XII. 
 
 (/() Cracknell v. CorpoVation of Thetford (1869) L. R. 4 C. P.' 
 629, decided partly on the ground that the corporation were not 
 even entitled to enter on land which did not belong to them to 
 remove weeds, &c., for any purposes beyond those of the naviga- 
 tion. A rather similar case, but decided the other way in the 
 last resort on the construction of the particular statute there in 
 question, is Geddis v. Proprietors of Bann Reservoir, 3 App. Ca. 
 430. Cracknell's case seems just on the line; cp. Biscoe v. G. E. 
 E. Co. below. 
 
 (2420) 
 
AUTHOKIZED WORKS. 87 
 
 negligence, or, as it is perhaps better expressed, with exercise of 
 judgment and caution (i). For damage which could discretionary 
 not have been avoided by any reasonably practicable P°'*^'^''s- 
 care on the pai't 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 [ * 113] 
 wrong against which the ordinary remedies are avail- 
 able. If an authorized railway comes near my house, 
 and disturbs me by the noise and vibration of the trains, 
 it may be a hardship to me, but it is no wrong. For 
 the railway was authorized and made in order that 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 have 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 injury to private rights, it 
 is in general bound to do so" (k). Hence there is a 
 material distinction between cases where the Legisla- 
 ture " directs that a thing shall at all events be done " 
 (I), 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 the statute 
 empowered to set up hospitals within a certain area, but 
 not empowered to set up hospital on any special 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 neighbors (m). And even where 
 a particular thing is required to be none, the burden of 
 proof is on the person who has to do it to show that it 
 cannot be done without creating a nuisance (n). A 
 railway company is authorized to acquire land within 
 specified limits, and on any part of that land to erect 
 workshops. This does not justify the * com- [ * 114] 
 pany, as against a particular householder, in building 
 workshops so situated (though within the authorized 
 limits) that the smoke from them is a nuisance to him 
 
 (0 Per Lord Truro, L. & K. W. E. Co. r. Bradley (1851) 3 Mac. 
 & G. at p. 341. 
 
 (k) Biscoe r. G. E. R. Co. (1873) 16 Eq. 636. 
 
 (l) 6 App. Ca. 203. 
 
 (m) Metropolitan Asylum District v. Hill (1881) 6 App. Ca. 
 
 193. 
 
 (n) Attorney-General v. Gaslight and Coke Co. (1877) 7 Ch. D. 
 
 217, 221. 
 
 (2421) 
 
88 GENERAL EXCEPTIONS. 
 
 in the occupation of his house (o). But a statutory 
 power to carry cattle by railway, and provide station 
 yards and other buildings for the reception of cattle and 
 other things to be carried (without specification of par- 
 ticular places or times) is incidental to the general pur- 
 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 
 {p). Such a case falls within the principle not of 
 Metropolitan Asylum District v. Hill, but of Eex 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 repair- 
 ing the streets in the interest of the ratepayers and the 
 public, the act of the vestry was wrongful as against 
 the gas company, and was properly restrained by in- 
 junction (g). 
 
 [ * 115] * " An Act of Parliament may authorize a 
 nuisance, and if it does so, then the nuisance which it 
 authorizes may be lawfully committed. But the au- 
 thority 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 au- 
 thority 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 au- 
 thorize a nuisance if it is necessary for the construction 
 of the works" [r). 
 
 (o) Eajmoliun Bose i'. East India R. Co. (High Court, Calcutta), 
 10 Ben. L. K. 241. Qu. whether this be consistent with tlie case 
 next cited. 
 
 (p) London and Brigliton R. Co. v. Truman (1885) 11 App. Ca. 
 4.5, reversing tlie decision of the Court of Appeal, 29 Ch. Div. 89. 
 
 (q) Gas Light and Coke Co. r. Vestry of St. Mary Abbott's, 
 (1885) 15 Q. B. Div.l. The Court also relied, but only by way 
 of confirmation, on certain special Acts dealing with the relations 
 between the vestry and the company. See at p. 6. 
 
 (r) Bowen L. .!., 29 Ch. D. at p. 108. 
 (2422) 
 
INEVITAISLE ACCIDENT. 8& 
 
 An authority accompanied by compulsory powers, or 
 to be exercised concurrently with anthorities ejusdem 
 generis which are so accompanied, will, it seems, be gen- 
 erally treated as absolute ; but no single test can be 
 assigned as decisive (s). 
 
 8. — Inevitable Accident. 
 
 In the case we have jast been considering the act by Inevitable 
 which the damage is caused has been specially author- accident 
 ized. Let us now turn to the class of cases which dif- "esulting 
 fer from these in that the act is not specially authorized, fu*i™ct^^" 
 but is simply an act which, in itself, a man may law- 
 fully 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 undoubt- 
 ed that if by failure in due care I cause harm to an- 
 other, however * innocent my intention, I am [ * 116] 
 liable. This has already been noted in a general way 
 (i). 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 evi- 
 dence, 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 special precaution in a matter of 
 special risk or importance is not always successful. 
 Slight negligence may be divided by a very fine line 
 from 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. 
 
 The question, then, is reduced to this, whether an conditions 
 action lies against me for harm resulting by inevitable of the 
 accident from an act lawful in itself, and done by me in inquiry, 
 a reasonable and careful manner. Inevitable accident 
 is not a verbally accurate term, but can hardly mislead; 
 it does not mean absolutely inevitable (for, by the sup- 
 
 (s) See especially Lord Elackburn's opinion in London and 
 Brighton E. Co. r. Truman. 
 (I) P. 32, above. 
 
 (2493) 
 
90- GENERAL EXCEPTIONS. 
 
 position, 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 ex- 
 pected 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 circum- 
 stances, in which he was placed. 
 
 On principle It may seem to modern readers that only one solu- 
 such acci- tion of the problem thus stated is possible, or rather 
 nlbiur^'"^'^^ t * 11'^] tliat there * is no promblem at all {ti). No 
 la 1 1 y- reason is apparent for not 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 reasonable man to be angry 
 without inquiry. He will not assume, in a case admit- 
 ting of doubt, that his neighbour harmed him by de- 
 sign or negligence. And one cannot see why a man is 
 to be made an insurer of his neighbour against harm 
 which (by our hypothesis) is no fault of his own. For 
 the doing of a thing 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 (x). If we go far back enough, indeed, we shall 
 lind 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 for- 
 [ * 118] feiture of the offending object * which had 
 
 (ii) This, at any rate, is the view of modern juries: see Nichols 
 r. Marsland (1875) L. E. 10 Ex. at p. 256; Holmes v. Mather, 
 ih. at p. 262. 
 
 (x) Trespass for assault by striking the plaintiff -with a stick 
 thrown by the defendant. Plea, not guilty. The jury were di- 
 rected that, in the absence of evidence for what purpose the de- 
 fendant threw the stick, they might conclude it was for a proper 
 purpose, and the .striking the plaintiff was a mere accident for 
 which the defendant was not answerable: Alderson v. Wai.stell 
 (1844) 1 C. & K. 358 (before Eolfe B.). This, if it could be ac- 
 cepted, would prove more than is here contended for. But it is 
 evidently a rough and ready summing-up given without refer- 
 ence to the books. 
 
 (2424) 
 
AMERICAN CASES ON ACCIDENT. 91 
 
 moved, as it was said, to a man's death, under the 
 name of deodand. But this is a matter of history, not 
 of modern legal policy. So much we may concede, 
 that when a man's act is the apparent cause of mis- 
 chief, the burden of proof is on him to show that the 
 consequence was not one which by due diligence he 
 could have prevented {y). 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. 
 
 We believe that our modern law supports the view Apparent 
 now indicated as the rational one, that inevitable acci- conflict of 
 dent is not a ground of liability. But there is a good authorities. 
 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 Judge O. W. Holmes (0) has put it " acts at his 
 peril." And such was the current opinion of English 
 lawyers until the beginning of this century, if not later. 
 ■On the other hand, it will be seen on careful examina- 
 tion that no actual decision goes the length of the dicta 
 which embodies this opinion. In almost every case the 
 leal question turns out to be of the form of action or 
 pleading. Moreover, there is no trace of any such 
 doctrine (that I can find or hear of at least) in Koman 
 or Continental jurisprudence (a); and this, although 
 * for us not conclusive or even authoritative, [ * 119] 
 is worth considering whenever our own authorities ad- 
 mit of doubt on a point of general principle. And. 
 what is more important for our purpose, the point has 
 
 (y) Shaw C. J. would not concede even this in the leading 
 ' Massachusetts case of Brown v. Kendall, 6 Cush. at p. 297. 
 
 {z) See on the whole of this matter Jlr. Justice Holmes's chap- 
 ter on "Trespass and Negligence.'' 
 
 {a) "Inpunitus est qui sine culpa et dolo malo casu quodam 
 <lamnum committit." Gai. 3. 211. Paulus indeed says (D. 9. 
 2, ad legem Aquiliam, 45, § 4), " Si defendendi mei causa lapi- 
 •dem in adversarium misero, sed non eum sed praetereuntem per- 
 cussero, tenebor lege Aquilia; ilium enim solum qui vim infert 
 ferire conceditur. " But various explanations of this are possi- 
 ble. Perhaps it shows what kind of cases are referred to by the 
 otherwise unexplained dictum of Ulpian in the preceding frag- 
 ment, "in lege Aquilia et levissima culpa venit. " Paulus him- 
 self says there is no iniuria if the master of a slave, meaning to 
 .strike the slave, accidentally strikes a free man: D. 47, 10, de 
 iniuriis, 4. According to the current English theory of the 16th 
 —18th centuries an action on the case would not lie on such 
 &cts, but trespass vi et armis would. 
 
 (2425) 
 
92 
 
 GENERAL EXCEPTIONS. 
 
 been decided in the sense here contended for by Courts 
 of the highest authority in the United States. To 
 these decisions we shall first call attention. 
 
 American 
 decisions: 
 The Nitro- 
 glycerine 
 Case. 
 
 Doctrine of 
 Snpreme 
 Court ; no 
 liability for 
 accidental 
 result of 
 lawful act 
 without 
 negligence. 
 
 ■In the Nitro-glycerine Case (6) the defendants, a 
 firm of carriers, received a wooden case at New York to 
 be carried to California. " There was nothing in its 
 appearance calculated to awaken any suspicion as to its 
 contents," and in fact nothing was said or asked on 
 that score. On arrival 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 business, taken to the defendants' 
 offices (which^they rented from the plaintifP) for exam- 
 ination. A servant of the defendants proceeded to open 
 the case with a mallet and chisel. The contents, being 
 in fact nitroglycerine, 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, in- 
 cluding 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 (namely in 1866) become 
 a generally known article of commerce, nor were its 
 [ * 120] * 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, knowledge or 
 means of knowledge of its dangerous character, and 
 that the case had been dealt with " in the same way 
 that other cases of similar appearance were usually re- 
 ceived and handled, and in the mode that men of pru- 
 dence 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 de- 
 fendants 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 building. 
 
 The Curcuit Court held that 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 
 
 (J) 1.^. Wall. 524 (1872). 
 (2426) 
 
AMERICAN CASES ON ACCIDENT. 93 
 
 and without negligence they were not liable for dam- 
 age caused by the accident (c). " No one is responsi- 
 ble for injuries resulting from unavoidable accident, 
 whilst engaged in a lawful business The meas- 
 ure 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 Court proceeded to cite with approval the case gi-own v 
 of Brown v. Kendall in the Supreme Court of Massa- Kendall 
 <;husetts (d). * There the plaintiff's and the [ * 121] ( Massa- 
 defendant's dogs were fighting: the defendant was beat- cli^setts). 
 ing 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 accidentally hit the plaintiff in the eye, inflicting 
 uponhim a severe injury." The action was trespass for 
 assault and battery. It was held that the act of the 
 defendant ia itself was a lawful and proper act 
 which he might do by proper and safe means;" and 
 ihat if "in doing this act, using due care and all pro- 
 per precautions necessary to the exigency of the case 
 io avoid hurt to others, in raising his stick for that pur- 
 pose he accidentally hit the plaintiff in the eye and 
 wounded him, this was the result of pure accident, or 
 was involuntary and unavoidable (e), 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 tule in its general 
 -form was thus expressed: "If, in the prosecution of a 
 lawful act, a casualty purely accidental arises, no action 
 -can be supported for an injury arising therefrom." 
 
 There have been like decisions in the Supreme Courts other Ameri- 
 •of New York (/) and Connecticut. And these rulings can cases: 
 appear to be accepted as good law throughout the Uni- contrary 
 
 (c) The plaintiff 's proper remedy would have been against the 
 consignor who despatched the explosive without informing the 
 carriers of its nature. See Lyell v. Ganga Dai (1875) Indian 
 Law Rep. 1 All. 60. 
 
 (d) 6 Gush. 292 (1850). 
 
 (e) The cansequencev/as involuntary or rather unintended, though 
 the act itself was voluntary; and it was also unavoidable, ). e., 
 not preventable by reasonable diligence. 
 
 (f) Harvey D. Dunlap, Lalor 193, cited 15 Wall. 539; Morris 
 1}. Piatt, 32 Conn. 75. 
 
 (2427) 
 
94 
 
 GENERAL EXCEPTIONS. 
 
 opinion m 
 Castle V. 
 Daryee (N. 
 Y.). 
 
 ted States (g). The general agreement of American: 
 authority and opinioa is disturbed, indeed, by one re- 
 [ * 122] cent case in the * Court of Appeal of Ne-n^ 
 York, that of Castle v. Duryee (h). But the conflict- 
 ing element is not in the decision itself, nor in any- 
 thing necessary to it. The defendant was the colonel 
 of a regiment of New York militia, who at the time, 
 of the cause of action were firing blank cartridge un- 
 der his immediate orders in the course of a review. 
 The plaintiff was one of a crowd of spectators who 
 stood in front of the firing lifie and about 350 feet from, 
 it. Upon one of the discharges the plaintiff waa 
 wounded by a bullet, which could be accounted for only 
 by one of the men's pieces having by some misadven- 
 ture been loaded with ball cartridge. It appeared that 
 one company had been at target practice an hour or twa 
 before, and that at the end of the practice arms had. 
 been examined in the usual way (i), and surplus, 
 ammunition collected. Moreover, arms had again been, 
 inspected by the commanding ofiicers of companies, in. 
 pursuance of the colonel's orders, before the line was. 
 formed for the regimental parade. The plaintiff sued. 
 the defendant in an action " in the nature of trespass 
 for an assault." A verdict for the plaintiff was ulti- 
 mately afiirmed on appeal, the Court being of opinioa 
 that there was evidence of negligence. Knowing that 
 some of the men had within a short time been in pos- 
 session of ball ammunition, the defendant might well 
 have done more. He might have cleared the front of 
 the line before giving orders to fire. The Court might 
 further have supported its decision, though it did not, 
 by the cases which show that more than ordinary care, 
 nay "consummate caution" (j), is required of persons 
 dealing with dangerous weapons. The Chief Judga 
 [ * 123] added that, as the injury * was the result of 
 an act done by the defendant's express command, the 
 question of negligence was immaterial. But this waa 
 only the learned judge's individual opinion. It was 
 not necessary to the decision, and there is nothing t» 
 show that the rest of the Court agreed to it (A;). 
 
 (g) Cooley on Torts, 80. 
 
 (h) 2 Keys, 169 (1865). 
 
 (i) It will be remembered that tMs was in the days of muzzle- 
 loaders. A like accident, however, happened quite" lately at an 
 Aldershot field-day, fortunately without hurt to any one. 
 
 (j) Erie, C. J. obiter, in Potter v. Faulkner, 1 B. & S. at p. 
 805; Dixon v. Bell, 5 M. & S. 198. 
 
 (k) The reporter adds this significent note: "The Court did 
 not pass upon the first branch of the case, discussed by the Chief 
 (2428) 
 
INEVITABLE ACCIDENT. 95 
 
 "We may now see what the English authorities amount English 
 to. They have certainly been supposed to show that authorities : 
 inevitable accident is no excuse when the immediate re- '^'^^'^^ °^ 
 suit of an act is complained of. Erskine said a century ^^^^^^ ^^^ 
 ago in his argument in the celebrated case of the Dean ^ °° ^^' 
 of St. Asaph (/) (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 
 trespass (m), but he must answer in an action for every- 
 thing he has broken." And Bacon had said earlier to 
 the same purpose,, that " if a man be killed by misad- 
 venture, 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 VIII.'s time, though on [ * 1241 
 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. (a compila- 
 tion of the latter part of the 12th century) (p), 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 il- 
 lustration a view of the law exactly contrary to that 
 which was taken in Brown v. Kendall. But the deci- 
 sion was only that if A. cuts his hedge so that the cut- 
 Judge, as to the question of the general liability of the com- 
 manding officer. ' ' 
 
 (0 21 St. Tr. 1022 (A. D. 1783). 
 
 (m) Would an indictment ever lie for simple trespass? I know 
 not of any authority that it would though the action of trespass 
 originally had, and retained in form down to modem times, a 
 public and penal character. 
 
 (») Maxims of the Law, Reg. 7, following the dictum of Rede 
 J. in 21 Hen. VII. 2S. We cite Bacon, not as a -writer ofauthor- 
 ity, but as showing, like Erskine, the average legal mind of his 
 time. 
 
 (o) O. W. Holmes 103. 
 
 (p) C. 88, i 6. "Si quis in ludo sagittandi vel alicuius ex- 
 ercitii iaculo vel huiusmodi casu aliquem occidat, reddat eum ; 
 legis enim est, qui inscienter peccat, scienter emendet. ' ' 
 
 (q) 6 Ed. IV. 7, pi. 18 ; O. W. Holmes 85 ; cf 21 Hen. VII. 
 27, pi. 5, a case of trespass to goods which does not really raise 
 the question. 
 
 (2429) 
 
96 GENERAL EXCEPTIONS. 
 
 tings ipso invito fall on B.'s land, this does not justify 
 A. in entering on B.'s land to carry them ofP. And by 
 Choke C. J. it is said, not that (as Brian's view would 
 require) A. must keep his thorns from falling on B.'s 
 land at all events, but that "he ought to show that he 
 could not do it in any other way, or that he did all that 
 was in his power to keep them out." 
 
 Weaver «;. Another case usually cited is "Weaver v. Ward {r). 
 
 "Ward. The plaintiff and the defendant were both members of 
 
 a trainband exercising with powder, and the plaintiff 
 was hurt by the accidental discharge of the defendant's 
 piece. • It is a very odd case to quote for the doctrine 
 of absolute liability, for what was there holdeil was that 
 in trespass no man shall be excused, "except it may be 
 judged utterly without his fault; " and the defendant's 
 plea was held bad because it only denied intention, and 
 did not properly bring before the Court the question 
 whether the accident was inevitable. A later case (s), 
 [ * 125] which professes to follow * "Weaver v. "Ward, 
 really departs from it in holding that "unavoidable 
 necessity " must be shown to make a valid excuse. This 
 in turn was apparently followed in the next century, 
 but the report is too meagre to be of any value (<). 
 
 All these, again, are shooting cases, and if they oc- 
 curred at this day the duty of using extraordinary care 
 with dangerous things would put them on a special 
 footing. In the celebrated squib case they are cited 
 and more or less relied upon (m). It is not clear to 
 what extent the judges intended to press them. Ac- 
 cording to "Wilson's report, inevitable accident was al- 
 lowed by all the judges to be an excuse. But Black- 
 stone's judgment, according to his own report, says 
 that nothing but " inevitable necessity " will serve, and 
 
 [r] Hob. 134, A. D. 1616. 
 
 (s) Dickeson v. Watson, Sir T. Jones, 205, A. D. 1682. Lambert 
 v. Bessey, T. Raym. 421, a case of false imprisonment in the same 
 period, cites the foregoing authorities, and Eaymond's opinion 
 certainly assumes the view that inevitable accident is no excuse 
 even when the act is one of lawful self-defence. But then Ray- 
 mond's opinion is a dissenting one: 8. C. nom. Bessey o. Olliot, 
 T. Raym. 467 : being given in the former place alone and with- 
 out explanation, it has apparently been sometimes taken for the 
 judgment of the Court. At most, therefore, his illustrations are 
 evidence of the notions current at the time. 
 
 (0 Underwood v. Hewson, 1 Strange .596, A. D. 1723 (defen- 
 dant was uncocking a gun, plaintiff looking on). It looks very 
 like contributory negligence, or at any rate voluntary exposure 
 to the risk, on the plaintilT's part. But the law of negligence was 
 then quite undeveloped. 
 
 [u] Scott V. Shepherd (1773) 2 W. Bl. 892; 3 Wils. 403. 
 (2430) 
 
INEVITABLE ACCIDENT. 97' 
 
 adopts the argument of Brian in the case of the cut 
 thorns, mistaking it for a judicial opinion; and the other 
 judgments are stated as taking the same line, though 
 less explicitly. For the decision itself the question is 
 hardly material, though Blackstone may be supposed tp 
 represent the view which he thought the more favour- 
 able to his own dissenting judgment. His theory was 
 that liability in "trespass (as distinguished from an ac- 
 tion on the case) is * unqualified as regards [ * 126] 
 the immediate consequences of a man's act, but also is 
 limited to such consequences. 
 
 Then comes Leame v. Bray (x), a comparatively Leame v 
 modern case, in which the defendant's chaise had run Bray, 
 into the plaintiff's curricle on a dark night. The de- 
 fendant was driving on the wrong side of the road ; 
 which of itself is want of due care, as every judge would 
 now tell a jury as a matter of course. The decision was 
 that the proper form of action was trespass and not 
 case. Grose J. seems to have thought inevitable ac- 
 cident was no excuse, but this was extra-judicial. Two 
 generations later, in Rylands v. Fletcher, Lord Cran- 
 worth inclined, or more than inclined, to the same 
 opinion (y). Such is the authority for the doctrine of 
 strictly liability. Very possibly more dicta to the same 
 purpose might be collected, but I do not think any- 
 thing of importance has been left out (z). Although 
 far from decisive, the weight of opinion conveyed by 
 these various utterances is certainly respectable. 
 
 On the other hand we have a series of cases which Cases where 
 appear even more strongly to imply, if not to assert, the exception 
 contrary doctrine. A. and B. both set out in their ves- allowed, 
 sels to look for an abandoned raft laden with goods. 
 A. first gets hold of the raft, then B., and A.'s vessel is 
 damaged by the wind and sea driving B.'s against it. 
 On such facts the Court of King's Bench held in 1770 
 that A. could not maintain trespass, " being of opinion 
 that the * original act of the defendants was not [ * 127] 
 unlawful" (a). Quite early in the century it had been 
 
 (x) 3 East 593 (A. D. 1803). 
 
 (y) L. E. 3 H. L. at p. 341. 
 
 (z) Sometimes the case of James v. Campbell (1832) 5 C. & P. 
 372, is cited in this connexion. But not only is it a Nisi Prius 
 case with nothing particular to recommend it, butit is irrelevant. 
 The facts there alleged were that A. in a quarrel with B. struck 
 C. Nothing shows that A. would have been justified or excused 
 in striking B. And if the blow he intended was not lawful, it 
 was clearly no excuse that he struck the wrong man (p. 29 above, 
 and see R. v. Latimer (1886) 17 Q. B. D. 359). 
 
 (a) Da\'is v. Sanders, 2 Chitty 639. 
 
 7 LAW OF TOETS. (2431) 
 
98 GtENEEAL EXCEPTIONS. 
 
 held that if a man's horse runs away with him, and runs 
 over another man, he is not even prima facie a trespas- 
 ser, so that under the old rules of pleading it was wrong 
 to plead specially in justification (fc). Here however 
 it may be said there was no voluntary act at all on the 
 defendant's part. In Wakeman v. Robinson, a modern 
 running-down case (c), the Court conceded that "if 
 the accident happened entirely without default on the 
 part of the defendant, or blame imputable to him, the 
 action does not lie ;" thinking, however, that on the 
 facts there was proof of negligence, they refused a new 
 trial, which was asked for on the ground of misdirec- 
 tion in not putting it to the jury whether the accident 
 was the result of negligence or not. In 1842 this de- 
 claration of the general rule was accepted by the Court 
 of Queen's Bench, though the decision again was on the 
 form of pleading (d). 
 
 Holmes v. Lastly, we have a decision well within our own time, 
 
 Mather. which, if the judgments were not so expressed as to put 
 
 it on a somewhat narrower ground, would be conclu- 
 sive. In Holmes v. Mather (e), the defendant was out 
 with a pair of horses driven by his groom. The horses 
 ran away, and the groom, being unable to stop them, 
 guided them as best he could; at last he failed to get 
 them clear round a corner, and knocked down the 
 plaintiff. If the driver had not attempted to turn the 
 corner, they would have run straight into a shop front, 
 and (it was suggested) would not have touched the 
 [ * 128] plaintiff at all. The jury * found there was 
 no negligence. Here the driver was certainly acting, 
 for he was trying to turn the horses. And it was 
 argued, on the authority of the old cases and dicta, 
 that a trepass had been committed. The Court refused 
 to take this view, but said nothing about inevitable ac- 
 cident in general. " For the convenience of mankind 
 in carrying on the affairs of life, people as they go 
 along roads must expect, or put up with, such mischief 
 as reasonable care on the part of others cannot 
 avoid (/). Thus it seems to be made a question not 
 only of the defendant being free from blame, but of the 
 accident being such as is incident to the ordinary use 
 
 n) Gibbons v. Pepper, 1 Lord Eaym. 38. 
 
 (c) 1 Bing. 213 (1823). The argument for the defendant seems 
 to have been very well reasoned. 
 
 (d) Hall V. Fearnley, 3 Q. B. 919. The line between this and 
 Gibbons v. Pepper is rather fine. 
 
 (e) L. R. 10 Ex. 261 (1875). 
 (/) Bramwell B. at p. 267. 
 
 (2132) 
 
EXERCISE OF RIGHTS. 99 
 
 of public roads. The same idea is expressed in the 
 judgment of the Exchequer Chamber in Eylands v. 
 Fletcher, where it is even said that all the cases in 
 which inevitable accident has been held an excuse can 
 be explained on the principle " that the circumstances 
 were such as to show that the plaintiff had taken that 
 risk upon himself " (g). 
 
 Still Holmes v. Mather carries us a long way towards Conclusion. 
 the position of the Nitro-glycerine Case and Brown r. 
 Kendall. And, that position being in itself, as is sub- 
 mitted, the reasonable one, and nothing really authori- 
 tative standing against it, we seem justified in saying 
 on the whole that these decisions — entitled as they are 
 to our best consideration and respect, though not bind- 
 ing on English courts — do correctly express the com- 
 mon law, and the contrary opinion,- though it has been 
 widely accepted, is erroneous. All this inquiry may be 
 thought to belong not so much to the head of excep- 
 tions 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 * circum- [ * 1 29] 
 stances 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. 
 
 9. — Exercise of Common Rights. 
 
 We have just left a topic not so much obscure in immunity in 
 itself as obscured by the indirect and vacillating treat- exercise of 
 ment of it in our authorities. That which we now take common 
 up is a well settled one in principle, and the difficulties "^ 
 have been only in 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 obviously 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 busi- 
 ness 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 
 
 (g) L. E. 1 Ex. at pp. 286, 287. 
 (2433) 
 
lOO GENERAL EXCEPTIONS. 
 
 other. So if they are shipowners employing 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 competition 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. 
 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 
 [ * 130] we did not, as the price of our own free * ac- 
 tion, abide some measure of inconvenience from the 
 equal freedom of our neighbours. In these matters 
 veniam petimusque damusque vicissim. Hence the rule 
 of law that the exercise of ordinary rights for a lawful 
 purpose and in a lawful 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 in- 
 iuria; a form of words which, like many other Latin 
 phrases and maxims, is too often thought to serve for 
 an explanation, when in truth it is only an abridgment 
 or memoria technica of the things to be explained. It 
 is also of doubtful elegance as a technical phrase, 
 though in general Latin literature miuria no doubt 
 had a sufficiently wide meaning {h). In English usage, 
 however, it is of long standing (i). 
 
 (U) Ulpian wrote: (D. '9. 1, si quadrupes, 1, ^ 3): Pauperies 
 est damnum sine iniuria facientis datum, neo enim potest animal 
 iniuria fecisse, quod sensu caret." This is in a very special con- 
 text, and is I'ar from "warranting the use of " damnum sine in- 
 iuria ' ' a.s a common formula. Being, however, adopted in the 
 Institutes, 4, 9, pr. (with the unidiomatic variant " iniuriam 
 fecisse"), it prohably became, through Azo, the origin of the 
 phrase now current. In Gains 3. 211 (on the lex Aquilia) we 
 read : ' ' Iniuria autem occidere intellegitnr cuius dolo aut culpa 
 id accideret, nee ulla alia lege damnum quod sine iniuria datur 
 reprehenditur. " This shows that " damnum sine iniuria dare " 
 was a correct if not a common phrase: though it could never 
 hare for Gaius or Ulpian the wide meaning of ' ' harm [of any 
 kind] which gives no cause of action. " " Damnum sine iniuria ' ' 
 standing alone as a kind of compound noun, according to the 
 modern use, is hardly good Latin. 
 
 (() Bracton says, fo. 221 a: "Si quis in fundo proprio construat 
 aliquod molendinum, et seetam suam et aliorum viciuorum sub- 
 trahat vicino, facit vicino damnum et non iniuriam." In 11 
 Hen. IV. 47, pi. 21 (see below), "damnum absque ini\u:ia" 
 occurs. 
 
 (2434) 
 
TRADE COMPETITION. 101 
 
 A claBsical illustration of the rule is given by a case The case of 
 in the Year-Book of Henry IV., which has often been Gloucester 
 cited in modern books, and which is still perfectly good ^Traumiur 
 authority (fc). The action was trespass by two mas- '"''''""'■ 
 ters of the * Grammar School of Gloucester [ * 131] 
 against one who had set up a school in the same town, 
 whereby the plaintiffs, having 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 cjuld 
 not be maintained. '■'■Damnum'" said Haukford J. 
 "may be absque iniuria, 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 dis- 
 turbs 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 q ^ j^^^jg 
 Hankford actually came before the Court of Common 
 Pleas a generation later (Z), and Newton C. J: stated the 
 law in much the same terms. Even if the owner of the 
 ancient mill is entitled to sue those who of right ought 
 to grind at his mill, and grind at the new one, he has 
 not any remedy against the owner of the new mill. 
 " He who hath a freehold in the vill may build a mill 
 on his own ground, and this is v?rong to no man." And 
 the rule has ever since been treated as beyond question. 
 Competition is in itself no ground of action, whatever 
 damage it may cause. A trader can complain of his 
 rival only if a definite exclusive right, such as a patent 
 right, or the right to a trade mark, * is in- [ * 132] 
 fringed, or if there is a wilful attempt to damage his 
 business by injurious falsehood (" slander of title") or 
 acts otherwise unlawful in themselves. 
 
 Another group of authorities of the same class is Dio-gino- 
 that which establishes " that the disturbance or removal wells, &c. in 
 
 (fc) Hil. 11 Hen. IV. 47, pi. 21 (a.d. 1410-11). In the course 
 of argument the opinion is thrown out that the education of 
 children is a spiritual matter, and therefore the right of appoint- 
 ing a school-master cannot be tried by a temporal court. The 
 plaintiff tried to set up a quasi franchise as holding an ancient 
 office in the gift of the Prior of Lantone, near Gloucester {sic: 
 probably Llanthony is meant). 
 
 (?) 22 Hen. VI. 14, pi. 23 (a. d. 1443). The school case is 
 cited. 
 
 (2435) 
 
102 
 
 GENERAL EXCEPTIONS. 
 
 a mfin'sown of the soil in a man's own land, though it is the means 
 land. (by process of natural percolation) of drying up his 
 
 neighbour's spring or well, does not constitute the inva- 
 sion of a legal right, and will not sustain an action. 
 And further, that it makes no difference whether the 
 damage arise by the water percolating away, so that it 
 ceases to flow along channels through which it previ- 
 ously found its way to the spring or well; or whether, 
 having found its way to the spring or well, it ceases to 
 be retaijied there" (m). The leading cases are Acton 
 V. Blundell (w), and Chasemore v. Richards (o). In 
 the former it was expressly laid down as the govern- 
 ing 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 within the description of damnum absque 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 
 ing in the usual way, with the result of drying up a 
 well which belonged to the palintiff, and was used by 
 Chasemore v. him to supply his cotton mill. Chasemore v. Richards 
 Eichards. carried the rule a step further in two_ directions. It 
 [ * 133] settled that it makes no difference if the * well 
 or watercourse whose supply is cut off or diminished is 
 ancient, and also (notwithstanding considerable 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 connected 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 for- 
 merly found its way into the river Wandle by under- 
 ground channels, and the supply of water to the plain- 
 tiff's ancient mill, situated on that river, was dimin- 
 ished. 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 
 
 (m) I'er Cur., Ballacorkish Mining Co. v. Harrison (1873) L. E. 
 5 P. C. at p. 61. 
 
 (n) 12 M. & W. 324; 13 L. J. Ex. 289 (1843). 
 (o) 7 H. L. C. 349; 29 L. J. Ex. 81 (1859.) 
 (2436) 
 
USE OP one's own land. 103 
 
 distinction on that score, and held the doctrine of Acton 
 V. Blundell applicable (p). The right claimed by the 
 plaintiff was 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 with 
 the natural and ordinary rights of landowners. These 
 decisions have been generally followed in the United 
 States (q). 
 
 There are many other ways in which a man may use other appli- 
 his own property to the prejudice of his neighbour, and cations of 
 yet no action lies. I have no remedy against a neigh- same prmci- 
 bour 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 [ * 134] 
 so as to shut out his view from that window. But the 
 principle in qiiestion is not confined to the use of pro- 
 perty. It extends to every exercise of lawful discretion 
 in a man's own affairs. A tradesman may depend in 
 great measure on one large customer. This person, for 
 some cause of dissatisfaction, good or bad, or without 
 any assignable cause at all, suddenly withdraws his cus- 
 tom. His conduct may be unreasonable and ill-condi- 
 tioned, and the manifest cause of great loss to the 
 tradesman. Yet no legal wrong is done. And such 
 matters could not be otherwise ordered. It is more tol- 
 erable that some tradesmen should sufPer from the 
 caprice of customers than that the law should dictate to 
 customers what reasons are or are not sufiicient for 
 ceasing to deal with a tradesman. 
 
 But there are cases of this class which are not so ob- Rogers v. 
 Tious. A curious one arose at Calcutta at the time of Eajendro 
 the Indian Mutiny, and was taken up to the Privy Coun- I^^t*- 
 cil. Eajendro Dutt and others, the plaintifl's below, 
 were the owners of the Underwriter, a tug employed in 
 the navigation of the Hoogly. A troopship with Eng- 
 lish 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 extortionate. 
 Captain Rogers, the Superintendent of Marine (who 
 
 (p) Cp., as to the distinction between the " natural user " of 
 land and the maintenance of artificial works, Hurdman v. N. E. 
 E. Co. (1878) 3 C. P. Div. at p. 174 ; and further as to the limits 
 of "natural user," Ballard v. Tomlinson (1885) 29 Ch. Div. 115. 
 
 (?) Cooley on Torts, 580. 
 
 (2437) 
 
104 
 
 GENERAL EXCEPTIONS. 
 
 was defendant in the suit), issued a general order to of- 
 ficers of the Government pilot service that the Under- 
 writer was not to be allowed to take in tow any ves- 
 sel in their charge. Thus the owners not only failed 
 to make a profit of the necessities of the Government 
 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 
 [ * 135] Calcutta held that * these facts gave a cause 
 of action against Captain Rogers, but the Judicial 
 Committee reversed the decision on appeal (r). The 
 plaintifPs had not been prejudiced in 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 
 they shall employ under them, or cooperate with in 
 performing the services for the due performance of 
 which they, are taken into its service. Supposing it 
 had been believed that the Underurriter 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 Gov- 
 ernment to do so ? And is it not equally lawful and 
 right when it is honestly believed that her owners will 
 only render their services on exorbitant terms?" (s). 
 
 It must be taken that the Court thought the order 
 complained of did not, as a matter of fact, amount to 
 an obstruction of the tug-owners' common right of of- 
 fering their vessel to the non-official public for employ- 
 ment. Conduct might easily be imagined, on the part 
 of an officer in the defendant's position, which amount 
 to this. And if it did, it would probably be a cause of 
 action (t). 
 
 "Whether In this last case the harm suffered by the plaintiff in 
 
 malice [ * 136] * the court below was not only the natural, 
 
 material m g^^ apparently the intended consequence of the act com- 
 these cases. ^ 
 
 (r) Rogers v. Eajendro Dutt, 8 Moo. I. A. 103. 
 (s) 8 Moo. I. A. at p. 134. 
 
 (t) See per Holt C. J. in Keeble v. Hickeringill, 11 East at pp. 
 575, 576. 
 
 (2438) 
 
MALICIOUS EXERCISE OP RIGHTS ? 105 
 
 plained of. The defendant however acted from no 
 reason of private hostility, but in the interest (real or 
 supposed) of the public service. Whether the aver- 
 ment and proof of malice, in other words that the act 
 complained of was done with the sole or cljief intention 
 of causing harm to the plaintiff as a private enemy 
 («), would make any difference in cases of this class, 
 does not appear to be decided by any authority in 
 our law. In Eogers i\ Eajendro Dutt the Judicial 
 Committee expressly declined to say what the decision 
 would be if this element were present. In Chasemorti 
 r. Eichards the statement of facts (by an arbitrator) 
 on which the case proceeded expressly negatived any 
 intention to harm the plaintiff. Lord Wensleydale 
 thought (iipparently with reluctance) that the prin- 
 ciple of regarding the presence or absence of such an 
 intention had found no place in our law (x) ; and 
 partly for that reason he would have liked to draw 
 the line of unquestionable freedom of use at purposes 
 connected with the improvement of the land itself; 
 but he gave no authority for his statement. At the 
 same time it must be allowed that he expressed the gen- 
 eral sense of English lawyers, (y). 
 
 The Eoman lawyers on the other hand allowed that uoman 
 "animus vicino nocendi" did or might make a differ- doetrine of 
 ence. In a passage cited and to some extent relied on "animus 
 (in the scantiness, at that time, of native authority) in '^''^cmo ^^ 
 Acton V. Blundell, we read : " Denique Marcellus 
 scribit, cum eo qui in suo fodiens vicini fontem aver- 
 tit, nihil posse agi, *nec de dolo actionem : [ * 137] 
 et sane non debet habere, si non animo vicino nocendi, 
 sed suum agrum meliorem faciendi id fecit " (z). And 
 this view is followed by recognized authorities in the 
 law of Scotland, who s'ay that an owner using his own 
 land must act " not in mere spite or malice, in aemu- 
 lationem vicini " (a). There seems on principle to be 
 much to recommend it. Certainly it would be no an- 
 swer to say, as one is inclined to do at first sight, 
 that the law can regard only intentions and not motives. 
 Por in some cases the law does already regard motive 
 
 («) It is very difficult to say what "malice," as a term of art, 
 really means in any one of its generally similar but not identical 
 uses; but I think the gloss here given is sufficiently correct for 
 the matter in hand. 
 
 (x) 7 H. L. C. at p. 388. 
 
 \y) See Dr. Markby's " Elements of Law," s. 239. 
 
 (z) D. 39, 3, deaqua, 1, M2 (Ulpian). 
 
 (a) Bell's Principles, 966 (referred to by Lord Wensleydale). 
 
 (9439) 
 
106 
 
 Cases of 
 
 similar 
 
 names. 
 
 GENEEAL EXCEPTIONS. 
 
 as distinct froui purpose or intention, as in actions 
 for malicious prosecution, and in the question of privi- 
 leged communications in actions for libel. And also 
 this is really a matter of intention. The motives for 
 a man wishing ill to his neighbour in the supposed 
 case may be infinite: the purpose, the contemplated 
 and desired result, is to do such and such ill to him, 
 to dry up his well, or what else it may be. If our 
 law is to be taken as Lord Wensleydale assumed it 
 to be, its policy must be rested simply on a balance 
 of expediency. Animus vicini nocendi would be very 
 difficult of proof, at all events if proof that mischief 
 was the only purpose were required (and it would 
 hardly do to take less): and the evil of letting a cer- 
 tain kind of churlish and unneighboiu'ly conduct, and 
 even deliberate mischief, go without redress (there being 
 no reason to suppose th« kind a common one,) may well 
 be thought less on the whole than that of encouraging 
 vexatious claims. In Roman law there is nothing to 
 show whether, and how far, the doctrine of Ulpian and 
 Marcellus was found capable of practical application. 
 I cannot learn that it has much effect in the law of 
 [ * 13SJ * Scotland. It seems proper, however, to point 
 out that there is really no positive English authority on 
 the matter. 
 
 Again our law does not in general recognize any ex- 
 clusive right to the use of a name, personal or local. 
 I may 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. The 
 fact that inconvenience arises from the similarity will 
 not of itself constitute a legal injury (6), and allega- 
 tions of pecuniary damage 'will not add any legal effect. 
 " You must have in our law injury as well as damage" 
 (c). 
 
 10. — Leave and Licence. 
 
 Consent or Harm suffered by consent is within limits to be men- 
 
 acceptance tioned, not a cause of civil action. The same is- true 
 
 (?)) See Burgess r. Burgess (185o) 3 D. M. G. 896, a classical 
 ca,se; Du Boulav v. Du Bonlav (1869) L. E. 2 P. C. 430; Day v. 
 Brownrigg (1878) 10 Ch. Div. 294; Street v. Union Bank, '&,c. 
 (1885) 30 Ch. D. 156. 
 
 (c) Jessel M. E. 10 Ch. Div. 304. 
 (2440) 
 
LEAVE AND LICENCE. 107 
 
 where it is met with under conditi9ns manifesting ac- of risk 
 ceptance, on the part of the person suffering it, of the (leave and 
 risk of that kind of harm. The maxim by which the licence). 
 rule is commonly brought to mind is "Volenti non fit 
 iniuria." "Leave and licence" is the current English 
 phrase for the defence raised in this class of cases. On 
 the one hand, however, volenti non fit iniuria is not uni- 
 versally 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 something which, if inflicted against the party's 
 will, would be a wrong, but only * conduct [ * 139] 
 showing that, for one reason or another, he is content 
 to abide the chance of it (d). 
 
 The case of express consent is comparatively rare, in gx^j-ggg 
 our books, except in the form of a licence to enter upon licence. 
 land. It is indeed in this last connexion that we most of - 
 ten hear of " leave and licence," and the authorities mostly 
 turn on questions of the kind and extent of permis- 
 sion to be inferred from particular language or acts 
 (e). 
 
 Force to the person is rendered lawful by consent in Limits of 
 such matters as surgical operations. The fact is com- consent. 
 mon 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 as- 
 sault and battery. With consent it is lawfully done 
 every day. In the case of a person under the age of 
 discretion, the consent of that person's parent or guar- 
 dian is generally necessary and sufficient (/). But 
 consent alone is not enough 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 con- 
 sent 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 punishable 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 
 
 (d) Unless we said that leave points to specific consent to an 
 act, license to general assent to the consequences of acts consented 
 to: but such a distinction seems too ianciful. 
 
 (e) See Addison on Torts, p. 352, 2th ed. ; Cooley on Torts 
 (Chicago, 1880), 303, figq. 
 
 (/) Cp. Stephen, Digest of the Criminal Law, art. 204. 
 
 (24-41) 
 
108 GENERAL EXCEPTIONS. 
 
 [ * 140] into by agreement and without anger or * mu- 
 tual ill-will " (g). " Whenever two persons go out to 
 strike each other, and do so, each is guilty of an as- 
 sault " (h). The reason is said to be that sneh acts are 
 against the peace, or tend to breaches of the peace. 
 But inasmuch as even the slightest direct application of 
 force, if not justified, v?as in the language of pleading 
 vi et artnis and contra pacem, something more than 
 usual must be meant by this expression. The distinc- 
 tion seems to be that agreement will not justify the wil- 
 ful 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. Single-stick 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 man- 
 ner of German students is not lawful, though there be 
 no personal enmity between the men, and though the 
 conditions be such as to exclude danger to life or limb. 
 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 
 [ * 141] will not justify it (*). Neglect of usual * pre- 
 cautions in any pastime known to involve danger would 
 be evidence of wrongful intention, but not conclusive 
 evidence. 
 
 p conev This question was incidentally considered by several 
 of the judges in the recent case of Keg v. Coney (k), 
 where the majority of the Court held that mere volun- 
 
 (ff) Commonwealth v. Collberg (1876) 119 Mass. 350, and 20 
 Am. Kep. 328, where authorities are collected. See also Eeg. v. 
 Coney (1«82) 8 Q. B. D. 534, 53w, 546, 549, 567, and infra. 
 
 (h) Coleridge J. in Reg. v. Lewis (1844) 1 C. & K. at p. 421, 
 cp. Buller N. P. 16. The passage there and elsewhere cited from 
 Comberhaeh, apart from the slender authority of that reporter, 
 is only a dictum. BuUer's own authority is really better. 
 
 (i) Cp. Pulton, De Pace Regis, 17 b. It might be a nice point 
 whether the old English back-swording (see " Tom Brown ") was 
 lawful or not. And quaere of the old rules of Rugby football, 
 which alloA^'ed deliberate kicking in some circumstances. Quaere, 
 also, whether one monk might have lawfully licensed another to 
 beat him by way of spiritual discipline. But anyhow he could 
 not have sued, being civily dead by his entering into religion. 
 
 (k) 8 Q. B. D. 534 (1882). 
 (2442) 
 
LIMITS OF LAWFUL CONSENT. 109 
 
 tary 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 un- 
 lawful, or all persons actually aiding and abetting 
 therein being guilty of assault, notwithstanding that 
 the principals fight by mutual consent. 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 anger, 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 as- 
 sault, and that, an assault being a breach of the peace 
 and unlawful, the consent of the person struck is im- 
 material. If this view is correct a blow struck in a 
 prize-fight is clearly an assault; but playing with sin- 
 glesticks or wrestling do not involve an assault, nor 
 does boxing with gloves in the ordinary way" (I). 
 Stephen J. said: "When one person is indicted for in- 
 flicting personal injury upon another, the consent of 
 the person who sustains 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 circum- [ * 142] 
 stances, 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 com- 
 mon 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, singlestick, 
 sparring with gloves, football, and the like; but in all 
 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 cir- 
 cumstances" (m). These opinions seem equally appli- 
 cable to the rule of civil responsibility (n). 
 
 A licence obtained by fraud is of no effect. This is Licence got- 
 too obvious on the general principles of the law to ten by fraud. 
 need dwelling upon (o). 
 
 (I) 8 Q. B. D. at p. 539. As to the limits of lawful boxing, 
 see Reg v. Orton (1878) 39 L. T. 293. 
 
 (m) 8 Q. B. D. at p. 549. Compare arts. 206, 208 of the learned 
 judge's " Digest of the Criminal Law." The language of art. 
 208 follows the authorities, but I am not sure that it exactly hits 
 the distinction. 
 
 (re) Notwithstanding the doubt expressed by Hawkins J., 8 Q. 
 B. D. at pp. 553, 554. 
 
 (o) A rather curious illustration may be found in Davies v. 
 Marshall (1831) 10 C. B. N. S. 697 ; 31 L. J. C. P. 61; where the 
 
 (2443) 
 
110 GENERAL EXCEPTIONS. 
 
 Extended Trials of strength and skill in such pastimes as those 
 
 meaning of above mentioned ailord, when carried on within lawful 
 rnlenti non fit bounds, the best illustration of the principle by'which 
 """""■ tiie maxim volenti non fit iniuria is enlarged beyond its 
 
 literal meaning. A man cannot complain of harm 
 (within the limits we have mentioned) to the chances 
 of which he has exposed himself with knowledge and 
 of his free will. Thus in the case of two men fencing 
 or playing at singlestick, volenti non fit iniuria would 
 [ * 1431 be assigned by * most lawyers as the govern- 
 ing rule, yet the words must be forced. It is not the 
 will of one player that the other should hit him; his ob- 
 ject is to be hit as seldom as possible. But he is con- 
 tent that the other shall hit him as much as by fair play 
 he can; and in that sense the striking is not against his 
 will. Therefore the "assault" of the school of arms is 
 no assault in law. Still less is there 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. Such too is the case pat in the 
 Indian Penal Code {p) of a man who stands near an- 
 other 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 commonn sense as well asin law. 
 
 Kelation of Many cases of this kind seem to fall as naturally un- 
 these cases to der the exception of inevitable accident, if that excep- 
 ineyitable tion is allowed to the extent contended for above. But 
 acci en . there is, we conceive, this distinction, that where the 
 plaintiff has 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 wood- 
 so-called equitable plea and replication seem to have amounted to 
 a common law plea of leave and license and joinder of issue, or 
 perhaps new assignement, thereon. 
 
 (p) Illust. to s. 80. On the point of actual consent, cf. ss. 87 
 and 88. 
 
 (2444) 
 
TAKING RISK. HI 
 
 man might have avoided it. * A man dealing [ * 144] 
 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 amuse- 
 ment, and the shop is blown up, it seems I shall have 
 no cause of action, even if he was handling his ma- 
 terials unskillfully. This, or even more, is implied 
 in the decision in Ilott v. Wilkes (g), 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 
 inim-ia" was expressly held applicable: "he voluntarily 
 exposes himself to the mischief which has happened" 
 (r ). The case gave rise to much pulDlic excitement, and 
 led to an alteration of the law (s), 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 negligence was ex- 
 pressly raised by the pleadings, the decision is an au- 
 thority 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 and by reason of inevitable accident (i). 
 
 * We now see that the whole law of negli- [ * 145] Distinction 
 gence assumes this principle not to be applicable. , It ^^9^ cases 
 was suggested in Holmes v. Mather (u) that when a ^ence^is^^ ^" 
 competent driver is run away with by his horses, and ground of 
 in spite of all he can do they run over a foot-passenger, action. 
 the foot-passenger is disabled from suing, not simply 
 because the driver has done no wrong, but because peo- 
 ple who walk along a road must take the ordinary risks 
 
 (q) 3 B. & Aid. 304 (1820) ; cp. and dist. the later case of Bird 
 V. Holbrook, 4 Bing. 62y. The argument that since the defend- 
 ant could not have justified shooting a trespasser with his own 
 hand, even after warning, he could not justify, shooting him with 
 a spring-gun, is weighed and found wanting, though perhaps it 
 ought to have prevailed. 
 
 (r) Per Bayley J. 3 B. & A. at p. 311, and Holroyd J. at p. 
 314. 
 
 (s) Edin. Eev. xxxv. 123, 410 (reprinted in Sydney Smith's 
 works). Setting spring-guns, except by night in a dwelling- 
 house for the protection thereof, was made a criminal offence by 
 7 & 8 Geo. 4, c. 18, now repealed and substantially re-enacted 
 (24 & 25 Vict. c. 95, s. 1, and c. 100, s. 31). 
 
 (t) Holmes v. Mather (1875) L. E. 10 Ex. at p. 267 ; Eylands 
 V. Fletcher (1866) L. E. 1 Ex. at p. 287. 
 
 (u) L. E. 10 Ex. at p. 267. 
 
 (2445) 
 
112 GENERAL EXCEPTIONS. 
 
 of traffic. But if this were so, why stop at misadven- 
 ture without negligence ? It is common knowledge that 
 not all drivers are careful. It is known, or capable of 
 being known, that a certain percentage are not careful. 
 The actual risk to which a man crossing the street is 
 exposed (apart from any carelessness on his own part) 
 is that of pure misadventure, and also that of careless 
 driving, the latter element being probably the greater. 
 If he really took the whole risk, a driver would not be 
 liable to him for running over him by negligence: which 
 is absurd. Are we to say, then, that he takes on him- 
 self the one part of the risk and does not take the other ? 
 A reason thus artificially limited is no reason at all, but 
 a mere fiction. It is simpler and better to say plainly 
 that the driver's duty is to use proper and reasonable 
 care, and beyond that he is not answerable. The true 
 view, we submit, is that the doctrine of voluntary ex- 
 posure to risk has no application as between parties on 
 an equal footing of right, of whom one does not go 
 out of his way more than the other. Much the same 
 principle has in late years been applied, and its limits 
 discussed, in the special branch of the law which deals 
 with contributory negligence. This we shall have to 
 consider in its place (v). 
 
 [ * 146] * 11. — Works of necessity. 
 
 Works of ^ class of exceptions as to which there is not much 
 
 necessity. authority, but which certainly exists in every system of 
 law, is that of acts done of necessity to avoid a greater 
 harm, and on that ground justified. Pulling down 
 houses to stop a fire (a;), and casting goods overboard, 
 or otherwise sacrificing property, to save a ship or the 
 lives of those on board, are the regular examples. The 
 maritime law of general average assumes, as its very 
 foundation, that the destruction of property under such 
 conditions of danger is justifiable (y). It is said also 
 that " in time of war one shall justify entry on another's 
 land to make a bulwark in defence of the king and the 
 
 (v) See Gee r. Metropolitan R. Co. (1873) Ex. Ch. L. R. 8 Q. B. 
 161 ; Eobson v. N". E. R. Co. (1875) L. R. 10 Q. B. at p. 274 ; and 
 per Bramwell L. J. (not referring to these authorities, and tak- 
 ing a somewhat different view), Lax v. Corporation of Darling- 
 ton (1879) 5 Ex. D. at p. 35. 
 
 (x) Dyer, 36 b. 
 
 (y) Mouse's case, 12 Co. Rep. 63, is only just worth citing as 
 an illustration that no action lies. 
 (2446) 
 
PRIVATE DEFENCE. 113 
 
 kingdom." In these cases the apparent wrong "sounds 
 for the public good" (z). There are also circumstances 
 in which a man's property or person may have to be 
 dealt with promptly for his own obvious good, but his 
 consent, or the consent of any one having lawful au- 
 thority over him, cannot be obtained in time. Here it 
 is evidently justifiable to do what needs to be done, in 
 a proper and reasonable manner of course. It has never 
 been supposed to be even technically a trespass if I 
 throw water on my neighbor's goods to save them from 
 fire, or seeing his house on fire, enter on his land to help 
 in putting it out (a). Nor is it an assault for the first 
 * passer-by to pick up a man rendered insen- [ * 147] 
 sible by an accident, or for a competent surgeon, if he 
 perceives that an operation ought forthwith to be per- 
 formed to save the man's life, to perform it without 
 waiting for him to recover consciousness and give his 
 consent These works of charity and necessity must be 
 lawful as well as right. Our books have only slight 
 and scattered hints on the subject, probably because no 
 question has ever been made (6). 
 
 12. — Private defence. 
 
 Self-defence (or rather private defence (c), for de- Self-defence. 
 fence of one's self is not the only case) is another ground 
 of immunity well known to the law. To repel force by 
 force is the common instinct of every creature that has 
 means of defence. And when the original force is un- 
 lawful, this natural right or power of man is allowed, 
 nay approved, by the law. Sudden and strong resist- 
 ance to unrighteous attack is not merely a thing to be 
 tolerated; in many cases it is a moral duty. Therefore 
 
 (z) Kingsmill J. 21 Hen. VII. 27, pi. 5 ; cp. Dyer, uM supra. 
 In 8 Ed. IV. 23, pi. 41, it is thought doubtful whether the jus- 
 tification should be by common law or by special custom. 
 
 (a) Goodwill without real necessity would not do ; there must 
 be danger of total loss, and, it is said, without remedy for the 
 owner against any person, per Rede C. J. 21 Hen. VII. 28, pi. 5 ; 
 but if this be law, it must be limited to remedies against a tres- 
 passer, for it cannot be a trespass or a lawful act to save a man's 
 goods according as they are or are not insured. Cp. Y. B. 12 
 Hen. VIII. 2, where there is some curious discussion on the 
 theory of trespass generally. 
 
 (b) Cf. the Indian Penal Code, s. 92, and the powers given to 
 the London Fire Brigade by 28 & 29 Vict. c. 90, s. 12, which 
 seem rather to assume a pre-existing right at common law. 
 
 (c) This is the term adopted in the Indian Penal Code. 
 
 8 LAW OF TOETS. (2447) 
 
114 
 
 GENERAL EXCEPTIONS. 
 
 Killing of 
 animals in 
 defence of 
 property. 
 
 it would be a grave mistake to regard self-defence as a 
 necessary evil suffered by the lavr because of the hard- 
 ness of men's hearts. The right is a just and perfect 
 one. It extends not only to the defence of a man's ovyn 
 person, but to the defence of his property or possession. 
 And what may be lawfully done for oneself in this re- 
 gard may likewise be done for a wife or husband, a 
 [ * 148] parent or child, a master or * servant (d). At 
 the same time no right is to be abused or made the cloak 
 of wrong, and this right is one easily abused. The law 
 sets bounds to it by the rule that the force employed 
 must not be out of proportion to the apparent urgency 
 of the occasion. We say apparent, fur a man cannot 
 be held to form a precise judgment under such condi- 
 tions. The person acting on the defensive is entitled 
 to use as much force as he reasonably believes to be 
 necessary. Thus it is not justifiable to use a deadly 
 weapon to repel a push or a a blow with the hand. It 
 is even said that a man attacked with a deadly weapon 
 must retreat as far as he safely can before he is justified 
 in defending himself by like means. But this probably 
 applies (so far as it is the law) only to criminal liability 
 (e). On the other hand if a man presents a pistol at 
 my head and threatens to shoot me, peradventure the 
 pistol is not loaded or is not in working order, but I 
 shall do no wrong before the law by acting on the sup- 
 position that it is really loaded and capable of shoot- 
 ing. 
 
 Cases have arisen on the killing of animals in de- 
 fence of one's property. Here, as elsewhere, the test is 
 whether the party's act was such as he might reason- 
 ably, in the circumstances, think necessary for the pre- 
 vention of harm which he was not bound to suffer. Not 
 very long ago the subject was elaborately discussed in 
 New Hampshire, and all or nearly all the authorities, 
 [ * 149] English and American, * reviewed (/). Some 
 
 (d) Blackstone iii. 3 ; and see the opinion of all the Justices of 
 K. B., 21 Hen. VII. 39, pi. 50. There has been some doubt 
 whether a master could justify on the ground of the defence of 
 his servant. But the practice and the better opinion have al- 
 ways been otherwise. Before the Conquest it was understood 
 that a lord might fight in defence of his men as well as they in 
 his. LI. Alf c. 42, ? 5. 
 
 (e) See Stephen, Digest of Criminal Law, art. 200. Most of 
 the authority on this subject is in the early treatises on Pleas of 
 the Croivn. 
 
 (/) Aldrich v. Wright (1873) 53 N. H. 398 ; 16 Am. Rep. 339. 
 The decision was that the penalty of a statute ordaining a close 
 time for minks did not apply to a man who shot on his own land, 
 (2448) 
 
DEFENCE AND NECESSITY. 115 
 
 of these, such as Deane v. Clayton (g), turn less on 
 what amount of force is reasonable in itself than on the 
 question whether a man is bound, as against the owners 
 of animals which come on his land otherwise than as of 
 right, to abstain from making the land dangerous for 
 them to come on. And in this point of view it is im- 
 material whether a man keeps up a certain state of 
 things on his own land for the purpose of defending 
 his property or for any other purpose which is not ac- 
 tually unlawful. 
 
 As to injuries received by an innocent third person 
 from an act done in self-defence, they must be dealt 
 with on the same principle as accidental harm proceed- 
 ing from any other act lawful in itself. It has to be 
 considered, however, that a man repelling imminent 
 danger cannot be expected to use as much care as he 
 would if he had time to act deliberately. 
 
 Some of the dicta in the well-known case of Scott v. Injury to 
 Shepherd (h) go the length of suggesting that a man third persons 
 acting on the spur of the moment under "compulsive ^°™ '''J*^^ °^ 
 necessity " (the expression of De Grey 0. J.) is excus- 
 able as not being a voluntary agent, and is therefore 
 not bound to take any care at all. But this appears 
 very doubtful. In that case it is hard to believe that 
 Willis or Byal, if he had been * worth suing [ * 150] 
 and had been sued, could have successfully made such 
 a defence. They " had a right to protect themselves 
 by removing the squib, but should have taken care " — 
 at any rate such care as was practicable under the cir- 
 cumstances — " to do it in such a manner as not to en- 
 damage others " (i). The Roman lawyers held that a 
 man who throws a stone in self-defence is not excused 
 if the stone by misadventure strikes a person other than 
 the assailant (k). Perhaps this is a harsh opinion, but 
 it seems better, if the choice must be made, than hold- 
 ing that one may with impunity throw a lighted squib 
 across a market-house full of people in order to save a 
 
 in the close season, minks which he reasonahly thought were in 
 pursuit of his geese. Compare Taylor app. Newman resp. (1863) 
 4 B. & S. 89. 
 
 (g) 7 Taunt. 489, the case of dog-spears, where the Court was 
 equally divided (1817); Jordin v. Crump (1841) 8 M. & W. 782, 
 where the Court took the view of Gibb C. J. in the last case, on 
 the ground that setting dog-spears was not in itself illegal. 
 Notice, however, was pleaded. 
 
 (h) 2 W. Bl. 892. 
 
 h) Blackstone J. in his dissenting judgment. 
 
 (k) D. 9. 2, ad 1. Aquil. 45, H; SMpra, p. 118. 
 
 (2449) 
 
116 GENERAL EXCEPTIONS. 
 
 stall of gingerbread. At all events a. man cannot 
 justify doing for the protection of his own property a 
 deliberate act whose evident tendency is a cause, and 
 which does cause, damage to the property of an innocent 
 neighbour. Thus if flood water has come on my land 
 by no fault of my own, this does not entitle me to let it 
 off by means which in the natural order of things cause 
 it to flood an adjoining owner's land (l). 
 
 13. — Plaintiff a wrong-doer. 
 
 Harm siif- Language is to be met with in some books to the ef- 
 
 fejod hj a feet that a man cannot sue for any injury suffered by 
 T'^Tt?']" ' tim at a time when he is himself a wrongdoer. But 
 ■\Yhc4lier any there is no such general rule of law. If there were, 
 special disa- one consequence would be that an occupier of land (or 
 bility. even a fellow-trespasser) might beat or wound a tres- 
 
 [ * 151] passer without being * liable to an action, 
 whereas the right of using force to repel trespass to 
 land is strictly limited; or if a man is riding or driving 
 at an incautiously fast pace, anybody might throw 
 stones at him with impunity. In Bird v. Holbrook (m) 
 a trespasser who was wounded by a spring-gun (after 
 the passing of the Act which made the setting of spring- 
 guns unlawful) was held entitled to maintain his action. 
 And generally, " a trespasser is liable to an action for 
 the injury which he does; but he does not forfeit his 
 right of action for an injury sustained " (n). It does, 
 not appear on the whole that a plaintiff is disabled from 
 recovering by reason of being himself a wrong-doer, 
 unless some unlawful act or conduct on his own part is 
 connected with the harm suffered by him as part of the 
 same transaction : and even then it is difficult to 
 find a case where it is necessary to assume any special 
 rule of this kind. It would be no answer to an action 
 for killing a dog to show that the owner was liable to 
 a penalty for not having taken out a dog licence in due 
 time. If, again, A. receives a letter containing defama- 
 tory statements concerning B., and reads the letter aloud 
 in the presence of several persons, he may be doing 
 
 (1) Whalley v. Lane, and Yorkshire R. Co. (1884) 13 Q. B. Div. 
 131 , distinguishing the case of acts lawful in themselves which 
 are done by way of precaution against an impending common 
 danger. 
 
 (to) 6Bing. 628. Cp. p. 144 above. 
 
 («) Barnes v. Ward (1850) 9 C. B. 392; 19 L. J. C. P. 195. 
 (2450) 
 
WHERE PLAINTIFF A WRONG-DOER. 117 
 
 wrong to B. But this will not justify or excuse B. if 
 he seizes and tears up the letter. A. is unlawfully pos- 
 sessed of explosives which he is carrying in his pocket. 
 B., walking or running in a hurried and careless man- 
 ner, jostles A. and so causes an explosion. Certainly 
 A. cannot recover against B. for any hui-t he takes by 
 this, or can at most recover nominal damages, as if he 
 had received a harmless push. But would it make any 
 diiference if A 's possession were lawful? Suppose 
 there were no statutory regulation at all: still a man 
 going about with sensitive explosives in * his [ * 152] 
 pocket would be exposing himself to an unusual risk 
 ojjvious 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 ans- 
 werable care, even as regards one who had brought him- 
 self 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 
 submitted, is an unwarrantable extension of the term, 
 founded on a misapprehension of the true meaning and 
 reasons of the doctrine ; as if contributory negli- 
 gence were a sort of positive wrong for which a man is 
 to be punished, This, however, we shall have to con- 
 sider 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 now under considera 
 tion. Almost every case that can be put seems to fall 
 just as well, if not better, under the principle that a 
 plaintiff who has voluntarily exposed himself to a known 
 risk cannot recover, or the still broader rule that a de- 
 fendant is liable only for those consequences of his acts 
 which are, in the sense explained in a former chapter 
 (o), natural and probable. 
 
 In America there has been a great question, upon „ „. . ,. 
 which there have been many contradictory decisions, opinion in 
 whether the violation of statutes against Sunday travel- United 
 ling is in itself a bar to actions for injuries received in States in 
 the course of such travelling through defective condi- S^®^^ 
 tion of roads, negligence of railway companies, and the traveling. 
 like. In Massachusetts it has been held that a plaintiff 
 in such circumstances cannot recover, although the ac- 
 cident might just as well have * happened on [ * 153] 
 
 (o) P. 32 above. 
 (2451) 
 
118 
 
 GENERAL EXCEPTIONS. 
 
 Cause of 
 action 
 connected 
 with unlaw- 
 ful agree- 
 ment. 
 
 a journey lawful for all purposes. These decisions 
 must be supported, if at all, 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 (p). 
 
 It is a rule not confined to actjons 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 " (q) : but its ap- 
 plication 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. 
 
 (p) Sutton i). Town of Wauwatosa (Wisconsin, 1871) Bigelow 
 L. C. 711, and notes thereto, pp. 721-2; Cooley on Torts, 156. 
 (2) Maule J., Fivaz v. Nicholls (1846) 2 C. B. 501, 512. 
 (2452) 
 
(119) 
 
 * CHAPTEE V. [ * 154] 
 
 OF REMEDIES FOE TORTS. 
 
 At common law there were only two kinds of redress Diversity of 
 for an actionable wrong. One was in those cases — ex- remedies, 
 ceptional 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). Not that a suitor might not obtain, in a proper 
 case, other and more effectual redress than money com- 
 pensation; but he could not have it from a court of 
 common law. Specific orders and prohibitions in the 
 form of injunctions or otherwise were (with few excep- 
 tions, if any) (b) in the hand of the Chancellor alone, 
 and the principles according to which they were granted 
 or withheld were counted among the mysteries of 
 Equity. But no such distinctions exist under the system 
 of the Judicature Acts, and every branch of the Court 
 has power to administer every remedy. Therefore we 
 have at this day, in considering one and the same 
 * jurisdiction, to bear in mind the manifold [ * 155 
 forms of legal redress which for our predecessors were 
 separate and unconnected incidents in the procedure of 
 different courts. 
 
 Remedies available to a party by his own act alone Self-help. 
 may be included, after the example of the long estab- 
 lished 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 
 
 (a) Possession could be recovered, of course, in an action of 
 ejectment. But this was an action of trespa.ss in form only. In 
 substance it took the place of the old real actions, and it is some- 
 times called a real action. Detinue was not only not a substan- 
 tial exception, but hardly even a formal one, for the action was 
 not really in tort. 
 
 (6) I do not think any of the powers of the superior courts of 
 common law to issue specific commands {e.g. mandamus) were ap- 
 plicable to the redress of purely private wrongs, though they 
 might be available for a private person wronged by a breach of 
 public duty. Under the Common Law Procedure Acts the sup- 
 erior courts of common law had limited powers of granting in- 
 junctions and administering equitable relief. These were found 
 of little importance in practice, and there is now no reason for 
 dwelling on them. 
 
 (2453) 
 
120 
 
 REMEDIES FOE TORTS. 
 
 Judicial 
 
 remedies: 
 
 damages. 
 
 SO, for there is no questian of remedy in such a case. 
 We are allowed to repel force by force " not for the re- 
 dress 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 pur- 
 pose. 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 complete 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, dis- 
 tress of cattle damage feasant, and abatement of nui- 
 sances. Peaceable re-entry upon land where there has 
 been a wrongful change of possession might be added 
 to the list; but it hardly occurs in modern experience. 
 Analogous to the right of retaking goods is the right 
 of appropriating or retaining debts under certain con- 
 ditions; and various forms of lien are more or less 
 analogous to distress. These, however, belong to the 
 domain of contract, and we are not now concerned with 
 [ * 156] them. Such * are the species of remedial self- 
 help recognized in the law of England. In every case 
 alike the right of the parly is subject to the rule that 
 no greater force must be used, or damage done to prop- 
 erty, 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 
 considered 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, 
 from remedies by the act of the party to remedies by 
 the 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 imme- 
 diately see, this right is not necessarily a valuable one. 
 
 (e) This is well noted in Cooley on Torts, 50. 
 
 (d) Cp. Elackstone, Bk. iii. c. 1. 
 
 (e) It is hardly needful to refer the reader for fuller illustra- 
 tion of the subject to so well known a work as " Mayne on Dam- 
 
 (2454) 
 
DAMAGES. 121 
 
 His title to recover is a conclusion of law from the 
 facts determined in the cause. How much he shall re- 
 cover is a matter 'of judicial discretion exercised, if a 
 jury tries the cause, by the jury under the guidance of 
 the judge. As we have had occasion to point out in a 
 former chapter (/), the rule as to "measure of dam- 
 ages" is laid down by the Court and applied by the 
 jury, whose application of it is, td a certain extent, sub ■ 
 ject to review. The grounds on which the verdict of a 
 jury may be set aside are 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 which opinions and estimates may 
 fairly diifer) (g), but that the jury did * not [ * 157] 
 exercise a due judicial discretion at all. Among these 
 grounds are the awarding of manifestly excessive or 
 manifestly inadequate damages, such as to imply that 
 the jury disregarded, either by excess or by defect, the 
 law laid down to them as to the elements of damage to 
 be considered (h), or, it may be, that the verdict repre- 
 sents a compromise between jurymen who were really 
 not agreed on the main facts in issue (i). 
 
 Damages may be nominal, ordinary, or exemplary. Nominal 
 Nominal damages are a sum of so little value as com- damages. 
 pared with the cost and trouble of suing that it may be 
 said to have " no existence in point of quantity " (fc), 
 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 contume- 
 lious 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 ground 
 that the harm he suffered was worth suing for, or that 
 his own conduct had been such that whatever he did 
 suffer at the defendant's hands was morally deserved. 
 The former state of things, where the verdict really 
 
 (/) P. 27 above. 
 
 Iff) The principle is familiar. See it stated, e.g. 5 Q. B. Div. 
 85. 
 
 (ft) PhUlips V. L. & S. W. R. Co. (1879) 5 Q. B. Div.,78, where, 
 on the facts shown, a verdict for 7000?. was set aside on the 
 ground of the damages being insufficient. 
 
 (i) Falvy V. Stamford (1874) L. R. 10 Q. B. 54. 
 
 (k) Maule J. 2 C. B. 499. 
 
 (3455) 
 
122 KEMEMES FOR TORTS. 
 
 operates as a simple declaration of rights between the 
 parties, is most commonly exemplified in afetions of tres- 
 pass brought to settle disputed claims to rights of way, 
 [ * 158] 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 disappro- 
 val of his conduct (1). 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 plaintift 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 substan- 
 tial compensation (m). This has happened more than 
 once in actions against the publishers of newspapers 
 which were famous at the time, but have not found a 
 place in the regular reports. 
 
 The enlarged power of the Court over costs since the 
 Nominal Judicature Acts has made the nominal damages, which, 
 damages under the old procedure, were described as " a mere 
 possible only pgg qjj ■n'hich to hang costs " (w), much less important 
 solute rio-ht" ^^^^ i^ formerly was. But the possibility of recovering 
 is infringed. [ * 159] * nominal damages is still a test, to a certain 
 extent, of the nature of the right claimed. Infringe- 
 ments 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 esti- 
 mable at any substantial sum at all. As Holt C. J. said 
 
 (Z) Under the various statutes as to costs whicli were in force 
 before the Judicature Acts, 40.s. was subject to a few exceptions, 
 the least amount of damages which carried costs without a spe- 
 cial certificate from the judge. Frequently juries asked before 
 giving their verdict what was the least sum that would carry 
 costs: the general practice of the judges was to refuse this infor- 
 mation. 
 
 (m) Kelly V. Sherlock (1866) L. R. 1 Q. B. 686, is a case of 
 this kind where, notwithstanding that the libels sued for were 
 very gross, the jury gave a farthing damages, and the Court, 
 . though not satisfied with the verdict, refused to disturb it. 
 
 (n) By Maule J. (1846), in Beaumont v. Greathead, 2 C. B. 
 499. Under the present procedure costs are in the discretion of 
 the Court; the costs of a cause tried by jury follow the event 
 (without regard to amount of damages) unless the judge or the 
 Court otherwise orders: Order LXV. r. 1, &c. The eflfect of the 
 Judicature Acts and Rules of Court in abrogating the older stat- 
 utes was settled in 1878 by Garnett r'. Bradley, 3 App. Ca. 944. 
 A cketch of the history of the subject is given in Lord Black- 
 burn's judgment, pp. 932, sqq. 
 
 (2456) 
 
NOMINAL BAM AGES. 123 
 
 in a celebrated passage of his judgment in Ashby v. 
 "VNhite (o), '• a damage is not merely pecuniary, but an 
 injury imports a damage, when a man is thereby hin- 
 dered 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 cuff on the ear, though it cost 
 him nothing, no not so much as a little diachylon, yet 
 h^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 his property, and the other has no right 
 to come there." 
 
 On the other hand, there are cases even in the law of Cases 
 property where, as it is said, damage is the gist of the where dam- 
 action, and there is not an absolute duty to forbear '^S" i^ ^^'^ 
 from 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 surface and 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 ac- 
 tion arises for me (p). Negligence, * again, [ * 160] 
 is a cause of action only for a person who sufPers 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 suf- 
 fered damage by acting on the false statement made to 
 him by the defendant (q). In all these cases there can 
 be no question of nominal damages, the proof of real 
 damage being the foundation of the plaintiff's right. 
 It may happen, of course, that though there is real 
 
 (o) 2 Lord Raym. at p. 955. 
 
 (p) Backhouse v. Bonomi (1861) 9 H. L. C. 503; Mitchell tJ. 
 Darley Main Colliery Co. (1885) 11 App. Ca. 127. 
 
 (q) Pontifex v. Bignold, 3 M. & G. 63, is sometimes quoted as 
 if it were an authority that no actual damage is necessary to sus- 
 tain an action of deceit. But careful examination will show that 
 it is fai from deciding this. 
 
 (2457) 
 
124 
 
 REMEDIES FOR TOBTS. 
 
 Peculiarity 
 of law of de- 
 famation. 
 
 Ordinary 
 damages. 
 
 damage there is not much of it, and the •verdict is ac- 
 cordingly 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 be 
 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. 
 
 In the law of slander we have a curiously fine line 
 between absolute and conditional title to a legal rem- 
 edy; some kind of spoken defamation being actionable 
 without any allegation or proof of special damage (in 
 which case the plaintiff is entitled to nominal damages 
 [ * 161] at least), and * others not; while as to written 
 words no such distinction is made. The attempts of 
 text-books to give a rational theory of this are not satis- 
 factory. Probably the existing condition of the law is 
 the result of some obscure historical accident (r). 
 
 Ordinary damages are a sum awarded as a fair meas- 
 ure of 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 him- 
 self (s). Such amount is not necessarily that which it 
 would cost to restore the plaintiff to his former condi- 
 tion. "Where a tenant for years carried away a large 
 quantity of valuable soil from his holding, it was de- 
 cided 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 (t). 
 In other words compensation, not restitution, is the 
 proper test. Beyond this it is hardly possible to lay 
 down any universal rule for ascertaining the amount, 
 the causes and circumstances of actionable damage be- 
 ing infinitely various. And in particular classes of 
 cases only approximate generalization is possible. In 
 proceedings for the recovery of specific property or its 
 
 (r) See more in Ch. VII. below. 
 
 (s) A jury has been known to find a verdict for a greater sum 
 than was claimed, and the judge to amend the statement ordaim 
 to enable himself to give judgment for that greater sum. But 
 this is an extreme use of the power of the Court, justifiable only 
 in an extraordinary case. 
 
 {t) Whitham v. Kershaw (1855-6) 16 Q. B. Div. 613. 
 (2458) 
 
MEASURE OP DAMAGES. 126 
 
 value there is not so much difficulty in assigning a 
 measure of damages, though here too there are un- 
 settled points (?(). But in cases of personal injury 
 and consequential damage by loss of gains in a busi- 
 ness or profession * it is not possible either [ * 102] 
 completely to separate the elements of damage, or to 
 found the estimate of the whole on anything like an 
 exact calculation (x). There is little doubt that in 
 fact the process is often in cases of this class even a. 
 rougher one than it appears to be, and that legally 
 irrelevant circumstances, such as the wealth and condi- 
 tion 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. 
 
 One step more, and we come to cases where there is Exemplary- 
 great injury without the possibility of measuring com- damages. 
 pensation by any numerical rule, and juries have been 
 not only allowed but encouraged 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 vin- 
 dictive. The kind of wrongs to which they are appli- 
 cable are those which, besides the violation of a right 
 or the actual damage, import insult or outrage, and so 
 are not merely injuries but inmrice in the strictest Ro- 
 man sense of the term. The Greek u(ipcq perhaps de- 
 notes with still greater exactness the quality of the acts 
 which are thus treated. An assault and false impris- 
 onment under colour of a pretended right in breach of 
 the general law, and against the liberty of the sub- 
 ject (y); a wanton trespass on land, persisted in with 
 violent and intemperate behaviour (z) ; the seduction of 
 
 (u) See Mayne on Damages, c. 13. 
 
 (x) See the summing-up of Field J. in Phillips r. L. & S. "W. 
 E. Co. (1879) 5 Q. B. Div. 78, which wa? in the main approved 
 by the Court of Appeal. 
 
 (y) Huckle v. Money (1763) 2 Wils. 205, one of the branches 
 of the great case of general -warrants: the plaintiff -vvas detained 
 about six hours and civilly treated, " entertainened with beef- 
 steaks and' beer," but the jury was upheld in giving 3001. dama- 
 ges, because "it was a most daring public attack made upon the 
 liberty of the subject." 
 
 (2) Merest v. Harvey (1814) 5 Taunt. 442: the defendant was 
 drunk, and passing by the plaintifi's land on which the plaintiif 
 was shooting, insisted, -with oaths and threats, in joining in the 
 sport; a verdict passed for 500?., the full amount claimed, and it 
 was laid down that juries ought to be allowed to punish insult 
 by exemplary damages. 
 
 (2459) 
 
126 REMEDIES FOR TORTS. 
 
 [ * 163] a * man's daughter with deliberate fraud, or 
 otherwise under circumstances" of aggravation (a) ; 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 per- 
 haps be added; but there it is rather that no de- 
 finite principle of compensation can be laid down 
 than that damages can be given which are distinctly 
 not compensation. It is not found practicable to in- 
 terfere with juries either way (&), unless their verdict 
 shows manifest mistake or improper motive. There are 
 other miscellaneous examples of an estimate of dama- 
 ges coloured, so to speak, by disapproval of the de- 
 fendant'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 ac- 
 tion for trespass to land or goods substantial damages 
 may be recovered though no loss or diminution in 
 value of property may have occurred (c). In an ac- 
 tion for negligently pulling down buildings to an ad- 
 jacent 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 " (d). 
 
 [ * 164] * " It is universally felt by all persons who 
 have had occasion to consider the question of compen- 
 sation, 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 neg- 
 ligent, which is accompanied with expressions of inso- 
 lence. I do not say 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 in- 
 
 (a) Tnllidge v. "Wade (1769) 3 "Wils. 18: "Actions of this sort 
 are brought for example's sake." 
 
 (ft) See Forsdike v. Stone (1868) L. E. 3 C. P. 607, where a 
 verdict for Is. was not disturbed, though the imputation was a 
 gross one. 
 
 (c) Per Denman C. J. in Ex. Ch., Eogers v. Spence, 13 M. & 
 "W. at p. 581. 
 
 (d) Emblen v. Myers (1860) 6 H. & N. 54; 30 L. J. Ex. 71. 
 
 (2460) 
 
DISTINCT CAUSES OF ACTION. 127 
 
 jury and the circumstances with which it is accom- 
 panied" (e). 
 
 The case now cited was soon afterwards referred to 
 by Willes J. as an authority that a jury might give ex- 
 emplary damages, though the action was not in tres- 
 pass, from the character of the wrong and the way in 
 which it was done (/ ) . 
 
 The action for breach of promise of marriage, being Analogy of 
 an action of contract, is not within the scope of this breach of pro- 
 work; but it has curious points of affinity with actions mise of 
 of tort in its treatment and incidents ; one of which is carriage to 
 that a very large discretion is given to the jury as to respect. 
 damages (g). 
 
 As damages may be aggravated by the defendant's Mitigation 
 ill-behavionr or motives, so they may be reduced by of damages. 
 proof of provocation, or of his having acted in good 
 faith : and many kinds of circumstances which will 
 not amount to justification or excuse are for this pur- 
 pose admissible and material. " In all cases where 
 motive may be ground of *aggravation, evi- [ * 165] 
 dence on this score will also be admissible in reduction 
 of damages" (h). For the rest, this is an affair of 
 common knowledge and practice rather than of reported 
 authority. 
 
 causes of 
 action. 
 
 " Damages resulting from one and the same cause of Concurrent 
 action must be assessed and recovered once for all "; t>ut severable 
 but where the same facts give rise to two distinct causes 
 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 vol- 
 untary trespass, but by negligence; therefore where the 
 plaintiff, driving a cab, was run down by a van negli- 
 gently driven by the defendant's servant, and the cab 
 
 (e) Pollock C. B. 6 H. & N. 58; 30 L. J. Ex. 72; C. P. per 
 Bowen, L. J. in Wbitham v. Kershaw (1886) 16 Q. B. Div. at p. 
 618. 
 
 {/) Bell V. Midland E. Co. (1861) 10 C. B. N. S. 287, 307; 30 
 L J C P 273 281 
 
 (g) See, e. g.', Berry v. Da Costa (1866) L. R. 1 C. P. 331; and 
 the last chapter of the present work, ad fin. 
 
 {h) Mayne on Damages, 100 (3rd ed.). 
 
 (2461) 
 
128 
 
 KBMEDIES FOE TORTS. 
 
 was damaged and the plaintiff suffered bodily harm, it 
 was held that after suing and recovering for the dam- 
 age to the cab the plaintiff was free to bring a separate 
 action for the personal injury (i). Apart from ques- 
 tions 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 (k). 
 
 Injunctions. Another remedy which is not, like that of damages, 
 universally applicable, but which is applied to many 
 [ * 166] kinds * of wrongs where the remedy of dam- 
 ages 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 wrong- 
 ful course of action already begun. There is now no 
 positive limit to the jurisdiction of the Court to issue in- 
 junctions, beyond the Court's own view (a judicial view, 
 that is) of what is just and convenient (Z). Practi- 
 cally, however, the lines of the old equity jurisdiction 
 have thus far been in the main preserved. The kindg 
 of tort against which the remedy is commonly sought 
 are nuisances, violations of specific rights of property 
 in the nature of nuisance, such as obstruction of light 
 and disturbance of easements, continuing trespasses, 
 and infringements of copyright and trademarks. In 
 one direction the High Court has, since the Judicature 
 Acts, distinctly accepted and exercised an increased jur- 
 isdiction. It will now restrain, whether by 'final (m) 
 or interlocutory (n) injunction, the publication of a libel 
 or, in a clear case, the oral uttering of slander (o) cal- 
 culated to injure the plaintiff in his business : in inter- 
 locutory proceedings, however, this jurisdiction is exer- 
 cised with caution (n). 
 
 On -what 
 principle 
 granted. 
 
 The special rules and principles by which the Court 
 is guided in administering this remedy can be profita- 
 
 (i) Brunsden v. Humphrey (1884) 14 Q. B. Div. 141, by Brett 
 M. R. and Bowen L. J. , diss. Lord Coleridge C. J. 
 
 (k) Liber homo suo nomine utilem Aquiliae habet actionem : 
 directam enim non habet, quoniam dominus membrorum suorum 
 nemo videtur : Ulpian, D. 9. 2, ad 1. Aquil. 13 pr. 
 
 (0 Judicature Act, 1873, s. 25, sub-s. 8. Per Jessel M. E., 
 Beddow v. Beddow (1878) 9 Ch. D. 89, 93; Quartz Hill &c. Co. o. 
 Beall (1882) 20 Ch. Div. at p. 507. 
 
 (m) Thorley's Cattle Food Co. v. Masaam (1880) 14 Ch. Div. 
 763; Thomas v. Williams, *. 864. 
 
 (n) Quartz Hill Consolidated Gold Mining Co. v. Beall (1882) 
 20 Ch. Div. 501. 
 
 (o) Hermann Loog v. Bean (1884) 26 Ch. Div. 306. 
 (2462) 
 
INJUNCTIONS. 129 
 
 bly discussed only ia connexion with the particular 
 causes of action upon which it is sought. All of them, 
 however, are developments of the one general principle 
 that an injunction * is granted only where [ * 167] 
 damages woulld not be an adequate remedy, and an in- 
 terim injunction only where delay would make it impos- 
 sible or highly difficult to do complete justice at a later 
 stage (p). In practice 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 inter- 
 locutory : the proceedings being treated as final by 
 consent, when it appears that the decision of the inter- 
 locutory question goes to the merits of the whole case. 
 
 In certain cases of fraud (that is, wilfully or reck- Former con- 
 lessly false representation of fact) the Court of Chan- current juris- 
 cery had before the Judicature Acts concurrent jurisdic- diction of 
 tion with the courts of common law, and would award ^^^ equity to 
 pecuniary compensation, not in the name of damages give com- 
 indeed, but by way of restitution or " making the rep- pensation 
 resentation good" (q). In substance, however, the re- ^''^ fraud, 
 lief came to giving damages under another name, and 
 with more nicety of calculation than 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 for- 
 mer position or have his jubt expectation fulfilled, 
 * but only to recover the amount by which he [ * 168] 
 is actually the worse for the defendant's wrong-doing. 
 Any contention of that kind would no doubt be effectu- 
 ally excluded by the authorities in equity; but even 
 without them it would scarcely be a hopeful one. 
 
 Duties of a public nature are constantly defined or Special 
 created by statute, and generally, though not invaria- statutory 
 
 (p) In Mogul Steamship Co. v. M'Gregor, Gow & Co. (1885) 15 
 Q. B. D. 476, the Court refused to grant an interlocutory injunc- 
 tion to restrain a course of conduct alleged to amount to a con- 
 spiracy of rival shipowner.s to drive the plaintiffs' ships out of the 
 China trade. 
 
 (g) Burrowes v. Lock (1805) 10 Ves. 470: Slim v. Croucher 
 (1860) 1 D. F. J. 518; Pecki). Gumey (1871-3) L. R. 13 Eq. 79; 6 
 H L. 377. See under the head of Deceit, Ch. VIII. below. 
 
 (r) Jones v. Gooday (1841) 8 M. & W. 146; 10 L. J. Ex. 275; 
 Wigsell V. School for Indigent Blind (1882) 8 Q. B. D; 357 Whit- 
 ham V. Kershaw (1885-6) 16 Q. B. Div. 613. 
 
 9 LAW OF TOETS. (2463) 
 
130 
 
 BE3IEDIES FOR TORTS. 
 
 remedies, 
 
 when 
 
 exclusive. 
 
 bly, special modes of enforcing them are provided by 
 the same statutes. Questions have arisen as to the 
 rights and remedies of persons who suffer special dam- 
 age 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 statu- 
 tory 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 for penalties to be recovered, wholly 
 or in part, for the use of such person), then it is gen- 
 erally presumed that the remedy so provided was in- 
 tended to be, and is, the only remedy. The provision 
 of a public remedy without any special means of pri- 
 vate compensation is in itself consistent with a person 
 specially aggrieved having an independent right of ac- 
 tion for injury caused by a breach of the statutory duty 
 (s). 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 (t). But the Court of Appeal has re- 
 pudiated any such fixed rule, and has laid down that the 
 [ * 169] possibility or otherwise of * a private right 
 of action for the breach of a public statutory duty must 
 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 pressure in its 
 pipes, under certain public penalties. It was held that 
 an inhabitant of the district served by the company un- 
 der this Act had no cause of action against the com- 
 pany for damage done to his property by fire by reason 
 of the pipes being insufficiently charged. The Court 
 thought it unreasonable to suppose that Parliament in- 
 tended to make the company insurers of all property 
 that might be burnt within their limits by reason of 
 deficient supply or pressure of water (u). 
 
 (s) Ros.s V. Rugge-Price (1876) 1 Ex. D. 269: but qu. whether 
 this case can now be relied on; it was decided partly on the 
 authority of Atkinson v. Newcastle "Waterworks Co. (1871) L. 
 R. 6 Ex. 404, afterwards reversed in the Court of Appeal (see 
 below). 
 
 (t) Couch V. Steel (1854) 3 E. & B. 402; 23 L. J. Q. B. 121. 
 
 (m) Atkinson v. Newcastle Waterworks Co. (1877) 2 Ex. Div. 
 441. Cp. Stevens v. Jeacocke (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. Ives, Cornwall, did not create 
 private rights enforceable by action; Vestry of St. Pancras v. 
 Batterbury (1857) 2 C. B. N. S. 477; 26 L. J. C. P. 243, where 
 (2464) 
 
STATUTORY DUTIES. 131 
 
 Also the harm in respect of which an action is brought No private 
 for the breach of a statutory duty must be of the kind ledresa un^ 
 which the statute was intended to prevent. If cattle less the liarm 
 being carried on a ship are washed overboard for want ^^fhiiTthe 
 of apphances prescribed by an Act of Parliament for mischief 
 purely sanitary purposes, the shipowner is not liable to aimed at by 
 the owner of the cattle by reason of the breach of the ^^^ statute 
 statute ( r) : though he will be liable if his conduct 
 amounts to negligence apart from the statute and with 
 regard to the duty of safe carriage which he has under- 
 taken (x), and in an * action not founded on [ * 170] 
 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 iaot(y). 
 
 Where more than one person is concerned in the com- joint wrong- 
 mission of a wrong, the person wronged has his remedy doers may 
 against all or any one or more of them at his choice. ]"^. ^^'^^ 
 Every wrong-doer is liable for the whole damage, and ^°^"*.^^,°^. 
 it does not matter (as we saw above) (z), whether they ^^^^^ ^' 
 acted, as between themselves, as equals, or one of them 
 as agent or servant of another. There are no degrees 
 
 of responsibility, nothing answering to the distinction i^^". , 
 
 ■ ■ I 1 i i ■•11 • T>, ment against 
 
 in criminal law between principals and accessories. But any is bar to 
 
 when the plaintiif in such a case has made his choice, further 
 
 he is concluded by it. ^ After recovering judgment action. 
 
 against some or one of the joint authors of a wrong, he 
 
 cannot sue the other or others for the same matter, even 
 
 if the judgment in the first action remains unsatisfied. '^''^ • '^ 
 
 By that judgment the cause of action " transit in rem 
 
 iudicatam," and is no longer available (a). 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 Rtiles as 
 has been sued alone and compelled to pay the whole to contri- 
 
 a statutory provision for recovery by summary proceedings was 
 held to exclude any right of action (here, however, no private 
 damage was in question); and Vallance v. Falle (1884) 13 Q. 
 B. D. 109. 
 
 (v) Gorrisi;. Scott (1874) L. R. 9 Ex. 125. 
 
 (x) See per Pollock B. at p. 131. 
 
 (y) Blamires v. Lane, and Yorkshire E. Co. (1873) Ex. Ch. L. 
 E. 8 Ex. 283. 
 
 (z) Page 63. 
 
 (a) Brinsmead v. Harrison (1872) Ex. Ch. L. R. 7 C. P. 547, 
 finally settled the point. It wasformerly doubtful whether judg- 
 ment without satisfaction was a bar. And in the United States 
 it seems to be generally held that it is not: Cooley on Torts, 138, 
 and see L. R. 7 C. P. 549. 
 
 . (2465) 
 
133 KEJIEDIES FOR TORTS. 
 
 bntion and damages has no right to indemnity or contribution 
 indemnity, from the other (&), if the nature of the case is such 
 [ * 171] that he " must * be presumed to have known 
 that he was doing an unlawful act" (c). Otherwise, 
 "where the matter is indifferent in itself," and the 
 wrongful act is not clearly illegal (d), but may have been 
 done in honest ignorance, or in good faith to determine 
 a claim of right, there is no objection to contribution 
 or indemnity being claimed. " Every man who em- 
 ploys another to do an act which the employer appears 
 to have a right to authorize him to do undertakes to in- 
 demnify 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 en- 
 titled to be indemnified by that person against the re- 
 sulting liability to the true owner (e). And persons 
 intrusted with goods as wharfingers or the like who 
 stop delivery in pursuance of their principal's instruc- 
 tions may claim indemnity if the stoppage turns out to 
 be wrongful, but was not obviously so at the time (/). 
 g.In. short, the proposition that there is no contribution 
 between vTTong-doers must be understood to aifect only 
 those who are wrong-doers in the common sense of the 
 word as well as in law. The wrong must be so mani- 
 fest that the person doing it could not at the time rea- 
 sonably suppose that he was acting under lawful autho- 
 rity. Or, to put it summarily, a wrong-doer by mis- 
 adventure is entitled to indemnity from any person 
 under whose apparent authority he acted in good faith ; 
 a wilful or negligent (g) wrong- doer has no claim to 
 [ * 172] contribution or* indemnity. There does not 
 appear any reason why contribution should not be due 
 in some cases without any relation of agency and 
 authority between the parties. If several persons un- 
 dertake in concert to abate an obstruction to a supposed 
 
 (J) Merryweather v. Nixon (1799) 8 T. E. 186, where the doc- 
 trine is too widely laid down. 
 
 (c) Adamson v. Jarvis, 4 Bing. at p. 73. 
 
 }d) Betts V. Gibbins, 2 A. & E. 57. 
 
 (e) Adamson v. Jarvis (1827) 4 Bing. 66, 72. The ground of 
 the action for indemnity may be either deceit or warranty: see at 
 p. 73. 
 
 (/) Betts V. Gibbins (1834) 2 A. & E. 57. - See too Collins r. 
 Evans (Ex. Ch.) 5 Q. B. at p. 830. 
 
 (g) 1 am not sure that authority covers this. But I do not 
 think an agent could claim indemnity for acts which a reasonable 
 man in his place would know to be beyond the lawful power of 
 the principal. See Indian Contract Act, a. 223. 
 (2466) 
 
TRESPASS AND FELONY. 133 
 
 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 maintained, it 
 seems contrary to principle that one of them should be ' 
 
 compellable to pay the whole damages and costs with- 
 out any recourse over to the others. I cannot find, 
 however, that any decision has been given on facts 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. 
 
 It has been currently said, sometimes laid down, and Supposed 
 once or twice acted on as established law, that when rule of tres- 
 the facts affording a cause of action in tort are such as f^^ l)eing 
 to amount to a felony, there is no civil remedy against f(.i^^y^f) ™ 
 the felon (h) for the wrong, at all events before the 
 crime has been prosecuted to conviction And as, be- 
 fore 1870 (i), 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 of ten stated, * that "the trespass [ * 173] 
 was merged in the felony," was substantially 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~.J?he result of the cases in ques- ^£ ^t^^ <!^* ^^ 
 tion is that, although it is difficult to deny that some ,^i^,^^X^ -' - ' 
 such rule exists, the precise extent of the rule, and the J 
 
 reasons of policy on which it is founded, are uncertain, /TTtx- ci* <* *'' 
 and it is not known what is the proper mode of apply- / ^ 
 
 ing it. As to the rule, the best supported version of it y*ti^'*^ ^ 
 appears to be to this effect : Where the same facts ^f,^£C ^'^ 
 amount to a felony and are such as in themselves would. ^^ 
 constitute a civU vyrong, a cause of action for the y^ux '<*/ 
 civil wrong does arise. But the remedy is not . ^/ 
 
 available for a person who might have prosecuted irj t^Ju^^i ; 
 the vn-ong-doer for the felony, and has failed to do so. 
 The plaintiff ought to show that the felon had actually 
 been prosecuted to conviction (by whom it does not 
 
 (ft) 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, e.g. can be recovered from an innocent possessor 
 who has not bought in market overt, whether the thief has been 
 prosecuted or not: Marsh v. Keating (1834) 1 Bing. N. C. 198, 
 217; White v. Spettigue (1845) 13 M. & W. 603; 14 L. J. Ex. 99. 
 In these cases indeed the cause of action is not the offence itself, 
 but something else which, is wrongful because an offence has been 
 committed. 
 
 {€) 33 & 34 Vict. c. 23. 
 
 (2467) 
 
134 
 
 REMEDIES FOR TORTS. 
 
 rule, if in 
 deed it 
 exists. 
 
 matter, nor whether it was for the same specific offence), 
 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 (A;). 
 
 No known It is admitted that when any of these conditions is 
 
 means of en- satisfied there js both a cause of action and a presently 
 forcing the available remedy. But if not, what then ? It is said 
 to be the duty of the person wronged to prosecute for 
 the felony before he brings a civil action; "but by what 
 means that duty is to be enforced, we are nowhere in- 
 formed" (I). Its non performance is not a defence 
 which can be set up by pleading (m), nor is a statement 
 of claim bad for showing on the face of it that the 
 [ * 174] wrongful act * was felonious (n). Neither can 
 the judge nonsuit the plaintiff if this does not appear 
 on the pleadings, but comes out in evidence at the trial 
 (o). It has been suggested that the Court might in a 
 proper case, on the application of the Crown or other- 
 wise, exercise its summary jurisdiction to stay proceed- 
 ings in the civil action (p): but there is no example of 
 this. 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 bank- 
 ruptcy (q), nor, it is conceived, to. executors in the cases 
 where executors can sue. On the whole there is ap- 
 parent in quarters of high authority a strong though 
 not unanimous disposition to discredit the rule as a 
 mere cantilena of text-writers founded on ambiguous 
 or misapprehended cases, or on dicta which themselves 
 were open to the same objections (r). At the same time 
 
 (/i-) See the judgment of Baggallay L. J. in Ex parte Ball (1879) 
 10 Ch. Div. at p. 673. For the difficulties see per Bramwell L. 
 J., ib at p. 671. 
 
 (1) Lush J., "Wells V. Abrahams (1872) L. E. 7 Q. B. at p. 563. 
 
 (m) Blackburn J. ibid. 
 
 (m) Roope V. D'Avigdor (1883) 10 Q. B. D. 412, cp. Midland 
 Insurance Co. v. Smith (1881) 6 Q. B. D. 561. 
 
 (o) Wells t). Abrahams (1872) L. E. 7 Q. B. 554, dissenting 
 from Wellock v. Constantine (1863) 2 H. & C. 146 ; 32 L. /. Ex. 
 285, a very indecisive case, but the nearest approach to an au- 
 thority for the enforcement of the supposed rule in a court of 
 common law. 
 
 (p) Blackburn J. L. E. 7 Q. B. at p. 559. 
 
 (q) £.r parte Ball (1879) 10 Ch. D. 667. 
 
 ()■) See the historical discussion in the judgment of Blackburn 
 J. in Wells v. Abrahams, L. E. 7 Q. B. 560, sqq. And see per 
 Maule J. in Ward v. Lloyd (1843) 7 Scott N. E. 499, 507, a case 
 of alleged compounding of felony: "It would be a strong thing 
 to say that every man is bound to prosecute all the felonies that 
 (2468) 
 
LOCAL EXTENT OF JURISDICTION. 135 
 
 it is certain that the judges consulted by the House of 
 Lords in Marsh c Keating (s) thought such a rule ex- 
 isted, though it was not applicable to the case in hand ; 
 and that in Ex parte Elliott (t) it was effectually ap- \ 
 plied to exclude a proof in bankruptcy. 
 
 * Lastly we have to see under what conditions [ * 175] Locality of 
 there may be a remedy in an English court for an act ■wrongful act 
 in the nature of a tort committed in a place outside the '^'J infecting 
 territorial jurisdiction of the court. It is needless to English 
 state formally that no action can be maintained in re- court, 
 spect 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. 
 
 1. The act may be such that, although it may be Acts not 
 wrongful by the local law, it would not be a wrong if wrongful by 
 done in England. In this case no action lies in an English law. 
 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, ac- 
 cording to its own principles, imposes no liability on 
 the person from whom the damages are claimed" (u). 
 
 2. The act, though in itself it would be a trespass by Acta justified 
 the law of England, may be justified or excused by the Ijy local law. 
 local law. Here also there is no remedy in an English 
 
 court (x). And it makes no difference whether the act 
 was from the first justifiable by the local law, or, not 
 being at the time justifiable, was afterwards ratified or 
 excused by a declaration of indemnity proceeding from 
 the local sovereign power. In the well-known case of 
 Phillips V. Eyre (y), where the defendant was governor 
 of Jamaica at the time of the trespasses complained of, 
 an Act of indemnity subsequently passed by the colonial 
 Legislature was held effectual to prevent the defendant 
 
 come to his knowledge; 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 prose- 
 cuting. ' ' 
 
 (s) 1 Bing. N. C. 198, 217 (1834). 
 
 (t) 3 Mont. & A. 110 (1837). 
 
 («) The Halley (1868) L. R. 2 P. C. 193, 304 ; The M. Mox- 
 ham, 1 P. Div. 107. 
 
 (x) Blad's Case, Blad v. Bamfield (1673-4) in P. C. and Ch., 3 
 Swanst. 603-4, from Lord Nottingham's MSS. ; The M. Moxham, 
 1 P. Div. 107. 
 
 (y) Ex. Ch. L. E. 6 Q. B. 1 (1870). 
 
 (2469) 
 
136 REMEDIES FOR TORTS. 
 
 from being liable in an action for assault and false im- 
 [ * 176] prisonment brought in * England. But noth- 
 ing less than justification by the local law will do. 
 Conditions of the lex fori suspending or delaying the 
 remedy in the local courts will not be a bar to the 
 remedy in an English court in an otherwise proper case 
 (z). And our courts would possibly make an exception 
 to the rule if it appeared that by local law there was no 
 remedy at all for a manifest wrong, such as assault and 
 battery committed without any special justification or 
 excuse (a). 
 
 Act wrongful 3. The act may be wrongful by both the law of Eng- 
 by both land and the law of the place where it was done. In 
 
 laws. such a case an action lies in England, without regard 
 
 to the nationality of the parties (6), 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 transitory actions: but 
 it seems to involve matter of real principle, though 
 since the Judicature Acts abolished the technical forms 
 an occasion of re-stating the principle has not yet 
 arisen (c). It cannot well have been the intention of 
 the Judicature Acts to throw upon our courts the duty 
 of trying (for example) an action for disturbing a right 
 to use a stream in Bengal for irrigation, or to float tim- 
 ber down a particular river in Canada ; the result of 
 which would be that the most complicated questions of 
 local law might have to be dealt with liere as matters of 
 fact, not incidentally (as must now and then unavoid^ 
 ably happen in various cases), but as the very substance 
 of this issue {d). 
 
 Judgment [ * 177] * We have stated the law for convenience in 
 
 of Ex. Ch. a series of distinct propositions. But, considering the 
 
 m Phillips V. importance of the subject, it seems desirable also to re- 
 
 ^^' produce the continuous view of it given in the judgment 
 
 [z) Scott V. Seymour (1862) Ex. Ch. 1 H. & C. 219 ; 32 L. J. 
 Ex. 61. 
 
 (a) II. per Wightman and Willes J.T. 
 
 h) Per Cur., The Halley, L. R. 2 P. C. at p. 202. 
 
 (c) See per Lord Cairns, Whitaker v. Forbes (1875) 1 C. P. Div. 
 at p. 52, and the notes to Mostyn v. Fabrigas in Smith's Leading 
 
 (d) It was doubted by James L. J. (since the Judicature Acts) 
 whether the Court could entertain proceedings in respect of an 
 injury done to foreign soil. The M. Moxham (167G) 1 P. Div. at 
 p. 109. The other members of the Court said nothing on this 
 point. 
 
 (2470) 
 
LOCALITY OF WRONGS. 137 
 
 of the Exchequer Chamber delivered by Willes J. in 
 Phillips V. Eyre : — 
 
 " 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 : 
 Doulson I'. Mathews (e) ; and even with respect to those 
 not falling within that description our courts do not un- 
 dertake 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. First, the wrong must be of such a character 
 that it would have been actionable if committed in Eng- 
 land: therefore, in The Halley (/) the Judicial Oom- 
 mittee pronounced against a suit in the Admiralty 
 founded upon a liability by the law of Belgium for col- 
 lision caused by the act of a pilot whom the shipowner 
 was compelled by that law to employ, and for whom, 
 therefore, as not being his agent, he was not responsible 
 by English law. Secondly, the act must not have been 
 justifiable by the law of the place where it was done. 
 Therefore in Blad's Case (g), and Blad v. Bangeld (h), 
 Lord Nottingham held that a seizure in Iceland, au- 
 thorized 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 Eng- [ * 178] 
 lishman, insisted that the seizure was in violation of a 
 treaty between this country and Denmark — a matter 
 proper for remonstrance, not litigation. And in Dobree 
 V. Napier (i), Admiral Napier having, when in the ser- 
 vice 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 under a 
 foreign prince was contrary to English law, and sub- 
 jected him to penalties under the Foreign Enlistment 
 Act. And in Eeg v. Lesley (fc), an imprisonment in 
 Chili on board a British ship, lawful there, was held by 
 Erie C. J., and the Court of Crown cases Eeserved, to 
 
 (e) 4 T. R. 503 (1792: no action here for trespass to land in 
 Canada). The student will bear in mind that Phillips v. Eyre 
 (1870) was before the Judicature Acts. 
 
 (/) L. E. 2 P. C. 193 (1868). 
 
 tg) 3 Swanst. 603. , 
 
 h) 3 Swanst. 404. 
 
 (i) Bing. N. C. 781 (1836). 
 
 (k) Bell C. C. 220; 29 L. J. M. C. 97 (1860). 
 
 (2471) 
 
138 REMEDIES FOR TORTS. 
 
 be DO ground for an indictment here, there being no in- 
 dependent 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 
 clear that, if the foreign law touches only the remedy 
 or procedure 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 ex- 
 tinguishes the right it is a bar in this country equally 
 as if the extinguishment had been by a release of the 
 party, or an act of our own Legislature. This distinc- 
 tion is well illustrated on the one hand by Huber v. 
 Steiner (I), where the French law of five years' pre- 
 scription was held by the Court of Common Pleas to be 
 no answer in this country to an action upon a French 
 promissory note, because that law dealt only with pro- 
 cedure, and the time and manner of sut (tempus et 
 viodum actionis instituendae) , and did not affect to de- 
 stroy the obligation of the contract {valorem contrac- 
 [ * 179] tus; and on the * other hand by Potter v. 
 Brown {in), 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 gen- 
 eral rule laid down by Lord Mansfield in Ballantine v. 
 Golding (n), and ever since recognized, that 'what is a 
 discharge of a debt in the Qountry where it is contracted 
 is a discharge of it everywhere.' So that where an ob- 
 ligation 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 
 ex delicto to pay damages is discharged and avoided by 
 the law of the country where it was made, the accessory 
 * right of action is in like manner discharged and avoid- 
 ed. Cases may possibly arise in which distinct and in- 
 dependent rights or liabilities or defences are created 
 by positive and specific laws of this country in respect 
 of foreign transactions; but there is no such law (unless 
 it be the Governors Act already discussed are disposed 
 of) applicable to the present case." 
 
 Limitation The times in which actions of tort must be brought 
 
 of actions. 1 
 
 {I) 2 Bing. N. C. 202. 
 Im) 5 East 124. 
 
 (m) Cooke's Bankrupt Law, 487. 
 (2472) 
 
LIMITATION OF ACTIONS. 139 
 
 are fixed by the Statute of Limitation of James I. (21 
 Jac. 1, c. 16) as modified by later enactments (o). No 
 general principle ia laid down, but actionable wrongs 
 are in effect divided into three classes, with a different 
 term of limitation 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, according to the modern construction and 
 practice: — 
 
 * Six years. [ * 180] 
 
 Trespass to land and goods, conversion, and all other 
 common law wrongs (including libel) except slander 
 by words actionable per se (p) and injuries to the per- 
 son. 
 
 Four years. 
 
 Injuries to the person (including imprisonment). 
 
 Tivo years. 
 Slander by words actionable per se. 
 
 Persons who at the time of their acquiring a cause of Suspension 
 action are infants, married women, or lunatics (g), have of the statute 
 the period of limitation reckoned against them only ^J disabili- 
 from the time of the liability ceasing; and if a defend- *^^' 
 ant 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 to be beyond seas for this 
 purpose (q). If one cause of disability supervenes on 
 another unexpired one (as where a woman marries under 
 age), the period of limitation probably runs only from 
 the expiration of the latter disability (r). 
 
 "Where damage is the gist of the action, the time runs 
 only from the actual happening of the damage (s). 
 
 (o) See the text of the statutes, Appendix C. 
 
 (_p) See Blake Odgers, Digest of Law of Libel, 455-6. 
 
 (q) Plaintiffs imprisoned or being beyond the seas had the same 
 right by the statute of James I. , but this was abrogated by 19 & 
 20 Vict. c. 97 (the Mercantile Law Amendment Act, 1826), s. 10. 
 The existing law as to defendants beyond seas is the result of 4 & 
 5 Ann. c. 3 [al. 16], s. 19, as explained by 19 & 20 Vict. c. 97, s. 
 12. As to the retrospective effect of s. 10, see Pardo v. Bingham 
 (1869) 4 Ch. 735. 
 
 (r) Cp. Borrows v. Ellison (1871) L. R. 6 Ex. 128 (on the Real ' 
 Property Limitation Act, 3 & 4 Wm. 4, c. 27) ; but the language 
 of the two statutes might be distinguished. 
 
 («) Backhouse v. Bonomi (1861) 9 H. L. C. 503; 34 L. J. Q. B. 
 181 ; Barley Main Colliery Co. v. Mitchell (1886) 11 App. Ca. 127, 
 affliming S. C. 14 Q. B. Div. 125. 
 
 (2473) 
 
140 RE3IEDIES FOR TORTS. 
 
 rrotection of Justices of the peace (t) and constables (u) are pro- 
 justices, [ * 181] tected * by general enactments that actions 
 w>nstables, against them for anything done in the execution of 
 their office must be brought within six months of the 
 act complained of. 
 
 The enforcement of statutory duties is often made 
 subject by the same Acts which create the duties to a 
 short period of limitation. These provisions do not 
 really belong to our subject, but to various particular 
 branches of public law.* 
 Exception of The operation of the Statute of Limitation is further 
 concealed subject to the exception of concealed fraud, derived from 
 fraud. j.]jg doctrine and practice of the Court of Chancery, 
 
 which, whether it thought itself bound by the terms 
 of the statute, or only acted in analogy to it (x), con- 
 siderably modified its literal application. Where a 
 wrong-doer fraudulently conceals his own wrong, the 
 period of limitation runs only from the time when the 
 plaintiff discovers the truth, or with reasonable dili- 
 gence would discover it. Such is now the rule of the 
 Supreme Court in every branch of it and in all causes 
 
 (y)- 
 
 It has often been remarked that, as matter of policy, 
 the periods of limitation fixed by the statute of James 
 are unreasonably long for modern usage; but modern 
 legislation has done nothing beyond removing some of 
 the privileged disabilities. 
 
 Conclusion of ^Ve have now reviewed the general principles which 
 Oeneral are common to the whole law of Torts as to liability, as 
 
 Part. ^Q exceptions from liability, and as to remedies. In the 
 
 following part of this work we have to do with the sev- 
 eral distinct kinds of actionable wrongs, and the law 
 peculiarly applicable to each of them. 
 
 (t) 11 & 12 Vict. c. 44, s. 8. 
 
 (u) 24 Geo. 2, c. 44, s. 8. 
 
 tx) See 9 Q. B. Div. 68, per Brett L. J. 
 
 (y) Gibbs v. Guild (1883) 9 Q. B. Div. 59, wbicb makes the 
 equitable doctrine of general application without regard to the 
 question whether before the Judicature Acts the Court of Chan- 
 cery would or would not have had jurisdiction in the case. 
 (2474) 
 
(141) 
 
 * Book II. [ * 182] 
 
 SPECIFIC W^RONGS. 
 
 CHAPTEE VI. 
 
 PERSONAL WRONGS. 
 
 I. — Assault and Battery. 
 
 Secueitt for the person is among the first conditions of Preliminary, 
 civilized life. The law therefore protects us, not only 
 against actual hurt and violence, but against every kind 
 of bodily interference and restraint not justified or ex- 
 cused by allowed cause, and against the present appre- 
 hension of any of these things. The application of un- 
 lawful force to another constitutes the wrong called 
 battery; an action which puts another in instant fear of 
 unlawful force, though no force be actually applied, is 
 the wrong called assault. The wrongs are likewise in- 
 dictable offences, and under modern statutes can be 
 dealt with by magistrates in the way of summary juris- 
 diction, which is the kind of redress most in use. Most 
 of the learning of assault and battery, considered as 
 civil injuries, turns on the determination of the occa- 
 sions and purposes by which the use of force is justi- 
 fied. The elementary notions are so well settled as to 
 require little illustration. 
 
 " The least touching of another in anger is a battery" what shall 
 (a) ; * " for the law cannot draw the line be- [ * 183] be said a 
 tween different degrees of violence, and therefore totally battery, 
 prohibits the first and lowest stage of it ; every man's 
 person being sacred, and no other having a right to 
 meddle with it in any the slightest manner" (6). It is 
 immaterial not only whether the force applied be suffi- 
 cient in degree to cause actual hurt, but whether it be 
 of such a kind as is likely to cause it. Some interfer- 
 
 (a) Holt C. J., Cole v. Turner (1705) 6 Mod. 149, and Bigelow 
 T P 218 
 (6) Blackst. Comm. iii. 120, 
 
 (3475) 
 
142 PERSONAL WRONGS. 
 
 ences 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 
 missle (d). 
 
 What an Battery includes assault, and though assault strictly 
 
 assault. means an inchoate battery, the word is in modem usage 
 
 constantly made to include battery. No reason appears 
 for maintaining the distinction of terms in our modern 
 practice: and in the draft Criminal Cope of 1879 "as- 
 sault " 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 threat- 
 ening by any act or gesture to apply such force to the 
 person of another, if the person making the threat 
 [ * 184] causes the other to believe (e) * upon reason- 
 able 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, or presenting a gun at him at a distance to 
 which the gun will carry, or pointing a pitchfork at 
 him, standing within the reach of it, or holding up 
 one's fist at him, or drawing a sword and waving it in a 
 menacing manner " (g). The essence of the wrong is 
 
 (c) R. V. Cotesworth, 6 Jlod. 172. 
 
 (d) Pursell v. Home (1838) 3 N. & P. 564 (throwing water at a 
 ■ person is assault; if the water falls on him as intended, it is bat- 
 tery also). But there is much older authority, see Eeg. Brev. 
 3 08 h, a ^vrit for throwing ' ' quendam liquorem calidum' ' on the 
 plaintiff: " casus erat huiusmodi praecedentis brevis: quaedam. 
 mulier proiecit super aliam mulierem ydromellum quod anglice 
 dicitur worte quod erat nimis calidum." 
 
 (e) One might expect, ' ' believes or causes, ' ' &c. ; but this would 
 be an extension of the law. No assault is committed by present- 
 ing a gun at a man who cannot see it, any more than by forming 
 an intention to shoot at him. 
 
 _ ( f) Criminal code (Indictable Offences) Bill, s. 203. Mr. Jus- 
 tice Stephen's definition in his Digest (art. 241) is more elaborate; 
 and the Indian Penal Code has an extremely minute definition of 
 " using force to another " (s. 349). As Mr. Justice Stephen re- 
 marks, if legislators begin defining in this way it is hard to see 
 what they can assume to be known. 
 
 (g) Bacon Abr. "Assault and Battery," A; Hawkins P. C. i. 
 110. 
 
 (2476) 
 
ASSAULT. 143 
 
 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 real present ability to 
 do the harm threatened. Thus it may be an assault to 
 present an unloaded fire-arm (h), or even, it is appre- 
 hended, anything that look's like * fire-arm. So if a 
 man is advancing upon another with apparent intent to 
 strike him, and is stopped by a third person before he 
 is actually within striking distance, he has committed 
 an assault (i). * Acts capable in themselves [ * 185] 
 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 sword 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 inten- 
 tion of actually striking (fc). 
 
 Hostile or unlawful intention is necessary to consti- ExcnsaWe 
 tute an indictable assault; and such touching, pushing, acts. 
 or the like as belongs to the ordinary conduct of life, 
 and is free from the use of unnecessary force, is neither 
 an ofPence nor wrong. " If two or more meet in a nar- 
 row passage, and without any violence or design of 
 harm the one touches the other gently, it will be no bat- 
 tery" (l). The same rule holds of a crowd of people 
 going into a theatre or the like {m). Such accidents 
 are treated as inevitable, and create no right of action 
 even for nominal damages. In other cases an inten- 
 tional touching 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 
 
 (h) R. V. James (1844) 1 C. &K. 530, is apparently to the con- 
 trary. Tindal C. J. held that a man could not be convicted of an 
 attempt to discharge a loaded fire-arm under a criminal statute, 
 nor even of an assault, if the arm is (as by defective priming) not 
 in a state capable of being discharged; but this opinion (also 
 held by Lord Abinger, Blake v. Barnard, 9 C. & P. at p. 628) is 
 against that of Parke B. in E. v. St. George (1840) 9 C. & P. 483, 
 493, which would almost certainlv be followed at this day. 
 
 (0 Stephens D. Myers, 4 C. & P. 349; Bigelow L. C. 217. A 
 large proportion of the authorities on this subject are Nisi Prius 
 cases (cp. however Read v. Coker (1853) 13 C. B. 850; 22 L. J. 
 C. P. 201): see the sub-titlespf Assault under Criminal Law and 
 Trespass in Fisher's Digest. Some of the dicta, as might be ex- 
 pected, are in conflict. 
 
 (k) Tubervilleu. Savidge (1669) 1 Mod. 3. 
 
 (?) Holt C. .T., Cole.t). Turner, 6 Mod. 149. 
 
 (m) Steph. Dig. Cr. Ldw, art. 241, illustrations. 
 
 (2477) 
 
144 PERSONAL WRONGS. 
 
 force for this purpose, though it does not seem to en- 
 tail criminal liability where no actual hurt is done, pro- 
 bably makes the act civilly wrongful (n). 
 
 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 
 [ * 186] under * any circumstances, though it is said 
 that a contrary opinion formerly prevailed : 
 
 " For Meade's case proves, oi'my Report's in fault, 
 That singing can't be reckoned an assault " (p) 
 
 \ 
 
 There is little direct authority on the point, but no 
 doubt is possible. 
 
 Consent, or in the common phrase "leave and 
 licence," will justify many acts which would other- 
 wise be assaults (g), 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 them- 
 selves, or unwarrantably dangerous. To the authori- 
 ties already cited (r) under the head of General Excep- 
 tions we may add Hawkins' paragraph on the matter. 
 
 " It seems to be the better opinion that a man is in 
 no danger of such a forfeiture [of recognizances for 
 keeping the peace] from any hurt done to another by 
 playing at cudgels, or such like sport, by consent, be- 
 cause the intent of the parties seems no way unlawful, 
 but rather commendable, and tending mutually to pro- 
 mote activity and courage. Yet it is said that he who 
 wounds another in lighting with naked swords does in 
 [ * 187] strictness forfeit such £ * recognizance, be- 
 
 (») Coward v. Baddeley (1859) 4 H. &. N. 478; 28 L. J. Ex. 
 260. 
 
 (o) Jones V. Wylie (1844) 1 C. & K. 257. 
 
 (p) The Circuiteers, by John Leycester Adolphus (the supposed 
 speaker is Sir Gregory Lewin), 1 L. Q. E. 232; Meade's and Belt's 
 ca. 1 Lewin C. C. 184 : "no words or singing are equivalent to an 
 assault," per HolroydJ. Cp. Hawkins P. C. i. 110. For the 
 older view see 27 Ass. 134, pi. 11, 17 Ed. IV. 3, pi. 2, 36 Hen. 
 VI. 20 6, pi. 8. 
 
 (g) Under the old system of pleading this was not a matter of 
 special justification, but evidence under the general issue, an 
 assault by consent being a contradiction in terms : Christopherson 
 V. Bare (148) 11 Q. B. 473; 17 L. J. Q. B. 109. But this has 
 long ceased to be of any importance in England. 
 
 (r) P. 92 above. 
 
 (9478) 
 
SELF-DEFENCE. 145 
 
 cause no consent can make so dangerous a diversion 
 lawful" (s). 
 
 It has been repeatedly held in criminal cases of as- 
 sault that an unintelligent assent, or a consent obtained 
 by fraud, is of no effect (t). The same principles 
 would no doubt be applied by courts of civil jurisdic- 
 tion if necessary. 
 
 When one is wrongfully assaulted it is lawful to re- Selfdefence. 
 pel 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 reason- 
 able and proper to use in the circumstances must always 
 be a question of fact, and as it is incapable of being 
 conchided 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" (m), or that 
 the force used in defence must be not more than "com- 
 mensurate " with that which provoked it (v.) It is 
 obvious, however, that the matter is of much graver 
 importance in criminal than in civil law (x). 
 
 Menace without assault is in some cases actionable. Menace dis- 
 But this is on the ground of its causing a certain special tinguished 
 kind of damage; and then the person menaced need from assault. 
 not be the * person who suffers damage. In [ * 188] 
 fact the old authorities are all, or nearly all, on intimi- 
 dation of a man's servants or tenants whereby he loses 
 their service or dues. Therefore, though under the old 
 forms of action this wrong was of the same genus 
 ■with assault and battery, we shall find it more conve- 
 nient 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 
 
 ______ — — — f 
 
 (s) Hawkins P. C. i. 484'. The Eoman law went even farther 
 in encouraging contests ' ' gloriae causa et virtutis, D. 9. 2, ad 1. 
 Aquil. 7, I 4. 
 
 (/) Cases collected in Fisher's Dig. ed. Mews, 2081-2. Simi- ' 
 larly where 'consent is given to an unreasonably dangerous opera- 
 tion or treatment by one who relies on the prisoner's skill, it does 
 not excuse him from the guilt of manslaughter if death ensues : 
 Commonwealth v. Pierce, 138 Mass. 165, 180. 
 
 (u) Blackst. Comm. iii. 4. 
 
 (v) Eeece v. Taylor, 4 N. & M. 470. 
 
 (x) See Stephen's Digest of the Criminal Law, art. 200, and cp. 
 Criminal Code Bill, ss. 5") — 57. There are many modern Ameri- 
 can decisions, chiefly in the Southern and "Western States. See 
 Cooley on Torts, 165. 
 
 10 LAW OF TOETS. (2479) 
 
146 PERSONAL WRONGS. 
 
 bodily fear he has his remedy, but not a civil one, 
 namely by security of the peace. 
 
 Summary Where an assault is complained of before justices 
 
 proceedings under 24 & 25 Yiot. c. 100, and the complaint has been 
 ^hen a bar to (Jigmigged 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 suifered the sen- 
 tence, as the case may be, no further proceedings either 
 civil or criminal can be taken in respect of the same 
 assault (y). 
 
 II. — False Imprisonment. 
 
 False im- Freedom of the person includes immunity not only 
 
 prisonment. from the actual application of force, but from every 
 kind of detention and restraint not authorized by law. 
 The infliction of such restraint is the wrong or false 
 imprisonment; which though generally coupled with 
 assault, is nevertheless a distinct wrong. Laying on 
 of hands or other actual constraint of the body is not 
 [ * 189] 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 con- 
 finement of the person is an imprisoment, 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 " (z). And when a man is lawfully in a 
 house, it is imprisonment to prevent him from leaving 
 the room in which he is (a). 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. " A prison may have 
 its boundary large or narrow, invisible or tangible, 
 actual or real, or indeed in conception only; it may in 
 itself be moveable or fixed; but a boundary it must 
 
 [y] 24 & 25 Vict. c. 100. ss. 42 — 45; Masper v. Brown (1876) 1 
 C. P. 97, decides that the Act is not confined to suit strictly for 
 the same cause of action, but extends to bar actions by a husband 
 or master for consequential damage : the words of the Act are 
 " same cause," but they are equivalent to "same assault" in the 
 earlier Act, 16 & 17 Vict. c. 30, s. 1, repealed by 24 & 25 Vict. c. 
 95. 
 
 (z) Blackst. Comm, iii. 127. 
 
 (a) Warner v. Eiddiford, 4 C. B. N. S. 180; even if he is disa- 
 bled by sickness from moving at all: the assumption of control 
 is the main thing : Grainger v. Hill (1838) 4 Bing. N. C. 212. 
 (2480) 
 
FALSE IMPRISONMENT. 147 
 
 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 coukl be confined." Otherwise every 
 obstruction of the exercise of a rght of way may be 
 treated as an imprisonment (b). A man is not im- 
 prisoned who has an escape open to him (c) ; 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. 
 
 * When an action for false imprisonment is [ * 190] justification 
 brought and defended, the real question in dispute is of arrest and 
 mostly, though not always, whether the imprisonment imprison- 
 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 
 oui- purpose in this work. We have considered, under 
 the head of General Exceptions (d), the principles 
 on which persons acting in the exercise of special 
 duties and authorities are entitled to absolute or quali- 
 fied immunity. With regard to the lawfulness of arrest 
 and imprisonment in particular, there are divers and 
 somewhat minute distinctions between the powers of a 
 peace-officer and those of a private citizen (e) : of 
 which the chief is that an officer may without a warrant 
 arrest on reasonable suspicion of felony, even though a 
 felony has not in fact been committed, whereas a pri- 
 vate person so arresting, or causing to be arrested, an 
 alleged offender, must show not only that he had reason- 
 able grounds of suspicion but that a felony had actually 
 been committed (/). The modern policeman is a sta- 
 
 (6) Bird v. Jones (1845) 7 Q. B. 742; 15 L. J. Q. B. 82, per 
 Coleridge J. 
 
 (c) Williams J., t J. To the same effect Patteson J.: "Im- 
 prisonment is a total restraint of liberty of person. " Lord Den- 
 man C. J. dissented. 
 
 (d) Ch. IV. p. 92, above. 
 
 (e) Stephen, Dig. Crim. Proc. c. 19; 1 Hist. Cr. Law 193. and 
 see Hogg v. Ward (1858) 3 H. & N. 417; 27 L. J. Ex. 443. 
 
 (/) This applies only to felony : "the law [i. e., common law] 
 does not excuse constables for arresting persons on the reasonable 
 belief that they have committed a misdemeanour :" see GrifiSn v. 
 Coleman (1859) 4 H. & N. 265; 28 L. J. Ex. 134. 
 
 (2481) 
 
148 PERSONAL WRONGS. 
 
 tutory constable having all the powers which a constable 
 has by the common law (g), and special statutory pow- 
 ers for dealing with various particular offences (h). 
 
 Who is Every one is answerable for specifically directing the 
 
 answerable. [ * 191] *arrest or imprisonment of another, as for any 
 other act 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 (i). Nor does it matter whether he acts in his 
 own interest or another's (fc). But one is not answera- 
 ble 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 pro- 
 per 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 " (Z) with regard to 
 the employer's responsibility is in some measure analo- 
 gous. A party who sets the law in motion without 
 making its act his own is not necessarily free from liabil- 
 ity. He may be liable for malicious prosecution ( of which 
 hereafter) ; but he cannot be sued for false imprison- 
 ment, or in a court which has not jurisdiction over cases 
 of malicious prosecutioui^i " The distinction between 
 false imprisonment and malicious prosecution is well 
 illustrated by the case where, parties being before a 
 magistrate, one makes a charge against another, where- 
 upon the magistrate ©rders 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 imprisonment, because he 
 does not set a ministerial officer in motion, but a judicial 
 officer. The opinion and the judgment of a judicial 
 [ * 192] officer are interposed between the * charge 
 and the imprisonment" (to). Where an officer has 
 
 ((/) Stephen. 1 Hist. Cr. Law, 197, 199. As to the common 
 law powers of constables and others to arrest for preservation of 
 the peace, which seem not tree from doubt, see Timothy r. Simp- 
 son (18;j5) 1 C. M. & E. 757; Bigelow L. C. 257, per Parke B. 
 
 (It) Ibid. 200. 
 
 (i) GrifSn v. Coleman, supra. 
 
 (h) Barker v. Braham (1773) 2 W. El. 866 (attorney suing out 
 and procuring execution of void process). 
 
 (0 P. 69, above. 
 
 (m) Willes J., Austin v. Bowling (1870) L. R. 5 C. P. at p. 
 540; West r. Small wood (1838) 3 M. & W. 418; Bigelow L. C. 
 237 ; nor does an action for malicious prosecution lie where the 
 (2482) 
 
REASONABLE CAUSE FOR ARREST. 149 
 
 taken a supposed offender into custody of his own 
 motion, a person who at his request signs the charge- 
 sheet does not thereby make the act his own (/<), 
 any more than one who certifies work done under a con- 
 tract 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 com- 
 plainant, and the charge-sheet signed by him, there the 
 person signing the charge-sheet must answer for the 
 imprisonment as well as the officer (o). 
 
 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 (p). 
 
 What is reasonable cause of suspicion to justify ar- Rrasonahlo 
 rest is — paradoxical as the statement may look — neither and pioba- 
 a question of law nor of fact. Not of fact, because it ^'^^ ^^iiiisc. 
 is for the judge and not for the jury (g); not of law, 
 because " no definite rule can be laid down for the ex- 
 ercise of the judge's judgment " (r). It is a matter of 
 judicial discretion, * such as is familiar enough [ * 193] 
 in the classes of cases which 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 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 (s). But it is too well settled 
 
 judicial officer has held on a true statement of the facts that 
 there is reasonable cause : Hope v. Evered (1886), 17 ii. B. D. 
 338. 
 
 (n) Grinham v. Willey (1859) 4 H. & N. 496; 28 L. J. Ex. 
 242. 
 
 (o) Austin V. Powling (1870) L. E. 5 C. P. 530. Other illus- 
 trations may be found in Addison on Torts, 5th ed. 130, 131. As 
 to the protection of parties issuing an execution in regular course, 
 though the judgment is afterwards set aside on other grounds, 
 see Smith v. Sydney (1870) L. E. 5 Q. B. 203. One case often 
 cited, Flewster v. Eoyle (1808, Lord Ellenborough) 1 Camp. 187, 
 is of doubtful authority : see Gosden v. Elphick (1849) 4 Ex. 445; 
 19 L. J. Ex. 9; and Grinham v.Vfillej, above. 
 
 (p) Lock V. Ashton (1848) 12 Q. B. 871; 18 L. J. Q. B. 76. 
 
 (q) Hailes v. Marks (1861) 7 H. & N. 56; 30 L. J. Ex. 389. 
 
 (r) Lister v. Ferryman (1870) L. E. 4 H. L. 521, 535, per Lord 
 Chelmsford. So per Lord Colonsay at p. 450. 
 
 (s) Lord Campbell in Boughton v. Jackson (1852) 18 Q. B. 
 378, 383; 21 L. J. Q. B. 266; Lord Hatherley, Lord Wastbury, and 
 Lord Colonsay (all familiar with procedure in which there was no 
 jury at all) in Lister v. Ferryman, L. E. 4 H. L. 531, 538, 539. 
 
 (2483) 
 
150 
 
 PERSONAL WRONGS. 
 
 Protection 
 of personal 
 relations. 
 
 to be disturbed unless by legislation. 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 (t); on Jhe other hand, a man is 
 not bound to wait until he is in possession of such evi- 
 dence as would be admissible and sufficient for prosecut- 
 ing the offence to conviction, or even of the best evi- 
 dence which he might obtain by further inquiry. " It 
 does not follow that because it would be very reason- 
 able to make fui'ther inquiry, it is not reasonable to act 
 without doing so" (m). It is obvious, also, that the ex- 
 istence or non-existence of reasonable cause must be 
 judged, not by the event, but by the party's means of 
 knowledge at the time. 
 
 [ * 194] * III. — Injuries in Family Relations. 
 
 Next to the sancity of the person comes that of the 
 personal relations constituting the family. Depriving 
 a husband of the society of his wife, a parent of the 
 companionship 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 ex- 
 tent be said of the relation 'of master and servant, 
 which in modern law is created by contract, but is still 
 regarded for some purposes as belonging to the perma- 
 nent organism of the family, and having the nature of 
 status. It seems natural enough that an action should 
 lie at the suit of the head of a household for enticing 
 away a person who is under his lawfnl authority, be it 
 wife, child, or servant; there may be difficulty in fixing 
 the boundary where the sphere of domestic relations 
 ends and that of pure contract begins, but that is a 
 difficulty of degree. That the same rule should extend 
 to any wrong done to a wife, child, or servant, and fol- 
 lowed as a proximate consequence by loss of their so- 
 ciety 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 
 
 (0 Broughton y. Jackson (1852) 18 Q. B. 378; 21 L. J. Q. B. 
 266; the defendant must show " facts which would create a 
 reasonable suspicion in the mind of a reasonable man, " per Lord 
 Campbell C. J. 
 
 (u) Bramwell B., Perryman v. Lister (1868) L. E. 3. Ex. at p. 
 202, approved by Lord Hatherley, S. C. nom. Lister v. Perryman, 
 L. E. 4 H. L. at p. 533. 
 
 (2484) 
 
LOSS OP SEKVICE. 151 
 
 for awarding exemplary damages. It is equally plain 
 that on general principle a daughter or servant can her- 
 self 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. She cannot 
 complain of that which took place by her own consent. 
 Any diiferent rule would be an 'anomaly; positive legis- 
 lation might introduce it on grounds of moral expe- 
 diency ; the courts, which have the power and the duty 
 of applying known principles to * new cases, [ * 195] 
 but cannot abrogate or modify the principles themselves, 
 are unable to take any such step. 
 
 There seems, in short, no reason why this class of Historical 
 wrongs should not be treated by the common law in a accidents of 
 fairly simple and rational manner, and with results J-^*^ common 
 generally not much unlike those we actually find, only ^^ aeiem- 
 free from ^he anomalies and injustice which flow from 
 disguising real analogies under transparent but cumbrous 
 fictions. But as matter of history (and pretty modern his- 
 tory) the development of the law has been strangely halt- 
 ing and one-sided. Starting from the particular case of a 
 hired servant, the authorities have dealt with other rela- 
 tions,not by openly treating them as analogous in princi- 
 ple, but by importing into them the fiction of actual ser- 
 vice; with the result that in the class of cases most promi- 
 nent in modern practice, namely, actions brought by a 
 parent (or person in loco parentis) 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" (v). 
 
 The common law provided a remedy by writ of tres- Trespass for 
 pass for the actual taking away of a wife, servant, or taking away 
 heir, and perhaps younger child also (x). An action "^i^*^- "^o. and 
 of trespass also lay for wrongs done to the plaintiff 's^^^?^""^^ 
 wife or servant (not to a child as such), whereby he amisii. 
 lost the society of the former or the services of the 
 latter. The language of * pleading was per [ * 196] 
 quod consortium, or servitiuin, amisit. Such a cause of 
 action was quite distinct from that which the husband 
 
 (v) Christian's note on Blackstone iii. 142 is still not amiss, 
 though the amendments of this century in the law of evidence 
 have removed some of the grievances it notes. 
 
 (x) F. N. B. 89 O, 90 H, 911; Blackst. Comm. iii. 139. The writ 
 was de uxore dbducta cum bonis viri sui, or an ordinary writ of 
 trespass (F. N. B. 52 K); a case as late as the Restoration is men- 
 tioned in Bac. Abr. v. 328 (ed. 1832). 
 
 (2485) 
 
152 PERSONAL WRONGS. 
 
 might acquire in right of the wife, or the servant in his 
 own right. The trespass is one, but the remedies are 
 "diversis respectibus " {y). "If my servant is beat, 
 the master shall not have an action for this battery, un- 
 less 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 this 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 servitium, &c. 
 amisit; 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 his action; for be the battery 
 greater or less, if the master doth not lo=e the service 
 of his servant, he shall not have an action " {z). 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 " (a). 
 
 "Criminal Against an adulterer the husband had an action at 
 
 con versa- common law, commonly known as an action of criminal 
 tion. conversation. In form it was generally trespass vi et 
 
 armis, on the theory that " a wife is not, as regards her 
 husband, a free agent or separate person" (6), and 
 [ * 197] therefore her * consent was immaterial, and 
 the husband might sue the adulterer as he might have 
 sued any mere trespasser who beat, imprisoned, or car- 
 ried away his wife against her will. Actions for crimi- 
 nal conversation were abolished in England on the es- 
 tablishment of the Divorce Court in 1857, but damages 
 can be claimed on the same principles in proceedings 
 for a dissolution of marriage or judicial separation (c). 
 In practice these actions were always or almost al- 
 ways instituted with a view of obtaining a divorce by pri- 
 vate Act of Parliament; the rules of the House of 
 Lords (in which alone such bills were brought in) re- 
 
 (y) Y. B. 19 Hen. VI. 45 pi. 94. 
 
 (z) Robert Marys's case, 9 Co. Rep. IIH «. It is held in Os- 
 born V. Gillett (1873) L. E. 8 Ex. 88, that a master shall not 
 have an action for a trespass whereby his servant is killed (cfes. 
 Bramwell B.). It is submitted that the decision is wrong, and 
 Lord Bramwell's dissenting judgment right. See pp. 54, 55, 
 above, 
 
 (a) Blackst. Comm. iii. 140. 
 
 (h) Coleridge J. in Lumley v. Gye (1853) 22 L. J. Q. B. at p. 
 478. Case would also lie, and the common form of declaration 
 was for some time considered to berather case than trespass; Mac- 
 fadzen v. Olivant (1805) 6 East 387. See next note but one. 
 
 (c) 20 & 21 Vict. c. 85, ss.'33, 59. 
 (2486) 
 
ENTICING AWAY SERVANTS. 153 
 
 quiring the applicant to have obtained both the verdict 
 of a juiy in an action, and a sentence of separation a 
 inensa et ioro in the Ecclesiastical Court. 
 
 An action also lay for enticing away a servant (that EnticinK 
 is, procuring him or her to depart voluntarily from the away 
 master's service), and also for knowingly harbouring a servants. 
 servant during breach of service; whether by the com- 
 mon law, or only after and by virtue of the Statute of 
 Labourers (d), is doubtful. Quite modern examples 
 are not wanting (e). 
 
 * Much later the experiment was tried with [ * 198] 
 success of a husband bringing a like action " against 
 such as persuade and entice the wife to live separate 
 from him without a sufficient cause "' (/). 
 
 Still later the action for enticing away a servant, per 
 quod serritium amisit, was turned to the purpose for 
 which alone it may now be said to survive, that of 
 punishing seducers; for the latitude allowed in estimat- 
 ing damages makes the proceeding in substance almost 
 a penal one. 
 
 In this kind of action it is not necessary to prove the Actions for 
 
 existence of a binding contract of service between the seduction in 
 
 plaintiff and the person seduced or enticed awav. The °i<"l"'n 
 u J! J J.- • J.1, " practice: 
 
 presence or absence or seduction m the common sense 
 
 (d) 23 Edw. 3 (a. d. 1.3-19): this statute, passed in consequence 
 of the Blaclc Death, marks a great crisis in the history of English 
 agriculture and laud tenure. As to its bearing on the matter in 
 hand, see the dissenting judgment of Coleridge J. in Lumley v. 
 Gye (1853) 2 E. & B. 216; 22 L. J. Q. B. 463, 4SU. The action 
 was generally on the case, but it might be trespass : c. g., Tul- 
 lidge i'. Wade (1769) o AVils. IS, an action for seducing the plain- 
 tiif's daughter, where the declaration was in trespass ri et armis. 
 How this can be accounted for on principle I know not, short of 
 regarding the servant as a quasi chattel: the difficulty was felt 
 by Sir James Mansfield, Woodward r, Walton (1807) 2 B. & P. 
 K. E. 476,4s2. For a time it seemed the better opinion, how- 
 ever, that trespass w-as the only proper form: ibid., Ditcham v. 
 Bond (1814) 2 JI. & S. 436. It was formally decided as late as 
 1839 (ivithout giving any other reason than the constant practice) 
 that trespass or case might be used at the pleader's option: Cham- 
 berlain V. Hazelwood (1839) 5 M. & W. r)15; 9 L. J. Ex. H7. The 
 only conclusion which can or need at this day be drawn from 
 such fluctuations is that the old system of pleading did not suc- 
 ceed in its professed object of maintaining clear logical distinc- 
 tions between different causes of action. 
 
 (e) Hartley v. Cummings (1847) 5 C. B. 247; 17 L. J. C. P. 84. 
 
 (f) Blackst. Comin. iii. 139; Winsmore v. Greenback (1745) 
 Wiiles.577; Bigelow L. C. 328. It \yas objected that there was 
 no precedent of any such action. 
 
 (2487) 
 
154 PERSONAL WRONGS. 
 
 proof or (whether the defendant "debauched the plaintiff's 
 
 presumption daughter," in the forensic phrase) makes no diiierence 
 of service. in this respect; it is not a necessary part of the cause 
 of action, but only a circumstance of aggravation (/). 
 Whether that element be present or absent, proof of a 
 de facto relation of service is enough; and any fraud 
 vrhereby the servant is induced to absent himself or her- 
 self affords a ground of action, " when once the rela- 
 tion of master and servant at the time of the acts com- 
 plained of is established" (gr). 
 
 [ * 199] * This applies even to an actual contract of 
 hiring made by 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 {h). 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 (i). 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 
 (fc); nor can & daughter, whether of full age or not, 
 who at the time of the seduction is actually another 
 person's servant, so that no part of her services is at 
 her parents' disposal (Z). On the other hand, the fact 
 of a child living witii a parent, or any other person in 
 loco parentis, as a member of the family of which that 
 
 (/) Evans v. Walton (1867) L. K. 3 C. P. 615, ■^vhere it was 
 nnsuccessfnlly contended that the action for seducing a daughter 
 with loss of service as the consequence, and for enticing away a 
 servant, were distinct sjjecies; and that to sustain an action for 
 ' ' enticing away ' ' alone, a hinding contract of service must be 
 proved. 
 
 (g) Willes J. L. R. 2 C. P. 622. 
 
 (A) Speight V. 01i\'iera (1819) 2 Stark. 493, cited with approval 
 hy Montague Smith J., L. E. 2 C. P. 624. 
 
 (0 Harper v. Luffkin (1827) 7 B. &C. 387. This was long be- 
 fore courts of law did or could recognize any capacity of contract- 
 ing in a married woman. 
 
 [k) Manley v. Field (1859) 7 C. B. N. S. 96; 29 L. J. C. P. 79. 
 
 (l) Dean v, Peel (1804) 5 East 45 ; even if by the master's 
 licence she gives occasional help in her parents' work ; Thompson 
 ■V. Eoss (1859) 5H. & N. 16; 29 L. J. Ex. 1; Hedges^. Tagg (1872) 
 L. E. 7 Ex. 283. In the United States it is generally held that 
 actual service with a third person is no bar to the action, unless 
 there is a binding contract which excludes the parents' right of 
 reclaiming the child's services — i.e. that service either (Ze facto or 
 dej'ure will do: Martini'. Payne (Sup. Court N. Y. 1812), Big- 
 low L. C. 286, and notes. " 
 (2488) 
 
SEDUCTION. 155 
 
 person is the head, is deemed enough to support the 
 inference "that the relation of master and servant, de- 
 terminable at the will of either party, exists between 
 them" (m). * And a daughter under age, [ * 200] 
 returning home from service with another person which 
 has been determined, may be deemed to have re-entered 
 the service of her father (n). " The right to the service 
 is sufficient " (o). 
 
 Partial attendance in the parent's house is enough to 
 constitute service, as where a daughter employed else- 
 where in the daytime is without consulting her em- 
 ployer free to assist, and does assist, in the household 
 when she comes home in the evening (p). 
 
 Some loss of service, or possibility of service, must Damages, 
 be shown as consequent on the seduction, since that is, 
 in theory, the ground of action (q) ; but when that con- 
 dition is once satisfied, the damages that may be given 
 are by no means limited to an amount commensurate 
 with the actual loss of service proved or inferred. The 
 awarding of exemplary damages is indeed rather en- 
 couraged than otherwise (r). It is immaterial whether 
 the plaintiff be a parent or kinsman, or a stranger in 
 blood who has adopted the person seduced (&•). 
 
 On the same principle or fiction of law a parent can services of 
 sue in his own name for an injury done to a child liv- young child, 
 ing under his care and control, provided the child is 
 old enough to be capable of rendering service ; other- 
 wise not, for "the gist of the action depends upon the 
 capacity of the child to perform acts of service " (t). 
 
 * The capricious working of the action for [ * 201] Capricious 
 seduction in modern practice has often been the sub- operation of 
 
 the law. 
 
 (m) Bramwell B. in Thompson v. Eoss, last note. 
 
 (re) Terry v. Hutchinson (1868) L. K. 3 Q. B. 599. 
 
 (o) Littledale J. cited with approval by Blackburn J., L. E. 3 
 Q. B. 60-2. 
 
 (p) Eist V. Faux (1863), Ex. Ch. 4 B. & S. 409; 32 L. J. Q. B. 
 386. 
 
 (q) Grinnell v. Wells (1844) 7 M. & G. 1033; 14 L. J. C. P. 19; 
 
 ' Eager v. Grimwood (1847) 1 Ex. 61; 16 L. J. Ex. 236, where the 
 
 declaration -was framed in trespass, it would seem purposely on 
 
 the chance of the court holding that the^er quod servitium amisit 
 
 could be dispensed with. 
 
 (r) See Terry v. Hutchinson, gupra. 
 
 (s) Irwin v. Dearman (1809) 11 East 23. 
 
 (t) Hall V. Hollander (1825) 4 B. & C. 660. But this case does 
 not show that, if a jury chose to find that a very young child was 
 capable of service, their verdict would be disturbed. 
 
 (2489) 
 
156 
 
 PERSONAL WRONGS. 
 
 ject of censure. Thus, Serjeant Manning wrote forty 
 years ago: "the quasi fiction of sefvitium aniisit af- 
 fords protection to the rich man whose daughter occa- 
 sionally makes his tea, but leaves without redress the 
 poor man whose child is sent unprotected to earn her 
 bread amongst strangers " (m). All devices for obtain- 
 ing what is virtually a new remedy by straining old 
 forms and ideas beyond their original intention are lia- 
 ble to this kind of inconvenience. It has been truly 
 said [v) that the enforcement of a substantially just 
 claim " ought not to depend upon a mere fiction over 
 which the courts possess no control." We have already 
 pointed out the bolder 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 legis- 
 lation would also be difScut and troublesome, not so 
 much fi'om 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. 
 
 Constructive -"-^ would be merely curious, and hardly profitable in 
 service in any just proportion to the labour, to inquire how far 
 early cases, the fiction of constructive service is borne out by the 
 old law of the action for beating or carrying away a 
 servant. Early in the 15th 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 {x) : but this is re- 
 [ * 202] ported with a quaere. A generation * later 
 (y) we find Newton C. J. saying that a relation of ser- 
 vice between father and son cannot be presumed: "for 
 he may serve where it pleaseth him, and I cannot con- 
 strain him to serve without his goodwill:" this must 
 apply only to a son of full age, but as to that case 
 Newton's opinion is espress 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 wifb this. But the 
 same Year Book bears them out (as noted by Willes J.) 
 (z) in holding that a binding contract of service need 
 not be shown. Indeed, it was better merely to allege 
 the service as a fact (m servitio suo existentem cepit), 
 
 (h) Note to Grinnell v. Wells, 7 M. & G. 1044. 
 
 (v) Starkie's note to Speight v. Oliviera (1819) 9 Stark. 496. 
 
 (,r) 11 Hen. IV. fo. 1—2, pi. 2, per Huls J. (a.d. 1410). 
 
 (y) 29 Hen. VI. .31 (a.d. 1443). 
 
 is) L. E. 2 C. P. 621-2. 
 
 (2490) 
 
MKNACING SERVANTS OR TENANTS. 157 
 
 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 (a). 
 
 A similar cause of action, but not quite the same, Intimidation 
 was recognized by the mediaeval common law where a of scrvuuts 
 man's servants or tenants at will (b) were compelled "'^'^ tenants. 
 by force or menace to depart from their service or 
 tenure. "There is another writ of trespass," writes 
 Fitzherbert, " against those who 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" (c). Examples of this kind are not un- 
 common down to the sixteenth century or even later: 
 we find in the pleadings considerable variety of circum 
 stance, * which may be taken as expansion or [ * 203] 
 specification of the alia enormia regularly mentioned in 
 the conclusion of the writ (d). 
 
 In the early years of the eighteenth century the 
 genius of Holt found the way to use this, together 
 with other special classes of authorities, as a founda- 
 tion for the broader principle that " he that hinders an- 
 other in his trade or livelihood is liable to an action for 
 so hindering him " (e), subject, of course, to the excep- 
 
 (a) 22 Hen. VI. 32 i, per Cur. (Newtnn C. J.; Fulthorpe, 
 Ascue or Ayscoghe, Portington JJ.); F. N. B. 168 F. 
 
 (J) If the tenancy were not at will, the departure would be a 
 "breach of contract; this introduces a new element of difficulty, 
 never expressly faced by our courts before Lumley e. Gye, of 
 which more elsewhere. 
 
 (c) F. N. B. 87 N. ; and see the form of the writ there. 
 
 {'I) 14 Ed. IV. 7, pi. 13, a writ " quare tenentes sues verbe- 
 Tavit per quod a tenura sua recesserunt " ; 9 Hen. VII. 7, pi. 4, 
 action for menacing plaintiff's tenants at will " de vita et muti- 
 latione membrorum, ita quod recesserunt de tenura;" Eastell, 
 Entries 661, 662, similar forms of declaration; one (pi. 9) is for 
 menacing the king's tenants so that ' ' negotia sua palam incedere 
 non audebant " ; Garret ?'. Taylor, 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 J VI. 26, pi. 9, " manassavit vulneravit et verberavit": 
 note that in this action the "vulneravit" is not justifiable and 
 therefore mast be traversed, otherwise under a plea of non assault 
 demesne; 22 Ass. 102, pi. 76, is for actual beating, aggravated by 
 carrying away timber of the plaintiff's (merimentum = maieria- 
 men, see Du Gauge, s; V. materia; a Latin macrrmium and a law- 
 French meresme are also found). Cp. Reg. Brev. (1595) 104 a, 
 " quando tenentes non audent morari super tenuris suis " and 
 Tarleton v. McGawley (1794) Peake 270 [205], action for deter- 
 ring negroes on the coast of Africa from trading with plaintiff's 
 ship. 
 
 (c) Keeble v. Hickeringill (1705) 11 East 574 n. 
 
 (2491) 
 
158 PERSONAL WRONGS. 
 
 tion that no wrong is done by pursuing one's own trade 
 .or livelihood in the accustomed roanner though loss to 
 another may be the result (/). Historically both this 
 principle and that of Lumley v. Gye (g) are develop- 
 ments of the old "per quod servitium amisit;" biit in 
 the modern law they depend on different and much 
 wider reasons, and raise questions which are not tech- 
 nical but fundamental. We shall therefore deal with 
 them not here but under another head. 
 
 (/) lb. 576; supra, p. 129. 
 {g) 2 E. & B. 216; 22 L. J. Q. B. 463 (1853). 
 (2492) 
 
(159) 
 
 * CHAPTEE VII. [ * 204] 
 
 DEFAJIATION. 
 
 Eeputation and honour are no less precious to good civil and 
 men than bodily safety and freedom. In some cases criminal 
 they may be dearer than life itself. Thus it is needful jurisdiction 
 for the peace and well-being of a civilized common- '^^^g^J^ 
 wealth 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 pro- 
 ceedings, as endangering public order, or being offen- 
 sive to public decency or morality. We are not here 
 concerned with libel aa 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 dufdculty (a). 
 
 The wrong of defamation may be committed either slander and 
 by way of speech, or by way of writing or its equiva- libel dis- 
 lent. For this purpose it may be taken that signiti- tinguished. 
 cant gestures (as the finger- language of the deaf and 
 dumb) are in the same case with audible words; and 
 there is no doubt that printing, engraving, drawing, 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. Using * the [ * 205] 
 terms " written " and " spoken " in an extended sense, 
 to include the analogous cases just mentioned, we may 
 say that slander is a spoken and libel is a written de- 
 famation. The law has made a great difference be- 
 tween the two. Libel is an offence as well as a wrong, 
 but slander is a civil wrong only (6). Written utter- 
 ances are, in the absence of special ground of justifica- 
 tion or excuse, wrongful as against any person whom 
 they tend to bring into hatred, contempt, or ridicule. 
 
 (a) Such as the definition of blasphemous libel, and the 
 grounds on which it is punishable. 
 
 (b) Scandalum maffnalum was, and in strictness of law still 
 might be, an exception to this: Blake Odgers, Digest of the "Law 
 of Libel and Slander, 133 — 136. Mr. Odgers has not found any 
 case after 1710. 
 
 (2493) 
 
160 
 
 DEFAMATION. 
 
 Spoken words are actionable only when special dam- 
 age can be proved to have been their proximate conse- 
 quence, 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 controverBies under the protection and with 
 the solemnities of civil justice), nor has any been more 
 perplexed 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 mono- 
 graph (c). "We shall, as a rule confine our authorities 
 and illlustrations to recent cases. 
 
 [ * 206] 
 
 * 1. — Slander. 
 
 When slan- 
 der is 
 actionable. 
 
 Slander is an actionable wrong when special damage 
 can be shown to have followed from the utterance of 
 the words complained of, and also in the following 
 cases : 
 
 Where the words impute a criminal offence. 
 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, dishonesty, 
 or incompetence in an office, profession or trade, 
 in short, where they manifestly tend to prejudice a 
 man in his calling. 
 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 injure the plain- 
 tiif 's reputation is so manifest that the law does not re- 
 quire evidence of their having actually injured it. 
 There is much cause however to deem this and other 
 like reasons given in our modern books mere after- 
 
 (c) A Digest of the Law of T.ibel and Slander, &c. Ey W. 
 Blake Odgers, London, 1881. Part, IV. of Mr. Shortt's ''Law 
 relating to worksof Literature and Art " (2nd ed. London, 1884), 
 may also be usefully consulted: but this does not cover the whole 
 ground. 
 
 (2494) 
 
SLANDER : SPECIAL DAMAGE. 161 
 
 thoughts, devised to justify the results of historical ac- 
 cident: a thing so common in current expositions of 
 English law that we need not dwell upon this example 
 of it (d). 
 
 No such distinctions exist in the case of libel : it is Meaning of 
 enough to make a written statement prima facie libel- "prima fade 
 lous that it is injurious to the character or credit (do- lit>ellous." 
 mestic, public, or professional) or the person concern- 
 ing whom it * is uttered, or in any way tends [ * 207] 
 to cause men to shun his' society, of to bring him into 
 hatred or contempt, or ridicule. When we call a state- 
 ment 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 and ex- 
 cuse. 
 
 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 ulti- 
 mately rest, are to a great extent antiquated or trivial 
 (e); the rules themselves are well settled in modern 
 practice. 
 
 Where " special damage " is the ground of action. Special 
 we have to do with principles already considered in a damage. 
 former chapter (/) : 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 spo- 
 ken " in this sense, that if A. speaks words in dispar- 
 agement of B. which are not actionable per se, by rea- 
 son of which speech C. does something to B.'s disad- 
 vantage that is itself wrongful as against B. (such as 
 dismissing B. from his service in breach of a subsist- 
 ing contract), B. has no remedy against A., but onl-y 
 against 0. (g). But this doctrine is contrary to prin- 
 
 (d) See Blake Odgers, pp. 3 — 5. I am disposed to agree with 
 Mr. Starkie's opinion there cited. And see 6 Amer. Law Rev. 
 593. It seems odd that the law should presume damage to a 
 man from printed matter in a newspaper which it may be, none 
 of his acquaintances are likely to read, and refuse to presume it 
 from the direct oral communication of the same matter to the 
 persons most likely to act upon it. 
 
 (e) The old abridgments, e. g. Eolle, sub tit. Action sur Case, 
 Pur ParoUs, abound in examples, many of them sufiiciently gro- 
 tesque. A select group of cases is reported by Coke, 4 Eep. 13 
 6—20 6. 
 
 (/) P. 28, above. 
 
 (g) Vicars v. Wilcocks (1806) 8 East 1. 
 
 11 LAW OF TOETS. (2495) 
 
162 
 
 DEFAMATION. 
 
 ciple: the question is not whether O.'s act was lawful 
 or unlawful, but whethei' it might have been in fact 
 reasonably expected to result from the original act of 
 A. And, though not directly overruled, it has been dis- 
 approved by so much and such weighty authority that 
 [ * 208] we may say * it is not law (h). There is au- 
 thority for the proposition that where spoken words, de- 
 famatory but not actionable in themselves, are followed 
 by special damage, the cause of action is not the origi- 
 nal speaking, but the damage itself (i). This does 
 not seem to affect the general test of liability. Either 
 way the speaker will be liable if the damage is an in- 
 tended or natural consequence of his words, otherwise 
 not. 
 
 spoken 
 words. 
 
 Repetition of It is settled however that no cause of action is 
 afforded by special damage arising merely from the vol- 
 untary repetition of spoken words by some hearer who 
 was not under a legal or moral duty to repeat them. 
 Such a consequence is deemed too remote (j). 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 conse- 
 quences (k). 
 
 Special dam- 
 age involves 
 a definite 
 temporal 
 loss. 
 
 Losing the general good opinion of one's neigh- 
 bours, consortium vicinorum as the phrase goes, is not 
 of itself special damage. A loss of some material ad- 
 vantage must be shown. Defamatory words not ac- 
 tionable per se were spoken of a member of a religious 
 society who by reason thereof was excluded from mem- 
 bership ; there was not any allegation or proof that such 
 membership carried with it as of right any definite 
 [ * 209] temporal advantage. It was * held that no 
 loss appeared beyond that of consortium mcinorum, 
 and therefore there was no ground of action {I). Yet 
 the loss of consortium as between husband and wife is 
 
 (h) Lynch v. Knight (1861) H. L. C. 577. See notes to Vi- 
 cars r. Wilcocks, in 2 Sm. L. C. 
 
 ((•) Maule J. ex relat. Bramwell L. J., 7 Q. B. D. 437. 
 
 (j) Parkins v. Scott (1862) 1 II. & C. 153; 31 L. J. Ex. 331 
 (wife repeated to her hnsband gross language used to herself,, 
 wherefore the husband was so much hurt that he left her). 
 
 (k) Blake Odgers 332. Riding v. Smith (1876) 1 Ex. B. 91, 
 must he taken not to interfere with this distinction, as the ma- 
 jority of the court disclaimed any intention of so doing: hut see- 
 thereon Mayne on Damages, 4th2.ed7. 
 
 (I) Roberta v. Roberts (1864) 5 B. & S. 384; 33 L. J. Q. B. 249. 
 (2496) 
 
SLANDER : IMPUTATION OF CRIME. 163 
 
 a special damage of which the law will take notice (w), 
 and so is tee loss of the voluntary hospitality of frieilds, 
 this last on the ground that a dinner in a friend's house 
 and at his expense is a thing of some temporal value 
 (n). 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 de- 
 cline 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 " (o). Trouble of mind 
 caused by defamatory words is not sufficient 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 " (p). 
 
 As to the several classes of spoken words that may be imputations 
 actionable without special damage: words sued on as of criminal 
 imputing crime must amount to a charge of some of- offence, 
 fence 'which, if proved against the party to whom it is 
 imputed, would expose him to imprisonment or other 
 corporal penalty (not merely to a fine in the first in- 
 stance, with possible imprisonment in default of pay- 
 ment) (q). The * offence need not be speci- [ * 210] 
 fied with legal precision, indeed it need not be specified 
 at all if the words impute felony generally. But if 
 particulars are given they must be legally consistent 
 with the offence 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 property is vested , 
 in him ex officio (r) ; it might be otherwise to say that 
 he fraudulently converted them to his own use. The 
 
 (m) Lynch i;. Knight, 9 H. L. C. 577. 
 
 (n) Davies v. Solomon (1871) L. R. 7 Q. B. 112. 
 
 (o) Chamberlain v. Boyd (1883) 11 Q. B. Div. 407; per Bowen 
 L. J. at p. 416. The damage was also held too remote. 
 
 (p) Allsop r. Allsop (1860) 5 H. & N. 534; 29 L. ,T. Ex. 315. 
 
 (q) This is the true distinction: it matters not whether the of- 
 fence he indictable or punishable by a court of summary juris- 
 diction: Webb t-. Beavan (lf^8:;) 11 Q. B. D. 609. In the United 
 States the received opinion is that such words are actionable only 
 " in case the charge, if true, will subject the party charged to an 
 indictment for a crime involving moral turpitude, or subject him 
 to an infamous punishment:" Brooker v. Coffin (1809) 5 Johns. 
 188; Bigelow L. C. 77, 80; later authorities ap. Cooley on Torts, 
 197. 
 
 (r) Jackson v. Adams (1835) 2 Bing. N. C. 402. The words 
 were, "who .stole the parish bell-ropes, you scamping rascal?" 
 If spoken while the plaintiff held the office, they would probably 
 have been actionable, as tending to his prejudice therein. 
 
 (2497) 
 
164 
 
 DEFAMATION. 
 
 Charges of 
 mere im- 
 morallity 
 not action- 
 able. 
 
 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 de 
 tails will probably make some impossible combination. 
 
 False accusation of immorality or disreputable con- 
 duct not punishable by a temporal court is not action- 
 able per se, however gross. The courts might without 
 violence have presumed that -a man's reputation for 
 courage, honour, and truthfulness, a woman's for chas- 
 tity and modest conduct, was something of which the 
 loss would naturally lead to damage in any lawful walk 
 of life. But the rule is otherwise, and we can only say 
 with Lord Blackburn that "the law upon the subject of 
 disparaging words spoken of other persons is not in a 
 satisfactory state" (s). It has gone wrong from the 
 beginning in making the damage and not the in- 
 sult the cause of action; and this seems the stranger 
 [ * 211] * when we have seen that with regard to as- 
 sault a sounder principle is well established (t). 
 
 A person who has committed a felony and beeo 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 (u). 
 
 Imputations Little need be said concerning imputations of con- 
 of contagious tagious disease unfitting a person for society: that is, in 
 disease. ^jjjg modern law, venereal disease (x). The only notable 
 
 point is that " charging another with having had a con- 
 tagious disorder is not actionable; for unless the words 
 spoken impute a continuance of the disorder at the time 
 of speaking them, the gist of the action fails; for such 
 a charge cannot produce the effect which makes it the 
 subject of an action, namely, his being avoided by soci- 
 ety" {y). There does not seem to be more than one 
 reported English case of the kind within the present 
 century (z). 
 
 (s) 5 B. & S. at p. 390. The technical reason is that charges 
 of incontinence, heresy, &c., were "spiritual defamation," and 
 the matter determinable in the Ecclesiastical Court acting pro 
 salute animae. See Davis v. Gardiner, 4 Co. Rep. 16 6; Palmer « 
 Thorpe, ih. 20 a. 
 
 (0 P. 183, above. 
 
 (u) Leyman v. Latimer (1878) 3 Ex. Div. 3.52. 
 
 (x) Leprosy and, it is said, the plague, vrere in the same cate- 
 gory. Small-pox is not. See Blake Odgers 63. 
 
 (y) Carslake v. Mapledoram (1788) 2 T. E. 473; Bigelow L. C. 
 84, per Ashhurst J. 
 
 («) Bloodworth v. Gray (1844) 7 M. &. Gr. 3,34. The whole of 
 the judgment runs thus: "This case falls within the principle of 
 the old authorities. " 
 
 (2498) 
 
SLANDER : IN OFFICE OR BUSINESS. 165 
 
 Concerning words spoken of a man to his disparage- Evil-speak- 
 ment in his office, profession, or other business: they pg of a man 
 are actionable on the following conditions: — They must ™ *^ Y^^ ^^ 
 be spoken of* him in relation to or "in the way of " a 
 position which he holds, or a business he carries on, at 
 the time of speaking. "Whether they have reference to 
 his office or business is, in case of doubt, a question of 
 fact. And they must either amount to a direct charge 
 of incompetence or unfitness, or impute something so 
 inconsistent with competence or fitness that, if be- 
 lieved, it would tend to the loss of the * par- [ * 212] 
 ty's employment or business. To call a stonemason a 
 " ringleader of the nine hour system " is not on the face 
 of it against his competence or conduct as a workman, 
 or a natural and probable cause why he should not get 
 work: such words therefore, in default of anything show- 
 ing more distinctly how they were connected with the 
 plaintiff's occupation, were held not to be actionable 
 (a). Spoken charges of habitual immoral conduct 
 against a clergyman or a domestic servant are action- 
 able, as naturally tending, if believed, to the party's 
 deprivation or other ecclesiastical censure in the one 
 case, and dismissal in the other. Of a clerk or mes- 
 senger, and even of a medical man, it is otherwise, un- 
 less the imputation is in some way specifically con 
 nected with his occupation. It is actionable to charge 
 a barrister with being a dunce, or being ignorant of the 
 law; but not a justice of the peace, for he need not be 
 learned. It is actionable to charge a solicitor with 
 cheating his clients, but not with cheating other people 
 on occasions unconnected with his business (&). 
 
 It makes no difference whether the office or profes- 
 sion carries with it any legal right to temporal profit, 
 or in point of law is wholly or to some extent honorary, 
 as in the case of the barrister or a fellow of the College 
 of Physicians. Nor does it matter what the nature of 
 the employment is, provided it be lawful (c) ; or whether 
 the conduct imputed is such as in itself the law will 
 blame or not, provided it is inconsistent with the due 
 fulfilment of what the party, in virtue of his employ- 
 ment or office, has undertaken. A gamekeeper may 
 have an action against one who says of him, as game- 
 keeper, that he trapped foxes (d). As regards the rep- 
 
 (a) Miller v. David (1874) L. E. 9 C. P. US. 
 
 (b) Doyley v. Roberts (1837) 3 Bing. N. C. 835, and authorities 
 there cited. 
 
 (c) L. R. 3 Ex. at p. 330. 
 
 (d) Foulger v. Newcomta (1867) L. E. 2 Ex. 327. 
 
 (2499) 
 
166 
 
 DEFAMATION. 
 
 "Words indi- 
 rectly caus- 
 ing damage 
 to a man in 
 Ms business. 
 
 [ * 213] utation of traders the law * has taken a 
 broader view than elsewhere. To impute insolvency 
 to a tradesman, in any form whatever, is actionable. 
 Substantial damages have been given by a jury, and 
 allowed by the court, for a mere clerical error by which 
 an advertisement of a dissolution of partnership was 
 printed among a list of meetings under the Bankruptcy 
 Act (e). 
 
 There are cases, though not common in our book, in 
 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 
 character or conduct : as where a wife or servant dwel • 
 ling at his place of business is charged with misbehavi- 
 our, and the credit of the business is thereby impaired. 
 In such a case an action lies, but is not, it seems, pro- 
 perly an action of slander, but rather a special action 
 (on the case in the old system of pleading) analogous 
 to those which have been allowed for disturbing a man 
 in his calling, or in the exercise of a right in other ways. 
 It is doubtful how far the rule that a man is not liable 
 for unauthorized repetition of his spoken words applies 
 to an action of this kind (/). On principle the condi- 
 tions of liability would seem to be that the defendant 
 made the original statement without belief in its truth 
 (for the cause of action is more akin to deceit than to 
 defamation), and that he expected, or had reasonable 
 cause to expect, that it would be repeated in such a 
 manner as in fact it was, and would lead to such dam- 
 age as in fact ensued. 
 
 Rules as to 
 defamation 
 .generally. 
 
 " Implied 
 malice. ' ' 
 
 [ * 214] * 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. 
 
 It is commonly said that defamation to be actionable 
 
 [e] Blake Odgers 78; Shepheard !•. Whitaker (1875) L. E. 10 
 C. P. 502. 
 
 (/) Riding r. Smith (1876) 1 Ex. D. 91; see Jlr. Blake Odgers 
 and Mr. J. I). Mayne thereon. 
 (2500) 
 
PUBLICATION. 167 
 
 must be malicious, and the old form of pleading added 
 " maliciously " to " falsely." Whatever may have been 
 the origin or the original meaning of this language (/), 
 malice in the modern law signifies neither more nor less 
 in this connexion, than the absence of just cause or 
 excuse (g) ; and to say that the law implies malice from 
 the publication of matter calculated to convey an action- 
 able imputation is only to say in an artificial form that 
 the person who so publishes is responsible for the natural 
 consequences of his act (h). " Express malice " means 
 something different, of which hereafter. 
 
 Evil-speaking, of whatever kind, is not actionable if What is 
 communicated only to the person spoken of. The cause publication, 
 of action is not insult, but proved or presumed injury to 
 reputation. Therefore there must be a communication 
 by the speaker or writer to at least one third person; 
 and this necessary element of the wrongful act is tech- 
 nically called publication. It need not amount to any- 
 thing like publication in the common usage of the word. 
 That an open * message passes through the [ * 215] 
 hands of a telegraph clerk (i), or a manuscript through 
 those of a compositor in a printing-office (k), is enough 
 to constitute a publication to those persons if they are 
 capable of understanding the matters so delivered to 
 them. 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 office 
 by the plaintiff on purpose to buy it, is a fresh publica- 
 tion (1). 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 
 
 (/) SeeBigelowL. C. 117. 
 
 (g) Bayley J. in Bromage v. Prosser (182.3) 4 B. & C. at p. 253; 
 Bigelow L. C. 137: " Malice in common acceptation means ill- 
 will against a person, but in its legal sense it means a wrongful 
 act done intentionally without just cause or excuse: " so too Lit- 
 tledale J. in McPherson v. Daniels (ls29) 10 B. & C. 272. 
 
 (h) Lord Blackburn in Capital and Counties Bank v. Henty 
 (18S2) 7App. Ca. 787. 
 
 (i) See Williamson v. Freer (1874) L. E. 9 C. P. 393. 
 
 (7l-) Printing is for this reason prima facie a publication, Bald- 
 win r. Elphinston, 2 W. Bl. 1037. There are obvious exceptions, 
 as if the text to be printed is Arabic or Chinese, or the message 
 in cipher. 
 
 (l) Duke of Brunswick v. Harmer (1849) 14 Q. B. 185; 19 L. J. 
 q. B. 20. 
 
 (2501) 
 
168 
 
 DEFAMATION. 
 
 heard by that person; but if it is proved that the matter 
 did not come to his knowledge, there is no publication 
 (m). A person who is an unconscious instrument in 
 circulating libellous matter, not knowing or having rea- 
 son to believe that the document he circulates contains 
 any such matter, is free from liability if he proves his 
 ignorance. Such is the case of a newsvendor, as dis- 
 tinguished from the publishers, printers, and owners of 
 newspapers. " A newspaper is not like a fire; a man 
 may carry it about without being bound to suppose that 
 it is likely to do an injury" (n). If A. is justified in 
 making a disparaging communication about B.'s 
 character to C. (as, under certain conditions, we 
 [ * 216] * shall see that he maybe), it would seem upon 
 the tendency and analogy of the authorities now before 
 us that this will be no excuse if, exchanging the en- 
 velopes of two letters by inadvertence, or the like, he 
 does in fact communicate the matter to D. It has been 
 held otherwise (o), but we do not think the decision is 
 generally accepted as good law: if it is right on prin- 
 ciple, the earlier authorities on "publication" can 
 hardly be right also. 
 
 Sending a defamatory letter to a wife about her hus- 
 band is a publication: "man and wife are in the eye of 
 the law,f or many purposes, one person, and for many pur- 
 poses " — of which this is one — " different persons "(p). 
 
 Vicarious On the general principles of liability, a man is 
 
 publication, deemed to publish that which is published by his author- 
 ity. And the authority need not be to publish a parti- 
 cular form of words. A general request, or words in- 
 tended 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 sub- 
 stance" of his request (q). 
 
 Construction 
 of words: 
 inrmendo. 
 
 Supposing the authorship of the words complained of 
 to be proved or admitted, many questions may remain. 
 
 m) Blake Odgers 153. 
 
 Emmens v. Pottle (1885) 16 Q. B. Div. 354, per Bowen L. 
 J. at p. 358. But it seems the vendor would be liable if he had 
 reason to know that the publication contained, or was likely to 
 contain, libellous matter. 
 
 'o) Thompson v. Dashwood (1883) 11 Q. B. D. 43. 
 p) Wenman v. Ash (1853) 13 C. B. 836; 22 L. J. C. P. 190, 
 per Maule J. 
 
 (q) Parkes v. Prescott (1869) L. E. 4 Ex. 169, Ex. Ch. Whether 
 the particular publication is within the authority is a question of 
 fact. All the Court decide is that verbal dictation or approval 
 by the principal need not he shown. 
 (2502) 
 
INNUENDO. 169 
 
 The construction of words alleged to be libellous (we 
 shall now use this term as equivalent to " defamatory," 
 unless the context requires us to advert to any distinc- 
 tion 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 as- 
 cribed to them. * Whether they are so is a [ * 217] 
 question of law (r). 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, tech- 
 nicality ; but the substance of the doctrine is now reduced 
 to something like what is expressed above. The re- 
 quirement of an innuendo, where the words are not on 
 the face of them libellous, is not affected by the aboli- 
 tion 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 con- 
 veyed a libellous meaning, and show what that mean- 
 ing was, has failed to show any cause of action (s). 
 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 (t). This 
 however is not quite the same thing as an innuendo. 
 A libel in a foreign language might need both a transla- 
 tion to show the ordinary meaning of the words, and a 
 distinct further innuendo to show that they bore a 
 special injurious meaning. 
 
 The actionable or innocent character of words depends Libellous 
 not on the intention with which they were published, tendency 
 but on their actual meaning and tendency when pub- must be 
 lished (u). * A man is bound to know the [ * 218] ^^^^^^ '"^ 
 natural effect of the language he uses. But where the proved in 
 plaintiff seeks to put an actionable meaning on words fact. 
 hj which it is not obviously conveyed, he must make 
 
 (r) Capital and Counties Bank r. Henty (1882) 7 App. Ca. 741, 
 ■where the law is elaborately discussed. For a shorter example 
 of words held, upon consideration, not to be capable of such a 
 meaning, see Mulligan v. Cole (1875) L. R. 10 Q. B. 549; for one 
 on the other side of the line, Hart v. Wall (1877) 2 C. P. D. 146. 
 
 (s) See 7 App. Ca. 748 (Lord Selborne). 
 
 (/) Blake Odgers 109—112. 
 
 (u) 7 App. Ca. 768, 782, 790, cf. p. 787. 
 
 (2503) 
 
170 
 
 DEFAMATION. 
 
 Eepetition 
 and reparts 
 may be 
 libellous. 
 
 out that the words are capable of that meaning (which 
 is 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 (x). Words are not deemed capable of a 
 particular m.eaning merely because it might by possi- 
 bility be attached to them: there must be something in 
 either the context or the circumstances that would sug- 
 gest the alleged meaning to a reasonable mind (y). 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. 
 
 The publication is no less the speaker's or writer's 
 own act, and none the less makes him answerable, be- 
 cause he only repeats what he has heard. Libel may 
 consist in a fair report of statements which were actual- 
 ly made, and on an occasion which then and there 
 justified the original speaker in making them (z) ; 
 slander in the repetition of a rumour rnerely as a rum- 
 our, and without expressing any belief in its truth (a). 
 " A man may wrongfully and maliciously repeat that 
 which another person may have uttered upon a justifi- 
 able 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 in- 
 sane or of bad character. The person who repeats it 
 [* 219] gives greater weight to the slander" (b). * Cir- 
 cumstances of this kind may count for much in asses- 
 sing damages, but they count for nothing towards de- 
 termining whether the defendant is liable at all. 
 
 Prom this principle it follows, as regards spoken 
 words that if A. speak of Z. words actionable only with 
 special damage, and B. repeat them, and special dam- 
 age ensue from the repetition only, Z. shall have an ac- 
 tion against B., but not against A. (c). As to the de- 
 fendant's belief in the truth of the matter published or 
 
 (x) Lord Blackburn, 7 App. Ca. 776. 
 
 (ij) Lord Selborne, 7 App. Ca. 744 ; Lord Blackburn, ih. 778; 
 Lord Bramwell, ib. 792, ' ' I think that the defamer is he who, ot 
 many inferences, chooses a defamatory one." 
 
 {z) Purcell r. Sowler (1877) 2 C. P.'Div. 215. 
 
 (a) Watkin i: Hall (1868) L. E. 3 Q. B. 396. 
 
 (b) Littledale J., MePherson r. Daniels (1829) 10 B. & C. 263, 
 273, adopted by Blackburn J., L. R. 3 Q. B. 400. The latter part 
 of the 4th Resolution reported in the Earl of Northampton's case, 
 12 Co. Rep. 134, is not law. See lier Parke J. , 10 B. & C. at p. 
 275. 
 
 (c) See Parkins v. Scott (r862) 1 H. & C. 153; 31 L. J. Ex. 331; 
 p. 208, above. 
 
 (2504) 
 
FAIR COMMENT. 171 
 
 republished by him, that may affect the damages but 
 cannot affect the liability. Good faith occurs as a ma- 
 terial legal element only when we come to the excep- 
 tions^fi-om the general law that a man utters defama- 
 tory matter at his own peril. 
 
 3. — Exceptions 
 
 We now have to mention the conditions which ex- Exceptions: 
 elude, if present, liability for words apparently injuri- faircomment. 
 OU8 to reputation. 
 
 Nothing is a libel which is a fair comment on a sub- 
 ject fairly open to public discussion. This is a rule of 
 common right, not of allowance to persons in any par- 
 ticular situation; and it is not correct to speak of utter- 
 ances protected by it as being privileged. A man is no 
 more privileged 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. We conceive this to be settled by * the [ * 220] 
 leading case of Oampbell v. Spottiswoode (d), which 
 •enforces the further consequence that the honesty of 
 the critic's belief or motive is nothing to the purpose. 
 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. Whatever goes 
 beyond this, even if well meant, is libellous. One test 
 very commonly applicable is the distinction between 
 action and motive; public acts and performances may 
 be freely censured as to their merits or probable con- 
 sequences, but wicked or dishonest motives not be im- 
 puted upon mere surmise. Such imputations, 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 
 
 (d) 3 E. & S. 7G9 ; 32 L. J. Q. B. 1S5 (1863). 
 
 (2505) 
 
172 DEFAMATION. 
 
 libel was in excess of a fair comment; but it cannot in 
 itself prevent the matter being libellous " (e). 
 
 The case of a criticism fair in itself being proved ta 
 be due to unfair motives in the person making it is not 
 known to have arisen, nor is it likely to arise,- and it 
 need not be here discussed (/). On principle it seems 
 that the motive is immaterial; for if the criticism be in 
 itself j ustifiable, there is nothing to complain of. Evi- 
 dence tending to show the presence of improper motives 
 [ * 221] might well also * tend to show that the com- 
 ment was not fair in itself, and thus be material on. 
 either view. 
 
 Henwood v ^^ ^^ ^^^^ ^^^^ ^ ^^^®^ judgment of co-ordinate author- 
 Harrison, ity, delivered by one of the most learned of modern, 
 judges, has spoken of " the privilege of every subject 
 of the realm to discuss matters of public interest hon- 
 estly and without actual malice" (g), as being on the- 
 same footing with the right of free confidential com- 
 munication on occasions which are privileged in the ex- 
 act sense. But, although many authorities are there 
 cited, Campbell v. Spottiswoode is not. And to say of 
 a technical criticism, such as was before the Court irt 
 this case, that there is no evidence of malice, is practi- 
 cally equivalent to saying there is no evidence of its- 
 being otherwise than fair; the form of statement, there- 
 fore, can hardly be deemed necessary to the actual de- 
 cision that no cause of action was shown. At all events 
 this dictum cannot overrule what was decided in Camp- 
 bell V. Spottiswoode. 
 
 "What is open What acts and conduct are open to public comment 
 to comment is a question for the Court, but one of judicial common 
 matter of sense rather than of technical definition. Subject- 
 law, matter of this kind may be broadly classed under two 
 • types. 
 
 The matter may be in itself of interest to the commort 
 weal, as the conduct of persons in public offices or af- 
 fairs (h),ot those in authority, whether imperial or local. 
 
 (e) Blackburn J., Campbell v. Spottiswoode, 32 L. J. Q. B. at. 
 p. 202. 
 
 (/) See however Wason v. Walter (1868) L. E. 4 Q. B; at p. 
 96, and Stevens v. Sampson (1879) 5 Ex. Div. 53. 
 
 (g) Henwood v. Harrison (1872) L. R. 7 C. P. 606, 626, per 
 "Willes J. The dissenting j udgment of Grove J. is worthy of con- 
 sideration. • 
 
 (7t) Including the conduct at a public meeting of persons who- 
 attend it as private citizens : Davis v. Duncan (1874) L. R. 9 C. 
 P. 396. A clergyman is a public ofS.oer, or at any rate the con- 
 (2506) 
 
JUSTIFICATION BY TRUTH. 173 
 
 (t) in *the administration of the law, of the [ * 222] 
 managers of public institutions in the afPairs 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 of- 
 fered for sale, 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 cSpinion, 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. 
 
 What is actually fair criticism is a question of fact. Whether 
 provided the words are capable of being understood in comment is 
 s, sense beyond the fair expression of an unfavourable ^"^' PJ?"*" , . 
 opinion on that which the plaintiff has submitted to jf^ellous 
 ihe public : this is only an application of the wider construction 
 principle above stated as to the construction of a sup- possible). 
 posed libel (fc). 
 
 In literary and artistic usage criticism is hardly al- 
 lowed to be fair which does not show competent intelli- 
 gence of the subject-matter. Courts of justice have 
 not the means of applying so fine a test : and a right 
 of criticism limited to experts would be no longer 
 a common right but a privilege. 
 
 The right of fair criticism will, of course, not cover 
 untrue statements of alleged specific acts of miscon- 
 ■duct (I). 
 
 Defamation is not actionable if the defendant shows justification 
 that the defamatory matter was true ; and if it was so, on ground of 
 "the * purpose or motive with which it was [ * 223] truth. 
 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 plaintifi if the imputation is true, whereby he is 
 
 duct of public worship and whatever is incidental thereto is mat- 
 ter of public interest : Kelly v. Tinling (1865) L. R. 1 Q. B. 
 699, cp. Kelly v. Sherlock (1S66) ib. at p. 689. 
 
 (i) Purcell v. Sowler, 2 C. P. Div. 215. 
 
 {k) Jennor v. A'Beckett (1871) L. R. 7 Q. B. 11. Qu. whether 
 Tthe dissenting judgment of Lush J. was not right. 
 
 {1} Davis V. Shepstone (1886) J. C. 11 App. Ca. 187. 
 
 (2507) 
 
174 
 
 DEFAMATION. 
 
 deemed to have no ground of complaint for the fact 
 being communicated 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 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 (m). 
 " The law will not permit a man to recover damages iu 
 respect of an injury to a character which he either does 
 not or ought not to possess" (n), This defence, as 
 authority and experience show, is not a favoured one. 
 To adopt it is to forego the usual advantages of the de- 
 fending party, and commit oneself to a counter-attack 
 in which only complete success will be profitable, and 
 failure will be disastrous. 
 
 Must be sub- What the defendant has to prove is truth in sub- 
 stantially stance, that is, he must show that the imputation made 
 complete. ^j, repeated by him was true as a whole and in every 
 material part thereof. 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 (o). 
 
 There may be a further question whether the matter. 
 [ * 224] * alleged as justification is sufiicient, if proved, 
 to cover the 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 edi- 
 tor " 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 generally, or only conveyed the 
 fact that at some time he was convicted (p). Where 
 
 (m) Compare the similar doctrine in trespass, which has pecu- 
 liar consequences. But of this in its place. 
 
 (») Littledale J. 10 B. & C. at p. 272. 
 
 (o) Alexander v. North Eastern E. Co. (1865) 6 B. & S. 340; 34 
 L. J. Q. B. 1.52. 
 
 (p) Leyman v. Latimer (1878) 3 Ex. Div. 452. 
 (2508) 
 
JUDICIAL PRIVILEGE. 175 
 
 the libel charges a criminal ofPence with circumstances 
 of moral aggravation, it is not a sufficient justification 
 to aver the committing of the offence without those cir- 
 cumstances, though in law they may be irrelevant, or 
 relevant only as evidence of some element or condition 
 of the offence (q). 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 defa- 
 mation. 
 
 Apparently it would make no difference in law that Defendent's 
 the defendant had made a defamatory statement with- belief im- 
 out any belief in its. truth, if it turned out afterwards materiaL 
 to have been true when made : as, conversely, it is 
 certain that the most honest and even reasonable 
 belief is of itself no justification. The case is not 
 strictly analogous to that of fair * comment, [ * 225] 
 and seems untouched by the dicta we have mentioned 
 as raising a certain doubt on that subject. Costa, how- 
 ever, are now in the discretion of the Court. 
 
 In order that public duties may be discharged with- Immunity 
 out fear, unqualified protection is given to language used of members 
 in the exercise of parliamentary and judicial functions. "^ Parli^ 
 A member of Parliament cannot be lawfully molested ;u,jges 
 outside Parliament by civil action, or otherwise, on ac- 
 count of anything said by him in his place in either 
 House (r). An action will not lie against a judge for 
 any words used by him in his judicial capacity in a 
 court of justice (s). 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 rele- 
 vant or proper, or whether or not they were used in 
 good faith. 
 
 Parties, advocates, and witnesses in a court of jus- other per- 
 tice are under the like protection. They are subject- to sons in 
 the authority of the Court itself, but whatever they say Judicial pro- 
 
 ceedings. 
 
 {q) Helsham v. Blackwood (1851) 11 C. B. l'?8; 20 L. J. C. 
 P. 1 h7, a very curious case. 
 
 (r) St. 4 Hen. 8, c. 8 (Pro Ricardo Strode); Bill of Eights. 1 
 Wm. & M. sess. 2, c. 2, " That the freedome of speech and de- 
 bates or proceedings in Parlyament ought not to be impeached or 
 questioned in any court or place out of Parlyament. ' ' 
 
 (s) Scott V. Stansfield (1868) L. R. 3 Ex. 220; the protection ex- 
 tends to judicial acts, see the chapter of General Exceptions 
 above, pp. 99 — 101, and further illustrations ap. Blake Odgers 
 189. 
 
 (2509) 
 
176 DEFAMATION. 
 
 in the course 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 insin- 
 uations against the prosecutor, which might, if true, ex- 
 plain some of the facts proved, however gross and un- 
 founded those insinuations may be (t); nor for a wit- 
 ness after his cross-examination to volunteer a statement 
 [ * 226] of opinion byway of * vindicating his credit, 
 which involves a criminal accusation against a person 
 wholly unconnected with the case (u). The only limit- 
 ation is that the words must in some way have refer- 
 ence 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 (x). 
 So is a select committee of the House of Commons (y). 
 Statements coming within this rule are said to be " ab- 
 solutely privileged." The reason for precluding all 
 discussion of their reasonableness or good faith before 
 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 advo- 
 cate, but deems this a less evil than exposing honest 
 witnesses and advocates to vexatious actions. 
 
 Eeports of ^^ to reports made in the course of naval or military 
 
 officers, &c. 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 majority of 
 the Court of Queen's Bench has held (against a strong 
 dissent), not exactly that they are " absolutely privi- 
 leged," but that an ordinary court of law will not de- 
 termine questions of naval or military discipline and 
 duty. But the decision is not received as conclusive 
 (z). 
 
 (t) Munster v. L.amb (18R.'5) 11 Q. E. Div. 588, where authori- 
 ties are collected. 
 
 (m) Seaman v. Netherclift (1876) 2 C. P. Div. 5.3. 
 
 (x) Dawkins 1'. Lork Rokeby (187:!-5) Ex. Ch. and H. L., L. 
 E. 8 Q. B. 255; 7 H. L. 744, see opinion of judges at p. 7.52; Daw- 
 kins V. Prince Edward of Saxe 'Weimar (1876) 1 Q. B. D. 499. 
 
 (y) Goffinr. Donnelly (18-^1) Q. B. D. 307. 
 
 (z) Dawkins v. Lord Paulet (1869) L. E. 5 Q. B. 94, see the 
 dissenting judgment of Cockburn C. ,T., and the notes of Mr. 
 Justice Stephen, Dig. Cr. L. art. 276, and Mr. Blake Odgers, op. 
 cit. 195. The reference of the Judicial Committee to the case in 
 Hart V. Gumpach (1872) L. E. 4 P. C. 439, 464, is quite neutral. 
 They declined to presume that such an "absolute privilege " ex- 
 isted by the law and customs of China as to official reports to the 
 Chinese Government. 
 
 (2510) 
 
PRIVILEGED OOJtMUNICATIONS. 17T 
 
 * There is an important class of cases in [ * 227j Qualified 
 -which a middle course is taken between the common immunity of 
 rule of unqualified responsibility for one's statements, " piivileged 
 and the exceptional rules which give, as we have just ti'^™""^*^" 
 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 ex- 
 pression of opinion concerning the character and merits 
 of persons, to the extent appropriate to the nature of 
 the occasion, but not necessary to prevent the person 
 affected from showing, if he can, that an unfavourable 
 opinion expressed concerning him is not honest. Occa- 
 sions of this kind are said to be privileged, and com- 
 munications made in pursuance of the duty or right in- 
 cident to them are said to be privileged by the occasion. 
 The term " qualified privilege " is often used to mark 
 ihe 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 also must not be published from 
 motives of personal ill-will; and this although the mat- 
 ter reported was " absolutely privileged " as to the 
 original utterance of it.. 
 
 The conditions of immunity may be thus summed Conditions of 
 up : — the privilege. 
 
 The occasion must be privileged; and if the de- 
 fendant establishes this, he will not be liable unless the 
 plaintiff can prove that the communication was not hon- 
 estly made for the purpose of discharging a legal, 
 moral or social duty, or with a view to the just protec- 
 tion of some private interest or of the public good by 
 ^ving information * appearing proper to be [ * 228] 
 given, but from some improper motive and without due 
 regard to truth. 
 
 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 communica- 
 tion, or acts accompanying and giving point to it, being 
 unreasonable and improper, " in excess of the occa- 
 sion," as we say. 
 
 The rule formerly was, and still sometimes is, ex- 
 pressed in an artificial manner derived from the style of ^^^jf^'^*;?^ 
 pleading at common law. 
 
 The law, it is said, presumes or implies malice in all 
 
 12 LAW OP TOKTS. (2511) 
 
178 
 
 DEFAMATION. 
 
 What are 
 privileged 
 occasions. 
 
 cases of defamatory words; this presumption may be 
 rebutted by showing that the words were uttered on a 
 privileged occasion; but after this the plaintiff may al- 
 lege and prove express or actual malice, that is, wrong 
 motive. He need not prove malice in the first instance, 
 because the law presumes it; when the presumption is 
 removed, the field is still open to proof. But the " mal- 
 ice 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 im- 
 perfect 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 (a). 
 
 The occasions giving rise to privileged communica- 
 tions may be in matters of legal or social duty, as 
 [ * 229] where a * confidential report is made to an 
 official superior, or in the common case of giving a 
 character to a servant; or they may be in the way of 
 self-defence, or the 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 matter published in the ordin- 
 ary sense of the word for purposes of general informa- 
 tion. 
 
 Moral of As to occasions of private duty; the result of the au- 
 
 sooial duty, thorities appears to be that any state of facts making 
 it right in the interests of society for one person to 
 communicate to another what he believes or has heard 
 regarding any person's conduct or character will con- 
 stitute a privileged occasion (b). 
 
 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 be- 
 tween them, as by a solicitor to his client about the 
 
 (a) See per Lord Blackliurn, 7 App. Ca. 787. 
 
 (b) See per Blackburn J. in Davies v. Snead (1870) L. R. 5 Q. 
 B. at p. 611. 
 
 (2512) 
 
PRIVILEGKD COMMUNICATIONS. 179 
 
 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 (c). 
 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 [ * 230] 
 urgency of the occasion, and other such points of dis- 
 cretion for which no general rule can be laid down, will 
 all have their weight; how far any of them will out- 
 weigh the general presumption against officious inter- 
 ference must always be more or less doubtful (d). 
 
 Examples of privileged communications in self-pro- Relf-protec- 
 tection, or the protection of a common interest, are a tion. 
 warning given by a master to his servants not to asso- 
 ciate with a former fellow- servant whom he has dis- 
 charged on the ground of dishonesty (e) ; a letter from 
 a creditor of a firm in liquidation to another of the 
 creditors, conveying information and warning as to 
 the conduct of a member of the debtor firm in its af- 
 fairs (/). The holder of a public office, when an attack 
 is publicly made on his official conduct, may defend 
 himself with like publicity (g). 
 
 Communications addressed in good faith to persons information 
 in a public position for the purpose of giving them in- for public 
 formation to be used for the redress of grievances, the g°od. 
 punishment of crime, or the security of public morals, 
 are in like manner privileged, provided the subject- 
 matter is at least reasonably believed to be within the 
 competence of the person addressed (h). The commu- 
 
 (c) Cases of this kind have been very troublesome. See Blake 
 Odgers 215—219. 
 
 {d} See Coxhead v. Richards (1846) 2 C. B. 569; 15 L. J. C. P. 
 278, where the Court was equally divided, rather as to the rea- 
 .sonably apparent urgency of the particular occasion than on any 
 deiinable principle. 
 
 (e) Somerville v. Hawkins (1850) 10 C. B. 583; 20 L. J. C. P. 
 133. 
 
 (/) Spill V. Maule (1869) Ex. Ch. L. R. 4 Ex. 232. 
 
 (g) Laughton v. Bishop of Sodor and Man (1872) L. E. 4 P. C. 
 495. 
 
 (A) Harrison v. Bush (1855) 5 E. & B. 344; 25 L. J. Q. B. 25. 
 There however it wa-s held that it was not, in fact, irrcnular to 
 address a memorial complaining of the conduct of a justice of the 
 
 (2513) 
 
180 
 
 DEFAMATION. 
 
 Fair reports. 
 
 Parliamen- 
 tary papers. 
 
 Parliamen- 
 tary debates 
 and judicial 
 proceedings. 
 
 [ * 231] nication to an incumbent of * reports affect- 
 ing the character of his curate is privileged, at all 
 events if made, by a neighbour or parishioner; so are 
 consultations between the clergy of the immediate 
 neighbourhood arising out of the same matter {i'. 
 
 Fair reports (as distinguished from comment) are a 
 distinct class of publications enjoying the protection of 
 " qualified privilege " to the extent to be mentioned. 
 The fact that imputations have been made on a priv- 
 ileged occasion will, of course, not exempt from liabil- 
 ity a person who repeats them on an occasion not 
 privileged. Even if the original statement be made 
 with circumstances of publicity, and be of the kind 
 known as " absolutely privileged," it cannot be stated 
 as a general rule that republication is justifiable. Cer- 
 tain specific immunites have been ordained by modern 
 decisions and statutes. They rest on particular grounds, 
 and are not to be extended (k). Matter not coming un- 
 der any of them must stand on its own merits, if it can, 
 as a fair comment on a subject of public interest (Z). 
 
 By statute (3 & 4 Vict. c. 9, a.d. 1840) the publica- 
 tion of any reports, papers, votes, or proceedings of 
 either House of Parliament by the order or under the au- 
 thority of that House is absolutely protected, and so is 
 [ * 232] the * republication in full. Extracts and ab- 
 stracts are protected if in the opinion of the jury they 
 were published bona fide, and without malice (m). 
 
 Fair reports of parliamentary and public judicial pro- 
 ceedings are treated as privileged communications. It 
 has long been settled (w) that fair and substantially ac- 
 
 peace to a Secretary of State (see the judgment of the Court as to 
 the incidents of that office), though it would be more usual to 
 address such a memorial to the Lord Chancellor. Complaints 
 made to the Privy Council against an officer whom the Council 
 is by statute empowered to remove are in this category; the ab- 
 solute privilege of judicial proceedings cannot be claimed for 
 them, though the power in question may be exerciseable only on 
 inquiry: Proctor v. Webster (1885) 16 Q. B. D. 112. 
 
 (i) Clark v. Molyneux (1877) 3 Q. B. Div. 237. 
 
 (k) See Davis v. Shepstone (1886) J. C, 11 App. Ca. 187. 
 
 (l) See Kenwood v. Harrison (1872) L. R. 7 C. P. 606; but I 
 confess myself unable to reconcile much of the language used in 
 that case with Campbell v. Spottiswoode, supra, pp. 220, 221, 
 which was not cited. 
 
 (m) See Blake Odgers, op. cit. 187. The words of the Act, in 
 their literal construction, appear to throw the burden of proving 
 good faith on the publisher, which probably was not intended. 
 
 in) Per Cur. in "Wason v. Walter, L. E. 4 Q. B. at p. 87. 
 (2514)J 
 
FAIR REPORTS. 181 
 
 curate reports of proceedings in courts of justice are on 
 this footing. As late as 1868 it was decided (o) that 
 the same measure of immunity extends to reports of 
 parliamentary debates, notwithstanding that proceed- 
 ings in Parliament are technically not public. In the 
 case of judicial proceedings it is immaterial whether 
 they are preliminary or final, and, according to the pre- 
 vailing modern opinion, whether contested or ex parte, 
 and also whether the Court actually has jurisdiction or 
 not, provided that it is acting in an apparent regular 
 manner (p). The report need not be a report of the 
 whole proceedings (pp). The rule does not extend to 
 justify the reproduction of matter in its absence, or 
 otherwise unfit for general publication (g), or of pro- 
 ceedings of which the publication is forbidden by the 
 Court in which they took place. 
 
 An ordinary newspaper report furnished by a regular volunteered 
 reporter is all but conclusively presumed, if in fact fair repoi-ts. 
 * and substantially correct, to have been pub- [ * 233] 
 lished 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 (r). 
 
 A specially qualified protection is given to newspaper Act of 1881 
 reports of public meetings by a curiously framed statute :'« to news- 
 of 1881 (s). The meeting must be lawfully convened paperreports. 
 for a lawful purpose and open to the public (t) ; the re- 
 Co) Wason V. Walter, L. E. 4 Q. B. 73. And editorial com- 
 ments on a debate publi.shed by the same newspaper which pub- 
 lishes the report are entitled to the benefit of the general rule as 
 to fair comment on public affairs: ib. 
 
 (p) Usill V. Hales (1878) 3 C. P. D. 319, where the proceeding 
 reported was an application to a police magistrate, who, after 
 hearing the facts stated, declined to act on the ground of want of 
 jurisdiction; Lewis v. Levy (1858) E. B. & E. 537; 27 L. J. Q. B. 
 282. 
 
 (pp) Macdougall r. Knight (1886) 17 Ch. Div. 636 (report of 
 judgment alone privileged). 
 
 (?) Steele v. Brannan (1872) L. R. 7 C. B. 261 (a criminal case). 
 
 (rj Stevens v. Sampson (1879) 5 Ex. Div. 53. 
 
 («) The Newspaper Libel and Registration Act, 1881, 44 & 45 
 Vict. c. 60, s. 2. Its interpretation clause is almost a reductio ad 
 dbsurdum of modern abuses of parliamentary drafting. See the 
 definitions of " newspaper, " "occupation," " place of residence. " 
 
 [t) Hence it appears that in the opinion of Parliament there 
 may be meetings lawfully convened for unlawful purposes, and 
 public meetings not open to the public: quod mirum, 
 
 (2515) 
 
182 DEFAMATION. 
 
 port must not only be "fair and accurate, and published 
 without malice," but the publication of the matter com- 
 plained of must have been for the public benefit; and 
 the defendant must not have refused (u) on request to 
 insert in the same newspaper a reasonable explanation 
 or contradiction of the injurious matter. No case is 
 known to have been decided on this enactment in a court 
 of civil jurisdiction. I am disposed to think with Mr. 
 Blake Odgers (x) that it is of doubtful necessity or 
 utility. 
 
 Excess of ^^ ^^^ ''^^^ °^ privileged communications of a con- 
 
 privilege, fidential kind, the failure to use ordinary means of en- 
 suring privacy — as if the matter is sent on post-card 
 [ * 234] 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 (y). It would also seem that if a com- 
 munication intended to be made on a privileged occa- 
 sion is by the sender's negligence (as by putting letters 
 in vvTong envelopes) delivered to a person who is a 
 stranger to that occasion, the sender has not any benefit 
 of privilege. The contrary has been decided by a Divi- 
 sional Court (z), but we have reason to think that the 
 decision is by no means universally accepted in the pro- 
 fession as good law. 
 
 Honest belief Wliere the existence of a privileged occasion is estab- 
 is not neces- lished, we have seen that the plaintiff must give affir- 
 sarily reason- mative proof of malice, that is, a dishonest personal ill- 
 able belief, -will, in order to succeed. It is not for the defendant to 
 prove that his belief was founded on reasonable grounds. 
 To constitute malice there must be something more than 
 the absence of reasonable ground for belief in the mat- 
 ter 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 himself does not believe. In either 
 
 (u) Presumably we mnst understand, having authority to pro- 
 cure the insertion. The word refuse may sufficiently imply, in 
 judgment of law, power to permit. 
 
 (x) Op. cif. 261. 
 
 (y) Williamson v. Freer (1874) L. R. 9 C. P. .393. 
 
 (2) Thompson v. Dashwood (1883) 11 Q. B. D. 43. 
 (2516) 
 
COURT AND JURY 183 
 
 case he is within the protection of the rule (a). It has 
 been found difficult to impress this distinction upon 
 juries, and the involved language of the authorities 
 about "implied" and "express" malice has, no doubt, 
 added to the difficulty. * The result is that [ * 235] 
 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 (6). In theory, however, 
 the relation of the Court to the jury is the same as ill 
 other questions of "mixed fact and law." Similar 
 difficulties have been felt in the law of Negligence, as 
 we shall see under that head. 
 
 Lord Campbell's Act (6 & 7 Vict. c. 96, ss. 1, 2), con- Special pro- 
 tains special provisions as to proving the offer of an cedure in 
 apology in mitigation of damages in actions for defa- actions for 
 mation, and payment into court together with apology J'i^^fs'^^^'''^ 
 in actions for libel in a public print (c). 
 
 (a) Clark v. Molyneux (1877) 3 Q. B. Div. 237, per Bramwell 
 L. .T. at p. 244; per Brett L. J. at pp. 247-8; per Cotton L. J. at 
 p. 249. 
 
 (6) Langhton v. Bishop of Sodor and Man (1872) L. R. 4 P. 0. 
 495, and authorities there cited; Spill v. Maule (1869) Ex. Ch. L. 
 E. 4 Ex. 232. 
 
 (c) The Rules of Court of 1875 had the effect of enlarging and 
 so far superseding the latter provision; but see now Order XXII. 
 r. 1, and " The Annual Practice" thereon. 
 
 (2517) 
 
184 
 
 WRONGS OF FRAUD AND MALICE. 
 
 [ * 236] * CHAPTEE VIII. 
 
 WRONGS OP FRAUD AND MALICR 
 
 I. — Deceit. 
 
 Nature of ^^ ^^® foregoing chapters we dealt with wrongs affect- 
 the wrong, ing the so-called primary rights to security for a man's 
 person, to the enjoyment of the society and obedience 
 of his family, and to his reputation and good name. In 
 these cases, exceptional conditions excepted, the knowl- 
 edge or state of mind of the person violating the right 
 is not material for determining his legal responsibility. 
 This is so even in the law of defamation, as we have 
 just seen, the artificial use of the word " malice" not- 
 withstanding. We now come to a kind of wrongs in 
 which either a positive wrongful intention, or such 
 ignorance or indifference as amounts to guilty reckless- 
 ness (in Roman terms either dolus or culpa lata) is a 
 necessary element; so that liability is founded not in an 
 absolute right of the plaintiff, but in the unrighteous- 
 ness of the defendant. 
 
 Concurrent 
 jurisdiction 
 of commoQ 
 law and 
 equity. 
 
 The wrong called Deceit consists in leading a man? 
 into damage by wilfully or recklessly causing him to 
 believe and act on a falsehood. It is a cause of action, 
 by the common law (the action being an action on the 
 case founded on the ancient writ of deceit (a), which 
 had a much narrower scope): and it has likewise been 
 dealt with by courts of equity under the general juris- 
 [ * 237] diction of * the Chancery in matters of fraud. 
 The principles worked out in the two jurisdictions are 
 believed to be identical (&), though there may be a 
 theoretical difference as to the character of the remedy, 
 ■which in the Court of Chancery did not purport to be 
 damages but restitution (c). Since 1875, therefore, 
 we have in this case a real and perfect fusion of rules 
 of common law and equity which formerly were distinct, 
 though parallel and similar. 
 
 (a) F. N. B. 95 E. sqq. 
 
 (6) See per Lord Chelmsford, L. E. 6 H. L. at p. 390. 
 
 (e) See p. 167, above. 
 
 (2518) 
 
DECEIT. 185 
 
 The subject has been one of considerable difficulty Difficulties of 
 for several reasons. the subject: 
 
 First, the law of tort is here much complicated with (complication 
 the law of contract. A false statement may be the in- ^!|*g^ '^°'^~ 
 ducement to a contract, or may be a part of a contract, 
 and in these capacities may give rise to a claim for the 
 rescission of the contract obtained by its means, or for 
 compensation for breach of the contract or of a collate- 
 ral warranty. A false statement unconnected with any 
 contract may likewise create, by way of estoppel, an ob- 
 ligation analogous to contract. And a statement capa- 
 ble of being regarded in one or more of these ways 
 may at the same time afford a cause of action in tort 
 for deceit. " If, when a man thinks it highly probable 
 that a thing exists, he chooses to say he knows the 
 thing exists, that is really asserting what is false: it is 
 positive fraud. That has been repeatedly laid down. 
 ... If you choose to say, and say without inquiry, 
 ' I warant that,' that is a contract. If you say, ' I 
 know it,' and if you say that in order to save the trou- 
 ble of inquiry, that is a false representation — you are 
 saying what is false to induce them to act upon it " 
 (d). 
 
 The grounds and results of these forms of liability 
 are * largely similar, but, cannot be assumed [ * 238] 
 to be identical. The authorities establishing what is a 
 cause of action for deceit are to a large extent converti- 
 ble with those which define the right to rescind a con- 
 tract for fraud or misrepresentation, and the two classes 
 of cases are commonly cited without any express dis- 
 crimination. Yet we have no warrant before close ex- 
 amination for making sure that they are convertible to 
 the full extent. 
 
 Secondly, there are difficulties as to the amount of Questions of 
 actual fraudulent intention that must be proved against fraudulent 
 a defendant. A man may be, to all practical intents, intent. 
 deceived and led into loss by relying on words or con- 
 duct of another which did not proceed from any set 
 purpose to deceive, but perhaps from an unfounded ex- 
 pectation that what he stated or suggested would be 
 justified by the event. In such a case it seems hard 
 that the party misled should not have a remedy, and 
 yet there is something harsh in saying that the other is 
 guilty of fraud or deceit. An over- sanguine and care- 
 less man may do a smuch harm as a deliberately fraudu- 
 
 (d) Lord Blackburn. Brownlie v. Campbell (1880), 5 App. Ca. 
 (Sc.) at p. 953. 
 
 (2519) 
 
186 WRONGS OF FKAUD AND MALICE. 
 
 lent one, but the moral blame is not equal. Again, the 
 jurisdiction of courts of equity in these matters has 
 always been said to be founded on fraud. Equity 
 fudges, therefore, were unable to frame a terminology 
 which should clearly distinguish fraud from culpable 
 misrepresentation not amounting to fraud, but having 
 similar consequences in law: and on the contrary they 
 were driven, in order to maintain and extend a right- 
 eous and beneficial jurisdiction, to such vague and con- 
 fusing phrases as " constructive fraud," or " conduct 
 fraudulent in the eyes of this Court." Thus they ob- 
 tained in a cumbrous fashion the results of the bolder 
 Roman maxim culpa lata dolo aequiparatur. The re- 
 sults were good, but, being so obtained, entailed the 
 [ * 239] cost of much * laxity in terms and some laxity 
 of thought. Of late years there has been a reaction 
 against this habit, wholesome in the main, but not free 
 from some danger of excess. " Legal fraud " is an ob- 
 jectionable term, but it does not follow that it has no 
 real meaning (d). One might as well say that the 
 "common counts" for money had and received, and 
 the like, which before the Judicature Acts were annexed 
 to most declarations in contract, disclosed no real cause 
 of action, because the " contract implied in law " which 
 they supposed was not founded on any actual request 
 or promise. 
 
 Fraud of Thirdly, special difficulties of the same kind have 
 
 agents. arisen with regard to false statements made by an agent 
 
 in the course of his business and for his principal's 
 purposes, but without express authority to make such 
 statements. Under these conditions it has been thoughti 
 harsh to hold the principal answerable; and there is a 
 further aggravation of difficulty in that class of cases 
 (perhaps the most important) where the principal is a 
 corporation, for a corporation has been supposed not to 
 be capable of a fraudulent intention. We have already 
 touched on this point (e) ; and the other difficulties ap- 
 pear to have been surmounted, or to be in the way of 
 being surmounted, by our modern authorities. 
 
 General con- Having indicated the kind of problems to be met 
 
 ditions of the with,' we proceed to the substance of the law. 
 
 right of Tq create a right of action for deceit there must be 
 action. fl 
 
 (d) See per Eramwell L. J., "Weir v. Bell, 3 Ex. D. at p. 243. 
 
 (e) P. 51, above. The difficulties may be said to have culmi- 
 nated in Udell v. Atherton (1861) 7 H. & N. 172; 30 L. J. Ex. 
 3157, where the Court was equally divided. 
 
 (2520) 
 
WJIAT IS DECEIT. 187 
 
 a statement made by the defendant, or for which he is 
 * answerable as principal, and with regard to [ * 240] 
 that statement or the following conditions must con- 
 cm-: 
 
 (a) It is untrue in fact. 
 
 (b) The person making the statement, or the per- 
 
 son responsible for it, either knows it to be 
 untrue, or is culpably ignorant (that is, reckless 
 or careless) (/) whether it be true or not. 
 
 (c) It is made to the intent that the plaintiff shall 
 
 act upon it, or in a manner apparently fitted 
 to induce him to act upon it (g). 
 
 (d) The plaintiff does act in reliance on the state- 
 
 ment in the manner contemplated or mani- 
 festly probable, and thereby suffers damao-e 
 (h). 
 There is no cause of action without actual damage, 
 or the damage is the gist of the action (i). 
 
 And according to the general principles of civil lia- 
 bility, the damage must be the natural and probable 
 consequence of the plaintiff's action on the faith of the 
 defendant's statement. 
 
 (e) The statement must be in writing and signed in 
 
 one class of cases, namely where it amounts 
 to a guaranty; but this requirement is statu- 
 tory, and as it did not apply to the Court of 
 Chancery, does not seem to apply to the High 
 Court of Justice in its equitable jurisdiction. 
 
 Of these heads in order. 
 
 * (a) A statement can be untrue in fact [ * 241] Falsehood 
 only if it purports to state matter of fact. A promise in fact, 
 is distinct from a statement of fact, and breach of con- 
 tract, whether from want of power or of will to perform 
 one's promise, is a different thing from deceit. Again 
 a mere statement of opinion or inference, the facts on 
 which it purports to be founded being notorious or 
 equally known to both parties, is different from a state- 
 
 (f) Cotton L. J., 29 Ch. Dlv 479. 
 
 iff} See Polhill v. Walter, 3B. & Ad. 114, 123. 
 
 (h) Cp. for the general rules Lord Hatherly (Page Wood, V.- 
 C), Barry v. Croskey (1861) 2 J. & H. at pp. 22-3, approved by 
 Lord Cairns in Peek ^>. Gurney, L. R. 6 H. L. at p. 413; Bowen 
 L. J., Edgington v. Fitzmaurice (1885) 29 Ch. Div. at pp. 421-2; 
 and Lindley L. J., Smith v. Chad wick {1882) 20 Ch. Div. at p. 75. 
 . (i) Lord Blackburn, Smith v. Chad wick (1884) 9 App. Ca. at 
 p. 196. 
 
 (2521) 
 
188 WRONGS OF FRAUD AND MALICE. 
 
 ment importing that certain matters of facts are witiiin 
 the particular knowledge of the speaker. A man can- 
 not hold me to account because he has lost money by 
 following me in an opinion which turned out to be er- 
 roneous. In particular cases, however, it may be hard 
 to draw the line between a mere expression of opinion 
 and an assertion of specific fact (j). And a man's 
 intention or purpose at a given time is in itself a mat- 
 ter of fact, and capable (though the proof be seldom 
 easy) of being found as a fact. " The state of a man's 
 mind is as much a fact as the state of his digestion" 
 (k). It is settled that the vendor of goods can rescind 
 the contract on the ground of fraud if he discovers 
 within due time that the buyer intended not to pay the 
 price (Z). 
 
 When a prospectus 48 issued to shareholders in a 
 company or the like to invite subscriptions to a loan, a 
 statement of the purposes for which the money is 
 wanted — in other words, of the borrower's intention as 
 to its application — is a material statement of fact, and 
 [ * 242] if untrue may be *ground for an action of 
 deceit (m). The same principle would seem to apply to 
 a man's statement of the reasons for his conduct, if in- 
 tended or calculated to influence the conduct of those 
 with whom he is dealing (?i) ; as if an agent employed 
 to buy falsely names, not merely as the highest price he 
 is willing to give, but as the actual limit of his author- 
 ity, a sum lower than that which he is really empow- 
 ered to deal for. 
 
 Misrepresen- A representation concerning a man's private rights, 
 tations of though it may involve matters of law, is as a whole 
 law. deemed to be a statement of fact. Where officers of a 
 
 company incorporated by a private Act of Parliament ac- 
 cept a bill in the name of the company, this is a repre- 
 
 (,;') Compare Pasley v. Freeman (1789) 3 T. R. 51, with Hay- 
 craft u Creasy (1801) 2 East 92, where Lord Kenyon's dissent- 
 ing judgment may be more acceptable to' the latter-day reader 
 than those of the majority. 
 
 (k) Bowen L. J. 29 Ch. Div. 483. 
 
 (I) Clough V. L. and N. W. E. Co. (1871) Ex. Ch. L. E. 7 Ex. 
 26; cp. per Mellish L. J., Ex parte Whittaker (1875) 10 Ch. at 
 p. 449. Whether in such case an action of deceit would lie is a 
 merely speculative question, as if rescission is impracticable, and 
 if the fraudulent buyer is worth suing, the obviously better 
 course is to sue on the contract for the price. 
 
 (m) Edgington v. Fitzmaurioe (1884) 29 Ch. Div. 459. 
 
 (n) It is submitted that the contrary opinion given in Vernon 
 V. Keys (1810) Ex. Ch. 4 Taunt. 488, can no longer be considered 
 law. 
 
 (2522) 
 
■WHAT IS DECEIT. 189 
 
 sentation that they have puwer so to do under the Act 
 of Parliament, and the existence or non-existence of 
 such power is a matter of fact. " Suppose I were to 
 say I have a private Act of Parliament which gives me 
 power to do so and so. Is not that an assertion that I 
 have such an Act of Parliament? It appears to me to 
 be as much a representation of a matter of fact as if I 
 had said I have a particular bound copy of Johnson's 
 Dictionary " (o). A statement about the existence or 
 actual text of a public Act of Parliament, or a reported 
 decision, would seem to be no less a statement of fact. 
 With regard to statements of matters of general law 
 made only by implication, or statements of pure propo- 
 sitions of the law, the rule may perhaps be this, that in 
 dealings between parties who have equal means of as- 
 certaing the law, the one will not be presumed to rely 
 upon a statement of matter of law made by * the [ * 243] 
 other (p). It has never been decided whether proof of 
 such reliance is admissible; it is submitted that if the 
 case arose it could be received, though with caution. 
 Of course a man will not in any event be liable to an 
 action of deceit for misleading another by a statement 
 of law, however erroneous, which at the time he really 
 believed to be correct. That cause would fall into the 
 general category of honest though mistaken expressions 
 of opinion. If there be any ground of liability, it is 
 not fraud but negligence, and it must be shown that 
 the duty of giving competent advice had been assumed 
 or accepted. 
 
 It remains to be noted that a statement of which Falsehood bj 
 every part is literally true may be false as a whole, if garbled state- 
 by reason of the omission of material facts it is as a ™ents. 
 whole calculated to mislead a person ignorant of those 
 facts into an inference contrary to the truth (q). 
 
 (b) As to the knowledge and belief of the person Knowledge 
 making the statement. or belief of 
 
 defendant. 
 
 (o) "West London Commercial Bank v. Kltson (1884) 13 Q. B. 
 Div. 360, per Bowen L. J. at p. 363. 
 
 (p) This appears to be the real ground of Rashdall v. Ford 
 (1866) 2 Eq. 750. 
 
 (q) " There must, in my opinion, be some active misstatement 
 of fact, or at all events such a partial and fragmentary statement 
 of fact as that the withholding of that which is not stated makes 
 that which is stated absolutely false :" Lord Cairns, L. E. 6 H. 
 L. 403. 
 
 (2523) 
 
190 
 
 WRONGS OP FRAUD AND MALICE. 
 
 Eepresentar 
 tions subse- 
 quently dis- 
 covered to be 
 untrue. 
 
 He may believe it to be true (r). In that case he 
 incurs no liability, nor is he bound to show that his be- 
 lief was founded on such grounds as would produce the 
 same belief in a prudent and competent man (s), except 
 so far as the absence of reasonable cause may tend to 
 [ * 244] the * inference that there was not any real 
 belief An honest though dull man cannot be held 
 guilty of fraud any more than of "express malice"; 
 but there is a point beyond which courts will not believe 
 in honest stupidity. " If an untrue statement is made," 
 said Lord Chelmsford, " founded upon a belief which 
 is destitute of all reasonable grounds, or which the least 
 inquiry would immediately correct, I do not see that it 
 is not fairly and correctly characterized as misrepresen- 
 tation and deceit " (t); Lord Cr an worth preferred to 
 say that such circumstances might be strong evidence 
 that the statement was not really believed to be true (u). 
 But the rule is subject to a qualification, to be presently 
 mentioned, in the case of matters which have actually 
 been within a man's knowledge in the course of busi- 
 ness or duty connected with the transaction in hand. 
 
 If, having honestly made a representation, a man dis- 
 covers that it is not true before the other party has acted 
 upon it, what is his position ? It seems on principle 
 that, as ths offer of a contract is deemed to continue 
 till revocation or acceptance, here the representation 
 must be taken to be continuously made until it is acted 
 upon, so that from the moment the party making it dis- 
 covers that it is false and, having the means of commu 
 nicating the truth to the other party, omits to do so, he 
 is in point of law making a false representation with 
 knowledge of its untruth. And such has been declared 
 to be the rule of the Court of Chancery for the pur- 
 pose of setting aside a deed. '" The case is not at all 
 [ * 245] varied by the circumstance that the untrue *re 
 presentation, or any of the untrue representations, may 
 in the first instance have been the result of innocent 
 error. If, after the error has been discovered, the party 
 
 (r) Collins v. Evans (1844) Ex. Ch. 5 Q. B. 820; 13 L. J. Q. B. 
 180. Good and probable reason as well as good faith was pleaded 
 and proved. 
 
 (s) Taylor v. Ashton (1843) 11 M. & W. 401; 12 L. J. Ex. 363, 
 but the actual decision is not consistent with the doctrine of the 
 modern cases on the duty of directors of companies. 
 
 {t) Western Bank of Scotland v. Addie (1867) L. R. 2 Sc. at n 
 162. *^ 
 
 (u) lb. at 168. In America Lord Chelmsford's opinion seems 
 to prevail; see Cooley on Torts, 501. 
 (2524) 
 
RECKLESS ASSERTION. 191 
 
 who has innocently made the incorrect representation 
 suffers the other party to continue in error and act on 
 the belief that no mistake has been made; this fi'om 
 the time of the discovery becomes, in the contempla- 
 tion of this Court, a fradulent misrepresentation even 
 though it was not so originally" (x). We do not 
 know of any authority against this being the true doc- 
 trine of common law as well as of equity, or as appli- 
 cable to an action for deceit as to the setting aside of a 
 contract or conveyance. Analogy seems in its favour 
 (y). Since the Judicature Acts, however, it is sufficient 
 for English purposes to accept the doctrine from equity. 
 The same rule holds if the representation was true when 
 first made, but ceases to be true by reason of some 
 event within the knowledge of the party making it and 
 not within the knowledge of the party to whom it is 
 made (z). 
 
 On the other hand if a man states as fact what he Assertions 
 does not believe to be fact, he speaks at his peril ; and maile in 
 this whether he knows the contrary to be true or has no yeckiess 
 knowledge of the matter at all, for the pretence of hav- ig'iorance. 
 ing certain information which he has not is itself a de- 
 ceit. * " He takes upon himself to warrant [ * 246] 
 his own belief of the truth of that A^hich he so asserts " 
 (a). " If persons take upon themselves to make asser- 
 tions as to which they are ignorant whether they are true 
 or untrue, they must, in a civil point of view, be held 
 as responsible as if they had asserted that which they 
 knew to be untrue" (6). These dicta, one of an emi- 
 nent common law judge, the other of an eminent 
 chancellor, are^now both classical; their direct applica- 
 tion was to the repudiation of contracts obtained by 
 fraud or misrepresentation, but they state a principle 
 
 (x) Eeynell v. Sprye (1852) 1 D M. G. 660, 709 Lord Cran- 
 worth cp. Jessel M. R. Redgrave v. Hurd (1881) 20 Cli. Div. 
 12, 13. 
 
 (y) Compare the doctrine of continuous taking in trespass de 
 bonis asportaiix, which is carried out to graver 'consequences in 
 the criminal law. Jessel Jl. R. assumed the common Jaw rule 
 to he in some way narrower than that oi equity (20 Ch. Div. 13), 
 but this was an extra-judicial dictum, i 
 
 (z) Traill r. Baring (1864) 4 D. ,T. S. 318, the diiBculty of 
 making out how there was any representation of fact in that case 
 as distinguished from a promise or condition of a contract is not 
 material to the present purpose. 
 
 (a) Maule J., Evans v. Edmonds (1853) 13 C. B. 777, 7R(i, 22 
 L. .7. C. P. 211. 
 
 (S) Lord Cairns, Reese River Silver Mining Co. v. Smith (1869) 
 L. K. 4 H. L. 64, 79. 
 
 (2525) 
 
192 
 
 WRONGS OP FRAUD AND MALICE. 
 
 Breach of a 
 special duty 
 to give cor- 
 rect infor- 
 mation. 
 
 •which is well understood to include liability in an ac- 
 tion for deceit (c). 
 
 "With regard to transactions in which a more or less 
 stringent duty of giving full and correct information 
 (not merely of abstaining from falsehood or conceal- 
 ment equivalent to falsehood) is imposed on one of the 
 parties, it may be doubted whether an obligation of this 
 kind annexed by law to particular classes of contracts 
 can ever be treated as independent of contract. If a 
 misrepresentation by a vendor of real property, for ex- 
 ample, is wilfully or recklessly false, it comes within 
 the general description of deceit. But there are errors 
 of mere inadvertence which constantly suffice to avoid 
 contracts of these kinds, and in such cases I do not 
 think an action for deceit (or the analogous suit in 
 equity) is known to have been maintained. As regards 
 these kinds of contracts, therefore — but, it is submitted, 
 these only — the right of action for misrepresentation as 
 [ * 247] a wrong is not co-extensive with the * right of 
 rescission. In some cases compensation may be recov- 
 ered as an exclusive or alternative remedy, but on dif- 
 ferent grounds, and subject to the special character and 
 terms of the contract. 
 
 False asser- 
 tion as to 
 matters 
 ■within the 
 party's for- 
 mer know- 
 ledge. 
 
 The qualification of the rule that the defendant must 
 be shown not to have believed the truth of his asser- 
 tion (if it really be a qualification) is -that a person 
 cannot excuse himself for misrepresenting material facts 
 which have been specially within his own knowledge, 
 and of which he is the proper person to give informa- 
 tion, by alleging that at the moment he forgot the true 
 state of things. It is a trustee's business to know 
 whether or not he has had notice of a prior incumbrance 
 (d), a lessor's business to know whether or not he has 
 already granted a lease (e). Inadvertence on the part 
 of such persons, which leads innocent third parties to 
 accept worthless securities on the faith of their state- 
 ments, is not the ordinary negligence into which a well - 
 meaning man may fall by occasional lack of skill or at 
 ' tention. It is gross and on the verge of fraud, hardly 
 distinguishable from deliberate fraud in its character, 
 
 (e) Taylor v. Ashton (1843) 11 M. & W. 401; 12 L. J. Ex. 363. 
 Edgington v. Fitzmaurice (1885) 29 Ch. Div. 459, 479, 481, cp. 
 Smith V. Chad wick (1884) 9 App. Ca. at p. 190, per Lord Sel- 
 borne. 
 
 (d) Burrowes v. Lock (1805) 10 Ves. 470. 
 
 (e) Slim V. Croucher (1860) 1 D. F. J. 518 
 
 (2526) 
 
DECEIT : SPECIAL KULES. 193 
 
 and not at all distinguishable in its results. A ques, 
 tion might be raised whether the rule is not a rule or 
 presumption of evidence rather than of law; a man may 
 allege that he fogot that which was within his parti- 
 cular knowledge and business, and so made a false re- 
 port of it to another's damage with the sincere belief 
 that he was speaking truly, but he will hardly persuade 
 the Court to accept such an allegation (/). But the 
 equivalence of culpa lata to dolus is an ancient and 
 salutary rule of law, though particular * appli [ * 248] 
 cations of it may be modern, and it is better not to re- 
 fine upon it. 
 
 This principle seems to account for the possible, 
 though not very probable, case of a statement being 
 made, by a clerical blunder or the like, to convey a 
 meaning wholly different from that which was intended 
 (gf). A railway company does not intend to advertise 
 trains which have been taken off, but it may happen 
 that by negligence the tables are not corrected {h). 
 Material qualifying words, or even a downright nega- 
 tive, may be omitted by a printer's error, without obvi- 
 ous correction from the context. In such cases it would 
 seem that gross negligence is equivalent to wrongful 
 intention, but failure to use all possible caution — unless 
 in circumstances imposing a special duty — is not. 
 
 (c) It is not a necessary condition of liability that t i a- e 
 the misrepresentation complained of should have been the state- 
 made directly to the plaintiff, or that the defendant ment. 
 should have intended or desired any harm to come to 
 him. It is enough that the representation was intended 
 for him to act upon, and that he has acted in the man- 
 ner contemplated, and suffered damage which was a 
 natural and probable consequence. If the seller of a 
 gun asserts that it is the work of a well-known maker 
 and safe to use, that, as between him and the buyer, is 
 a warranty, and the buyer has a complete remedy in 
 contract if the assertion is found untrue ; and this will 
 generally be his better remedy, as he need not then al- 
 lege or prove anything about the defendant's knowl- 
 edge; but he may none the less treat the warranty, if it 
 be fraudulent, as a substantive ground of action in tort. 
 If the buyer wants the gun * not for his own [ * 249] 
 use, but for the use of a son to whoru he means to give 
 
 (/) Compare the different forms of statement used by Lord 
 Chelmsford and Lord Cranworth, p. 244, above. • 
 (g) See per Lord Blackburn, 9 App. Ca. 201. 
 (70 See Denton v. G. N. E. Co. , p. 250, below. 
 13 LAW OF TOETS. (2527) 
 
194 
 
 WRONGS OF FEAUD AND MALICE. 
 
 Representa- 
 tions to a 
 class of 
 persons 
 Polhill V. 
 Walter. 
 
 Denton v. 
 G. N. E. Co. 
 
 it, and the seller knows this, the seller's assertion is a 
 representation on which he intends or expects the buy- 
 er's son to act. And if the seller has wilfully or reck- 
 lessly asserted that which is false, and the gun, being 
 in fact of inferior and unsafe manufacture, bursts in the 
 hands of the purchaser's son and wounds him, the sel- 
 ler is liable to that son, not on his warranty (for there 
 is no contract between them, and no consideration for 
 any), but for a deceit (*'). He meant no other wrong 
 than obtaining a better price than the gun was worth ; 
 probably he hoped it would be good enough not to 
 burst, though not so good as he said it was; but he has 
 put another in danger of life and limb by his falsehood, 
 and he must abide the risk. We have to follow the 
 authorities yet farther.- 
 
 A statement circulated or published in order to be 
 acted on by a certain class of persons, or at the pleasure 
 of any one to whose hands it may come, is deemed to 
 be made to that person who acts upon it, though he 
 may be wholly Unknown to the issuer of the statement. 
 A bill is presented for acceptance at a merchant's of- 
 fice. He is not there, but a friend, not his partner or 
 agent, who does his own business at the same place, is 
 on the spot, and, assuming without inquiry that the 
 bill is drawn and presented in the regular course of 
 business, takes upon himself to accept the bill as agent 
 for the drawee. Thereby he represents to every one 
 who may become a holder of the bill in due course that 
 he has authority to accept ; and if he has in fact no 
 authority, and his acceptance is not ratified by the 
 nominal principal, he is liable to an action for deceit, 
 though he may have thought his conduct was for the 
 [ * 250] * benefit of all parties, and expected that the 
 acceptance would be ratified (A;). 
 
 Again the current time-table of a railway company is 
 a representation to persons meaning to travel by the 
 company'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 
 off is announced as still running, this is a false repre- 
 sentation, and (belief in its truth on the part of the 
 company's servant's being out of the question) a person 
 
 (i) Langridge v. Levy (1837) 2 M. AW. 519: affirmed (very 
 briefly) in Ex. Ch. 4 M. & W. 338. 
 
 (k) Polhill 0. Walter (1832) 3 B. &Ad. 114. The more recent 
 doctrine of implied warranty was then unknown. 
 (2528) 
 
DECEIT : RELIANCE ON REPRESENTATION. 195 
 
 who by relying on it has missed an appointment and in- 
 cun-ed loss may have an action for deceit against the 
 company (l). Here 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 importance to the public of 
 accuracy in these announcements. 
 
 Again the prospectus of a new company, so far forth peek v. 
 as it alleges matters of fact concerning the position and Gurney. 
 prospects of the undertaking, is a representation ad- 
 dressed to all persons who may apply for shares in the 
 company; but it is not deemed to be addressed to per- 
 sons who after the establishment of the company be- 
 come purchasers of shares at one or more removes from 
 the original holders (II), for the office, of the prospectus 
 is exhausted when once the * shares are al- [ * 251] 
 lotted. As regards those to whom it is addressed, it 
 matters not whether the promoters wilfully use mis- 
 leading language or not, or do or do not expect that the 
 undertaking will ultimately be successful. The ma- 
 terial question is, " Was there or was there not misre- 
 presentation in point of fact?" (m). Innocent or 
 benevolent motives do not justify an unlawful intention 
 in law, though they are too often allowed to do so in 
 popular morality. 
 
 (d) As to the plaintiff's action on the faith of the de- Reliance on 
 fendant's representation. the represen- 
 
 A. by words or acts represents to B. that a certain *'''tio"- 
 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. disbeliev- 
 ing and rejecting A.'s assertion is equally simple. 
 
 Another case is that A.'s representation is never com- 
 municated to B. Here, though A. may have intended 
 to deceive B., it is plain that he has not deceived him ; 
 
 (?) So held unanimously in Denton v. G. N. R. Co. (1856) 5 E. 
 & B. 860; 25 L. J. Q. B. 129. Lord Campbell C. J., and Wight- 
 man J., held (dubit. Crompton J.) that there was also a cause of 
 action in contract. The difficulty often felt about maintaining 
 an action for deceit against a corporation does not seem to have 
 occurred to any member of the Court. 
 
 (II) Peek V. Gumey (1873) L. R. 6 H. L. 377, 400, 411. 
 
 (m) Lord Cairns, L. R. 6 H. L., at p. 409. Cp. per Lord Black- 
 bum, Smith V. Chadwick, 10 App. Ca. at p. 201. 
 
 (2529) 
 
196 
 
 WRONGS OF PKAUD AND MALICE. 
 
 Means of 
 knowledge 
 immaterial 
 ■without 
 actual inde- 
 pendent 
 inquiry. 
 
 and an unsuccessful attempt to deceive, however un- 
 righteous 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 purpose of deceiv- 
 ing an inspection cannot be said to have thereby de- 
 ceived a buyer who omits to make any inspection at all. 
 We should say this was an obvious proposition, if it had 
 [ * 252] not been judicially doubted (n). * 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 poten- 
 tial fraud directed against precautions which he did not 
 use. A false witness who is in readiness 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 testing the defendant's statement, indicated 
 by the defendant himself, or otherwise within the plain- 
 tiff's power, and either does not use them or uses them 
 in a partial and imperfect manner. Here it seems 
 plausible at first sight to contend that a man who does 
 not use 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 in- 
 quiry. But the ground of this kind of redress is not 
 the merit of the plaintiff, but the demerit of the defen- 
 dant: 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 repre- 
 sentation 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 contributory 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 defendant, was the proximate 
 cause of his damage. If the seller of a business fraud- 
 ulently overstates the amount of the business and re- 
 turns, and thereby obtains an excessive 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 (nn). 
 
 (») Horsfall r. Thomas (1862) 1 H. & C. 90; 31 L. J. Ex. 322, 
 a case of contract, so that aforiiori an action for deceit would not 
 lie ; dissented from by Cockburn C. J., L. R. 6 Q. B. at p. 605. 
 The case was a peculiar one, but could not have been otherwise 
 decided. 
 
 {nn) Dobell r. Stevens (1825) 3 B. & C. 623. 
 (2530) 
 
DECEIT : KNOWLEDGE OR INQUIRY. 19^/ 
 
 And the same principle applies as long as [ * 253] reriunctary 
 the party substantially puts his trust in the represen- inquiry will 
 tation made to him, even if he does use some observa- °°* ^^' 
 tion of his own. 
 
 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 representa- 
 tion, which he had a right to believe " (o). The buyer 
 of a business is not deprived of redress for misrepre- 
 sentation of the amount of profits, because he has seen 
 or held in his hand a bundle of papers alleged to eon- 
 tain 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 doc- 
 uments referred to in the prospectus, which he might 
 have seen by applying at the company's office (q). 
 
 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 prove any of these things if he can. It is not an 
 absolute proposition of law * that one who, [ * 254] 
 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 con- 
 trary proof. But the inference is often irresistible (s). 
 
 Difficulties may arise on the construction of the state- Ambiguous 
 ment alleged to be deceitful. Of course a man is re- statements. 
 sponsible for the obvious meaning of his assertions; 
 
 (o) Dyer v. Hargrave (ISO.")) 10 Ves. at p. 510 (cross suits for 
 specific performance and compensation). 
 
 (p) Redgrave v. Hurd (1881) 20 Ch. Div. 1 (action for specific 
 performance, counterclaim tor rescission and damages). 
 
 (q) Central R. Co. of Venezuela v. Kisch (1867) L. R. 2 H L. 
 99, 120, per Lord Chelmsford. A case of this kind alone would 
 not prove the rule as a general one, promoters of a company be- 
 ing under a special duty of fiill discloisure. 
 
 7r) See especially per Jessel M. R. 20 Ch. Div. 21. 
 
 (s) See per Lord Blackburn, Smith v. Chadmck, 9 App. Ca. at 
 p. 196. 
 
 (2531) 
 
198 WRONGS OF FRAUD AND MALICE. 
 
 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 per- 
 sons 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 consideration of the various construc- 
 tions proposed (u). 
 
 Lord Tenter- (e) It has already been observed in general that a 
 den's Act. false representation may at the same time be a promise 
 or term 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 
 [ * 255] guaranty could be * sued on in tort by treat- 
 ing it as a fraudulent affirmation instead of a promise, 
 the statute might be largely evaded. Such actions, in 
 fact, were a novelty a century and a quarter after the 
 statute had been passed (x), much less were they fore- 
 seen 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 a 
 time when the parties could not be witnesses in a court 
 of common law, the objection had much force. By 
 Lord Tenderden's Act, as it is commonly called (z), the 
 following provision was made: — 
 
 " No action shall be brought whereby to charge any 
 person upon or by reason of any representation or as- 
 surance 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 
 
 (;) Smith V. Chadwick (1884) 9 App. Ca. 187, especially Lord 
 Blackburn's opinion. 
 
 («) In the ease last cited (1881-2) (Fry J., and C. A. 20 Ch. 
 Div. 27), Fry J. and Lord Bramwell decidedly adopted one con- 
 struction of a particular statement; Lindley L. J., the same, 
 though less decidedly, and Cotton L. J., another, while 'Jessel 
 M. R. , Lord Selborne, Lord Blackburn, and Lord Watson thought 
 it ambiguous. 
 
 (x) See the dissenting judgment of Grose J. in Pasley v. Free- 
 man (1789) 3 T. E. 51, and 2 Sm. L. C. 
 
 (y) By Lord Eldon in Evans v. Bioknell (1801) 6 Ves. 174, 
 182, 186. 
 
 («) 9 Geo. 4, c. 14, s. 6. 
 
 (2532) 
 
FALSE GUARANTIES. 199 
 
 (a), unless such representation or assurance be made 
 in writing, signed by the party to be charged there- 
 with." 
 
 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 autho- 
 rized," and it has been decided that signature by an 
 agent will not do (6). Some doubt exists whether the 
 word " ability " 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 [ * 256] 
 some specific circumstances 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 (66). Such a statement is not the less within it, 
 however, because it includes the allegation of a specific 
 collateral circumstance as a reason (c). 
 
 A more serious doubt is whether the enactment be QniBre as to 
 now practically operative in England. The word " ac- the law un- 
 tion " of course did not include a suit in equity at the ^^'^ ^^^ J^<^^" 
 date of the Act, and the High Court has succeeded to "^^'^''^ ^''^■ 
 all (and in some points more than all) the equitable 
 jurisdiction and powers of the Court of Chancery. But 
 that court would not in a case of fraud, however un- 
 doubted its jurisdiction, act on the plaintiff's oath 
 against the defendant's, without the corroboration of 
 documents or other material facts; and it would seem 
 that in every case of this kind where the Court of 
 Chancery had concurrent jurisdiction with the courts 
 of common law (and it is difficult to assign any where 
 it had not), Lord Tenterden's Act is now superseded 
 by this rule of evidence or judicial prudence. 
 
 There still remain the questions which arise in the Misrepresen- 
 case of a false representation made by an agent on ac- tations made 
 count of his principal. Bearing in mind that reckless ^^ agents. 
 ignorance is equivalent to guilty knowledge, we may 
 state the alternatives to be considered as follows: — 
 
 The principal knows the representation to be false 
 
 (a) Sic. It is believed that the word "credit" was acciden- 
 tally transposed, so that the true reading would be "obtain mo- 
 ney or goods upon credit:" see Lyde v. Barnard (1836) 1 M. & 
 W. 101, per Parke B. Other conjectural emendations are sug- 
 gested in his judgment and that of Lord Abinger. 
 
 (b) Swift V. Jewsbury (1874) Ex. Ch. L. R. 9 Q. B. 301. 
 
 (bh) Parke and Alderson BB. in Lyde v. Barnard (1836) supra: 
 contra Lord Abinger C. B. and Gumey B. 
 
 (c) Swan V. Phillips (1838) 8 A. & E. 457. 
 
 (2533) 
 
200 WRONGS OF FRAUD AST) MALICE. 
 
 and authorizes the making of it. Here the 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. 
 
 [ * 257J * 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 course of his em- 
 ployment and for the principal's purposes, and, accord- 
 ing to the general rule of liability for the acts and de- 
 faults of an agent, the principal is liable (d). 
 
 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 (e). But 
 what if there was not any contract, or rescission has be- 
 come impossible ? Has he a distinct ground of action, 
 and if so how ? Shall we say that the agent had ap- 
 parent 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 information to enable third 
 persons to deal with the agent as thej' would with the 
 principal? Or shall we say, less artificially, that it is 
 gross negligence to withhold from the agent informa- 
 tion so material that for want of it he is likely to mis- 
 lead third persons dealing with the principal through 
 him, and such negligence is justly deemed equivalent 
 to fraud ? Such a thing may certainly be done with 
 [ * 258] * 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 conse- 
 
 {d) Parke B. 6 M. & W. 373. 
 
 (e) See Principles of Contract, 530. In Cornfoot r. Fowke, 6 
 M. & W. Sns, it is difficult to suppose that as a matter of f;iet the 
 agent's asscition tan have been otherwise than reckless: what 
 "was actually decided was that it was misdirection to tell the jury 
 without qualification " that the representation made by the 
 agent must have the same effect as if made by the plaintiff him- 
 self:" the defendant's plea averring fraud without qualification. 
 (2534) 
 
FRAUD BY OR THROUGH AGENT. 201 
 
 quences (/). If the same thing happens by inadvert- 
 ence, it seems inconvenient to treat such inadvertence 
 as venial, or exempt it from the like consequences. We 
 think, therefore, that an action lies against the princi- 
 pal; 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. 
 
 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 indica- 
 tion — " 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 rep- Liability of 
 resentation, and does not know the contrary to be true, corporations 
 but the agent does, the representation being in a mat- herein. 
 ter within the general scope of his authority, the prin- 
 cipal is liable as he would be for any other wrongful 
 act of an agent about his business. And as this liabil- 
 ity is not founded on any personal default in the prin- 
 cipal, it equally holds when the principal is a corpora- 
 tion (g). It has been suggested, but * never [ * 259] 
 decided, that it is limited to the amount by which the 
 principal has profited through the agent's fraud. The 
 Judicial Committee have held a principal liable who got 
 no profit at all (h). 
 
 But it seems to be still arguable that the proposed 
 limitation holds in the case of the defendant being a 
 corporation (i), though it has been disregarded in at 
 least one comparatively early decision of an_English su- 
 perior court, the bearing of which on this point has appar- 
 
 (/) Admitted by all the Barons in Cornfoot !'. Fowke; Parke 
 6. M. & W. at pp. 362, 374, Rolfe at p. 370, Alderson at p. 372. 
 The broader \iew of Lord Abinger's dissenting judgment of 
 course includes this. 
 
 {g) Bar-wick v. English Joint Stock Bank (1867) Ex. Ch. L. R. 
 2 Ex. 259; Mackay i;. Commercial Bank of New Brunswick (1874) 
 L. K. 5 P. C. 394; Swire v. Francis (1877) 3 App. Ca. 106 (J. C); 
 Houlds-vvorth v. aty of Glasgow Bank (1880) Sc. 5 App. Ca. 317. 
 See p. 82, above. 
 
 (h) Swire v. Francis, last note. 
 
 (i) Lord Cran-worth in Western Bank of Scotland v. Addie 
 (1867) L. R. 1 Sc. & D. at pp. 166, 167. Lord Chelmsford's lan- 
 guage is much more guarded. 
 
 (2535) 
 
202 
 
 Reason of an 
 apparently 
 hard law. 
 
 WRONGS OF FRAUD AND MALICE. 
 
 ently been overlooked (k). Ulpian, on the other hand, 
 may be cited in its favour (l). 
 
 The hardest case that can be put for the principal, 
 and by no means an impossible one, is that the princi- 
 pal authorizes a specific statement v?hich he believes to 
 he true, and which at the time of giving the authority 
 is true; before the cgent has executed his authority the 
 facts are materially changed to the knowledge of the 
 agent, but unknown to the pricipal ; the agent conceals 
 this from the principal, fl,nd makes the statement as 
 originally authorized. But the case is no harder than 
 [ * 260] that of a manufacturer or carrier * who finds 
 himself exposed to heavy damages at the suit of an 
 utter stranger by reason of the negligence of a servant, 
 although he has used all diligence in choosing his ser- 
 vants and providing for the careful direction of their 
 work. The necessary and sufficient condition of the 
 master's responsibility is that the act or default of the 
 servant or agent belonged to the class of acts which he 
 was put in the master's place to do, and was committed 
 for the master's purposes. And " no sensible distinc- 
 tion can be drawn between the case of fraud and the 
 case of any other wrong." The authority of Barwick 
 V. English Joint Stock Bank (m) is believed, notwith- 
 standing the doubts still sometimes expressed, to be 
 conclusive. 
 
 II. — Slander of Title. 
 
 Slander of The wrong called Slander of Title is in truth a spe- 
 
 title. cial variety of deceit, which differs from the ordinary 
 
 type inthat third persons, not the plaintiff himself, are 
 
 [k] Denton v. G. N. E. Co (1856) p. 2.50, above. No case could 
 be stronger, for (1) the defendant was a corporation; (2) there 
 was no active or intentional falsehood, but the mere negligent 
 continuance of the announcement no longer true; (3) the corpora- 
 tion derived no profit. The point, however, was not discussed. 
 
 (I) D. 4. 3, de dolo malo. 15 I 1. Sed an in municipes de dolo 
 detur actio, dubitatur. Et puto ex suo quidem dolo non posse 
 dari, quid enim municipes dolo facere possunt? Sed si quid ad 
 eos pervenit ex dolo eorum qui res eorum administrant, puto dan- 
 dam. The Roman lawyers adljered more closely to the original 
 conception of moral fraud as the ground of action than our courts 
 have done. The aclio de dolo was famosa, and was never an al- 
 ternative remedy, but lay only when there was no other (ijlkjle his 
 rebus alia actio non erit), D. h. t. 1. 
 
 (m) L. R. 2 Ex. 259, 265. 
 (2536) 
 
SLANDER OF TITLE. 203 ' 
 
 induced by the defendant's falsehood to act in a man- 
 ner causing damage to the plaintiff. Notwithstanding 
 the current name, an action for this cause is not like an 
 action fpr ordinary defamation; it is "an action on the 
 case for special damage sustained by reason of the 
 speaking or publication of the slander of the plaintiff's 
 title" (n). Also the wrong is a malicious one in the 
 only proper sense of the word, that is, absence of good 
 faith is an essential condition of liability (o); or ac- 
 tual malice, no less than special damage, is of the gist 
 of the action. 
 
 * This kind of action is not frequent. For- [ * 261] Recent ex- 
 merly it appears to have been applied only to state- tensions of 
 ments in disparagement of the plaintiff's title to real ^P'^^'^iP^ 
 property. It is now understood that the same reason 
 applies to the protection of title to chattels, and of ex- 
 clusive interests analogous to property, though not 
 property in the strict sense, like patent rights and 
 copyright. But .an assertion of title made by way of 
 self-defence or warning in any of these matters is not 
 actionable, though the claim be mistaken, if it is made 
 in good faith (p). In America the law has been ex- 
 tended to the protection of inchoate interests under an 
 agreement. If A. has agreed to sell certain chattels to 
 B., and C. by sending to A. a false telegram in the 
 name of B., or by other wilfully false representation, 
 induces A. to believe that B. does not want the goods, 
 and to sell to C. instead, B. has an action against C. for 
 the resulting loss to him, and it is held to make no differ- 
 ence that the original agreement was not enforceable 
 for want of satisfying the Statute of Frauds (g). 
 
 A disparaging statement concerning a man's tible to 
 use an invention, design, or trade name, or his conduct 
 in the matter of a contract, may amount to a libel or 
 slander on him in the way of his business : in other 
 words the special wrong of slander of title may be in- 
 cluded in defamation, but it is evidently better for the 
 
 (n) TindalC. J., Malachy v. Soper (1836) 3 Eing. N. C. 371; 
 Bigelow L. C. 42, 52. 
 
 (o) Halsey v. Brotherhood (1881) 19 Ch. Div. 386, confirming 
 previous authorities. 
 
 (p) Wren v. Weild (1869) L. E. 4 Q. B. 730; Halsey i;. Brother- 
 hood, mpra (patent; in Wren j;. Wield the action is said to 
 be of a new kind, but sustainable with proof of malice) ; Steward 
 V. Young (1870) L. R. 5 C. P. 122 (title to goods) ; Dicks d. Brooks 
 (1880) 15 Ch. D. 22 (copyright in design), see 19 Ch. D. 391. 
 
 (q) Benton v. Pratt (1829) 2 Wend. 385; Rice v. Manley (1876) 
 66 N. Y. (21 Sickels) 82. 
 
 (2537) 
 
204 AVRONGS OF FRAUD AND MALICE. 
 
 plaintiff to rely on the general law of defamation if he 
 can, as thus he escapes the troublesome burden of prov- 
 ing malice (r). 
 
 [ * 262] * It has been held in Massachusetts that if 
 A. has exclusive privileges under a contract with B., 
 and X. by purposely misleading statements or designs 
 induces the public to believe that X. has the same 
 rights, and thereby diverts custom from A, X. is liable 
 to an action at the suit of A. (s). In that case the de- 
 fendants, who were coach owners, used the name of a 
 hotel on their coaches and the drivers' caps, so as to 
 suggest that they were authorized and employed by the 
 hotelkeeper to ply between the hotel and the railway 
 station; and there was some evidence of express state- 
 ments by the defendants' servants that their coach was 
 " the regular coach." The plaintiffs were the coach 
 owners in fact authorized and employed by the hotel. 
 The Court said that the defendants were free to compete 
 with the plaintiffs for the carriage of passengers and 
 goods to that hotel, and to advertise their intention of 
 so doing in any honest way; but they must not falsely 
 hold themselves out as having the patronage of the 
 hotel, and there was evidence on which a jury might 
 well find such holding out as a fact. The case forms, by 
 the nature of its facts, a somewhat curious link between 
 the general law of false representation and the special 
 rules as to the infringement of rights to a trade mark or 
 trade name (t). No English case much like it has been 
 met with : its peculiarity is that no title to any property 
 or to a defined legal right was in question. The hotel- 
 keeper could not give a monopoly, but only a sort of 
 preferential comity. But this is practically a valuable 
 privilege in the nature of goodwill, and equally capable 
 of being legally recognized and protected against 
 [ * 263] * fraudulent infringement. Goodwill in the 
 accustomed sense does not need the same kind of pro- 
 tection, since it exists by virtue of some express con- 
 tract which affords a more convenient remedy. Some 
 years ago an attempt was made, by way of analogy to 
 slander of title, to set up an exclusive right to the name 
 
 ()■) See Thorley's Cattle Food Co. !'. Massam (1879) 14 Ch. Div. 
 763 ; Dicks v. Brooks, last note but one. 
 
 (s) Marsh v. Billings (1851) 7 Cush. 322, and EigelowL. C. 59. 
 
 (i) The instructions given at Ihe trial (Bigelow L. C. at p. 63) 
 were held to have drawn too sharp a distinction, and to have laid 
 down too narrow a measure of damages, and a new trial was 
 ordered. It was also said that actual damage need not be proved, 
 sed qu. 
 
 (2538) 
 
205 
 
 of a house on behalf of the owner as against an adjacent 
 owner. Such a right is not known to the law (u). 
 
 The protection of trade marks and trade names was Trade marks 
 orginally undertaken by the courts on the ground of and trade 
 preventing fraud (v). But the right to a trade mark, "^™es. 
 after being more and more assimilated to proprietary 
 rights (.r), has become a statutory franchise analagous 
 to patent rights and copyright (y); and in the case of 
 a trade name, although the use of a similar name can- 
 not be complained of unless it is shown to have a ten- 
 dency to deceive customers, yet the tendency is enough; 
 the plaintiff is not bound to prove any fraudulent in- 
 tention or even negligence against the defendant (z). 
 The wrong to be redressed is conceived no longer as a 
 species .of fraud, but as being to an incorporeal fran- 
 chise -what trespass is to the possession, or right to pos- 
 session, of ' the corporeal subjects of property. We 
 therefore do not pursue the topic here. 
 
 * III. — Malicious Prosecution and Abuse of [ * 264] 
 Process. 
 
 We have here one of the few cases in which proof of Malicious 
 evil motive is required to complete an actionable wrong, prosecution. 
 " In an action for malicious prosecution the plaintiff has 
 to prove, first, that he was innocent and that bis inno- 
 cence was pronounced by the tribunal before which the 
 accusation was made; secondly, that there was a want 
 of reasonable and probable cause for the prosecution, 
 or, as it may be otherwise stated, that the circumstances 
 of the case were such as to be in the eyes of the judge in- 
 consistent with the existence of reasonable and probable 
 cause (a); and lastly, that the proceedings of which he 
 
 (m) Day V. Brownrigg (1H78) (reversing Malins V.-C.) 10 Cli. 
 Biv. 294. 
 
 (v) See per Lord Blackburn, 8 App. Ca. at p. 29; Lord West- 
 bury L. R. 5 H. L. at p. 522; Hellish L. J. 2Ch. D. at p. 453. 
 
 {x) Singer Manufacturing Co. r. Wilson (1876) 2 Ch. D* 434, 
 per Jessel M. R. at pp. 441-2; James L. J. at p. 451; Hellish L. 
 J. at p. 541. 
 
 [y) Patents, Designs, and Trade Marks Act, 1883, 46 & 47 
 Vict. c. 57. 
 
 {z) Hendrick v. Montagu (1881) 17 Ch. Div. 638; Singer Man- 
 ufacturing Co. V. Loog (1882) 8 App. Ca. 15. 
 
 (a) The facts have to be found by the jury, but the inference 
 that on those facts there was or was not reasonable and probable 
 cause is not for the jury but for the Court; cp. the authorities on 
 false imprisonment, pp. 188 — 193, above. 
 
 (2.539) 
 
206 
 
 WKONGS OF FRAUD AND MALICE. 
 
 complains were initiated in a malicious spirit, that is, 
 from an indirect and improper motive, and not in further- 
 ance of justice " (b). And the plaintiff's case fails if 
 his proof fails at any one of these points. So the law 
 has been defined by a recent judgment of the Court of 
 Appeal, confirmed by the House of Lords. It seems 
 needless for the purposes of this work to add illustra- 
 tions fi'om earlier authorities. 
 
 As in the case of deceit, and for similar reasons, it 
 has been doubted whether an action for malicious prose- 
 cution will lie against a corporation. It seems, on prin- 
 ciple, that such an action will lie if the wrongful act 
 was done by a servant of the corporation in the course 
 his employment and in the company's supposed interest, 
 and it has been so held (c), but there are dicta to the 
 contrary (d), and in particular a recent emphatic opin- 
 [ * 265] ion of Lord *Bramwell'8 (e), which, however, 
 as pointed out by some of his colleagues at the time 
 (/), was extra-judicial. 
 
 Malicious Generally speaking, it is not an actionable wrong to 
 
 civil pro- institute civil proceedings without reasonable and prob- 
 ceedings. able cause, even if malice be proved. For in contem- 
 plation of law the defendant who is unreasonably sued 
 is sufiiciently indemnified by a judgment in his favour 
 which gives him his costs against the plaintiff (g). 
 And special damage beyond the expense to which he 
 has been put cannot well be so connected with the suit 
 as a natural and probable consequence that the un- 
 righteous plaintiff, on the ordinary principles of liabil- 
 ity for indirect consequences, will be answerable for 
 them (h). " In the present day, and according to our 
 present law, the bringing of an ordinary action, however 
 maliciously, and however great the want of reasonable 
 
 (6) BoTven L. J., Abrath v. N. E. E. Co. (1883) 11 Q. B. Div.' 
 440, 455: the decision of the Court of Appeal was affirmed in H. 
 L. (1886) 11 App. Ca. 247. 
 
 (c) Edwards r. Midland Rail. Co. (1880) 6Q. B. D. 287, Fry J. 
 
 Id) See the judgment in the case last cited. 
 
 (e) 11 App. Ca. at p. 250. 
 
 (/•) Lord Fitzgerald; 11 App. Ca. at p. 244: Lord Selborne at 
 p. 256. 
 
 (g) It is common knowledge that the costs allowed in an ac- 
 tion are hardly ever a real indemnity. The true reason is that 
 litigation must end somewhere. If A. may sue B. for bringing a 
 vexatious action, then, if A. fails to persuade the Court that B.'s 
 original suit waa vexatious, E. may again sue A. for bringing 
 this latter action, and so ad infinitum. 
 
 (h) See the full exposition in the Court of Appeal in Quartz 
 Hill Gold Mining Co. v. Eyre (1883) 11 Q. B. Div. 674, especi- 
 ally the judgment of Bo wen L. J. 
 (2540) 
 
MALICIOPS ABUSE OF PROCESS. 207 
 
 and probable cause, will not support a subsequent ac- 
 tion for malicious prosecution " (i). 
 
 But there are proceedings which, though civil, are 
 not ordinary actions, and fall within the reason of the 
 law which allows an action to lie for the malicious 
 prosecution * of a criminal charge. That rea- [ * 266] 
 son is that prosecution on a charge " involving either 
 scandal to reputation, or the possible loss of liberty to 
 the person" (j), necessarily and manifestly imports 
 damage. Now the commencement of proceedings in 
 bankruptcy against a trader, or the analogous process 
 of a petition to wind up a company, is in itself a blow 
 struck at the credit of the person or company whose 
 affairs are thus brought in question. Therefore such a 
 proceeding, if instituted without reasonable and prob- 
 able cause and with malice, is an actionable wrong (fc). 
 Other similar exceptional cases were possible so long as 
 there were forms of civil process commencing with per- 
 sonal attachment; but such procedure has not now 
 any place in our system; and the rule that in an ordi- 
 nary way a fresh action does not lie for suing a civil 
 action without cause has been settled and accepted for 
 a much longer time (Z). In common law jurisdictions 
 where a suit can be commenced by arrest of the defend- 
 ant or attachment of his property, the old authorities 
 and distinctions may still be material (m). The prin- 
 ciples are the same as in actions for malicious prosecu- 
 tion, mutatis mutandis : thus an action for maliciously 
 procuring the plaintiff to be adjudicated a bankrupt 
 will not lie unless and until the adjudication has been 
 set aside (n). 
 
 Probably an action will lie for bringing and pros- 
 
 (i) Bowen L. .T. 11 Q. B. D. at p. 690. There has been a con- 
 trary decision in Vermont: Closson v. Staples (1869) 42 Vt. 209; 
 1 Am. Eep. 316. We do not think it is generally accepted in 
 other jurisdictions; it is certainly in accordance v.'ith the opinion 
 expressed by Butler in his notes to Co. Lit. 161 a, but Butler does 
 not attend to the distinction by which the authorities he relies 
 on are explained. 
 
 (j) 11 Q. B. D. 691. 
 
 (k) Quartz Hill Gold Mining Co. v. Eyre (1883) supra. The 
 contrary opinions expressed in Johnson v. Emerson (1871) L. E. 
 6 Ex. 329, with reference to proceedings under the Bankruptcy- 
 Act of 1869, are disapproved: under the old bankruptcy law it 
 was well settled that an action might be brought for malicious 
 proceedings. 
 
 (I) Savile or Savill r. Roberts (1698) 1 Ld. Eaym. 374, 379; 12 
 Mod. 208, 210, and also in 5 Mod., Salkeld, and Carthew. 
 
 (m) See Cooley on Torts, 187. As to British India, see Baj 
 Chunder Eoy v. Shama Soondari Debi, I. L. E. 4 Cal. 583. 
 
 («) Metropolitan Bank v. Pooley (1885) 10 App. Ca. 210. 
 
 (2541) 
 
208 WRONGS OP FRAUD AND MALICE. 
 
 [ * 267] ecuting * an action in the name of a third 
 person maliciously (which must mean from ill-will to 
 the defendant in the action, and without an honest 
 belief that the proceedings are or will be authorized by 
 the nominal plaintiff), and without reasonable or prob- 
 able cause, whereby the party against whom that action 
 is brought sustains damage; but certainly such an ac- 
 tion does not lie without actual damage (o). 
 
 IV. — Oilier Malicious Wrongs. 
 
 Conspiracy. The modern action for malicious prosecution has 
 taken the place of the old writ of conspiracy and the 
 action on this case grounded thereon {p), out of which 
 it seems to have developed. Whether conspiracy is 
 known to the law as a substantive wrong, or in other 
 words two or more persons can ever be joint wrong- 
 doers, and liable to an action as such, by doing in exe- 
 cution of a previous agreement something it would not 
 have been unlawful for them to do without such agree- 
 ment, is a question of mixed history and speculation 
 not wholly free from doubt. It seems to be the better 
 opinion that the conspiracy or " confederation " is not 
 in any case the gist of the action, but is only matter of 
 inducement or evidence. Either the wrongful acts by 
 which the plaintiff has suffered were such as one per- 
 son could not commit alone, say a riot, or they were 
 wrongful because malicious, and the malice is proved 
 by showing that they were done in execution of a con- 
 certed design. In the singular case of Gregory v. Duke 
 of Brunswick {q) the action was in effect for hissing the 
 [ * 268] plaintiff * off the stage of a theatre in pursu- 
 ance of a malicious conspiracy between the defendants. 
 The Court were of opinion that in point of law the con- 
 spiracy was material only as evidence of malice, but 
 that in point of fact there was no other such evidence, 
 and therefore the jury were rightly directed that with- 
 out proof of it the plaintiff's case must fail. 
 
 " It may be true, in point of law, that, on the decla- 
 ration 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. 
 
 (o) Cotterell v. Jones (1851) 11 C. B. 713; 21 L. J. C. P. 2. 
 \p) F. N. B. 114 D. sgg. 
 
 (3) 6 Man. & Gr. 205, 953 (1844). The defendants justified in 
 a plea whicli has the merit of being amusing. 
 (2542) 
 
MALICIOUS IIIKDRANCES. 209 
 
 It is to be borne in mind that the act of hissing in a 
 public theatre is, prima facie, 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 in- 
 sulated 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 defend- 
 ants, 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 trealing 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 de- 
 fendants 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. The case 
 proved was, in fact, a case of conspiracy, or it was no 
 * case at all on which the jury could properly [ * 269] 
 find a verdict for the plaintiff" (r). 
 
 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 (s). The question does not appear 
 likely to become a practical one again in this country, 
 unless it should be raised by some adventurous plain- 
 tiff in person, with the usual result of such adventures. 
 
 There may be other malicious injuries not capable of Malicious in- 
 more specific definition " where a violent or malicious terference 
 act is done to a man's occupation, profession, or way of '^i*^ "".e's 
 getting a livelihood " ; as where the plaintiff is owner occupation, 
 of a decoy for catching wild fowl, and the defendant, 
 without entering on the plaintiff's land, wilfully fires off 
 guns near to the decoy, and frightens wild fowl away 
 from it (t). Not many examples of the kind are to be 
 
 (r) Per Coltman J. 6 Man. & Gr. at p. 959. 
 
 (s) Hntchins v. Hutchins (1845) 7 Hill 104, and Bigelow L. C. 
 207. See Mr. Bigelow's note thereon. 
 
 (t) Carrington v. Taylor (1809) 11 East 571, following Keeble 
 V. Hickeringill (1705) ib. 573 ira noHs, where see Holt's judgment. 
 
 14 LAW OF TOETS. (2543) 
 
210 
 
 WRONGS OF FRAUD AND MALICE. 
 
 found, and this is natural ; for they have to be sought 
 in a kind of obscure middle region where the acts com- 
 plained of are neither wrongful in themselves as amount- 
 ing to trespass against the plaintiff or some third per- 
 son (u), nuisance (v), or breach of an absolute specific 
 duty, nor yet exempt from search into their motives as 
 being done in the exercise of common right in the pur- 
 [ * 270] suit of a man's lawful occupation * or the 
 ordinary use of his property (x). Driving a public 
 performer off the stage by marks of disapprobation 
 which proceed not from an honest opinion of the de- 
 merits of his performance or person, but from private 
 enmity, is, as we have just seen, a possible but doubtful 
 instance (y). Holt put the case of a schoolmaster 
 frightening away children from attendance at a rival 
 contract, school (z). It is really on the same principle that an 
 action has been held to lie for maliciously (that is, with 
 the design of injuring the plaintiff orgaining some ad- 
 ■vantage at his expense) procuring a third person to break 
 his contract with the plaintiff, and thereby causing dam- 
 age to the plaintiff (a). The precise extent and bear- 
 ing of the doctrine are discussed in the final chapter of 
 this book with reference to the difficulties that have 
 been felt about it, and expressed in dissenting judg- 
 ments and elsewhere. Those difficulties (we submit 
 and shall in that place endeavour to prove) either dis- 
 appear or are greatly reduced when the cause of action 
 is considered as belonging to the class in which malice, 
 in the sense of actual ill-will, is a necessary element. 
 
 or franchise. 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 rea- 
 son of a mistaken notion of duty or claim of right, or 
 being consciously wrongful. "If a man hath a fran- 
 chise and is hindered in the enjoyment thereof, an 
 action doth lie, which is an action upon the case" (b). 
 
 (») Tarleton r. McGawley, Peake 270 [205]: the defendant's 
 act in firing at negroes to prevent them from trading witli the 
 plaintiff's ship was of course unlawful j)c;- se. 
 
 (v) Cp. Ibbotson v Peat (1805) 3 H. & C. 644; 34 L. J. Ex. 118. 
 
 (x) See p. 129, above. 
 
 {y) Gregory v. Duke of Brnnswick, mpra. 
 
 (z) Keeble r. Hickeringill, fiiqwa. 
 
 (a) Lumlev v. Gye (1853) 2 E. & B. 216; 22 L. J. Q. B. 463 ; 
 Bowen v. Hall fls81) 6 Q. B. Div, 333. 
 
 (6) Holt C. J. in Ashby v. "White, at p. 13 of the special report 
 fir.st printed in 1837. The action was on the case merely because 
 trespass would not lie for the infringement of an incorporeal 
 right. 
 
 (2544) 
 
PUBLIC OFFICERS. 211 
 
 But persons may * as public officers be in a [ * 271] 
 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 fpr a wil- 
 ful and conscious, and in that sense malicious, denial 
 of right (c). In such cases the wrong, if any, belongs 
 to the class we have just been considering. 
 
 The wrong of maintenance, or aiding a party in liti- Mainte- 
 gation without either interest in the suit, or lawful cause nance. 
 of kindred, affection, or charity for aiding him, is akin 
 to malicious prosecution and other abuses of legal pro- 
 cess; but the ground of it is not so much an indepen- 
 dent wrong as particular damage resulting from "a 
 wrong founded upon a prohibition by statute " — a series 
 ■of early statutes said to be in affirmation of the common 
 law — " which makes it a criminal act and a misde- 
 mBanor " (d). Hence it seems that a corporation can- 
 not be guilty of maintenance (d). Actions for main- 
 tenance are in modern times rare though possible (e); 
 and the recent decision of the Court of Appeal that 
 mere charity, with or without reasonable ground, is an 
 excuse for maintaining the suit of a stranger (/), does 
 not tend to encourage them. 
 
 (c) Tozer v. Child (1857) Ex. Ch. 7 E. & B. 377; 26 L. J. Q. B. 
 151. 
 
 (d) Lord Selborne, Metrop. Bank v. Pooley (1885) 10 App. Ca. 
 210, 218. 
 
 (e) Bradlaugh v. Newdegate (1883) 11 Q. B. D. 1. 
 (/) Harris v. Brisco (1886) 17 Q. B. Div. 504. 
 
 (2545) 
 
212 
 
 WEONGS TO POSSESSION AND PKOPERTY. 
 
 [ * 272] 
 
 * CHAPTEE IX. 
 
 WRONGS TO POSSESSION AND PEOPEETY. 
 
 Absolute 
 duty to 
 respect 
 others' 
 property. 
 
 Title, justi- 
 fication, 
 excuse. 
 
 I. — Duties regarding PropeHy generally. 
 
 Every kind of intermeddling with anything which is the 
 subject of property is a wrong unless it is either autho- 
 rized by some person entitled to deal with the thing in 
 that particular way, or justified by authority of law, er 
 (in some cases but by no means generally) excusable on 
 the groxind that it is done under a reasonable though 
 mistaken supposition of lawful title or authority. 
 Broadly speaking, we touch the property of others at 
 our peril, and honest mistake 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 way to deal with 
 property moveable or immoveable, and within a wider 
 or narrower range. He may be an owner in posses- 
 sion, 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 unde- 
 termined though determinable, and of an extent which 
 may vary from being hardly distinguishable from full 
 dominion to being strictly limited to a specific purpose. 
 [ * 273] It belongs to the * law of property to tell us 
 what are the rights of owners and possessors, and by 
 what acts in the law they may be created, transferred, 
 or destroyed. Again, a man may have the right of 
 using property to a limited extent, and either to the ex- 
 clusion of all other persons beside the owner or posses- 
 sor, or concurrently with other persons, without himself 
 being either owner or possessor. The definition of such 
 
 (a) Hollins v. Fowler (1875) L. R. 7 H. L. 757. 
 (6) In trespass, Kirk v. Gregory (1876) 1 Ex. D. 55 : in trover, 
 Hiort V. Bott (1874) L. E. 9 Ex. 86. 
 
 (2546) 
 
AUTHORITY AND TITLE. 213 
 
 rights belongs to the 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 
 purpose of public safety and convenience, or under ex- 
 ceptional conditions for the true owner's benefit, to in- 
 terfere 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 other- 
 wise would be wrongful. Such consent is known as a 
 licence. 
 
 Title to property, and authority to deal with property Title depen- 
 in specified ways, are commonly conferred by contract d'""* on 
 or in pursuance of some contract. Thus it oftentimes contract. 
 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 purchaser 
 who buys in good faith, reasonably supposing that he 
 is dealing with the true owner. The fraudulent re- sel- 
 ler 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- [ * 274] 
 stances of the fraud may have been such that there was 
 no true consent on the part of the first owner, no con- 
 tract 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 lawful 
 interest which he can transfer even to a person acting 
 in good faith and reasonably : and the ultimate pur- 
 chaser 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). 
 
 Acts of persons dealing in good faith with an ap- Exceptional 
 parent owner may be, and have been, protected in vari- protedion 
 0U8 ways and to a varying extent by different systems °^ certain 
 
 (e) Hollins v. Fowler (1875) L. R. 7 H. L. 757; Cundy v. Lind- good faith, 
 say (1878) 3 App. Ca. 459. 
 
 (d) See Pilcher v. Eawlins (1871) L. E. 7 Ch. 259, 
 
 (2547) 
 
214 
 
 WKONGS TO POSSESSION AND PKOPEKTT. 
 
 The rights 
 and reme- 
 dies known 
 to the com- 
 mon law are 
 possessor)/. 
 
 of law. The purcliaser 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 appar- 
 ently authorized agents in the way of sale or pledge 
 may, for the security of commerce, have a special vali- 
 dity conferred on them, as under our Factors Acts; 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 the rem- 
 edies over, if any, which may be available under a con- 
 tract of sale or a warranty for the person dispossessed 
 by the true owner. Excuse of this kind is however 
 rarely admitted, though much the same result may 
 sometimes be arrived at onspecial technical grounds. 
 
 [ * 275] * It would seem that, apart from doubtful 
 questions of title (which no system of law can wholly 
 avoid), there ought not to be great difficulty in deter- 
 mining what amounts to a wrong to property, and who 
 is the person wronged. But in fact the common law 
 does present great 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 the 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 transfer and succes- 
 sion unless in close connexion with the physical control 
 of something which could be passed from hand to 
 hand, or at least a part of it delivered in the name of the 
 whole (e). An owner in possession was protected 
 against disturbance, but the rights of an owner out of 
 possession were obscure and weak. To this day it con- 
 tinues 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. 
 Regularly the common law protects ownership only 
 through possessory rights and remedies. The rever- 
 sion or reversionary interest of the freeholder or gen- 
 
 (e) See Mr. F. W. Maitland's articles on the "The Seisin of 
 Chattels "and " The Mystery of Seisin, " L. Q. E. i. 3:34, it. 481, 
 where divers profitable comparisons of the rules concerning real 
 and personal property will be found. 
 (2548) 
 
POSSESSION AND OAVNERSHIP. 215 
 
 eral owner out of possession is indeed well known to 
 our authorities, and by conveyancers it is regarded as 
 a present estate or interest. But when it has to be de- 
 fended in a court of common law, the forma of action 
 treat it rather as the shadow * cast before by [ * 276] 
 a right to possess at a time still to come. It has been 
 said that there is no doctrine of possession in our law. 
 The reason of this appearance, an appearance 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 phrase in our books that possession is pi-ima 
 facie evidence of title. It would be leas intelligible at 
 iirst sight, but not leas correct, to say that in the devel- 
 oped system of common law pleading and procedure, as 
 it existed down to the middle of this century, proof of 
 title was material only as evidence of a right to possess. 
 And it must be remembered that although forms of ac- 
 tion 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 protec- 
 tion given to rights of property at this day ia 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 lagal possession, hia remedy was detinue, or, in 
 the devoloped system, trover. An owner who had 
 neither possession nor the immediate right to posses- 
 sion could redress himself by a special action on the 
 case, which did not acquire any technical name. 
 
 Notwithstanding first appearances, then, the common pogggggion 
 law has a theory of possession, and a highly elaborated and de- 
 one. To discuss it fully would not be appropriate here tention. 
 (/); but * we have to bear in mind that it [ * 277] 
 must be known who is in legal possession of any given 
 subject of property, and who ia entitled to possess it, 
 before we can tell what wrongs are capable of being 
 committed, and against whom, by the person having 
 physical control over it, or by others. Legal posses- 
 sion does not necessarily coincide either with actual 
 physical control or the present power thereof (the 
 
 (/) A separate work on the subject, by Mr. R. S. Wright and 
 the present writer, is in preparation and will shortly be published 
 by the Oxford University Press. 
 
 (2549) 
 
216 WEONGS TO POSSESSION AND PROPERTY. 
 
 " detention " of Continental terminology), or with the 
 right to possess (constantly called "property" in our 
 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 his servant to carty 
 home. Here B.'s servant has physical possession, bet- 
 ter named custody or detention, but neither legal pos- 
 session (g) nor the right to possess; B. has legal and 
 rightful f)ossession, 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 posssssion was the very substance 
 of disseisin as to land, and is still the very substance 
 of trespass by taking and carrying away goods (de bo- 
 nis asportatis), and as such was and is a necessary con- 
 dition of the offence of larceny at common law. 
 
 The common law, when it must choose between deny- 
 ing legal possession to the person apparently in posses- 
 sion, and attributing it to a wrong-doer, generally pre- 
 [ * 278] fers the latter * course. In Roman law there 
 is no such general tendency, though the results are 
 often similar (h). 
 
 Trespass and Trespass is the wrongful disturbance of another per- 
 conversion. son's possession of land (i) or goods. Therefore it 
 cannot be committed by a person who is himself in 
 possession; though in certain exceptional cases a dis- 
 punishable 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 to 
 the land he holds, or he may become liable to an action 
 
 ((/) Yet it is not certain that he could not main trespass against 
 a stranger; see Moore v. Robinson, 2 B. & Ad. 817. The law 
 about the custody of servants and persons in a like position has 
 vacillated from time to time, and has never been defined as a 
 ■whole. 
 
 (/») Cp. Holland, "Elements of Jurisprudence,'' 3rd ed. pp. 
 161-2. 
 
 ((■) Formerly it was said that trespass to land was a disturbance 
 not amounting to disseisin, though it might be ' ' vicina- dissei- 
 sinae," Bracton, fo. 217a. I do not think this distinction was re- 
 garded in any later period. 
 
 (8550) 
 
TRESPASS, DETINUE, TROVEE. 217 
 
 of ejectment by holding over after his title or interest 
 is determined. As to goods he may detain them with- 
 out 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 mod- 
 ern 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 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 ac- 
 tual possessor were freely accorded to persons who 
 had only the right to possess (j); on the other 
 * hand the person wronged was constantly al- [ * 279] 
 lowed 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 trepass Alternative 
 and conversion became largely though not wholly inter- remedies. 
 changeable. Detinue, the older form of action for the 
 recovery of chattels, was not abolished, but it was gen- 
 erally preferable to treat the detention as a conversion 
 and sue in trover (k), so that trover practically super- 
 seded detinue, as the writ of right and the varioiis as- 
 sizes, the older and once the only proper remedies 
 whereby a freeholder could recover possession of the 
 land, were superseded by ejectment, a remedy at first 
 introduced merely for the protection of leasehold inter- 
 ests. With all their artificial extensions these forms of 
 action did not completely suffice. 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 circum- 
 stances may still occur in which it is doubtful whether 
 
 (j) See Smith r. Milles, 1 T. R. 4S0, and note that "construc- 
 tive possession, " as used in our books, includes (i. ) possession ex- 
 ercised through a servant or licensee; (ii.) possession conferred by 
 law, in certain cases, e. g. on an executor, independently of any 
 physical- apprehension or transfer; (iii.) an immediate right to 
 po.sse9s, vjrhich is distinct from actual possession. 
 
 (k) Blackst. iii. 152. 
 
 (2551) 
 
218 WRONGS TO POSSESSION AND PROPERTY. 
 
 an action lies without proof of actual damage, or, as- 
 suming that the plaintiff is entitled to judgment, whether 
 that judgment shall be for the value of the goods wrong- 
 fully 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 appro- 
 priate action would have been. This is not a desirable 
 state of the law (l), but while it exists we must take ac- 
 count of it. 
 
 [ * 280] * 11— Trespass. 
 
 What shall Trespass may be committed by various kinds of acts, 
 
 be said a of which the most obvious are entry on another's land 
 trespass. (trespass quare clausum fregit), and taking another's 
 
 goods (trespass cle bonis asportatis) (m). Notwith- 
 standing that trespasses punishable in the king's court 
 were said to be vi et armis, and were supposed to be 
 punishable as a breach of the king's peace, neither the 
 use of force, nor the breaking of an inclosure or trans- 
 gression of a visible boundary, nor even an unlawful 
 intention, is necessary to constitute an actionable tres- 
 pass. It is likewise immaterial, in strictness of law, 
 whether there be any actual damage or not. " Every 
 invasion of private property, be it every so minute, is a 
 trespass" (n). There is no doubt that if one walks 
 across a stubble field without lawful authority or the 
 occupier's leave, one is technically a trespasser, and it 
 may be doubted whether persons who roam about com- 
 mon 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 (o), a 
 licence (a§ to which more presently) would be implied. 
 Oftentimes warnings or requests are addressed to the 
 public to abstain from going on some specified part of 
 open land or private ways, or from doing injurious 
 acts. In such cases there seems to be a general licence 
 
 (I) See per Thesiger L. J., 4 Ex, Div. 199. 
 
 (m) The exact parallel to trespass de bonis asportatis is of course 
 not trespass qu. cl. fr. .simply, but trespass amounting to a dis- 
 seisin of the freeholder or ouster of the tenant for years or other 
 interest not freehold. 
 
 (n) Entick v. Carrington, 19 St. Tr. 1066. "Property" here, 
 as constantly in our books, really means possession or a right to 
 possession. 
 
 (o) As a matter of fact, the Dartmoor hunt has an express 
 licence from the Duchy of Cornwall. 
 (2552) 
 
WHAT IS TRESPASS. 219 
 
 to use the land or ways in conformity with the owner's 
 will thus expressed. But even so, * persons [ * 281] 
 rising the land are no more than "bare licensees," and 
 theii- rights is of the slenderest. 
 
 It has been doubted whether it is a trespass to pass Qmerc con- 
 over land without touching the soil, as one may in a ccming bal- 
 balloon, 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 superincumbent on the close," and that 
 the remedy would be by action on the case for any 
 actual damage : though he had no difficulty in holding 
 that a man is a trespasser who fires a gun on his own 
 land so that the shot fall on his neighbour's land (p). 
 Fifty years later Lord Blackburn inclined to think dif- 
 ferently (g), and his opinion seems the better. Clearly 
 there can be a wrongful entry on land below the sur- 
 face, 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 an entry at any height above the 
 surface should not also be a trespass. The improbabil- 
 ity of actual damage may be an excellent practical 
 reason for not suing a man who sails over one's land in 
 a balloon ; but this appears irrelevant to the pure legal 
 theoiry. Trespasses clearly devoid of legal excuse are 
 co^amitted every day on the surface itself, and yet are 
 of so harmless a kind that no reasonable occupier would 
 or does take any notice of them. Then one can hardly 
 doubt that it might be a nuisance, apart from any defi- 
 nite damage, to keep a balloon hovering over another 
 man's land : but if it is not * a trespass in law [ * 282] 
 to have the balloon there at all, one does not see how a 
 continuing trespass is to be committed by keeping it 
 there. Again, it would be strange if we could object 
 to shots being fired 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 inci- 
 dent in a distinct trespass to person or property. The 
 doctrine suggested by Lord Ellenborough's dictum, if 
 generally accepted and acted on, would so far be for the 
 
 (p) Pickering v. Eudd (1815) 4 Camp. 219, 221. 
 
 (g) Kenyon v. Hart (1865) 6 B. & S. 249, 252; 34 L. J. M. 
 C. 87; and see per Fry L. J. in Wandswortli Board of Works v. 
 United Telephone Co. (1884) 13 Q. B. Div. 904, 927. Itmay be 
 otherwise, as in that case, where statutory interests in land are 
 conferred for special purposes. 
 
 (2553) 
 
220 WRONGS TO POSSESSION AND PROPERTY. 
 
 benefit of the public service that the existence of a 
 right of " ianocent passage" for projectiles over the 
 heads and lands of the Queen's subjects would increase 
 the somewhat limited facilities of the land forces for 
 musketry, and artillery practice at long ranges. But 
 we are nob aware that such- a right has in fact been 
 claimed or exercised. 
 
 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 safe custody on grounds of public expediency. In 
 that connexion we shall accordingly return to the sub- 
 ject (r). 
 
 Trespass to Trespass to goods may be committed by taking pos- 
 goods. session of them, or by any other act " in itself immedi- 
 
 ately injurious " to the goods in respect of the posses- 
 sor's interest (s), as by killing (f), beating (u), or chas- 
 ing (x) animals, or defacing a work of art. Where 
 the possession is changed the trespass, is an asportation 
 [ * 283] (from the old form * of pleading, cepit et as- 
 portavit for inanimate chattels, abduxit for animals), 
 and may amount to the offence of theft. Other tres- 
 passes to goods may be criminal offences under the 
 head of malicious injury to property. The current but 
 doubtful doctrine of the civil trespass being " merged 
 in the felony " when tbe trespass is felonious has been 
 considered in an earlier chapter [y). Authority, so far 
 as known to the present writer, does not clearly show 
 whether it is in strictness a trespass merely to lay hands 
 on another's chattel without either dispossession or 
 actual damage. By the analogy of trespass to land it 
 seems that it must be so. There is no doubt that the 
 least actual damage would be enough (z). And cases are 
 conceivable in which the power of treating a mere un- 
 authorized touching as a trespass might be salutary and 
 necessary, as where valuable objects are exhibited in 
 
 ()•) Chap. XII. below. 
 
 (s) Blackst. iii. 1.53. 
 
 [t) Wright V. Ramseot, 1 Saund. 83; 1 Wms. Saund. 108 (tres- 
 pass for killing a mastiff). 
 
 (») Dand r. Sexton, 3 T. E. 37 (trespass rl et armis for beating 
 the plaintiflf's dog). 
 
 (.)■) A form of writ is given for chasing the plaintift's sheep 
 ■with dogs, F. N. B. 90 L. ; so for shearing the plaintiff's sheep, 
 a. 87 G. 
 
 (y) P. 172, above. 
 
 (z) " Scratching the panel of a carriage would be a trespass, ' ' 
 Alderson B. in Fouldes v. Willoughhy, 8 M. & W. 549. 
 (2554) 
 
TKESPASSES. 221 
 
 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 (a). 
 
 III. — Injuries to Reversion. 
 
 A person in possession of property may do wrong by Wrongs to 
 refusing to deliver possession to a person entitled, or by ;i.ii owner not 
 otherwise assuming to deal with the property as owner ™ possession, 
 or adversely to the true owner, or by dealing with it 
 under colovir 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 [ * 284] 
 cotton into yarn, which acts however are only the ex- 
 treme 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 altering it to the prejudice of one in reversion or re- 
 mainder, or a general owner (5). 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 land, and the parallel writ of detinue 
 (parallel as being merely 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 (c). 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 (d) 
 " in the nature of waste," and in modern times the 
 powers and remedies of courts of equity have been 
 
 (a) See F. N. B. 86-88, paxdm. 
 
 (b) As to the term " reversionary interest" applied to goods, 
 ep. Dieey on Parties, 345. In one way " reversioner " would 
 be more correct than "owner" or "general owner" for the 
 person entitled to sue in trover or prosecute for theft is not neces- 
 sarily dominus, and the domimis of the chattel may he disqualified 
 from so suing or prosecuting. 
 
 (c) It seems useless to say more of replevin here. The curious 
 reader may consult Mennie v. Blake (1856) 6 E. & B. 842; 25 L. 
 J. Q. B. .309. For the earliest form of writ of entry see Close 
 Rolls, vol. i. p. .'!2. Blackstone is wrong in stating it to have 
 been older than the assizes. 
 
 (d) When the tenancy was at will, trespass would lie, Litt. s. 
 71; "the taking upon him power to cut timber or prostrate 
 houses concerneth so much the freehold and inheritance as it doth 
 amount inlaw to a determination of his will," Co. Litt. 57(1: just 
 as a bailee who "breaks bulk " is held to repudiate the bailment 
 and become a mere trespasser. 
 
 (2555) 
 
222 WRONGS TO POSSESSION AND PROPERTY. 
 
 found still more efFectual (e). The process of deyising 
 [ * 285] a pracbisal 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 form of plead- 
 ing, which alleged that the defendant found the plain- 
 tiff's goods and converted them to hia own use (/). The 
 original notion of conversion in personal chattels ans- 
 wers closely to that of luaste in tenements; but it was 
 soon extended so as to cover the whole ground of de- 
 tinue (g), and largely overlap trespass; a mere tres- 
 passer 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. 
 
 TV.— Waste. 
 
 Waste Waste is any unauthorized act of a tenant for a free- 
 
 hold 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 otherwise 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 con- 
 version of land from one species to another — as plough- 
 ing up woodland, or turning arable into pasture land — 
 is waste, and in has even been said that building a new 
 house is waste (h). But modern authority does not 
 [ * 286] bear this out; " in order * to prove waste you 
 must prove an injury to the inheritance " either " in 
 the sense of value " or " in the sense of destroying 
 identity " (i). And in the United States, especially the 
 
 (e) For the "history and old law, see Co. Litt. 5.3, 54; Blackst. 
 ii. 281; iii. 225; notes to Greene v. Cole. 2 Wms. Saund. 644; and 
 Woodhouse v. Walker (1880) 5 Q. B. D. 404. The action of 
 waste proper could be brought only ' ' by him that hath the im- 
 mediate estateof inheritance," Co. Litt. 53a. 
 
 (/) Blackst. iii. 152, cf. the judgment of Martin B. in Bur- 
 roughes r. Bayne (1860) 5 H. & X. 296; 29 L. J. Ex. 185, 188; 
 and as to the forms of pleading, Bro. Ab. Accion sur le Case, 103, 
 ion, 113. 
 
 iff] Martin B. I. c. whose phrase " in very ancient times" is a 
 little misleading, for trover, as a settled common form, seems to 
 date oiily from the 16th century; Reeves' Hist. Eng. L. iv. 526. 
 
 (A) " If the tenant build n new house, it is waste; and if he 
 suffer it to be wasted, it is auew waste." Co. Litt. 53a. 
 
 (i) Jones V. Chappell (1875) 20 Eq. 539, 540-3 (Jessel M. E.) 
 (2556) 
 
WASTE. 323 
 
 Western States, many acts are held to be only in a 
 natural and reasonable way of using and improving the 
 land — clearing wild woods for example — which in Eng- 
 land, or even in the Eastern States, would be manifest 
 waste (fc). 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 it 
 is doubtful (l). It seems that it can in no case 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" (m), whatever 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 pre- 
 sumptions in favour of referring acts so done to a law- 
 ful origin (n). 
 
 In modern practice, questions of waste arise either Modem law 
 between a tenant for life (o) and those in remainder, of waste: 
 or * between landlord and tenant. In the for- [ * 287] jF^^^nts for 
 mer case, the 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, agricul- 
 tural, commercial, or manufacturing, for which the 
 tenement may 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 " (p). On such land cut- 
 ting the timber is equivalent to taking a crop off arable 
 
 (k) Cooley on Torts, :Voo. 
 
 (1) WoocThouse c. Walker (1880) 5 Q. B. D. 404, 407. An 
 equitable tenant for life is not liable for permissive waste : Powy.s 
 V. Blagrave (1854) 4 T>. M. G. 448; Re Hotclikys, Freke v. Cal- 
 macly(18S6) :H Cli. D. 408. 
 
 (m) Jlanchester Bonded Warehouse Co. r. Carr (18-<0) 5 C. P. 
 D. 507, 513; following Saner u. Bilton (1878) 7 Cb. D. 815, 821; 
 cp. Job V. Potton (1875) 20 Eq. 84. 
 
 (») Elias V. Snowden Slate Quarries Co. (1879) 4 App. Ca. 454, 
 465. 
 
 (o) In the United States, where tenancy in dower is still com- 
 mon, there are many modern decisions on questions of waste aris- 
 ing out of such tenancies. See Cooley on Torts, 333, or Scribner 
 on Dower (2nd ed. 1883) i. 212—214; ii. 795 sqq. 
 
 ( p) As to the general law concerning timber, and its possible 
 variation by local custom, see the judgment of Jessel M. E., 
 Honywood v. Honywood (1874) 18 Eq. 306, 309. 
 
 (2557) 
 
224 
 
 WKONGS TO POSSESSION AND PROPEKTY. 
 
 land, and if done in the usual course is not waste. A 
 tenant for life whose estate is expressed to be without 
 impeachment of waste may freely take timber and min- 
 erals 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 preser- 
 vation of the rest) (q), open a mine in a garden or 
 pleasure ground, or do like acts destructive to the in- 
 dividual character and amenity of the dwelling-place 
 (?'). 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 (s). Further details on the subject 
 [ * 288] * would not be appropriate here. They 
 belong rather to the law of Real Property. 
 
 Landlord As between landlord and tenant the real matter in 
 
 and tenant, dispute, in a case of alleged waste, is commonly the ex- 
 tent of the tenant's obligation, under his express or 
 implied covenants, to keep the property demised in safe 
 condition or repair. Yet the vsrrong of waste is none 
 the less committed (and under the old procedure was 
 no less remediable by the appropriate action on the 
 case) because it is also a breach of the tenant's contract 
 (t). 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 (u) : 
 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. 
 
 V. — Conversion. 
 
 Conversion: 
 relation of 
 trover to 
 trespass. 
 
 Conversion, according to recent authority, may be de- 
 scribed as the wrong done by " an unauthorized act which 
 deprives another of his property permanently or for an 
 
 (q) See Baker 1'. Sebright (1879) 13 Ch. D. 179; but it seems 
 that a remainderman coming in time would be entitled to the 
 supervision of the Court in such case; ib. 188. 
 
 (r) "Waste of this kind was known as " equitable waste," the 
 commisaion of it by a tenant unimpeachable for waste not being 
 treated as wi-ongful at common law; see now 36 & 37 Vict. c. 66 
 (the Supreme Court of Judicature Act. 1873), s. 25, sub-s. 3. 
 
 (s) Bubb )'. Yelverton (18701 10 Eq.' 46,5. Here the tenant for 
 life had acted in good faith under the belief that he was improv- 
 ing the property. Wanton acts of destruction Avould be very dif- 
 ferently treated. 
 
 (t) 2 Wms. Saund. 646. 
 
 It) E. g. Tucker v. Linger (1882) 21 Ch. Div. 18.' 
 (2558) 
 
CONVERSION. 225 
 
 indefinite time " (a;). Such an act may or may not in- 
 clude a trespass; whether it does or not is immaterial 
 as regards the right of the plaintiff in a civil action, 
 for even under the old forms he might " waive the tres- 
 pass ;" though as regards the possibility of the wrong- 
 doer being criminally liable it may still be a vital ques- 
 tion, trespass by taking and carrying away the goods 
 being a necessary element in * the ofPence of [ * 289] 
 larceny at common law. But the definition of theft (in 
 the first instance narrow but strictly consistent, after- 
 wards complicated by some judicial refinements and by 
 numerous unsystematic statutory additions) does not 
 concern us here. The " property " of which the plain- 
 tiff is deprived — the subject-matter of the right which 
 is violated — must be something which he has the imme- 
 diate 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 un- 
 paid purchase-money, the purchaser 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 (y). 
 
 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 
 (z). 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. 
 
 On the other hand, the name has been thought al- AVTiat 
 together objectionable by considerable authorities (a) : amounts to 
 and certainly the natural meaning of converting prop- couversion. 
 erty to one's own use has long been left behind. It 
 came to be seen that the actual diversion of the benefit 
 
 (x) Bramwell B., adopting the expression of Bosanquet, arg., 
 Hiort r. Bott (1874) L. R. 9 Ex. 86, 89. All, or nearly all, the 
 learning on the subject do^vn to 1871 is collected (in a somewhat 
 formless manner it must be allowed) in the notes to AVilbraham v. 
 Snow, 2 Wms. Saund. 87. 
 
 (y) Lord v. Price (1874) L. R. 9 Ex. 54. 
 
 (z) Mears v. L. & S. W. R. Co. (1862) 11 C. B. N. S. 850; :il L. 
 J. C. P. 220. 
 
 (a) See 2 Wms. Saund. 108, and per Bramwell L. J., 4 Ex. D. 
 194. 
 
 15 LAW OF TOETS. (2559) 
 
226 WRONGS TO POSSESSION AND PROPERTY. 
 
 [ * 290] 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 possessioa 
 were dealt with in a manner adverse to the plaintiff and 
 inconsistent with his right of dominion. 
 
 The grievance is the unauthorized assumption of the 
 powers of the true owner. Actually dealing with an- 
 other's goods as owner for however short a time and 
 however limited a purpose (&) 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 deal- 
 ing lawful only if done by the person reallyjfentitled to 
 possess the goods (c). It makes no difference that such. 
 acts were done under a mistaken but honest and even, 
 reasonable supposition of being lawfully entitled (6), 
 or even with the intention of benefiting the true owner (c) ; 
 nor is a servant excused for assuming the dominion of 
 goods on his master's behalf, though he " acted under 
 an unavoidable ignorance and for his master's benefit" 
 (d). A refusal to deliver possession to the true owner 
 on demand is commonly said to be evidence of a conver- 
 sion, 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 spite of his title either on my own behalf 
 or on some other claimant's. " If the refusal is in dis- 
 regard of the plaintiff's title, and for the purpose of 
 claiming the goods either for the defendant or for a 
 third person, it is a conversion" (e). But this is not 
 [ * 291] the only possible * inference and may not be 
 the right one. The refusal may be a qualified and pro- 
 visional one: the possessor may say, "I am willing ta 
 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 amounii 
 of satisfaction he requires, can hardly be said to repudi- 
 
 (6) Hollins V. Fowler (1875) L. R. 7 H. L. 757. 
 
 (c) Hiort V. Bott, L. R. 9 Ex. 86. 
 
 (d) Stephens v. Elwall (1815) 4 M. & S. 259; admitted to he 
 good law in Hollins v. Fowler, L. R. 7 H. L. at pp. 769, 795. Cp. 
 Fine Art Society v. Union Bank of London (1886) 17 Q. B. Div. 
 705. 
 
 (e) Opinion of Blackburn J. in Hollins v. Fowler, L. E. 7 H. 
 L. at p. 766. 
 
 (2560) 
 
EVIDENCE OF CONVERSION. 227 
 
 ate the true owner's claim (/). 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 
 justiJiably 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 al- 
 most always conclusive evidence of a conversion; but if 
 there be a qualification annexed to it, the question then 
 is whether it be a reasonable one" (g). Again there 
 may be a wrongful dealing with goods, not under at. 
 adverse claim, but to avoid having anything to do with 
 them or with their owner. Where a dispute arises be- 
 tween 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 (h). This seems of little importance 
 in modern practice, but we shall see that it might still 
 afPect the measure of damages. 
 
 By a conversion the true owner is, in contemplation 
 of law, totally deprived of his goods ; therefore, ex- 
 cept in a few very special cases (i), the measure of 
 damages in an *action of trover was the full [*292] 
 value of the goods, and by a satisfied judgment (fc) for 
 the plaintiff the property in the goods, if they still ex- 
 isted in specie was transferred to the defendant. 
 
 to conver- 
 
 The mere assertion of a pretended right to deal with Acts not 
 goods or threatening to prevent the owner from deal- amounting 
 ing with them is not conversion, though it may per- " 
 haps be a cause of action, if special damage can be ' 
 shown (I) ; indeed it is doubtful whether a person not 
 already in possession can commit the wrong of conver- 
 sion by any act of interference limited to a special pur- 
 pose and falling short of a total assumption of domin- 
 
 ( f ) See Burroughes v. Bayne dSGO) 5 H. & N. 296; 29 L. J. 
 Ex.' 185, 188; supra, p. 285. 
 
 (g) Alexander v. Southey (1821) 5 B. & A. 247, per Best J. at 
 p. 250. 
 
 (/i) Fouldes V. Willoughby, 8 M. & W. 540; op. Wilson v. Mc- 
 Laughlin (1871) 107 Mass. 587. 
 
 (0 See per Bramwell L. J., 3 Q. B. D. 490 ; Hiort v. L. & N. , 
 W. R. Co. (1879) 4 Ex. Div. 188, where however Bramwell L. 
 J. was the only member of the Court who was clear that there 
 was any conversion at all. 
 
 (Jc) Not by judgment without satisfaction ; Ex parte Drake 
 (1877) 5 Ch. biv. 666 ; following Brinsmead v. Harrison (1871) 
 L. R. 6 C. P. 584. 
 
 (I) England v. Cowley (1873) L. R. 9 Ex. 126 ; see per Kelly 
 C. B. at p. 132. 
 
 (2561) 
 
228 
 
 WRONGS TO POSSESSION AND PROPERTY. 
 
 Dealings 
 under au- 
 thority of 
 apparent 
 owner. 
 
 ion against the true owner (m). 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 undertaken in good faith, if 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 (n) and the buyer (o) are guilty of a con- 
 version. Again, a mere collateral breach of contract 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 
 [ * 293] 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 (p). 
 
 A merely ministerial dealing with goods, at the re- 
 quest of an apparent owner having the actual control 
 of them, appears not to be conversion (g); but the ex- 
 tent of this limitation or exception is not precisely de- 
 fined. The point is handled in the opinion delivered to 
 the House of Lords in Hollins v. Fowler (r) 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 bona 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 ex- 
 cused if done by the authority of the person in pos- 
 session (s), if he was a finder of the goods, or in- 
 
 (m) See per Bramwell B. and Kelly C. B. ib. 131, 132. 
 
 (?») Lancashire Wagon 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 afi.fa. ; the de- 
 cision is on the pleadings only). 
 
 (o) Cooper v. Willomatt (1845) 1 C. B. 672 ; 14 L. J. C. P. 219. 
 
 (p) Jones V. Hough (1879) 5 C. P. Div. 115 ; cp. Heald v. 
 Carey (next note). 
 
 {q) Heald i: Carey (1852) 11 C. B. 977; 21 L. J. C. P. 97; but 
 this is really a case of the class last mentioned, for the defendant 
 received the goods on behalf of the true owner, and was held to 
 have done nothing with them that he might not properly do. 
 
 (r) L. R. 7 H. L. at pp. 766—768. 
 
 (s) Observe that this means physical possession; in some of the 
 cases proposed it would be accompanied by legal possession, in 
 others not. 
 
 (2562) 
 
CONVERSION I'NDER MISTAKE. 229 
 
 trusted with their custody. This excludes from pro- 
 tection, 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 fii-m 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 [ * 294] 
 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 custo- 
 mer (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 (t). So would the ultimate purchasers have 
 been (though they bought and used the cotton in good 
 faith), had the plaintiffs thought fit to sue them (u). 
 
 But what of the servants of those purchasers, who Acta of 
 handled the cotton under their authority and apparent servants, 
 title, and by making into twist wholly changed its 
 form ? Assuredly this was conversion enough in fact 
 and in the common sense of the word; but was it a 
 conversion in law ? Could any one of the factory hands 
 have 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 ovmer 
 for the value of the corn (m) ? Lord Blackburn thought 
 these questions open and doubtful. 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 un- 
 der a contract with such ovraier, according to the appar- 
 ent owner's direction; neither the act done, nor the con- 
 tract (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 [ * 295] 
 lawfully give if he were really entitled to his apparent 
 interest, and being obeyed in the honest (x) belief that 
 
 (t) See per Lord Cairns 7 H. L. at p. 797. 
 («) Blackburn J. 7 H. L. 764, 768. 
 
 (x) Should we say "honest and reasonable " ? It seems not; a 
 person doing a ministerial act of this kind honestly but not rea- 
 
 (2563) 
 
230 
 
 WRONGS TO POSSESSION AND PROPEKTY. 
 
 Redelivery 
 by bailees. 
 
 he is BO entitled. It might or might not be 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 possession. But this 
 could not be done without overruling accepted au- 
 thorities (y). 
 
 A bailee is prima facie estopped as between himself 
 and the bailor from disputing the bailor's title (z). 
 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) 
 (a) 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 (b). This case evidently falls within the 
 principle suggested by Lord Blackburn; but the rules 
 depend on the special character of a bailee's contract. 
 
 Abuse of lim- Where a bailee has an interest of his own in the 
 ited interest, goods (as in the common cases of hiring and pledge) 
 [ * 296] and under * colour of that interest deals with 
 the goods in excess of his right, questions of another 
 kind arise. Any excess whatever 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 con- 
 tract under which he had the limited interest," as if a 
 hirer for example destroys or sells the goods (c). That 
 is a conversion, for it is deemed to be a repudiation of 
 the contract, so that the owner who has parted with 
 
 sonably ought to be liable for negligence to the extent of the 
 actual damage imputable to his negligence, not in trover for the 
 full value of the goods ; and even apart from the technical effect 
 of conversion, negligence would be the substantial and rational 
 ground of liability. Behaviour grossly inconsistent with the 
 common prudence of an honest man might here, as elsewhere, 
 be evidence of bad faith. 
 
 (y) See Stephens v. Elwall, 4 M. & S. 259, p. 290, above. 
 
 (z) 7 Hen. VII. 22, pi. 3, per Martin. Common learning in 
 modern books. 
 
 (a) Biddle v. Bond (1865) 6 B. & S. 225; 34 L. J. Q. B. 137, 
 where it is said that there must be something equivalent to evic- 
 tion by title paramount. 
 
 (6) See Sheridan v. New Quay Co. (1858) 4 C. B. N. S. 618; 28 
 L. J. C. P. 58; European and Australian Royal Mail Co. v. Royal 
 Mail Steam Packet Co. (1861) 30 L. J. C. P. 247. 
 
 (c) Blackburn J., L. R. 1 Q. B. 614; Cooper r. "Willomatt, 1 C. 
 B. 672; 14 L. J. C. P. 219. 
 (2564) 
 
CONVERSIOX BY ABUSE OF UIGIITS. 231 
 
 possession for a limited purpose is 1^ the wrongful act 
 itself restored to the immediate right of possession, and 
 becomes the efPectual "true owner" capable of suing 
 for the goods or their value. But a merely irregular 
 exercise of power, as a sub-pledge (d) or a premature 
 sale (e), is not a conversion; it is at most a wrong done 
 to the reversionary interest of an owner out of posses- 
 sion, and that owner must show that he is really dam- 
 nified (/). 
 
 The technical distinction between an action of deti- 
 nue or trover and a special action on the case here cor- 
 responds to the substantial and permanent difference 
 between a wi'ongful act for which the defendant's 
 rightful possession is merely the oppbrtunity, 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 satis- 
 tied. If he parts * with possession, his right [ * 297] 
 is gone, and his attempted disposal merely wrongful, 
 and therefore he is liable for the full value (g). But a 
 seller remaining in possession who re-sells before the 
 buyers 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 (h). The seller cannot sue the 
 buyer for the price of the goods, and if the buyer 
 could recover the full value fi-om 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 (i). 
 
 (d) Donald v. Suckling (1866) L. R. 1 Q. B. 585. 
 
 (e) Halliday v. Holgate (1868) Ex. Ch. L. E. 3 Ex. 299; see at' 
 p. 302. 
 
 (/) In Johnson v. Stear (1863) 15 C. B. N. S. 330; 33 L. ,1. 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 Wms. 
 Saund. 114; Blackburn J., L. E. 1 Q. B. 617; Bramwell L. J., 3 
 Q. B. D. 490. 
 
 (g) Mulliner r. Florence (1878) 3 Q. B. Div. 484, where an 
 innkeeper sold a guest's goods. A statutory power of sale was 
 given to innkeepers very shortly after this decision (41 & 42 Vict. 
 c. 38), but the principle may .still be applicable in other cases. 
 
 (A) Chinery v. Viall (1860) 5 H. & N. 288; 29 L. J. Ex. 180. 
 
 (j) "A man cannot merely by changing his form of action 
 vary the amount of damage so as to recover more than the 
 amount to which he is in law really entitled according to the 
 true facts of the case and the real nature of the transaction:" per 
 Cur. 29 L. J. Ex. 184. 
 
 <2565) 
 
232 
 
 WRONGS TO POSSESSION AND PROPERTY. 
 
 Trespasses 
 between 
 tenants in 
 common. 
 
 A mortgagor having the possessioa and use of goods 
 under covenants entitling him thereto for a certain 
 time, 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 assignees claiming through him 
 ■with no better title than his own; the point being, as 
 in the other cases, that the act is entirely inconsistent 
 with the terms of the bailment (fc). One may be al- 
 lowed 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 cases 
 the owner should bring a special action on the case and 
 [ * 298] recover the * damage which he actually sus- 
 tained " (Z). Certainly the law would have been simp- 
 ler, 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 doubt- 
 ful whether they ought ever to have been 
 admitted : 
 (iv.) Cases where there is not a conversion, but an 
 action (formerly a special or innominate ac- 
 tion on the case) lies to recover the actual 
 damage. 
 
 VI. — Injuries between Tenants in Common. 
 
 As between tenants in common of either land or chat- 
 tels there cannot be trespass unless the act amounts to 
 an actual ouster, i. e. dispossession. Short of that 
 " trespass will not lie by the one against the other so 
 far as the land is concerned " (m). In the same way 
 
 (k) Feirni). Bittleston (1851) 7 Ex. 152; 21 L. J. Ex. 41; where 
 see the distinction as to trespass and larceny carefully noted in 
 the judgment delivered by Parke B. 
 (l) L. E. 1 Q. B. at p. 614. 
 
 (m) Lord Hatherley, Jacobs v. Seward (1872) L. E. 5 H. L. 
 464, 472. 
 
 See addenda page xxxviii. 
 (2566) 
 
TENANTS IX COiOIOX. 233 
 
 acts of legitimate use of the common property cannot 
 become a conversion through subsequent misappropria- 
 tion, 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 [ * 299] 
 owner in common is equally entitled to the occupation 
 and use of the tenement or property (n); he can there- 
 fore become a trespasser only by the manifest assump- 
 tion 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 (o). 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 pro- 
 perty held in common, such as digging up and carrying 
 away the soil, are deemed to include ouster (p) ; unless, 
 of course, the 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 under- 
 taken 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 (q). 
 
 VII. — Extended Protection of Possession. 
 
 An important extension of legal protection and rem- Rights of 
 edies has yet to be noticed. Trespass and other viola- de facto pos- 
 tions of possessory rights can be committed not only sessor against 
 against the person who is lawfully in possession, but ^ ^^"S^"^^- 
 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 posses- 
 sion he has violated was not entitled * to pos- [ *300] 
 seas. Unless and until a superior title or justification 
 is shown, existing legal possession is not only presump- 
 
 (») Litt. s. 323. 
 
 (o) Murray v. Hall (1849) 7 C. B. 441; 18 L. J. C. P. 161 ; and 
 Bigelow L. C. 343. 
 
 (p ) Wilkinson v. Haygarth (1846) 12 Q. B. 837 ; 16 L. J. Q. 
 B. 103; Co. Litt. 200. 
 
 (q) Job V. Potton (1875) 20 Eq. 84. 
 
 (2567) 
 
234 WRONGS TO POSSESSION AND PROPERTY. 
 
 tive but conclusive evidence of the right to possess. 
 Sometimes mere detention may be sufficient: but on 
 principle it seems more correct to say that physical 
 control or occupation is prima facie evidence that the 
 holder is in exercise (on his own behalf or on that of 
 another) of an actual legal possession, and then, if the 
 contrary does not appear, the incidents of legal posses- 
 sion follow. The practical result is that an outstand- 
 ing claim of a third party {jus tertii, as it is called) 
 cannot be set up to excuse either trespass or conver- 
 sion: '' against a wrong-doer, possession is a title ": or, 
 as the Eoman maxim runs, " adversus extraneos vitiosa 
 possessio prodesse solet " (q). As regards real pro- 
 perty, a possession commencing by trespass can be de- 
 fended a,gainst a stranger not only by the first wrong- 
 ful 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 (r) ; and ultimately, by the opera- 
 tion of the Statutes of Limitation, it may become 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 dis- 
 possessed in a lawful manner and has not any right to 
 possess (s). 
 
 [ * 301] * This rule in favor of possessors is funda- 
 mental 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 pos- 
 session 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" (<) — 
 
 (q) Jeffries v. G. W. E. Co. (1856) 5 E. & B. ti02 ; 25 L. J. Q. 
 
 B. 107; Bourne i'. Fosbrooke (1865) 18 C. B. N. S. 515; 34 L. J. 
 
 C. P. 164; extending the principle of Armory r. Delamirie (1722) 
 1 Str. 504 [505], and in 1 Sm. L. C. ; D. 41. 3, de poss. 53, cf. 
 Paulus Sent. Rec. v. 11^2: " sufiScit ad probationem si rem cor- 
 poraliter teneam. " And such usp .ind enjoyment as the nature 
 of the subject-matter admits of is good evidence of possession. 
 See Harper v. Charlesworth (18251 4 B. &C. 574. 
 
 (r) Asher v. Whitlock (1865) L. R. 1 Q. B. 1 ; cp. Cutts v. 
 Spring (1818) 15 Mass. 135; and Bigelow L. C. 341. 
 
 (s) Buckley v. Gross (1863) 3 B. & S. 566; 32 L. J. Q. B. 129. 
 
 (t) Lord Campbell C. J. in Jeffries v. G. W. E. Co. (1856) 5 E. 
 & B. at p. 806 ; but this does not seem consistent with the pro- 
 tection of even a manifestly wrongful possessor against a new 
 (2568) 
 
RULE IN FAVOUR OF POSSESSION. 235 
 
 or, that for the sake of public peace and security, and 
 as "an extension of that protection which the law 
 throws around the person" (m), the existing possession 
 is protected, without regard to its origin, against all 
 men who cannot make out a better right, or say (x) 
 that the law protects possession for the sake of true 
 owners, and to relieve them from the vexatious burden 
 of continual proof of title, but cannot do this effectu- 
 ally without protecting wrongful possessors also. Such 
 considerations may be guides and aids in the future 
 development of the law, but none of them will ade- 
 quately explain how or why it came to be what it is. 
 
 Again, as de facto possession is thus protected, so Eights of 
 de jure possession — if by that term we may designate owner en- 
 an immediate right to possess when separated from titled to 
 actual legal possession — was even under the old sys- ''^si™^. 
 tern of pleading invested with the benefit of strictly 
 possessory remedies ; that is, an owner who had parted 
 with possession, but was entitled to resume it at will, 
 could sue in trespass for * a disturbance by a [ * 302] 
 stranger. Such it the case of a landlord where the 
 tenancy is at will (y), or of a bailor where the bailment 
 is revocable at will, or on a condition that can be satis- 
 fied at will. In this way the same act may be a tres- 
 pass both against the actual possessor and against the 
 3)erson entitled to rssume possession. "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" 
 
 <y)- 
 
 Derivative possession is equally protected, through Rights of 
 -whatever number of removes it may have to be traced derivative 
 from the owner in possession, who (by modern lawyers possessors, 
 at any rate) is assumed as the normal root of title. 
 
 ■extraneous -vvrong-doer. In Roman law a thief has the inter- 
 dicts though not the actio furli, which requires a lawful interest 
 in the plaintiff; in the common law it seems that he can main- 
 tain trespass. 
 
 (m) Lord Denman C. J. in Rogers v. Spence (1844) 13 M. & "W. 
 at p. .581. This is precisely Savigny's theory, which however is 
 not now generally accepted by students of Roman law. In some 
 Tespects it fits the common law better. Mr. Justice Holmes in 
 "The Common Law" takes a view ejuadem generis, but distinct. ' 
 
 (x) "With Ihering (G-rund des Besitzesschutzes, 2d ed. 1869). 
 
 (y) Bro. Ab. Trespass, pi. 131 ; 19 Hen. VI. 4.5, pi. 94, where 
 it is pointed out that the trespasser's act is one, but the causes af 
 action are "diversis respectibus, " as where a servant is beaten 
 a.nd the master has an action for loss of service. 
 
 (2569) 
 
236 
 
 WRONGS TO POSSESSION AND PROPERTY. 
 
 Possession 
 
 derived 
 
 through 
 
 It may happen that a bailee delivers lawful possessiort 
 to a third person, to hold as under-bailee from himself, 
 or else as immediate bailee from the true owner : nay 
 more, he may re-deliver possession to the bailor for a 
 limited purpose, so that the bailor has possession and 
 is entitled to possess, not in his original right, but in a 
 subordinate right derived from his own bailee (z). 
 Such a right, while it exists, is as fully protected as 
 the primary right of the owner would have been, or the 
 secondary right of the bailee would be. 
 
 Troublesome questions were raised under the old law 
 by the position of a person who had got possession of 
 goods 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 knowledge, does not himself become a tres- 
 passer against the true owner, as he has not violated an 
 [ * 303] existing lawful *possession. The best proof 
 that such is the law is the existence of the offence of 
 receiving stolen goods as distinct from theft; if receiv- 
 ing from a trespasser made one a trespasser, the receipt 
 of stolen goods with the intention of depriving the true 
 owner of them would hava 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 (a). 
 
 The old law of real property was even more favour- 
 able 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 abolish- 
 ed; and it is quite certain that the possessor under a 
 vwongf ul title, even if he is himself acting in good faith, is 
 by the common law liable in some form to the true owner 
 (b), and in the case of goods must submit to recapture 
 if the owner can and will retake them (c). In the 
 theoretically possible case of a series of changes of 
 possession by independent trespasses, it would seem 
 that every successive wrong- doer is a trespasser only as- 
 against his immediate predecessor, whose de facto pos- 
 
 (z) Roberts v. Wyatt (1810) 2 Taunt. 268. 
 
 (a) 27 Hen. VII. 39, pi. 49 ; ep. 16 Hen. VII. 2, pi. 7; Mennie 
 V. Blake (1856) 6 E. & B. 842; 25 L. J. Q. B. 399. 
 
 (ft) 12 Edw. IV. 13, pi. 9; but this was probably an innovation 
 at the time, for Brian dissented. 
 
 (c) See Blades v. Higgs (1865) 11 H. L. C. 621; 34 L. J. C. P. 
 286, where this was assumed without discussion, only the ques- 
 tion of property being argued. 
 (2570) 
 
POSSESSION THROUGH TRESPASS. 237 
 
 ■session he disturbed: though as regards land excep- 
 tions 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 proiits. But this too is now, as regards civil lia- 
 bility, a matter of mere curiosity (d). 
 
 * VIII. — Wrongs to Easements, etc. \_ * 304] 
 
 Easements and other incorporeal rights- in property. Violation of 
 "rather a fringe to property than property itself " as incorporeal 
 they have been ingeniously called (e), are not capable "S^^^- 
 in an exact sense of being possessed. The enjoyment 
 which may in time ripen into an easement is not posses- 
 sion, and gi'ijps no possessory right before the due time 
 is fulfilled: " a man who has used a way ten years with- 
 out title cannot sue even a stranger for stopping it " 
 (/). The only possession that can come in question 
 is the 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 en- 
 joyment, is a vsTong in the nature of trespass, and re- 
 mediable by action without any allegation or proof of 
 specific damage (g); the action was on the case under 
 the old forms of pleading, since trespass was techni- 
 cally impossible, 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 aliena is in effect to consider the nature 
 
 ((f) The common law might conceivably have held that there 
 was a kind of a privity of wrongful estate between an original 
 trespasser and persons claiming through him, and thus applied 
 the doctrine of continuing trespass to such persons; and this 
 would perhaps have been the more logical course. But the na- 
 tural dislike of the judges to multiplying capital felonies, opera- 
 ting on the intimate connexion between trespass and larceny, 
 has in several directions prevented the law of trespass from be- 
 ing logical. For the law of trespass to land as affected by rela^ 
 tion, see Bamet v. Guildford (185.5) 11 Ex. 19; 24 L. J. Ex. 280; 
 Anderson v. Radcliffe (1860) Ex. Ch. E. B. & E. 819; 29 L. J. Q. 
 B. 128; and Bigelow L. C. 361—370. 
 
 (e) Mr. Gibbons, Preface to the fifth edition of Gale on Ease- 
 ments, 1876. 
 
 (/) Holmes, the Common Law, 240, 382. 
 
 \g) 1 Wms. Saund. 626; Harrop v. Hirst (1868) L. E. 4 Ex. 
 43, 46. 
 
 (2571) 
 
238 ■ WKONGS TO POSSESSION AND PROPERTY. 
 
 and extent of the rights themselves (h), and this does 
 [ * 305] 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. But 
 the same remark applies; in almost every disputed case 
 the question is of defining the right itself, or the condi- 
 tions of the right (i) ; and de facto enjoyment does not 
 even provisionally create any substantive right, but is 
 material only as an incident in the proof of title. 
 
 IX. — Grounds of Justification and Excuse. 
 
 Licence. Acts of interference vnth land or goods may be justi- 
 
 fied by the consent of the occupier or ovroer; 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 prop- 
 erty as to be in fact inseparable from it. 
 
 " A dispensation or licence properly passeth no inter- 
 est, nor alters or transfers property in anything, but 
 only makes an action lawful, which without it had been 
 ■ [ * 306] * unlawful. As a licence to go beyond the 
 seas, to hunt in a man's park, to come into his house, 
 are only actions of which without licence had been un- 
 lawful. 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 raan's ground, and to carry it away the next 
 day after to his own use, are licences as to the acts of 
 
 (h) Thus Hopkins v. G. N. R. Co. (1877) 2 Q. B. Div. 224, sets 
 bounds to the exclusive right conferred by the franchise of a tferry, 
 and Dalton v. Angus (1881) 6 App. Ca. 740, discusses with the 
 utmost fulness the nature and extent of the right to lateral sup- 
 port for buildings. Both decisions "were given, in form, on a 
 claim for damages from alleged wrongful acts. Yet it is clear 
 that a "work on Torts is not the place to consider the many and 
 diverse opinions expressed in Dalton v. Angus, or to define the 
 franchise of a ferry or market. Again the later case of Attorney- 
 General !!. Horner (1885) 11 App. Ca. 66, interprets the grant of 
 a market ni she juxta quodam loco, on an information alleging en- 
 croachment on public "ways be the lessee of the market, and 
 claiming an injunction. 
 
 (i) See last note. 
 
 (2572) 
 
LICENCE AND INTEREST. 239 
 
 hunting and cutting down the tree; but as to the carry- 
 ing 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 eating, 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 dispen- 
 sation or licence may destroy and alter property " (j). 
 
 Generally speaking, a licence is a mere voluntary sus- Revocation 
 pension of the licensors right to treat certain acts as of licence: 
 wrongful, and is revoked by signifying to the licensee distinction 
 that it is no longer his will to allow those acts. The when coupled 
 revocation of a licence is in itself no less effectual ^i*'' "^*erest. 
 though it may be a breach of contract. If the owner 
 of land or a building admits people thereto on payment 
 aa 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 stay- 
 ing he is a trespasser. His only right is to sue on the 
 contract (h) : when, indeed, he may get an injunction, 
 and so be indirectly restored to the enjoyment of the 
 licence (Z). But if a licence is part of a transaction 
 * whereby a lawful interest in some property, [ * 307] 
 besides that which is the immediate subject of the 
 licence, is conferred on the licensee, and the licence is 
 necessary to his enjoyment of that interest, the licence 
 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 inci- 
 dental 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 inci- 
 dent" (m). 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 reasonably necessary for 
 
 (/) Vaiighan C. J., Thomas v. Sorrell, Vaughan 351. 
 
 (k) WoodtJ. Leadbitter (1h45) 13 M. & W. 838; 14 L. J. Ex. 
 161; Hyde v. Graham {1862) 1 H. & C. 593; ,32 L. J. Ex. 27. 
 
 (l) See Frogley !•. Earl of Lovelace (1859) Joh. 333, where how- 
 ever the agreement was treated as an agreement to execute a 
 legal grant. 
 
 (m) Wood V. Leadbitter, 13 M. & W. 838, 844. 
 
 (2573) 
 
240 
 
 WRONGS TO POSSESSION AND PROPERTY. 
 
 Expression 
 of licensor's 
 "will. 
 
 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 (n). The diversity to be noted betvyeen licence 
 and grant is of respectable antiquity. In 1460 the de- 
 fendant in an action of trespass set up a right of com- 
 mon; the plaintiff said an excessive number of beasts 
 were put in; the defendant said this was by licence of 
 the plaintiflF; to which the plaintiff said the licence was 
 revoked before the trespass complained of; Billing, then 
 king's sergeant, 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, 
 [ * 308] alleged a grant: the * reporter's note shows 
 that he thought the point new and interesting (nu). 
 But a licensee who has 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 (o). 
 
 The grant of revocation of a licence may be either by 
 express words or by an 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 re- 
 voked by locking the gate as by a formal notice (p). 
 In the common intercourse of life between friends and 
 neighbours tacit licences are constantly given and acted 
 on. 
 
 Distinction ^® shall have soniething to say in another connexion 
 
 from grant as (q) of the rights — or rather want of rights — of a " bare 
 
 regards licensee." Here we may add that a licence, being only 
 
 strangers. ^ 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 whether the specified mode of use or 
 
 enjoyment is known to the law as a substantive right or 
 
 (n) See further 2 Wms. Saund. 363—365, or Cooley on Torts 
 51. 
 
 {nn) 39 Hen. VI. 7 pi. 12. 
 
 (o) Cornish v. Stubbs (1870) L. E. 5 C. P. 334 ; Meller v. Wat- 
 kins (1874) L. E. 9 Q. B. 400. 
 
 (p) See Hyde v. Graham, supra. 
 
 (q) Chap. XII. below, ad fin. 
 (2574) 
 
KE-ENTRY AND FORCIBLE ENTRY. 241 
 
 interest (r) : a question that may be difficult. But it 
 is submitted that 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 [ * 309] 
 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 (s), but only because a stranger 
 cannot justify that which the occupier himself could not 
 have justified. The licence is material only as show- 
 ing 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 rea- 
 .sonable that one need be anxious to extend to licensees 
 the very large rights which it gives to owners and oc- 
 cupiers. 
 
 As to justification by authority of the law, this is of 
 two kinds: 
 
 1. In favour of a true owner against a wrongful pos- justification 
 sessor; under this head come re-entry on land and re- by law. 
 taking 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 neces- 
 sity. 
 
 A person entitled to the possession of lands or tene- Re-entry 
 ments does no wrong to the person wrongfully in pos- herein of 
 session by entering upon him ; and it is said that by the forcible 
 old common law he might have entered by force. But ®° ^^' 
 forcible entry is an offence under the statute of 5 Hie. 
 II. (a. d. 1381), which provided that "none from 
 henceforth make an entry into any lands and tenements, 
 but in case where entry is given by the law, and in 
 such case not with strong hand nor with multitude of 
 people, but only in peaceable and easy [the true read- 
 ing of the Parliament Roll appears to be ' lisible, aisee, 
 and pejsible ' J manner." This statute is still in 
 force here, and " has been re-enacted in the several 
 * American States, or recognized as a part of [ * 310] 
 
 (r) Compare Nuttall u. Bracewell (1866) L. R. 2 Ex. 1, with 
 Ormerod v. Todmorden Mill Co. (1883) 11 Q. B Div. 155; and see 
 Gale on Easements, 5th ed. 315. Contra the learned editors of 
 Smith's Leading Cases, in the notes to Armory v. Delamirie. 
 
 (s) Corby v. Hill (1858) 4 C. B. N. S. 556; 27 L. J. C. P. 318. 
 See more in Chap. XII. below. 
 
 See Addenda page xxxix. 
 
 16 LAW OF TOKTS. (2575) 
 
242 WRONGS TO POSSESSION AND PROPERTY. 
 
 the common law" (t). The ofFence is equally com- 
 mitted whether the person who enters by force is en- 
 titled to possession or not: but opinions have differed 
 as to the effect of the statute in a court of civil juris- 
 diction. 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 entry which is on the face of it 
 wrongful, and could be justified only by a lawful pos- 
 session (u) ; and it should seem, for any other conse- 
 quential 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 . 
 ■ farther 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 " (x) 
 by the rightful owner. A., being entitled toimmediate 
 possession (say as a mortgagee having the legal estate) 
 effects an actual entry by taldng off a lock, without 
 having given any notice to quit to B. the precarious 
 occupier; thus, " in a very rough and uncourteous way," 
 that is, peaceably but only just peaceably, he gets pos- 
 session: once gotten, however, 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 (y). Nevertheless, according to later judg 
 [ * 311] ments, delivered indeed in a court of first * in- 
 stance, 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. (2). 
 Moreover, the old authorities say that a forcible turn- 
 ing out of the person in present possession is itself a 
 forcible entry, 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 nseth violence, and 
 throweth out such as he findeth in the place, he ( I say) 
 shall not be excused: because his entry is not consum 
 mate by the only putting of his foot over the threshold, 
 
 (t) Cooley on Torts 323. For the remedial powers given to 
 justices of the peace by later statutes, see Lambarde'sEirenarcha, 
 cap. 4; 15 lUc. 2, c. 2, is still nominally in force. 
 
 (u) Beddall c. Maitland (1881) 17 'Ch. D. 174 ;' Edwick v. 
 Hawkes (issl) 18 Ch. D. 199; and authorities there discussed. 
 
 {x) Lord Cairns in Lows v. Telford (1876) 1 App. Ca. at p. 421. 
 
 (?/) Lows V. Telford (1876) 1 App. Ca. 414. 
 
 (z) See the judgment of Fry J. in Beddall v. Maitland, and 
 Edwick V. Hawkes, supra. 
 
 (2576) 
 
FORCIBLE ENTRY. 243 
 
 but by the action and demeanour that he offereth when 
 he is come into the house " (a). 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 ut- 
 terly wrongful: and (notwithstanding the same restitu- 
 tion is made) yet B. may well have an assize against 
 A., or may enter peaceably upon him again " (6). 
 
 But old authorities also distinctly say that no action 
 is. given by the statute to a tenant who is put out with 
 force by the person really entitled, "because that that entry 
 is not any disseisin of him" (c). There is nothing in 
 them to contenance the notion of the personal expulsion 
 being a distinct wrong. The opinion of Parke and Alder- 
 son was in accordance with this (d), ancj the decision 
 from which they dissented is reconcileable with the old 
 books only by * the ingenious distinction — [ * 312] 
 certainly not made by the majority (e) — of collateral 
 wrongs from the forcible eviction itself. The correct view 
 seems to be that the possession of a rightful owner gained 
 by forcible entry is lawful as between the parties, but 
 he shall be punished for the breach of the peace by 
 losing it, besides making a fine to the king. If the 
 latest, decisions are correct, the dispossessed intruder 
 might nevertheless have had a civil remedy in some 
 form (by special action on the case, it would seem) for 
 incidental injuries to person or goods. This refinement 
 does not appear to have occurred to any of the old 
 pleaders. 
 
 A trespasser may in any case be turned ofP land before Fresh re- 
 he has gained possession, and he does not gain posses- entry on 
 sion until there has been something like acquiescence trespasser. 
 in the physical fact of his occupation on the part of the 
 rightful owner. His condition is quite difFerent from 
 that of a rightful owner out of possession, who can 
 recover legal possession by any kind of effective inter- 
 ruption of the intruder's actual and exclusive control. 
 A person who had been dismissed from the office of 
 schoolmaster and had given up possession of a room 
 
 (a) "Lambarcle's Eirenarcha, cap. 4, p. 142, ed. 1610. 
 
 (b) Ih. 148. 
 
 (e) F. N. B. 248 H., Bro. Ab. Forcible Entry, 29. 
 
 id) Newton v. Harland (1840) 1 M. & G. 644 ; 1 Scott N. R. 
 474; in Harvey v. Brydges (1845) 14 M. & W. at pp. 442-3, they 
 declared themselves imconverted. 
 
 (e) Tindal C. J. said that possession gained by forcible entry 
 was illegal- 1 M. & G. 058. 
 
 (2577) 
 
244 WRONGS TO POSSESSION AND PEOPEKTY. 
 
 occupied by him in virtue of hia office, but had after- 
 wards re-entered and occupied for eleven days, was held 
 not entitled to sue in trespass for an expulsion by the 
 trustees at the end of that time. "A mere trespasser 
 cannot, by the very act of trespass, immediately and 
 without acquiescence, give himself what the law under- 
 stands by possession against the person whom he ejects, 
 and drive him to produce his title if he can without 
 delay reinstate himself in his former possession" (/). 
 [ * 313] There * must be not only occupation, but effec- 
 tive occupation, for the acquisition of possessory rights. 
 And unless and until possession has been acquired, the 
 , very continuance of the state of things which constitutes 
 
 the trespass is a new trespass at every moment (g). 
 We shall see that this was material consequences as 
 regards the determination of a cause of excuse. 
 
 Recaption of As regards goods which have been wrongfully taken, 
 goods. the taker is a trespasser all the time that his wrongful 
 
 possession continues, so much so that "the removal of 
 goods, wrongfully taken at first, from one place to 
 another, is held to be a several trespass at each place" 
 (h), and a supervening animus furandi at any moment 
 of the continuing trespassory possession will complete 
 the offence of larceny and make the trespasser a thief 
 (i). Accordingly the true owner may retake the goods 
 if he can, even from an innocent third person into 
 whose hands they have come ; and, as there is nothing 
 in this case answering to the statutes of forcible entry, 
 he may use whatever force is reasonably necessary for 
 the recaption (k). He may also enter on the first 
 taker's land for the purpose of recapture if the taker 
 has put the goods there (Z) ; for they came there by 
 the occupier's own wrong (m) ; but he cannot enter on 
 
 (/) Browne 1'. Dawson (1840) 12 A. & E. 624, 629; 10 L. J. Q. 
 B. 7. If a new trespasser entered in this state of things, it seems 
 that the trespasser in inchoate occupation conld not use him, but 
 the last possessor could. 
 
 (g) Holmes v. Wilson (1839) 10 A. & E. 503; Bowyer v. Cook 
 (1847) 4 C. B. 236; 16 L. J. C. P. 177; and see 2 Wms. Saund. 496. 
 
 (A) 1 Wms. Saund. 20. 
 
 (t) Reg. V. Riley (1857) Dears. 149 ; 22 L. J. M. C. 48. 
 
 (k) Blades v. Higgs (1861) 10 C. B. N. S. 713, but the reasons 
 given at page 730 seem wrong. Maim or wounding is not justi- 
 fied for this cause : but violence used in defence of a wrongful 
 possession is a new assault, and commensurate resistance to it in 
 personal self-defense is justifiable. 
 
 (Z) Patrick v. Colerick (1838) 3 M. & W. 483, explaining 
 Blackst. Comm. iii. 4. 
 
 (m) Per Littleton J., 9 Edw. IV. 35, pi. 10. 
 (2578) 
 
RECAPTURE. 245 
 
 a third person's land unless, it is said, the original 
 taking vs-as * felonious (w), or perhaps, as it [ * 314 ] 
 has been suggested, after the goods have been claimed 
 and the occupier of the land has refused to deliver 
 them (o). Possession is much more easily changed in 
 the case of goods than in the case of land ; a transitory 
 and almofet instantaneous control has often, in criminal 
 courts, been held to amount to asportation. The difPer- 
 ence may have been sharpened by the rules of criminal 
 justice, but in a general way it lies rather in the nature 
 of the facts than in any arbitrary divergence of legal 
 principles in dealing with immovable and moveable 
 property. 
 
 One of the most important heads of justification Process of 
 under a paramount right is the execution of legal pro- law: 
 cess. The mere taking and dealing with that which ^leakiug 
 the law commands to "he so taken and dealt with, be it °°'^^' 
 the possession of land or goods, or both possession and 
 property of goods, is of course no wrong ; and in par- 
 ticular if possession of a house cannot be delivered in 
 obedience to a writ without breaking the house open, 
 broken it must be (p). It is equally settled on the other 
 hand that " the sheriif must at his peril seize the goods 
 of the party against whom the writ issues," and not any 
 other goods which are wrongly supposed to be his ; 
 even unavoidable mistake is no excuse (g). More spe- 
 cial rules have been laid down as to the extent to 
 which private property which is not itself the imme- 
 diate object of the process may be invaded in execu- 
 ting the command of the law. The broad distinction is 
 that outer doors may not be broken in execution of 
 * process at the suit of a private person ; but [ * 315] 
 at the suit of the Crown, or in execution of process for 
 contempt of a House of Parliament (r), or of a Supe- 
 rior Court, they may, and must ; and this, in the latter 
 case, though the contempt consist in disobedience to an 
 order made in a private suit (s). The authorities re- 
 ~{n) Blackstone I. c. ; Anthony v. Haney : (1832) 8 Bing. 187, 
 and Bigelow L. C. 374. 
 
 (o) Tindal C. J. in Anthony u. Haney ; but this seems doubtful, 
 
 (p) Semayne's Ca. (1004-5) 5 Co. Eep. 916, and in 1 Sm. L. C. 
 
 (q) Gla-sspole v. Young (1829) 9 B. & C. 696 ; Garland v. Car- 
 lisle (1837) 4 CI. & F. 693. As to the protection of subordinate 
 officers acting in good faith, see in the Chapter of General E:ff- 
 ceptions, p. 102, above. 
 
 (r) Burdett v. Abbot (1811) 14 East 1, a classical case. 
 
 (s) And it is contempt in the sheriff himself not to execute 
 such process by breaking in if necessary : Harvey v. Harvey 
 (1884) 2S Ch. D. 644. Otherwise where attachment is, or was, 
 merely a formal incident in ordinary civil process. 
 
 (2579) 
 
246 WRONGS TO POSSESSION AND PROPERTY. 
 
 ferred to will guide the reader, if desired, to further 
 details. 
 
 Constables, revenue officers, and other public ser 
 vants, and in some cases private persons, are authorized 
 by divers statutes to enter on lands and into houses for 
 divers purposes, with a view to the discovery or preven- 
 tion of crime, or of frauds upon the public reveraie. 
 We shall not attempt to collect these provisions. 
 
 Distress. The right of distress, where it exists, justifies the 
 
 taking of goods from the true owner : it seems that the 
 distrainor does not acquire possession, the goods being 
 " in the custody of the law " (t). Most of the practi 
 cal importance of the subject is in connexion with the 
 law of landlord and tenant, and we shall not enter here 
 on the learning of distress for rent and other charges 
 on land (m). 
 
 Daman-e Distress damage feasant is the taking by an occupier 
 
 feasant. of land of chattels (commonly but not necessarily ani- 
 
 mals) (x) found encumbering or doing damage on 
 [ * 316] the land. The * right given by the law is 
 therefore a right of self -protection against the continu- 
 ance of a trespass already commenced. It must be a 
 manifest trespass ; distress damage feasant is not al- 
 lowed against a party having any colour of right, e. g., 
 one commoner cannot distrain upon another commoner 
 for surcharging (y). 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 refer- 
 ence to all the circumstances of the transaction (z). 
 And where «attle stray by reason of the defect of fences 
 which the occupier is bound to repair, there is no ac- 
 tionable trespass and no right to distrain until the 
 
 (<) See West 11. Xibbs (1847) 4 C. B. 172; 17 L. J. C. P. 150. 
 
 (m) As to distress in general, Blackst. Coram, liook iii. c. 1. 
 
 (.r) " All chattels whatever are distrainable damage feasant," 
 Gilbert on Distress and Replevin (4th ed. 1823) 49. A locomo- 
 tive has been distrained damage feasant; Ambergate &c. R. Co. 
 ;!. Midland R. Co. (1853) 2 E. & B. 793; it was not actually 
 straying, but had been put on the Midland Company's line with- 
 out the statutable approval of that Company. 
 
 (y) Cape v. Scott (1874) L. R. 9 Q. B. 266. 
 
 (z) Goodwin t). Cheveley (1859) 4 H. & N. 631: 28 L. J. Ex. 
 298. 
 
 (2580) 
 
JUSTIFICATION BY NECESSITY. 247 
 
 owner of the cattle has notice (a). In one respect dis- 
 tress 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" (b). 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 (c). 
 
 Entry to take a distress must be peaceable and without Entry to 
 breaking in; it is not lawful to open a window, though distrainor. 
 * not fastened, and enter thereby (d). Dis [ * 317] 
 trainors for rent have been largely holpen by statute, 
 but the common law has not forgotten its ancient strict- 
 ness where express statutory provision is wanting. 
 
 In connexion with distress the Acts for the preven- 
 tion of cruelty to animals have introduced special jus- 
 tifications : 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 satify the cost thereof (e). 
 
 Finally there are cases in which entry on land with- Trespasses 
 out consent is excused by the necessity of self-preserva justified by 
 _ tion, or the defence of the realm (/), or an act of char- 
 ity preserving the occupier from irremediable loss, or 
 sometimes by the public safety or convenience, as in 
 putting out fires, or as where a highway is impassable, 
 and passing over the laud on either side is justified ; 
 but in this last mentioned case it is perhaps rather a 
 matter of positive common right than of excuse (g). 
 
 (a) 2 Wms. Saund. 671. 
 (J) Co. Litt. 142a. 
 
 (e) Vaspor v. Edwards (1701) 12 Mod. 660, where the incidents 
 of damage feasant generally are expounded. 
 
 (d) Nash V. Lucas (18(;7) L. R. 2 Q. B. 590. Otherwise where 
 the window is already partly open: Crahtree !). Robinson (IHSS) 
 15 Q. B. D. 312. 
 
 (e) 12 &l:j Vict. c. 92, s. 6; 17 & 18 Vict. c. 60, s. 1; supersed- 
 ing an earlier Act of William IV. to the same effect. See Fish- 
 er's Digest, Dlsteess, s. t. " Pound and Poundage." 
 
 (J) See p. 146, above. 
 
 iff) The justification or right, whichever it be, does not apply 
 where there is only a limited dedication of a way, subject to the 
 right of the owner of the soil to do acts, such as ploughing, which 
 make it impassable or inconvenient at certain times : Arnold v. 
 Holbrook (1873) h. B. 8 Q. B. 96. 
 
 (2581) 
 
248 WRONGS TO POSSESSION AND PROPERTY. 
 
 Justifications of this kind are discussed in a case of the 
 early sixteenth century, where a parson sued for tres- 
 pass in carrying away his corn, and the defendant justi- 
 fied on the ground that the corn had been 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 mast be justified either by 
 [ * 318] public * necessity, or " by reason of a condi 
 tion in law "; neither of which grounds is present here; 
 taking for the true owner's benefit is justifiable only if 
 the danger be such that he will lose his goods without 
 remedy if they are not taken. Ab examples of public 
 necessity, he gives pulling down some houses to save 
 others (in case of fire, presumably) (h), and entering 
 in war time to make fortifications. '• The defendant's 
 intention," said Bede C. J. (i), "is material in felony 
 but not in trespass; and here it is not enough that he 
 acted for the plaintiif'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 
 ^_^^t enter to drive them out; and yet it would be a good 
 deed to drive them out so that they do no more dam 
 age; 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 without remedy against any 
 man. And so this plea is not good" (fc). Fisher J. 
 [ * 319] concurred. There is * little or nothing to be 
 added to the statement of the law, though it may be 
 
 (h) Cp. Littleton J. in Y. B. 9 Ed. IV. 35; " If a man l>y nerj- 
 ligence suffer his house to burn, I who am his neighbour may 
 break down the house to avoid the danger to me, for if I let the 
 house stand, it may burn so that I cannot quench the fire after- 
 wards. ' ' 
 
 (i) Kingsmill, Rede, and Fisher are here found sitting together 
 in Trinity term, 21 Hen. VII., A. D. 150S; according to Foss's 
 " Judges of England," Eede was transferred from K. B. to C. P. 
 only in October of that year, which seems inconsistent with the 
 Year Book. 
 
 (k) 21 Hen. VII. 27, pi. 5; cp. 37 Hen. VI. 37, pi. 26; 6 Ed. 
 ly. 8, pi. 18, which seems to extend the justification to entry to 
 retake goods which have come on another's land by inevitable ac- 
 cident; see Story, Bailments, § 83 a, note. 
 (2582) 
 
TRESPASS AB INITIO. 249 
 
 doubted whether it is now likely ever to be strictly ap- 
 plied. Excuse of this kind is always more readily 
 allowed if the possessor of the land has created or con- 
 tributed 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 
 land {I). 
 
 At one time it was supposed that the law justified poxhuntina: 
 entering on land in fresh pursuit of a fox, because the not 
 destruction of noxious animals is to be encouraged; but privileged, 
 this is not the law now. If it ever was, the reason for 
 it has long ceased to exist (m). Practically foxhunters 
 do well enough (in this part of the United Kingdom) 
 with licence express or tacit. 
 
 There is a curious and rather subtle distinction be- Trespass ab 
 tween justification by consent and justification or excuse initio. 
 under authority of law. A possessor by consent, or a 
 licensee, may commit a wrong by abusing his power, 
 but 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 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 {n). But "when 
 entry, authority, or licence is given to anyone 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 (o) ; so to the lord to distrain; to the [ * 320] 
 owner of the ground to distrain damage feasant; to him 
 in reversion to see if waste be done ; to the commoner 
 to eater 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 {p), or the owner for 
 damage feasant, works or kills the distress; or if he who 
 enters to see waste break the house or stays there all 
 
 (/) Selby V. Nettlefold (187:5) 9 Ch. 111. 
 
 (m) Paul r. Summerhayes (1878) 4 Q. B. D. 9. 
 
 (n) 21 Ed. IV. 766, pi. "9. 
 
 (o) This is in respect of the public character of the innkeeper's 
 employment. 
 
 (p) The liability of a distrainor for rent justly due, in respect 
 of any subsequent irregularity, was reduced to the real amount 
 of damage by 11 Geo. 2, c. 19, s. 19. Distrainors for damage 
 feasant are still under the common law. 
 
 (2583) 
 
250 WRONGS TO POSSESSION AND PROPERTY. 
 
 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" (g). Or to 
 state it less artiiicially, the eifect 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 
 lawful act: he is rather an excusable trespasser, and 
 becomes a trespasser without excuse if he exceeds his 
 authority (r): "it shall be adjudged against the peace" 
 (s). This doctrine has been applied in modern times 
 to the lord of a manor taking an estray {t), and to a 
 sheriff remaining in a house in possession of goods 
 taken in execution for aa unreasonably long time (u). 
 It is applicable only when there has been some kind of 
 active wrong-doing; not when there has been a mere 
 [ * 321] refusal to do something one ought * to do — as 
 to pay for one's drink at an inn (a;), or deliver up a 
 distress upon a proper tender of the rent due {y). But 
 it is to be observed that retaining legal posession after 
 the expiration of authority is equivalent to a new taking, 
 and therefore is a positive act : hence (it seems) the 
 distinction between the liability of a sherifp, 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 re-deliver them" (z). Formerly these re- 
 finements were important as determining the proper 
 form of action. Under the Judicature 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 ab 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. 
 
 {q) The Six Carpenters' Case, 8 Co. Eep. 146 a, i. 
 
 ()■) Cp. L. Q. R. ii. 313. 
 
 (s) 11 Hen. IV. 75, pi. 16. 
 
 (f) Oxley V. Watts (1785) 1 T. E. 12. 
 
 (u) Ash r. Dawnay (1852) 8 Ex. 237; 22 L. J. Ex. 59. 
 
 !x) Six Carpenters' Case, supra, 
 y) West V. Nibbs (1847) 4 C. B. 172; 17 L. J. C. P. 150. 
 z) West i'. Nibbs, 4 C. B. at p. 184, per Wilde C. J. 
 a) Wilde C. J. I. t. 
 
 (2584) 
 
REMEDIES FOR TRESPASS. 251 
 
 X. — Remedies. 
 
 The only peculiar remedy available for tliis class of Taking or 
 wrongs is distress damage feasant, which, though an retaking 
 imperfect remedy, is so far a remedy that it suspends S°°<^^- 
 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 (b). It does not seem that the re- 
 taking of goods taken by trespass extinguishes the 
 true owner's right of * action, though it would [ * 322] 
 of course affect the amount of damages. 
 
 Actions for merely trifling trespasses were formerly Costs where 
 discouraged by statutes providing that when less than damages 
 40s. were recovered no more costs than damages should °oi"inaI- 
 be allowed except on the judge's certificate that the 
 action was brought to try a right, or that the trespass 
 was "willful and malicious :" 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 (c). 
 But these and many other statutes as to costs were su- 
 perseded by the general provisions of the Judicature 
 Acts, and the rule that a plaintiff recovering less than 
 lOl. damages in an action " founded on tort" gets no 
 costs in a Superior Court unless by special certificate or 
 order (d) ; and they are now expressly repealed (e). 
 
 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 will be 
 prosecuted according to law" — words which are "if 
 strictly construed, a wooden falsehood" (/), simple 
 trespass not being punishable in courts of criminal 
 jurisdiction — was originally intended to secure the ben- 
 efit 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 crim- 
 inal prosecution as a fraud upon the public, * and [ * 323] 
 rather a cause for depriving the occupier of costs than 
 
 (b) Vaspor v. Edwards 12 Mod. 660, per Holt C. J. 
 
 (c) See Bowyer v. Cook (1K47) 4 C. B. 236 ; 16 L. J. C. P. 177. 
 
 (d) County Courts Act 1867, s. 5, and 45 & 46 Vict. e. 57, s. 
 ; see "The Annual Practice," 1886-7, p. 112. 
 
 (e) 42 & 43 Vict, c 59. 
 
 (/) F. W. Maitland, "Justice and Police," p. 13. 
 
 (2585) 
 
252 
 
 WRONGS TO POSSESSION AND PROPEETY. 
 
 Injunctions. 
 
 Effect of 
 changes in 
 procedure. 
 
 for awarding them (g). Several better and safer forms 
 of notice are available; a common American one, " no 
 trespassing," is as good as any. 
 
 An injunction can be granted to restrain a continuing 
 trespass, such as the laying and keeping of waterpipes 
 under a man's ground without either his consent or 
 justification by authority of law; and the plaintiff need 
 not prove substantial damage to entitle himself to this 
 form of relief (h). 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 (i). 
 
 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 (fc). 
 
 Before the Common Law Procedure Acts an owner, 
 tenant, or reversioner who had suffered undoubted in- 
 jury might be defeated by bringing his action in the 
 wrong form, as where he brought trespass and failed to 
 show that he was in present possession at the time of 
 the wrong done (Z). But such cases can hardly occur 
 now. 
 
 (g) At all events the threat of spring-guns, still not quite un- 
 known, can do the occupier no good, for to set spring-guns is 
 itself an offence. 
 
 (A) Goodson V. Eichardson (1874) 9 Ch. 221. 
 
 (?) Cooper )'. Crabtree (1882) 20 Ch. Div. 589. In Allen v. 
 Martin (1875) 20 Eq. 462, the plaintiffs were in possession of part 
 of the land affected. 
 
 (k) See 9 Ch. 224; 20 Ch. Div. 592. 
 
 (I) Brown v. Notley (1848) 3 Ex. 221; 18 L. J. Ex. 39; Pilgi-im 
 V. Southampton, &c. R. Co. (1849) 8 C. B. 25; 18 L. J. C. P. 330. 
 (2586) 
 
(253) 
 
 * CHAPTEE X [ * 324] 
 
 NUISANCE. 
 
 , NuiSiNCE is the wrong done to a man by unlawfully dis- Nuisance: 
 turbing him in the enjoyment of his property or, in puWic or 
 some cases, in the exercise of a common right. The Private. 
 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 may be public or private. 
 
 Public or common nuisances ailect the Queen's sub- 
 jects at large, or some considerable portion of them, 
 such as the inhabitants of a town; and the person there- 
 in 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 determinate number of persons, and is the ground 
 of civil proceedings only. Generally it affects the con- 
 trol, use or enjoyment of immovable 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 com- 
 plain of a nuisance * created by an occupier [ * 825] 
 on the wharf or shore which made the ship uninhabit- 
 able. 
 
 We shall first consider in what cases a common nuis- Private right 
 
 ance exposes the person answerable for it to civil as of action for 
 
 well as criminal process, in other words, is actionable as P"olic 
 
 11 . -,. , ,1^ nuisance, 
 
 well as indictable. 
 
 "A common nuisance is an unlawful act or omission 
 to discharge a legal duty, which act or omission en- 
 dangers 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 
 
 (a) There was formerly a mandatory writ lor the abatement of 
 public nuisances in cities and corporate towns and boroughs. 
 See the curious precedent in F. N. B. 185 D. Apparently the 
 Queen's Bench Division still has in theory jurisdiction to grant 
 such writs (as distinct from the common judgment on an indict- 
 ment); see Russell on Crimes, i. 440. 
 
 (2587) 
 
254 NUISANCE. 
 
 her Majesty's subjects" (&). Omission to repair a high- 
 way, 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 Queen'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 public conveni- 
 ence. Thus it is an indictable nuisance at common law 
 to lay down a tramway in a public street to the obstruc- . 
 tion 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 ac- 
 customed (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 
 [ * 326] example, to * have the whole width of a public 
 road kept free for passing and repassing, and an ob- 
 struction is not the less a nuisance because it is on a 
 part of the highway not commonly used, or otherwise 
 leaves room enough for the ordinary amount of traffic 
 
 (^)- 
 
 Further discussion and illustration of what amounts 
 
 to an indictable nuisance must be sought in works on 
 
 the criminal law. 
 
 shown. 
 
 Special dam- A private action can be maintained in respect of a 
 age must be public nuisance by a person who suffers thereby some 
 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. Par- 
 ticular 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 from passing 
 along the highway as I am entitled to do; for that is an 
 
 (b) Criminal Code (Indictable Offences) Bill, 1879 (as amended 
 in Committee), s. 150; cp. Stephen, Digest of Criminal Law, art. 
 176, and illustrations thereto, and the Indian Penal Code, s. 268. 
 
 (c) E. V. Train (1862) 2 B. & S. 640; 31 L. J. M. C. 169. The 
 tramways now In operation in many cities and towns have been 
 made under statutory authority. 
 
 {d) Turner r. Eingwood Highway Board (1870) 9 Eq. 418. 
 Compare the similar doctrine as to obstruction of lights, infra. 
 
 (e) " Particular damage " and " special damage " are used in- 
 differently in the authorities; the former seems preferable, for 
 ' ' special damage, " as we have seen, has another technical mean- 
 ing in the law of defamation. ^ 
 (2588) 
 
PUBLIC NUISANCE. 255 
 
 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 carrying are spoiled, I shall have my 
 action; for this is a particular damage to myself result- 
 ing from the common nuisance, and distinct from the 
 mere obstruction of the common right of passage 
 which constitutes that nuisance (/). If * a [ * 327] 
 trader is conveying his goods in barges along a 
 navigable river, and by reason of the navigation 
 being unlawfully obstructed has to unload his mer- 
 chandise and carry it overland at an increased ex- 
 pense, 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 " (h). The 
 diversion of traffic or custom from a man's door by an 
 obstruction of a highway, whereby his business is in- 
 terrupted, 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 
 
 (/) Y. B. 27 Hen. VIII. 27, pi. 10. Action for stopping a 
 highway, whereby it seems the plaintift was depri\e(l of tlie use 
 of his own private way abutting thereon (the statement is rather 
 obscure) - per FitzherlDert, a man shall have his action for a pub- 
 lic "nuisarce if he is more incommoded than others. ''If one 
 make a ditch'across the high road, and I come riding along the 
 road at night, and I and my horse are thrown in the ditch so that I 
 have thereby great damage and annoyance, I shall have my ac- 
 tion against him who made this ditch, because I am more dam- 
 aged than any other man " Held that sufficient particular damage 
 ■was laid. 
 
 (g) Eose v. Miles (1815) 4 M. & S. 101, and in Bigelow L. C. 
 460. 
 
 (h) Winterbottom v. Lord Derby (1867) L. R. 2 Ex. 316, 322. 
 
 (i) Rickotr. Metrop. E. Co. (1867) L. E. 2 H. L. af pp. 188, 
 199. See the comments of Willes J. in Beckett, v. Midland E. 
 Co. L. E. 3 C. P. at p. 100, where Wilkes v. Hungerford Market 
 Co. (183.5) 2 Bing. N. C. 281 is treated as overruled by the re- 
 marks of Lord Chelmsford and Lord C'ranworth. Probably this 
 would not be accepted in other jurisdictions where the common 
 law is received. In Massachusetts, at least, Wilkes v. Hunger- 
 ford Market Co. was adopted by the Supreme Court in a very 
 full and careful judgment: Stetson v. Faxon (1837) 19 Pick. 147. 
 
 (2589) 
 
256 NUISANCE. 
 
 of business more than other men's, and amounts to 
 [ * 328] something like blocking * up his doorway (k). 
 Whether a given case falls under the rule or the excep- 
 tion must depend on the facts of that case: and what 
 is the true principle, and what the extent of the excep- 
 tion, is open to some question (Z). If horses and wag- 
 gons are kept standing for an unreasonable time in the 
 highway opposite a man's house, so that the access of 
 customers is obstructed, the house is darkened, and the 
 people in it are annoyed by bad smells, this damage is 
 sufficiently " particular, direct, and substantial " to en- 
 title the occapier to maintain an action (m). 
 
 Private nuis- '^^^ conception of private nuisance was formerly 
 aiice, what, limited to injuries done to a man's freehold by a neigh- 
 bour's acts, of which stopping or narrowing rights of 
 way and flooding land by the diversion of water courses 
 appear to have been thechief species (n). In the modern 
 authorities it includes all injuries to an owner or occu- 
 pier in the enjoyment of the property of which he is 
 in possession, without regard to the quality of the ten- 
 [ * 329] ure (o). Blackstone's phrase is * "anything 
 done to the hurt or annoyance of the land, tenements 
 or hereditaments of another " (p) — that is so done 
 without any lawful ground of justification or excuse. 
 The ways in which this may happen are indefinite in 
 number, but fall for practical purposes into certain 
 well recognized classes. 
 
 (k) Fritz?'. Hobson (18S0) 14 Ch. D. 542. 
 
 (/) In Fritz t). Hobson (last note) Fry J. did not lay down any- 
 general proposition. How far the principle of Lyon v. Fish- 
 mongers' Company (1876) 1 App. Ca. 662, is really consistent 
 with Ricketv. Metrop.R.Co. is a problem that can be finally solved 
 only by the House of Lords itself According to Lyon v. Fish- 
 mongers' Company it should seem that blocking the access to a 
 .street is (if not justiiied) a xiolation of the distinct private right 
 of every occupier in the street; and such rights are not the less 
 private and distinct because they may be many; see Harrop j). 
 Hirst (1868) L. R. 4 E.k. 43. In this view it is difficult to see 
 that a loss of custom is otherwise than a natural and probable 
 consequence of the wrong. And cp. the case in 27 Hen. VIII. 
 cited above, p. .'!26. In Ricket's case Lord Westbury strongly 
 dissented /rom the majority of the Lords present; L. R. 2 H. L. 
 at p. 200. 
 
 (m) Benjamin v. Storr (1874) L. R. 9 C. P. 400. Compare fur- 
 ther, as to damage from unreasonable user of a highway, Harris 
 11. Mobbs (1878) 3 Ex. D. 268; Wilkins v. Day (1883) 12 6. B. D. 
 110. 
 
 (n) F. N. B. " "Writ of Assize of Nuisance " 183 I. sqq. 
 
 (o) See per Jessel M. R. in Jones -v. Chappell (1875) 20 Eq. at 
 p. 543. 
 
 (p) Comm. iii. 216. 
 
 (2590) 
 
SPECIES OF PRIVATE NUISANCE. 257 
 
 Some acts are nuisances, according to the old autho- Kinds of 
 rities and the course of procedure on which they were nuisance, 
 founded, which involve such direct interference with affecting— 
 the rights of a possessor as to be also trespasses, or !• Owner- 
 hardly distinguishable from trespasses. " A man shall '^" 
 have an assize of nuisance for building a house higher 
 than his house, and so near his, that the rain which 
 falleth upon that house falleth upon the plaintiff's 
 house" (q). And it is stated to be a nuisance if a 
 tree growing on my land overhangs the public road, or 
 my neighbour's land (r). In this class of case nui- 
 sance means nothing more than encroachment on the 
 legal powers and control of the public or of one's 
 neighbour. It is generally, though not necessarily (s), 
 a continuing trespass, for which however, in the days 
 when forms of action were strict and a mistake in seek- 
 ing the proper remedy was fatal, there was a greater 
 variety and choice of remedies than for ordinary tres- 
 passes. Therefore it is in such a case needless to in- 
 quire, except for the assessment of damages, whether 
 there is anything like nuisance in the popular sense. 
 Still there is a real distinction between trespass and 
 nuisance even when they are combined: the cause of 
 action in trespass is interference with the right of a 
 possessor in itself, while in nuisance it * is [ * 330] 
 the incommodity which is proved in fact to be the conse- 
 quence, or is presumed by the law to be the ' natural 
 and necessary consequence, of such interference: thus 
 an overhanging I'oof or cornice is a nuisance to the 
 land it overhangs because of the necessary tendency to 
 discharge rain-water upon it (t). 
 
 Another kind of nuisance consists in obstructions of 2. lura in 
 rights of way and other rights over the property of re aliena. 
 others. "Ihe parishoners may pull down a wall 
 which is set up to their nuisance in their way to the 
 church " (m). In modern times the most frequent and 
 important examples of this class are cases of interfer- 
 ence with rights to light. Here the right itself is a 
 right not of dominion, but of use; and therefore no 
 
 (q) F. N. B. 184 D.; Penruddock's ca. 5 Co. Rep. 100 T>; Fay 
 V. Prentice (1845) 1 C. B. 829; 14 L. J. C. P. 298. 
 
 (r) Best J. in Earl of Lonsdale v. Nelson (1823) 2 B. & C. 302, 
 311. 
 
 (s) Fay V. Prentice, supra, where the Cotirt was astute to sup- 
 port the declaration after verdict. 
 
 It) Baten's ca. 9 Co. Rep. 53 6. 
 
 (m) F. N. B. 185 B. 
 
 17 LAW OF TOETS. (2591) 
 
258 
 
 NUISANCE. 
 
 wrong is done («) unless and until tiere is a sensible 
 interference with its enjoyment, as we shall see here- 
 after. But it need not be proved 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 (x). 
 
 A third kind, and that which is most commonly 
 spoken of by the technical name, is the continuous do- 
 ing of something which interferes with another's health 
 or comfort in the occupation of his property, such as 
 carrying on a noisy or offensive trade. 
 
 What amount of annoyance or, inconvenience will 
 amount to a nuisance in point of law cannot, by the 
 [ * 331] nature * of the question, be defined in precise 
 terms. Attempts have been made to set more or less 
 arbitrary limits to the jurisdiction of the Court, especi- 
 ally in cases of miscellaneous nuisancfe, as we may call 
 them, but they have failed in every direction. 
 
 Injury to (^t') It is not necessary to constitute a private nui- 
 
 health need sance that the acts or state of things complained of 
 not be shown, gljould be noxious in the sense of being injurious to 
 health. It is enough that there is a material interfer- 
 ence with the ordinary comfort and convenience of life 
 — " the physical comfort of human existence " — by an 
 ordinary and reasonable standard (y); there must be 
 something more than mere loss of amenity (z), but there 
 need not be positive hurt or disease. 
 
 .3. Conven- 
 ience and 
 enjoyment. 
 
 Measure of 
 nuisance. 
 
 Plaintiff not 
 disentitled 
 b.y having 
 come to the 
 nuisance. 
 
 (b.) In ascertaining whether the property of the 
 plaintiil is in fact injured, or his comfort and conveni- 
 ence in fact materially interfered with, ^j an alleged 
 nuisance, regard is had to the character of the neigh- 
 bourhood and the pre-existing circumstances (a). But 
 the fact that the plaintiff was already exposed to some 
 inconvenience of the same kind will not of itself de- 
 prive him of his remedy. Even if there was already a 
 
 (v) Otherwise as to public ways; see Turner v. Eingwood 
 Highway Board (1870) 9 Eq. 418. 
 
 (x) Harrop v. Hirst (1868) L. E. 4 Ex. 43. 
 
 (y) Walter v. Selfe, 4 De G. & Sm. 315, 321, 322 (Knight Bruce 
 V.-C, 1851); Crump v. Lambert (1867) 3 Eq. 409. 
 
 (z) Salvinu. North Bran cepeth Coal Co. (1874) 9 Ch. 705; see 
 judgment of James L. J. at pp. 709, 710. 
 
 («) St. Helen's Smelting Co. v. Tipping (1865) 11 H. L. C. 642; 
 Sturges V. Bridgman (1879) 11 Ch. Div. at p. 865. 
 (2592) 
 
WHAT AMOUNTS TO NUISANCE. 259 
 
 nuisance, that is not a reason why the defendant should 
 set up an additional nuisance (6). 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 nui- 
 sance among many," the answer is that, if the 
 * others were away, " this one remaining [ * 332] 
 would clearly be a wrong; but a man cannot be made 
 a wrong-doer by the lawful acts of third persons, and 
 if it is not a wrong now, a prescriptive right to con- 
 tinue it in all events might be acquired under cover of 
 the other nuisances; therefore it must be wrongful from 
 the first (c). Neither does it make any difference that 
 the very nuisance complained of existed before the 
 plaintiff became owner or occupier. It was at one time 
 held that if a maa came to the nuisance, as was said, 
 he had no remedy (d); but this has long ceased to be 
 law as regards both the remedy by damages (e) and 
 the remedy by injunction (/). 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 to by Peter's 
 business to be a nuisance, Peter cannot justify continu- 
 ing his operations as against John by showing that be- 
 fore John's building was occupied, John or his prede- 
 cessors in title made no complaint (g). 
 
 (C) Again a nuisance is not justified by showing 2^^^^^^^^^^^ 
 [ * 333] that * the trade or occupation causing the an- or necessary 
 noyanceis, apart from that annoyance, an innocent or character per 
 laudable one. "The building of a lime-kiln is good «f ^of o^en- 
 and profitable ; but if it be built so near a house that ^^^ j^ ^J* 
 
 (b) Walter v. Selfe, supra. 
 
 (c) Crossley v. Lightowler (r867) 2 Ch. 478. The same point 
 was (among others) decided many years earlier (1849) in Wood 
 V. Wand, 3 Ex. 748; 18 L. J. Ex. 305. 
 
 (d) Blackstone ii. 403. 
 
 (e) E. g. St. Helen's Smelting Co. v. Tipping (1865) 11 H. L. 
 C. 642. 
 
 (/) Tipping i>. St. Helen's Smelting Co. (1865) 1 Ch. 66, a suit 
 for injunction on the same facts. 
 
 {g) Sturges v. Bridgman (1879) 11 Ch. Div. 852. 
 
 (2593) 
 
 answer. 
 
260 , NUISANCE. 
 
 when it burns the smoke thereof enters into the house, 
 so that none can dwell there, an action lies for it" (h). 
 "A tan- house is necessary, for all men wear shoes ; and 
 nevertheless it may 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 conve- 
 nient 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 (k). Learned and charitable foundations are 
 commended in sundry places of our books ; but the fact 
 that a new building is being erected by a college for 
 purposes of good education and the advancement of 
 learning will not make it the less a wrong if the saw- 
 ing of stone by the builders drives a neighbouring in- 
 habitant out of his house. 
 
 Convenience (d. ) Where the nuisance complained of consists 
 of place per se wholly or chiefly in damage to property, such damage 
 IS no answer, u^g^ j^g proved as is of appreciable magnitude and ap- 
 parent to persons of common intelligence ; not merely 
 something discoverable only by scientific tests (I). 
 But where material damage in this sense is proved, or 
 material discomfort according to a sober and reasona- 
 ble standard of comfort, it is no answer to say that the 
 offending work or manufacture is carried on at a place 
 [ * 334] in itself proper and convenient for * the purpose. 
 A right to do something that otherwise would be a nuis- 
 ance 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 neighbour (to). 
 
 Modes of (e.) No particular combination of sources of aunoy- 
 annoyance. ■ 
 
 (A) Aldred's ca. 9 Co. Eep. 59 a. 
 
 (i) Jones v. Powell, Palm. 539, approved and explained by 
 Ex. Ch. in Bamford v. Turnley (1862) 3 B. & S. 6S ; 31 L. J. 
 Q. B. 286. As to "convenient" see next paragraph. 
 
 (k) Aldred's ca. supra. Cp. Broder v. Saillard (1876) 2 Ch. D. 
 692,701 JesselM. R.). 
 
 (;) Salvin v. North Braneepeth Coal Co. (1874) 9 Ch. 705. 
 
 (m) St. Helen's Smelting Co. v. Tipping (1865) 11 H. L. C. 642; 
 Bigelow L. C. 4.54; Bamford v. Turnley (1862) Ex. Ch. 3 B. & S. 
 66; 31 L. J. Q. B. 286; Carey v. Ledbitter (1862-3) 13 C. B. N. S. 
 470; 32 L. J. C. P. 104. These authorities overrule Hole v. Bar- 
 low (1858) 4 C. B. N. S. 334; 27 L. J. C. P. 207; see Shotts Iron 
 Co. V. Inglis (1882) 7 App. Ca. Sc. at p. 528. 
 (2594) 
 
AVIIAT AMOUNTS TO NUISANCE. 261 
 
 ance is 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 vapoui-, noise alone, offensive vapours alone, 
 although not injurious to health, may severally consti- 
 tute a nuisance to the owner of adjoining or neighbuur- 
 ing property" (n). The persistent ringing and tolling 
 of large bells (o), the loud music, shouting, and other 
 noises attending the performances of a circus (p), the 
 collection of a crowd of disorderly people by a noisy 
 entertainment of music and fireworks (q), to the 
 * grave annoyance of dwellers in the neigh- [ * 335] 
 bourhood, have all been held to be nuisances and re- 
 strained 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 loss noise and incon- ' 
 
 venience to a neighbour. But the conversion of part of 
 a house to an unusual purpose, or the simple mainten- 
 ance of an aiTangement 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 a man who turns the whole 
 ground floor of a London house into a stable, or other- 
 wise 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 
 
 " 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 
 
 (n) Romilly M. E., Crump u. Lambert (1867) 3 Eq. at p. 412. 
 
 (o) Soltau V. T)e Held (1851) 2 Sim. N. S. 133. The bells be- 
 longed to a Roman Catholic church; the judgment points out (at 
 p. 160) that such a building is not a church in the eye of the law, 
 and cannot claim the same privileges as a parish church in respect 
 of bell-ringing. 
 
 {p) Inchbald v. Barrington (1869) 4 Ch. 388 : the circus was 
 eighty-five yards from the plaintiff's house, and " throughout the 
 performance there was 'music, including a trombone and other 
 wind instruments and a violoncello, and great noise, with shout- 
 ing and cracking of whips." 
 
 Jq) Walker v. Brewster (1 867) 5 Eq. 24. It was not decided 
 whether the noise would alone have been a nuisance, but Wick- 
 ens V.-C. strongly inclined to think it would, see at p. 34. 
 ' (r) Ball V. Bay (1873) 8 Ch. 467; Broder v. Saillard (1876) 2 
 Ch. D. 692. 
 
 (2595) 
 
262 
 
 NUISANCE. 
 
 Injury com- 
 mon to plain- 
 tiff with 
 others. 
 
 Obstruction 
 of lights. 
 
 each adjoining inhabitant was intended to enjoy his 
 own property for the ordinary purposes for which it 
 and all the different parts of it were constrnoted, 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 sub 
 stantial injury to his neighbour, it appears to me that 
 that is not according to principle or authority a reason - 
 [ * 336] able use of his own property; and his * neigh 
 bour, showing substantial injury, is entitled to protec- 
 tion " (s). 
 
 (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 (t); 
 and any one of a number of inhabitants entitled by local 
 custom to a particular water supply can sue a neigh- 
 bour who obstructs that supply (u). It should seem 
 from, the ratio decidendi of the House of Lords in Lyon 
 V. Fishmongers' Company (x), that the rights of access 
 to a highway or a navigable river incident to the occupa- 
 tion of tenements thereto adjacent are private rights 
 within the meaning of this rule (y). 
 
 A species of nuisance which has become prominent 
 in modern law, by reason of the increased closeness and 
 height of buildings in towns, is the obstruction of light: 
 often the phrase " light and air " is used, but the addi 
 tion is useless if not misleading, inasmuch as a specific 
 right to the access of air over a neighbour's land is not 
 known to the law (2). 
 
 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 deci- 
 sions of the last twenty years or thereabouts. 
 
 (s) Lord Selborne L. C, 8 Ch. at p. 469. 
 
 h) Notes to Mellor v. Spateman, 1 Wms. Saund. 626. 
 
 («) Harrop v. Hirst (1868) L. E. 4 Ex. 43. 
 
 ix) 1 App. Ca. 662. 
 
 M Fritz V. Hohson (1880) 14 Ch. D. 542, mpra, p. 328. 
 
 (2) City of London Brewery Co. )'. Tennant (1873) 9 Ch. at p. 
 221; Webb v. Bird (1862) Ex. Ch. 13 C. B. N. S. 841 ; 31 L. J. C. 
 P. 335; Bryant D. Lefever (1879) 4 C. P. Div. 172, especially per 
 Cotton L. J. at p. 180 ; Harris v. De Pinna (1886) 33 Ch. Div. 
 238, per Chitty, J. at p. 250, and Cotton, L. J. at p. 259. 
 (2596) 
 
OBSTRUCTION OF LIGHTS. 263 
 
 * The right to light, to begin with, is not a [ * 337] Nature of 
 natural right incident to the ownership of windows, but the right. 
 an easement to which title must be shown by grant (a) 
 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 claim- 
 ing it (6), without taking away any mode which existed 
 at common law (c). 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 (d). 
 
 Assuming the right to be established, there is a Any snbstan- 
 "wrongful disturbance if the building in respect of which tial diminu- 
 it exists is so far deprived of access of light as to render ^^°^ ^^ * 
 it materially less fit for comfortable or beneficial use or ^''°°S- 
 enjoyment in its existing condition; if a dwelling-house, 
 for ordinary habitation ; if a warehouse or shop, for the 
 conduct of business (e). 
 
 This does not mean that an obstruction is not wrongful 
 if it leaves sufficient light for the conduct of the busi- 
 ness or occupation carried on in the dominant tenement 
 for the time being. The question is not what is the 
 least amount of light the plaintiff can live or work with, 
 but whether the light, as his tenement was entitled to 
 it and enjoyed * it, has been substantially dimin- [ * 338] 
 ished. Even if as subdued or reflected light is better 
 for the plaintiff's business than a direct one, he is not 
 the less entitled to regulate his light for himself (/). 
 
 (a) Notwithstanding the doubts expressed by Littledale J. in 
 Moore v. Rawson (1824) 3 B. & C. at p. 340 see per Lord Sel- 
 borne, Dalton v. Angus (1881) 6 App. Ca. at p. 794, and Lord 
 Blackburn, ib. 823, and the judgments and opinions in that case 
 passim as to the peculiar character of negative easements. 
 
 (b) Kelk«. Pearson (1871) 6 Ch. at pp. 811, 813; cf. 9 Ch. 219. 
 ■ (c) Aynsley v. Glover (1875) 10 Ch. 283. Since the Prescrip- 
 tion Act, however, the formerly accustomed method of claiming 
 under the fiction of a lost grant appears to be obsolete. 
 
 (d) See Potts v. Smith (1868) 6 Eq. 311, 318. 
 
 (e) Kelk v. Pearson (1871) 6 Ch. 809, 811; City of London 
 Brewery Co. v. Tennant (1873) 9 Ch. at p. 216. 
 
 (/) Yates V. Jack (1866) 1 Ch. 295. Lanfranchi v. Mackenzie, 
 4 Eq. 421 (1867, before Malins V. C.) seems to have been decided, 
 on the whole, oji the ground that there was not any material 
 diminution. So far as it suggests that there is a distinction in 
 law between ordinary and extraordinary amounts of light, or that 
 a plaintiff claiming what is called an extraordinary amount ought 
 to show that the defendant had notice of the nature of his busi- 
 pess, it camiot be accepted as authority. 
 
 (2597) 
 
264 NUISANCE. 
 
 Supposed For some years it was supposed, by analogy to a reg- 
 
 rule or pre- ulation ia one of the Metropolitan Local Management 
 sumption as j^g^g gg Iq ^Jjq proportion between the height of new 
 ^^angeo buildings and the width of streets (g), 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 subtended 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 plaintifl:'. But 
 it has been conclusively declared by the Court of Appeal 
 that there is no such rule (h). Every case must be 
 dealt with on its own facts. The statutory regulation 
 is framed on considerations of general public oonveni • 
 ence, irrespective of private titles. Where an individual 
 is entitled to more light than the statute would secure 
 for him, there is no warrant in the statute, or in any- 
 thing that can be thence inferred, for depriving him of it. 
 
 Enlargement An existing right to light is not lost by enlarging, re- 
 or alteration building, or altering (i), the windows for which access 
 of lights. of light is claimed. So long as the ancient lights, or a 
 [ * 339] * substantial part thereof (fc), remain substan- 
 tially capable of continuous enjoyment (I), so long the 
 existing right continues and is protected by the same 
 remedies (m). 
 
 It makes no difference that the owner of a servient 
 tenement may, by the situation and arrangement of 
 the buildings, be unable to prevent a right being ac- 
 quired in respect of the new light otherwise than by 
 obstructing the old light also (w). For there is no 
 
 (g) 25 & 26 Viet. c. 102, s. 85. 
 
 (7i) Parker v. First Avenue Hotel Co. (18S3) 24 Cli. Div 282; 
 Ecclesiastical Commissioners v. Kino (1880) 14 Ch. Div. 213. 
 
 (i) Tapling v. Jones (1865) 11 H. L. C. 290: 34 L. J. C. P. 342, 
 Aynsley v. Glover (1874-5) 18 Eq. 544; 10 Ch. 283; Ecclesiastical 
 Commissioners v. Kino, 14 Ch Div, 213, Greenwood v. Hornsey 
 (1886) 33 Ch. D. 471. 
 
 (fc) Newson r. Pender (1884) 27 Ch. Div. 43, 61. It is not' 
 necessary that the "structural identity" of the old windows should 
 be preserved; the right is to light as measured by the ancient 
 apertures, but not merely as incident to certain defined apertures 
 in a certain place: Scott v. Pape (1886) 31 Ch. Div. 554; National 
 Provincial Plate Glass Insurance Co. i\ Prudential Assurance Co. 
 (1877) 6 Ch. D. 757, But there must at all events be a definite 
 mode of access; Harris v. De Pinna (1886) 33 Ch. Div. 238. 
 
 (l) The alteration or rebuilding must be continuous enough to 
 show that the right is not abandoned; see Moore v. Eawson (1824) 
 3 B. & C. 322. All the local circumstances will be considered; 
 Bullers v. Dickinson (1885) 29 Ch. D. 155. 
 
 (m) Straight v. Burn (1869) 5 Ch, per Giffard L. ,T. at p. 167. 
 
 (m) Tapling v. Jones (1865) 11 H, L. C. 290; 34 L. J. C. P. 34^ 
 (2598) 
 
OBSTRUCTION OF LIGHTS. 265 
 
 such tiling 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 "Nuisance" 
 ferry is commonly reckoned a species of nuisance in to market or 
 our books (o). But this classification seems rather to ^^rry, 
 depend on accidents of procedure than on any sub- 
 stantial resemblance between interference with peculiar 
 rights of this kind and such injuries to the enjoyment 
 of common rights of property as we have been consider- 
 ing. The quasi proprietary right to a market or a ferry 
 is of such a nature that the kind of disturbance called 
 " nuisance " in the old books is the only * way [ * 340] 
 m 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 convention- 
 ally restricted to the violation of rights not depending 
 on any statute. 
 
 The remedies for nuisance are threefold : abatement, Remeclies 
 damages, and injunction: of which the first is by the for nuisance, 
 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 Abatement, 
 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 proceeding (p). 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 
 
 (o) Blackst. Comm. iii. 218. 
 
 (p) Smith V. Earl Brownlow (1869) 9Eq. 241 (the caseofBerk- 
 hamstead Common); "William on Eights of Common, 135. 
 
 (2599) 
 
266 NUISANCE. 
 
 down by a commoner if it is not removed after notice 
 {q) withiin a reasonable time (r). 
 
 [ * 341] * If another man's tree overhangs my land, 
 I may lawfully cut the overhanging branches (s), and 
 in these cases where the nuisance is in the nature of a 
 trespass, and can be abated without entering on 
 another's land, it does not appear that the wrong doer 
 18 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 {t). After notice and 
 refusal, entry on the land to abate the nuisance may be 
 justified, but it is a hazardous course 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. 
 
 Notice to In the case of abating nuisances to a right of corn- 
 
 wrongdoer, mon, notice is not strictly necessary unless the encroach- 
 ment is a dwelling-house in actual occupation, but if 
 there is a question of right to be tried, the more reason 
 able course is to give notice (m). The same rule seems 
 on principle to be applicable 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 restrained in the exercise of 
 those rights to pulling down so much of that fence as 
 it may be necessary for them to remove for the purpose 
 of enabling their cattle to enter and feed upon the resi- 
 due of the common, but they are entitled to consider 
 the whole of that fence so erected upon the common a 
 nuisance, and to remove it accordingly" (x). 
 
 {q) Pulling down the house without notice while there are 
 people in it is a trespass: Perry v. Fitzhowe (1845) 8 Q. B. 757 ; 
 15 L. J. Q. B. 239; Jones v. Jones (1862) 1 H. & C. 1 ; 31 L. J. 
 Ex. 506; following Perry v. Fitzhowe with some doubt. The case 
 of a man pulling down buildings wrongfully erected on his own 
 land is dilTerent, ib., Burling v. Eead (1850) 11 Q. B. 904; 19 L. 
 J. Q. B. 291. 
 
 (r) Davies v. Williams (1851) 16 Q. B. 546; 20 L. J. Q. B. 330. 
 
 (.?) Norris v. Baker, 1 RoUe's Eep. 393, per Croke, Lonsdale v. 
 Nelson, 2 B. & C. 311, per Best. 
 
 (t) This has always been understood to be the law, and seems 
 to follow a fortiori from the doctrine of Perry r. Fitzhowe, supra. 
 
 (u) Per James L. J., Commissioners of Sewers v. Glasse (1872) 
 7 Ch. at p. 464. 
 
 [x) Bayley J. in Arlett v. Ellis (1827) 7 B. & C. 346, 362, and 
 earlier authorities there cited. 
 (2600) 
 
DAMAGES. 267 
 
 * It is doubtful whether there is any private [ *342] Nuisances of 
 right to abate a nuisance consisting only in omission omission, 
 except where the person aggrieved can do it without 
 leaving his own tenement in respect of which he suffers, 
 and perhaps except in cases of urgency such as to make 
 the act necessary for the immediate safety of life or 
 property. " Nuisances by an act of commission are 
 committed in defiance of those whom such nuisances 
 injure, and the injured party may abate them without 
 notice to the person who committed them; but there is 
 no decided case which sanctions the abatement by an 
 individual of nuisances from omission, except that of 
 cutting the branches of trees which overhang a public 
 road, or the private property of the person who cuts 
 them . . . The security of lives and property may 
 sometimes require so speedy a remedy as not to allow lime 
 to call on the person on whose property the mischief 
 has arisen to remedy it. In such cases an individual 
 would be justified in abating a nuisance from omission 
 without notice. In all other cases of such nuisances 
 persons should not take the law into their own hands, 
 but follow the advice of Lord Hale and appeal to a court 
 of justice " (y). 
 
 In every case the party taking on himself to abate a 
 nuisance must avoid doing any unnecessary damage, as 
 is shown by the old form of pleading in justification. 
 Thus it IS lawful to remove a gate or barrier which ob- 
 structs a right of way, but not to break or deface it 
 beyond what is necessary for the purpose of removing 
 it. And where a structure, say a dam or weir across a 
 stream, is in part lawful and in part unlawful, a party ■ 
 abating that which is unlawful cannot justify interfer- , 
 ence with the rest. He must distinguish them at his 
 peril (z). But this does not * mean that the [ *343] 
 wrong-doer is always entitled to have a nuisance abated 
 in the manner most convenient to himself. The conve- 
 nience of innocent third persons or of the public may 
 also be in question. And the abator cannot justify 
 doing harm to innocent persons which he might have 
 avoided. In such a case, therefore, it may be necessary 
 and proper " to abate the nuisance in a manner more 
 onerous to the wrong-doer" (a). Practically the remedy 
 of abatement is now in use only as to rights of common 
 (as we have already hinted), rights of way, and some- 
 
 (y) Best J. in Earl of Lonsdale v. Nelson (1823) 2 B. &C. at p. 
 311. 
 
 (z) GreenslaJe v. Halliday (1830) 6 Bing. 379. 
 (a) Roberts v. Rose (1865) Ex. Ch. L. E. 1 Ex. 82, 89. 
 
 (2601) 
 
268 
 
 NUISANCE. 
 
 Old writs. 
 
 times rights of water; and even in those cases it ought 
 never to be used without good advisement. 
 
 Formerly there were processes of judicial abatement 
 available for freeholders under the writ Quod permittat 
 and the assize of nuisance (b). But these were cum- 
 brous and tedious remedies, and, like the other forrns of 
 real action, were obsolete in practice long before they 
 were finally abolished (c), the remedies by action on the 
 case at law and by injunction in the Court of Chancery 
 having superseded them. 
 
 There is not much to be said of the remedy in dam- 
 ages as applicable to this particular class of wrongs. 
 Persistence in a proved nuisance is stated to be a just 
 cause for giving exemplary damages (d). There is a 
 place for nominal damages in cases where the nuisance 
 consists merely in the obstruction of a right of legal 
 enjoyment, such as a right of common, which does not 
 cause any specific harm or loss to the plaintiff. At 
 [ * 344] common law * damages could not be awarded 
 for any injury received from the continuance of a nui- 
 sance since the commencement of the action; for this 
 was a new cause of action for which damages might be 
 separately recovered. But under the present procedure 
 damages in respect of any continuing cause of action 
 are assessed down to the date of the assessment (e). 
 
 Injunctions. The most efficient and flexible remedy is that of in- 
 junction. Under this form the Court can prevent that 
 from being done which, if done, would cause a nui- 
 sance; it can command the destruction of buildings (/) 
 or the cessation of works (gr) which violate a neigh- 
 
 (6) F. N. B. 124 H., 183 I.; Baten's Ca. 9 Co. Eep. 55 a; 
 Blackst. Comm. ill. 221. 
 
 (e) See note (A) to Penruddock's Ca. 5 Co. Eep. 100 h, in ed. 
 Thomas & Frazer, 1826. 
 
 (d) Blackst. Comm. iii. 220. 
 
 (e) Rules of the Supreme Court, 1883, Ord. XXXVI. r. 58 
 (no. 482). The like power had already been exercised by the 
 Court when damages were given in addition to or in substitution 
 for an injunction under Lord Cairns' Act, 21 & 22 Vict, c 27, 
 now repealed bv the Statute Law Eevision and Civil Procedure 
 Act, 1883, 46 &'47 Vict. c. 49. See Fritz v. Hobson (1880) 14 
 Ch. D. 542, 557. 
 
 (/) E.g. Kelk v. Pearson (1871) 6 Ch. 809. 
 
 ig) The form of order does not go to prohibit the carrying on 
 of such and such operations absolutely, but "so as to cause a 
 nuisance to the plaintiff," or like werds: see Lingwood v. Stow- 
 market Co. (1865) 1 Eq. 77, 336, and other precedents in Seton, 
 Ft. II. ch. 5, s. 5. See addenda page xxxix. 
 (2602) 
 
INJUNCTIONS. 269 
 
 bonr's rights; where there is a disputed question of 
 right between the parties, it can suspend the operations 
 complained of until that question is finally decided; 
 and its orders may be either absolute or conditional 
 upon the fulfilments by either or both of the parties of 
 such undertakings as appear just in the particular case 
 (h). _ 
 
 It is a matter of common learning and practice that 
 an injunction is not, like damages, a remedy (as it is 
 said) ex * debito iustitiae. Whether it shall [ * 345] 
 be granted or not in a given case is in the judicial dis- 
 cretion of the Court, now guided by principles which 
 have become pretty well settled. In order to obtain an 
 injunction it must be shown that tlie injury complained 
 of as present or impending is such as by reason of its 
 gravity, or its permanent character, or both, cannot be 
 adequately compensated in damages (i). The injury 
 must be either irreparable or continuous (fc). This 
 remedy is therefore not appropriate for damage which 
 is in its nature temporary and interroittent (Z), or is ac- 
 cidental and occasional (m), or for an interference with 
 legal rights which is trifling in amount and effect (n). 
 
 Apprehension of future mischief from something in 
 itself lawful and capable of being done without creat- 
 ing a nuisance is no ground for an injunction (o). 
 " There must, if no actual damage is proved, be proof 
 of imminent danger, and there must also be proof that 
 the apprehended damage will, if it comes, be very sub- 
 stantial" (p). But where a nuisance is shown to exist, 
 all the probable consequences are taken into account in 
 
 (/{) Thus where the complaint was of special damage or dan- 
 ger from something alleged to be a public nuisance, an interlocu- 
 tory injunction has been granted on the terms of the plaintiff 
 bringing an indictment; Hepburn v. Lordan (I860) 2 H. & M. 
 345, 352. 
 
 (i) Cooker. Forbes, 5 Eq. 166, 173 (Page Wood V.-C. 1867); 
 A.-G. b. Sheffield &c. Co. (next note but one). 
 
 (k) Page Wood L. J. 4 Ch. at p. 81. 
 
 (l) A.-G. V. Sheffield Gas Consumers' Co. (1853) 3D. M. G. 304 
 (breaking up streets to lay gas pipes) followed by A.-G. v. Cam- 
 bridge Consumers' Gas Co. 1868) 4 Ch. 71. 
 
 (m) Cooke v. Forbes, supra (escape of fumes from works where 
 the precautions used were shown to be as a rule sufficient). 
 
 (n) Gaunt r. Fynney (1872) 8 Ch. 8 (case of nuisance from 
 noise broke down, slight obstruction to ancient light held no 
 ground for injunction). 
 
 (0) See the cases reviewed by Pearson J., Fletcher d. Bealey 
 (1885) 28 Ch. D. 688. 
 
 (p) 28 Ch. D. at p. 698. A premature action of this kind may 
 be dismissed without prejudice to future proceedings in the event 
 of actual nuisance or imfllinent danger: ib. 704. 
 
 (2603) 
 
270 NUISANCE. 
 
 determining •whether the injury is serious within the 
 [ * 346] meaning of the rule on which * the Court 
 acts (q). But there must be substantial injury in 
 view to begin with. The following passages from a 
 judgment of the late Lord Justice James will be found 
 instructive on this point: — 
 
 " In this case the Master of the Rolls has dismissed 
 with costs the bill of the plaintiff. 
 
 "The bill, in substance, sought by a mandatory in- 
 junction to prevent the defendants, who are a great 
 colliery company, from erecting or working any coke 
 ovens or other ovens to the nuisance of the plaintiff, 
 the nuisance alleged being from smoke and deleteri- 
 ous vapours. 
 
 "The Master of the Eolls thought it right to lay 
 down what he conceived to be the principle of law ap- 
 plicable to a case of this kind, which principle he found 
 expressed in the case of St. Helen's Smelting Co. v. 
 Tipping {r),-in which Mr. Justice Mellor gave a very 
 elaborate charge to the jury, which was afterwards the 
 subject of a very elaborate discussion and consideration 
 in the House of Lords. The Master of the Eolls de- 
 rived from that case this principle; that in any case of 
 this kind, where the plaintiff was seeking to interfere 
 with a great work carried on, so far as the work itself 
 is concerned, in the normal and useful manner, the 
 plaintiff must show substantial, or, as the Master of the 
 Eolls expressed it, 'visible' damage. The term 'visi- 
 ble ' was very much quarrelled with before us, as not 
 being accurate in point of law. It was stated that the 
 word used in the judgment of the Lord Chancellor was 
 'sensible.' I do not think that there is much differ- 
 ence between the two expressions. When the Master 
 of the Eolls said that the damage must be visible, it 
 appears to me that he was quite right; and as T under- 
 stand the proposition, it amounts to this, that, although 
 [ * 347] when you * once establish the fact of actual 
 substantial damage, it is quite right and legitimate to 
 have recourse to scientific evidence as to the causes of 
 that damage, still, if you are obliged to start with sci- 
 entific evidence, such as the microscope of the natural- 
 ist, or the tests of the chemist, for the purpose of estab- 
 lishing the damage itself, that evidence will not suffice. 
 The damage must be such as can be shown by a plain 
 witness to a plain common juryman. 
 
 (q) Goldsmid v. Tunbridge Wells Improvement Commrs. 
 (1866) 1 Ch. 349, 354. 
 
 (r) 11 H. L. C. 642 (1865). 
 (2604) 
 
WHAT IS SUBSTANTIAL DAMAGE. 271 
 
 " The damage must also be substantial, and it must 
 be, in my view, actual; that is to say, the Court has, in 
 dealing with questions of this kind, no right to take 
 into account contingent, prospective or remote damage. 
 I would illustrate this by analogy. The law does not 
 take notice of the imperceptible accretions to a river 
 bank, or to the sea-shore, although after the lapse of 
 years they become perfectly measureable and ascertain- 
 able; and if in the course of nature the thing itself is 
 so imperceptible, so slow, and so gradual as to require 
 a great lapse of time before the results are made pal- , 
 pable to the ordinary senses of mankind, the law disre- 
 gards that kind of imperceptible operation. So, if it 
 were made out that every minute a millionth of a grain 
 of poison were absorbed by a tree, or a millionth of a 
 grain of dust deposited upon a tree, that would not af- 
 ford a ground for interfering, although after the lapse 
 of a million minutes the grains of poison or the grains 
 of dust could be easily detected. 
 
 " It would have been wrong, as it seems to me, for 
 this Court in the reign of Henry VI. to have interfered 
 with the further use of sea coal in London, because it 
 had been ascertained to their satisfaction, or predicted 
 to their satisfaction, that by the reign of Queen Victo- 
 ria both white and red roses would have ceased to 
 bloom in the Temple Gardens. If some picturesque 
 haven opens its arms to invite the commerce of the 
 world, it is * not for this Court to forbid the [ * 348] 
 embrace, although the fruit of it should be the sights, 
 and sounds, and smells of a common seaport and ship- 
 building town, which would drive the Dryads and their 
 masters from their ancient solitudes. 
 
 "With respect to this particular property before us, 
 I observe that the defendants have established them- 
 selves on a peninsula which extends far into the heart 
 of the ornamental and picturesque grounds of the 
 plaintifl. If, instead of erecting coke ovens at that 
 spot, they had been minded, as apparently some persons 
 in the neighbourhood on the other side have done, to 
 import ironstone, and to erect smelting furnaces, forges, 
 and mills, and had filled the whole of the peninsula 
 with a mining and manufacturing village, with beer- 
 shops, and pig-styes, and dog-kennels, which would 
 have utterly destroyed the beauty and the amenity of 
 the. plaintiff's ground, this Court could not, in my judg- 
 ment, have interfered. A man to whom Providence has 
 given an estate, under which there are veins of coal 
 worth perhaps hundreds of thousands of pounds per 
 
 (2605) 
 
2'J2 NUISANCE. 
 
 acre, must take the gift with the consequences and con- 
 comitants of the mineral wealth in which he is a par- 
 ticipant" (s). 
 
 It is not a necessary condition of obtaining an in- 
 junction to show material specific damage. Continuous 
 interference with a legal right in a manner capable of 
 producing material damage is enough (<). 
 
 Difflcultv or '^^® difficulty or expense which the party liable for a 
 expense of nuisance may have to incur in removing it makes no 
 abatement no difference to his liability, any more than a debtor's being 
 answer. ^ * 349J * unable to pay makes default in payment the 
 
 less a breach of contract. And this principle applies 
 not only to the right in itself, but to the remedy by in- 
 junction. The Court will use a discretion in granting 
 reasonable time for the execution of its orders, or ex- 
 tending that time afterwards on cause shown. But 
 where an injunction is the only adequate remedy for 
 the plaintifP, the trouble and expense to which the de- 
 fendant may be put in obeying the order of the Court 
 are in themselves no reason for withholding it (u). 
 
 Parties en- As to the person entitled to sue for a nuisance : as 
 titled to sue regards interference with the actual enjoyment of pro- 
 for nuisance, perty, only the tenant in possession can sue ; but the 
 landlord or reversioner can sue if the injury is of such 
 a nature as to affect his estate, say by permanent de- 
 preciation of the property, or by setting up an adverse 
 claim of right (x). A lessee who has underlet cannot 
 sue alone in respect of a temporary nuisance, though he 
 may properly sue as co-plaintiff with the actual occupier 
 (y). A nuisance caused by the improper use of a 
 highway, such as keeping carts and vans standing an 
 unreasonable time, is not one for which a reversioner 
 can sue; for he suffers no present damage, and inas- 
 much as no length of time will justify a public nuisance, 
 he is in no danger of an adverse right being established/ 
 (z). 
 The reversioner cannot sue in respect of a nuisance 
 
 (s) James L. J., Salvia v. North Brancepeth Coal Co. (1874) 9 
 Ch. 705, at p. 708. 
 
 (t) Clowes V. Staffordshire Potteries Waterworks Co. (1872) 8 
 Ch. 125, 142; cp. Pennington v. Brinsop Hall Coal Co. 1877) 5 
 Ch. D. 769. 
 
 (u) A.-G. V. Colney Hatch Lunatic Asylum (1868) 4 Ch. 146. 
 
 (x) See Dicey on Parties, 340. 
 
 (y) Jones v. Chappell (1875) 20 Eq. 539, which also discredits 
 the supposition that a weekly tenant cannot sue. 
 
 (2) Mott V. Shoolbred (1875) 20 Eq. 22. 
 (2606) 
 
PARTIES. 273 
 
 in its nature temporary, such as noise and smoke, even 
 if the nuisance drives away his tenants (a), or by rea- 
 son thereof * he can get only a reduced rent [ * 350] 
 on the renewal of the tenancy (6). "Since, in order to 
 give a reversioner an action of this kind, there must be 
 some injury done to the inheritance, the necessity is 
 involved of the injury being of a permanent character " 
 (c). But as a matter of pleading it is sufficient for the 
 reversioner to allege a state of things which is capable 
 of being permanently injurious (d). 
 
 As to liability: The person primarily liable for a Parties 
 nuisance is he who actually creates it, whether on his liable. 
 own land or not (e). The owner or occupier of land 
 on which a nuisance is created, though not by himself 
 or by his servants, may also be liable in certain condi- 
 tions. If a man lets a house or land with a nuisance 
 on it, he as well as the lessee is answerable for the con- 
 tinuance thereof (/), if it is caused by the omission of 
 repairs which as between himself and the tenant he is 
 bound to do (/), but not otherwise (g). If the landlord 
 has not agreed to repair, he is not liable for defects of 
 repair happening du-ring the tenancy, even if he habit- 
 ually looks to the repairs in * fact (h). It [ * 351] 
 seems the better opinion that where the tenant is bound 
 to repair, the lessor's knowledge, at the time of letting, 
 of the state of the property demised makes no difference, 
 and that only something amounting to an authority to 
 continue the nuisance will make him liable (i). 
 
 (a) Simpson v. Savage (18.56) 1 C. B. N. S. 347; 26 L. J. C. P. 50. 
 (6) Mumlbrd v. Oxford, &c. R. Co. (1856) 1 H. & N. 34; 25 L. 
 J. Ex. 205. 
 
 (e) Per Cur. 1 C. B. N. S. at p. 361. 
 
 (d) Metropolitan Association v. Patch (1858) 5 C. B. N. S. 504; 
 27 L. J. C. P. 330. 
 
 (e) See Thompson v. Gibson (1841) 7 M. & W. 456. 
 
 (/) Todd I. Flight (1860) 9 C. B. N. S. 377; 30 L. J. C. P. 21. 
 The extension of this in Gandy v. Jubber (1864) 5 B. & S. 78 ; 33 
 L. J. Q. B. 151. by treating the landlord's passive continuance of 
 a yearly tenancy as equivalent to a re-letting, so as to make him 
 liable for a nuisance created since the original demise, is incon- 
 sistent with the later authorities cited below: and in that case a 
 judgment reversing the decision was actually prepared for delivery 
 in the Ex. Ch., but the plaintiif meanwhile agreed to a stet pro- 
 cessus on the recommendation of the Court: see 5 B. & S. 485, and 
 the text of the undelivered judgment in 9 B. & S. 15. 
 
 (o) Pretty v. Bickmore (1873) L. R. 8 C. P. 401 ; Gwinnell v. 
 Eamer (1875) L. R. 10 C. P. 6.58. 
 
 (h) Nelson r. Liverpool Brewery Co. (1877) 2 C. P. D. 311; cp. 
 Rich V. Ba.sterfield (1847) 4 C. B, 783; 16 L. J. C. P. 273. 
 
 (i) Pretty v. Bickmore (1873) L. K. 8 C. P. 401 ; Gwinnell v. 
 Eajner (1875) L. R. 10 C. P. 658. 
 
 13 LAW OF TOETS. (2607) 
 
274 NUISANCE. 
 
 Again an occupier who by licence (not parting with 
 the possession) authorizes the doing on his land of 
 something whereby a nuisance is created is liable (k). 
 But a lessor is not liable merely because he has demised 
 to a tenant something capable of being so used as to 
 create a nuisance, and the tenant has so used it (l). 
 Nor is an owner not in possession bound to take any 
 active steps to remove a nuisance which has been created 
 on his land without his authority and against his will 
 (m). 
 
 If one who has erected a nuisance on his land con- 
 veys the land to a purchaser who continues the nuis- 
 ance, the vendor remains liable (n), and the purchaser 
 is also liable if on request he does not remove it (o). 
 
 (k) "White V. Jameson (1874) 18 Eq. 303. 
 
 (0 Rich V. Basterfield (1847) 4 C. B. 783; 16 L. J. C. P. 273. 
 
 (m) Saxhy v. Manchester & Sheffield E. Co. (1869) Jj. R. 4 C. 
 P. 198, where the defendants had given the plaintiff licence to 
 abate the nuisance himself as far as they were concerned. 
 
 (m) Rosewellj). Prior (1701) 12 Mod. 635. 
 
 (o) Penruddock's Ca. 5 Co. Eep. 101 a. 
 (3608) 
 
(275) 
 
 * CHAPTER XL [ * 352] 
 
 NEGLIGENCE. 
 
 I. — The General Conception. 
 
 For acts and their results (within the limits expressed Omission 
 by the term " natural and probable consequences," and contia^^tcd 
 discussed in a foregoing chapter, and subject to the "^^'^'^ action 
 grounds of justification and excuse which have also been ii?,hiiT""^ °^ 
 discussed) the actor is, generally speaking, held an- " ^'^' 
 swerable by law. For mer6 omission a man is not, gen- 
 erally speaking, held answerable. Not that the con- 
 sequences 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 
 offence 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 (a). Some already existing relation of 
 duty must be established, which relation will be found 
 in most cases, though not in all, to depend on a fore- 
 going 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 [ * 353] 
 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 anything 
 attended with risk to the persons or property of others 
 is held answerable for the use of a certain measure of 
 
 (a) See Note M to the Indian Penal Code as originally framed 
 by the Commissioners. 
 
 (2609) 
 
276 NEGLIGENCE. 
 
 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 in collision with the persons or property of others 
 have by law a duty cast upon them to use reasonable 
 care and skill to avoid such a collision" (b). The cau- 
 tion 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 
 11+, some danger. Thus we arrive at the general rule that 
 of^caution^in ^"^^^J '^^^- is bound to exercise due care towards his 
 acts. neighbours in his acts and 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 (c). 
 
 Overlapping ^"^ some cases this ground of liability may co-exist 
 •« of contract with a liability on contract towards the same person, 
 
 and tort. and arising (as regards the breach) out of the same 
 [ * 354] 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 (d). The 
 two duties are distinct, except so far as the same party 
 cannot be compensated 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 (e). "If a 
 
 (6) Lord Blackburn, 3 App. Ca. at p. 1206. 
 
 (c) Cp. per Brett M. E., Heaven i). Pender (1883), 11 Q. B. Biv. 
 at p. 5(17. 
 
 (rf) This appears to be the substance of the rule intended to be 
 laid down by Brett M. R. in Heaven r. Pender (1^83) 11 Q. B. 
 D. at pp. 507-510; his judgment was however understood by the 
 other members of the Court (Cotton and Bowen L. JJ.) as formu- 
 lating some wider rule to vshich they could not assent. The case 
 itself comes under the special rules defining the duty of occupiers 
 (see Chap. XII. below). And, so far as the judgment of Brett 
 M. R. purported to exhibit those rules as a simple deduction 
 from the general rule as to negligence, it is submitted that the 
 dissent of the Lords Justices was well founded. 
 
 (c) Cp. the present writer's "Principles of Contract," p. 142, 
 4th ed. 
 
 (2610) 
 
alderson's definition. 277 
 
 smith pick my horse with a nail, &c., I shall have my 
 action upon the case against him, ivithout any imrranty 
 by the smith to do if 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 Con- 
 tract and Tort gives rise to troublesome questions v?hich 
 we 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 contract ii, 
 or even where the duty actually enforced was of that 
 kind. For the obligation of many contracts is, by usage 
 aad the nature of the case, * not to perform [ * 355] 
 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 complained 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 ques- 
 tions, 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 performing 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 of 
 " Negligence is the omission to do something which a negligence. 
 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" (g): provided, of course, that the 
 party whose conduct is in question is already in a sit- 
 uation that brings him under the duty of taking care. 
 This, it will be observed, says nothing of the party's 
 state of mind, and rightly. Jurisprudence is not psy- 
 chology, and law disregards many psychological dis- 
 
 (/) F. N. B. 94 D. 
 
 {(/) Blyth V. Bii-mingham Waterwork s Co. (1856) 11 Ex. at p. 
 784; 25 L. J. Ex. at p. 21.3; adopted by Brett J. in Smith v. L. 
 & S. W. E. Co. (1870) L. E. 5 C. P. at p. 102. 
 
 (2611) 
 
278 NEGLIGENCE. 
 
 tinctions not because lawyers are ignorant of their ex- 
 [ * 356] istence, but because for legal * purposes it is 
 impracticable or useless to regard them. Even if the 
 terms were used by lawyers in a peculiar 8ense,there would 
 be no need for apology, but the legal sense is the natural 
 one. Negligence is the contrary of diligence, and no 
 one describes diligence as a state of mind. The question 
 for judges and juries is not what a man was thinking or not 
 thinking about, expecting or not expecting, but whether 
 his behaviour was or was not such as we demand of a pru- 
 dent man under the given circumstances, Facts which 
 were known to him, or by the use of appropriate diligence 
 would have been known to a prudent man in his place, 
 come into account as part of the circumstances. Even 
 as to these the point of actual knowledge is a subordin- 
 ate one as regards the theoretical foundation of liability. 
 The question is not so much what a man of whom dili- 
 gence was required actually thought of or perceived, 
 as what would have been perceived by a man of or- 
 dinary sense who did think {h). A man's responsi- 
 bility may be increased by his happening to be in pos- 
 session of some material information beyond what he 
 might be expected to have. But' this is a rare case. 
 
 As matter of evidence and practice, proof of actual 
 knowledge may be if great importance. If danger of 
 a well understood kind has in fact been expressly 
 brought to the defendant's notice as the result of his 
 conduct, and the express warning has been disregarded 
 or rejected (i), it is both easier and more convincing to 
 prove this than to show in a general way what a pru- 
 dent man in the defendant's place ought to have known. 
 In an extreme case reckless omission to use care, after 
 [ * 357] notice of the risk, may * be held, as matter of 
 fact, to prove a mischievous intention: or, in the terms 
 of Roman law, culpa lata may be equivalent to dolus. 
 For purposes of civil liability it is seldom (if ever) 
 necessary to decide this point. 
 
 The stanclai-d ^® have assumed that the standard of duty is not 
 of duty does the foresight and caution which this or that particular 
 not vary man is capable of, but the foresight and caution of a 
 Avitliindmd- prudent man — the average prudent man, or, as our 
 ua abi 1 y. i^qqJjq rather affect to say, a reasonable man^standing 
 
 (h) Brett M. R., 11 Q. B. Div. 508. 
 
 (i) As in Vauslian v. Menlove (1837) 3 Bing. N. C. 468, where 
 the defendant, after being warned that his haystack was likely to 
 take fire, said he would chance it (pp. 471, 477.) 
 (2612) 
 
THE STANDARD OF PRUDEJTOB. 37? 
 
 in this or that man's shoes (k). This idea so pervades 
 the mass of our authorities that it can be appreciated 
 only by some familiarity with them. In the year 1837 
 it was formally and decisively enounced by the Court 
 of Common Pleas (l). The action was against an oc- 
 cupier who had built a rick of hay on the verge of his 
 own land, in such a state that there was evident danger 
 of fire, and left it there after repeated warning. The 
 hayrick did heat, broke into flame, and set fire to build- 
 ings which in turn communicated the fire to the plain- 
 tiff's cottages,- and the cottages were destroyed. At the 
 trial the jury were directed " that the question for them 
 to consider was whether the fire had been occasioned 
 by gross negligence on the part of the defendant," and 
 "that he was bound to proceed with such reasonable 
 caution as a prudent man would have exercised under 
 such circunistances." A rule for a new trial was ob- 
 tained '• on the ground that the jury should have been 
 directed to consider, not whether the defendant had 
 been guilty of gross negligence with reference to the 
 standard of ordinary prudence, a standard too uncer- 
 tain to afford any criterion; but whether he had acted 
 bona fide to the * best of his judgment; if he { * 358] 
 had, he ought not to be responsible for the misfortune 
 of not possessing the highest" (m) order of intelli- 
 gence." The Court unanimouly declined to accede to 
 this view. They declared that the care of a prudent 
 man was the accustomed and the proper measure of 
 duty. It had always been so laid down, and the al- 
 leged uncertainty of the rule had been found no obsta- 
 cle to its application by juries. It is not for the Court 
 to define a prudent man, but for the jury to say whether 
 the defendant behaved like one. " Instead of saying 
 that the liability for negligence should be co-extensive 
 with the judgment of each individual — which would be 
 as variable as the length of the foot of ea«h individual 
 — we ought rather to adhere to the rule which requires 
 in all cases a regard to caution such as a man of ordi- 
 nary prudence would observe" (w). Quite lately the 
 same principle has been enforced in the Supreme 
 Court of Massachusetts. " If a man's conduct is such 
 
 (k) Compare the Aristotelian u 0puuc/j.n(; or 6 intdudaXo^ in 
 determining the standard of moral duty. 
 
 [1) Vaughan r. Menlove (1837) 3 Bing. N. C. 468. 
 
 (m) This misrepresents the rule of law: not the highest intelli- 
 gence, but intelligence not below the average prudent man's, be- 
 ing required. 
 
 (») Tindal C. J., 3 Bing. N. C. at p. 475. 
 
 (2613) 
 
280 
 
 NEGLIGENCE. 
 
 JDiligence in- 
 cludes 
 competence. 
 
 Negligence a 
 question of 
 mixed fact 
 and law. 
 
 as would be reckless in a man of ordinary prudence, 
 it is reckless in him. Unless he can bring himself 
 within some broadly defined exception to general rules, 
 the law deliberately leaves his personal equation or 
 idiosyncracies out of account, and peremptorily as- 
 sumes that he has as much capacity to judge and to 
 foresee consequences as a man of ordinary pnidence 
 would have in the same situation " (o) 
 
 It will'be remembered that the general duty of dili- 
 gence includes the particular duty of competence in 
 cases where the matter taken in hand is of a sort re- 
 [ * 359] quiring more than * the knowledge or ability 
 which any prudent man may be expected to have. The 
 test is whether the defendant has done '• all that any 
 skilful person could reasonably be required to do in 
 such a case" (p). This is not an exception or exten- 
 sion, but a necessary application of the general rule. 
 For a reasonable man will know the bounds of his com- 
 petence, and will not intermeddle (save in extraordi- 
 nary emergency) where he is not competent (q). 
 
 II. — Evidence of Negligence. 
 
 Due care and caution, as we have seen, is the dili- 
 gence of a reasonable man, and includes reasonable 
 competence in cases where special competence is need- 
 ful to ensure safety. Whether due care and caution 
 have been used in a given case is, by the nature of 
 things, a question of fact. But it is not a pure ques- 
 tion of fact in the sense of being open as a matter of 
 course and without limit. Not every one who suffers 
 harm which he thinks can be set down to his neigh- 
 bour's default is thereby entitled to the chance of a 
 jury giving him damages. The field of inquiry has 
 limits defined, or capable of definition, by legal princi- 
 ple and judicial discussion. Before the Court or the 
 jury can proceed to pass upon the facts alleged by the 
 plaintiff, the Court must be satisfied that those facts, if 
 proved, are in law capable of supporting the inference 
 that the defendant has failed in what the law requires 
 at his hands. In the current forensic phrase, there 
 must be evidence of negligence. The peculiar relation 
 
 (o) Commonwealth r. Pierce (1884) 138 Mass. 16o; 52 Am. 
 Eep. 264; per Holmes J. See too per Bayley J. in Jones v. Bird 
 (1822) 5 B. & A. at pp. 845-6. 
 
 (p) Bayley J., 5 B. & A. at p. 846. 
 
 (2) See p. 25, above. 
 
 (2614) 
 
BURDEN OF PROOF. 281 
 
 of the judge to the jury in our common law system has 
 given occasion for fi-equent and minute discussion on 
 the propriety of leaving or not leaving for the decision 
 of the jury the facts alleged by a plaintiff as proof of 
 negligence. Such discussions are not * car- [ * 360] 
 ried on in the manner best titted to promote the clear 
 statement of principles; it is difficult to sum up their 
 results, and not always easy to reconcile them. 
 
 The tendency of modern rulings of Courts of Appeal 
 has been, if not to enlarge the province of the jury, to 
 arrest the process of curtailing it. Some distinct 
 boundaries, however, are established. 
 
 Where there is no contract between the parties, the BurcTen of 
 burden of proof is on him who complains of negligence, proof. 
 He must not only show that he suffered harm in such 
 a manner that it " might be caused by the defendant's 
 negligence; he must show that it was so caused, and to 
 do this he must prove facts inconsistent with due dili- 
 gence on the part of the defendant. "Where the evi- 
 dence given is equally consistent with the existence or 
 non-existence of negligence, it is not competent to the 
 judge to leave the matter to the jury" (r). 
 
 Nothing can be inferred, for example, from the bare 
 fact that a foot-passenger is knocked down by a car- 
 riage in a place where they have an equal right to be, 
 or by a train at a level crossing. Those who pass and 
 repass in frequented roads ai-e bound to use due care, 
 be it on foot or on horseback, or with carriages: and 
 before one can complain of another, he must show 
 wherein care was wanting. "When the balance is even 
 as to which party is in fault, the one who relies upon 
 the negligence of the other is bound to turn the scale" 
 (s). If the carriage was being driven furiously, or on 
 the wrong side of the road, that is another matter. But 
 the addition of an ambiguous circumstance will not do. 
 
 * Thus in Cotton v. Wood (t) the plaintiff's [ * 361] 
 wife having safely crossed in front of an omnibus, was 
 startled by some other carriage, and ran back; the driver 
 had seen her pass, and then turned round to sjpeak to the 
 conductor, so that he did not see her return in time to 
 pull up and avoid' mischief. The omnibus was on its 
 
 (r) Williams J. in Hammaok v. White (18fi2) 11 C. B. N. S. 
 588; Cotton v. Wood (1860) 8 C. B. N. S. .^^68; 29 L. J. C. P. 333; 
 Wakelin v. L. & S. W. E. Co. in H. L. Dec. 10, 1886. 
 
 U) Erie C. J., Cottons. Wood, supra. 
 
 (i) See note (r), above. 
 
 (2615) 
 
282 NEGLIGENCE. 
 
 right side and going at a moderate pace. Here there 
 was no evidence of negligence on the part of the de- 
 fendant, the owner of the omnibus (u). His servants, 
 on the plaintiff's own showing, had not done anything 
 inconsistent with due care. There was no proof that 
 the driver turned round to speak to the conductor other- 
 wise than for a lawful or necessary purpose, or had any 
 reason to apprehend that somebody would run under 
 the horses' feet at that particular moment. Again if a 
 horse being ridden (v) or driven (x) in an ordinary 
 manner runs away without apparent cause, and in spite 
 of the rider's or driver's efforts trespasses on the foot- 
 way and there does damage, this is not evidence of 
 negligence. The plaintiff ought to show positive want 
 of care, or want of skill, or that the owner or person in 
 charge of the horse knew it to be unmanageable. "To 
 hold that the mere fact of a horse bolting is per se evi- 
 dence of negligence would be mere reckless guesswork" 
 
 (y)- 
 
 Sometimes it is said that the burden of proof is on 
 the plaintiff to show that he was himself using due 
 care, and it has been attempted to make this supposed 
 principle a guide to the result to be arrived at in cases 
 [ * 362] where the * defence of contributory negligence 
 is set up (z). We do not think this view tenable on 
 the recent Engligh authorties. What we consider to 
 be the true view of contributory negligence will be 
 presently explained. 
 
 Where there The general principle has to be modified where there 
 is contract or is a relation of contract between the parties, and (it 
 undertaking, should seem) when there is a personal undertaking 
 without a contract. A coach runs against a cart; the 
 cart is damaged, the coach is upset, and a passenger in 
 the coach is hurt. The owner of the cart must prove 
 that the driver of the coach was in fault. But the 
 passenger in the coach can say to the owner: "You 
 promised for gain and reward to bring me safel}' to my 
 journey's end, so far as reasonable care and skill could 
 
 (u) It would be convenient if one could in these running-down 
 cases on land personify the vehicle, like a ship. 
 
 (v) Hammack v. White (1862) 11 C. B. 1S[. S. 588. 
 
 (x) Manzoni v. Douglas (1880) 6 Q. B. D. 145, where it was 
 unsuccessfully attempted to shake the authority of Hammack v. 
 White. The cases relied on for that purpose belong to a special 
 class. 
 
 (y) Lindley J., 6 Q. B. D. at p. 153. 
 
 (z) E. g. Murphy v. Deane, 101 Mass. 455. Contra Lord Wat- 
 son in Wakelin v. L. & S. W. E. Co. (H. L. Dec. 10, 
 (2616) 
 
EVIDENCE AND PRESUMPTIONS. 283 
 
 attain it. Here am I thrown out on the road with a 
 broken head. Your contract is not performed; it is for 
 you to show that the misadventure is due to a cause for 
 which you are not answerable" (a). 
 
 When a railway train runs o£F the line, or runs into 
 another train, both permanent way and carriages, or 
 both trains (as the case may be) being under the same 
 company's control, these facts, if unexplained, are as 
 between the company and a passenger evidence of neg- 
 ligence (b). 
 
 In like manner if a man has undertaken, whether for 
 reward or not, to do something requiring special skill, 
 he may fairly be called on, if things go wrong, to prove 
 his competence : though if he is a competent man, the 
 mere fact of a mishap (being of a kind that even a com- 
 petent person is exposed to) would of itself be no evi- 
 dence of * negligence. We shall see later that, [ * 363] 
 where special duties of safe keeping or repair are 
 imposed by the policy of the law, the fact of an accident 
 happening is held, in the same manner, to cast the 
 burden of proving diligence on the person who is 
 answerable for it, or in other words raises a presump- 
 tion of negligence. This is said withoiit prejudice to 
 the yet stricter rule of liability that holds in certain 
 cases. 
 
 Again there is a presumption of negligence when the Thino-s with- 
 cause of the mischief was apparently under the control in defend- 
 of the defendant or his servants. The rule was declared ^^^'^ control. 
 by the Exchequer Chamber in 1865 (c), in these 
 terms: — 
 
 " There must be reasonable evidence of negligence. 
 
 " But where the thing is shown to be under the 
 managenlent of the defendant or his servants, and the 
 accident is such as in the ordinary course of things 
 does not happen if those who have the management 
 use proper care, it affords reasonable evidence, in the 
 absence of explanation by the defendants, that the ac- 
 cident arose from want of care." 
 
 Therefore if I am lawfully and as of right (d) pass- 
 
 (a) In other words (to anticipate part of a special discussion) 
 the obligation does not become greater if we regard the liability 
 as ex delicto instead of ex contractu; but neither docs it become 
 less. 
 
 (6) Carpue v. London & Brighton K. Co. (1844) 5 Q. B. 747, 
 751; Skinner v. L. B. & S. C. E. Co. (1850) 5 Ex. 787. 
 
 (c) Scott V. London Dock Co. 3 H. & C. 596; 34 L. J. Ex. 220. 
 
 (d) That is, not merely by the defendant's licence, as will be 
 explained later. 
 
 (2617) 
 
284 NEGLIGENCE. 
 
 ing in a place where people are handling heavy goods, 
 and goods being lowered by a crane fall upon me and 
 knock me down, this is evidence of negligence against 
 the employer of the men who were working the crane 
 (e). 
 
 Common The Court will take judicial notice of what happens 
 
 course of in the ordinary course of things, at all events to the 
 
 affairs extent of using their knowledge of the common affairs 
 
 Noticed [ * 364] of life * to complete or correct what is stated 
 
 by witnesses. Judges do not affect, for example, to be 
 
 ignorant that the slipping of one passenger out of 
 
 several thousand in hurrying up the stairs of a railway 
 
 station is not an event so much out of the run of pure 
 
 accidents as to throw suspicion on the safety of the 
 
 staircase (/). 
 
 On evidence When we have once got something more than an 
 sufacient in ambiguously balanced state of facts; when the evidence, 
 law, question jf believed, is less consistent with diligence than with 
 or jury. negligence on the defendant's part, or shows the non- 
 performance of a specific positive duty laid on him by 
 statute, contract, or otherwise ; then the judgment 
 whether the plaintiff has suffered by the defendant's 
 negligence is a judgment of fact, and on a trial by jury 
 must be left as such in the hands of the jury (g). It 
 is true that the rules as to remoteness of damage set 
 some bounds to the connexion of the defendant's negli- 
 gence with the plaintiff's loss (h). But even in this 
 respect considerable latitude has been allowed (»'). Rail 
 way accidents have for the last thirty years or more 
 been the most frequent occasions of defining, or at- 
 tempting to define, the frontier between the province of 
 the jury and that of the Court. 
 
 Recent rail- Two considerable and well marked groups of cases 
 way cases on stand out from the rest. One set may be broadly de- 
 level cross- scribed as level crossing cases, and culminated in North- 
 ings and Eastern Railway Company v. Wanless, decided by the 
 "invitation j i^ j i j 
 
 to alight." 
 
 (c) lb. Crompton, Byles, Blackburn, Keating J J., diss. ErleC. 
 J. and Mcllor J.; but no dissenting judgment was delivered, nor 
 does the precise ground of dissent appear. 
 
 (/) Grafter v. Metroo. R. Co. (1866) L. R. 1 C. P. 300. 
 
 (g) This is well put in the judgment in M'Cullyj;. Clark (Penn- 
 sylvania, 1861) Bigelow L. C. 559. . 
 
 (A) Metrop. R. Co. v. Jackson (1877) 3 App. Ca. 193. 
 
 (i) See Williams v. G. W. R. Co. (1874) L. R. 9 Ex. 157, supra, 
 p. 38. 
 
 (2618) 
 
RAILWAY CASES. 285 
 
 House of Lords in 1874 (k); the other may still more 
 roughly * (but in a manner which readers [ * 365] 
 familiar -with tlie reports will at once understand) be 
 called " invitation to alight " cases. These are now 
 governed by Bridges v. North London Railway Com- 
 pany (l), another decision of the House of Lords which 
 followed closely on Wanless's case. In neither of these 
 cases did the House of Lords intend to .lay down any 
 new rule, nor any exceptional rule as regards railway 
 companies: yet it was found needful a few years later 
 to restate the general principle which had been sup- 
 posed to be impugned. This was done in Metropolitan 
 Railway Company v. Jackson (m). 
 
 " The judge has a certain duty to discharge, and the Explanation 
 jurors have another and a different duty. The judge in Metr. R. 
 has to say whether any facts have been established by ^°- '"• J^ck- 
 evidence from which negligence may he reasonably in- °^' 
 f erred; the jurors have to say whether, from those facts, 
 when submitted to them, negligence ought to he inferred. 
 It is, in my opinion, of the greatest importance in the 
 administration of justice that these separate functions 
 should be maintained, and should be maintained dis- 
 tinct. It would be a serious inroad on the province of 
 the jury, if, in a case where there are facts from which 
 negligence may reasonably be inferred, the judge were 
 to withdraw the case from the jury upon the ground 
 that, in his opinion, negligence ought not to be inferred; 
 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 (w). 
 
 " On a trial by jury it is, I conceive, undoubted that the 
 facts are for the jury, and the law for the judge. It is 
 * not, however, in many cases practicable com- [ * 366] 
 pletely to sever the law from the facts. 
 
 " But I think it has always been considered a ques- 
 tion 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 
 jury to say whether, and how far, the evidence is to be 
 believed. And if the facts as to which evidence is 
 
 (k) L. R. 7 H. L. 12. 
 (Z) L. R. 7 H. L. 213 (1873-4). 
 (m) 3 App. Ca. 193 (1877). 
 {%) Lord Cairns, at p. 197. 
 
 (2619) 
 
286 NEGLIGENCE. 
 
 given are such that from them a farther inference of 
 face 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 mat- 
 ter of law, whether from those facts that farther infer- 
 ence may legitimately be drawn " (o). 
 
 The case itself was decided on the ground that the 
 hurt suffered by the plaintiff was not the proximate 
 consequence of any proved negligence of the defend- 
 ants; not that there was no proof of the defendants 
 having been negligent at all, for there was evidence 
 which, if believed, showed mismanagement, and would 
 have been quite enough to fix on the defendant com- 
 pany liability to make good any damage distinctly at- 
 tributable to such mismanagement as its " natural and 
 probable " consequence (p). As between the plaintiff 
 and the defendant, however, evidence of negligence 
 which cannot be reasonably deemed the cause of his in- . 
 jury is plainly the same thing as a total want of evi- 
 dence. 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 ex- 
 ample) that the train had not a head-light. The House 
 [ * 367] * of Lords determined, after no small differ- 
 ence 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. 
 
 The "level In. the "level crossing " group of cases we have some 
 crossing" one crossing a railway at a place made and provided by 
 type of cases, the company for that purpose, and where the company 
 is under the statutory duty of observing certain precau- 
 tions. The party assumes that the line is clear; his as- 
 sumption is erroneous, and he is run down by a pass- 
 ing 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 (q), 
 or that there was something in their arrangements 
 which made it impracticable or unreasonably difficult to 
 
 (o) Lord Blackburn at p. 207. Cp. Eyder v. "VVombwell (1868), 
 in Ex. Cli., L. E. 4 Ex. 32, which Lord Blackburn goes on to cite 
 Tvith approval. 
 
 ip) See pp. 32, 36, above. 
 
 (?) As in Wanless's case, L. E. 7 H. L. 12, wherelthe gates 
 (intended primarily for the protection of carriage traffic) were 
 left open when they ought not to have been, so that the plaintiff 
 was thrown off his guard. 
 
 (2620) 
 
RAILWAY CASES. 287 
 
 ascertain whether the line was clear or not. 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 " 
 (r). But unless the plaintiff 's own evidence shows 
 that the accident was due to his own want of ordinary 
 care (as where in broad daylight he did not look out at 
 all) (s), the tendency of modern authority is to leave 
 the matter very much at large for the jury. In Dublin, 
 * Wicklow and Wexford Eailway Co. v. Slat- [ * 308] 
 tery (t), 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 plaintifP, it was 
 held by the majority of the House of Lords that the 
 Court could not enter a verdict for the defendant's, al- 
 though they did not conceal their opinion that the ac- 
 tual verdict was a perverse one (u). 
 
 In the other group, which we have called " invita- The "invita- 
 tion to alight " cases, the nature of the facts is, if any- tion to 
 thing, less favourable to the defendant. A train stop- flight" 
 ping at a station overshoots the platform so that the Si'o^P- 
 front carriages stop at a place more or less inconve- 
 nient, or it may be 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 
 
 (r) Bowen L. J., Davey v. L. & S. W. E. Co. (1883), 12 Q. B. 
 Div. at p. 76. 
 
 (.?) Davey i', L. & S. W. R. Co. 1883) 12 Q. B. Div. 70: a case 
 which perhaps belong.? properly to the head of contribatory neg- 
 ligence, of which more presently. Onlythecircumstance of day- 
 light seems to distinguish this froin Slattery's case (next note). 
 
 (t) 3 App. Ca. 1155. Nearly all the modern cases on "evi- 
 dence of negligence" were cited in the argument (p. 1161). Ob- 
 serve that the question of the verdict being against the weight of 
 evidence was not open (p. 1162). 
 
 (u) The majority consisted of Lord Cairns (who thought the 
 verdict could not have stood if the accident had happened by 
 daylight), Lord Penzance, Lord O'Hagen, Lord Selborne, and 
 Lord Gordon; the minorty of Lord Hatherley, Lord Coleridge, 
 and Lord Blackburn. Ellis v. Q. W. E. Co. (Ex. Ch. 1874) L. 
 E. 9 C. P. 551, does not seem consistent with this decision; there 
 was difference of opinion in that case also. 
 
 (2631) 
 
288 
 
 NEGLIGENCE. 
 
 Complica- 
 tions witli 
 contributory 
 negligence, 
 &c. 
 
 Other illns- 
 trations of 
 ' ' eridnce 
 of negli- 
 gence' ' : 
 Smith V. 
 L. & S. W. 
 E. Co. 
 
 the inconvenience of the place (x), 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 
 [ * 369] * in spite of such caution as he can use, has 
 a fall or is otherwise hurt. Here the passenger is en- 
 titled by his contract with the company to reasonable 
 accommodation, and they ought to give him facilities 
 for alighting in a reasonably convenient manner. Over- 
 shooting the platform is not of itself negligence, for 
 that can be set right by backing the train (y). It is a 
 question of fact whether under the particular circum- 
 stances the company's servants were reasonably diligent 
 for the accommodation of the passengers (z), and 
 whether the passenger, if he alighted knowing the na- 
 ture of the i^lace, did so under a reasonable apprehen- 
 sion that he must alight there or not at all (a). 
 
 All these cases are apt to be complicated with issues 
 of contributory negligence and other similar though 
 not identical questions. We shall advert to these pres- 
 ently. It will be convenient now to take a case outside 
 these particular types, and free from their complications, 
 in which the difidculty of deciding what is " evidence of 
 negligence " is illustrated. Such an one is Smith v. 
 London and South Western Railway Company (b). 
 The facts are, in this country and climate, of an excep- 
 tional kind : but the case is interesting because, though 
 distinctly within the line at which the freedom of the 
 jury ceases, that line is shown by the tone and language 
 of the judgments in both the Common Pleas and the 
 Exchequer Chamber to be nearly approached. The ac- 
 tion was in respect of property burnt by fire, commu- 
 [ * 370] nicated from sparks which had * escaped from 
 the defendant company's locomotives. The material 
 elements of fact were the following. 
 
 Hot dry weather had prevailed for sometime, and at 
 the time of the accident a strong S. E. wind was blow- 
 ing. 
 
 About a fortnight earlier grass had been cut by the 
 defendants' servants on the banks adjoining the line, 
 
 (x) Cockle r. S.- E. R. Co. (1872) Ex. Ch., L. R. 7 C. P. 321. 
 
 (y) Siner v. G. W. R. Co. (1869) Ex. Ch. L. R. 4 Ex. 117. 
 
 (2) Bridges v. N. London R. Co. supra. 
 
 (a) Robson ;■. N. E. R. Co. 2 Q. B. Div. 85; Rose c. N. E. R. 
 Co. 2 Ex. Div. 248 (both in 1876). 
 
 (6) L. R. 5C. P. 98, in Ex. Ch. 6 C. P. 14 (1870). The acci- 
 dent took place in the extraordinarily warm and dry summer of 
 1868. 
 
 (2622) 
 
EVIDENCE. 289 
 
 and boundary hedge trimmed, and the cuttings and 
 trimmings had, on the morning of the fire (c), 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. 
 
 Nest the hedge there was a stubble field; beyond that 
 a road; on the other side of the road a cottage belong- 
 ing 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 ef- 
 forts 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 difliculty) (d) that they were war- 
 ranted 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, [ * 371] 
 was apparent, and the company was bound to be care- 
 ful in proportion. " The more likely the hedge was to 
 take fire, the more incumbent it was upon the company 
 to take care that no inflammable material remained near 
 to it " (e). Thus there was evidence enough (though 
 it seems only just enough) to be left for the jury to de- 
 cide 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 extraordi- 
 nary circumstances, from a cause not apparent, and in 
 a manner that could not have been prevented by any 
 ordinary measures of precaution, is not of itself any 
 evidence of negligence (/). And a staircase which has 
 been used by many thousand persons without accident 
 cannot be pronounced dangerous and defective merely 
 
 (c) See statement of the facts in the report in Ex. Ch. L. E. 6 
 C. P. at p. 15. 
 
 (d) Brett J. dissented in the Common Pleas, and Blackhurn J. 
 expressed some doubt in the Ex. Ch. on the ground that the par- 
 ticular damage in question could not have reasonably been anti- 
 cipated. 
 
 (e) Lush J. in Ex. Ch. L. R. 6 C. P. at p. 23. 
 
 (/) Blytht). Birmingham Water-works Co. (1856) 11 Ex. 781; 
 25 L. ,T. Ex. 212, supra, p. 42. 
 
 19 LAW OF TOKTS. (2623) 
 
290 
 
 NEGLIGENCE. 
 
 because the plaintiff has slipped on it, and somebody 
 can be found to suggest improvements (gr). 
 
 No precise Illustrations might be largely multiplied, and may 
 
 general rule be found in abundance in Mr. Horace Smith's or Mr. 
 can be given. Campbell'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 dovro except in some 
 such purposely vague terms as were used in Scott v^ 
 London Dock Co. (h). 
 
 Due care 
 varies as 
 apparent 
 risk : ap- 
 plication 
 of this to 
 accidents 
 through 
 personal 
 infirmity. 
 
 [ * 372] * We have said that the amount of cautioa 
 required of a citizen in his conduct is proportioned to 
 the amount of apparent danger. In estimating the pro- 
 bability of danger to others, we are entitled to assume, 
 ia the absence of anything to show the contrary, that 
 they have the full use of common faculties, and ar& 
 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," h& 
 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. That will be his misfortune, and 
 may be unaccompanied by any imprudence oq his part;, 
 but it cannot be set down to the fault of the workman. 
 If the workman had no particular reason to suppose 
 that the. next passer by would be deaf, he was bound 
 only to such caution as suffices for those who have ears 
 to hear. The same rule must hold if a deaf man is 
 run over for want of hearing a shout or a whistle (k), 
 or a blind man for want of seeing a light, or if a colour- 
 blind man, being unable to make out a red danger flag,, 
 gets in the line of fire of rifle or artillery practice; or 
 if in any of these circumstances a child of tender years, 
 or an idiot, suffers through mere ignorance of the 
 
 (g) Grafter v. Metrop. E. Co. (1868) L. E. 1 C. P. 300 : the- 
 plaintifif slipped on the brass ' ' nosing " of the steps (this being- 
 the material in common use, whereof the Court took judicial 
 notice ' ' with the common experience which every one has, " per 
 Willes J. at p. 303), and it was suggested that lead would have 
 been a safer material. 
 
 (h) P. 3(j3, above. 
 
 (i) Blackst. Comm. iv. 192, D. 9. 2, ad leg. Aquil. 31. In 
 a civil action it would probably be left to the jury whether, 
 on the whole, the work was being done with reasonable care. 
 
 (k) Cp. Skelton v. L. & N. W. E. Co. (1867) L. E. 2 C. P. 631, 
 decided however on the ground that the accident was wholly" 
 due to the man's own want of care. 
 (2624) 
 
NOTICE OF SPECIAL DANGER. 291 
 
 meaning -which the warning sight or sound conveys to 
 a grown man with his wits about him. And this is not 
 because there is any fault in the person harmed, for 
 there may well be no fault at all. Whatever we think, 
 or a jury might think, of a * blind man walk- { * 373] 
 ing alone, it can hardly be deemed inconsistent with 
 common prudence for a deaf man to do so; and it is 
 known that colour-blind people, and those with whom 
 they Uve, often remain ignorant of their failing until it 
 is disclosed by exact observation or by some accident. 
 It is not that the law censures a deaf man for not hear- 
 ing, or a colour blind one for not perceiving a red flag. 
 The normal measure of the caution required from a 
 lawful man must be fixed with regard to other men's 
 normal powers of taking care of themselves, and ab- 
 normal infirmity can make a difference only when it is 
 shown that in the particular case it was apparent. 
 
 On the other hand it seems clear that greater care is Distinc- 
 required of us when it does appear that we are dealing tion where 
 with persons of less than ordinary faculty. Thus if a the person 
 man driving sees that a blind man, an aged man, or a ^otite of 
 cripple is crossing the road ahead, he must govern his special 
 course and speed accordingly. He will not discbarge danger to 
 himself, in the event of a mishap, merely by showing an infirm 
 that a young and active man with good sight would pg^soif ^^ 
 have come to no harm. In like manner if one sees a 
 child, or other person manifestly incapable of normal 
 discretion, exposed to risk from one's action, it seems 
 that proportionate care is required; and it further seems 
 on principle immaterial that the child would not be 
 there but for the carelessness of some parent or guardian 
 or his servant. These propositions are not supported 
 by any distinct authority in our law that I am aware of 
 (I). But they seem to follow from admitted principles, 
 and to throw some light on questions which arise under 
 the head of contributory negligence. 
 
 * III. — Contributory Negligence. [ * 374] 
 
 In order that a man's negligence may entitle another Actionable 
 to a remedy against him, that other must have suffered negligence 
 harm whereof this negligence is the proximate cause. ™"s* ^^ 
 Now I may be negligent, and my negligence may be the gaus™? ^ 
 occasion of some one suffering harm, and yet the proxi- harm: 
 mate cause of the damage may be not mv want of care where 
 
 (I) In the United States there is some: see Wharton, U "507, 
 310; Cooley on Torts 683. 
 
 (2625) 
 
292 
 
 NEGLIGENCE. 
 
 plaintiff's 
 own negli- 
 gence is 
 proximate 
 cause, no 
 jremedy. 
 
 but his own. Had I been careful to begin with, he 
 would not have been in danger; but had he, being so 
 put in danger, used reasonable care for his own safety 
 or that of his property, the dam^e would still not have 
 happened. ' Thus my original negligence is but the re- 
 mote cause of the harm, and as things turn out the 
 proximate cause is the Sufferer's own fault, or rather 
 (since a man is under no positive duty to be careful in 
 his own interest) he cannot ascribe it to the fault of an- 
 other. In a state of facts answering this general de- 
 scription the person harmed is by the rule of the com- 
 mon law not entitled to any remedy. He is said to be 
 "guilty of contributory negligence;" a phrase well 
 established in our forensic usage, though not free from 
 objection. It rather suggests, as the ground of the 
 doctrine, that a man who does not take ordinary care 
 for his own safety is to be in a manner punished for his 
 carelessness by disability to sue any one else whose 
 carelessness was concerned in producing the damage. 
 But this view is neither a reasonable one, nor supported 
 by modern authority, and it is already distinctly re- 
 jected by writers of no small weight (m). And it stands 
 ill with the common practice of our courts, founded on 
 [ * 375] constant * experience of the way in which this 
 question presents itself in real life. " The received and 
 usualway of directing a jury . . is to say that if the plain- 
 tiil could, by the exercise of such care and skill as he 
 was bound to exercise, have avoided the consequence 
 of the defendant's negligence, he cannot recover " (n). 
 That is to say, he is not to lose his remedy merely be- 
 cause he has been negligent at some stage of the busi- 
 ness, though without that negligence the subsequent 
 events might not or could not have happened; but only 
 if he has been negligent in the final stage and at the 
 decisive point of the event, so that the mischief, as and 
 when it happens, is proximately due to his own want 
 of care and not to the defendant's. Again the penal 
 theory of contributory negligence fails to account for 
 the accepted qualification of the rule, " namely, that 
 though the plaintiff may have been guilty of negligence, 
 and although that, negligence may in fact have con- 
 tributed to the accident, yet if the defendant could in 
 the result, by the exercise of ordinary care and diligence, 
 
 (m) See Campbell, 180 ; Horace Smith, 226 ; and "Wharton, J 
 .^00 sqq. who gives the same conclusions in a more elaborate form. 
 The use of such phrases as in pari delicto is confusing and objec- 
 "tionable. 
 
 ()i.) Lord Blackburn, 3 App. Ca. at p. 1207. 
 (2626) 
 
CONTRIBUTORY NEGLIGENCE. 293 
 
 have avoided the mischief which happened, the plain- 
 tiff's negligence will not excuse him " (o). 
 
 The leading case which settled the doctrine in its Tuff «. 
 modern form is Tuff v. Warm an (p). The action was Warm'an. 
 against the pilot of a steamer in the Thames for run- 
 ning down the plaintiff's barge; the plaintiif's own 
 evidence showed that there was no look-out on the 
 barge; as to the conduct of the steamer the evidence was 
 conflicting, but according to the plaintiff's witnesses, 
 she might easily have cleared the barge. Willes J. left 
 it to the jury to say whether the want of a look-out was 
 negligence on * the part of the plaintiff, and [ * 376] 
 if so, whether it "directly contributed to the acci- 
 dent." This was objected to as too favourable to the 
 plaintiff, but was upheld both in the full Court of Com- 
 mon Pleas and in the Exchequer Chamber. In the 
 considered judgment on appeal (q) it is said that the 
 proper question for the jnry is " whether the damage 
 was occasioned entirely by the negligence or improper 
 conduct of the defendant, or whether the plaintiff him- 
 self so far contributed to the misfortune by his own 
 negligence or want of ordinary and common care and 
 caution that, but for such negligence or want of ordin- 
 ary care and. caution on his part, the misfortune would 
 not have happened." But negligence will not disentitle 
 the plaintiff to recover, unless it be such that without 
 it the harm complained of could not have happened; 
 " nor if the defendant might by the exercise of care on 
 his part have avoided the consequences of the neglect 
 or carelessness of the plaintiff." 
 
 In Radley v. London and North Western Railway Radley v. L. 
 Co. (r), this doctrine received a striking confirmation. & N. W. E. 
 
 " A railway company was in the habit of taking full ^°" 
 trucks from the siding of a colliery owner, and return- 
 ing the empty trucks there. Over this siding was a 
 bridge eight feet high from the ground. On a Satur- 
 day afternoon, when all the colliery men had left work, 
 the servants of the railway ran some trucks on the siding. 
 
 (o) Lord Penzance, Radley v. L. & N. W. K. Co. (1876) 1 App. 
 Ca. at p. 7.59. 
 
 (p) 2 C. B. N. S. 740; 5 C. B. N. S. 573; 27 L. J. C. P. 322 
 (1857-8). 
 
 (q) 5C. B. N. S. at p. 585. 
 
 (r) 1 App. Ca. 754, reversing the judgment of the Exchequer 
 Chamber, L. E. 10 Ex. 100, and restoring that of the Court of the 
 Exchequer, L. E. 9 Ex. 71 (1874-6). The statement of the facts 
 Is from the head-note in 1 App. Ca. 
 
 (2627) 
 
294 NEGLIGENCE. 
 
 All but one were empty, and that one contained another 
 truck, and their joint height amounted to eleven feet. 
 On the Sunday evening the railway servants brought on 
 [ * 377] the siding many * other empty trucks, and 
 pushed forward all those previously left on the siding. 
 Some resistance was felt, the power of the engine push- 
 ing the trucks was increased, and the two trucks, the 
 joint height of which amounted to eleven feet, struck 
 the bridge and broke it down. In an action to recover 
 damages for the injury, the defence of contributory 
 negligence was set up. The judge at the trial told the 
 jury that the plaintiffs must satisfy them that the acci- 
 dent happened solely through the negligence of the 
 defendants' servants, for that if both sides were negli- 
 gent, so as to contribute to the accident, the plaintiffs 
 could not recover." 
 
 On these facts and under this direction the jury 
 found that there was contributory negligence on the 
 part of the plaintiffs, and a verdict was entered for the 
 defendants. The Court of Exchequer (s) held that there 
 was no evidence of contributory negligence, chiefly on 
 the ground that the plaintiffs were not bound to expect 
 or provide against the negligence of the defendants. 
 The Exchequer Chamber (t) held that there was evi- 
 dence of the plaintiffs having omitted to uge reasonable 
 precaution, and that the direction given to the jury was 
 sufficient. In the House of Lords it was held (u) that 
 there was a question of fact for the jury, but the law 
 had not been sufficiently stated to them. They had not 
 been clearly informed, as they should have been, that 
 not every negligence on the part of the plaintiff which 
 in any degree contributes to the mischief will bar him 
 of his remedy, but only such negligence that the de- 
 fendant could not by the exercise of ordinary care have 
 avoided the result. 
 
 [ * 378 J * " It is true that in part of his summing- 
 up, the learned judge pointed attention to the conduct 
 of the engine driver, in determining to force his way 
 through the obstruction, as fit to be considered by the 
 jury on the question of negligence; but he failed to add 
 that if they thought the engine-driver might at this 
 stage of the matter by ordinary care have avoided all 
 
 (s) Brainwell and Amphlett BB. 
 
 (t) Blackburn, Mellor, Lush, Grove, Brett, Archibald JJ. ; diss. 
 Denman J. 
 
 (m) By Lord Penzance, Lord Cairns, Lord Blackburn (thus re- 
 tracting his opinion in the Ex. Ch.), and Lord Gordon. 
 (2628) 
 
% COA^TRIBUTOKY JSEGLIGENCE. 296 
 
 accident, any previous negligence of the plaintiffs would 
 not preclude them from recovering. 
 
 " In point of fact the evidence was strong to show 
 that this was the immediate cause of the accident, and 
 the jury might well think that ordinary care and dili- 
 gence on the part of the engine driver would, notwith- 
 standing any previous negligence of the plaintiflfs in 
 leaving the loaded-up truck on the line, have made the 
 accident impossible. The substantial defect of the 
 learned judge's charge is that the question was never 
 put to the jury" (v). 
 
 This leaves no doubt that the true ground of contrib- 
 utory negligence being a bar to recovery is that it is the 
 proximate cause of the mischief; and negligence on 
 the plaintiff's part which is only part of the inducing 
 causes (iv) will not disable him. 
 
 I 
 
 Earlier cases are now material only as illustrations. Earlier illus- 
 A celebrated one is the " donkey case," Davies v. Mann trations: 
 (.r). There the plaintiff had turned his ass loose in a I'avies v. 
 highway with its forefeet fettered, and it was run over *^™'^- 
 by the defendant's waggon, going at " a smartish pace." 
 It was held a proper direction to the jury that, what- 
 ever they thought of the plaintiff's conduct, he was still 
 entitled to his remedy if the accident might have been 
 avoided by the * exercise of ordinary care on [ * 379] 
 the part of the driver. Otherwise " a man might justify 
 the driver over goods left on a public highway, or even 
 over a man lying asleep there, or the purposely running 
 against a carriage going on the wrong side of the road" 
 (y). With this may be compared the not much later 
 oase of Mayor of Colchester v. Brooke (z), where it 
 was laid down (among many other matters) that if a 
 ship runs on a bed of oysters in a river, and could with 
 due care and skill have passed clear of them, the fact of 
 the oyster-bed being a nuisance to the navigation does 
 not afford an excuse. 
 
 Butterfield v. Forrester (a) is a good example of obvious Butterfield v. 
 fault on both sides, where the plaintiff's damage was Forrester, 
 immediately due to his own want of care. The defendant 
 liad put up a pole across a public thoroughfare in Derby, 
 
 (v) Lord jPenzance, 1 App. Ca. at p. 760. 
 (w) Or, as Mr. Wharton puts it, not a cause but a condition. 
 (x) 10 M. & W. 546; 12 L. J. Ex. 10 (1842). 
 (y) Parke B. 10 M. & W. at p. 549; cp. his judgment in Bridge 
 -B. Grand Junction K. Co. 3 M. & W. at p. 248. 
 (z) 7 Q. B. 339, 376. 
 (a) 11 East 60 (1809). 
 
 (2629) 
 
296 NEGLIGENCE. ^ 
 
 which he had no right to do. The plaintiff was riding 
 that way at eight o'clock in the evening in August, when 
 dusk was coming on, but the obstruction was still visible 
 a hundred yards off: he was riding violently, came against 
 the pole, and fell with his horse. It was left to the jury 
 whether the plaintiff, riding with reasonable and ordinary 
 care, could have seen and avoided the obstruction ; if they 
 thought he could, they were to find for the defendant; 
 and they did so. The judge's direction was affirmed on 
 motion for a new trial. " One person being in fault will 
 not dispense with another's using ordinary care for him- 
 self." 
 
 Where defen- The doctrine of contributory negligence has been seen 
 dant's negli- to be a special application of the universal principle of 
 gence not j-* 330] * liability 'in tort for harm not purposely inflicted, 
 causeTr^ that " the plaintiff has to show that tiie negligence " (or 
 other reasons, other wrongful act or default) '' of the person whom he 
 sues is the proximate cause of the accident" (&). In 
 this particular class of cases " proximate cause " may 
 not be the best possible term. Perhaps " decisive cause " 
 or " decisive antecedent " would convey the meaning 
 better; but since Radley's case and Tuff u. Warman (c), 
 there can be no substantial doubt of what is meant. 
 Another application remains which, by reason of the 
 artificial language used in the authorities, has given 
 rise to no small difficulty. The plaintiff may fail be- 
 cause it appears that the decisive cause of his damage 
 was his own want of due care. On the same principal 
 he may fail if the decisive cause was want of due care 
 on the part of some other person indifl'erent to the de- 
 fendant. As regards the defendant, the casQ is the same 
 as if the accident had been altogether inevitable. It 
 matters not, for the purpose of clearing me from liability, 
 whether the mischief was one that no care of any one's 
 could have prevented, or one that could, with due care, 
 have been avoided at the decisive stage by some one, 
 but not by me or by any one for whose care and skill I 
 must answer, or whose want of care I could reasonably 
 be expected to anticipate. Again, it matters not whether 
 the person in default, if any, be the plaintiff himself or 
 some other person, nor whether any such person is con- 
 nected with the plaintiff by contract or any other per- 
 
 {/)) Pollock B. in Armstrong j. L. & Y. R. Co. (187.5) L. R. 10 
 Ex. at p. 53. 
 
 (c) 2 C. B. N. S, 740 ; 5 C. B. N. S. 573; 27 L. J. C. P. 322 
 (1857-8); supra, p. 375. 
 
 (2630) 
 
DOCTRINE OF " IDENTIFICATION." 297 
 
 sonal duty, so long as he is (in the sense above men- 
 tioned) independent of me. 
 
 Hence if A. is riding in B.'s carriage driven by B.'s Collisions 
 servant, and through a collision with C.'s carriage A. where both 
 * takes hurt (d), the decision must in every [ * 381] drivers, &c., 
 case depend on the question of fact to whose fault the '^^glig^o*- 
 harm was proximately due. If the negligence or wilful 
 wrong of C.'s driver was the sole proximate cause, A.'s 
 remedy will be against C. If B.'s driver was in fault 
 so that his wrong and not that of C.'s driver was the 
 proximate cause, A. may have a remedy against B., but 
 has none against C The same rule must hold if A. is 
 travelling in a train belonging to one company on a line 
 belonging to another company, and an accident happens 
 which is due partly to negligence in the management 
 of the line and partly to negligence in the management 
 of the train (e). Not that we are entitled to assume 
 that there is always only one proximate cause; there are 
 cases in which two or more persons have so acted, 
 though not in concert or simultaneously, as to be liable 
 as joint wrong-doers. A. leaves a loaded gun in a place 
 accessible to young persons; B. and C, two schoolboys, 
 come there ; B. takes up the gun, points it at C, and 
 draws the trigger; the gun goes off and bursts, wound- 
 ing both B. and C. Here B. cannot sue A., but, as re- 
 gards C, A. andB. are joint wrong-doers (/). To this 
 class of cases, and the difficulties connected with them, 
 we shall return presently. 
 
 Again if A. is a child of tender years (or other person Accidents to 
 incapable of taking ordinary care of himself), but in the children in 
 custody of M. , an adult, and one or both of them suffer custody of 
 harm under circumstances tending to prove negligence '^'*'^^*- 
 on the part of Z., and also contributory negligence on 
 the part of M. (g), Z. will not be liable to A. unless 
 Z.'s * negligence was the proximate cause of [ * 382] 
 the mischief. Therefore if M. could, by such reason- 
 able diligence as is commonly expected of persons hav- 
 ing the care of young children, have avoided the con- 
 sequences of Z.'s negligence, A. is not entitled to sue 
 Z. : and this not because M.'s negligence is imputed by 
 
 (d) Thorogood v. Bryan (1849) 8 C. B. 115; 18 L. J. C. P. 336 ; 
 Eigby V. Hewitt (1850) 5 Ex. 240; 19 L. J. C. P. 291. 
 
 (e) Armstrong v. L. & Y. R. Co. (1875) L. R. 10 Ex. 47. 
 (/) See Dixon v. Bell, 5M. & S. 198. 
 
 a) Waite v. N. E. R. Co. (1859) Ex. Ch. E. B. & E. 719; 27 L. 
 J. Q. B. 417; 28 L. J. Q. B. 258. 
 
 (2631) 
 
298 NEGLIGENCE. 
 
 a fiction of law to A., who by the hypothesis is incap- 
 able of eithor 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. 
 
 Children &u., Now take the case of a child not old enough to use 
 unattended, ordinary care for its own safety, which by the careless- 
 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 make 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 def en 
 dant'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 persoa in giving occasion for the risk to exist. If 
 the defendant is so negligent that an adult in the plain- 
 tiff's position could not have saved himself by reason- 
 able care, he is liable. If he is aware of the plaintiff's 
 helplessness, and fails to use such special precaution as 
 is reasonably possible, then also, we submit, he is liable. 
 If he did not know, and could not with ordinary dili- 
 gence have known, the plaintiff to be incapable of tak- 
 ing care of himself (h), and has used such diligence as 
 [ * 383] would be suificient towards an adult; or if, * be- 
 ing aware of the danger, he did use such additional 
 caution as he reasonably could; or if the facts v?ere such 
 that no additional caution was practicable, and there 
 is no evidence of negligence according to the ordinary 
 standard (i), 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 
 (k). In America there have been such decisions in 
 Massachusetts (I), New York, and elsewhere : "but there 
 
 (/») This might happen in various ways, by reason of darliness 
 or otherwise. 
 
 (/) Singleton v. E. C. R. Co. 7 C. B. N. S.287, is a case of this 
 kind, as it was decided not on the fiction of imputing a third per- 
 son's negligence to a child, but on the ground (whether rightly 
 taken or not) that there was no evidence of negligence at all. 
 
 (k) Mangan v. Atterton (1866) L. R. 1 Ex. 239, comes near it. 
 But that case went partly on the ground of the damage being too 
 remote, .ind since Clark v. Chambers (1878) 3 Q. B. D. 327, supra, 
 p. 43, it is of doubtful authority. For our own part we think it 
 is noi; law. 
 
 (?) Holmes, The Common Law, 128. 
 (2632) 
 
DOCTRINE OF '" IDENTIFICATION." 299 
 
 are as many decisons to the contrary" (m): and the 
 supposed rule in Thorogood c. Bryan (n) has been ex- 
 plicity rejected by the Supreme Court of the United 
 States (o). 
 
 The state of existing authorities is certainly not satis- Artificial 
 factory. "When the line of cases began with Thorogood language of 
 i\ Bryan (n), the doctrine of contributory negligence, ^^'^ ^u^^°^^2- 
 as * settled some years later by Tuff v. War- [ * 384] fixation." 
 man (p), was still not fully understood. Hence the 
 true principle was obscurely felt, and clothed in arti- 
 ficial and misleading forms of language. It was said 
 that a person who rides as a paying passenger in an 
 omnibus is in a manner "identified with the owner of 
 ihe conveyance,^' so that "the negligence of the driver 
 is as his own negligence in point of law" (g). Similarly 
 the negligence of the person who has charge of a child 
 is said to be equivalent to the negligence of the child 
 itself; and learned judges have not even shrunk from 
 the dialectic feat of identifying a child with its grand- 
 mother (r). In the latest common law case on the 
 subject in this country the true principle is indicated 
 but not made prominent (s). We believe, nevertheless, 
 that it accounts for all the authorities we are bound to 
 consider; we do not say reconciles, for the apparent 
 conflicts are mostly if not wholly on inferences of fact. 
 
 (m) Biglow L. C. 729, and see Horace Smith 241. In Vermont 
 (Robinson c. Cone, 22 Vt. 213, 224, ap. Cooleyon Torts, 681) 
 the view maintained in the text is distinctly taken. "We are 
 satisfied that, although a child or idiot or lunatic may to some 
 extent have escaped into the highway, through the fault or negli- 
 gence of his keeper, and so be improperly there, yet if he is hurt 
 by the negligence of the defendant, he is not precluded from his 
 redress. If one know that such a person is on the highway, or 
 on a railway, he is bound to a proportionate degree of watchful- 
 ness, and what would be but ordinary neglect in regard to 
 one whom the defendant supposed a person of full age and 
 capacity, would be gross neglect as to a child, or one known to 
 be incapable of escaping danger." So, too, Bigelow 730. 
 
 {«) 8 C. B. 115; 18 L. ,J. C. P. 336 (1849). 
 
 (o) Little r. Hackett (1886) 14' Am. Law Eec. 578. 
 
 (p) Supra pp. 375, 380. 
 
 (?) Thorogood v. Bryan (1849) 8 C. B. 115; 18 L. J. C. P. 336. 
 In Rigby v. Hewitt (1850) 5 Ex. 240; 19 L. J. Ex. 291, decided 
 very soon afterwards, Thorogood r. Bryan was disregarded 
 though not expressly disapproved of 
 
 (r) Waite v. N. E. R. Co. (1859) Ex. Ch. 28 L. J. Q. B. at pp. 
 259, 260. But note that in this case there was a question of the 
 extent of the company's duty under their contract with a pas- 
 senger. 
 
 (s) Judgment of Pollock B. ad fin. Armstrong v. L. & Y. R. 
 €o. (1875) L. E. 10 Ex. at p. 53. 
 
 See addenda page xxxviii. 
 (2633) 
 
300 NEGLIGENCE. 
 
 In one peculiar case (t) the doctrine of "identification' 
 has been brought in, gratuitously as it would seem- 
 The plaintiff was a platelayer working on a railways 
 the railway company was by statute bound to maintain 
 a fence to prevent animals (u) from strayipg oS the- 
 adjoining land; the defendant was an adjacent owner 
 who kept pigs. The fence was insufficient to keep out 
 [ * 385] pigs (v). * Some pigs of the defendant's found 
 their way 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 common-law duty 
 to fence was not altogether superseded, .as regards that 
 boundary, by the Act casting the duty on the railway 
 company, he was entitled to assume that the company 
 would perform their duty; and also the damage was too- 
 remote (x). 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;" 
 quod mirum. 
 
 Sometimes it is said in general terms (apart fronx 
 this question of so-called identification) that contribu- 
 tory negligence of a third person is no defence. How 
 far this is a correct statement, we shall examine, among 
 other miscellaneous points in the doctrine of negli- 
 gence, at the end of the present chapter. 
 
 Admiralty The common law rule of contributory negligence is 
 
 rule of divid- unknown to the maritime law administered in courts of 
 ing loss. Admiralty jurisdiction. "Under a rough working rule 
 
 commonly called judicium rusticum, and apparently de- 
 rived from early medieval codes or customs, with none 
 [ * 386] of which, * however, it coincides in its mod- 
 ern application (y), the loss is equally divided in cases- 
 
 (t) Child V. Hearn (1874) L. E. 9 Ex. 176. 
 
 iu) "Cattle," held by the Court to include pigs. 
 
 (f) That is, pigs of average vigour and obstinacy; see per 
 Bramwell B., whose judgment (pp. 181, 182) is almost a carica- 
 ture of the general idea of the ' 'reasonable man. ' ' It was alleged, 
 but not found as a fact, that the defendant had previously been> 
 warned by some one of Ms pigs being on the line. 
 
 f.r) Note in Addison on Torts, 5th ed. 27. 
 
 (y) Marsden on Collisions at Sea, ch. 5 (2d ed.), and see an ar- 
 ticle by the same writer in L.Q. R. ii. 357. 
 
 See addenda page xxxviii. 
 (2634) 
 
PEESUMPTION. 301 
 
 of collision where both ships are found to be in fault. 
 It seems more than doubtful whether the old maritime 
 law made any distinction between cases of negligence 
 and of pure accident. However that may be, the rule 
 dates from a time when any more refined working out 
 of principle was impossible (z). As a rule of thumb, 
 which frankly renounces the pretence of being anything 
 more, it is not amiss, and it appears to be generally ac- 
 ■cepted by those whom it concerns. By the Judicature 
 Act, 1873 (a), it is expressly preserved in the Admi- 
 ralty Division. 
 
 IV. — Auxiliary Rules and Presumptions. 
 
 There are certain conditions under which the normal Action un- 
 ■standard of a reasonable man's prudence is peculiarly der difficulty 
 difficult to apply, by reason of one party's choice of al- <=^'isecl by 
 ternatives, or opportunities of judgment, being affected neslisence 
 by the conduct of the other. Such difficulties occur 
 mostly in questions of contributory negligence. In the 
 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 dan- 
 ger. That which appears the best way to a court 
 examining the matter afterwards at leisure and 
 * with full knowledge is not necessarily ob- [ * 387] 
 "yious 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 mari- 
 time cases, where a ship placed in peril by another's 
 improper navigation has at the last moment taken a 
 wrong coarse ( b) : 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 
 
 (z) Writers on maritime law state the rule of the common law 
 to he that when both ships are in fault neither can recover any- 
 thing. This may have been practically so in the first half of the 
 century, but it is neither a complete nor a correct ^■ersion of the 
 law laid down in Tufif t'. Warman, 5 C. B. N. S. 573; 27 L. J. C. 
 P. 322. 
 
 (a) S. 25, 8ub-s. 9. See however, p. 149. 
 
 (J) The Bywell Castle (1879) 4 P. Div. 219; and see other ex- 
 .amples collected in Marsden on Collisions at Sea, ch. 5, 2d ed. 
 
 (2635) 
 
302 
 
 NEGLIGENCE. 
 
 others. 
 
 liable to him although " he did not use his faculties so 
 clearly as he might have done under other circum- 
 stances " (c). 
 
 No duty to One might generalize the rule in some such form as 
 
 anticipate this: not only a man cannot with impunity harm others- 
 negligence of lyj ]jia negligence, but his negligence cannot put them 
 in a worse position with regard to the estimation of de- 
 fault. You shall not drive a man into a situation 
 where there is loss or risk every way, and then say that 
 he suffered by his own imprudence. Neither shall you. 
 complain that he did not foresee and provide against 
 your negligence. We are entitled to count on the or- 
 dinary prudence of our fellow-men until we have spe- 
 cific warning to the contrary. The driver of a carriage 
 assumes that other vehicles will observe the rule of th& 
 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 establish- 
 [ * 388] ment of his own claims, or, to avoid * claims 
 of third persons against him) to use special precaution 
 against merely possible want of care or skill on the part 
 of others (d). 
 
 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 the 
 company's business to have the door properly fastened 
 (e). On the other hand if something goes wrong 
 which does not cause any pressing danger or inconve- 
 nience, and the passenger comes to harm in endeavour- 
 ing to set it right himself, he cannot hold the company 
 liable (/). 
 
 Choice of 
 risks under 
 stress of an- 
 other's negli- 
 gence. 
 
 We have a somewhat different case when a person, 
 having an apparent dilemma of evils or risk put before 
 him by another's default, makes active choice between 
 them. The principle applied is not dissimilar: it is 
 not necessarily and of itself contributory negligence, to 
 
 (e) N. E. R. Co. V. Wanless (1.^74) L. R. 7 H. L. at p. 16; cp. 
 Slattery's ca. (1878) 3 App. Ca. at p. 1193. 
 
 (d) See Daniel v. Metrop. R. Co. (1871) L.R. 5 H. L. 45. 
 
 (e) Gee v. Metrop. R. Co. (1873) Ex. Ch. L. R. 8 Q. B. 161. 
 There was some difference of opinion how far the question of 
 contributory negligence in fact was fit to be put to the jury. 
 
 (/) This is the; principle applied in Adams v. L. & Y. R. Co. 
 (1869) L. R. 4 C. P. 739, though (it seems) not rightly in the par- 
 ticular case; see in Gee ik Metrop. R. Co., L. R. 8 Q. B. at pp. 
 161, 173, 176. 
 
 (2636) 
 
CHOICE OF RISKS. 303 
 
 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 ciayards n 
 and treated by a full court is Ciayards v. Dethick (g). Dethic. 
 The * plaintiff was a cab-owner. The de- [ * 889] 
 fendants, for 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 in- 
 creasing the obstruction. In this state of things the plain- 
 tiff attempted to get two of his horses out of the mews. 
 One be 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 defendant 
 was present at that time (h). The jury were directed 
 " that it could not be the plaintiff's duty to refrain al^ 
 together 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 
 the 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 suffered 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 criticized by Lord Bramwell, but principle 
 and authority seem on the whole to support it («'). 
 
 (g) 12 Q. B. 439 (1848). The rule wa.s laid .down by Lord 
 ElleDborough at nisi prius as early as 1H16: Jones v. Boyce, 1 
 Stark. 493, cited by Montague Smith J. , L. E. 4 C. P. at p. 743. 
 The plaintiff was an outside passenger on a coach, and jumped 
 off to avoid what seemed an imminent upset; the coach was how- 
 ever not upset. It was left to the jury whether by the defend- 
 ant's fault he ' ' was placed in such a situation as to render what he 
 did a prudent precaution for the purpose of self-preservation." 
 
 (A) Evidence was given by the defendants, but apparently not 
 believed by the jury, that their men expressly warned the plain- 
 tiff against the course he took. 
 
 (i) See Appendix B to Smith on Negligence, 2d ed. I agree 
 with Mr. Smith's observations ad fin. , p. 279. 
 
 (2637) 
 
304 
 
 NEGLIGENCE. 
 
 Doctrine of 
 New York 
 courts. . 
 
 [ * 390] * 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 (k) ; 
 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 (I). 
 
 There has been a line of case of this class in the 
 State of New York, where a view is taken less favoura- 
 ble to the plaintiif than the rule of Clayards v. Dethick. 
 If a train 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 (in), 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). Other- 
 wise 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 I'esulting 
 damage (o). 
 
 On the other hand, where the defendant's negligence 
 has put the plaintifi' in a situation of imminent peril, 
 the plaintiff may hold the defendant liable for the 
 [ * 891] natural * consequences of action taken on the 
 first alarm, though such action may turn out to have^ 
 been unnecessary (p). 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 (q). And this seems just, 
 
 (k) Eobson v. N. E. R. Co. (187.V6) L. E. 10 Q. B. 271, 274 
 (in 2 Q. B. Div. 8.5); Rose r. N. E. R. Co. (1876),- 2 Ex. Div. 248. 
 
 (?) Contra Bramwell L. J. in Lax v. Corporation of Darlington 
 (1879) 5 Ex. D. at p. 35; but the last-mentioned cases bad not 
 been cited. 
 
 (m) Filers. N. Y. Central R. R. Co. (1872) 49 X. Y. (4 Sickels) 47. 
 
 (n) 63 N. Y. at p. 5.59. 
 
 (o) Burrows v. Erie R. Co. (1876) 63 N. Y. (18 Sickels) 556. 
 
 (p) Coulter V. Express Co. (1874) .56 N. Y. (11 Sickels) 585; 
 Twomley v. Central Park R. R. Co. (1878) 69 N. Y. (24 Sickels) 
 158. Cp. Jones v. Boyce, 1 Stark. 493. 
 
 (g) Eckert v. Long Island R. R. Co. (1871) 43 N. Y. 502; 3 
 Am. Rep. 721 (action by representative of a man killed in getting 
 a child oft' the railway track in front of a train which was being 
 negligently driven). 
 
 See addenda page xxxviii. 
 (2638) 
 
CONTRIBUTORY AND JOINT NEGLIGENCE. 305 
 
 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 per- 
 son should expose himself to the same danger to effect 
 
 A peculiar difficult may arise in cases where the acts Difficulty 
 or omissions of two persons concur to produce damage where negli- 
 to a third. If Peter's negligent act or default is con- genceofmoie 
 nected with John's damage by a chain of " natural and son°concu?r" 
 probable" consequence, Peter is liable to John. Can 
 the voluntary act of a third person, say Andrew, be a 
 link in such a chain? or does Andrew's liability exclude 
 Peter's ? Must we slop at the first act of an account- 
 able person ? or may Peter be liable for giving Andrew 
 the opportunity of a mischievous act, and Andrew for 
 acting on the opportunity ? There seems to be no rea- 
 son for saying that a man is so far entitled to presume 
 that others will act prudently that he may with im- 
 punity make obvious occasions for mischievous imprud- 
 ence. A. leaves the flap of a cellar in an insecure posi- 
 tion on a highway where all manner of persons, adult 
 * and infant, wise and foolish, are accustomed [ * 392] 
 to pass. B., carelessly passing, or playing with the flap 
 brings it down on C. It may well be that A. should 
 have anticipated and guarded against the risk of a thing 
 so left being meddled with, and therefore is liable to C, 
 ttough B. also would be liable to C, and of course 
 could not sue A. if he was hurt himself (r). 
 
 This appears to be the meaning of the statement that 
 "contributory negligence of a third party is no de- 
 fence," as it is sometimes put: which on the other hand 
 cannot be received as an universal proposition. Peter 
 may have in one sense created the conditions under 
 which Andrew's act or default brings damage on John, 
 and yet that act or default may not be such as a reason- 
 able man in Peter's place could be expected to foresee as 
 likely, or to take precautions against. In circumstances 
 
 (r) Hughes v. Macfie (1863) 2 H. & C. 744 ; 33 L. J. Ex. 177. 
 Cp. Clark v. Chambers (1878) 3 Q. B. D. at pp. 330—336, where 
 other cases to the like effect are collected, or Addison on Torts, 
 41 — 45. See especially Dixon v. Bell, p. 409, below. 
 20 LAW OF TOKTS. (2639) 
 
306 NEGLIGENCE. 
 
 of this kind even trained minds will often take widely 
 difPerent views; but the difference will be found to con- 
 sist rather in inferences of fact than in principles of law 
 (s). The only safe general statement is that "con- 
 tributory negligence of a third party," if that elliptical 
 phrase is to be used, is not always or necessarily a de- 
 fence. 
 
 (s) See Daniel v. Metrop. R. Co. (1871) L. R. 5 H. L. 45. 
 (2640) 
 
(307) 
 
 * CHAPTER XII. [ * 393] 
 
 DUTIES OF INSUEING SAFETY. 
 
 In general, those who in person go about an undertak- Exceptions to 
 ing attended with risk to their neighbours, or set it in general lim- 
 niotion by the hand of a servant, are answerable for the ^*^ °^ dutifs 
 conduct of that undertaking with diligence proportion °^ caution. 
 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 Exception, 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 con- 
 venience 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 oT 
 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 particular 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 reasonable 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 [ * 394] 
 does not handle a loaded gun or a sharp sword in 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 absolute; 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 in- 
 sure his neighbour against any consequent harm not 
 due to some cause beyond human foresight and control. 
 
 (2641) 
 
308 DUTIES OF INSURING SAFEIT. 
 
 Eylands v. Various particular rules of this kind (now to be re- 
 
 rietcher. garded as applications of a more general one) are rec- 
 ognized ia our law from early times. The generaliza- 
 tion was affected as late as 1868, by the leading case 
 of Eylands v. Fletcher, where the judgment of the Ex- 
 chequer Chamber delivered by Blackburn J, was adopted 
 in terms by the House of Lords. 
 
 The nature of the facts in Fletcher v. Eylands, and_ 
 the question of law raised by them, are for our purpose 
 beft shown by the judgment itself (a) : — 
 
 .Tud"-raent of " It appears from the statement in the case, that the 
 Ex. Ch. plaintiff 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 defend- 
 ants. 
 
 " It appears from the statements in the case, that the 
 coal under the defendants' land had at some remote 
 period been worked out; but this was unknown at the 
 [ * 395] * time when the defendants gave directions to 
 erect the reservoir, and the water in the reservoir would 
 not have escaped from the defendants' land, and no 
 fnischief would have been done to the plaintiff, but for 
 the 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 pro- 
 vide for the sufficiency of the reservoir with reference 
 to these shafts. The consequence was that the reser- 
 voir when filled with water burst into the shafts, the 
 water flowed down through them into the old workings, 
 and thence into the plaintift's mine, and there did the 
 mischief. 
 
 " The plaintiff, though free from all blame on his 
 
 (a) L. E. 1 Ex. at p. 278, per "S^'i^es, Blackburn, Keating, 
 Mellor, Montague Smith and Lush JJ. For the statements of 
 fact referred to, see at pp. 267 — 269. 
 (2642) 
 
RYLANDS V. FLETCHER. 309 
 
 part, must bear the loss unless he can establish that it 
 was the consequence of some default for which the de- 
 fendants are responsible. The question of law there- ' 
 fore arises, what is the obligation which the law casts 
 on a person who, like the defendants, las'fully 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 [ * 396] 
 duty to keep it in at his peril, or is, as the majority 
 of the Court of Exchequer have thought, merely a duty 
 to take all reasonable and prudent precautions in order 
 to keep it in, but no more. If the iirst be the law, the 
 person who has brought on his land and kept there 
 something dangerous, and failed to keep it in, is re- 
 sponsible for all the natural consequences of its escape. 
 If the second be the limit of his duty, he would not be 
 answerable except on proof of negligence, and conse- 
 quently 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 per- 
 son 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 peril, and, if he does 
 not do so is prima facie answerable for all the damage 
 which is the natural 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 vis major, or the act of God; but as 
 nothing of this sort exists here, it is unnecessary to in- 
 quire what excuse would be sufficient. The general 
 rule, as above stated, seems on principle just. The 
 person whose grass or corn is eaten down by the escap- 
 ing cattle of his neighbour, or whose mine is flooded by 
 the water from from his neighbour's reservoir, or whose 
 cellar is invaded by the tilth of his neighbour's privy, 
 or whose habitation is made unhealthy by the fumes 
 and noisome vapours of his neighbours 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 property which was not 
 naturally there, harmless to others so long as it is con- 
 fined to his own property, but which he knows to be 
 
 (2643) 
 
310 DUTIES OF INSURING SAFETY. 
 
 [ * 397] miscliievous * if it gets on his neighbour's, 
 shoald be obliged to make good the damage -which en- 
 ■ sues if he doea not succeed in confining it to his own 
 property. But for his act in bringing it there, no mis- 
 chief 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 con- 
 sequences. And upon authority, this we think is estab- 
 lished to be the law, whether the things so brought be 
 beasts, or water, or filth or, stenches." 
 
 Affirmation '^'-'^ '^^^^ ^^^ ^^^^ decision affirmed in the House of 
 thereuf by Lords (6), but the reasons given for it were fully con- 
 H. L. firmed. " If a person brings or accumulates on his 
 
 land anything which, if it should escape, may cause 
 damage to his neighbors, he does so at his peril. If it 
 does escape and cause damage, he is responsible, how- 
 ever 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 land own- 
 ers for acts done in the " natural user " of their land, 
 or " exercise of ordinary rights " — an immunity which 
 extends, as has already been settled by the House of 
 Lords itself (d), even to be obviously probable conse- 
 quences. Here Lord Cairns pointed out that the de- 
 fendants had for their own purposes made " a non- 
 natural Use" of their land by collecting water "in 
 quantities and in a manner not the result of any work 
 or operation on or under the land." 
 
 The detailed illustration of the rule in Eylands v. 
 Fletcher, as governing the mutual claims and duties of 
 adjacent landowners, belongs to the law of property 
 [ * 398] rather * than to the subject of this work (e). 
 We shall return presently to the special classes of cases 
 (more or less discussed in the judgment of the Exche- 
 quer Chamber) for which a similar rule of strict respon- 
 sibility had been established earlier. As laying down 
 a positive rule of law, the decision in Eylands v. 
 Fletcher is not open to criticism in this country (/). 
 
 (b) Rylands v. Fletcher (1868) L. R. 3 H. L. 330. 
 
 (c) Lord Cranworth, at p. 340. 
 
 (d) Chasemore r. Richards (18.59) 7 H. L. C. 349. 
 
 (e) See Fletcher v. Smith (1877) 2 App. Ca. 781 ; Humphries v. 
 Cousin.s (1877)2 C. P. D. 239; Herdman v. ]S"orth Eastern R. Co. 
 (1878) 3 C. P. Div. 168; and for the distinction as to "natural 
 course of user," Wilson v. Waddell, H. L. (Sc.) 2 App. Ca. 95. 
 
 (/) Judicial opinions still differ in the United States. See 
 Bigelow L. C. 497-500. The case has heen cited with approval 
 (2644) 
 
RYLANDS V. FLETCHER : EXCEPTIONS. 311 
 
 But in the judgment of tlie 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 other- 
 wise. A rule casting the responsibility of an insurer 
 on innocent persons is a hard rule, though it may be a 
 just one; and it needs to be maintained by very strong 
 evidence (gr) or on very clear grounds of policy. Now 
 the judgment in Fletcher v. Eylands (/i), carefully pre- 
 pared as it evidently was, hardly seems to make 
 such grounds clear enough for universal acceptance. 
 The liability seems to be rested only in part on the evi- 
 dently hazardous character of the state of things arti- 
 ficially maintained by the defendants on their land. In 
 part the case is assimilated to that of a nuisance (i), and 
 in part, also, traces are apparent of the formerly pre- 
 valent theory that a man's voluntary acts, even when 
 lawful and * free from negligence, are prima [ * 399] 
 facie done at his peril (A;), a theory which modern au- 
 thorities have explicitly rejected in America, and do 
 not encourage in England, except so far as Eylands v. 
 Fletcher may itself be capable of being used for that 
 purpose ( I). Putting that question aside, one does not 
 see why the policy of the law might not have been sat- . 
 isfied by requiring the defendant to insure diligence in 
 proportion to the manifest risk (not merely the dili- 
 gence cf 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 knowl- 
 edge. 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 Eylands v. Fletcher as having 
 only fixed a special rule about adjacent landowners (m) : 
 
 in Massachusetts (Shipley v. Fifty Associates, 106 Mass. 194; 
 Gorham v. Gross, 125 Mass. 232; Mears v. Dole, 135 Mass. 508); 
 hut distinctly allowed in New York: Losee v. Buchanan, 51 N. 
 Y. (6 Sickles) 476. 
 
 (cj) See Reg v. Commissioners of Sewers for Essex (1885) 14 Q. 
 B. biv. 561. 
 
 (h) L. R. 1 Ex. 277 sqq. 
 
 \i) See especially at pp. 285-6. But can an isolated accident, 
 however mischievous in its results, he a nuisance ? though its 
 consequences may, as where a branch lopped from a tree is left 
 lying across a highway. 
 
 (A;) L. R. 4 Ex. 286-7; 3 H. L. 341. 
 
 m See the Nitro-glycerine Case (1872) 15 "Wall. 524; Brown v. 
 Kendall (1850) 6 Gush. 292; Holmes v. Mather (1875) L. R. 10 
 Ex. 261. 
 
 (m) Martin B.-, E. R. 6 Ex. at p. 223. 
 
 (2645) 
 
312 DUTIES OF INSURING SAFETY. 
 
 but it was certainly intended to enunciate something 
 much wider. 
 
 Character of Yet no case has been found, not being closely similar 
 later cases, in its facts, or within some previously recognized cate- 
 gory, in which the unqualified rule of liability without 
 proof of negligence has been enforced. We have cases 
 where damages have been recovered for the loss of ani- 
 mals by the escape, if so it may be called, of poisonous 
 vegetation or other matters from a neighbour's land. 
 Thus the owner of yew trees, whose branches project 
 over his boundary, so that his neighbour's horse eats of 
 them and is thereby poisoned, is'held liable (n) ; and the 
 [ * 400j same rule has * been applied where a fence of 
 wire rope was in bad repair, so that pieces of rusted 
 iron wire fall from it into a close adjoining that of the 
 occupier, who was bound to maintain the fence, and 
 were swallowed by cattle which died thereof (o). In 
 these cases, however, it was not contended, nor was it 
 possible to contend, that the defendants had used any 
 care at all. The arguments for the defence went either 
 on the acts complained of being within the " natural 
 user " of the land, or on the damage not being such as 
 could have been reasonably anticipated (p). We may 
 add that having a tree, noxious or not, permanently pro- 
 jecting over a neighbour's land is of itself a nuisance, 
 and letting decayed pieces of a fence, or anything else, 
 fall upon a neighbour's land for want of due repair is 
 of itself a trespass. Then in Ballard v. Tomlinson (q) 
 the sewage collected by the defendant in his disused 
 well was an absolutely noxious thing, and his case was, 
 not that he had done his best to prevent it from poison- 
 ing the water which supplied the plaintiff's well, but 
 that he was not bound to do anything. 
 
 Exception of On the other hand, the rule in Eylands v. Fletcher 
 
 act of God. has been decided by the Court of Appeal not to apply 
 
 to damage of which the immediate cause is the act of 
 
 (n) Crowliurst v. Amersham Burial Board (1878) 4 Ex. D. 5 ; 
 Wilson r. Newberry (1871) L. R. 7 Q. B. 31 is not inconsistent, 
 for there it "was only averred that clippings from the defendant's 
 yew trees were on the plaintiffs land; and the clipping might, 
 for all that appeared, have been the act of a stranger. 
 
 (o) Firth V. Bowling Iron Co. (1878) 3 C. P. D. 254. 
 
 ip) The former ground was chiefly relied on in Crowhurst's 
 case, the latter in Firth's. 
 
 (g) 29 Ch. Div. 115 (1885.) 
 (2646) 
 
RYLANDS V. FLETCHER : EXCEPTIONS. 313 
 
 God (r). And the act of God doos not necessarily 
 mean an operation of natui-al forces so violent and un- 
 expected that no human foresight or skill could possi- 
 bly have prevented its effects. It is enough that the 
 accident should be such as human * foresight [ * 401] 
 could not be reasonably expected to anticipate; and 
 whether it comes within this description is a question 
 of fact (s). The only material element of fact which 
 distinguished the case referred to from Rylands v. 
 Fletcher was that the overflow which burst the defend- 
 ant's embankment, and set the stored-up water in de- 
 structive 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 God. And experience of danger pre- 
 viously unknown may doubtless raise the standard of due 
 diligence for after-time (t). But the accidents that 
 happen in spite of actual prudence, and yet might have 
 been prevented by some reasonably conceivable pru- 
 dence, are not numerous, nor are juries, even if able to 
 appreciate so fine a distinction, likely to be much dis- 
 posed to apply it (m). The authority of Eylands v. 
 Fletcher is unquestioned, but Nichols v. Marsland has 
 practically empowered juries to mitigate the rule when- 
 ever its operation seems too harsh. 
 
 Again the principal rule does not apply where the ^^^^ of stran- 
 immediate cause of damage is the act of a stranger (x), ger, &c. 
 nor * where the artificial work which is the [ * 40'2] 
 source of danger is maintained for the common benefit 
 
 (r) Act of God^vis major = Oeod j3ia: see D. 19. 2. locati 
 conducti, 2r>, ?i, 6. The classical signification of " vis major" is 
 however wider for some purposes; Nugent v. Smith, 1 C. P. Div. 
 423, 429, per Cockburn C. J. 
 
 (s) Nichols V. Marsland (187.5-6) L. E. 10 Ex. 2.55; 2 Ex. D. 1. 
 Note that Lord Bramwell, who in Kylands r. Fletcher took the 
 view that ultimately prevailed, was also a party to this decision. 
 The defendant was an owner of artificial pools, I'ormed by dam- 
 ming a natural stream, into which the water was finally let oif 
 by a system of weirs. The rainfall accompanying an extremely 
 violent thunderstorm broke the embankments, and the rush of 
 water down the stream carried away four county bridges, in re- 
 spect of which damage the action was brought. 
 
 (t) See Keg. v. Commissioners of Sewers for Essex (1885) in 
 judgment of Q. B. D., 14 Q. B. D. at p. 574. 
 
 (m) " Whenever the world grows wiser it convicts those that 
 came before of negligence. " Bramwell B., L. E. 6 Ex. at p. 222. 
 But juries do not, unless the defendant is a railway company. 
 
 [x] Box V. Jubb (1879) 4 Ex. D. 76; Wilson v. Newberry (1871) 
 L. E. 7 Q. B. 31, is really a decision on the same point. 
 
 (2647) 
 
314 DUTIES OF INSUEING SAFETY. 
 
 of the plaintiff and the defendant (y); 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 reasonable expectation (z). 
 
 Works re- There is yet another exception in favour of persons 
 
 quired or acting in the performance of a legal duty, or in the ex- 
 aiithorized ercise 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 agri- 
 culture 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 
 (a). In the climate of India the storing of water in 
 artificial tanks is not only a natural but a necessary 
 mode of using land (6). 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 
 [ * 403] (c). On the same principle a railway * com- 
 pany authorized by Parliament to use locomotive en- 
 gines on its line is bound to take all reasonable meas- 
 ures of precaution to prevent the escape of fire from 
 its engines, but is not bound to more. If, notwith- 
 standing the best practicable care and caution, sparks 
 do escape and set fire to the property of adjacent own • 
 ers, the company is not liable (d). The burden of proof 
 
 (?/) Carstairs v. Taylor (1871) L. R. 6 Ex. 217; cp. Madras R. 
 Co. V. Zemindar of Carvatenagaram, L. R. 1 Ind. App. 364. 
 
 (z) Carstairs v. Taylor, above, but the other ground seems the 
 principal one. The plaintiff was the defendant's tenant; the de- 
 fendant occupied the upper part of the house. A rat gnawed a 
 hole in a rain-water box maintained by the defendant, and water 
 escaped through it and damaged the plaintiff's goods on the 
 ground floor. Questions as to the relation of particular kinds of 
 damage to conventional exceptions in contracts for safe carriage 
 or custody are of course on a different footing. See as to rats in 
 a ship Pandorf v. Hamilton, 17 Q. B. Div. 670. 
 
 (a) Madras R. Co. i\ Zemindar of Carvatenagaram, L. R. 1 
 Ind. App. 364; S. C, 14 Ben. L. R. 209. 
 
 (6) See per Holloway J. in the Court below, 6 Mad. H. C. at p. 
 184. 
 
 (c) Dunn v. Birmingham Canal Co. (1872) Ex. Ch. L. R. 8 Q. 
 B. 42. The principle was hardly disputed, the point which 
 caused some difiiculty being whether the defendants were bound 
 to exercise for the plaintiff's benefit certain optional powers given 
 by the same statute. 
 
 (d) Vaughan v. TaffValeR. Co. (1860) Ex. Ch. 5 H. & N. 67S>; 
 29 L. J. Ex. 247; cp. L. R. 4 H. L. 201, 202; Fremantle r. L. & 
 N. W. R. Co. (1861) 10 C. B. N. S. 89; 31 L. J. C. P. 12. 
 
 (2648) 
 
MAINTENANCE OF WORKS. olO 
 
 appears to be on the company to show that due care 
 was used (e), but there is some doubt as to this (/). 
 
 Some years before the decision of Eylands v. Fletcher g. W. R. Co. 
 the duty of a railway company as to the safe maintenance «i' Canada v. 
 of its works was considered by the Judicial Committee I^i''"'^*^- 
 on appeal from Upper Canada (g). The persons whose 
 rights against the cortipany were in question were pas- 
 sengers in a train which fell into a gap in an embank- 
 ment, the earth having given away 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 [ * 404] 
 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 provision, is of itself 
 evidence of negligence. Thus the duty affirmed is a 
 strict duty of diligence, but not a duty of insurance. Let 
 vis suppose now (what is likely enough as matter of fact) 
 that in an accident of this kind the collapse of the em- 
 bankment throws water, or earth, or both, upon a neigh- 
 bour's land so as to do damage there. The result of ap- 
 plying the rule in Rylands v. Fletcher will be that the 
 duty of the railway company as landowner to the ad- 
 jacent landowner is higher than its duty as can-ier to 
 persons whom it has contracted to carry safely; or pro- 
 perty is more highly regarded than life or 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 
 
 (e) Tlie escape of sparks has been held to be prima facie evi- 
 dence of negligence; Piggottw. E. C. R. Co. (\»4(i) 3C. B. 229; 
 15 L. J. C. P. 235; cp. per Blackburn J. in Vaughan v. Taff Vale 
 
 '(/) Smith V. L. & S. W. R. Co. (1870) Ex. Ch. L. R. 6 C. P. 
 14 seems to imply the contrary view; but Piggott v. E. C. R. Co. 
 was not cited. It may be that in the course of a generation the 
 presumption of neglig(3nce has been found no longer tenable, ex- 
 perience having shown the occasional escape of sparks to be con- 
 sistent with all practicable care. Such a reaction would hardly 
 have found favour, however, with the Court which decided 
 Fletcher i;. Rylands in the Exchequer Chamber. 
 
 (g) G. W. R. Co. of Canada v. Braid (1863) 1 Moo. P. C. N. S. 
 101. There were some minor points on the evidence (whether 
 one of the sufferers was not travelling at his own risk, &c.), which 
 were overruled or regarded as not open, and therefore not noticed 
 in the text. 
 
 (2649) 
 
316 DUTIES OF INSURING SAFETY. 
 
 Eylaiids v. Fletcher. But a difficulty which may van- 
 ish in practice is not therefore inconsiderable in principle. 
 
 Other cases We shall now shortly notice the authorities, antecedent 
 of insurance to or independent of Ey lands v. Fletcher, which estab- 
 liability. jjgj^ ^t^q rule of absolute or all but absolute responsibility 
 for certain special risks. 
 
 Duty of keep- Cattle trespass is an old and well settled head, perhaps 
 ing in cattle, 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 straying 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 
 [ * 405] * a human {h). 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 kicking and biting the 
 plaintiff's mare through a wire fence which separated 
 their closes (^'). The result of the authorities is stated 
 to be "that in the case of animals trespassing on land, 
 the mere act or the animal belonging to a man, which 
 he could not forsee, or which he took all reasonable 
 means of preventing, may be a trespass, inasmuch as 
 the same act if done by hiiyself would have been a tres- 
 pass " {k). 
 
 Blackstone {I) says that "a man is answerable for not 
 only his pwn 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. Burbridge (m). 
 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 
 
 (7i) Cox V. Burbridge (1863) 13 C. B. N. S. 430 ; 32. L. J. C. P. 
 89. » 
 
 (i) Ellis V. Loftus Iron Co. (1874) L. R. 10 C. P. 10, a stronger 
 case than Lee i\ Riley'{1865) 18 C. B. N. S. 722 ; 34 L. J. C. P. 
 212, there cited and followed. 
 
 (/c) Brett J., L. R. 10 0. P. at p. 13; cp. the remarks on the 
 general law in Smith v. Cook (1875) 1 Q. B. D. 79 (itself a case of 
 contract). 
 
 (0 Comm. iii. 211. 
 
 (m) 13 C. B. N. S. 430; 32 L. J. C. P. 89. 
 (2650) 
 
CATTLE TRESPASS. 317 
 
 straying off a highway on which they are being lawfully 
 driven: in snch case the owner is liable only on proof 
 of negligence (w); and the law is the same for a town 
 street as for a country road (o). 
 
 * " Whether the owner of a dog is answer- [ * 406] 
 able in trespass for every unauthorized entry of the 
 animal into the land of another, as is the case with an 
 ox," is an undecided point. The better opinion seems 
 to favour a negative answer (p). 
 
 Closely connected with this doctrine is the responsi- Dangerous or 
 bility of owners of dangerous animals. " A person vicious 
 keeping a mischievous animal with knowledge of animals, 
 its propensities 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 required that he 
 knew the animal to be mischievous, if it is of a notori- 
 ously tierce or mischievous species (g). 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 " ac- 
 customed to bite mankind," as the common form of 
 pleading ran in the case of dogs, or otherwise vicious; 
 but when such proof is suppliejJ, the duty is absolute 
 as in the former case. It is enough to show that the 
 animal has on foregoing occasions manifested a savage 
 disposition, whether with the actual result of doing mis- 
 chief on any of those occasions or not (r). But the ne- 
 cessity of proving the scienter, as it used to be called 
 from the language of pleadings, is often a greatei; bur- 
 den on the plaintiff than that of proving negligence 
 would be; and as regards injury to cattle or sheep it 
 has been done away with by statute. And the occupier 
 of the place where a dog is * kept is presumed [ * 407] 
 for this purpose to be the owner of the dog (s). 
 
 (n) Gtoodwin r. Cheveley (1859) 4 H. & N. G31 ; 28 L. J. Ex. 
 298. A contrary opinion was expressed by Littleton, 90 Edw. 
 
 IV. cited in Read v. Edwards, 17 C. B. N. S. 245; 34 L. J. C. P. 
 at p. 3-2. 
 
 (o) Tillett V. Ward (1882) 10 Q. B. D. 17, where an ox being 
 driven through a town strayed into a shop. 
 
 (p) Eead v. Edwards (1864) 17 C. B. N. S. 245; 34 L. J. C. P. 
 31; and see Millen v. Fawdrv, Latch, 119. 
 
 (q) As a monkey: May r. Burdett (1846) 9 Q. B. 101, and 1 
 Hale, P. C. 430, there cited. 
 
 (r) Worth v. Gilling (1866) L. E. 2 C. P. 1. As to what is 
 suificient notice to the defendant through his servants, Baldwin 
 
 V. Casella (1872) L. R. 7 Ex. 325: Applebee «. Percy (1874) L. 
 K. 9 C. P. 647. 
 
 («) 28 & 29 Vict. c. 60 (A. d, 1865). There is a similar Act for 
 Scotland, 26 & 27 Vict. c. 100. See Campbell on Negligence, 2nd 
 
 (2651) 
 
318 
 
 DUTIES OE INSURING SAFETY. 
 
 Fire, fire- 
 arms, &c. 
 
 The word 
 
 pigs (m). 
 
 ■ cattle " includes horses (t) and perhaps 
 
 The risk incident to dealing with f re, fire-arms, ex- 
 plosive or highly inflammable matters, corrosive or 
 otherwise dangerous or noxious fluids, and (it is appre- 
 hended) poisons, is accounted by the common law 
 among those which subject the actor to strict responsi- 
 bility. 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 falling under some recognized head of exception) 
 where unsuccessful diligence on the defendant's part 
 was held to exonerate him. 
 
 Duty of 
 keeping in 
 lire. 
 
 As to fire, we find it in the fifteenth century stated to 
 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 (x). In declaring on this custom, how- 
 ever, the averment was "ignem suum fain negligenter 
 custodivit:" audit does not appear whether the allega- 
 tion of negligence was traversable or not (y). We 
 shall see that later authorities have adopted the stricter 
 view. 
 
 The common law rule applied to a fire made out of 
 [ * 408] * doors (for burning weeds or the like) as well 
 as to fire in a dwelling-house (z). Here too it looks as 
 if negligence was the gist of the action, which is de- 
 scribed (in Lord Raymond's report) as " case grounded 
 upon the common custom of the realm for negligently 
 keeping his fire." Semble, if the fire were carried by sud- 
 den tempest it would be excusable as the act of God. Lia- 
 bility for domestic fires has been dealt with by statute, 
 and a man is not answerable for damage done by a fire 
 which began in his house or on his land by accident 
 and without negligence (a). 
 
 ed. pp. 53-55. Further protection against mischievous or mas- 
 terless dogs is given by 34 & 35 Vict. c. 56, a statute of public 
 police regulation outside the scope of this work. 
 
 it) Wright V. Pearson (1869) I.. R. 4 Q. B. 582. 
 
 (tt) Child V. Hearn (1874) L. R. 9 Ex. 176 (on a different Act). 
 
 (x) Y. B. 2 Hen. IV. 18, pi. 5. 
 
 (y) Blaekstone (i. 431) seems to assume negligence as a condi- 
 tion of liability. 
 
 {z) Tnbervil or Tuberville v. Stamp, 1 Salk. 13, s. c. 1 Ld. 
 Eaym. 264. 
 
 (a) 14 Geo. 3, c. 78, s. 86, as interpreted in Filliter v. Phlppard 
 (1847) 11 Q. B. 347; 17 L. J. Q. B. 89. There was an earlier 
 (2652) 
 
FIRE-ARMS. • 319 
 
 The use of fire for non-domestic purposes, if we may 
 coin the phrase, remains a ground of the strictest re- 
 sponsibility. 
 
 Decisions of our own time have settled that one who Carrying fire 
 brings lire into dangerous proximity to his neighbour's in locomo- 
 property, in such ways as by running locomotive en- *^'^'^^- 
 gines on a railway without express statutory authority 
 for their use (b), or bringing a traction engine on a 
 highway (c), does so at his peril. 
 
 * It seems permissible to entertain some doubt [ * 409] 
 as to the historical foundation of this doctrine, and in 
 the modern practice of the United States it has not 
 found acceptance (d). In New York it has, after care- 
 ful discussion, been expressly disallowed (e). 
 
 Loaded fire-arms are regarded as higly dangerous Firearms: 
 things, and persons dealing with them are answerable Dixon !•. Bell, 
 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 
 
 statnte of Anne to a like effect; 1 Blackst. Comm. 431; and see 
 per Cur. in Filliter v. Phippard. It -would seem that e\ en at 
 common law the defendant would not be liable unless he know- 
 ingly lighted or kept some fire to begin with; for otherwise how 
 could it be described as i(/nis suus ? 
 
 (J) Jones V. Festiniog R. Co. (1868) L. R. 3 Q. B. 733. Here 
 diligence was proved, but the company held nevertheless liable. 
 The rule "was expressly stated to be an application of the wider 
 principle of Ry lands v. Fletcher; see per Blackburn J. at p. 736. 
 
 (c) Powell 1'. Fall (18S0) 5 Q. B. Div. 597. The use of trac- 
 tion engines on highways is regulated by statute, but not author- 
 ized in the sense of diminishing the owner's liability for nui- 
 sance or otherwise; see the sections of the Locomotive Acts, 1861 
 and 1865, in the judgment of Mellor .T. at p. 598. The dictum 
 of Bramwell L. J. at p. 601, that Vaughan v. Taflf Vale R. Co. 
 (1860) Ex. Ch. 5 H. & N. 679; 29 L. J. Ex. 247; p. 403, above, 
 was vn-ongly decided, is extrajudicial. 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. Brand 
 (1869) L. R. 4 H. L. at p. 202; and see the opinion of Blackbm-n 
 J. at p. 197. 
 
 (d) It appears to be held everywhere that unless the original 
 act is in itself unlawful, the gist of the action is negligence; see 
 Cooley on Torts, 589—594. 
 
 (e) Losee v. Buchanan (1873) 51 N. Y. 476; the owner of a 
 steam-boiler was held not liable, independently of negligence, 
 for an explosion which threw it into the plaintiff's buildings. 
 For the previous authorities as to fire, uniformly 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 of American authority. 
 
 (2653) 
 
320 DUTIES OF INSUKING SAFETY. 
 
 take out the priming first. This was done, and the gun 
 delivered to the girl ; she loitered on her errand, and 
 (thinking, presumably, 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 mach care as would commonly be thought 
 eaough. "It was 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 
 [ * 410] of doing harm" {f). 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 al- 
 together. 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 un- 
 happily shows that if loaded fire-arms are left within 
 the reach of children or fools, no consequence is more 
 natural or probable than that some such person will 
 discharge them to the injury of himself or others. 
 
 Explosives On a like principle it is held that people sending 
 
 and oth'er goods of an explosive or dangerous nature to be car- 
 dangerous j,jg(j ^j.Q |5ound to give reasonable notice of their nature, 
 and, if they do not, are liable for resulting damage. 
 So it was held where nitric acid was sent to a carrier 
 without warning, and the carrier's servant, handling it 
 as he would handle a vessel of any harmless fluid, was 
 injured by its escape (g). The same rule has been 
 applied in British India to the case of an explosive 
 mixture being sent for carriage by railway withoxit 
 warning of its character, and exploding in the railway 
 company's office, where it was being handled along with 
 other goods (ft) ; and it has been held in a similar case 
 in Massachusetts that the consignor's liability is none 
 the less because the danger of the transport, and the 
 
 (/) Dixon V. Bell (1816) 5 M. & S. 198, and in Bigelow L. C. 
 568. It might have been said that sending an incompetent per- 
 son to fetch a loaded gun was evidence of negligence (see the 
 first count of the declaration) ; but that is not the ground taken 
 by the Court (Lord Ellenborough C. J. and Bayley J.). 
 
 (g) Farrant r. Barnes (1862) 11 C. B. N. S. .553; 31 L. J. C. P. 
 137. The duty seems to be antecedent, not incident, to the con- 
 tract of carriage. 
 
 (A) Lyell v. Granga Dai, I. L. E. 1 All. 60." 
 (2654) 
 
EXPLOSIVES AND POISON. 321 
 
 damage actually resulting, * have been in- [ * 411] 
 creased by another consignor independently sending 
 other dangerous goods by the same conveyance {i). 
 
 Gas (the ordinary illuminating coal-gas) is not of Gas escapes, 
 itself, perhaps, a dangerous thing, but with atmospheric 
 air forms a highly dangerous explosive mixture, and 
 also makes the mixed atmosphere incapable of sup- 
 porting life (j). Persons undertaking to deal with it 
 are therefore bound, at all events, to use all reasonable s 
 
 diligence to prevent an escape which may have such 
 results. A gas-fitter left an imperfectly connected tube 
 in the place where he was working under a contract 
 with the occupier; a third person, a servant of that oc- 
 cupier, entering the room with a light in fulfilment of 
 his ordinary duties, was hurt by an explosion due to 
 the escape of gas from the tube so left; the gas-fitter 
 was held liable as for a "misfeasance independent of 
 contract" (A;). 
 
 Poisons can do as much mischief as loaded fire-arms Poisonous 
 or explosives, though the danger and the appropriate drugs: 
 precautions are different. Thomas v. 
 
 A wholesale druggist in New York purported to sell Winchester, 
 extract of dandelion to a retail druggist. The thing 
 delivered was in truth extract of belladonna, which by 
 the negligence of the wholesale dealer's assistant had 
 been wrongly labelled. By the retail druggist this ex- 
 tract was sold to a country practitioner, and by him to 
 a customer who took it as and for extract of dandelion, 
 and thereby * was made seriously ill. The [ * 412] 
 Court of Appeals held the wholesale dealer liable to the 
 consumer. " The defendant was a dealer in poisonous 
 drugs .... The death or great bodily harm of some 
 person was the natural and almost inevitable conse- 
 quence of the sale of belladonna by means of the false 
 label." And the existence of a contract between the 
 defendant and the immediate purchaser from him could 
 make no difference, as its non-existence would have 
 made none. "The plaintiff's injury and their remedy 
 
 (i) Boston r. Albany E. R. Co. v. Shanly (1871) 107 Mass. 568; 
 ("daulin," a nitro-glycerine compound, and exploders, had been 
 ordered by one customer of two separate makers, and by them 
 separately consigned to the railway company without notice of 
 their character: held on demurrer that both manufacturers were 
 rightly sued in one action by the company). 
 
 (/) See Smith v. Boston Gas Light Co., 129 Mass. 318. 
 1 (k) Parry •!). Smith (1879) 4 C. P. D. 325 (Lopes J.). Negli- 
 gence was found as a fact. 
 
 21 LAW OF TOETS. (2655) 
 
322 
 
 DUTIES OF INSURING SAFETY. 
 
 Difficulties 
 felt in Eng- 
 land: 
 George V. 
 Skivington. 
 
 Would have stood on the same principle, if the defendant 
 had given the belladonna to Dr. Foord" (the country- 
 practitioner) " without price, or if he had put it in his 
 shop without his knowledge, under circumstances which 
 would probably have led to its sale" — or administration 
 without sale— "on the faith of the label" (I). This 
 case has been thought in England to go too far; but it is 
 hard to see in what respect it goes farther than Dixon 
 V. Bell. So far as the cases are dissimilar, the damage 
 would seem to be not more but less remote. If one 
 sends belladonna into the world labelled as dandelion 
 (the two extracts being otherwise distinguishable only 
 by a minute examination), it is a more than probable 
 consequence that some one will take it as and for dande- 
 lion and be the worse for it: and this without any action 
 on the part of others necessarily involving want of due 
 care (m). 
 
 It can hardly be said that a wrongly 'labelled poison, 
 whose true character is not discoverableby any ordinary 
 examination such as a careful purchaser could or would 
 make, is in itself less dangerous than a loaded gun. The 
 event, indeed, shows the contrary. 
 
 [ * 413] * Nevertheless difficulties are felt in Eng- 
 land about admitting this application of a principle 
 which in other directions is both more widely and more 
 strictly applied in this country than in the United. 
 States (n). In 1869 the Court of Exchequer made a 
 rather hesitating step towards it, putting their judg- 
 ment partly on the ground that the dispenser of the 
 mischievous drug (in this case a hair wash) knew that 
 it was intended to be used by the very person v.'hom it 
 in fact injured (o). The cause of action seems to have 
 been treated as in the nature of deceit, and Thomas v. 
 Winchester does not seem to have been known either 
 to counsel or to the Court. In the line actually taken 
 one sees the tendency to assume that the ground of 
 liability, if any, must be either warranty or fraud. 
 But this is erroneotis, as the judgment in Thomas v. 
 "Winchester carefully and clearly shows. Whether that 
 case was well decided appears to be a perfectly open 
 
 (I) Thomas v. Winchester (18.)2) 6 n! Y. 397 ; Bigelow L. C. 602. 
 
 (m) The jury found that there -n'as not any negligence on the 
 part of the intermediate dealers; the Court, however, were of 
 opinion that this was immaterial. 
 
 (n) See per Brett M. E., Heaven v. Pender (1883) 11 Q. B. Div. 
 at p. 514, in a judgment which itself endeavours to lay down a 
 m.uch wider rule. 
 
 (o) George v. Skivington (1869) L. E. 5 Ex. 1. 
 (2656) 
 
DANGEROUS INSTRUMENTS. 323 
 
 question for our courts (p). In the present writer's 
 opinion it is good law, and ought to be followed. Cer- 
 tainly it comes within the language of Parke B. in 
 Longmeid v. Holliday (q), which does not deny legal 
 responsibilitj' " when any one delivers to another with- 
 out notice an instrument in its nature dangerous under 
 particular circumstances, as a loaded gun which he 
 himself has loaded, and that other person to whom it 
 is delivered is injured thereby; or if he places it in a 
 * situation easily accessible to a third person [ * 414] 
 who sustains damage from it." In that case the de- 
 fendant had sold a dangerous thing, namely an ill- 
 made lamp, which exploded in use, but it was found as 
 a fact that he sold it in good faith, and it was not found 
 that there was any negligence on his part. As lamps 
 are not in their nature explosive, it was quite rightly 
 held that on these facts the defendant could be liable 
 only ex contractu, and therefore not to any person who 
 could not sue on his contract or on a warranty therein 
 expressed or implied. 
 
 We now come to the duties imposed by law on the Dirties of oc- 
 occupiers of buildings, or persons having the control of cupiers of 
 other structures intended for human use and occxipa- I'uiWings, 
 tion, in respect of the safe condition of the building or ^ ^^^ of safe 
 structure. Under this head there are distinctions to be repair, 
 noted both as to the extent of the duty, and. as to the 
 persons to whom it is owed. 
 
 The duty is founded not on ownership, but on pos- Extent of the 
 session, in other words, on the structure being main- duty. 
 tained under the control and for the purposes of the 
 person held answerable. It goes beyond the common 
 doctrine of responsibility for servants, for the occupier 
 cannot discharge himself by employing an independent 
 contractor for the maintenance and repair of the struc- 
 ture, however careful he may be in the choice of that 
 contractoi-. Thus the duty is described as being im- 
 personal rather than personal. Personal diligence on 
 
 (p) Dixon V. Bell (1816) 5 M. & S. 198; Bigelow L. C. 568 
 (supra, p. 409), has never been disapproved that we know of, but 
 has not been so actively followed that the Court of Appeal need 
 be precluded from free discussion of the principle involved. In 
 Langridse v. Levy (18:37) 2 M. & W. at p. 530, the Court was 
 somewhat astute to avoid discussing that principle, and declined 
 to commit itself. Dixon v. Bell is cited by Parke B. as a strong 
 case and apparently with hesitating acceptance, m Longmeid v. 
 Holiiday (1851^ 6 Ex. 761 ; 20 L. J. Ex. 430. 
 
 (a) 20 L. J. Ex. at p. 433 
 
 .'2657) 
 
Dames. 
 
 324 DUTIES OF INSURING SAFETY. 
 
 the part of the occupier and his servants is immaterial. 
 The structure has to be in a reasonably safe conditioa, 
 so far as the exercise of reasonable care and skill can 
 [ * 415] make it so (r). To that extent there is * a 
 limited duty of insurance, as one may call it, though 
 not a strict duty of insurance such as exists in the 
 classes of cases governed by Rylands v. Fletcher. 
 
 Modern datel '^^® separation of this rule from the ordinary law of 
 of. the settled negligence, which is inadequate to account for it, has 
 rule: been the work of quite recent times. As lately as 1864 
 
 ^•Jermaur ■!). (gj ^he Lord Chief Baron Pigot (of Ireland), in a very 
 careful judgment, confessed the difficulty of discovering 
 any general rule at all. Two years later a judgment of 
 the Court of Common Pleas, delivered by Willes J., 
 and confirmed by the Exchequer Chamber, gave us an 
 exposition which has since been regarded on both sides 
 of the Atlantic as a leading authority (i). The plain- 
 tiff was a journeyman gas-fitter, employed to examine 
 and test some new burners which had been supplied by 
 his employer for use in the defendant's sugar-refinery. 
 "While op. an upper floor of thfe building, he fell through 
 an unfenced shaft which was used in working hours for 
 raising and lowering sugar. It was found as a fact 
 that there was no want of reasonable care on the plain- 
 tifP's part, which amounts to saying that even to a care- 
 ful person not already acquainted with the building the 
 danger was an unexpected and concealed one. The 
 Court held that on the admitted facts the plaintiff was 
 in the building as " a person on lawful business, in the 
 course of fulfilling a contract in which both the plain- 
 tiff and the defendant had an interest, and not upon 
 bare permission." They therefore had to deal with the 
 general question of law " as to the duty of the occupier 
 of a building with reference to persons resorting thereto 
 [ * 416 ] in the course of business, upon his invitation * ex- 
 press or implied. The common case is that of a cus- 
 tomer in a shop: but it is obvious that this is only one 
 of a class .... 
 
 "The class to which the customer belongs includes 
 persons who go not as mere volunteers, or licensees, or 
 guests, or servants, or persons whose employment is 
 
 (r) Per Montague Smith J. in Ex. Ch., Francis r. Cockrell 
 (1870) Ex. Ch. L. R. 5 Q. B. .501, 513. Other cases well showing 
 this point are Piekard v. Smith, 10 C. B. JST. S. 470; John v. Ba^ 
 con (1870) L. R. 5 C. P. 437. 
 
 (s) Sullivan v. Walters, 14 Ir. C. L. R. 460. 
 
 (t) Indermaur v. Dames (1866) L. R. 1 C. P. 274; 2 C. P. 311 ; 
 constantly cited in later cases, and reprinted in Bigelow L. C. 
 (2658) 
 
DITTY TO CUSTOMERS, ETa 325 
 
 such that danger may be considered as bargained, for, 
 but who go upon business which concerns the occupier, 
 and upon his invitation, express or implied. 
 
 " And, with respect to such a visitor at least, we con- 
 sider it settled law, that he, using reasonable care on 
 his part for his own safety, is entitled to expect that the 
 occupier shall on his part use reasonable care to prevent 
 damage from unusual danger, which he knows or ought 
 to know; and that, where there is evidence of neglect, 
 the question whether such reasonable care has been 
 taken, by notice, lighting, guarding or otherwise, and 
 whether there was contributory negligence in the suf- 
 ferer, must be determined by a jury as matter of fact " 
 
 The Court goes on to admit that "there was no ab- 
 solute duty to prevent danger, but only a duty to make 
 the place as little dangerous as such a place would rea- 
 sonably be, having regard to the contrivances neces- 
 sarily used in carrying on the business." On the facts 
 they held that " there was evidence for the jury that the 
 plaintiff was in the place by the tacit invitation of the 
 defendant, upon business in which he was concerned; 
 that there was by reason of the shaft unusual danger, 
 known to the defendant; and that the plaintiff sustained 
 damage by reason of that danger, and of the neglect of 
 the defendant and his servants to use reasonably suf- 
 ficient means to avert or warn him of it." The judg- 
 ment in the Exchequer Chamber (x) is little more than 
 a simple affirmation of this. 
 
 * It is hardly needful to add that a custo- [ * 417] persons en- 
 mer, or other person entitled to the like measure of titled to 
 care, is protected not only while he is actually doing his safety. 
 business, but while he is entering and leaving (y). 
 And the amount of care required is so carefully indi- 
 cated by Willes J. that little remains to be said on that 
 score. The recent cases are important chiefly as show- 
 ing in respect of what kinds of property the duty ex- 
 ists, and what persons have the same rights as a custo- 
 mer. In both directions the law seems to have become, 
 on the whole, more stringent in the present generation. 
 With regard to the person, one acquires this right to 
 safety by being upon the spot, or engaged in work on 
 
 («) L. R. 1 C. P. at p. 288. 
 
 (x) L. E. 2 C. P. 311. 
 
 (y) Chapman v. Rothwell (1858) 1 E. B. & E. 168; 27 L. J. Q. 
 B. 315; treated as a very plain case, where a trap-door was left 
 open in the floor of a passage leading to the defendant's office. 
 
 (2659) 
 
326 DUTIES OF INSURING SxiFETY. 
 
 or about the property whose condition is in question, in 
 the course of any business in which the occupier has 
 an interest. It is not necessary that there should be 
 any direct or apparent benefit to the occupier from the 
 particular transaction (z). Where gangways for access 
 to ships in a dock were provided by the dock company, 
 the company has been held answerable for their safe 
 condition to a person having lawful business on board 
 one of the ships; for' the providing of access for all 
 such persons is part of a dock-owner's business; they 
 are paid for it by the owners of the ships on behalf of 
 all who use it (a). A workman was employed under 
 contract with a ship-owner to paint bis ship lying in a 
 dry dock, and the dock-owner provided a staging for 
 the workmen's use; a rope by which the staging was 
 supported, not being of proper strength, broke and let 
 [ * 418] down the staging, and the * man fell into the 
 dock and was hurt; the dock-owner was held liable to 
 him (6). It was contended that the staging had been 
 delivered into the control of the shipowner; and became 
 as it were part of the ship; but this was held no rea- 
 son for discharging the dock-owner from responsibility 
 for the condition of the staging as it was delivered. 
 Persons doing work on ships in the dock " must be con- 
 sidered as invited by the dock-owner to use the dock 
 and all appliances provided by the dock-owner as inci- 
 dent to the use of the dock " (c). 
 
 Dutv in re- '^^® possession of any structure to which human be- 
 spect of car- iugs are intended to commit themselves or their prop- 
 riages, ships, erty, animate or inanimate, entails this duty on the oc- 
 ^^- cupier, or rather controller. It extends to gangways or 
 
 staging in a dock, as we have just seen; to a temporary 
 stand put up for seeing a race or the like (d); to car- 
 
 (z) See Holmes v. N. E. E. Co. (1869-71) L. E. 4 Ex. 254 ; in 
 Ex. Ch. L. E. 6 Ex. 123; Wliite v. France (1S77) 2 C. P. D. 308. 
 
 (a) Smith r. London & St. Katharine Docks Co. (1868) L. E. 3 
 C. P. 326 (Bovill C. J. and Byles J., dub. Keating J.). 
 
 (6) Heaven v. Pender (1883) 11 Q. B. Div. 503. 
 
 (c) Per Cotton and Bowen L. JJ. at p. 515. The judgment of 
 Brett M. E. attempts to lay down a wider principle with which 
 the Lords Justices did not agree. See p. 354, above. It must be 
 taken as a fact, though it is not clearly stated, that the defective 
 condition of the rope might have been discovered by reasonably 
 careful examination when the staging was put up. 
 
 (d) Francis r. Cockrell (1870) Ex. Ch. L. R. 5 Q. B. 184, 501. 
 The plaintiff had paid money for admission, therefore there was 
 a duty ex contractu, but the judgments in the Ex. Ch., see espe- 
 cially per Martin B., also affirm 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. 
 
 (2660) 
 
DUTY OF PASSENCiERS, ETC. 327 
 
 riages travelling on a railway or road (e), or in which 
 goods are despatched (/) ; to ships (g) ; and to market- 
 places (/)). 
 
 A railway passenger using one company's train with 
 * a ticket issued by another company under [ * 419] 
 an arrangement made between the companies for their 
 common benefit is entitled, whether or not he can be said 
 to have contracted with the iirst-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 appli- 
 ances (as the platform of a station) in connexion with 
 which it is intended to be used (i). Where goods are 
 lawfully shipped with the shipowner's consent, it is the 
 shipowner's duty (even if he is not bound to the owner 
 by any contract) not to let other cargo which will dam- 
 age them be stowed in contact with them (j). 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 (fc). 
 
 In the various applications we have mentioned, the Limits of the 
 duty does not extend to defects incapable of being dis- duty, 
 covered by the exercise of reasonable care, such as 
 latent flaws in metal (Z); though it does extend to all 
 
 (e) Foulkesr. Metrop. District E. Co. (1880) 5 C. P. Div. 157; 
 Moflfat r. Bateman (1869) L. E. 3 P. C. 115. 
 
 (/) Elliot !'. Hall (18H5J 15 Q. B. D. 315. 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 Avas hurt. 
 
 (g) Hayn v. Culliford (1879) 4 C. P. Div. 182. 
 
 (h) Lax r. Corporation of Darlington (1879) 5 Ex. Div. 28. 
 
 h) Foulkes (■. Metrop. District E. Co. (1880) 5C. P. Div. 157. 
 
 [j) Hayn v. Culliford (1879) 4 C. P. Div. 182. 
 
 (k) Lax V. Corporation of Darlington (1879) 5 Ex. Div. 28 (the 
 plaintiff's cow was killed by a spiked fence round a statute in 
 the market place). A good summary of the law, as far as it 
 goes, is given in the argument of Cave J. (then Q. C. ) for the 
 plaintiff at p. 31. The question of the danger being obvious was 
 considered not open on the appeal ; if it had been, qu. as to the 
 result, per Bramwell L. .1. 
 
 379; a case of contract between carrier and passenger, but the 
 principle is the same, and indeed the duty may be put on either 
 ground, see Hyman v. Nye (1881) 6 Q. B. D. 685, 689, per Lind- 
 ley J. This does not however qualify the law as to the seller's 
 implied warranty on the sale of a chattel for a specific purpose; 
 there the warranty is absolute that the chattel is reasonably fit 
 for that purpose, and there is no exception of latent defects : 
 Eandall v. Newson (1877) 2 Q. B. Div, 102. 
 
 (l) Eeadhead v. Midland E. Co. (1869) Ex. Ch. L. E. 4 Q. B. 
 
 (2661) 
 
328 DUTIES OP INSURING SAFETY. 
 
 [ * 420] Buch as care and * skill (not merelj* care and 
 skill on the part of the defendant) can guard against 
 (Z). . 
 
 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), unless 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 (m). 
 
 Dnty to- Occupiers of fixed property are under a like duty 
 
 wards towards persons passing or being on adjacent land by 
 
 passers by. their invitation in the sense above mentioned, or in the 
 exercise of an independent right. 
 
 In Barnes v. Ward (n), 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 Camp- 
 bell's Act, and the case 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 cr 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 
 [ * 421] deviating from the * road." Lately 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 (o). 
 
 In Corby v. Hill (p) the plaintiff was a person using 
 
 (I) Hyman v. Nye (1881) 6 Q. B. D. at p. 687. 
 
 (m) "Winterbottom c. "Wright, 10 M. & W. 109; Collis v. Selden 
 (1868) L. K. 3 C. P. 495; Loseei). Clute, 51 N. Y. 494. 
 
 (ji) 9 C. B. 392; 19 L. J. C. P. 195 (1850); cp. D. 9. 2, ad 
 leg. Aquil. 28. 
 
 (o) Hurst V. Taylor (1885) 14 Q. B. D. 918; defendants, rail- 
 way contractors, had (within the statutory powers) diverted a 
 footpath to make the line, but did not fence off the old direction 
 of the path; plaintiff, walking after dark, followed the old di- 
 rection, got on the railway, and fell over a bridge. 
 
 (p) 4 C. B. N. S. 556; 27 L. J. C. P. 318 (1858). 
 (2662) 
 
CONDITION OP WAYS. 329 
 
 a private "way with the consent of the owners and occu- 
 piers. The defendant had the like consent, as he al- 
 leged, to put slates and other materis^ls on the road. 
 No light or other safeguard or warning was provided. 
 The plaintift'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 act- 
 ing under licence from the owners or not. If not, he 
 was a mere trespasser; but the owners themselves could 
 not have justified putting a concealed and dangerous 
 obstruction in the way of persons to whom they had 
 held out the road as a means of access (q). 
 
 Here the plaintiff was (it seems) (r) 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 trespas- 
 
 sers 
 
 Where damage is done by the falling of objects into ppesum ti 
 a highway from a building, the modern rule is that the ot'^nrgTigenM 
 accident, in the absence of explanation, is of itself {res ipsa 
 * evidence of negligence. In other words, [ * 422] loquitur). 
 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 due repair and careful man- 
 agement 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 Ap- 
 peal. In Byrne v. Boadle (s) a barrel of Hour fell 
 from a window in the defendant's warehouse in Liver- 
 pool, 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 de- 
 fendant 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 not roll 
 out A barrel could not roll out of a warehouse 
 
 without some negligence, and to say that a plaintiff 
 who is injured by it must call witnesses from the ware- 
 
 (q). Cp. Sweeny v. Old Colony & Newport E. E. Co. (1865) 10 
 Allen (Mass.) 368, and Bigelow L. C. 660. 
 
 (r) The language of the judgments leaves it not quite clear 
 ■whether the continued permission to use the road for access to a 
 puhlic building (the Hanwell Lunatic Asylum) did not amount 
 to an " invitation " in the special sense of this class of cases. 
 
 (s 2H. & C. 722; 33 L. J. Ex. 13, and in Bigelow L. C. 578 
 (1863). 
 
 (2663) 
 
330 DUTIES OF INSURING SAFETY. 
 
 house to prove negligence seems to me preposterous. 
 So in the building or repairing a house, or putting pots 
 on the chimneys, if a person passing along the road is 
 injured by something falling upon him, I think the ac- 
 cident alone would be prima facie evidence of negli- 
 gence " it). This was followed, perhaps extended, in 
 Kearney v. London, Brighton and South Coast Railway 
 Co. (m). 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 
 [ * 423] and brick * work, except that after the acci- 
 dent other bricks were found to have fallen out. The 
 Court held the maxim " res ipsa loquitur " to be appli- 
 cable. " 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 dili- 
 gence having been used to keep the bridge in safe re- 
 pair {x). This decision has been followed, in the 
 stronger case of a whole building falling into the street, 
 in the State of New York. " Buildings properly con- 
 structed do not fall without adequate cause " {y^. 
 
 In a later case {z) 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 conse- 
 quences" (a). In this case negligence on the contrac- 
 tor's part was found as a fact. 
 
 Combining the principles affirmed in these authori- 
 ties, we see that the owner of property abutting on a 
 highway is under a positive duty to keep his property 
 
 (/) Per Pollock C. B. Cp. Scott v. London Dock Co. (1865) 3 
 H. & C. .596; 34 L. J. Ex. 220; p. 363, above. 
 (u) Ex, Ch. L. R. 6 Q. B. 759 (1871). 
 \x) Per Cur. L. E. 6 Ex. at pp. 761, 762. 
 ly) Mullen v. St. John, 57 N. Y. 567, 569. 
 (z) Tarry v. Ashton (1876) 1 Q. B. D. 314. 
 (a) Per Blackburn J. at p. 319. 
 (2664) 
 
POSITION OP LICENSEES. 331 
 
 fi'om being a * cause of danger to the public [ * 424] 
 by reason of any defect either in structure, repair, or 
 use and management, which reasonable care and skill 
 can guard against. 
 
 But where an accident happens in the course of doing Distinctions, 
 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 (b). 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, ia in 
 itself merely incident to the contractor's business and 
 under his order and control. 
 
 There are cases involving principles and considera- 
 tions very similar to these, but concerning the special 
 duties of adjacent landowners or occupiers to one an- 
 other rather than any general duty to the public or to 
 a class of persons. We must be content here to indi- 
 cate their existence, though in practice the distinction 
 is not always easy to maintain (c). 
 
 Thus far we have spoken of the duties owed to per- Position of 
 sons who are brought within these risks of unsafe con- licensees. 
 dition 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 licen- 
 see." Such an one * appears to be (with the [ * 425] 
 possible exception of a mortgagee in possession) about 
 the least favoured 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 "some- 
 thing like fraud" (d). 
 
 Persons who by the mere gratuitous permission of 
 owners or occupiers take a short cut across a waste piece 
 
 (b) Welfare v. London & Brighton E. Co. (1869) L. E. 4 Q. B. 
 693; a decision on peculiar facta, where perhaps a very little more 
 evidence might have turned the sc&le in favour ot the plaintiff. 
 
 (c) See Bower D. Peate (1876) 1 Q. B. D. 321; Hughes u Per- 
 cival (1883) 8 App. Ca. 443; and cp. Gorham v. Gross, 125, Mass. 
 232. 
 
 (d) WiUes J., Gautreti'. Egerton (1867) L. E. 2 C. P. at p. 375. 
 
 (2665) 
 
3'32 DUTIES OF INSURING SAFETY. 
 
 of land (e), or pass over private bridges (/), or have 
 the run of a building (g), cannot expect to find the 
 land free from holes or ditches, or the bridges to be in 
 safe repair, or the passages and stairs to be commodi- 
 ous and free from dangerous places. If the occupier, 
 while the permission continues, does something that 
 creates a concealed danger to people availing them- 
 selves of it, he may well be liable (h). And he would 
 of course be liable, not for failure in a special duty, 
 but for wilful wrong, if he purposely made his-property 
 dangerous to persons using ordinary care, and then 
 held out his 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" (i). 
 
 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 
 [ * 426] 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 ap- 
 pearance of security acted as a trap (fc). The plaintiif, 
 by having permission to use the path, had not the right 
 to find it in any particular state of safety or convenience. 
 
 "Permission involves lea.ve and licence, but it gives 
 no right. If I avail myself of permission to cross a 
 man's land I do so by virtue of a licence, not of 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" (I). In the language of Continental juris- 
 
 (e) Hounsell v. Smyth (1860) 7 C. B. N. S. 731; 29 L. J. C. P. 
 203. 
 
 (/) Gantret v. Egerton (1867) L. E. 2 C. P. 371. 
 
 (g) Sullivan v. Waters (1864) 14 Ir. C. L. R. 460. 
 
 (h) Corby v. Hill (1858) 4 C. B. N. S. 556; 27 L. J. C. P. 318; 
 p. 421, above. 
 
 (i) Willes J., L. R. 2 C. P. at p. 373. 
 
 (k) Bolch V. Smith (1862) 7 H. & N. 736; 31 L. J. Ex. 201. 
 
 (l) Martin B. 7 H. & N. at p. 745. Batchelor v. Fortescue 
 (1883) 11 Q. B. Div. 474, 478, seems rather to stand upon the 
 ground that the plaintiif had gone out of his way to create the 
 risk for himself. As betvreen himself and the defendant, he had 
 no title at all to be where he was. Cp. D. 9. 2. ad leg. Aquil. 
 31, ad Jin. "culpa ab eo exigenda non est, cum divinare non 
 potuerit an per eum locum aliquis transiturus sit. ' ' In Ivay v. 
 (2666) 
 
POSITION OF LICENSEES. 333 
 
 prudence, 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 (m). 
 
 Invitation is a word applied in common speech to the jj^g^ ^^^^ 
 relation of host and guest. . But a guest (that is, a guest, 
 visitor who does not pay for his entertainment) has not 
 the ■^' benefit of the legal doctrine of invitation [ * 427] 
 in the sense now before us. He is in point of law noth- 
 ing 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 (n). All he is entitled to is not to be led into a 
 danger know to his host, and not known or reasonably 
 apparent to himself. 
 
 On the same principle, a man who offers another a 
 seat in his carriage is not answerable for an accident 
 duo to any defect in the carriage of which he was not 
 aware (o). 
 
 It may probably be assumed that a licensor is ans- Liability of 
 werable to the licensee for ordinary negligence (p), in licensor for 
 the sense that his own act or omission will make him ' ' ordinary 
 liable if it is such that it would create liability as bet- ii^gl'g<^'"=e. " 
 ween 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 ever decided how far. Liability of 
 if at all, an owner of property not in possession can be owner not in 
 subject to the kind of duties we have been considering, occupation? 
 
 Hedges (1882) 9 Q. B. D. 80, the question was more of the terms 
 of the contract between landlord and tenant than of a duty im- 
 posed by law. Quaere, whether in that case the danger to which ' 
 the tenant was exposed might not have well been held to be in 
 the nature of a trap. The defect was a non-apparent one, and the 
 landlord knew of it. 
 
 (m) Cp. Blakemore v. Bristol and Exeter R. Co. (1858) 8 E. & 
 B. 1035; 27 L. J. Q. B. 167, where it seems that the plaintiff's 
 intestate was not even a licensee; but see 11 Q. B. D. 516. 
 
 (m) Southcote V. Stanley (1856) 1 H. & N. 247; 25 L. J. Ex. 
 339. But quaere if this explanation be not obscurum per nhscurius. 
 Cp. Abraham v. Reynolds, 5 H. '& N. at p. 148, where the same 
 line of thought appears. 
 
 (o) Moffatt V. Bateman (1869) L. R. 3 P. C. 115. 
 
 {p) Horace Smith 38; Campbell 119. 
 
 (2667) 
 
334 DUTIES OF INSURING SAFETY. 
 
 We have seen that in certain conditions he may be 
 liable for nuisance (q). But, since the ground of these 
 special duties regarding safe condition and repair is the 
 [ * 428] relation created * by the occupier's express or 
 tacit " invitation," it may be doubted whether the per- 
 son 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. 
 
 (3) See p. 351, above. Campbell, pp. 26, 27. 
 (2668) 
 
(335) 
 
 *CHAPTER XIII. [ * 429] 
 
 SPECIAL RELATIONS OF CONTRACT AND TORT. 
 
 The original theory of the coimnon law seems to have Original 
 been that there were a certain number of definite and theory of 
 mutually exclusive causes of action, expressed in appro- forms of 
 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 in- 
 tolerable inconvenience. Hence not only new remedies 
 were introduced, but relaxations of the older definitions 
 were allowed. The number of cases in which there was 
 a substantial grievance without remedy was greatly 
 diminished, but the old sharply drawn lines of defini- 
 tion were overstepped at various points, and became 
 obscured. Thus different forms and causes of action 
 overlapped. In many cases the new form, having been 
 introduced for greater practical convenience, simply 
 took the place of the older, as an alternative which in 
 practice was always or almost always preferred: but in 
 other cases one or another remedy might be better ac- 
 cording to * the circumstances. Hence dif- [ * 430] 
 ferent remedies for similar or identical causes of action 
 remained in use after the freedom of choice had been 
 established with more or less difficulty. 
 
 On the debateable ground thus created between those 
 states of fact which clearly give rise to only one kind of 
 action and those which clearly offered an alternative, 
 there arose a new kind of question, more refined and in- 
 determinate than those of the earlieir system, because less 
 reducible to the test of fixed forms. 
 
 The great instrument of transformation was the in- j^ctions on 
 troduction of actions on the case by the Statute of West- the case. 
 
 (3669) ' 
 
336 
 
 SPECIAL RELATIONS OF CONTRACT AND TORT. 
 
 Canses of 
 action; 
 modern clas- 
 sification of 
 them as 
 founded on 
 contract or 
 tort. 
 
 minster (a). Certain types of action on the case be- 
 came 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 cestui 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 unlawfill for a com- 
 mon lawyer to meddle with, was not the cause but the 
 consequence of the Court of Chancery's final triumph. 
 [ * 431] * The history of the Eoman legis actiones 
 may in a general way be compared with that of com- 
 mon law pleading in its earlier stages; and it may be 
 found that the praetorian actions have not less in com- 
 mon with our actions on the case than with the remed- 
 ies peculiar to courts of equity, which our text-writers 
 have habitually likened to them. 
 
 Forms of action are now abolished in England. But 
 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 out- 
 set, 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 (5) causes of 
 
 (a) 13 Edw. 1, c. 24. 
 
 lb) I do not think it was ever attempted to bring the real ac- 
 tions under this classification. 
 (2670) 
 
CAUSES OF ACTION. 337 
 
 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 framers of the Common Law Procedure Act, be- 
 sides other statutes dealing with procedure. But it does 
 not rest on any historical authority, nor can it be suc- 
 cessfully defended as a scientific * dichotomy. [ * 432] 
 In fact the historical causes above mentioned have led 
 to intersection of the two regions, with considerable 
 preplexity for the consequence. 
 
 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 inde- 
 pendent of contract. 
 
 This border land between the law of tort and the law 
 of contract will be the subject of examinatioan in this 
 chapter. 
 
 The questions to be dealt with may be distributed un- classes of 
 der the following heads: — questions 
 
 1. Alternative forms of remedy on the same cause of ^■''ising- 
 
 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. — Alternative Forms of Remedy on the same Cause of 
 Action. 
 
 It may be hard to decide whether the particular cases One cause of 
 
 fall under this head or under the second, that is, action and 
 
 whether there is one cause of action which the pleader alternative 
 
 . ' rGniGClics 
 
 has or 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 shall meet with are of this 
 
 kind. 
 
 Misfeasance in doing an act in itself not unlawful is r^-^^ common 
 ground for an action on the case (c). It is immatt^rial law doctrine 
 
 (c) ABd strictly, not for an action of trespass; but there are 
 classes of facts -which may he regarded as constituting either 
 22 LAW OF TOBTS. (2671) 
 
S38 SPECIAL KELATIONS OF CONTRACT AND TORT. 
 
 of misfeas- [ * 433] * that the act was not one which the defen- 
 ance. dant was bound to do at all (d). If a man will set 
 
 about actions attended with risk to others, the law casts 
 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 undertaking there was in that sense, is but the occasion 
 and inducement 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 assuTnpsit 
 (e) : the obligation being extended, by a bold and 
 strictly illogical step, to cases of pure non-feasance (/), 
 and guarded by the requirement of consideration. 
 Gradually assumpsit came to be thought of as founded 
 on a duty ex contractu; so much so that it might not 
 be joined with another cause of action on the case, such 
 as conversion. From a variety of action on the case it 
 had become a perfect ^ecies, and in common use its 
 origin was forgotten. But the old root was there still, 
 [ * 434] * and had life in it at need. Thus it might 
 happen that facts or pleading which in the current 
 modern view showed an imperfect cause of action in as- 
 sumpsit 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 em- 
 ployment, which averred an undertaking of the employ- 
 ment, but not any promise to the plaintiff, nor, in terms, 
 
 wrongs of misfeasance (ease), or acts which might be justified un- 
 der some common or particular claim of right, but not being duly 
 done fail of such justification and are merely wrongful (trespass). 
 
 (d) Gladwell v. Steggall (1839) 5 Eing. N. C. 733 ; 8 Scott 60 ; 
 8 L. J. C. r. ;!(jl ; action by an infant fur incompetence in surgical 
 treatment. In such an action the plaintiff's consent is material 
 only because without it the defendant -would be a mere trespas- 
 ser, and the incompetence would not be the gist of the action, 
 but matter for aggravation ot damages. To the same effect is 
 Pippin V. Sheppard (1822) 11 Price 400, holding that a declaration 
 against a surgeon for improper treatment was not bad for not 
 showing by whom the surgeon was retained or to be paid. 
 
 (e) 0. W. Holmes, The Common Law, p. 274 sqq. 
 
 (f) An analogy to this in the Roman theory of culpa, under 
 the Lex Aquilia, can hardly be sustained. 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. Eep. 
 91 n, that the existence of a cause of action in debt did not ex- 
 clude assumpsit, was in full accordance with the original concep- 
 tion. 
 
 (2672) 
 
CUSTOM OF THE REALM. 339 
 
 any consideration (g). And it was said that a breach 
 of duty in the course of employment under a contract 
 would give rise to an action either in contract or in tort 
 at the plaintiff's election (h). This, it will be seen, is 
 coniined 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-perform- 
 ance of a promise as a substantive tort (i). 
 
 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 exer- 
 cising 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 3 and if the * duty is broken, [ * 435] 
 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. In 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 necessaiy 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 in pari materia, on the persons or corporations 
 who may be concerned. 
 
 Here the duty is imposed by the general law, though Special duty 
 by a peculiar and somewhat anomalous rule; and it gives of carriers 
 rise to an obligation upon a simple non-feasance, unless ^^3'^™°".^^^'^':" 
 we say that the profession of a " public employment " H^ lf^^^ ' 
 in this sense is itself a continuing act, in relation to realm." 
 which the refusal to exercise that employment on due 
 demand is misfeasance. But on this latter view there 
 would be no reason why the public profession of any 
 
 (g) Brown r. Boorman (1844) 11 CI. & F. 1. The defendant's 
 pleader appears to have been unable to refer the declaration to 
 any certain species ; to make sure of ha^■ing it somewhere he 
 pleaded— (1) not guilty; (2) non assumpsit; (3) a traverse of the 
 alleged employment. 
 
 (h) Per Lord Campbell. ^ „ „ 
 
 (i) Courtenay v. Earle (1850) 10 C. B. 73 ; 20 L. J. C. P. 7. 
 See especially the dicta of Maule J. in the course of the argu- 
 ment In that case it was attempted to join counts, which were 
 in substance for the non-payment of a bill of exchange, with a 
 count in trover. 
 
 (2673) 
 
340 
 
 SPECIAL RELATIONS OF CONTRACT AND TORT. 
 
 7\lternative 
 of form does 
 not affect 
 substance of 
 duty or 
 liability. 
 
 trade or calling whatever should not have the like con- 
 sequences; and such an extension of the law has never 
 been proposed. 
 
 The term " custom of the realm " has been appropri- 
 ated to the description of this kind of duties by the cur- 
 rent usage of lawyers, derived apparently from the old 
 current form of declaration. It seems however that in 
 strictness " custom of the realm" has no meaning ex- 
 cept as a synonym of the common law, so that express 
 averment of it was superflous (k). 
 
 Even where the breach of duty is subsequent to a com- 
 plete contract in dnj employment of this kind, it was 
 long the prevailing opinion that the obligation was still 
 [ * 436] 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 (I). 
 
 In all other cases under this head there are not two 
 distinct causes of action even in the alternative, nor dis- 
 tinct remedies, but one cause of action with, at most, one 
 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 under- 
 taking without a contract, there is a duty incident to 
 the undertaking (in), 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 (n). Even where there is a 
 contract, our authorities do not say that the more gen- 
 eral duty ceases to exist, or that a tort cannot be commit- 
 ted; but they say that the duty is " founded on contract." 
 The contract, with its incidents either express or attached 
 by law, becomes the only measure of the duties between 
 the parties. There might be a choice, therefore, between 
 forms of pleading, but the plaintiff could not by any de- 
 vice of form get more than was contained in the de- 
 fendant's obligation under the contract. 
 
 (fc) Pozzi I). Shipton (1839) 8 A. &E. 963, 975; 8L. ,J. Q. B. if 
 Cp. Tattan v. G. W. R. Co. (I860) 2 E. & E. 844; 29 L. J. Q. B. 
 184; Y. B. 2 Hen. IV. 18, pi. 5. 
 
 (l) Pozzi V. Shipton, last note. 
 
 {m) Gladwell v. Steggall (1839) 5 Bing. N. C. 733; 8 Scott 60: 
 8 L. .1. C. P. 361. 
 
 (») Austin V. a. W. E. Co. (1867) L. E. 2 Q. B. 442, where the 
 .judgment of Blackburn J. gives the true reason. See further 
 below. 
 
 (2674) 
 
TORT FOUNDED ON CONTRACT. 341 
 
 Thus aa iufant could not be made chargeable for what 
 was 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 [ * 437] 
 actions were allowed (o). 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 sub- 
 stance of the right was governed wholly by the con- 
 tract (p). 
 
 Yet 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 contract he should not lose its incidents, such as the 
 right to a verdict for nominal damages in default of 
 proving special damage, by framing his action on the 
 case (q). 
 
 Now that forms of pleading are generally abolished in modem 
 or greatly simplified, it seems better to say that wher- view the 
 ever there is a contract to do something, the obligation obligation is 
 of the contract is the only obligation between the par- ^^trj^t" 
 ties with regard to the performance, and any action for 
 failure or negligence therein is an action on the con- 
 tract; and this whether there was a duty antecedent to 
 the contract or not. So much, in effect, has been laid 
 down by the Court of Appeal as regards the statutory 
 distinction of actions by the County Courts Act, 1867, 
 for certain purposes of * costs, as being [ * 438] 
 "founded on contract" or "founded on tort" (r). 
 
 From this point of view the permanent result of the 
 older theory has been to provide a definite measure for 
 
 (o) Jennings v. Rundall (1799) 1 T. E. 355; p. 48 above. 
 , (p) Chinery v. Viall (1860) 5 H. & N. 288; 29 L. J, Ex. 180; 
 p. 297 above. 
 
 (q) Marzetti v. Williams (1830) 1 B. & Ad. 415; action by cus- 
 tomer against banker for dishonouring cheque. 
 
 (r) Fleming v. Manchester, Sheffield & Lincolnshire R. Co. 
 (1878) 4 Q. B. D. 81. It is impossible to reconcile the grounds 
 of this decision -with those of Pozzi v. Shipton (1839) 8 A. & E. 
 963; 8 L. J. Q. B. 1; p. 435 above. 
 
 (2675) 
 
342 
 
 SPECIAL RELATIONS OF CONTKACT AND TORT. 
 
 Limits of the 
 rule. 
 
 Concurrent 
 causes of 
 action. 
 
 duties of voluntary diligence, whether undertaken by 
 contract or gratuitously, and to add implied warranties 
 of exceptional stringency to the contracts of carriers, 
 innkeepers, and those others (if any) whose employ- 
 ments fall under the special rule atti'lbuted to the " cus- 
 tom of the realm " (s). 
 
 All these rules and restrictions, however, 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 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 
 [ * 439] saying that Ihere can in no case be a * rela- 
 tion between Peter and John which includes the facts 
 of a contract (and to that extent is determined by the 
 obligation of the contract), but in some way extends 
 beyond those facts, and may produce duties really in- 
 dependent 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 AVilliam or Andrew, who has not any con- 
 tract with John. In pursuing such questions we come 
 upon real difficulties of principle. This class of cases 
 will furnish our next head. 
 
 II. — ConcurreAit Causes of Action. 
 
 Herein we have to consider — 
 
 (a) Cases where it is doubtful whether a contract has 
 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 con- 
 tract, if any, is at all events a tort; 
 
 (.s) It has heen suggested that a shipowner may be under this 
 responsibility, not because he is a common carrier, but by reasoa 
 of a distinct though similar custom extending to shipowners who 
 carry goods for hire without being common carriers: Nugent v. 
 Smith (1876) 1 C. P. D. 14, but the decision was reversed on ap- 
 peal ib, 423, and the propositions of the Court below specifically 
 controverted by Cockburn C. J., see at p. 426 sqq. I am not 
 aware of any other kind of employment to which the " custom of 
 the realm" has been held to apply. 
 (9676) 
 
INDEPENDENT CAUSES OF ACTION. 3-13 
 
 (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 be a breach of a contract 
 
 made not with A. but with M. 
 
 (a) There are two modern railway cases in which the c^geg of tort 
 majority of the Court held the defendants liable on a whether con- 
 contract, but it was also said that even if there was no tract or no 
 contract there was an independent cause of action. In ^n^ract be- 
 Denton r. Great Northern Eailway Company (t), an in- parties 
 * tending passenger was held to have a remedy [ * -440] 
 for damage sustained by acting on an erroneous an- 
 nouncement in the company's current time-table, pro- 
 bably on the footing of the time-table being the proposal 
 of a contract, but certainly on the ground of its being 
 a false representation. In Austin v. Great "Western Eail- 
 way Company (it), an action for harm suffered in some 
 accident of which the nature and particulars are not re- 
 ported, the plaintiif 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) 
 (v), or independently of contract, because the child was 
 accepted as a passenger, and this cast a duty on the 
 company to carry him safely (x). Such 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 (y). 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 (z). The point is not discussed 
 in any of the cases now under review. 
 
 (t) 5 E. & B. 860; 25 L. J. Q. B. 129 (1856) seep. 250 above, and 
 Principles of Contract, 4th ed. 14. The case is perhaps open to 
 the remark that a doubtful tort and the breach of a doubtful con- 
 tract were allowed to save one another from adequate criticism. 
 
 («) L. R. 2Q. B. 442 (1867). 
 
 ((,■) Per Lush J. at p. 447. 
 
 (x) Per Blackburn J. at p. 445, and see per Grove J. m Foulkes 
 V. Metrop. District R. Co. (1880) 4 C. P. D. at p. 279. 
 
 (y) See Chap. XII. p. 415 above, 
 
 (a) See Moffatt v. Bateman (1869) L. R. 3. P. C. 115. 
 
 (2677) 
 
344 SPECIAL RELATIONS OF CONTKACT AND TORT. 
 
 Again if a servant travelling with his master on a rail- 
 way loses his luggage by the negligence of the company's 
 servants, it is immaterial that his ticket was paid for by 
 [ * 441] * his master, and he can sue in his own name 
 for the loss. Even if the payment is not regarded as 
 made by the master as the servant's agent, as between 
 themselves and the company (a), the company has ac- 
 cepted 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 
 (b). Evidently the plaintifp in a ease 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. 
 
 (Jontract On the other hand we have cases in which an obvious 
 
 ■implied in tort is turned into a much less obvious breach of con- 
 law" and tract with the undisguised purpose of giving a better 
 jyj,(. and more convenient remedy. Thus it is an actionable 
 
 wrong to retain money paid by mistake, or on a consid- 
 eration which has failed and the like; but in the eigh- 
 teenth 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, ap- 
 plicable to almost every case where the defendant has 
 received money which ex aequo et bono he ought to re- 
 [ * 442] fund " (c), and even to cases where * goods 
 taken or retained by wrong had been converted into 
 money. The plaintiff was said to " waive the tort " for 
 the purpose of suing in assumpsit on the fictitious con- 
 tract. Hence the late Mr. Adolphus wrote in his idyllic 
 poem " The Circuiteers " : 
 
 " Thoughts much too deep for tears subduo the Court 
 When I assumpsit bring, and godlilsie waive a tort " d. 
 
 (a) Suppose the master by accident had left his money at home, 
 and the servant had paid both fares out of his own money: could 
 it be argued that the master had no contract with the company ? 
 
 (6) Marshall v. York, Newcastle & Berwick R. Co. (1851) 11 
 C. B. 655; 21 L. J. C. P. 34; approved by Blackburn J. in Aus- 
 tin V. G. "W. R. Co. last page. 
 
 (e) Blackst. iii. 163. 
 
 {(1) L. Q. R. i. 233. 
 
 (2678) 
 
DOUBLE RIGHT OP ACTION. 345 
 
 This kind of action was much fostered by Lord 
 Mansfield, v^hose exposition confessed the fiction of the 
 form while it justified the utility of the substance (e). 
 
 "\^ ithin still recent memory an essentially similar fie- implieil 
 tion of law has been introduced in the case of an osten- warranty of 
 sible agent obtaining a contract in the name of a prin- agent's au- 
 cipal whose authority he misrepresents. A person so 'tliority 
 acting 13 Hable for deceit; but that liability, being ^^"'^" "■ 
 purely in tort, does not extend to his executors, neither 
 can he be held personally liable on a contract which he 
 pui-parted to make in? the name of an existing princi- 
 pal. To meet this difficulty it was held in Collen v. 
 Wright (/) that when a man offers to contract as agent 
 there is an implied warranty that he is really author- 
 ized by the person named as principal, on which war- 
 ranty he or his estate will be answerable ex contractu. 
 Just as in the case of the old " common counts," the 
 fact that the action lies against executors shows that 
 there is not merely one cause cf action capable of being 
 expressed, under the old system of pleading, in different 
 ways, but two distinct though concurrent cause of ac- 
 tion, with a remedy upon either at the plaintiff 's elec- 
 tion. 
 
 * We pass from these to the more trouble- [ * 443] 
 some 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 com- Concurrent 
 
 mon plaintiff, or the same facts may give Z. a remedy causes of 
 
 in contract against A. and also a remedy in tort action 
 
 against B. "g^^"*^ ''*f: 
 
 " lerent parties 
 
 in contract 
 
 The lessee of a steam ferry at Ijiverpool, having to ami in tort. 
 
 meet an unusual press of traffic, hired a vessel with its Dalyell v. 
 
 crew from other shipowners to help in the work of the Tyrer. 
 
 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; by the negligence of 
 
 some of the crew there was an accident in mooring the 
 
 vessel on hpr 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 
 
 (e) Moses v. Macferlan, 2 Burr. 1005; cp. Leake on Contracts, 
 1st ed. 39, 48. 
 
 (/) Ex. Ch. (1857) 8 E. & B. 647; 27 L. J. Q. B. 215. 
 
 (2C79) 
 
34G SPECIAL KELATIONS OP CONTRACT AND TORT. 
 
 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 law- 
 fully on their vessel with their consent, and they were 
 not the less responsible to him because he was there in 
 exercise of a right acquired by contract upon a con- 
 sideration paid to some one else (g). 
 
 Foulkes V. The latest and most authoritative decision on facts of 
 
 Met. Dist. R. this kind was given by the Court of Appeal in 1880(/i). 
 Co. 
 
 [ * 444] * The plaiatiff, 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 unsuitable 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 traffic were divided. The plaintifP 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 District Company re- 
 ceived him as a passenger in their train, and were 
 bound to provide carriages not only safe and sound in 
 themselves, but safe with reference to the permanent 
 way and appliances of the line. In breach of this duty 
 they provided, according to the facts as determined by 
 the jury, a train so ordered that "in trath the combined 
 arrangements were a trap or snare," and would have 
 given the plaintiff a cause of action though he had been 
 carried gratuitously (ij. He had been actually received 
 by the defendants as a passenger, and thereby they un- 
 dertook the daty of not exposing him to unreasonable 
 peril in any matter incident to the journey. 
 
 (.17) Dalvell l: Tvrer (lrto8) E. B. & E. 899; 28 L. J. Q. B. 52. 
 
 (h) Foulkes v. Metrop. Dist. E. Co., 5 C. P. Div. 157. Cp. 
 Berrinser v. G. E. R. Co. (1879) 4 C. P. D. 163. 
 
 ((') Bramwell L. J., 5 C. P. Div. at p. 1.59. See the judgment 
 of Tliesiger L. J. for a fuller statement of the nature of the duty. 
 Compai-ison of these two judgments leaves it capable of doubt 
 whether the defendants would have been liable for a mere non- 
 feasance. 
 
 (26S0) 
 
DOUBLE LIABILITY. 347 
 
 (c) There may be two causes of action with a common Causes of 
 defendant, or the same act or event which makes A. action in con- 
 liable for a breach of contract to B. may make him ^'■''^^* f ""^ . 
 i- i,i„ *„ i i. i. r7 tort at suit ol 
 
 liable for a tort to Z. different 
 
 plaintiffs. 
 
 * The case already mentioned of the ser- [ * 445] 
 vant 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 con- 
 sequences on the ground of a breach of their contract 
 with him (k). 
 
 Again, an officer in Her Majesty's service and his 
 baggage were carried under a contract made with the 
 carriers on behalf of the Government of India; this did 
 not prevent the carriers from being liable to the officer 
 if his goods were destroyed in the course of the jour- 
 ney by the negligence of their servants. " The contract' 
 is no concern of the plaintiff's; the act was none the 
 less a wrong to him " (I). He could not charge the 
 defendants with a breach of contract, but they remained 
 answerable for " an affirmative act injurious to the plain- 
 tiff's property " (m. ) 
 
 The decision of the Court of Common Pleas in Alton Alton v. 
 V. Midland Eailway Co. (n) is difficult to reconcile with Midland 
 the foregoing authorities. A servant travelling by rail- ^; ,'^' *"' 
 way on his master's business (having paid his own fare) „qqj jg^^ 
 received hurt, as was alleged, by the negligence of the " 
 * railway company's servants, and the master [ * 446] 
 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; 
 
 [k) Marshall's ca. (1851) 11 C. B. 655; 21 L. J. C. P. ::;4; supra, 
 p. 441. 
 
 (?) Martin v. G. I. P. E. Co. (1867) L. E. 3 Ex. 9, per Bram- 
 well B. at p. 14. 
 
 (m) Channrll B. ibid. ; Kelly C. B. and Pigott B. doubted. The 
 later case of Beecher v. G. E. E. Co. (1870) L. K. 5 Q. B. 241, is 
 distinguishable : all it decides is that if A. delivers B.'s goods to 
 a railway company as A. 's own ordinary luggage, and the com- 
 pany receives them to be carried as such, B. cannot sue the com- 
 pany for the loss of the goods. Martin's case, however, was not 
 cited. 
 
 ()i.) 19 C. B. N. S. 213; 34 L. J. C. B. 292 (1865). This case 
 was not cited either in Martin v. G. I. P. E. Co. or Foulkes v. 
 Met. Dist. E. Co. 
 
 (2681) 
 
348 SPECIAL RELATIONS OF CONTRACT AND TORT. 
 
 which, contract being made with the servant, no third 
 person could found any right upon it. " The rights 
 founded on contract belong to the person who has stip- 
 ulated for them" (o); and it is denied that there was 
 any duty independent of contract (p). But it is not 
 explained in any of the judgments how this view is con- 
 sistent with the authorities relied on for the plaintiff, 
 and in particular with Marshall's case, a former decision 
 of the same Court. The test question, whether the re- 
 ception 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, or, it is 
 submitted, adequately dealt with. The case, though 
 expressly treated by the Court as of general importance, 
 has been but little cited or relied on during the twenty 
 years that have now passed; and the correctness of the 
 decision was disputed (extrajudicially, it is true) by 
 Sir E. V. "Williams (q). A directly contrary decision 
 has also been given in the State of Massachusetts (r). 
 [ *447] Alton's case, moreover, * seems to be virtually 
 overruled by Foulkes's case, which proceeds on the ex- 
 istence of a duty not only in form but in substance inde- 
 pendent of contract. The only way of maintaining the 
 authority of both decisions would be to say that in Al- 
 ton's case the master could not recover because the ser- 
 vant had a contract with the defendant railway com- 
 pany, but might have been entitled to recover if the ser- 
 vant had been travelling with a free pass, or with a 
 ticket taken and paid for by a stranger, or issued by 
 another company, or had suffered from a fault in the 
 permanent way or the structure of a station. But such 
 a distinction does not appear reasonable. 
 
 It might perhaps have been argued that at all events 
 such negligence must be shown as would make a carrier 
 of passengers liable to a person being carried gratuit- 
 ously; it might also be open to argument whether the 
 
 (o) Willes J., 19 C. B. N. S. at p. 240. 
 
 (p) Moctafiue Smith J. at p. 245. 
 
 (q) "The Court decided this case on the principle that one who 
 is no jiarty to a contract cannot sue in respect of the hreach of a 
 duty arising out of the contract. But it may be doubted whether 
 this was correct; for the duty, as appears by the series of cases 
 cited in the earlier part of this note, does not exclusively arise 
 out of the contract, hut out of the common law obligation of the 
 defendants as carriers;" 1 "Wms. Saund. 474. Sir E. V. Williams 
 ■was a member of the Court which decided Marshall's case, supra, 
 p. 441. 
 
 (r) Ames v. Union R. Co. (1875) 117 Mass. 541, expressly fol- 
 lowing Marshall's ca. (1851) 11 C. B. q55; 21 L. J. C. P. 34; 
 xupra, p. 441. 
 
 (2682) 
 
CONFLICT OF AUTUORITY. 3i9 
 
 person injui-ed (apparently a commercial traveller) waa 
 really the servant of the plaintiff in such a sense that 
 an action could be maintained for the loss of his service. 
 Doubtless the action for vyrong to a servant per quod 
 servitium ' amisit is of an archaic character and not 
 favoured in our modern law, and this may have uncon- 
 sciously inilueuced the Court. Neither of these points 
 hov?ever was discussed, nor indeed were they open to 
 discussion vipon the issues of law raised lnjr the plead- 
 ings, on which alone the case was argued and decided. 
 The questions what degree of negligence must be shown, 
 whether a mere non feasance would be enough, or the 
 like, could have been properly raised only when the evi- 
 dence came out (s). 
 
 The most ingenious reason for the judgment of the 
 Court is that of Willes J., who said that to allow such an 
 * action would be to allow a stranger to eser- [ * 448] 
 cise and determine the election (of suing in contract or 
 tort) which the law gives only to the person actually 
 injured. But it is submitted that the latter is (or was) 
 required to elect between the two causes of action as a 
 matter of remedy, not of right, and because he is to be 
 compensated once and once only for the same damage; 
 and that such election neither affects nor is affected by 
 the position of a third person. Moreover the master 
 does not sue as a person claiming through the servant, 
 bat in a distinct right. The cause of action and the 
 measure of damages are different (f). On the whole the 
 weight of principle and authority seems to be so strong 
 against Alton's case that, notwithstanding the respect 
 due to the Court before which it came, and which in- 
 cluded one of the greatest masters of the common law 
 at any time, the only legitimate conclusion is that it 
 was wrongly decided. ' 
 
 It must be admitted that the Court of Appeal itself 
 has spoken with a somewhat ambiguous voice (m). We 
 should be bound, however, to prefer the later or more 
 considered decision even if it did not appear to be more 
 in harmony with the general current of authorities. 
 
 It appears, then, that there is a certain tendency to Winter bot- 
 
 hold that facts which constitute a contract cannot have torn v. 
 Wright, &c. 
 
 {s) Compare Mr. Henry T. Terry's criticism in 'Leading 
 Principles of Anglo-American Law," Philadelphia, 1884, pp. 485- 
 488. 
 
 (/) See pp. 195, 196, above. 
 
 (m) The actual decision of Fleming's case (p. 438 above) is on a 
 minute point of statutory procedure, but its grounds are not easy 
 to reconcile with those of Foulkes's case. 
 
 (2683) 
 
350 SPECIAL RELATIONS OF CONTRACT AND TORT. 
 
 any other legal effect. We think we have shown that 
 such is not really the law, and we may add that the 
 authorities commonly relied on for this proposition 
 really prove something different and much more rational, 
 namely that if A. breaks his contract with B. (which 
 [ * 449] may happen * without any personal default in 
 A. or A.'s servants), that is not of itself sufficient to 
 make A. liable to C, a stranger to the contract, for con- 
 sequential damage. This, and only this, is the sub- 
 stance of the perfectly correct decisions of the Court of 
 Exchequer in Winterbottom v. Wright (x) and Long- 
 meid v. Holliday {y). In each case the defendant de- 
 livered, under a contract of sale or hiring, a chattel 
 which was in fact unsafe to use, but in the one case 
 was not alleged, in the other was alleged but not proved, 
 to have been so to his knowledge. In each case a 
 stranger to the contract, using the chattel — a coach in 
 the one case, a lamp in the other — in the ordinary way, 
 came to harm through its dangerous condition, and was 
 held not to have any cause of action against the pur- 
 veyor. Not in contract, for there was no contract be- 
 tween these parties; not in tort, for no bad faith or 
 negligence on the defendant's part was proved. If bad 
 faith (2;) or misfeasance by want of ordinary care (a) 
 had been shown, or, it may be, if the chattels in ques- 
 tion had been of the class of eminently dangerous things 
 which a man deals with at his peril (6), the result would 
 have been different. With regard to the last-mentioned 
 class of things the policy of the law has created a 
 stringent and peculiar duty, to which the ordinary rule 
 that the plaintiff must make out either wilful wrong- 
 doing or negligence does not apply. There remain 
 over some few miscellaneous cases currently cited on 
 these topics, of which we have purposely said nothing 
 because they are little or nothing more than warnings 
 to pleaders (c). 
 
 {x) 10 M. & W. 109; 11 L. J. Ex. 415 (1842). 
 
 (y) 6 Ex. 761; 20 L. J. Ex. 430 (ls51). 
 
 (2) Langridge r. Levy (1837) 2 M. & "W. 519. 
 
 (a) George v. Skivington (1S69) L. R. 5 Ex. 1. 
 
 (6) See Thomas v. Winchester (1852) 6 N. Y. 397; Bigelow L. 
 C. 602; p. 411 above. 
 
 (e) Such is Collis v. Selden (1868) L. R. 3 C. P. 495, where the 
 declaration attempted to make a man liable for creating a dan- 
 gerous state of things, without any allegation that he Icnew of 
 the danger, or had any control over the thing he worked upon or 
 the place vs'here it was, or that the plaintiff was anything more 
 than a "bare licensee." ToUit r. Sherstone, 5 M. & AV. 283, is 
 another study in bad pleading which adds nothing to the substance 
 (2684) 
 
LUMLEY V. 6YE. 351 
 
 * If, after this examination of the authorities, [ * 450] Concurrence 
 we cannot get rid of the notion that the concurrence of of breach of 
 distinct causes of action ex delicto and ex contractu is a contract 
 mere accident of common law procedure, we have only ^^t^^ 'delict m 
 to turn to the Eoman system and find the same thing 
 occurring there. A freeborn filius familias, being an 
 apprentice, is immoderately beaten by his master for 
 clumsiness about his work. The apprentice's father 
 may perhaps have an action against the master on the 
 contract of hiring (ex locato), but he may certainly 
 have an action under the lex Acquilia, since the excess 
 in an act of correction which within reasonable bounds 
 would have been lawful amounts to culpa (d). It is 
 like the English cases we have cited where there was 
 held to be a clear cause of action independent of con- 
 tract, so that it was not necessary for the plaintiff to 
 make out a breach of contract as between the defendant 
 and himself. 
 
 III. — Causes of Action in Tort dependent on a Contract causes of 
 
 not between the same Parties. action depen- 
 
 dent on col- 
 fa) When a binding promise is made, an obligation lateral con- 
 is created which remains in force until extinguished by ^'f'^*" 
 the performance or discharge of the contract. Does the Lumle*^^r 
 duty thus owed to the promisee constitute the object of Gye'd'ecide? 
 a kind of real right which a stranger to the contract can' 
 infringe, * and thereby render himslf answer- [ * 451] 
 able ex delicto? In other words, does a man's title to 
 the performance of a promise contain an element anal- • 
 ogous to ownership or possession? The general prin- 
 ciples of the law (notwithstanding forms of speech 
 once in use, and warranted by considerable authority) 
 (e) seems to call for a negative answer. It would con- 
 fuse every accustomed boundary between real and per- 
 sonal rights, dominion and obligation, to hold that one 
 who without any ill-will to Peter prevents Andrew 
 from performing his contract with Peter may be a kind 
 
 of the law. So Howard r. Shepherd (l^.'jO) 9 C. B. 296, exhibits 
 an attempt to disguise a manifestly defective cause of action in 
 assumpsit by declaring in the general form of case. 
 
 (d) D. 9. 2. 5, ? :!; Grueber on the Lex AquiJia, p. 14 : the 
 translation there given is not altogether correct, but the inac- 
 curacies do not affect the law of the passage. And see D. h. t. 27. 
 U 11, 33, Grenber, p. 230. 
 
 (e) Blackstone, ii. 442, speaks of a contract to pay a sum of 
 money as transferring a property in that sum; but he forthwith 
 adds that this property is " not in possession but in action mere- 
 ly," (■. e. it is not property in a strict sense: there is a res but not, 
 a dominus, Vermogen but not Eigenthum. 
 
 (2685) 
 
352 
 
 SPECIAL RELATIONS OF CONTRACT AND TORT. 
 
 Special dam- 
 age 
 
 and malice 
 
 of trespasser against Peter (/). For Peter has his 
 remedy against Andrew, and never looked to having 
 any other; and Andrew's motives for breaking his con- 
 tract are not material. Yet there is some show of au- 
 thority for affirming the proposition thus condemned. 
 It was decided by the Court of Queen's Bench in Lum- 
 ley V. Gye (1853) (g), and by the Court of Appeal in 
 Bowen v. Hall (1881) (h), that an action lies, under 
 certain conditions, for procuring a third person to 
 break his contract with the plaintiff. We must there- 
 fore examine what the conditions of these cases were, 
 and how far the rule laid down by them really extends. 
 
 First, it is admitted that actual damage must be al- 
 leged and proved («). This at once shows that the 
 [ * 452] right violated * is not an absolute and inde- 
 pendent one like a right of property, for the possibility 
 of a judgment for nominal damages is in our law the 
 touchstone of such ri-ghts. Where specific damage is 
 necessary to support an action, the right which has 
 been infringed cannot be a right of property, though in 
 soma cases it may be incident to property. 
 
 Next, the defendant's act must be malicious, in the 
 sense of being aimed at obtaining some advantage for 
 himself at the plaintiff's expense, or at any rate at 
 .causing loss or damage to the plaintiff. In the de- 
 cided cases the defendant's object was to withdraw from 
 a rival in business, and procure for himself, the services 
 of a peculiarly skilled person — in the earlier case an 
 operatic singer, in the later a craftsman to whom, in 
 common with only a few others, a particular process of 
 manufacture was known. Various cases may be put of 
 a man advising a friend, with all honesty and without 
 ill-will to the other contracting party, to abide the risks 
 of breaking an onerous or mischievous contract rather 
 than those of performing it (fc). And it would be un- 
 
 (/ ) We have no right to say that a system of law is not con- 
 ceivable where such a doctrine would be natural o'r even neces- 
 sary. But that system, if it did exist, would be not at all like 
 the Roman law and not much like the common law. 
 
 (g) 2 E. & B. 216;" 22 L. J. Q. B. 463; by Crompton, Erie, and 
 Wiijhtman J,J. ; diss. Coleridge J. 
 
 (7() 6 Q. B. Div. 333; by Lord Selborne L. C. and Brett L. J.; 
 diss. Lord Coleridge C. J. 
 
 (i) See the declaration in Lumley r. Gye. In Bowen v. Hall 
 it does not ajjpear how the claim for damages was framed, but in 
 the opinion of the majority of the Court there was evidence of 
 special damage; see 6 Q. B. D. 337. 
 
 (A-) See the dissenting judgment of Sir John Coleridge in Lum- 
 ley V. Gye. 
 
 (2686) 
 
LUMLEY V. GYE.' 353 
 
 reasonable in such cases to treat the giving of such ad- 
 vice, if it be acted on, as a wi-ong. Luoilia has impru- 
 dently accepted an offer of marriage from Titius, her 
 inferior in birth, station and breeding : Lucilia's brother 
 Marcus, knowing Titius to be a man of bad character, 
 persuaded Lucilia to break ofp the match : shall any 
 law founded in reason say that Marcus is liable to an 
 action at the suit of Titius f Assuredly not : and there 
 is no decision that authorizes any such proposition 
 even by way of plausable extension. There must be a 
 * wrongful intent to the plaintiff before the [ * 453] are of the 
 right of action for procuring a breach of contract can S'st of the 
 be established. Mere knowledge that there is a sub- 
 sisting contract will not do. Only with these limita- 
 tions can we safely say that a contract can or does 
 " impose a duty, upon persons extraneous to the obliga- 
 tion, not to interfere with its due performance" {I). 
 The breach of contract is in truth material only because 
 it excludes the defence that thQ act complained of, 
 though harmful and intended to do harm, was done in 
 the exercise of a common right. 
 
 In this view the real point of difficulty is reduced to Question of 
 ■this, that the damage may be deemed too remote to found remoteness of 
 the action upon. For if A. persuades B. to break his damage, 
 contract with Z., the proximate cause of Z.'s damage, 
 in one sense, is not the conduct of A. but the volun- 
 tary act or default of B. We do not think it can be 
 denied that there was a period in the history of the 
 law when this objection would have been held conclu- 
 sive. 
 
 Doubtless Lord Ellenborough laid it down as a gen- . 
 eral rule of law that a man is answerable only for 
 " legal and natural consequence," not for " an illegal 
 consequence," that is, a. wrongful act of a third person 
 (m). But this opinion is now disapproved (n). 
 
 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 
 which may run counter to the obvious facts. Here the 
 consequence is not only natural and probable — if A.'s 
 action has any * consequence at all — but is [ * 454] 
 designed by A. : it would therefore be contrary to the facta 
 
 (l) Anson, English Law of Contract, 204. 
 \m) Vicars v. Wilcocks (1807) 8 East 1, and in 3 Sm. L. C. 
 \n) See Lynch v. Knight (1861) 9 H. L. C. 577, and notes to 
 Ticars v. Wilcocks in Sm. L. C. 
 
 23 LAW OF TOETS. (2687) 
 
354 SPECIAL RELATIONS OF COKTRACT AND TORT. 
 
 to hold that the interposition of B.'s voluntary agency 
 necessarily breaks the chain of proximate cause and 
 probable consequence. A proximate cause need not be 
 an immediate cause. 
 
 Liability for negligence, as we have seen (o), is not 
 always or necessarily excluded by what is called " con- 
 tributory negligence of a third person." In any case 
 it would be strange if it lay 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 conse- 
 quence. The iniquity of such a defence is obvious in 
 the grosser examples of the criminal law. Command- 
 ing, 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 ground 
 any doubt that the procurement is also a crime. 
 
 Motive as an It may likewise be said that the general habit of the 
 ingredient in law is not to regard motive as distinguished from in- 
 the wrong. ^gjj^ ^^^^j |jja,t the decision in Lumley v. Gye, as here 
 understood and limited is therefore anomalous at best. 
 Now the gene al habit is as stated, but there are well 
 established exceptions to it, of which the action for 
 malicious prosecution is the most conspicuous: there it 
 is clear law that indirect and improper motive must be 
 added to the other conditions to complete the cause of 
 action. The malicious procuring of a breach of con- 
 tract, or of certain kinds of contracts, forms one more 
 exception. It may be that the special damage which is 
 the ground of the action must be such as cannnot be 
 redressed in an action for the breach of contract itself; 
 [ * 455] in other words, * that the contract must be 
 for personal services, or otherwise of such a kind that 
 an action against the contracting party would not afford 
 an adequate remedy. But then the remedy against the 
 VTTOngdoer will not be adequate either; so that there 
 does not appear to be much rational ground for this 
 limitation. The obvious historical connexion with the 
 action for enticing away a servant will not help to fix 
 the modern principle. Coleridge J. rightly saw that 
 there was no choice between facing the broader issues 
 now indicated and refusing altogether to allow that any 
 cause of action appeared. 
 
 American In America the decision in Lumley v. Gye has been, 
 
 doctrine. 
 
 (o) P. 391 aliove. 
 
 (2688) 
 
NEGLIGENCE OP CONTRACTOR TOWARDS STRANGER. 356 
 
 followed in Massachusetts (j)), and elsewhere, and is 
 generally accepted, with some such limitation as here 
 maintained. The rule " does not apply to a case of inter- 
 ference by way of friendly advice, honestly given ; nor 
 is it in denial of the right of free expression of opin- 
 ion" (q). 
 
 (b) Procuring a breach of contract, then, may be Damage to 
 actionable if maliciously done; or a contracting party may stranger by 
 indirectly through the contract, though not upon.it, have breach of 
 an action against a stranger. Can he become liable to <'°'>*'^'*<=*- 
 a stranger ? We have already seen that a misfeasance 
 by a contracting party in the performance of his con- 
 tract may be an independent wrong as against a stran- 
 ger to the contract, and as such may give that stranger 
 a right * of action (r). On the other hand a [ * 456] 
 breach of contract, as such, will generally not be a 
 cause of action for a stranger (s). And on this princi- 
 ple it is held by our courts that where a message is in- 
 correctly transmitted by the servants of a telegraph 
 company, and the person to whom it is delivered thereby 
 sustains damage, that person has not any remedy 
 against the company. For the duty to transmit and 
 deliver the message arises wholly out of the contract 
 with the sender, and there is no duty towards the re- 
 ceiver. Wilful alteration of a message -might be the 
 ground for an action for deceit against the person who 
 altered it, as he would have knowingly made a false 
 statement as to the contents of the message which 
 passed through his hands. But a mere mistake in 
 reading off or transmitting a letter or figure, though it 
 may materially affect the sense of the despatch cannot 
 be treated as a deceit (t). 
 
 " In America, on the other hand, one who receives Pogjtion of 
 a telegram which, owing to the negligence of the receiver of 
 
 (p) Walker r. Cronin (1871) 107 Mass. 555, a case very like 
 Bo wen v. Hall. 
 
 {'/) 107 JIass. 566. I owe the following additional references 
 to State reports to the kindness of an American friend: — Eice v. 
 Manley, 66 N. Y. (21 Sickels) 82; Benton v. Pratt, 2 Wend. 385 
 (see p. 261 above); Jones v. Blocker, 41! Ga. 331; Haskin v. Roy- 
 ster, 70 N. C. 601 ; Jones r. Starly, 76 N. C. 355; Dickson v. 
 Dickson, La. An. 1261 ; Burger v. Carpenter, 3 S. C. 7. 
 
 ()•) P. 445 above. 
 
 (s) The exceptions to this rule are much wider in America than 
 in England. 
 
 (t) Bicksonji. Renter's Telegram Co. (1877) 3 C. P. Div. 1, 
 confirming Playford v. V. K. Electric Telegraph Co. (1869) L. E. 
 • 4 Q. B. 706. 
 
 (2689) 
 
356 SPECIAL RELATIONS OF CONTRACT AND TORT. 
 
 erroneous telegraph company, is altered or in other respects un- 
 telegram: true, is invariably permitted to maintain an action 
 different against the telegraph company for the loss that he 
 Enrfand and sustains through acting upon that telegram: " the latest 
 U. S. commentator on the American authorities, however, 
 
 finds the reasoning of the English Courts difficult to 
 [ *457] answer (u). And the American * decisions 
 appear to rest more on a strong sense of public expedi- 
 ency than on any one definite legal theory. The sug- 
 gestion that there is something like a bailment of the 
 message may be at once dismissed. Having regard to 
 the extension of the action for deceit in certain English 
 cases (x), there is perhaps more to be said for the 
 ■ theory of misrepresentation than our courts have ad- 
 mitted ; 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 bound to know that errors in the transmission of 
 messages may naturally and probably damnify the re- 
 ceivers ? and am I not therefore bound, whether I am 
 forwarding the messages under any contract or not, to 
 use reasonable 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 delivery to the receiver of 
 those words or figures which the tender intended him 
 to receive ? If the affirmative answer be right, the re- 
 ceiver who is misled many have a cause of action, 
 namely for negligence in the execution of a voluntary 
 undertaking attended with obvious risk. But a nega- 
 tive answer is given by our own courts, on the ground 
 that the ordinary law of ne^igeneehas never been held 
 to extend to negligence in the statement 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 tele- 
 graph or otherwise, is nothing but a statement that cer- 
 tain words have been communicated by the sender to 
 the messenger for the purpose of being by him com 
 
 (») Gray on Communication by Telegraph (Boston, 3885) ?? 
 71-73, where authorities are collected. And see "Wharton on 
 Contracts, ^^791, 1056, who defends the American rule on some- 
 what novel speculative grounds. . Perhaps the common law ought 
 to have a theory of culpa in cimtrahendo, but Dr. Wharton's in- 
 genuity will not persuade many common lawyers that it has. 
 And if it had, I fail to see how tiiat could affect the position . of 
 parties between whom there is not even the offer of a contract. 
 
 (x) See especially Denton t: G. N. R. Co. (1856) 5 E. &B. 860: 
 25 L. J. Q. B, 129, p. 250 above. 
 (2690) 
 
MISTAKE IN DELIVERING TELEGRAMS. 357 
 
 municated to the receiver. * It may perhaps [ * 458] 
 be said against this that the nature" of telegraph busi- 
 ness creates a special duty of diligence in correct state- 
 ment, like that of a ti-ustee with regard to incumbrances 
 on the trust fund {y)\ so that an action as for deceit 
 will lie without actual fraud. But it would be better 
 to say that the systematic undertaking to deliver mes- 
 sages 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 representations of fact 
 made in the common intercourse of life, or the repeti- 
 tion 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 ques- 
 tion of contract or warranty. Such liability would not 
 necessarily be towards the receiver only, though dam- 
 age incurred by any other person would in most cases 
 be too remote. The Court of Appeal has for the pre- 
 sent 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 import- 
 ance, and until the House of Lords has spoken it is still 
 open to discussion. 
 
 In the present writer's opinion the American deci- xhe conflict 
 sions, though not all the reasons given for them, are considered on 
 on principle correct. The undertaking to transmit principle, 
 a sequence of letters or figure (which may compose 
 significant words and sentences, but also may be, 
 and often are, mere unintelligible symbols to the 
 transmitter) is a wholly difPerent thing from the 
 statement of an alleged fact or the expression of 
 * a professed opinion in one's own language. [ * 459] 
 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 {z). 
 If a man asserts as true that which he does not believe 
 to be true, that is deceit; and this includes, as we have 
 
 (y) Burrowes v. Lock, 10 Ves. 470, Bupra, p. 167. 
 
 {z) The law of defamation stands apart: but it is no exception 
 to the proposition in the text, for it is not a law requiring care 
 and caution in greater or less degree, but a law of absolute re- 
 sponsibility qualified by absolute exceptions ; and where malice 
 has to be proved, the grossest negligence is only evidence of malice. 
 
 (2691) 
 
358 SPECIAL RELATIONS OF CONTRACT AND TORT. 
 
 seen, making assertions as of his own knowledge about 
 things of which he is ignorant. -If he only speaks, and 
 purports to speak, according to his information and be- 
 lief, then he speaks for his own part both honestly and 
 truly, though this information and belief may be in 
 themselves erroneous, and though if he had taken ordi- 
 nary 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 them- 
 selves. 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 differ- 
 ence that the speaking or writing of a form of words is 
 an inciden t in the performance. If a medical practitioner 
 miscopies a formula from a pharmacopcBia or medical 
 treatise, and his patient is poisoned by the druggist 
 making it up as so copied, surely that is actionable neg- 
 ligence, 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 
 [ * 460] 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 palseographist might well be a direct and 
 natural cause of damage; if such a person, being em- 
 ployed under a contract with a solicitor, made a negli- 
 gent 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 damni- 
 fied, 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 aaalogous) than the mere reporting or re- 
 petition of supposed facts. There remains, no doubt, 
 the argument that liability must not be indefinitely ex- 
 tended. But no one has proposed to abolish the gen- 
 eral rule as to remoteness of damage, of which the im- 
 portance, it is submitted, is apt to be obscured by con- 
 triving hard and fast rules in order to limit the possible 
 combinations of the elements of liability. Thus it seems 
 (2692) 
 
EFFECTS OF EXTRANEOUS CONTRACTS. 359 
 
 that even on the American view damages could not be 
 recovered for loss arising out of an error in a ciphered 
 telegram, for the telegraph company would have no notice 
 of what the natural and probable consequences of error 
 would be (a). 
 
 Taking together all the matters hitherto discussed in Uncertainty 
 this chapter, it appears that different views and tendencies still remain- 
 have on different occasions prevailed even in the same ipS ™ Eng- 
 court, and that we are not yet in possession of a complete 1 . ' 
 and * consistent doctrine. Fleming's case (6) [ * 461] 
 is reconcilable, but only just reconcilable, with Foulkes's 
 case (c) and Dickson v. Renter's Telegram Co. (d), 
 though not directly opposed to Bowen v. Hall (e), is 
 certainly not conceived in the same spirit. 
 
 (C) There are likewise cases where an innocent and Character of 
 even a prudent person will find himself within his right, morally in- 
 or a wrong-doer, according: as there has or has not been nocent acts 
 a contract between other parties under which the pro- ^^_^''^^"- "J 
 perty or lawful possession of goods has been trans- contract. 
 .ferred. If a 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 inde- 
 feasible title by delivery over to a buyer or lender for 
 valuable consideration given in good faith (/). On the 
 other hand a man may obtain the actual control and 
 apparent dominion of goods not only without having 
 acquired the property, but without any rightful trans- 
 fer 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 
 (g), or the agent of that person (h). 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 in- 
 
 («) Cp. Sanders v. Stuart (1876) 1 C. P. D. 326. 
 
 (b) 4Q. B. Div. 81. 
 
 (c) 5 C. P. Div. 157. 
 
 (d) 3 C. P. Div. 1. 
 
 (e) 6 Q. B. Div. 333. . 
 
 (/) See the principle explained, and worked out in relation to 
 complicated facts, in Pease v. Gloahec. L. E. 1 P. C. 219. 
 (o) Cundv V. Lindsay, 3 App. Ca. 459. 
 (h) Hardman v. Booth, 1 H. & C. 803; 32 L. J. Ex. 105. 
 
 (2693) 
 
360 SPECIAL RELATIONS OE COHTRACT AND TORT. 
 
 [ * 462] nocently, at his peril. In these cases * there 
 may be hardship, but there is nothing anomalous. It 
 is not really a contract between other parties that de- 
 termines whether a legal wrong has been committed or 
 not, but the existence or non-existence of rights of pro- 
 perty 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 possession (/) without any contract. The 
 question is purely of the distribution of real rights as 
 aifording occasion for their infringement, it may be an 
 unconscious infringement. • A man cannot be liable to 
 A. for meddling with A.'s goods while there is an un- 
 settled '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 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 effect 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, ia 
 only part of the incidents determining the legal situa- 
 tion on which the alleged tortious act operates. There 
 are two questions, always conceivably and often practi- 
 cally 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 
 [ * 463] *in the affirmative to make out the plaintiff's 
 claim, and they depend on quite different principles 
 (g). There is therefore no complication of contract 
 and tort in these cases, but only — if we may so call 
 it — a dramatic juxtaposition. 
 
 IV. — Measure of Damages and other Incidents of the 
 Remedy. 
 
 Measure of With regard to the measure of damages, the same 
 
 damages, &c. 
 
 (/ ) It will be remembered that the essence of trespass de bonis 
 asportatis is depriving the true owner of possession : a thief has 
 possession in law, though a wrongful possession, and the lawful 
 possessor of goods cannot at common hxw steal them, except in the 
 cases of "breaking bulk " and the like, T\here it is held that the 
 fraudulent dealing determines the bailment. 
 
 (g) See passim in the opinions delivered in Hollins v. Fowler, 
 L. E. 7 H. L. 757. 
 
 (2694) 
 
MKASURE OF DAJIAGK8, ETC. 361 
 
 principles are to a great extent applicable to cases 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 deter- 
 mined, as we have seen, by the extent to which the 
 hai-m suffered by the plaintiff was a natural and pro- 
 bable consequence of the act. It seems on the whole 
 that this is also the true measure of liability for breach 
 of contract; the judgment of what is natural and pro- 
 bable 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 quite recent opinions of considerable auth- 
 ority casting doubt on the rule of Hadley v. Baxendale 
 (h), and tending to show that a contracting party can 
 be held answerable for special consequences 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 defend- [ * 464] 
 ant fails to deliver — would not of itself suffice (i). 
 
 But the Court of Appeal has more lately disapproved Eules as to 
 this view, pointing out that a contracting party's liabil- consequeu- 
 ity to pay damages for a breach is not created by his ^i'^l damage: 
 agreement to be liable, but is imposed by law. "A per- „i"^„ -"^ . 
 son contemplates the performance and not the breach tract and 
 of his contract; he does not enter into a kind of second tort. 
 contract to pay damages, but he is liable to make good 
 those injuries which he is aware that his default may 
 occasion to the contractee " (k). 
 
 The general principle, therefore, appears to be ' the 
 same in contract as in tort, whatever difficulty may be 
 
 • (h) 9 Ex. 341; 23 L. J. Ex. 179 (1854). 
 
 (i) Home V. Midland E. Co. (1873) Ex. Ch., L. R. 8 C. P. 131. 
 • (/c) Hydraulic Engineering Co. v. McHaffie (1878) 4 Q. B. Div. 
 670, per Bramwell L. J. at p. 674; Brett and Cotton L.J J. are no 
 less explicit. The time to be looked to is that of entering into 
 the contract : il>. In McMahon v. Field (1881) 7 Q. B. Biv. ,591, 
 the supposed necessity of a special undertaking is not put forward 
 at all. Mr. J- D. Mayne, though he still (4th ed. 1884) holds by 
 Home V. Midland E. Co., very pertinently asks where is the con- 
 sideration for such an undertaking. 
 
 (2695) 
 
362 
 
 SPECIAL RELATIONS OF CONTRACT AND TORT. 
 
 Vindictive 
 character of 
 action for 
 breach of 
 promise of 
 marriage. 
 
 found in working it out in a wholly satisfactory man- 
 ner in relation to the various combinations of facts oc- 
 curring in practice (I). 
 
 One point may be suggested as needful to be . borne 
 in mind to give a consistent doctrine. Strictly speak- 
 ing, 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 (m). 
 
 [ * 465] * Exemplary or vindictive damages, as a rule, 
 cannot be recovered in an action on a contract, and it 
 makes no difFerence that the breach of contract is a mis- 
 feasance capable of being treated as a wrong. Actions 
 for breach 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 
 (n). Strictly the damages are by way of compensation, 
 but they are "almost always considered by the jury 
 somewhat in poenam" (o). Like results might conceiv- 
 ably follow in the case of other breaches of contract ac- 
 companied with circumstances of wanton injury or con- 
 tumely. 
 
 Contracts on In another respect breach of promise of marriage is 
 
 -which exe- like a tort: executors cannot sue for it without proof 
 
 cutors cannot qJ special damage to their testator's personal estate, 
 sue . . 
 
 "Executor 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 wrongs 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" (»). The same rule appears to hold 
 
 as Concerning injuries to the person caused by unskil- 
 
 (l) As to the treatment of consequential damage where a false 
 statement is made which may be treated either as a deceit or as a 
 broken warranty, see Smith k. Green (]87o) 1 C. P. D. 9:2. 
 
 (m) According to Alderson B. in Hadley v. Baxendale, it is the 
 knowledge of "special circumstances under which the contract 
 was actually made " that has to be looked to, i. e. the probabil- 
 ity of the consequence is only matter of inference. 
 
 {«) See Berry v. Da Costa (1866) L. R. 1 C. P. 331. 
 
 (o) Le Blanc J. in Chamberlain v. Williamson (1814) 2 M. & 
 S. 408, 414. 
 
 (p) Chamberlain v. Williamson, 2 M. & S. at p. 115. 
 (2696) 
 
DAMAGES. 363 
 
 Jul medical ti-eatment, negligence of carriers of passen- 
 gers or their servants, and the like, although the duty 
 to be performed was under a contract (q). Positive au- 
 thority, however, has not been found * on the [ * 466] 
 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 wi-ong is a chose in action ; 
 neither can the distinction between hquidated and un- 
 liquidated damages afiPord 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 
 ■otherwise a cause of action for a tort which a person 
 might have sued on in his lifetime survives to his per- 
 sonal representatives. 
 
 Where there was one cause of action with an option 
 to sue in tort or in contract, the incidents of the remedy 
 generally were determined once for all, under the old 
 common law practice, by the plaintiff's election of his 
 form of action. But this has long ceased to be of prac- 
 tical importance in England, and, it is believed, in most 
 jurisdictions. 
 
 (g) Ibid.; 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. Drake (1841) 8 
 M. & W. at p. 854; 1 Wms. Saund. 242; and see more in Will- 
 iams on Executors, pt. 2, bk. 3, ch. 1, ? 1; and Raymond t'. Fitch 
 {1835) 2 C. M. & E. 588. 
 
 (3697) 
 
(3«5) 
 
 * APPENDIX A. [*467] 
 
 HISTORICAL NOTE ON THE CLASSIFICATION OF THE FORMS OF 
 PERSONAL ACTION. 
 
 (By Me. F. W. Maitland.) 
 
 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 prelimi- 
 nary considerations are had in mind. 
 
 (1.) Between the various forms of action there were in old time many pro- 
 cedural differences of serious practical importance. Some 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 c. g., Nil debet, or Non assuhpsH, or Not 
 
 ffuilty ? 
 
 (c) What 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 pro- 
 ■cedure 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 leg- 
 islator calmly devising apt remedies for all conceivable wrongs ; rather it -w as 
 the outcome of the long, and not always * bloodless, struggle whereby [ * 468] 
 the English king at various times and under various .pretexts drew into his 
 own court (and so drew away from other courts communal, seignorial, eccle- 
 siastical), almost all the litigation of the realm. Then, in the thirteenth cen- 
 tury, the growth of Parliament prevented for the future any facile invention of 
 new remedies. To restrain the king's writ-making power had been a main ob- 
 ject with those who .strove for Parliaments (a). The completeness of the par- 
 liamentary victory is marked by the well-known clause in the Statute of West- 
 minster II. (h) which allows the Chancery to vary the old forms so as to suit 
 
 (a) See a complaint by the bishops in 1257, Mat. Par. Chron. Maj. (cd. 
 Luard) vol. vi. p. 363. New writs contrary to law are made in the Chancery 
 without the consent of the council of the realm. So under the provisions of 
 Oxford (1258) the Chancellor is to swear that he will seal no writs save writs of 
 course, without the order of the king and of the council established by the pro- 
 visions. See Stubbs, Select Charters, Part 6, No. 4. 
 
 [h) Stat. 13 Edw. 1 (1285) c. 24. 
 
 (2699) 
 
366 
 
 APPENDIX A. 
 
 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 ac- 
 tion, 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 were not origi- 
 nally intended. 
 
 Now to Bracton writing in the middle of the thirteenth century, while the 
 king in his chancery and his court still exercised a considerable power of mak- 
 ing and sanctioning new writs (c), it may 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 be (1) ex contractu vel quasi (2) ex maleficio tel 
 quasi {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 he 
 says 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 epitomators Britton (e) and Fleta (/). Througboufc the middle ages 
 [ * 469] * the theory that personal actions may be arranged under these head- 
 ings seems to remain a sterile, , alien theory. It does not determine the ar- 
 rangement of the practical books, of the Register, the Old Natura 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 im- 
 portant outline. 
 
 The truth seems to be that the most natural classification of writs was quite 
 diiferent. It would give us as its two main headings — (a) Praecipe; (b) Si ie 
 fecerit securum. 
 
 (a) In one class we have writs beginning with Praecipe quod reddat—faciat — 
 permittat. The sheriff is to bid the defendant render (do, permit) something, 
 and only if this command be ineffectual will the action proceed. To this class 
 belong the writ of right and other proprietary real actions, also debt (g), de- 
 tinue, account and covenant. 
 
 (b) In the other class the vreit 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 Blackstone owed a good deal. Sir Henry Finch's Discourse on 
 Law (7i) 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 be- 
 cause the king's peace has been broken. 
 
 But in order to assure ourselves that the line between breaches of contract- 
 ual obligation and other causes of action cannot have been regarded as an ele- 
 mentary outline of the law by our mediteval lawyers, we have only to recall 
 
 (c) His doctrine as to the making of new writs will be found on Ms. 413 
 
 414 ii. See fol. 438 6 for a writ invented by William of Raleigh. In several 
 other cases Bracton notices that the writ has been lately devised by resolution, 
 of the Court (rfe consilio curiae), e. g. the Quare Ejecit, fol. 220. 
 
 (d) Fol. 102. 
 
 (e) Vol. i. p. 156. Britton's equivalent for malefieium is trespass, 
 if) Fol. 120. 
 
 (g) The writ of debt in Glanville, lib. 10, cap. 2, is just the writ of right. 
 with the variation that a certain sum of money due is substituted for a certain 
 quantity of land. There may be trial by battle in Debt ; see lib 10 cap 5 
 
 (h) Editions in 1613, 1636, 1678, and 1759. In the last of these see pp. 257,. 
 261, 284, 296. Blackstone notices this classification in Comment vol iii n' 
 274. ■ ■ • i"' 
 
 (2700) 
 
FORMS OF ACTION. 367 
 
 the history of assumpsit. "We are obliged to say either that at some moment 
 assumpsit ceased to he an action ex malejkio and became an action ex contractu, 
 or ( and this seems liistorically the better way of putting it) that it was an ac- 
 tion fouuded not on contract, but on the tort done by breach of some contrac- 
 tual 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 * actions founded on non-performance [ * 470] 
 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 asporta- 
 tions, far away from debt and covenant (i). 
 
 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. Brac- 
 ton, fixing our terminology for all time, had said (k) 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 Roman 
 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 [1). Opinion was 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 debit and detinet, but in the detinet only (»). A middle opinion was of- 
 fered by the learned Serjeant Manning (o) that detinue sur bailment was ex 
 eoniraciu, and detinue sur trover was ex delicto; this would have allowed the 
 question to turn on the choice made by the plaintiff's pleader between two un- 
 traversable fictions. A recent decision of the Court of Appeal, (jj) shows that 
 the difficulty cannot occur in its old form. We are no longer, even if once we 
 were compelled to say that the claim for delivery of a chattel is always ex con- 
 tractu or always ex delicto, though 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 iree to say that such a claim may be actio in rem. 
 
 * Because of the wager of law assumpsit supplanted debt; so also * for[ * 471 ] 
 a long whUe the work of detinue was done by trover. That trover was in form 
 ex delicto seems not to have been doubted, still it often had to serve the purpose 
 of a mndicaiio. As Lord Mansfield said (g) , " Trover is in form a tort, but in sub- 
 stance an action to try property. . . An action of trover is not now ex 
 malejicio, thoirgh 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 Roman scheme was not likely to prosper. Nevertheless the theory that the 
 personal actions can be grouped under contract and tort made way as the pro- 
 cedural differences between the various forms were, in one way and another. 
 
 (i) Registrum, fol. 109 6; writs for not cutting down trees and not erecting 
 a stone cross as promised, are followed immediately by a writ for entering a 
 warren and carrying off goods by force and arms. 
 
 (h) Fol. 102 b. 
 
 [l] Kettle V. Bromsall (1738) Willes 118; Mills v. Graham (1804) 1 B. & P. 
 N R 140; Gledstane v. Hewitt (1831) ITyr. 445r Broadbent v. Ledward 
 (1839 11 A. & E. 209; Clements v. Flight (1846) 16 M. & W. 42. 
 
 (m) Walker v. Needham (1841) 4 Sc. N. R. 222; 3 Man. & Gr. 557; Danby u. 
 Lamb (1861) 11 0. B. N. S. 423. 
 
 (rs) " Ajid indeed a writ of debt in the detinet only, is neither more nor less 
 than a mere writ of detinue." Blackst. Comm. iii. 156. 
 
 (o) 3 Man. & Gr. 561, note. 
 
 (») Bryant v. Herbert (1878) 3 C. P. Div. 389, reversing S. C. ibid. 189. 
 
 \q) Hambly «. Trott (1776) 1 Cowp. 371, 373, 374. 
 
 (2701) 
 
368 APPENDIX A. 
 
 oWiterated. Blaokstone states the theory (r), hut 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 thj-ee contexts. 
 
 1. As to the joinder of actions. We find it said at a comparatively early 
 day that "causes upon contract which are in the right and causes upon a tort 
 cannot be joined ' ' («)• But the rules regulating this matter were complicated, 
 and could not be reduced to this simple principle. In the main they turned 
 upon those procedural 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 (.r), 
 the defendant was liable to fine, could not be joined with one in which he could 
 only be amerced. Assumpsit could not be joined with debt; on the other hand 
 [ * 472] debt * could be joined with detinue (y). This matter once very fertile 
 of disputes has become altogether obsolete. 
 
 2. As to the survival of actions (a) against and (b) for personal representatives. 
 Here again it may be doubted whether the line of practical importance has ever 
 been that between contract and tort, though the latter has often been mentioned 
 in this context. 
 
 (a) If we look back far enough we find that it was only by slow degrees that 
 the e.xecutor came to represent the testator in at all u general way (z). It was, 
 for instance, a rule that the executor could not be sued in debt if the testator 
 could have waged his law. At one time and before the development of as- 
 sumpsit, this must have meant that the executor could hardly ever be sued for 
 money due upon a simple contract. In Coke's day it was still arguable that 
 assumpsit would not lie against the executor (a), and not until the contrary had 
 been decided was it possible to regard the executor as bearing in a general way 
 the contractual liabilities of the testator. On the other hand it seems to have 
 been quite as early established that the executor could be made to answer for 
 some causes of action which Avere not breaches of contract, i. c , where the es- 
 tate had been increased by the proceeds of the testator's wrong-doing (i). But 
 so long as the forms of action existed they were here of importance. Thus the 
 executor could not have been sued in trespass or trover though the facts of the 
 
 (r) " Personal actions are such wherebj' a man claims a debt, or personal duty, 
 or damages in lieu thereof; and likewise whereby a man claims a satisfaction 
 in damages for some injury done to his person or property. The former are 
 said to be founded on contracts, the latter upon torts or wrongs. ' ' Comm. iii. 
 117. 
 
 (s) Ihid. 153. 
 
 (i) Thusin Tidd's Practice (chap, i.) detinueis treated as ex deUcto; in Chittj''s 
 Pleading (chap, ii.) it is classed as ex contractu, but hesitatingly. 
 
 [u] Deuison v. Ealphson (1682) 1 Vent. 365, 366. 
 
 (x^ 5 & 6 W. & M. c. 12, abolishing the capiatur pro fine. 
 
 (y) The learning on this topic will be found in the notes to Coryton v. Lithe- 
 bye, 2 Wms. Saund. 117 d. See also the observations of Bramwell L. J. iu 
 Bryant r. Herbert, 3 C. P. Div. 389-391. 
 
 (z) See Bracton, fol. 407 ft. 
 
 (a) Pinchon's Case (1611) 9 Rep. 86 ft. By this time the province within which 
 wager of law was permitted had been so much narrowed by judicial decision 
 that it had become possible to regard as merely procedural the rule as to debt 
 against executors stated above. 
 
 (ft) Sir Henry Sherrington's Case (temp. Eliz. ) ^av. 40. See remarks on this 
 case and generally on this piece of history by Bowen L. J. in Phillips r. Hom- 
 fray, 24 Ch. Div. 439, 457. 
 
 (2702) 
 
EORMS OF ACTION. 369 
 
 case were such that he could have been sued in assumpsit for money had and 
 received (<■). Trespass, it may be remembered, had but very gradually become 
 a purely civil action; to start with it vras at least in part a criminal proceeding: 
 so late as 1G94 the defendant was, in theory, liable to fine and imprisonment 
 (d) • criminal *proceedings founded on the testator's misconduct could [ * 473] 
 not be taken against the execntor. 
 
 (b) As regards the other question, what actions sur^"ive for an executor or 
 administrator, we find it early said that at common law actions in contract do 
 survive while actions in tort do not (<•); but already in 1330 a statute, which 
 was very liberally construed, had given the executor some actions which un- 
 doubtedly were the outcome of tort (/). On the other hand it has been held 
 even in the present century that (apart from all question as to real estate) an 
 action for breach of contract does not necessarily survive for the personal repre- 
 sentative; it was held that an administrator could not sue for a breach of prom- 
 ise to marry the intestate, that breach not having dimiinished the estate (g). 
 The present state of the law as to the survival of actions is discussed above (A). 
 
 3. Several discussions as to the line between contract and tort were occa- 
 sioned by the rule that while joint contractors must be sued jointly the liabil- 
 ity of joint tort-feasors is joint and several {i). The earliest authority draws 
 the distinction between ' ' praecipe quod reddat ' ' and debt on the one hand, and 
 '■ trespass et huiusmodi " on the other (k). But the antithesis of contract and 
 tort crops up in the seventeenth century (l). A decision (m) of Lord Stansfield 
 in 1770, that the objection to non-rejoinder of all joint contractors as defend- 
 ants can only be taken by plea in abatement deprived this matter of much of 
 its importance. Still the question whether there has been a breach of a joint 
 contract or a tort for which several are 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. The first statute 
 which recognized this doctrine was seemingly the County Courts Act, 1846 
 (o). Here, in a section dealing with costs, the antithesis is " founded on 
 contract,'" "founded on tort." The County Courts Act of 1850 (p) fell back 
 on an enumeration of the forms of action, placing covenant, debt, detinue and 
 assumpsit in one class, and trespass, trover and case in another class. The 
 * Common Law Procedure Act, 1852 (q), assumes in its schedule of [ * 474] 
 forms that actions are either "on contracts," or "for wrongs independent 
 of contract;" but sect. 74 admits that " certain causes of action may be consid- 
 ered to partake of the character both of breaches of contract and of wrongs;" 
 
 (c) Hambly v. Trott, 1 Cowper 371 ; Phillips r. Homfray, «Jj sup. 
 
 (d) Stat. 5 & 6 W. & M. c. 12. The penal character of the writ of trespass 
 is well shown by the clause of theStatutum Walliae introducing.that writ into 
 "Wales. " Justitiarius . .si invenerit reum culpabilem, castiget eum per 
 prisonam vel per redemptionem vel per misericordiam, et per dampna laeso 
 restituenda secundum qualitatem et quantitatem delicti, ita quod castigatio 
 ilia sit aliis in exemplum, et timorem praebeat delinquendi. " 
 
 (e) Le Mason v. Dixon (1627) W. Jones, 173. 
 
 (/) Stat. 4 Edw. 3, c. 7. De bonis asportatis in vita testatoris. 
 
 (g) Chamberlain v. Williamson (1814( 2M. &. S. 408. 
 
 (h) P. 56. 
 
 (i) See notes to Cabell v. Vaughan, 1 Wms. Saund. 291. 
 
 (k) Br. Abr. Besponder, 54. 
 
 (1) Bosen v. Sandford, 3 Salk. 203; 1 Shower 101; Rich v. Pilkington, Carth. 
 171; Child v. Sands, Carth. 294; Bastard v. Hancock, Carth. 361. 
 
 (m) Kice v. Shute, 5 Burr. 2611. 
 
 (n) See remarks of Lindley L. J. Partnership, 4th ed. vol. i. p. 373. 
 
 (o) 9 & 10 Vict. c. 95, s. 129. 
 
 (p) 13 & 14 Vict. c. 61, s. 11. 
 
 (2) 15 & 16 Vict. c. 76. 
 
 24 LAW OF TOETS. (2703) 
 
370 APPENDIX A. 
 
 some very needless litigation miglit have been saved had a similar admission 
 heeu made in other statutes. 
 
 By the Comity Courts Act of 1856 (r), costs in a certain event were made to 
 depend upon the question whether the actidn 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." 
 
 Lastly a section, which is still in torce, of the County Courts Act, 1867 (/), 
 draws a distinction as to costs between actions "founded on contract," and 
 actions "founded on tort." These provisions must have occasioned more costs 
 than they have saved. 
 
 The practical upshot, if any, of these antiquarian remarks is that the coiirts 
 of the present day are very free to consider the classification of causes of action 
 without paying much regard to an attempt to classify the now obsolete forms 
 of action, an attempt which was never important or very successful; an at- 
 tempt which, as we may now think, was foredoomed to failure, 
 
 19 & 20 Tict. c. 108, s. 30. 
 (s) 23 & 24 Vict. c. 126, s. 34. 
 
 {t) 3t) & 31 Vict. c. 142, s. 5. Recent decisions are Bryant v. Herbert, 3 C. 
 P. D. 189, 389; Pontifex u. Midland E. Co. 3 Q. B. D. 23; Fleming r. Manches- 
 ter, &c. E. Co. 4 Q. B. Div. 81. 
 
 (2704) 
 
(371) 
 
 * APPENDIX B. [ * 475] 
 
 ElMPLOYERS' LIABILITY ACT, 1880. 
 
 (43 & 44 Vict. c. 42.) 
 
 An Act to c.vfcnil and regulate the Liahility of Emploi/ers to make Compensation for 
 Personal Injuries sufferedby Workmen in their service. 
 
 [7th September lf^80.] . 
 
 Be it enacted by the Queen's most Excellent Majesty, by and with the advice 
 and consent of the Lords Spiritual and Temporal, anil Commons, in this present 
 Parliament assembled, and by the authority of the same, as follows : 
 
 1. ^Vhere after the commencement of this Act personal injury is caused to a 
 ■workman 
 
 (1.) By reason of any defect in the condition of the ways (a), works, machi- 
 nery, or plant connected with or used in the business of the employer 
 (i); or 
 (2.) By reason of the negligence of any person in the service of the employer 
 who has any superintendence entrusted to him (e) whilst in the ex- 
 ercise of such superintendence (d) ; or 
 (3.) By reason of the negligence of any person in the service of the employer 
 to whose orders or dii'ections the workman *at the time of the [ •■' 47(j] 
 injury was bound to conform, and did conform, where such injury re- 
 sulted from his having so conformed (e); or 
 (4.) By reason of the act or omission of any person in the service of the em- 
 ployer done or made in obedience to the rules or byelaws of the em- 
 ployer, or in obedience to particular instructions given by any person 
 delegated with the authority of the employer in that behalf ; or 
 
 (a) An object left sticking out over a way is not a defect in the condition of 
 the way; McGiffin v. Palmer's Shipbuilding Company, 10 Q. B. D. 5. "De- 
 fect in condition" includes unfitness for safe use, whether from original fault 
 of structure or want of repair; Heske v. Samuelson, 12 Q. B. D. .30; or insuf- 
 ficiency of any part of the plant for the particular purpose it is being used for; 
 Cripps V. Judge, 13 Q. B. Div. 5-(3. As to sufficiency of evidence on this point, 
 Paley v. Gamett, 16 Q. B. D. .5:2. A dangerous or improper collocation of 
 things, not defective in themselves, may be a defect; Weblin v. Ballard, 17 Q. 
 B. D. 122; but see Thomas v. Quartermaine, ib. 414. 
 
 (b) 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 ; 
 Howe )'. Finch, 17 Q B. D. 187. 
 
 (c) See interpretation clause, sect. 8. 
 
 (d) Osborne v. Jackson, 11 Q. B. D. 619. 
 
 (e) Orders or directions within the meaning of this sub-section need not be 
 express or specific; Milward v. Midland E. Co. 14 Q. B. D. 68. 
 
 (2705) 
 
372 APPENDIX B. 
 
 (5.) By reason of the negligence of any person in the service of the employer 
 who has the charge or control ( / ) of any signal, points, locomotive 
 engine, or train upon a railway (</), 
 the workman, or in case the injury results in death, the legal personal repre- 
 sentatives of the workman, and any persons entitled in case of death (h), shall 
 have the same right of compensation and remedies against the employer as if 
 the workman had not been a workman of nor in the service of the employer, 
 nor engaged in his work (i). 
 
 2. A workman shall not be entitled under this Act to any right of compensa- 
 tion or remedy against the employer in any of the following cases, that is to 
 say, 
 
 (1.) Under sub-section on eof section one, unless the defect therein mentioned 
 arose from, or had not been discovered or remedied owing to the negli- 
 gence of the employer, or of some person in the service of the employer, 
 and entrusted by him with the duty of seeing that the ways, works, 
 machinery, or plant were in proper condition {k). 
 [ * 477] (2. ) Under sub-section four of section one, unless the injury * re- 
 sulted from some impropriety or defect in the rules, byelaws, or in- 
 structions therein mentioned ; provided that where a rule or byelaw 
 has been approved or has been accepted as a proper rule or byelaw by 
 one of Her Majesty's Principal Secretaries of State, or by the Board of 
 Trade or any other department of the Government, under or by virtue 
 of any Act of Parliament, it shall not be deemed for the purpose of 
 this Act to be an improper or defective rule or byelaw. 
 
 (3.) In any case where the workman knew of the defect or negligence which 
 caused his injury, and failed within a reasonable time to give, or cause 
 to be given, information thereof to the employer or some person superior 
 to himself in the service of the employer, unless he was aware that the 
 employer or such superior already knew of the said defect or negli- 
 gence (I). 
 
 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, during 
 the three years preceding the injury, of a person in the same grade employed 
 during those years in the like employment and in tlie 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 injury 
 shall not be maintainable unless notice (m) that injury has been sustained is 
 given within si.x 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 case of death, 
 
 ( f ) The duty of oiling and cleaning noints is not "charge or control "; Gibbs 
 V. G. W. R. Co. 11 Q. B. Div. 22; 12 Q' B. D. 208. Anyone ha\'ing authority 
 to set a line of carriages or trucks in motion, by whatever means, is in charge 
 or control of a train; Cox v. G. W. E. Co. 9 Q. B. B. 1U6. 
 
 ((/) ' ' Railway ' ' has its natural sense, and is not confined to railways made 
 or used by railway companies; Doughty v. Firbank, 10 Q. B. D. 338. 
 
 (/i) A workman can bind himself by contract with his employer not to claim 
 compensation under the Act, and such contract is a bar to any claim under 
 Lord Campbell's Act; Griflaths v. Dudley, 9 Q. B. D. 357. 
 
 ()■) This evidently means only that the defence of "common employment" 
 shall not be available for the master ; not that the facts and circumstances of 
 the workman's employment are not to be considered, e. g. if there is a question 
 of contributory negligence. 
 
 (k) See Kiddle v. Lovett, 16 Q. B. D. 605, 610. 
 
 (I) This sub-section creates a new and special statutory defence, see "Weblin v. 
 Ballard, 17 Q. B. D. 122, 125. 
 
 (m) This notice must be in writing; Moyle d. Jenkins, 8. Q. B. D. 116, and 
 must contain in writing all the particulars required by sect. 7; Keen v. Mill- 
 wall Dock Co. 8 Q. B. Div. 482. 
 
 (2706) 
 
employers' liability act, 1880: 373 
 
 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 work- 
 man, or representatives of a workman, or persons claiming by, under, or tlu-ough 
 a workman in respect of any 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 cause of action; and where an action has been brought under tliis Act by 
 any workman, or the representatives of any workman, or any person claiming 
 by, under, or through such workman, for * compensation in respect of [ * 478] 
 any cause of action arising under this Act, and payment has not previously 
 been made of any penalty or part of a penalty under any other Act of Parlia- 
 ment in respect of the same cause of action, such workman, representatives, or 
 person shall not be entitled thereafter to receive any penalty or part of a 
 penalty under any other Act of Parliament in respect of the same cause of 
 a<?tion. 
 
 6. — (1.) Every action for recovery of compensation under this Act shall be 
 brought in a county court, but may, upon the application of either plaintiff or 
 defendant, be removed into a sujierior court in like manner and upon the 
 same conditions as an action commenced in a county court may by law be 
 removed (»). 
 
 (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 a county court, and otherwise preventing multiplicity of such actions, 
 rules and regulations may be made, varied, and repealed from time to time in 
 the same manner as rules and regulations for regulating the practice and pro- 
 cedure in other actions in county courts. 
 
 "County court" shall, with respect to Scotland, mean the "Sheriff's Court," 
 and shall, with respect to Ireland, mean the "Civil 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 Sheriff Courts (Scotland) 
 Act, 1877. 
 
 In Scotland the sheriff may conjoin actions arising out of the same occur- 
 rence 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 name and 
 address of the person injured, and shall state in ordinary language the cause 
 of the injury (o) and the date at which it was * sustained, and shall [ * 479] 
 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. 
 
 The notice may also be served by post by a registered letter addressed to the 
 person on whom 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 
 
 (n) Proceedings in the county court cannot be stayed under sect. 39 of the 
 County Courts Act, 1856. That section apples only to actions which might 
 have been brought in the Superior Court; Eeg. v. Judge of City of London 
 Court, 14 Q. B. D. 818; affirmed in C. A., W. N. 1885, p. 95. As to grounds 
 for removal, see Munday v. Thames Ironworks Co., 10 Q. B. D. 59. 
 
 (o) It need not state the cause of action with legal accuracy ; Clarkson v. Mus- 
 grave, 9 Q. B. D. 386; cp. Stone v. Hyde, ib. 76. 
 
 (2707) 
 
374 APPENDIX B. 
 
 course of post; and, in proving tlie service of sucli notice, it shall be. sufficient 
 to prove that the notice was jiroperly addressed and registered. 
 
 Where the employer is a body of persons corporate or unincorporate the no- 
 tice shall be served by delivering the same at or by sending it by post m a 
 rcKistcred letter addressed to the oface, or, if there be more than one oface, any 
 one of the offices of such body. 
 
 A notice under this section shall not be deemed invalid by reason of any de- 
 fect or inaccuracy (p) 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 dcfuct or inaccuracy was for the purpose of misleading. 
 
 8. For the purposes of this Act, unless tlie context otherwise.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 ordinarly engaged in manual labour (5) : 
 
 The expression "employer" includes a body of persons corporate or unin- 
 corporate : 
 
 The expression "workman" means a railway servant and any person to 
 whom the Employers and Workmen Act, 1875, applies (r). 
 [ * 480 J * 9. This Act shall not come into operation until the first day of Jan- 
 uary one thousand eight hundred and eighty-one, which date is in this Act re- 
 ferred to as the commencement of this Act. 
 
 10. This Act may be cited as the Employers' Liability Act, 1880, and shall 
 continue in force till the thirty-first day of December one thousand eight hun- 
 dred and eighty-seven, and to the end of the then next Session of Parliament, 
 and no longer, unless Parliament shall otherwise determine, and iill actions 
 commenced under this Act before that period shall be continued as if the said 
 Act had not expired. 
 
 (p) Stone )>. Hyde, 9 Q. B. D. 76; Carter v. Drysdale, 12 Q. B. D. 91. 
 
 (q) Shaffers r. General Steam Xavigation Co. 10 Q. B. T). 356; cp. and dist. 
 Osborne v. Jackson, 11 Q. B. D. 619. The difference between a foreman who 
 sometimes lends a hand and a workman who sometimes gives directions is in 
 itself, of course, a matter of fact. 
 
 (r) "Any person [not being a domestic or menial servant] who, being a 
 labourer, servant in husbandry, journeyman, artificer, handicraftsman, miner, 
 or otherwise engaged in manual labour, whether under the age of twenty-one 
 years or above that age, has entered into or works under a contract with an 
 employer, whether the contract be made before or after the passing of this Act, 
 be express or implied, oral or in writing, and be a contract of service or a con- 
 tract personally to execute any work or labour;" 38 & 39 Vict. c. 90, s. 10. 
 This definition does not include an omnibus conductor; Morgan v. London 
 General Omnibus Co., 13 Q. B. Div. 832. 
 
 (2708) 
 
(375) 
 
 * APPENDIX C. 1*481] 
 
 STATUTE OF LIMITATIONS, 
 
 AnActefor lymytacion of Accioiis, and for avoyding of Suits in Lawe. 
 (21 James I. c. 16.) 
 
 S. 3. And be it further enacted, that all accions of trespas, quare clausum 
 f regit, all accions of trespas, detinue, accion sur trover and replevyn for taking 
 away of goods and cattell, all accions of accompt and uppon the case, other 
 then such accompts 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 specialtie, all actions for arreriiges of rents, and 
 all actions of assault and menace battery wounding and imprisonment, or any 
 of them which shal be sued gr brought at any tyme after the end of this pre- 
 sent session of parliament shal be commenced and sued within the tyme and 
 lymj-tacion hereafter expressed, and not after (that is to sale) the said accions 
 uppon 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 accion of trespas, quare clauftumf regit, yvithinthveejeaTes next after the end 
 of this present session of parliament, or within sixe yeares next after the cause 
 of such accions or suite, and not after; and the said accions of trespas of as- 
 sault and 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 yeara 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 accion * of trespas [ * 482] 
 detinue accion sur trover replevin accions of accompts accions of debts, accion 
 of trespas for assault menace battery wounding or imprisonment, accions uppon 
 the case lor words, bee or shalbe at the tyme of any such cause of accion given 
 or accrued, fallen or come within the age of twentie-one yeares, feme covert, 
 non composs mentis, imprisoned or beyond the seas, that then such person or 
 persons shalbe at libertieto bring the same accions, soe as they take the same 
 within such times as they are 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 have done. 
 
 An Act for the Amendment af the Law and the better Advancement of Justice. 
 
 (4 & 5 Anne, c. 3) (a). 
 
 S. 19. And be it further enacted, by the authority aforesaid, that if any per- 
 son 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 tres- 
 pass, 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 
 
 (2709) 
 
376 APPENDIX C. 
 
 contract, without specialty of debt for arrearages of rent, or assault, menace, 
 battery, wounding and imprisonment, or any of them, be or shal^ be at the 
 time of any 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 suit or 
 action, shall be at liberty to bring the said actions against such person and per- 
 sons 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 lim- 
 ited 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 King James the 
 First. 
 
 [ * 483] * An Act to amend the Laws of England and Ireland affecting Trade and 
 Commerce. 
 
 (Meecantile Law Amendment Act, 1856, 19 & 20 Vict. c. 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 be deemed to be 
 beyond seas within the meaning of the Act of the fourth and fifth yeais of the 
 reign of Queen Anne, chapter sixteen (6), or of this Act. 
 
 (a) So in the Statutes of the Realm and Revised Statutes; c. 16 in other edi- 
 tions. 
 
 (h) This is chap. 3 in the Statutes of the Realm. 
 
 (2710) 
 
(377) 
 
 *APPENDIX D. [ * 484] 
 
 CONTRIBUTORY NEGLIGENCE IN ROMAN LAW. 
 
 CosTElBUTOEY negligence, and the allied topics considered in the text, did not 
 escape the Roman lawyers, but they are treated only in an incidental manner 
 and no complete theory is worked out. The passages bearing on the point in 
 the Digest "Ad legem Aquiliam " (ix. 2) are the following : — 
 
 L. 9 ^ 4 (Ulpian). Sed si per lusum iaculantibus servus fuerit occisus, 
 Aquiliae locus est : sed si cum alii in campo iacularentur servus per eum locum 
 transierit, Aquilia cessat, quia non debuit per campum iaculatorium iter intem- 
 pestive facere. Qui tamen data opera in eum iaculatus est, utique Aquilia 
 tenebitur. 
 
 It is not clear whether the words " data opera " are intended to cover the 
 ease 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 ilela scribit, si, cum pila quidam luderent, vehe- 
 mentius quis pila percuss^a in tonsoris manus earn deiecerit et sic servi quern 
 tonsor habebat [a7. radebat] gula sit praeeisa adiectfl cultello : in quocumque 
 eorum culpa sit, eum lege Aquilia teneri. Proculus in tonsore esse culpam: et 
 sane si ibi tondebat ubi ex consuetudine ludebatur vel ubi transitus frequens 
 erat, est quod ei imputetur: quamvis nee illud male dicatur, si in loco pericu- 
 loso sellam habenti tonsori se quis commiserit, ipsum de se queri debere. 
 
 Jlela seems to have though it a question of fact, to be determined by 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 ball, if the evidence shows that he did so with [ * 485] 
 notice of the danger; but he adds that tlie customer, if he in turn chose 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 eiilpa 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 anticipte 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 him- 
 self. It would therefore probably be held that there was no evidence of negli- 
 gence 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), 
 g 1. Haec tamen actio ex causa danda est, id est si neque denun taitum est neque 
 
 (2711) 
 
378 APPENDIX D. 
 
 scierit aut providere potuerit : et multa huiusmodi deprelienduntur, guibus 
 summovetur petitor, si evitare periculum poterat. 
 
 This comes very near the language of oux own authorities. 
 
 L. 31 (Paulus). Si putator ex arbore ramum cum deiceret vel machinarius 
 hominem praetereuntem occidit, ita tenetur si is in publicum decidat nee ille 
 proolamavit, ut casus eius evitari possit. Sed Mucins etiam dixit, si in privato 
 idem accidisset, posse de culpa agi: culpam autem esse, quod cum a diligente 
 provider! poterit non esset provisum, aut tum denuntiatum esset cum periculum 
 evitari non possit. 
 
 Cp. Elackst. Comm. iv. 192, supra, p. 372. 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 fulhlled 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 Paulus wrote it (though it is likely 
 enough to be as Tribonian edited it), and it seems more probable that "vel 
 machinarius" is an interpolation than that other words have been omitted. 
 [ * 486] * Elsewhere Paulus says. Sent. Rec. I. 15 | 3: Ei qui irritatu sou 
 feram bestiam vel quamcunque aliam quadrupedem in se proritaverit, itaque 
 damnum ceperit [so Huschke: mdg. "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 contributory negli- 
 gence, but of no evidence of negligence in the defendant, the plaintiffs damage 
 being due wholly to his own act. 
 
 (2712) 
 
INDEX. 
 
 *** The italic letters refer to foot-notes; thus 438 s means note s on page 438. 
 
 [The paging refers to the [•] pages.] 
 ABATEMENT : 
 
 of nuisance, 341 
 
 whether applicable to nuisance by omission, 342 
 
 unnecessary damage must be avoided in, 342 
 
 ancient process for, 343 
 
 difiaculty of, no excuse, 348, sqq. 
 
 ACCIDENT . 
 
 inevitable, damage caused by, 115 
 
 American law as to, 119, 120, 128 
 
 inevitable, cases of, distinguished from those of voluntary risk, 143 
 
 liability for, in special cases, 396 
 
 non-liability for, in performance of duty, 402 
 
 negligence when presumed from, 403 
 
 ACT OF GOD : non-liability for, 400 
 
 ACT OF PARLIAMENT . 
 
 when remedy under exclusi\'e, 168 
 
 damage must be within mischief of, 169 
 
 ACTION : 
 
 forms of, 2, 13, 14 
 
 causes of, in contract or tort, 3, 5 
 
 on the case, 13, 14 
 
 convicted felons and alien enemies cannot have, 47 
 
 for injury per quod servilium aiiiimt, 55 
 
 for wrongs to property, when it survives for or against executors, 56 
 
 cause of, under Lord Campbell's Act, 59 
 
 against viceroy or colonial governor, 96. 97 
 
 right of, for damage in execution of authorized works, 111, 113 
 
 cause of, when it arises, 159 
 
 single or severable, 165 
 for breach of statutory duty, 168 
 against joint wrong-doers, exhausted by judgment against any, 170 
 when wrong amounts to felony, 173 
 local or transitory, 179 
 
 malicious bringing of, whether it can be a tort, 265 
 early theory of cau.ses of, 429 
 on the case, development of, 430 
 causes of, their modern classiiication, 431 
 form of, duty not varied by, •436 
 concurrent causes of, in contract and tort, 439 
 concurrent causes of, against different parties, 443 
 history of forms of, 467 
 real, when abolished, 2 
 
 former writ of right, 13 
 
 replaced by action of ejectment, 154 a. 
 
 ACTS : voluntary, liability for accidental consequences of, 118, 121, 127 
 
 (2713) 
 
380 INDEX. 
 
 [The paging refers to the [*] pages.] 
 ACTS OF STATE : 94 
 ADMIRALTY : rule of, where both ships in fault, 385 
 
 j^GENT; 
 
 implied warranty of authority hy, 55 h. 
 
 liability of principal for authorized or ratified acts of, 65 
 
 when entitled to indemnity, 171 
 
 liability of person assuming authority as, 249 
 
 misrepresentations by, 256 
 
 false representations made by or through, 257 
 
 how far corporation can be liable for deceit of, 258 
 
 AGREEMENT : unlawful, cause of action connected with, 153 
 
 Alli : no specific right to access of, 336 
 
 ALIEN ENEMY : cannot sue, 47 
 
 AMENDMENT : of statement of claim, 161 s. 
 
 AMERICAN LAW: 
 
 gives compensation for damage by death, 61 
 
 doctrine of a common employment in, 85 
 
 employers' liability in, 91 
 
 as to judicial acts, corresponds with English, 101 
 
 as to inevitable accident being no ground of liability, 119, sqq. 
 
 on accidents during Sunday travelling, 152 
 
 as to causing breach of contract, 455 
 
 as to rights of receiver of telegram, 456 
 
 ANIMALS : 
 
 trespasses by, 149 
 
 mischievous, responsibility for, 406 
 
 ARBITRATION : how death of party before award eftects cause of action, 52 
 
 ARBITRATOR : not liable for errors in judgment, 101 
 
 ARREST; when justified, 190 
 
 And see Impeisonment. 
 
 ASPORTATION: 283 
 
 ASSAULT : 
 
 when not justified by consent, 140 
 
 acts for benefit of person who cannot consent, 147 
 
 what is, 183 
 
 acts not amounting to, 185 
 
 words cannot be, 185 
 
 justification by consent, 186 
 
 self-defence, 147, 187 
 
 when action barred by summary process, 188 
 
 ASSETS : following property or its value into wrong-doer's, 62 
 
 ASSUMPSIT : 
 
 action of, its relation to negligence, 354 
 development of, from general action on the case, 433 
 implied, where tort waived, 442 
 
 AVERAGE : general, law of, 146 
 
 BAILEE : 
 
 justification of, in re-delivery to bailor, 295 
 excessive acts of, when conversion, 295 
 bailment over by, 302 
 
 (2714) 
 
INDEX. 381 
 
 [The paging refers to the ['] pnges.J 
 BALLOON : trespass by, 34, 2S1 
 
 BANKRUPTCY; 
 
 no duty to prosecute upon trustee in, 174 
 debt discharged by, in American law, 179 
 imputation of, to tradesman, actionable, 213 
 malicious proceedings in, 266 
 
 BARRISTER : 
 
 revising, powers of, 99 
 slander of, 912 
 
 Aiul see Couksel. 
 
 BATTERY: what is, 182 
 And see Assault. 
 
 BREAKIXG DOORS : when justified, 314 
 
 BUILDINGS : 
 
 duty of keeping in safe condition, 415 
 tailing into street, 423 
 
 BUSINESS : 
 
 slander on, injunction to restrain, 166 
 slander of man in the way of his, 211, sqq. 
 ■words indirectly causing damage in, 213 
 
 CAMPBELL'S ACT (LORD), 9 & 10 Vict. c. 93 : 
 what relatives may recover under ry< k. 
 claim under, does not lie in Admiralty jurisdiction, 58 m. 
 construction of, 59 
 
 what damages may be recovered under, 60 
 cause of action under, not cumulative, 61 
 
 CAMPBELL'S ACT (LORD), 6 & 7 Vict. c. 96: 
 
 as to pleading apology, &c,, in action for defamation, 235 
 
 CANALS escape of water from, 402 
 
 CAPACITY: personal, with respect to torts, 46, sqq. 
 
 CARRIAGE; responsibilities of o^vner of, 413, 420, 427 
 
 CARRIER : common, duty of, 434, 445 
 
 CASE : action on the, development of, 430 
 
 CATTLE : 
 
 trespass by, 282 
 
 liability for trespass by, 404 
 
 bitten by dog, no scienter need be proved, 406, 407 
 
 right of owners of, to safe condition of market-place, 419 
 
 CAUSE : 
 
 immediate or proximate, 26, 28, 36 
 reasonable and probable, for imprisonment, 192 
 proximate, in law of negligence, 374, 378, 380 
 of action. See Action. 
 
 CAUTION : consummate, required -with dangerous instrument, 45 
 
 CHILDREN : when deprived of remedy by contributory negligence of parent 
 Ac, 382 
 
 CIVIL PROCEEDINGS : malicious bringing of, whether a tort, 265 
 
 (2715) 
 
382 INDEX. 
 
 [The paging refers to the [*] pages.] 
 CLERGYMAN: complaint to, regarding curate, 281 
 
 CLUB: 
 
 quasi-judicial power of committee, 105 
 
 cases on expulsion from, 106 r, s 
 
 chance of being elected to, no legal loss, 209 
 
 COLLEGE: quasi -j udicial powers of, 105 
 
 COLLISON: between ships, 386 
 
 And see Negligence Railway. 
 
 COLONIAL GOVERNMENT: liable for management of public harbour, 52 
 
 COLONIAL LEGISLATURE: control of, over its own members, 104 jj 
 
 COLONY : governor of, liable in courts of colony for debt, 97 
 
 COMJIITY: rule of, as to suits affecting foreign sovereigns and states, 97 
 
 COMMENT: 
 
 fair, not actionable, 220 
 what is open to, 221 
 
 COMMON: no distress by commoners inter se, 316 
 
 "COMMON EMPLOYMENT:" 
 the doctrine of, 85 
 what is, 87 
 
 relative rank of servants immaterial, 88 
 no defence for master under Employers' Liability Act, 476 i 
 
 COMMONER. 
 
 any one can sue for injury, 336 
 
 may pull down house on common after notice, 340 
 
 may pull down fence withovtt_notice, 341 
 
 COMMUNICATION: what is privileged, 228 
 
 COMPANY: 
 
 fraud of directors, 82 
 
 removal of directors, 106 r 
 
 false statements in prospectus of, 241, 250 
 
 representations in prospectus of, 253 
 
 malicious proceedings to wind up, 266 
 
 COMPENSATION: statutory, for damage done by authorized works, 111 
 
 COMPETITION: in business or trade, no wrong, 131 
 
 CONSENT: effect of, in justifying force, 139, 143 
 And see Licence 
 
 CONSEQUENCES: 
 
 liability for, 26 
 
 near or remote, 27, 32 
 
 " natural and probable," 28, 31, 36, 40 
 
 liability of wilful wrong-doer for, 31 , 43 
 
 supposed limitation of liability to "legal and natural," 453 
 
 CONSPIRACY: whether a substantive wrong, 267 
 
 CONSTABLE: 
 
 must produce warrant, 1 02 
 is liable for mistake of fact, 103 
 statutory protection of, 102, 180 
 powers of, to arrest on suspicion, 190 
 protection of, in cases of forcible entry, 315 
 
 (2716) 
 
INDEX. 383 
 
 [The paging refers to the [*] pages,] 
 ••CO\SITMj\rATE CARE:'' 
 
 cannot tilways avoid accident, 116 
 requirement of, 122 
 
 CONTAGIOUS DISEASE: imputation of, 211 
 COXTRACT: 
 
 actions of, as opposed to tort, 2, 5, 15 
 
 right of action upon, not extended by changing form, 47 
 
 law of, complicated with that of tort in probince of deceit, 237 
 
 malicious interference with, 270 
 
 effect of, on title to property, 273 
 
 overlaps with tort in law of negligence, 353 
 
 effect of, on negligence, 362 
 
 relations of, to tort, 429, sqq 
 
 negligence in performing, how far a tort, 434, 437 
 
 breach of duty founded on, 4:!() 
 
 rights arising from, not affected by suing in case, 437 
 
 where action of tort lies notwithstanding existence of doubt as to, 439 
 
 implied in law, as alternative of tort, 441 
 
 with one party, compatible with actionable breach of duty in same mat- 
 ter by another, 443 
 
 breach of, whetlicr third party can sue for an act which is, 446 
 
 -with servant, effect of, on master's rights, 446 
 
 stranger to, cannot sue for damage consequential on mere breach of, 449 
 
 breach of, concurring with delict in Roman law, 450 
 
 causing breach of, under what conditions a tort, 451 
 
 existence or non-existence of, as aftecting position of third parties, 461 
 
 measure of damages in, as compared with tort, 463 
 
 to marry, exceptional features of, 465 
 
 CONTRACTOR : 
 
 independent, responsibility of occupier for acts and defaults of, 414 
 independent, duties extending to acts of, 418 d, 423 
 
 CONTRIBUTION" between wrong-doers, 171 
 
 CONTRIBUTORY NEGLIGENCE : 
 
 plaintiff is not bound to negative, 361 
 
 what it is, 374 
 
 proper direction to jury, 375, 376 
 
 illustrations, 378 
 
 of third persons, effect of, 380, 391, Addenda 
 
 in Roman law, 484 
 And see Negligexce. 
 
 CONVERSION ■ 
 
 what is, 288 
 
 distinguished from injury to reversionary interest, 289 
 
 meaning oi', extended, 289 
 
 acts in good faith may be, 290 
 
 refusal as evidence of, 291 
 
 mere claim of title or collateral breach of contract is not, 292 
 
 qu. as to dealings under apparent authority, 293, 294 
 
 by bailees, 295 
 
 distinction between varieties of, and cases of injury without conversion, 
 
 298 
 CONVICT cannot sue, 47 
 
 COPYRIGHT : principle of slander of title extended to, 261 
 
 [(2717) 
 
384 INDEX. 
 
 [The paging refers to the [*] pages. ] 
 CORPORATION : 
 
 liability of, for wrongs, 51 
 
 responsibility for performance of public duties, 51 
 
 liable for trespass, 51 p 
 
 may be liable for fraud, &c. of its agents, 81, 83 
 
 liability of, for fraud of agent, 258 
 
 cannot commit maintenance, semble, 271 rf 
 
 COSTS : 
 
 relation of, to damages, 158 I 
 
 presumed to be indemnity to successful defendant, 265. 
 
 COUNSEL : immunity of words spoken by, 225 
 COUNTY COURT : statutory distinction of actions in, 437 
 COUNTY COURT JUDGE : powers of, 99 
 COURT, 
 
 privilege of statements made in, 235 
 
 control of, over jury, 235 
 
 COURT AND JURY ■ 
 
 functions of, in cases of negligence, 364, 365 
 
 usual and proper direction as to contributory negligence, 375 
 
 COURT-MARTIAL : 
 
 protection of members of, 100 
 
 whether action lies for bringing one before, without probable cause, 103 
 
 CRIME : oral imputation of, when actionable, 209 
 CRIMINAL CONVERSATION : former action of, 196 
 
 CRIMINAL LAW : 
 
 attempted personal offences, 29 m 
 
 what is immediate cause of death in, 36 
 
 individuals bound to enforce, 101 
 
 forfeiture of deodand, 117 
 
 as to self-defence, 148 
 
 conversion necessary for larceny, 288 
 
 distinction of receiving from theft in, 303 
 
 as to asportation, 314 
 
 prosecution for public nuisance, 324, sqq. 
 
 CRITICISM : limits of allowable, 220, 222 
 
 CULPA : 
 
 equivalence of culpa lata to dolus, 247, 250, 357 
 
 licensor not liable to gratuitous licensee for, 426 
 
 CUSTODY distinguished from possession, 277 
 CUSTOM : loss of, no right of action for, 144 
 CUSTOM OF THE REALM, meaning of, 435, 438 
 CUSTOMER: right of, to safe condition of buildings, &c., 417 
 
 DAMAGE : 
 
 relation of, to wrongful act, 19 
 unavoidable, no action for. 111 
 effect of, as regards limitation, 180 
 special in law of slander, what, 207 
 (2718) 
 
DAMAGE— ooH/inHprf. 
 
 INDEX. 385 
 
 [The paging refers to the [*] pages. ] 
 
 actual, \iimecessary to constitute trespass, 280 
 
 particular, in action for public nuisance, 326 
 
 not when private riglit infringed, 336 
 
 special, procuring breach of contract actionable only with, 451 
 
 remoteness of, 453. 
 
 DAMAGES: 
 
 measure of, 27 
 
 nominal, ordinary, or exemplary, 157. 
 
 carrying costs, 158 / 
 
 nominal, as test of absolute right, 159 
 
 when damage gist of action, 159 
 
 ordinary-, measure of, 161 
 
 exemplary, 162 
 
 mitigated, 164 
 
 only once given for same cause of action, 165 
 
 for false representation, 167 
 
 in actions for seduction, 200 
 
 mitigation of, by apology, in action for slander or libel, 235 
 
 in action for trover, 292 
 
 relation of costs to, 322 
 
 for nuisance, 343 
 
 to what date assessed, 344 
 
 measure of, in contract and tort, 463 
 
 for breach of promise of marriage, 465 
 
 DA3TNU3f SINE IXIUBIA, 22, 130 
 DANGER: 
 
 going to, 144 
 
 imminent, duty of person repelling, 149 
 
 position of, one knowing, 152 
 
 diligence proportioned to, 372 
 
 concealed, to bare licensee, 425 
 
 licensor liable for, 426 
 
 DANGEROUS THINGS; strict responsibility in dealing with, 394, 396, 407, 
 409, 413 
 
 DEATH: 
 
 of party, effect of, on rights of action, 52 
 
 of human being, said to be never cause of action at common law, 54 
 
 DECEIT: 
 
 action of, damage must be sho^vn, 160 
 
 may give innocent agent claim for indemnity, 171 e. 
 
 what, 236 
 
 conditions of right to sue for, 239 
 
 must include falsehood in fact, 241 
 
 may include misstatement of law, 242 
 
 by garbling, 2 13 
 
 statement believed by maker at the time is not, 243 
 
 effect of subse(|uent discovery of truth, 244 
 
 reckless assertion, 245 
 
 breach of special duty, 246 
 
 intention as element of, 248 
 
 by public representations, 249- 
 
 statement not relied on is not, 251 
 
 25 LAW OF TOETS. (2719) 
 
386 INDEX. 
 
 [The paging refers to the [•] pages.] 
 DECEIT— continned. 
 
 effect of plaintiffs means of knowledge, 252 
 
 effect of misrepresentation by or through agent, 256 — 260 
 
 action of, against falsifier of telegram, 456 sqq. 
 
 DEFAMATION: 
 
 damages in action of, 158 
 
 special damage, 160 
 
 gross, damages for, 163 
 
 in general, 204 . 
 
 spiritual, 210 s. 
 
 of one in his business, 211 
 
 in ivhat sense " malicious, "214 
 
 "publication" of, 215 
 
 construction of words as to defamatory meaning, 216 
 
 by repetition, 218 
 
 exception of fair comment, 219 * 
 
 justified by truth of matter, 223 
 
 immunity of speech in Parliament, 225 
 
 words used by judges and others in j udicial proceedings, 
 
 225 
 naval and military, judicial or official proceedings, 226 
 privileged communications generally, 227 
 
 exception of " express malice," 228 
 
 what are privileged occasions, 229 
 
 privilege of fair reports, 231 
 
 newspajier reports of public meetings, 233 
 And see Libel, Slander. 
 
 ©•EFECT: 
 
 latent, non-responsibility for, 419 
 
 in structure, responsibility of occupier for, 422 
 
 DELICTS: 
 
 Eoman law of, 16-18 
 
 terminology of, Austin on, 18 s. 
 
 DETINUE: 13, 15 
 
 4 nature of writ of, 284 
 DIGEST: of Justinian, ad legem Aquiliam, 17, 484 
 DILIGEXCE: 
 
 liability even when utmost, used, 11 
 
 amount of, required by law, 25 
 
 general standard of, 353, 357 
 
 includes competent skill where required, 358, 362 
 
 due, varies as apparent risk, 372 
 
 DISABILITY: suspending statute of limitation, 180 
 
 DISCRETION: where given by legislature must be exercised with regard to 
 other rights, 113 
 
 DISTRESS: 
 
 in general. 315 
 damage feasant, 315 
 
 conditions of, 316 
 for rent, how limited, 320^ 
 liability for, 321 
 
 (excess iu distress damage feasant, effect of, 321 
 
 (2720) 
 
INDEX. 387 
 
 [The paging refers to the [*] pages. ] 
 DOCKS: owner of, answerable for safety ot appliances, 417 
 DOG: 
 
 whether owner liable for mere trespass of, 406 
 liability for ^•ie^■ of, AOiJ 
 
 DOG-SPEARS: authorities on injuries by, 149 
 DOLUS, 17, 53, 2:;G 
 DOMIXUS PRO TEMPOEE, 70 
 DRIVER: duty of, 145. 
 DRIVERS: negligence of both, 380 
 DRUXKEN SI AN: authorized restraint of, 108 
 DUEL: always unlawful, 140 
 DUTIES: 
 
 absolute, imposed by policy of law, 7, 19 
 
 relation of legal to moral, 9, 11 
 
 to one's neighbour, expanded in law of torts, 12 
 
 DUTY: 
 
 to one's' neighbour, nowhere broadly stated, 21 
 
 specific legal acts in breach of, "23 
 
 of respecting property, :24 
 
 of diligence, 24 
 
 statutory, remedy for breach of, 168 
 
 breach of, in course of employment, action for, 434 
 
 EASEMENT: 
 
 disturbance of, analogous to trespass, 304 
 of light, 337 
 
 ELECTION: 
 
 to sue in contract or tort for misfeasance, 434 
 
 doctrine of, seems not applicable when duties are distinct in substance, 
 448 
 
 EMPLOYER: when answerable as master, 69, 70 
 
 EMPLOYERS' LIABILITY ACT, 84, 89 
 text of, 475, sqq. 
 
 EMPLOYMENT: 
 
 what is course of, 74 
 
 public, of carriers and innkeepers, 434 
 
 ENTRY: 
 
 when justified, 310 ^ 
 
 fresh, on trespasser, 312 
 to take distress, 316 
 of necessity, 317 
 
 EQUITY: 
 
 remedies formerly peculiar to, 154 
 
 former concurrent jurisdiction of, in cases of deceit, 167 
 
 EEROE: clerical, responsibility for, 213, 248, 459 
 
 (2721) 
 
388 INDEX. 
 
 [The paging refers to the [*J pages.] 
 EVIDENCE: 
 
 of malice, 234 
 or conversion, 291 
 of negligence, 359 
 
 question whether there is any for court: inference from admitted evi- 
 dence for jury, 36G 
 of contributory negligence, 376 
 
 EXECUTION: of process, justification of trespass in, 314 
 EXECUTORS: 
 
 statutory rights of action by, for wrongs to testator's property, 56 
 
 liability of, for wrongs of testator, 57 
 to restore property or its value, 62 
 
 cannot sue for personal injuries to testator, even on a contract, 465 
 
 EXPLOSIVES: 
 
 liability for improper dealing with, 120 e, 409 
 liability for sending without notice, 410 
 
 FACTORS ACTS: 
 
 validity of dealings under, 274 
 good title acquired under, 461 
 
 FACULTIES: ordinary use of, presumed, 372 
 FALSE IMPRISONMENT : 
 
 what is, 188 
 
 distinguished from malicious prosecution, 191 
 
 prosecutor or officer answerable for, 191 
 
 FELONY : 
 
 "merger" of trespass in, 172 
 arrest for, on what terms, 190 
 imputation of, when libellous, 211, 224 
 
 FENCE : 
 
 when trespass for defective, 316 
 Hilling in neighbor's land, 400 
 
 FERRY • 
 
 refusal to carry passengers by, 291 
 franchise of, 304 h 
 nuisance to, 339 
 
 FINE : in trespass under old law, 3 
 FIRE: 
 
 as justification for trespass, 317, sqq 
 
 negligence as to, 357 
 
 escape of, from railway engines, 369 
 
 safe keeping of, 407 
 
 lesponsibility for carrying, 408 
 
 FIRE-ARMS : 
 
 accidents with, 122, 124 
 
 consumate caution required in dealing with, 409 
 
 FOOTPATH : diversion of, duty to warn, 421 
 FORCIBLE ENTRY : 
 
 statutes 'against, 309 
 
 with good title, whether civilly wrongful, 311 
 
 (2722) 
 
INDEX 389 
 
 [The paging refers to the [•] pages.] 
 FOX-HUXTIXG : trespass in, not justified, 319 
 FRANCE (law of): 
 
 Conseil d'Etat inquires into "acts of state," 98 ^ 
 
 rule (if, of ti\e yoars' prescription, 178 
 
 FRANCHISE : malicious interference with exercise of, 270 
 
 FRAUD : 
 
 of agent or servant, 81 
 
 of partners, 83 
 
 compensation for, in equity, formerly by way of restitution, 167 
 
 concealed, effect of, on period of limitation, 181 
 
 equitable jurisdiction founded on, 238 
 
 "legal," 239 
 
 of agents, 239 
 
 relation of, to infringement of trade-marks, &c., 263 
 
 efieet of, on transfer of property or possession, 273 
 
 FROST : damage brought about by extraordinary, 41 
 
 GAS : escape of, 411 
 
 GOODWILL: protection of privileges analogous to, 262 
 
 GOVERNOR : colonial, actions against, 97 
 
 GRANT : 
 
 distinguished from licence, 306 
 
 but may be inseparably connected with licence, 307 
 
 GUARANTY: misrepresentations amounting to, 254 
 GUEST : gratuitous, is mere licensee in law, 426 
 HIGHWAY; 
 
 justification for deviating from, 317 
 
 nuisances by obstruction of, 325, 326, 327, 328, 330 
 
 cattle straying off, 405 
 
 traction engine on, 408 
 
 rights of persons using, to safe condition of adjacent property, 420, 422 
 
 HORSE : 
 
 injuries caused by, 40 
 trespass by, 405 
 
 HUSBAND AND WIFE : 
 
 actions by and against, 49 
 
 action of personal tort between, does not lie, 50 
 
 husband may not now beat wife, 107 a 
 
 action for taking or enticing away wife , 195, 198 
 
 assault or crim. eoiu, 196 
 libel on husband by letter to wife, 216 
 
 "IDENTIFICATION :" 
 
 doctrine of, in cases of negligence, 380—384 
 
 of child with grandmother, 384 
 
 of man with land, 3S5 
 
 the doctrine now overruled in C. A., Addenda 
 
 IMPRISONMENT, FALSE: 
 damages for, 162 
 
 justified by local act of idemnity, 175 
 
 (2723) 
 
390 INDEX. 
 
 [The paging refers to the [*] pages. ] 
 IMPRISONMENT, FALSE— continued. 
 definition of, 189 
 
 on mistaken charge, followed by remand, 192 
 ■what is reasonable cause for, 193 
 
 INCORPOREAL RIGHTS of property, violation of, 304 
 
 INDEMNITY: 
 
 claim to, of agent who has acted in good faith, 171 
 
 colonial Act of, 175 
 
 "INDEPENDENT CONTRACTOR:" 64, 66, 69 
 
 INDIA, BRITISH: 
 
 dealings of East India Company with native states, 95 
 protection of executive and judicial officers in, 103 !, 104 
 
 INFANT: 
 
 cannot be made liable on contract by changing form of action, 47 
 
 liability of, for torts, 47 
 
 liable for substantive wrong though occasioned by contract, 48 
 
 cannot take advantage of his own fraud, 48 
 
 Avliether liability limited to wrongs contra pacem, 50 
 
 not made liable on contract by suing in form of tort, 436 
 
 INJUNCTION: 
 
 jurisdiction to grant, 166 
 
 interlocutory, 166, 167 
 
 to restrain continuing trespass, 323 
 
 to restrain nuisance, 344 
 
 on what principles granted, 345 
 
 not refused on ground of difficulty of removing nuisance, 348 
 
 under C. L. P. Acts, 154 6 
 
 INNKEEPER: 
 
 selling goods of guest, 297 g 
 cannot dispute entry of guest, 319 
 duty of, 434 
 
 INNS OF COURT: quasi-judicial powers of, 105 
 
 INNUENDO: meaning and necessity of, 217 
 
 IN.STRUMENT, DANGEROUS: responsibility of person using, 45, 394, 407 
 
 INSURANCE: 
 
 effect of, on necessity of salvage work, 146 a 
 
 duty in nature of, as regards land, 398 
 not as regards persons, 404 
 
 INTENTION: 
 
 not material in trespass, 9, 12 
 general relation of, to liability, 29 
 inference or presumption of, 31 
 
 INVITATION: rights of person coming on another's property by, 415, sqq 
 
 "INVITATION TO ALIGHT" cases, 368 
 
 IRELAND: lord lieutenant exempt from actions in, for official acts, 97 
 
 JUDGE: 
 
 protection of, in exercise of office, 99 
 of inferior court must show jurisdiction, 99 
 
 (2724) 
 
INDEX. 391 
 
 [The paging refers to the [•] pages.] 
 JUDGE— <'0H/))i!(f(7. 
 
 not luible for latent want of jurisdiction, 100 
 allegation of malice will not support action against, 100 
 must grant habaia corpus even in \-acation, 100 
 cannot refuse to seal bill of exceptions, 100 
 
 JUDGMENT: against one of several wrong-doers, effect of, 170 
 JUDICIAL A0T8: 
 
 distinguished from ministerial. 191 
 protection of, •22?, 
 
 JUDICIAL PEOCEEDINGS: reports of, 232 
 
 JVDicimi EusTicmi, sse 
 
 JURISDICTION: 
 
 to grant injunctions, 166 
 local limits of^ 175 
 
 JURY. See Coukt axd Jury 
 
 JUSTERTII: cannot justify trespass or conversion, 300 
 JUSTICE OF THE PEACE: 
 
 limitation of actions against, 180 
 
 memorial as to conduct of, 230 h 
 
 JUSTIFICATION AND EXCUSE: 
 general grounds of, 93, sqq 
 of defamatory statement by truth, 223 
 by licence, 305 
 by authority of law, 309 
 for re-entry on land. 310 
 for retaking goods, 313 
 under legal process, 314 
 for taking distress, 315 
 determination of, 320 
 
 LABOURERS, STATUTE OF: action under, 197, 202 
 LAND: 
 
 acts done in natural user of, not wrongful, 132 
 
 artificial works on, 133 j) 
 
 LANDLORD AND TENANT; 
 
 questions of waste between, 288 
 
 which liable for nuisances, 350 
 LANDOWNERS: 
 
 duty of, as to escape of dangerous or noxious things, 396, 399 
 
 adjacent, duties of, 424 
 
 LARCENY: when trespass becomes, 313 
 
 LAW: misrepresentation of, 242 
 
 LEAVE AND LICENCE: 
 defence of, 138, sqq. 
 as justification for assault, 186 
 And see Licence 
 
 LESSEE: for years holding over no trespasser, 319 
 
 LESSOR: must not forget lease, 247 
 
 (2725) 
 
392 INDEX. 
 
 [The paging refers to the [*] pages.] 
 LEXAQUILIA: 
 
 rules of liability under, compared with Englisli law, 118 a 
 Digest on, compared with English law, 165 k 
 Roman law of, liability under, 450, 484 
 
 LEX FORI: regard to, in English courts, 175, 176 
 
 LIBEL: 
 
 injunction to restrain publication of, 166 
 what is prima fiiviv libellous, 207 
 what is publication, 215 
 construction of, 216 
 fair comment is. not, 220 
 
 And see Defamation 
 
 LICENCE: 
 
 to apjily bodily force, 139 
 
 to do bodily harm, good only with just cause, 140 
 
 obtained by fraud, void, 142 
 
 what, lido 
 
 revocable unless coupled with interest, 307 
 
 may become irrevocable by matter subsequent, Add 
 
 may be annexed by law to grant, 307 
 
 how given or revoked, 308 
 
 not assijiuable, 3()K 
 
 does not confer rights in rem, 308 
 
 LICENSEE: 
 
 rights of, in use of way, 421 
 what risks he must take, 425 
 
 LIEN: distinguished from conversion, 296 
 
 LIGHT: 
 
 obstruction of, 339 
 
 nature of the right to, 337 
 
 what amounts to disturbance of, 337 
 
 the supposed rule as to angle of 45°, 338 
 
 effect of altering or enlarging windows, 338 
 
 LIMITATION: 
 
 statute of, 47, 179 
 
 effect of foreign law of, 178 
 
 exception of concealed fraud, 181 
 
 LOCALITY: of wrongful acts, when material, 175 
 
 LUNATIC: authorized restraint of, 108 
 
 MAINTENANCE: actions for, 271 
 
 MALA PBOHIBITA: no longer different in result from mala in se, 23 
 
 MALICE: ambiguity of the word, 136 it. 
 
 effect of, an exercise of common right, 137 
 
 "implied," meaning of, 214 
 
 express, in communication on privileged occasions, 228 
 
 evidence of, 234 
 
 essential in slander of title, 260 
 
 procuring breach of contract actionable only with, 453 
 
 " MALICE IN FACT: " 51, 228, 234 
 
 MALICIOUS INJURIES: by interference with lawful occupation, &c., 269 
 
 (2726) 
 
INDEX. 393 
 
 a [The paging refers to the [•] pages.] 
 MALICIOUS PROSECUTION: 
 
 distinguished I'roui false imprisonment, 191 
 whether action lor, lies against corporation, 264 
 
 MANDAMUS: 1.-.4 b 
 
 MARKET: franchise of, 305 h 
 
 MARKET OVERT: title acquired in, 274, 461 
 
 MARKET-PLACE: duty of person controlling structures, in, 418, 419 
 
 MARRIAGE: breach of promise of, 164, 165 
 
 MARRIED WOMAN : 
 
 damages and costs recovered against, how payable, 49 
 
 can now sue and be sued alono, 49 
 
 whether liability at common law limited to wrongs contra pacem, 50 
 
 MARRIED WOMEN'S PROPERTY ACT : 
 eifect of, 4 
 right of action under, how limited, 49 i 
 
 MASTER AND SERVANT : 
 
 master responsible for servant's negligence, 20 
 
 whether master can have action for loss of service when servant is killed 
 
 by the injury, oo 
 liability of master for acts and defaults of servant, 63, sqq 
 rule as to liability of master, 66 
 
 reason of, (iT. 
 temporary transfer of service, 71 
 execution of specific orders, 72 
 liability of master for servant's excessive acts, 77 
 
 wilful wrongs, 80 
 
 fraud, 81 
 
 forgery, 82 I 
 injuries to' servant by fellow-servant, 84 
 master must choose proper servants, 88 
 
 furnish suitable materials, 8g 
 defence of servant by master, 148 d 
 action for beating servant, 196, 201 
 
 enticing away, 197 
 doctrine of constructive service, 201 
 menacing servants, 202 
 master giving character, 229 
 
 warning by master to fellow-servants privileged, 230 
 as passengers by railway, 440 
 whether master can sue for loss of service by a breach of contract vrith 
 
 servant, 446 
 And see Servant. 
 
 MAXIMS : 
 
 imperitia culpae adnumeratur, 25 
 
 in iure non remota causa sed proxima spectatur, 26 
 
 a man is presumed to intend the natural consequences of his acts, 30 
 
 actio personalis moritur cum persona, 52, sqq 
 
 qui facit per alium facit per se, 67 
 
 respondeat superior, 67 
 
 sic utere tuo ut alienum non laedas, 93, 109 
 
 nullus videtur dolo facere qui suo iure utitur, 110 c 
 
 volenti non fit iniuria, 138, 142 
 
 (2727) 
 
394 INDEX. 
 
 [The paging refers to the [*] pages.] ^ 
 MAXIMS— continued. 
 
 culpa lata dolo aequiparatur, 238 
 
 ad versus extraneos vitiosa possessio prodesse solet, 300 
 
 res ipsa loquitur, 423 
 
 MEETING : public, newspaper reports of, 233 
 
 MENACE : 
 
 when actionable, 187 
 to servant, 2U2 
 
 MILITARY COUET • privilege of, 226 
 
 MINISTER : of Baptist chapel, removal of, 106 s 
 
 MISREPRESENTATION : 
 
 of fact or law, 242 
 by omission, 243 
 by reckless assertion, 245 
 
 by breach of special duty of disclosure, qu. whether deceit, 246 
 by neglect of spe<-ial duty, 247, 248 
 reliance of plaintiff on defendant. 2.51 
 construction of ambiguous statement, 254 
 amounting to promise of guaranty, 237, 254 
 See Deceit. 
 
 MISTAKE : 
 
 does not excuse interference with property, 10 
 of sheriff, in taking goods, 314. 
 
 MORTGAGOR : 
 
 may be guilty of conversion, 297 
 cannot oust mortgagee in possession, 310 
 
 MOTIVE : 
 
 whether material in exercise of rights, 135, 137 
 considered in aggravation or reduction of damages, 164 
 when material part of cause of action, 454. 
 
 NAME : 
 
 no exclusive right to use of, 138 
 of house, no exclusive right to, 263 
 
 NATURAL JUSTICE : must be observed in exercise of quasi-judicial powers, 
 105 
 
 " NATURAL USER." of property, non-liability for, 397 
 
 NAVIGATION: 
 
 negligence in, 39 
 
 requirements of, as limiting statutory powers, 112 
 
 NECESSITY; 
 
 as excuse for unskilled person, 25 
 as justification generally, 146 
 "compulsive," 149 
 trespasses justiiied by, 156, 317 
 
 NEGLIGENCE, 
 
 liability for, 10 
 equivalent to cuJpa, 17 
 
 liability for, depends on probability of consequence, 36 
 contributory, 125 t. 
 
 question of, excluded when"a risk is voluntarily taken, 145 
 (2728) 
 
INDEX. 395 
 
 [The paging refers to the [*] pages.] 
 NEULIGEXCE— coii^/HHi-rf. 
 
 aggravatod by reclclessness, 163 
 
 as ground of action against servant for conversion, 295 
 
 general notion of, 353 
 
 concurrence of liability ex conimdu, and c.v delicto, 353 
 
 Alderson's definition of, 355 
 
 liiilare in average prudence is, 357 
 
 evidence of, 359 
 
 burden of j^roof on plaintiff, 360 
 
 bow affected by contract, 362 
 
 when presumed, 363 
 
 principles illnstratrated by railway cases, 364 
 
 Anil sec Railway. 
 duties of judge and jury, 365 
 
 Allll .sre CONTKIBUTOBY NEGLIGENCE. 
 
 of independent persons may be joint wrong. 381, Addenda. 
 
 one is not bound to anticipate another's, ;!W7 
 
 choice of risks caused lij- another's, 3MW 
 
 presumption of, in cases of unexplained accident, 422 
 
 liability for, cuncurrent with another party's liability on contract, 443 
 
 general doctrine of, not applicable to statements, 457, 459 
 
 XEWSPAPEE: 
 
 vender of, not liable for libel, 215 
 volunteered reports to, 232 
 Libel and Kegisl ration Act, 1881 . . 23:5 
 special procedure in action for libel, 235 
 
 NEW TEIAL: for excessive or inadequate damages, 157 
 
 And see Coukt and Jcky. 
 NOTICE: 
 
 effect of, on liability for negligence, 356 
 
 judicial, of common facts, 363 
 
 of special risks, 372 
 
 of special circumstances, as affecting measure of damages, 464 
 
 NUISANCE: 
 
 when justified by statutory authority, 113, 115 
 public or private, 324 
 particular damage from public, 325 
 private, 328 
 affecting ownership, 329 
 easements, 330 
 comfort and enjoyment, 330 
 what amount of injury amounts to, 331 
 doctrine of " coming to nuisance " abrogated, 332, Add. 
 acts in themselves useful and in convenient places may be, 333 
 miscellaneous forms of, 334 
 by u.se of property for unusual purpose, 335 
 by injury common to many persons, 336 
 by obstruction of light, 336 
 
 Atid see Light. 
 to market or ferry, 339 
 remedies for, 340 
 abatement of, 340 
 
 notice before abatement, when required, 341 
 duties of person abating, 342 
 damages, 343 
 injunction, 344 
 
 (2729) 
 
396 INDEX. 
 
 [The paging refers to the [*J pages.] 
 NUISANCE— coji/iudfeti. 
 
 when reversioner can sue for, 349 
 when occupier or landlord liable for, 350 
 when vendor or purchaser liable, 321 
 whether a single accident can be, 398 
 
 OBLIGATION: 
 
 e.v delicto in Eoman law, 16 
 quasi ex delicto, 18 
 
 OFFICE: judicial or ministerial, 106 , 
 
 OFFICERS: 
 
 public, acts of, 101 
 
 excess of authority by, 102 
 
 naval and military, acts of, 103 
 
 subordinate, to what extent protected, 103 
 
 commanding, liability of, for accident, 123 
 
 liability of, for malicious misconduct, 271 
 
 OMISSION: of legal duty, liability for, 23. 
 PAEENT: authority of, 107 
 PARLIAMENT: 
 
 disciplinary orders of House of Commons not examinable, 104 
 
 may give a governing body absolute powers, 106 
 
 position of presiding and returning officers at election for, 107 
 
 protection of words spoken in, 225 
 proceedings of Committee, 226 
 publication of papers and proceedings, 231 
 
 fair reports of debates in, 232 
 
 wisdom of, 233 s. t. 
 
 PARTNER: 
 
 liability of, for co-p.artner's fraud, 83 
 
 to servant of iirm, 89 
 expulsion of, 106 
 
 PASSENGER: rights of person accepted as, 440, 441, 444 
 
 PATENT EIGHTS: 
 
 principle of slander of title extended to, 201 
 
 relation of, to possession, 305 
 
 PERCOLATION: underground, no cause of action for, 132, sqq. 
 
 PERSON: v^Tongs to the, 7. &e Assault. 
 
 I'ERSONAL ESTATE : damaged by personal injury, no cause of action, 57 
 
 PIGS: 
 
 may be cattle by statute, 384 u. 
 average obstinacy of, 384 v. 
 
 PLAINTIFF: a wrong-doer, may still recover, 151 
 PLEDGEE: abuse of authority by, when conversion, 296 
 POISON: responsibility of person dealing with, 411 
 POSSESSION: 
 
 more regarded than ownership in the early law, 275 
 
 right to, commonly called property, 276, 277 
 
 distinguished from custody, 277 
 
 (2730) 
 
INDEX. 397 
 
 [The paging refers to the [*] pages.] 
 POSSESSIOX— (.on<jn»orf. 
 
 relation of trespass to, 278 
 constructive, 279 J. 
 
 right to immediate, plaintiff in trover must have, 289 . 
 without title, protected against strangers, 299 
 why protected by law, 301 
 derivative, 302 
 
 of receiver or taker from trespasser, 303 
 restitution of, after forcible entry, 311 
 • taken by trespass, when complete, 312 
 OT\Tiernot in, how far liable, 427 
 obtaining of, by trick, 461 
 
 POST-CARD: sending defamatory matter on, 233 
 POUXD: conditions of, 317 
 
 PEESCEIPTIOy ACT: effect of, on right to light, 337 
 PEIXCIPAL AXD AGENT: 
 
 when principal must indemnify agent, 171 
 
 liability of iirincipal for traud of agent, 257 
 
 where principal is a corporation, 25d 
 
 reason of liability, 259 
 
 liability of agent misrepresenting principal's authority, 4-12 
 
 PRIXTIXG OF LIBEL: prima facie a publication, 215 k. 
 
 PEISOX: what is, 189 
 
 PEIVILEGE: 
 
 ' ' absolute, " in la w of defamation, 220 
 
 "qualilied," 227 
 
 privileged occasions, and excess, 228, 233 
 
 fair reports, 231 
 
 PEIZE-FIGHT: 
 ^ why unlawful, 139, 141 
 
 presence at, 141 
 
 PEOPEETY: 
 
 wrongs to, 7. 9, 12, 15 
 
 acts done in defence of, 148 
 
 duty to respect, 272 
 
 of goods, commonly means right to process, 277, 289 
 
 transferred ty satisfied judgment in trover, 292 
 
 PEOSECUTION: whether necessary before offender can be civilly .sued, 172, 
 sqrj. 
 
 PUBLICATION: 
 
 of libel, what, 215 
 
 by agent, 216 
 PUECHASEB: innocent, may be liable for conversion, 293, 294 
 
 RAILWAY: 
 
 unguarded crossing, responsibility of company for, 23, 38 
 remotene.ss of damage suffered on, 35, 41 
 overcrowded carriage in, 41 
 
 liability of company for mistaken acts of servants, 77 
 immunity or liability of company for damage in execution of undertak- 
 ing, 111, 113 
 
 (2731) 
 
398 , INDEX. 
 
 [Tlie paging refers to the [•] pages.] 
 RAILWAY— cr)«/mwc(7. 
 
 effect of statement in company's time-tables, 250 
 
 distraint of engine damage feasant, 315 x. 
 
 e\ idence of negligence in accidents on, 364 
 
 level crossing cases, 367 
 
 "invitation to alight" cases, 368, 390 
 
 escape of sparks, 369 
 
 where train fails to stop, 390 
 
 liability of company Ibr damage by escape of sparks, 403, 408 
 
 breaking dov7n of embankment, 403 
 duty of company as to safety of carriages and jolatforms, 418 
 
 of structures, as regards passers-bj', 422 
 liabilities of company from assumption of duty, independent of contract, 
 440, 444 
 
 EATS : damage by, 402 z. " 
 
 REASONABLE CAUSE : for imprisonment, 193 
 RECAPTION : of goods -wrongfully taken, 313, 321 
 REMEDIES : 
 
 at common law in general, 154 
 
 self-help, l.").") 
 
 damages, l."i(; 
 
 kinds of damages, 157 
 
 measure of damages, 161 " 
 
 injunctions, 165 
 
 damages or compensation for deceit, 167 
 
 for breach of statutory duty, 168 
 
 alternative, on one cause of action, 432 
 
 REMOTENESS : of consequence or damage, 35, 41 
 
 REPLEVIN, 276, 284 
 
 REPORTS : 
 
 of naval and military officers, how far privileged, 226 
 confidential, to official superiors, 229 
 fair, of public proceedings, 231, 232 
 newspaper, of public meetings, 233 
 
 REPRESENTATION : compensation or damages for false, 167 
 
 BES JUDICATA, 170 
 
 REVENUE OFFICERS: protection of, in cases of forcible entry, 315 
 
 REVERSION : injury to, measure of damages, 161, 283 
 
 REVOCATION - of licence, 306, 308, Add. 
 
 RIGHT: 
 
 exercise of, not cause of action, 129 
 
 whether it can be made wrongful by malice in fact, 136 
 
 absolute, at least nominal damages recoverable for violation of, 159 
 
 RISK : voluntary taking of, 125 i, 128, 143, 144, 145 
 ROMAN LAW: 
 
 of obligations ex delicio, 8, 16 
 
 as to effect of death of party on rights of action, 53 
 
 on the value of human life, 56 d. 
 
 noxal actions of, 117 
 
 does not make a man liable for inevitable accidents, 118 
 
 (2732) 
 
INDEX. 399 
 
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 ROM AX LAW— ooh//h«™. 
 
 distiugnishes riirht to personal security from that of property, 165 
 
 of possession, ;'7ti, 301 t, n. 
 
 Icgin acliones in, compared witli common-law forms of action, 431 
 
 theory of culpa in, 433 /. 
 
 concurrent breach of contract with delict in, 450 
 
 of contributory negligence, 484 
 
 KUXXIXG-DOWX CASE,S, 126, 127 
 
 BrLASDSv. FLETCHER, the rule in, 394, sqq. 
 
 SCAXDALUJr -VAGXATUM, 205 
 
 SCIEXTEB : doctrine of, as to damage by animals, 406 
 
 SCOTLAND (law of): 
 
 gives compensation for damage by death, 58, 61 
 theory of "common employment" forced upon, 85 
 as to aemulaiio ricini, 137 
 
 SEDUfcTION : 
 
 actions for, 195 
 
 what is ser\ice for this purpose, 199, 200 
 
 damages, 200 
 
 SELF-DEFENCE : 
 right of, 147 
 
 injuries to third person resulting from, 149, 150 
 against wrongful assault, 187 
 
 SELF-HELP, 155. And see Abatejient, Distress, Recaption. 
 
 SEPARATE PROPERTY: 
 
 costs and damages payable out of, 49 
 
 trespasser on, 50 
 
 whether husband can be indemnified from, 50 
 
 SERVANT : 
 
 who is, 69 
 
 may change master p>-o tempore, 71 
 "what is course of ser\'ice, 73 
 
 negligence of, in conduct of master's business, 73. 
 departure from master's business, 74 
 mistake or excess of authority by, 77 
 arrest of supposed offender by, 78 
 acts of, outside his authority, 79 
 wilful wrongs of, for master's purposes, 80 
 injuries to, by fellow-servant, 84 
 injury to, where master interferes in person, 89 
 custody or possession of 277 
 
 conversion by, in master's interest, not excusable, 290 
 but qu. as to acts done under master's possession and apparent owner- 
 ship, 294 
 
 And see Master and Servant. 
 
 SERVICE : 
 
 proved or presumed in action for seduction, 198, sqq. 
 of young child, 200 
 
 (2733) 
 
400 INDEX. 
 
 [The paging refers to Ihe C*] pages. ] 
 SHERIFF : 
 
 immunity or liability of, 108 
 
 power and duty of, to break doors, &c. in excution of process, 314 
 
 remaining unduly long in possession, 320 
 
 SHIP; 
 
 master's authority, 108 
 
 right of shipowner to refuse services of particular tug, 134 
 
 owner's liability, how affected 1jy neglect of statutory regulations, 169 
 
 contributory negligence of, 379, 387 
 
 rule of Admirality as to division of damage, 386 
 
 duty of owner as to safety of cargo, 419 
 
 liability of owner as carrier, 438 s. 
 
 SHOOTING : liability tor accident in, 122, sqq. ^ 
 
 SKILL : requirement of, in particular undertakings, 25, 358, 362 
 
 SLANDER : 
 
 injunction to restrain, 166 
 
 when actionable, 206 
 
 special damage, 207 
 
 temporal loss necessary to special damage, 208 
 
 imputation of crime, 209 
 
 contagious disease, 211 
 disparagement in office or business, 211 
 indirect damage in business, 213 
 And see Defamation. 
 
 SLANDER OF TITLE, 132, 260 
 
 relation of, to ordinary defamation, 261 
 SOVEREIGN ■ foreign, cannot be sued in England for political acts, 97 
 SOVEREIGNTY : acts of, how far examinable, 98 
 SPORT : hurt received in lawful, 140, 143, 186 
 
 SPRING-GUNS : 
 
 authorities on injuries by, 144, 151 ' 
 
 threat of useless, 232 i/, Addenda. 
 
 STAIRCASE : when not dangerous, 364, 371 
 STAND : safety of, guaranteed by contractor, 418 
 STATE : acts of, 94 
 STATUTE : 
 
 duties created by, breach of, 23, 24, 168 
 
 acts authorized by, 111 
 
 caution recjuired in exercise of powers conferred by, 112 
 
 STRANGER : has no cause of action on breach of contract, 456 
 
 SUNDAY : statutes for observance of, in United States, 152 
 
 SURGEON : action against, for misfeasance, 433 d. 
 
 TELEGRAPH : 
 
 sending defamatory matter by, 234 
 
 conflict between English and American authorities as to rights of re- 
 ceiver of message, 456 
 
 (2734) 
 
INDEX. 4r01 
 
 [The paging refers to the [•] pages. J 
 TENAXTS: 
 
 intimidation of, 202, 203 il. 
 
 in common, trespass between, 298 
 
 TEXTERDKN'S ACT (LORD), 255 
 
 qii. how I'ar now operative, 256 
 THIRD PERSON; intervention of, no excuse for negligence, 44 
 TlilBER : waste by tutting, 287 
 TORT: 
 
 what is, 1 
 
 actions of (as opposed to contract), 2 
 
 wrongs which are not, 3 
 
 former criminal character of action for, 3 
 
 an exclusively common-law term, 3, 4 
 
 generic division of, 6 
 
 wilful, negligent, or involuntary, 9 
 
 from ethical standpoint, 12 
 
 general characters of, 19 
 
 law of, in three main heads, 22 
 
 relations of, to contract 429, sqq. 
 
 cases of, whether contract or no contract between the same parties, 439 
 
 waiver of, for purpose of suing in contract, 441 
 
 cause of action in, co-existing with contract, 433 
 
 or contract, statutory division of actions as " founded on," 474 
 
 TRADE-ilAEKS : protection of, 264 
 
 TRAJIWAY : nuisamce by, 325 
 
 TRAP 
 
 dangers in nature of, 421, 425, 426, 427 
 set by railway company, 444 
 
 TREE : projecting over neighbour's land, 499, 400 
 
 TRESPASS : 
 
 the least invasion of property is, 9 
 
 writ of, 13 
 
 liability for consequences of, .'!4 
 
 inevitable accident as excuse for, 117, sqq. 
 
 strist archaic theory of, 123 
 
 special justification, when proper, 127 
 
 injuries to, when actionable, or not, 1 44, 150 
 
 necessity as excuse for, 146 
 
 damages in action of, 158, 163 
 
 actul damage not material in, 159 
 
 wanton, 162 
 
 aggravated, 162, 163 
 
 "merged in felony," 173 
 
 to foreign land not actionable, 177 
 
 by taking away wife, &c. , 195 
 
 or case, whether action for seduction in, 196 b, 197 d. 
 
 relation of, to larcency, 277, 283, 288 
 
 to land or goods, what, 278 
 
 relation of, to conversion, 279, 288 
 
 to land, by what acts committed, 280 
 
 above or under ground, 281 
 
 by cattle, 282 
 
 to goods, how committed, 283 
 
 26 LAW OF TOETS. (2735) 
 
402 INDEX. 
 
 [The paging refers to the [»] pages. ] 
 TRESPASS— continued. 
 
 between tenants in common, 298 
 
 owner entitled to immediate possession may sue for, 301 
 
 justification or excuse for, 305, sgq. 
 
 continuing, 313 
 
 by necessity, 318 
 
 in fox-hunting, 319 
 
 rih initio, 319 
 
 ah initio cannot arise from nonfeasance, 321 
 
 costs in action for, 322 
 
 continuing, restrainable .by injunction, 323 
 
 distinguished from nuisance, 329, sqq. 
 
 by cattle, 404 
 
 action of, originally penal, 472 
 
 TRESPASSER: 
 
 not disqualified to sue, 151 
 effect of delivery by, 302 
 
 TROVER: 
 
 action of, 285 
 
 special action in some cases where trover does not lie, 296, 297 
 
 "TRUE OWNER: " meaning of, 275 
 
 TRUSTEE': must not forget incumbrances, 247 
 
 TRUTH: a? justification, 223 
 
 UNIVERSITY: quasi-judicial ppwers of, 105 
 
 USER: reasonable presumption of, 286 
 
 VEHICLE: safety of, how far guaranteed by owner, 418 
 
 VENUE: old law of, 176 
 
 VICEROY: local actions against, 96 
 
 VI El ARMIS: what trespass is, 140 
 
 VOLUNTEER: in no better plight than servant, 89 
 
 WARRANTY: 
 
 obligation of, on sale for specific purposes, 419 I. 
 
 implied, of agent's authortiy, 442 
 
 WASTE: 
 
 remedies for, 284 
 
 what is, 285 
 
 reasonable user of tenement is not, 286 
 
 by cutting timber, &c., 287 
 
 equitable, 287 
 
 as between landlord and tenant, 288 
 
 WATER: 
 
 under land, rights of using, 132 
 
 responsibility of persons artificially collecting, 394 
 
 except where storage is a duty, 402 
 
 WAY: limited right of, 317 <7. 
 
 WINDOWS: alteration in, does not destroy claim to light, 338, sqq. 
 WITNESS: immunity of words sijoken liy, 225 
 
 (2736) 
 
INDEX. -103 
 
 [The paging refers to the [*] pages.] 
 WORDS; 
 
 cannot be assault, 185 
 
 alleged detamatorv construction of, 217 
 
 repetition of, -215,' 218 
 
 WORK JI AX: who is, within Employers' Liability Act, 479 
 
 WRIT: 
 
 of right, 13 I 
 
 of debt, 13 
 
 of detinue, 13, 15 
 
 of trespass, 13, m. 
 
 of trespass on the case, 14, 23 
 
 WEOXG-DOER: not necessarily disentitled to sue for wrong to himself, 151 
 
 WROXCi-DOEES: 
 
 do not forfeit rights of action, 151 
 
 joint liability of, 170 
 
 contribution between, 171 
 
 WROXGS: 
 
 to the person, 7 
 
 to property, 7 
 
 to person and property, 7. See Toet. 
 
 THE END. 
 
 (2737) 
 
Phila. ; The Blackstone Pub. Co. 
 
 (2738)